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. Other big-ticket work comes from public inquiries: the Leveson, Chilcot and Francis inquiries are all illustrative 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.
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.
Many barristers also have practices in areas that dovetail with their public law practice. Criminal barristers will, for example, frequently handle issues relating to prisoners or breaches of procedure by police, whereas commercial barristers may handle judicial review of decisions made by the Department for Business, Innovation and Skills.
The realities of the job
- The Administrative Court is extremely busy, so an efficient style of advocacy is vital.
- Barristers must cut straight to the chase and succinctly deliver pertinent information, case law or statute. They need a genuine interest in the legislative process and the fundamental laws of the land.
- A real interest in academic law is a prerequisite. Complex arguments are more common than precise answers.
- 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.
- Junior barristers often hone their nascent advocacy skills at the permissions stage of judicial review in short 30-minute hearings.
- In one of the most well-publicised public law cases in recent memory, the Supreme Court determined that the government could not trigger Article 50 to 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.
- Brexit is likely to affect several public-law related areas including immigration, human rights, environment, planning and data protection. How the law is effected will depend on the terms of the UK's withdrawal from the European Union. That said, while many existing rules emanate from the EU, a good chunk have been incorporated directly into UK law.
- In response to successive terrorist attacks, a number of new laws have been introduced to give the government and police powers to sidestep traditional procedures. Cases involving challenges to such measures, like stop and search, have become more common, prompting some to suggest that civil liberties are slowly being reset on a case-by-case basis.
- Administrative law cases are also on the up as public interest groups become increasingly alive to their powers to challenge administrative decisions and public spending cuts driven by central government.
- In 2011 the Freedom of Information Act was extended to cover UCAS, the Association of Chief Police Officers and the Financial Ombudsman Service, continuing a trend for ever closer scrutiny of public bodies. A 2016 report by an independent commission decided not to make further changes to the Act's scope.
- Proposals to scrap the Human Rights Act and replace it with a 'British Bill of Rights' (made repeatedly by the Conservative government in the past) have officially been kicked into the long grass as a result of Brexit. The Human Rights Act is here to stay for now, but it's mid to long-term future remains uncertain.
- Cuts to legal aid funding are affecting the ability to bring public law cases and the livelihoods of barristers.
- The competition for public law pupillages is exceptionally fierce. Having the highest possible academic credentials is key when applying to a public law set but most successful candidates will also have impressive hands-on experience in the public or voluntary sectors.
- Public international law is popular, but it’s an incredibly small field with few openings. Moreover, it’s dominated by sitting or ex-professors at top universities, alongside Foreign Office veterans and the occasional senior barrister.
- If administrative and constitutional law were not your favourite subjects you should reconsider your decision before choosing public law.
- An interest in current affairs is essential.