To “live in interesting times”.  For some a curse.  For others an ambition: but whichever camp you’re in, there’s no doubt we do find ourselves in interesting times – right now – in the field of Public Law. 

Public law: the law as it applies to public bodies – e.g. central and local government, the police, and those who inspect our schools, to name but a few; but also the law governing the relationship between those bodies and everybody else, including you and me.

Now, I realise it takes a special kind of geek to get worked up about abstract concepts like the Constitution – written or otherwise – or the Rule of Law; but the working out in practice of what those abstract concepts mean – well that’s a different story.

It turns out that people, you and I, are pretty interested in whether those who decide what we can, and can’t, do – and what our country stands for – follow the rules and play fair.

Brexit, we now recognise, represented a fundamental shift in the constitutional firmament, and we are still feeling the aftershocks of it today.  In his determination to “get Brexit done”, the then Prime Minister, Boris Johnson, negotiated the Northern Ireland Protocol to the Brexit Withdrawal Agreement.  Subsequently, though, when introducing what would become the UK Internal Market Act 2020 to further finesse arrangements at the new post-Brexit border between Northern Ireland and the EU, he and other Ministers openly countenanced the possibility the UK Government might breach international law.  The furore that ensued arguably led to the resignation of the Government’s top lawyer, and the Government itself was forced ultimately to accept some key amendments to its legislation in order to secure it.

With the passing of Johnson, and the new Sunak dawn, the NI Protocol gave way to the Windsor Agreement: not quite Magna Carta, but a sniff, perhaps, of Royal endorsement, designed to reassure the Unionists, and help restore power-sharing in Ulster.  Unfortunately, Sir Jeffrey Donaldson applied a rather different Stormont brake from the one the UK Government had intended; but talks continue, and a solution may yet be found.

In the meantime, back in Westminster, Parliamentarians continue to argue about Retained EU Law – the EU law that applied to the UK at the end of the Brexit transition period on 31 December 2020, and continued to apply in domestic law.  For what were, in some quarters, characterised as ideological reasons, the UK Government sought, by means of the Retained EU Law Bill, to revoke most of that law, automatically, at the end of 2023.  This gave rise to constitutional issues, for example about the balance of power between Government ministers (the Executive) and Parliament, and the impacts of devolution; but more generally, there was confusion about the effects of the proposed legislation in the world of business, and amongst consumers.  Concerns were also raised that long held and deeply cherished employment rights, including the right to holiday pay, could be lost.  With the Bill’s original architect, Jacob Rees-Mogg, now holding forth on GB News, rather than at the Despatch Box, Ministers are said to have consigned the legislation to the back burner; but I suspect the debate about how best to replace/recreate those aspects of EU law on which we relied for so long will continue to simmer for some time yet.

Of course, Brexit was driven, in part at least, by the immigration debate; and, having left the EU, the UK has been forced to renegotiate its place in the wider world.  That includes dealing with the issue of small boats and dangerous Channel crossings.  Cue the Illegal Migration Bill (an ironically unfortunate title given the challenges to it that have ensued), which was introduced by Home Secretary, Suella Braverman, in March 2023.  The backlash against this legislation even drew in Gary Lineker, which in turn led to a national debate about the role of the BBC, and the proper limits of the impartiality required of its presenters.   Certain provisions of the Migration Bill seem almost intended to provoke a confrontation between the UK, on the one hand, and the European Convention on Human Rights, and the European Court of Human Rights, on the other.  Coupled with highly-publicised plans to send migrants to Rwanda as part of the asylum removals scheme, there is no question that Government policy – and the Public Law that underpins it – has piqued the public interest, irrespective of which side of the debate any particular person might take.

While the fallout from Brexit lives on, the threat of Covid has, thankfully, receded, even to the point where the WHO recently declared the global health emergency to be at an end.  The desire, though, to investigate how the UK reacted to, and fought, the pandemic remains, and the UK Covid-19 Inquiry is now well underway, with a corresponding Inquiry also on foot in Scotland.  Questions will be asked and, we hope, answered about an array of issues, including the procurement, and availability, of PPE; the disproportionately adverse impact of the disease on minority ethnic groups; and the rationale for, and timing of, the various national lockdowns.  The Covid Inquiries are the latest in a long line of Public Inquiries – others currently in train include the Undercover Policing Inquiry and the Post Office Horizon IT Inquiry.  The desire to hold such inquiries waxes and wanes, but it’s clear they are currently seen as an important way in which to investigate really serious incidents and events, with a view to establishing what went wrong, and learning lessons for the future.

And finally, for present purposes at least, we recently saw the resignation of Google’s “Godfather of AI”, Geoffrey Hinton, so that he could speak more freely about the dangers posed by this new technology.  Of course, George Orwell, warned, in 1984, of the dangers of Government-sponsored mind-control and other similarly terrifying manifestations of centralised power; but in 2023 nation states, including our own, are playing a frantic game of catch-up, fighting to understand the possibilities, and the dangers, in all our futures; as well as monitoring the threatened shift in power away from democratically elected governments to tech billionaires.  The law is arguably still further behind in setting appropriate limits on this rapidly evolving ecosystem, with formal EU AI regulation not expected until 2025.  In the UK, thus far, the approach has been more pragmatic, relying on existing regulators and laws, and on well-worn principles like proportionality, to tame the beast. 

There are challenges a plenty, as we look ahead, with several UK law firms already harnessing the power of AI to carry out relatively mundane, process-driven tasks.  We will have to wait and see what impact such innovation will have on jobs; and the use of automated, algorithmic decision-making is also gathering pace, posing interesting questions about the amenability of such processes to public law challenge by means of traditional judicial review.

All of which demonstrates – graphically I think – the enduring importance of Public Law.  The market-leading Public and Regulatory Law team here at Bates Wells, stands ready to provide you with the expert advice and support that you need – whether that is in the Parliamentary or legislative arena; in the courts or an Inquiry room; or in navigating the many questions we will face while working out the nature and scope of the public/private divide in the 21st Century.