Public law

Public law is all about the lawfulness of decisions made by public bodies. The principles are taught in courses on constitutional and administrative law and are applied in many different fields, each with its own body of legislation and cases. Examples include housing, education, social services, planning, and immigration and asylum.

Cases of great constitutional significance continue to be litigated; for example, the decisions of the Supreme Court in the JFS case (about discrimination in a school’s admission criteria) and in Ahmed (about orders freezing the assets of suspected terrorists), and Binyam Mohamed and Al Rawi in the Court of Appeal (dealing with open justice).

Find out more about practising planning law at the Bar

A public law barrister's work

The main forum is the Administrative Court (which is part of the Queen’s Bench Division of the High Court). Cases there tend to be quite short: they typically last a day or less. Public lawyers also practise in specialist tribunals, such as the Asylum and Immigration Tribunal, or in the county court in homelessness cases. However, the influence of the London-based Administrative Court may be on the wane. There are two reasons: reforms to the tribunal system, which have resulted in increasing numbers of cases being decided in upper-tier tribunals rather than in the High Court, and current plans to move the work of the Administrative Court to regional centres.

Claimants are usually, but not always, individuals. They can be asylum seekers, school pupils, bereaved families challenging the decision of a coroner’s inquest, or relatives challenging a decision to shut an old people’s home. The list is as long as the list of areas in which public bodies make decisions that affect the lives of individuals.

A barrister practising in this field may have 15 or so current cases. The ratio of time spent in court to chambers will vary: a busy junior doing asylum work for claimants may be in tribunal virtually every day; a more senior practitioner doing complex cases in the higher courts is likely to spend more time in chambers researching, advising and drafting. A good work/life balance is achievable and it is possible to avoid all-nighters.

The best aspect of this area is that it is dynamic. There is much new legislation and new case law. There are interesting points of law and often high-profile cases. The worst aspect is that litigation can generate expectations that no court can fulfil.

Recent developments in public law

More than ten years after its enactment, the Human Rights Act 1998 is still controversial. Press interest and political comment continue to keep it in the spotlight, reflecting tensions between the interests of individuals and those of society as a whole, and between the executive and the judiciary. A difficult area is the extra-territorial application of the act, seen in such cases as the decisions on the government’s liability for inadequate military equipment, and for the conduct of troops in Iraq. Closer to home is the decision of the House of Lords on whether a memorandum of understanding with a foreign government is a sufficient guarantee to obviate a real risk of ill-treatment under article 3 of the European Convention on Human Rights, and the High Court decision that detained mental patients do not have a right to smoke on hospital premises (the outcome of the appeal is awaited).

There is a lot of activity at the moment but it is not clear whether this will continue. Changes to the system of public funding mean that it is now harder for claimants to bring cases; changes to asylum law are also having an effect on this area.

It remains to be seen how busy practitioners will be in two or three years’ time. The effect of the impending organisational reforms is also unpredictable.

Is public law recession-proof?

Public law is more likely to be affected by the factors mentioned above than by the recession, with the caveat that an increased public sector deficit and falling tax revenues both make cuts likely in all areas of public funding.

What skills do public law barristers need?

• Academic and analytical skills.
• An interest in people and their problems.
• The ability to find practical solutions.
• Good listening and teamworking skills.
• Good writing and speaking skills (practice and preparation can help).

Public law pupillages

The amount pupils can be expected to work, and the degree and types of responsibility they will have, varies from set to set. As a broad generalisation, in the sets that do a high proportion of complex, difficult work, pupils are unlikely to be doing much on their own during pupillage. However, they will be working very hard, and often very long hours, trying to learn how to do the job, and then to prove themselves. Pupillage is demanding.

Types of law practised

• Administrative.
• Constitutional.

Elisabeth Laing is a barrister at 11KBW. She is a recorder, took silk in 2008 and is a former member of the attorney general’s A Panel of Counsel.