Internet Newsletter for Lawyers
May/June 2005, by Delia Venables

Those days are long gone. The Scottish courts are rarely very interested nowadays in comfortably antique precedents; and they are increasingly interested, in any cutting-edge question of law, in international authorities. It was about six years ago that I realised, to my then surprise, that Australian authorities had been cited in every substantial hearing I had appeared in that year. It is a long time since I disturbed my eighteenth-century reports.

My experience is, of course, mirrored in other jurisdictions. When I am confronted with a legal question, I go to the internet first. The answer is more likely to be in an unreported decision, or a SPICE research paper on the Scottish Parliament site than in a book. The advent of the Scottish Parliament has resulted in a vast clear-out of antiquated law. Our law of land-ownership, for example, is no longer based on the feudal system. The use of non-UK authorities (English authorities have always been more common in Scotland than the other direction) is driven both by the demands of the courts and the law, and by simple availability. (Lord Rodger of Earlsferry pointed out a few years ago that the Indian law reports ceased to be cited in Scotland simply because the Advocates Library had ceased to subscribe.) If I want to find uses of a phrase in BAILII or CANLII, for example, I can set up searches to do this. If Spanish or Swedish authorities were so easily available in English, they would be cited too.

In this article, however, I do not seek to duplicate commentary on non-Scottish law on the internet but to identify, describe, and criticise what is available under the two heads of Scottish case law and legislation (an artificial limitation in some ways, particularly when so much of our law is almost seamless with other jurisdictions, but so be it), and then to set out a personal wish list for the future.

Scottish case law

The Scottish Courts Service was relatively early in establishing an internet presence, and all Court of Session and High Court (civil and criminal respectively) opinions have been available since September 1998 on the SCS website: Sheriff Court opinions are however very patchy. They are all duplicated on BAILII and it is really a matter of personal preference which one uses (although note that BAILII does not follow the Practice Note on neutral citation).

SCS offers three searches: one, by keyword, is a primitive version of BAILII's; one, by field (such as name of party or judge, or by date or area of law) is very useful when one has a reasonably clear idea of what one is looking for; and one, listing the most recently-issued opinions, seems to me, immodestly I know, simply to be a less useful version of my own weekly list. (Because the site, irritatingly, uses frames, it is not easy to access these searches directly.) SCS, unlike BAILII, is not shielded from search engines. Nobody offers an RSS feed, or any sort of mailing list of new decisions, as the House of Lords does.

Paying services

The Court of Session has repeatedly expressed a preference for the use of Session Cases, and the Justis service, which at present all advocates receive, is easily the first choice in spite of its astronomical price (far more than for the English reports). The ability to print pdf files of a report as it appears on the printed page is particularly useful. It is not very obvious why the others would be seen by any civil practitioner as having better than peripheral value. The Westlaw SLT reports are almost pointless to anyone who holds an old SLT CD-Rom; these have the reports back to 1893, and the quality of more recent reports is not so high as to make them markedly preferable to the free reports (and indeed it is impossible to understand why the current CD should be thought worth purchasing): the value of the Westlaw reports is practically limited to the time-saving note as to whether a case has been distinguished or overruled. The SCLR, although its case commentaries are good, as is its coverage of Sheriff Court cases, simply does not go back far enough; its value is that it comes as a bundle with the Stair Encyclopedia, the Scottish near-equivalent of Halsbury.

Scottish legislation

All Scottish legislation is placed on the HMSO website, just as UK legislation is; and searching is no easier, although customised searches can be created as bookmarks. The Scottish Parliament, however, also offers its legislation on its own site, in a confusing number of places and formats.

A useful one, limited to the 1999-2003 session of the Parliament (there is a different page for the current session) brings together the legislative history of an Act, so that one can see the policy and explanatory memoranda and the amendment history in one place. (As an example, see the Freedom of Information (Scotland) Act 2002 on the HMSO and on the Scottish Parliament sites.) Like so many governmental sites, its search facilities are not good, however, and unless one knows what to look for one may be reduced to Googling it.

The subscription services

The Westlaw Scots law service offers the amended text of all legislation affecting Scotland, whether UK or Scottish. It has many irritations and more-than-occasional inaccuracies (to give one example, Schedule 3C of the Civil Jurisdiction and Judgments Act 1982 is more than a year out of date); users will be aware of these, and for non-users there is a free trial. Other services are no more than equivalents of the paper editions with search facilities. No legislation subscription service seems to me to be wholly satisfactory. None shows historical information.

The Statute Law Database

This of course leads to the spectre of the Statute Law Database, which has for so long been promised for “next year”. In 2004, it seemed that the horizon was nearing. Now it seems to be receding again. I was recently told, in an FOI response from the DCA, that it has not so much as a policy for how the SLD might be made available to the public, let alone a specification. Such basic questions as what will be provided to the public? and will charges be made for viewing the amending history? have, it is said, still not been answered. It is, however, hard to avoid an impression that an official view prevails that the public should not be allowed free access to their own laws. There are no plans, it seems, for amended secondary legislation to be published at all, although clearly parliamentary draftsmen have it. There seems to be no realistic prospect that the SLD will be available before mid-2006 at the earliest. The argument for free public access has not been won; although I was encouraged recently at the Scottish Parliament's subordinate legislation committee at its grasp of the importance of the issue, it is unclear whether DCA would be prepared to listen; and because so much of our statute law is UK, it seems unlikely that Scotland would go it alone.

This is depressing, because in Scotland as elsewhere the law is mostly statutory and we suffer from the curse of the scissors-and-paste amendment as others do. There has, I think, been insufficient emphasis on the democratic need for access to the law; perhaps we as lawyers have been privately content to retain this as part of our arcana. Indeed, the SLD has not been mentioned in the UK Parliament since February 2002. What would be the response to an FOI request for the amended edition of a statutory instrument? Is it going to be said that this is exempt from the Freedom of Information Act? The implementation of the Directive on Public Sector Information on 1 July 2005 by the Re-use of Public Sector Information Regulations 2005 is unlikely to assist, for all its ‘best practice' exhortations, because it can be used to justify charging for notional ‘investment': regulation 16.

Secondary material

I do not think that we have had the problems suffered in Wales with access to other governmental material (see the articles in the last issue of the newsletter by Marie Navarro and Carolyn Kirby).

All Scottish statutory instruments are published online; I have rarely had much difficulty finding codes of practice, directions, and other quasi-statutory material: more often on the Scottish Executive site than on the Scottish Parliament's. Occasionally things slip through; there is, for example, a Scottish Court Service consultation paper at present on the auditing of fees which has never been issued online at all, but this is very unusual. The problem with the Scottish Executive and Scottish Parliament sites is rather their embarrassment of riches, including in the case of parliament even televised committee meetings; neither are well-indexed, and both are in need of better search facilities, such as subject area searching, and better presentation of the vast mass of results. If you do not know just what you are looking for, it may be very hard to find. It is annoying, for example, that one cannot search the Justice Department section of the Executive site without searching the whole government of Scotland (though this can be done with Google).

A wish list

Scottish lawyers, and advocates in particular, have not taken to the internet as a means of publicity or publication with the enthusiasm of English lawyers; the recently redesigned Faculty of Advocates site offers no equivalent to the best English chambers websites, with their wealth of material. But there is a real demand for more comprehensive availability of online material to be provided by others. One technical change, underlying all online availability, would be wireless broadband in the courts: there are no plans for this, because (I am told) it is believed by SCS that this would somehow allow access into the courts' own network; it is committed to physical cabling and an absence of internet access from within courtrooms.

So far as further online law is concerned, the first priority must be non-governmental access to the Statute Law Database, followed by the moving of secondary legislation into the database on the same basis as primary, with free public access to the historical legislation. I have argued this before, and do not repeat the arguments here: but it seems obvious that the DCA is under great pressure (or would like) to impose a charging regime and if they are not stopped they will get away with it. Other requirements really pale into comparative insignificance. I would like to see somebody set up an RSS feed on Court of Session decisions; I would like to be able to order my BAILII search results by date; I would like to see the Scottish legal profession putting far more commentary onto the internet, ideally under Creative Commons Scotland licences to permit re-circulation: but all of these are trivial beside the approaching Statute Law Database argument.

Jonathan Mitchell is a QC in the Murray Stable in Edinburgh. He is a visiting fellow in the AHRC Centre for Studies in Intellectual Property and Technology Law and is Scottish project lead for Creative Commons. His personal website is www.jonathanmitchell.info.
Email access@jonathanmitchell.info.

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