ADMINISTRATIVE & PUBLIC LAW: An Introduction

Public Law as a Lens 

Public law issues have dominated the headlines in recent years. From Brexit and COVID-19, to asylum seekers and gender recognition, public law has been the lens through which public bodies, businesses, individuals and third-sector organisations have refracted their responses to a host of society’s challenges and opportunities. In this article, DLA Piper’s public law team outlines the key developments, trends and themes in public law, and forecast what the future may hold.

Implementation of Brexit 

One thing Remainers and Leavers can generally agree on is that Brexit is the biggest constitutional change of the last 50 years. Unsurprisingly, the implementation of Brexit has been a key development and central theme in public law, and we expect that to continue in the coming years.

The Retained EU Law (Revocation and Reform) Act 2023 was given Royal Assent at the beginning of the summer. It sets out how the EU and EU-derived law that was retained by the European Union (Withdrawal) Act 2018 once the transition period ended (“retained EU law”) will be dealt with going forward. In its final form, as enacted, the Act provides that retained EU law will become “assimilated” law at the end of 2023, unless it is within the list of nearly 600 instruments in Schedule 1 of the Act. The listed instruments in Schedule 1 will automatically be revoked at the end of 2023. The Act contains powers for Ministers and devolved authorities to add to the list of revoked instruments at Schedule 1 until 23 June 2026, or to restate, reproduce, replace or update retained EU law by regulations. All the rights that directly applied in the UK under EU treaties have been revoked and domestic law will no longer be interpreted in a way that is compatible with EU law; its supremacy has been abolished by the Act.

The Financial Services and Markets Act 2023 and the Procurement Bill will revoke and/or replace a great deal of retained EU law. They will introduce new domestic regimes that organisations in both the public and private sectors, whose operations will be caught by the changes, will need support in navigating.

The Subsidy Control Act 2022 has been in force since the beginning of 2023. It replaced the previous EU State Aid regime that dealt with the provision of financial or in-kind support from public bodies to businesses. While this subject matter is generally the realm of competition lawyers, the Subsidy Control Act 2022 creates an interesting adjunct with public law. Subsidies, as defined in the Act, may only be granted in accordance with principles set out in statute. Although challenges will be heard in the Competition Appeals Tribunal under their own procedure, rather than in the Administrative Court, the claims will be made and determined on judicial review grounds. This poses new risks and opportunities for organisations wishing to make or receive subsidies – or those who lose out on them – which will increasingly engage public law advice.

COVID-19 Inquiry 

While an inquiry would perhaps not usually be considered a development, trend or theme in public law, the COVID-19 Inquiry – like the coronavirus itself – is, in many respects, novel. As we all know too well, COVID-19 touched every aspect of our lives. The inquiry’s terms of reference reflect that. It is looking in detail at the response to, and management of, the pandemic across the public sector and many parts of the third sector. The inquiry is scrutinising public sector decision-making and action, analysing the effects and looking at lessons learned. As a result, many firms are – and will be for the foreseeable future – acting for individuals, companies, associations, unions, professional bodies, providers of public services, regulators or government departments in their involvement with the inquiry as either core participants or those providing evidence.

We’ve seen one judicial review brought: R (on the application of the Cabinet Office) v the Chair of the UK COVID-19 Inquiry [2023] EWHC 1702 (Admin). This has provided helpful guidance on an inquiry’s powers to require the disclosure of evidence. Time will tell if we will see more.

Energy Security and Climate Change 

Over the summer, UN secretary general António Guterres soberingly said that the era of global warming has ended and “the era of global boiling has arrived”. When coupled with the fragile energy security position following the war in Ukraine, it’s perhaps unsurprising that the question of alternative energy production and climate change loom large in the public law sphere.

Energy policy is increasingly a key topic. Spring 2023 saw the creation of the Department for Energy Security and Net Zero, and Royal Assent to the Energy Bill – described by the government as “the most significant piece of energy legislation in a generation” – is scheduled for the Autumn. It creates a new regime for energy production, energy security and the regulation of the UK energy sector, and is aimed at delivery of commitments related to clean energy and energy security. Its scope covers a wide range of policy areas, from the licensing of carbon dioxide transport and storage to the environmental assessments regime for offshore wind.

Understanding the scope and impact of the new legislation is going to be important for every organisation operating in the UK energy markets, notably renewable energy and nuclear.

Separately, there have been a number of energy and climate-related judicial review challenges variously to mayors, local authorities and government departments.

Technology 

Technology has advanced more in the last decade than we’ve seen in the last two millennia. The intersections between human rights and technology are many: content moderation and freedom of expression; privacy and data farming; intellectual property and AI-generated output. The UK government’s ambitions to become a leader in AI will undoubtedly engage many aspects of public law.

Diversity, Equity and Inclusion 

The Equality Act 2010 is now over a decade old and the matters that fall within its scope have evolved: intersectionality of protected characteristics, single-sex spaces, gender recognition, gender non-conforming identities and the status of gender critical beliefs, to name a few. These issues raise difficult questions in relation to balancing the protections of the Equality Act 2010 and rights under the Human Rights Act 1998, particularly around freedoms of expression and from discrimination, which we are likely to continue to see in the medium term.