Public law, judicial review and regulatory barrister advice

Public law governs how public authorities exercise their powers and perform their duties. Decisions made by local authorities, government departments, regulators and other public bodies can have serious consequences for individuals, businesses and organisations.

The barrister can help you understand whether a decision may be legally challengeable, identify the appropriate procedure and consider what practical steps should be taken next.

Examples of public law matters we may be able to help with

Unlawful decisions by public authorities

A public body must act within the powers given to it by legislation and must use those powers for a lawful purpose.

Advice may cover:

• whether the authority had the legal power to make the decision;

• whether it has misunderstood or misapplied the relevant legislation;

• whether it has exceeded the limits of its statutory powers;

• whether it has acted for an improper purpose;

• whether it has failed to perform a statutory duty;

• whether it has unlawfully restricted or fettered its discretion; and

• the legal consequences of an unlawful decision.

Procedural unfairness

Public authorities are generally required to adopt a fair procedure, particularly where a decision may substantially affect a person’s rights or interests.

A barrister may advise on:

• failure to provide adequate notice of a proposed decision;

• failure to give a person a proper opportunity to respond;

• refusal to consider relevant representations or evidence;

• failure to disclose important information;

• apparent bias or predetermined decision-making;

• inadequate consultation;

• failure to follow a published policy or procedure; and

• failure to provide adequate reasons for a decision.

Failure to consider relevant circumstances

A public authority may act unlawfully if it ignores matters it was required to consider or relies upon matters that were legally irrelevant.

Advice may concern:

• failure to consider relevant evidence;

• failure to address an individual’s particular circumstances;

• reliance upon inaccurate or incomplete information;

• failure to make necessary enquiries;

• rigid application of a general policy;

• failure to consider an exception to a policy; and

• decisions based upon factual or legal misunderstanding.

Unreasonable or disproportionate decisions

Not every mistaken or harsh decision is unlawful. However, a decision may be challengeable where it is legally irrational, unreasonable or disproportionate.

A barrister may assess:

• whether the decision was reasonably open to the authority;

• whether the authority has reached a conclusion unsupported by the evidence;

• whether the reasons given are internally inconsistent;

• whether the decision imposes an excessive or disproportionate burden;

• whether relevant rights and competing interests were properly balanced; and

• whether a less restrictive course should have been considered.

Legitimate expectations and published policies

Statements, promises, established practices and published policies may create a legitimate expectation about how a public authority will act.

Advice may cover:

• whether a clear promise or established practice exists;

• whether an individual was entitled to expect consultation or a particular procedure;

• departure from published guidance or policy;

• whether the authority has given adequate reasons for changing its approach; and

• whether it would be unfair or unlawful for the authority to depart from the expectation.

Local authority decisions and enforcement

Local authorities exercise extensive powers in relation to housing, planning, licensing, environmental regulation and other matters.

Examples may include:

• housing enforcement decisions;

• improvement notices, prohibition orders and civil penalties;

• planning and building-control enforcement;

• licensing decisions and enforcement action;

• statutory notices and demands;

• decisions concerning local authority services;

• failure to investigate or respond to a complaint;

• inconsistent or oppressive enforcement; and

• failure to follow the authority’s own policies or procedures.

Some decisions are subject to a specific statutory appeal rather than judicial review. The barrister can help identify the correct route and any applicable deadline.

Regulatory and disciplinary decisions

Advice may be available concerning decisions made by regulators, disciplinary bodies or organisations exercising public functions.

This may include:

• the opening or conduct of an investigation;

• interim restrictions or suspensions;

• procedural unfairness;

• disclosure and evidential issues;

• findings and sanctions;

• internal review or appeal procedures; and

• whether a decision may be challenged by statutory appeal or judicial review.

Equality, discrimination and reasonable adjustments

Public bodies must comply with the Equality Act 2010 and, where applicable, the public sector equality duty.

Advice may concern:

• discrimination arising from a public authority’s decision or conduct;

• failure to consider disability, age or other protected characteristics;

• failure to make reasonable adjustments for a disabled person;

• inaccessible procedures or communications;

• failure to consider the impact of a decision upon an individual;

• compliance with the public sector equality duty; and

• the relationship between an Equality Act claim and a public law challenge.

Complaints, reviews, ombudsmen and statutory appeals

Judicial review is not always the first or most appropriate remedy. Another procedure may provide a quicker, less expensive or more effective solution.

A barrister may advise on:

• internal complaints and review procedures;

• reconsideration requests;

• statutory appeals;

• tribunal proceedings;

• complaints to an ombudsman;

• representations to the decision-maker;

• pre-action correspondence; and

• whether an alternative remedy should be pursued before judicial review.

Judicial review

Judicial review is the procedure by which the courts supervise the lawfulness of decisions and actions taken by public bodies. It is concerned primarily with whether the decision was made lawfully, rather than whether the court would have reached a different decision.

Advice may cover:

• whether the proposed defendant is amenable to judicial review;

• whether the claimant has a sufficient interest in the matter;

• the possible grounds of challenge;

• whether an adequate alternative remedy exists;

• whether the claim has a realistic prospect of obtaining permission;

• the evidence likely to be required;

• the application of the Judicial Review Pre-Action Protocol;

• possible remedies; and

• the costs and practical risks of proceedings.

Potential remedies may include a quashing order, prohibiting order, mandatory order, declaration or injunction. Damages are not ordinarily available merely because a public law error has occurred, although they may be recoverable where a separate legal basis exists.

Licensing and regulatory matters we may be able to help with

Alcohol and premises licensing

Businesses and organisations may require authorisation to sell alcohol, provide regulated entertainment or offer late-night refreshment.

A barrister may advise on:

• applications for premises licences;

• applications for personal licences;

• designated premises supervisors;

• club premises certificates;

• temporary event notices;

• applications to vary a licence;

• minor and full variations;

• extensions or changes to permitted hours;

• licence conditions;

• objections and representations;

• applications for review of a premises licence;

• summary reviews;

• suspension or revocation;

• closure orders;

• alleged breaches of licensing requirements; and

• appeals against licensing decisions.

Advice may be available to licence holders, applicants, responsible authorities, residents or other parties affected by an application or review.

Licensing hearings and reviews

Where relevant objections or representations are made, the licensing authority may hold a hearing before a licensing subcommittee.

A barrister may advise on:

• whether representations are legally relevant;

• the licensing objectives;

• evidence of crime, disorder, nuisance or public-safety concerns;

• protection of children from harm;

• operating schedules;

• proposed or existing licence conditions;

• proportionality of the authority’s proposed response;

• preparation of written representations;

• the procedure at the hearing;

• available outcomes;

• reasons given for the decision; and

• the prospects and procedure for an appeal.

Entertainment and late-night refreshment

Licensing requirements may apply to music, performances, films, events and the supply of hot food or drink during specified hours.

Advice may concern:

• whether an activity requires authorisation;

• live or recorded music;

• dance and other performances;

• film exhibitions;

• indoor sporting events;

• late-night food and drink;

• temporary events;

• exemptions;

• licence conditions;

• alleged unauthorised activity; and

• enforcement following an alleged breach.

Taxi and private-hire licensing

A refusal, suspension or revocation of a taxi or private-hire licence can have an immediate effect on a person’s livelihood or business.

Advice may cover:

• driver, vehicle and operator licences;

• new applications and renewals;

• whether an applicant or licence holder is fit and proper;

• the relevance of convictions, cautions or allegations;

• medical fitness;

• safeguarding concerns;

• driving history;

• complaints from passengers;

• vehicle standards and conditions;

• alleged breaches of licence conditions;

• immediate suspension or revocation;

• local-authority licensing policies;

• procedural fairness;

• written representations;

• licensing hearings; and

• appeals against refusal, suspension or revocation.

The applicable legislation and procedure may differ according to the type of licence and the licensing authority concerned.

Planning enforcement

Local planning authorities may investigate and take action where development or a change of use is alleged to have occurred without the necessary planning permission.

A barrister may advise on:

• whether a breach of planning control has occurred;

• planning contravention notices;

• enforcement notices;

• breach-of-condition notices;

• stop notices and temporary stop notices;

• unauthorised changes of use;

• operational development;

• failure to comply with planning conditions;

• time limits affecting enforcement;

• applications for retrospective planning permission;

• certificates of lawful existing use or development;

• appeals against enforcement notices;

• injunctions;

• prosecution for non-compliance; and

• the relationship between planning and other regulatory regimes.

Planning enforcement procedures differ between England and Wales in some respects. Advice must be based on the location of the property and the particular statutory regime that applies.

Building-control enforcement

Local authorities and other public bodies may take enforcement action where building work is alleged not to comply with applicable building requirements.

Advice may concern:

• alleged contraventions of building regulations;

• enforcement notices;

• requirements to remove or alter work;

• dangerous structures;

• stop notices or compliance notices where applicable;

• responsibility of owners, developers or contractors;

• interaction with planning enforcement;

• criminal proceedings;

• available appeals or challenges; and

• the need for surveying or engineering evidence.

Housing and landlord enforcement

Local authorities have a range of powers relating to housing conditions, property licensing and the management of rented accommodation.

A barrister may advise landlords, property owners or managers about:

• improvement notices;

• prohibition orders;

• emergency remedial action;

• hazard-awareness notices;

• alleged housing hazards;

• houses in multiple occupation;

• mandatory, additional or selective licensing;

• refusal, variation or revocation of a property licence;

• alleged breaches of licence conditions;

• HMO management regulations;

• overcrowding;

• civil financial penalties;

• rent repayment orders;

• banning orders;

• works carried out by the authority;

• recovery of enforcement costs;

• criminal prosecutions;

• appeals to the relevant tribunal; and

• the proportionality and procedural fairness of enforcement action.

The relevant powers and procedures differ between England and Wales. The barrister will need to identify the legislation applicable to the property.

Food production and food-safety regulation

Food producers, manufacturers, retailers, restaurants and other food businesses may face investigation or enforcement by local authorities, the Food Standards Agency or other responsible bodies.

Advice may cover:

• registration or approval of food premises;

• food-hygiene requirements;

• food-safety management procedures;

• inspections and sampling;

• hygiene improvement notices;

• prohibition procedures;

• emergency prohibition action;

• detention or seizure of food;

• alleged contamination or unsafe products;

• traceability and labelling;

• allergen information;

• food-hygiene ratings;

• product recalls;

• interviews under caution;

• criminal prosecutions;

• responsibility of directors or managers; and

• appeals or challenges to enforcement decisions.

Environmental health and statutory-nuisance enforcement

Businesses, landlords and property owners may face action concerning noise, waste, smoke, odour or other alleged environmental interference.

A barrister may advise on:

• statutory-nuisance investigations;

• noise-abatement notices;

• smoke, fumes, dust or odours;

• waste-storage or disposal concerns;

• pests and insanitary conditions;

• drainage or water problems;

• alleged breaches of environmental permits;

• responsibility for the activity complained of;

• compliance with an abatement notice;

• appeals against notices;

• injunctions; and

• prosecution for non-compliance.

Trading standards and consumer enforcement

Businesses may be investigated over the way goods or services are described, marketed or supplied.

Advice may concern:

• allegedly misleading commercial practices;

• product descriptions;

• pricing and promotions;

• consumer information;

• unfair commercial practices;

• product-safety requirements;

• compliance notices;

• requests for documents or information;

• entry, inspection or seizure powers;

• undertakings;

• civil enforcement;

• interviews under caution; and

• criminal prosecutions.

Regulatory investigations

A regulator or local authority may request information, inspect premises, interview individuals or begin formal enforcement proceedings.

A barrister may advise on:

• the regulator’s statutory powers;

• whether information or documents must be provided;

• responding to requests for information;

• entry, search, inspection and seizure;

• preservation and disclosure of documents;

• internal investigations;

• witness evidence;

• interviews under caution;

• privilege and confidentiality;

• allegations against companies, directors or managers;

• enforcement notices;

• proposed civil or criminal proceedings; and

• the appropriate response to the investigation.

Interviews under caution

An invitation to attend an interview under caution usually means that the authority is considering whether a criminal offence has been committed.

Advice may cover:

• the allegations being investigated;

• the authority’s powers;

• whether attendance is compulsory;

• disclosure available before the interview;

• the right to legal representation;

• preparation for questioning;

• whether to answer questions;

• documents and evidence;

• potential liability of a company, director, landlord or employee; and

• the possible consequences of the interview.

Enforcement notices and civil penalties

Regulators and local authorities may impose requirements or financial penalties without first bringing a criminal prosecution.

A barrister may advise on:

• whether the authority has the necessary statutory power;

• the form and service of the notice;

• whether statutory preconditions have been satisfied;

• notices of intent;

• written representations;

• final penalty notices;

• the calculation and proportionality of a penalty;

• compliance periods;

• applications to vary, suspend or withdraw a notice;

• appeals to a court or tribunal;

• the consequences of non-compliance; and

• recovery or enforcement of the penalty.

Regulatory prosecutions

Failure to comply with regulatory requirements or an enforcement notice may result in prosecution.

Advice may cover:

• the elements of the alleged offence;

• whether the prosecution has been brought against the correct person or company;

• responsibility of directors, managers or employees;

• the prosecution evidence;

• statutory defences;

• due-diligence arguments;

• reasonable excuse;

• admissibility of interview evidence;

• abuse of process;

• sentencing and financial penalties;

• compensation, costs and ancillary orders; and

• the prospects of an appeal.

Professional disciplinary proceedings

Professionals may face investigation or disciplinary action by a regulator, professional body, employer or disciplinary panel.

Advice may concern:

• professional misconduct allegations;

• breaches of professional standards or codes;

• fitness-to-practise proceedings;

• competence, health or conduct concerns;

• dishonesty or integrity allegations;

• complaints from clients, patients or members of the public;

• responding to an investigation;

• disclosure and evidence;

• interim suspension or restrictions;

• disciplinary hearings;

• findings and sanctions;

• restoration or review proceedings; and

• appeals against disciplinary decisions.

Challenging licensing and regulatory decisions

A licensing or enforcement decision may be challenged through a statutory appeal, internal review, tribunal proceeding or, in some circumstances, judicial review.

A barrister may advise on:

• the reasons given for the decision;

• whether the authority applied the correct legal test;

• whether relevant evidence was considered;

• procedural fairness;

• apparent bias or predetermined decision-making;

• proportionality;

• consistency with published policies;

• statutory appeal rights;

• tribunal or magistrates’ court proceedings;

• internal review or reconsideration;

• complaints procedures; and

• whether judicial review may be available.

Where the principal issue concerns the general lawfulness of a public authority’s decision or judicial review, our Public Law and Judicial Review page may be more appropriate.

What advice can the barrister provide?

Depending on the questions accepted, the barrister may help you understand:

• whether the authority appears to have acted lawfully;

• the possible grounds for challenging its decision;

• the strengths and weaknesses of your position;

• whether further evidence or information is required;

• whether reasons or disclosure should be requested;

• which complaint, review, appeal or court procedure may apply;

• the remedies potentially available;

• the urgency of the matter and any relevant deadlines; and

• the practical steps you should consider taking next.

• Depending on the questions accepted, the barrister may help you understand:

• the relevant licensing or regulatory regime

• your rights and obligations;

• the authority’s statutory powers;

• whether an application, notice, penalty or decision appears valid;

• the strengths and weaknesses of your position;

• what evidence or expert opinion may be required;

• how to respond to an investigation or proposed enforcement action;

• the available representations, reviews and appeals;

• the risk of prosecution, financial penalty or loss of a licence;

• whether negotiation or another resolution may be possible; and

• the practical steps you should consider taking next.

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