Hugh Tomlinson 35
Hugh Tomlinson QC
calls for online availability of case law and lists, as part of a new ‘Court Charter’
The principle of ‘accessibility’ is a vital part of the rule of law. In Tom Bingham’sseminal work it is the first of the essential principles which he discusses: ‘The law must be accessible and so far as possible intelligible, clear and predictable’.
‘Accessible’ in this context means being ‘public and ascertainable’ – there must besimple and straightforward ways of finding out what the law is. No one doubts thatprinciple of accessibility but what is important are effective measures to put thisprinciple into practice.
For much of our history the law has, in practice, not been accessible to thepublic at all. In contrast to civil law jurisdictions the law is not to be found in ‘codes’ but in a mixture of statute and judicial decision. Statutes and statutory instrumentsoccupy hundreds of large volumes, available only in specialist libraries. The volumeof statutory material is immense. A recent House of Lords Library Note
shows that,since the war, there has been an average of more than 50 new Acts of Parliament a year and over 2,000 statutory instruments. In 2009 there were 3,088 pages of new statutes and 10,662 pages of statutory instruments. Access is, on any view, not straightforward.
The position in relation to caselaw was even worse. In 1362 it was decreed that pleadings and judgments of theCourts of Westminster should be in English – but for many members of the publictheir language remains foreign and the judgments difficult to access.For hundreds of years knowledge of what happened in court was dependenton private enterprise law reporters – of varying quality. There were many differentseries of reports, sometimes inaccurate, sometimes not published until years afterthe judgments were handed down. There were over a hundred series of ‘nominate’reports – often by moonlighting barristers.The first ‘official’ Law Reports were not published until 1866. For over ahundred years they remained expensive and accessible only to those with specialistknowledge and access to law libraries. And the Law Reports only contained the cases which the reporters decided the public should know about. Some judgments wereleft unpublished. If a law reporter was not present in court then the judgment might
T Bingham, The Rule of Law (Faber, 2010), p.37
House of Lords Library Note, LLN 2011/028, 16 September 2011