Richard Heaton, First Parliamentary Counsel at the Cabinet Office, gave an important speech at IALS in October which has only recently been published on the GOV.UK interwebs. In Making the law easier for users: the role of statutes he reviews past attempts to codify the common law and explains how legislation.gov.uk hopes to mesh with the common law.
It is only recently with the advent of the internet and the development of comprehensive primary law sources such as legislation.gov.uk and BAILII that direct access to the law for all citizens has even been a remote possibility.
Experience from legislation.gov.uk is that “people are using legislation – reading, searching, accessing, downloading – in a way that has never happened before”, but without legal training and a knowledge of the role of case law:
the poor reader is perhaps rather like someone who sets sail in a boat. He has been handed some nautical charts which seem to map out most of the route (though they’re rather heavily amended). But he’s also been told that some rocks (he’s not sure which) aren’t marked on the charts. However, he’s given some data about shipwrecks, and perhaps he’ll be able to work out the rest from that. Immediately, the charts are unreliable; and as for the data, well where to start? …
It’s an aspiration of the legislation.gov.uk team to be able to mash the legislation database with the law report database, so that the reader will at least be alerted to those words and phrases that have been discussed in case law.
This aspiration may seem modest, but it’s a good start. It at least gets the purveyors of case law talking to legislation.gov.uk. The former predominantly serve lawyers, the latter serves everyone, not least because it is open data. So long as case law is not open data, it will not serve everyone.
Even the informed layman who recognises the role of case law won’t make any headway ploughing through BAILII, because the law is not expressed directly in those many thousands of cases; it is an expert distillation of the ratio and obiter in those cases and a computation of the citations therein and their precedence.