Public Law

Public Law at St Pauls Chambers

The Chambers Public Law team comprises 10 barristers of whom 3 are leading counsel(QCs). Our most experienced civil practitioner has been practising for 38 years, and our newest junior member of the team is currently 4 years into the profession.

Public Law is a little different from disputes involving contract and tort. We do not have private agreements with government or public bodies, but their decisions control large parts of our lives. They decide how many people are looked after by the same GP, and how many police officers are in our cities. They decide whether the drugs we need are available us to obtain on the NHS, and whether we qualify for free prescriptions. They decide whether we can put up our house extension, or whether our next-door neighbour is able to cut down the trees which have stood where her garden is for 400 years.

If you have a complaint about the standard of care provided by your doctor, dentist (or lawyer) this is usually an action for professional negligence. But if your complaint is that how you were treated is not just below the standard you expect, but actually offends the professional standards of integrity or basic professionalism, this then becomes a regulatory complaint. Decisions of the regulator can be questioned by way of Judicial Review, which then becomes a public law matter.

The Difference Between Public and Private Law

There are two big differences between public law and claims for tort or breach of contract (known as private law claims); these are shown by the Court asking different questions. Firstly, in a private law claim the Court will ask whether one party has kept its promises or breached them (contract), or whether the party acted reasonably or not (tort). In a public law claim however the Court will ask whether the person making the decision acted lawfully or unreasonably.

Lawfully means what it says. The council cannot charge you council tax just because it thinks it is a good idea. It can only charge you because Parliament has passed a law allowing it. The local authority cannot stop you using your home as a site for new flats because it doesn’t like the idea (or you), but because there is a policy about what is and isn’t permitted. If you want to drive a taxi you cannot be refused a private-hire license because the council doesn’t like your name. And, on an altogether bigger scale, HMRC cannot charge you a 25% penalty for not paying your tax just because you’re a day late.

Because what public authorities are allowed to do is governed by laws, it is often important to work out whether they are actually allowed to do what they have done, or are going to do, to you. Our barristers are able to answer those questions.

But, even if the public body is allowed to do what it plans to do, it still must not do so unreasonably. Whether a public body is acting reasonably can be a difficult question: there might be lots of things that could be done – many will be reasonable and some will be unreasonable. The issue is not whether the public body is right or wrong, as that is a matter of opinion. The question is whether what the public body is doing is reasonable within a range of responses that might be appropriate.

So, taking an example of your child not being given the school they wanted, or being refused the educational help that they need. Can that be the subject of a Judicial Review? Is the decision lawful? If so, is it unreasonable?

Whether something is reasonable or not depends on lots of factors. Was there a published policy? This lets people know what they can expect from the public body in question and is likely to help the body show that they were reasonable. The absence of such a policy means a decision is less likely to be reasonable. Was there an opportunity for all sides to be heard? If decisions are very contentious then it can be important to hear lots of points of view. On the other hand, the decision doesn’t have to be delayed for months while that happens – it can be reasonable to allow a limited time for people to say what they think. Is a decision always taken with the same considerations in mind? If not, people may be being treated differently, which may well be unreasonable.

The second big difference between a public law claim and a private law claim is that you can bring a private law claim as soon as what you are complaining about has happened. If you are run over you can begin legal action (beginning with a letter of claim) the next day. In a public law claim a Judicial Review happens last; you must first try and get what you want by using every other available option. For example, if there is an appeals procedure in place, you must first go through that. If there is a Tribunal to deal with the issue you must go to them first (for example when your benefits claim is refused).

Once the final decision is made then, whether unlawful or unreasonable, action has to be exceptionally quick. Most Judicial Reviews have to be brought within 3 months of the decision being complained about, and sometimes even quicker. You will often know when a decision is going to be made – in the previous example, you will have asked for the help your child needs well in advance. But sometimes you simply won’t know – for example, you may have missed the letter telling you that your medication is no longer available and the time for appealing may have gone. Whilst that might be your fault, that doesn’t mean it is a fair procedure, which in turn would make the whole decision unfair.