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 2021 

  • 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. 

  • With many suggesting this soured government, an election pledge in 2019 saw government commit to end the ‘abuse’ of judicial review for political means. It subsequently launched the Independent Review of Administrative Law in July 2020 to consider its options for judicial review reform. Despite fear surrounding government action before it was announced, the subsequent Judicial Review and Courts Bill proved to be far lighter and less-wide ranging than anticipated. You can read more about the impact of the Bill and its recommendations here. 

  • It’s no surprise government was looking to amend the process considering the thorn in the side posed by many judicial review challenges brought this year. The Good Law Project has spearheaded much of these, highlighting many areas of government action to have been unlawful. From the prorogation of parliament to Matt Hancock’s unlawful awarding of public contracts to PPE suppliers, these ostensibly (or unfairly labelled) ‘activist lawyers’ are continuing to hold government to account through the necessary democratic process of judicial review.  

  • 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.  

  • Brexit is likely to affect several public law fields 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. The government has stated it intends to leave the jurisdiction of the European Court of Justice, so it can no longer hear English cases on appeal. The UK will remain part of the European Court of Human Rights in Strasbourg, however, as this is part of the Council of Europe not the EU. 

  • Despite this, another significant and potentially wide-ranging proposal is the government’s decision to review the Human Rights Act. Its 2019 election pledge promised to ‘update’ the HRA and consider amending the UK’s duty to judgements passed down by the European Court of Human Rights. The decision has been widely criticised, with more than 220 independent groups criticising the review this year. Proposals are expected to be released later this year.  

  • Enough pressure built to force the government into launching a public inquiry into its handling of the pandemic, due to be held in spring 2022. 

  • Legal issues related to counter-terrorism measures and data/surveillance have both been in the news. A case brought by former Labour deputy leader Tom Watson established in early 2018 that the government's mass digital surveillance regime was unlawful, with judges ruling that the Data Retention and Investigatory Powers Act was 'inconsistent with EU law'. 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. 

  • 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. 

 

With thanks to Charles Brasted, partner at Hogan Lovells, for quotes used