Welcome to this week’s Weekly Constitutional, where a judgment or other formal document is used as a basis of a discussion about law and policy. This week’s legal text is Rule 5.4C of the Civil Procedure Rules of England and Wales, which provides a limited right of the public to court documents.
Those following the various cases in the United States where the federal government is being challenged over its policies often have an advantage not available to those following cases in England and Wales. You can usually look online at the case’s docket (for example here) to download and read the key court documents.
Here you will not just see the final judgments in the cases but the submissions of the parties and their witness statements, as well as the interim and final orders of the court.
A recent post at Weekly Constitutional was based on one such witness statement, where a federal agent admitted that detainees would be deported even when there was no evidence, for the lack of evidence was somehow telling of culpability. Such a post would not have been easily possible about a case in the United Kingdom as there is normally no online access to such materials.
Why is this so? Why can we have ready access to the detail of a case in the US but not to those in our own jurisdiction? Why can we be better informed of the twists and the turns of contested and controversial cases about the policies of President Trump and yet know almost nothing about the legal challenges against our own government?
There are no easy answers to these questions. Part of the problem here is that the courts themselves sometimes do not have electronic access to the documents in their own cases, let alone any outsiders.
Decades of underinvestment in our courts has left our justice system with rudimentary and outdated IT. Paper bundles and lever-arch folders being shuffled around decaying Victorian buildings and leaky 1960s off-grey offices is the daily lot of justice in England and Wales. Any working electronic system can be a bonus and a marvel.
Another part of the problem is attitudinal. The heady notion of “open justice” often only means that a stranger has the possibility of sitting on a plastic chair at the back of a court room, to hear a case where the only public information is the names of the parties and the court room, but not the legal issues or the evidence.
Judgments can be made available, but few other documents. Rule 5.4C of the civil procedure rules only provides a very limited right of non-parties to a case to obtain court documents (and in practice such applications are difficult, with hard-pressed and understaffed court offices). Judges and others may pay lip service to the principle of “open justice” but there are few other practical tributes.
But another reason is that it would require considerable resources to make available court documents to the public, even if they were available electronically and the will was there to make them available. Someone has to pay for the system and the upkeep of such a site.
In the US the free online access we enjoy to certain court documents is primarily from a combination of the much-criticised court PACER system, which collects and stores case documents, and the heroic efforts of the Free Law Project, which makes them publicly available.
The former charges fees—even for public domain materials—while the latter is a nonprofit which relies on public support. But both require a lot of money to function. Free access to court documents cannot be done for free.
In the UK there is not even a PACER-like system in the first instance. And the wonderful organisation that provides access to court judgments, BAILII, is just about able to make judgments available, let alone other documents on the court files.
Weekly Constitutional asked Dr Ann M Hale of BAILII whether we could ever have US-style online access over here. Dr Hale explained the problems:
As a starting point, the 2024 Civil Procedure Rule Committee’s consultation about making court filings available to non-parties without permission is instructive, particularly regarding professional and systemic reticence. A proposed change to Rule 5.4(C) was postponed due to the concerns of a range of constituents. A significant one was the associated workload for both practitioners and the courts: preparing public-appropriate filings (anonymising, redacting, etc.), reviewing applications, determining what should be made public, etc. There is discomfort with making filings/supplemental materials open as a default.
Any change in access would likely impact how filings are prepared and their content, and materials would have to be appropriately reviewed/redacted for public access. If default open access entails making materials available to organisations like BAILII (without application to the court), it would require an investment of time and resources across the system. It is my understanding that the appropriate balance between open law and constituents’ concerns remains under consideration.
She then explained why it would be burdensome for a charity such as BAILLI:
Another issue is the mechanism of BAILII’s access. For a tiny charity like BAILII, any form of access that requires an application to the court is impractical and overly burdensome. BAILII relies on courts/tribunals making materials available to us (eg, via an API [application programming interface] or email), and BAILII only publishes appropriately anonymised/redacted content received directly from official sources. Since 2022, BAILII publishes UK and England & Wales materials under a licence with the National Archives (TNA).
For it to be feasible, the case documents/filings would need to be made available to us via the current publication/archiving process administered by TNA or a similar mechanism. The practicality and associated costs of making additional materials available (via TNA or another mechanism/as a default or on a case-by-case basis) would be a question for the judiciary, the MoJ, and TNA.
In essence: it is unlikely that there will US-style access to UK legal case documents any time soon, if at all. There would need to be a substantial shift in respect of resources by the Ministry of Justice—and there are many far more pressing issues in our collapsing justice system, as well as in respect of the ongoing problems with probation and prisons, for which the MoJ is also responsible.
And so we are left in the curious position of being able to follow the unfolding cases holding President Trump and his administration to account, but not cases in the home jurisdictions of England and Wales, Scotland and Northern Ireland. The best we can do is little more than go to a court building, find a chair at the back of the court and try to work out what is going on, from the judge and lawyers looking at their paper bundles.
You can support the fine work of BAILII here.
