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 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.
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.
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 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 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.
- Legal issues related to counter-terrorism measures and data/surveillance have both been in the news. A case brought by 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'.
- 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 now been kicked into the long grass as a result of Brexit. The Human Rights Act is here to stay for now, but its long-term future remains uncertain.
- A report by charity Refugee Action has warned of 'legal aid deserts' emerging in different parts of the country due to a 56% drop in the number of providers offering legal aid representation for immigration and asylum cases since 2015.
- 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.
- If administrative and constitutional law were not your favourite subjects you should reconsider your decision before choosing public law.