Article: Denying the law to the public

Delays over statute database are not in the public interest
Times Law section, 23 May 2006
By Heather Brooke

Government’s ‘iron grip’ on raw law data is denying public access

In the 14 years that it has taken the Government to launch the first phase of its statute law database, an American university has put online the entire collection of American law and Supreme Court decisions.

The lack of a statute law database highlights one of the ironies of British public life. We are all deemed to know the law and can be arrested for breaking it, yet nowhere is there a freely available copy of the laws in force. Local councils, police officers and various professionals are all required to keep abreast of the latest changes in the law, but doing so couldn’t be more difficult or expensive.

Despite the delay, the Department for Constitutional Affairs (DCA) is steadfastly refusing to release the raw data to a pro-democracy group with a history of building civic websites. The raw data is needed to build the database but the DCA prefers instead to build the system itself.

The latest in a series of missed deadlines for public access to statute law is now set for September. “The delay is unnecessary,” says Julian Todd, an IT developer and co-creator of the civic websites publicwhip.org and theyworkforyou.com. The sites mine Hansard to provide an easy way to view an MP’s voting or attendance record and keep track of debates or issues in Parliament. “I can’t comprehend what the DCA thinks it is gaining by not giving us a database dump of the law.”

Legislation is protected by Crown copyright in the UK, meaning that the Government has the final say on the use and re-use of all data. The situation couldn’t be more different across the Atlantic. Since 1992, the Legal Information Institute (LII), based at Cornell University, has been the leading online resource for US law and Supreme Court decisions.

“Because US copyright law is crystal-clear that statutes, regulations and judicial opinions produced by the national government are not subject to copyright, we were able to start putting federal law on the internet without securing permission or co-operation from any government office. All we needed was access to that material in digital format,” Peter W. Martin, Professor of Law at Cornell, says.

And that is exactly what it received. Director Thomas R. Bruce says the US government has actively helped them to publish the data. The raw text comes directly from the Office of the Law Revision Counsel and LII then provides hyperlinks to the entire US Code and an update service that integrates the congressional servers and the Library of Congress to supply accurate updates to any section that has changed.

While governments seek a monopoly on the collection of official information, European governments also seek a monopoly on its presentation and use. This has stifled innovation and competition in the development of law databases. It also costs more, as the taxpayer rather than the private sector pays for value-added development.

Tired of waiting for a government-funded solution, Todd and his colleagues, Francis Irving and a barrister Frances Davey, made a freedom of information (FoI) request for the raw data early last year. Their request was refused but they have appealed to the Information Commissioner, the independent regulator.

“Initially, the DCA said that it would cost too much to provide the electronic data,” Irving says. He tried to contact the DCA’s IT department but was rebuffed. Then the department changed its reason for refusal, citing instead an exemption for data contained in future publications.

Andrew Bell, a DCA spokesman, would not comment on individual FoI requests, but he confirmed that the DCA would not release the raw data. “The process of ensuring that the database is adequately piloted for usability and that the information contained within it meets stringent quality criteria, in particular in relation to completeness and accuracy, require a properly planned and managed pilot and launch programme,” he said. The department has announced it will begin piloting the public access version of its statute law inquiry facility within the week. The pilot will consist of three phases each about five to six weeks, including a short period within each phase to enable assessment of user feedback.

“Based on these plans we would expect to be able to make the service available for general use in September,” Bell says. The basic service will be free and the public will have access to all legislation contained on the database including everything in force as at February 1, 1991, revised primary legislation since that date and all secondary legislation from 1991 onwards.

But Professor Martin claims that the UK Government’s concerns about accuracy are overstated. “Accuracy issues tend to recede in the electronic environment because accurate copying is easy and fast. It is not as if we have 10,000 error-prone monks copying these documents with quills, with the attendant quality-control problems.” He recommends that if the government is so concerned with accuracy it publish an ‘official’ version alongside the raw data as done by the US Supreme Court, which issues opinions in PDF alongside the more tractable and easily distributed XML/HTML versions.

Lawyers are disadvantaged by the Government’s iron grip on data, too. “Few barristers can afford Westlaw or Lexis unless they’re a big firm or working for a big corporation,” Davey says. “It creates a two-tier justice system with only the very rich able to access the full consolidated law while those lawyers doing pro bono work are discriminated against.”

This if the full version of an article that appeared in the Times.

3 Responses to “Article: Denying the law to the public”

  1. Why not make the same request of the Scottish Executive (which holds much if not all of the raw data, see its evidence on this subject to the Subordinate Legislation Committee last year) under FOISA? Section 27 of the Scottish Act only exempts information intended for publication in the next twelve weeks. And, in response to the Committee’s recommendation that there be free public electronic access to the database, the Executive stated that it agreed with this recommendation: http://www.scottish.parliament.uk/business/committees/subleg/inquiries/regfram/ExecResponse.pdf .

  2. Stephen says:

    Well, I don’t know. All I can think is that Marx had it about right when he said “The executive of the modern state is nothing but a committee for managing the common affairs of the whole bourgeoisie”. Who are these big corporate law firms who can afford access to Westlaw and Lexis? Don’t you think maybe they stand to lose once this data becomes freely available. For one thing, they charge for telling us what the law is. For another, they risk finding the smaller firms come kicking at their heels once they can process the raw data freely and easily for themselves. I wonder whether anyone from these big firms might have had a cosy chat over dinner with Tony Blair’s friend at the DCA? This doesn’t look much like democracy to me.

    Just my 2¢

  3. Francis Davey says:

    My half-pennyworth (speaking as a lawyer) is that there is no pressure from law firms to keep the data commercialised. Many haven’t thought about it (lack of IT savvy). The richer ones probably don’t care too much, but even they (if they have considered it) would rather it be open for competition so that better products would be available.

    The money that large firms make is not to advise the likes of you (or me) on the law, but to give legal advice. There is no danger to any of our bottom lines if the SLD becomes open-source (or similar) and much to be gained from an increase in competition in legal database provision. At the moment there is really an oligopoly and the services are just not that good (as well as being terribly expensive).

    Now its quite possible that sweet and maxwell or lexis have put pressure on the DCA, and certainly the DCA probably makes cash out of the sale of this data. That’s where the problem comes.

    Sigh.

    Francis (a barrister)

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