Government and public law

In a nutshell

Centred on the Administrative Court, public law relates to the principles governing the exercise of power by public bodies. Those which most often appear as respondents in the High Court include government departments, local authorities, the prison service and NHS trusts. Often the headline cases are challenges to central government policies like terror suspect control orders, the extradition of failed asylum seekers, secret courts and the giving of evidence anonymously. Lawyers specialise in statutory appeals, regualotry disputes and freedom of information issues. The most important process in public practice is judicial review: the Administrative Court may order that any decision made unlawfully be overturned or reconsidered. Decisions are often reviewed on the basis of the Human Rights Act 1998. Other big-ticket work comes from public inquiries: The Independent Inquiry into Child Sexual Abuse and Grenfell Tower Inquiry are two ongoing examples. However, for every (in)famous case reported in the media, there are hundreds relating to daily decisions taken by public bodies on immigration, welfare, planning and school places.  

Firms also involve themselves on the policy side of issues, “which moves away from judicial reviews and concerns more how firms get involved in the effective making of policy.” At top firms, teams may compromise of both lawyers who are experts in the above, as well as some people who aren’t lawyers by professions. “Many of them have worked within the civil service and understand how machinery of government works in practice as opposed to simply in theory. It’s marrying those two things together that makes the most effective teams.” 

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What lawyers do

  • “We help the government make better decisions by sharing the knowledge of our clients who are absolute experts in their fields. That could mean anything from post-Brexit trade negotiations or to the future of digitalisation.” 

  • Bringing judicial review claims and advising on judicial review claims. 

  • Trainees’ responsibilities could include: “analysing anything in a parliamentary select committee inquiry that could be of relevance to a client’s position; researching what parliament or specific MPs have said on an issue to help better inform our representation; or looking at complex legislation surrounding the regulation of specific sectors and thinking about hard case law.” 

  • Trainees are also able to engage in advocacy too. “I expect trainees to take that analysis and be able to articulate it all that in one page to a non-expert decision maker.” 

  • As associates become more senior, the role becomes more about the advocacy and long-term strategic thinking. “You need understand what the client wants to achieve and analyse that in the current regulatory, policy and political environment. You then can develop a solution which is the substance of what you communicate to government.” 

  • Being experts in a complex academic field, senior lawyers will often contribute to research journals and provide thought leadership. 

Realities of the job

  • A real interest in academic law is a prerequisite. Complex arguments are more common than precise answers. They need a genuine interest in the legislative process and the fundamental laws of the land. 

  • While legal intellect is vital, public law's real-world issues demand a practical outlook and an ability to stand back from the issue in question. 

  • Clients tend to be in innovative and disruptive sectors, such as tech and life sciences, where innovation outpaces regulatory responses. “If you’re doing a simple thing in a well-established way then there aren’t going to be big policy questions you need to engage the government on. However, if you’re doing some innovative that isn’t contemplated by existing legislation, that is when you need to be able to engage effectively with government.”  

  • “It’s a niche area and not easy to make a career in.  It’s also the sort of job where you’re unlikely to switch off completely because there is always something whirring at the back of your mind.” 

  • A sensitivity of audience and top-notch communication skills are absolutely essential. “Sometimes our audience is a Supreme Court bench or sometimes it’s a group of backbench MPs. Your core pitch might be the same, but the way you articulate it can be very different. That comes with experience but it’s also something you have to have innately.” 

Current issues

October 2023 

  • In one of the most well-publicised public law cases in recent memory, the Supreme Court determined that the government could not trigger Article 50to withdraw from the EU without first passing an Act of Parliament. The case represented a major test of government prerogative and the role of Parliament in foreign affairs, and set an important precedent. Over 50 barristers were involved in the case.  
     
  • An election pledge began in 2019 for the dismissal of the judicial review for political means and saw the introduction of the Independent Review of Administrative Law in July 2020. This was disbanded as a result of the Independent Panel’s report in 2021. The bill was then reviewed, and the Judicial Review and Courts Bill was introduced in 2022, which not only updated more lighter reviews of the judicial review but included more procedural measures within the court system.
     
  • Recent examples where the judicial review has thrown a spanner in the government's works is the UK Covid-19 enquiry regarding the government’s response to the pandemic and its impact. The Inquiry can request evidence and documents under a section of the Inquiries Act. However, the Cabinet Office denied the release of notebooks, diaries and WhatsApp messages of previous ministers and raised a judicial review challenge on the powers. This was then rejected by the high court judge who ordered the government to hand over to Baroness Heather Hallett to continue the inquiry.
     
  • Another high-profile judicial review brought this year was on behalf of Shamima Begum, who failed in the application to overturn the stripping of her British citizenship and right to return to the UK.  The appeal for citizenship was rejected again in early 2023, with Begum’s risk threat to the UK set at high concern. This case continues to set precedent around immigration and grooming as her legal team continues pursue other avenues.
     
  • Brexit is likely to affect several public law fields including immigration, human rights, environment, planning and data protection. Post-Brexit, the UK left the European Court of Justice jurisdiction meaning it can no longer hear English Cases on appeal. The plan was to remain part of the Council of Europe under the European Court of Human Rights in Strasbourg, however, the UK government have since passed through a bill that ensures that the UK Supreme Court in London will be the ultimate power on human rights which would have previously been seen in the ECHR. This was announced following the ECHR's rejection of UK minister's plans to send asylum seekers to Rwanda.

  • Legal issues related to counter-terrorism measures and data/surveillance have both been in the news. The appointment of Huawei to help build the UK's 5G mobile network provoked fresh concerns: the company's connections to the Chinese government led some to fear it could be involved in ‘spying’ and espionage, and the leaked plans led to the resignation of Gavin Williamson as defence secretary.  Since then, there are plans in place to have Huawei completely removed from 5G networks by the end of 2027, as new US sanctions raised concerns of security guarantees of the company's equipment.
     
  • The relationship between politics and social media remains cloudy. Vote Leave received a fine of £61,000 for breaking electoral spending laws in 2019; many have concerns over the firm’s links to the Cambridge Analytica scandal, which resulted in Facebook being fined $5 billion as a result of not sufficiently ensuring users' privacy.  
  • Industrial action across the UK this year – most notably through train strikes and barrister strikes - have led to the government taking action. New legislation will allow businesses to more easily hire temporary workers during strikes. It will also quadruple the damages cap for businesses for when a court finds the strike is unlawful; the cap will now sit at £1 million, up from £250,000. Another bill introduced was the Strikes (minimum service level bills) Bill where the government have set a minimum level of services that providers have to meet to ensure public safety and access to the public services, such as ambulance and fire services.
  • The UK’s new Bill of Rights was introduced in June, replacing the Human Rights Act 1998 – rights guaranteed under the European Convention on Human Rights. Human Rights Watch has raised concerns with the move claiming it mischaracterizes human rights as “red tape.” They also state the act may be unlawful as it may disregard obligations under the Northern Ireland peace agreement by reducing rights for those in Northern Ireland compared to the Republic of Ireland. The introduction of this new bill sets the UK cases apart from the ones heard by the ECHR.