Public law is essentially about how public authorities such as local councils and government departments use and exercise their power. When power is exercised unlawfully or the decision-making process itself is unjust or unfair, it can be open to challenge. Challenge can by way of a public body’s complaints process, or, where there is no other remedy available or all available remedies have been exhausted, by judicial review.
The aim of public law is to control the misuse of power by public bodies. This might include government departments, agencies and even government ministers. It also includes local councils and departments within them, such as social services, housing and local education authorities. Public law challenges can also be brought against health authorities, prisons – and even against the courts themselves.
Increasingly, public bodies have devolved their functions to other agencies and bodies. In most cases, such bodies will still be governed by public law if they are commissioned to act by an Act of Parliament or in principle can be seen as formerly carrying out an authorised public function.
When public bodies overstep the mark
Local and national government and other public bodies obtain their power from primary legislation, including Acts of Parliament and secondary legislation (e.g. regulations, delegation legislation, orders, rules). This primary and secondary legislation inevitably affects us all – as renters, workers, health service users and community members.
Public bodies must act in accordance within the law. That means following primary or secondary legislation. They must follow public law principles. They must:
- Act lawfully – public bodies must act within the law. They must not act in a way that is outside their powers, or do things they do not have legal authority to do. They must not act improperly.
- Act reasonably
- Follow fair procedures (and not have ‘blanket’ policies)
When making decisions public bodies must not delay in dealing with, or fail to deal with, enquiries. They must comply with their legal responsibilities, provide relevant information and maintain accurate records. They must not fail to investigate or make misleading or inaccurate statements.
If public bodies do not comply with the above a legal challenge may be possible.
How can public law assist?
If a decision by a public body affects you or your community adversely it is possible that it may be open to challenge. If a public body fails to make a decision, that may also be open to challenge.
Different decisions by public bodies will need to be challenged in different ways. If there is a right of appeal, then usually the appeal process will need to be followed and exhausted before a judicial review can be considered.
If there is no right of appeal, no alternative remedy or all appeal rights have been exhausted then a challenge by judicial review may be possible.
