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.
- Brexit may affect several public-law related areas including immigration, human rights, environment, planning and data protection. That said, while many existing rules emanate from the EU, a good chunk have been incorporated directly into UK law.
- In response to terrorist attacks, a number of new laws have been introduced over the past decade or so, giving 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. For example, the Special Immigration Appeals Commission recently ruled that six terror suspects could not be deported to Algeria, as they might be tortured there infringing their rights under the Human Rights Act.
- 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.
- 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.
- The future of the Human Rights Act is uncertain. The government has said it intends to scrap the Act and replace it with a 'British Bill of Rights' and Theresa May has previously stated that Britain should withdraw from the ECHR completely (though she has since backtracked). The government has recently reaffirmed its commitment to a 'British Bill of Rights', but the constitutional faff surrounding Brexit means the government may choose to kick a decision into the long grass.
- Cuts in fees brought in by the Legal Aid, Sentencing and Punishment of Offenders Act are affecting 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.