Public law: teaching for practice

In the current febrile politics of Brexit and their growing legal dimension, few can now doubt the centrality of public law in civic and political life. Conferences on this area are now a regular feature of practice, especially the excellent Scottish Public Law Group annual event. A important and under-appreciated aspect of public law came under scrutiny at a recent event co-hosted by the Government Legal Service for Scotland (SGLD), Edinburgh and Strathclyde Universities, which sought to explore how academic work in this area might better engage with the perspectives of practitioners, particularly in public service, and vice versa.

Opening the event, the Lord Advocate, James Wolffe QC, emphasised the importance of rule of law values (accessibility of rules, predictability of application, impartial tribunals, and enforceable decisions) for those working in this area. The Lord Advocate also emphasised the important role of law officers in securing compliance with the rule of law by other ministers through advice backed by collective responsibility. As a point of interface between law school and practice, he pointed to the open texture of the law in this area, which requires academic writing in the form of textbooks and commentary to help identify structure.

The morning panel, chaired by Craig French, Deputy Director of Civil and Criminal Justice at SGLD, provided a practitioner perspective. Joanne Baker of SGLD reported on feedback from NQ/recently qualified colleagues about knowledge and skills required in Government service which they felt might have had greater focus in the academic stage. These include:

• deeper appreciation of separation of powers issues;
• the particular ethical dimension of legal work in public service, in having colleagues as clients, and working in a team with non-lawyers;
• statutory interpretation as a core skill;
• the importance of rules of procedure.

EU law has been a required professional subject since the 1990s, and Francesca Morton of SGLD challenged us to think about the teaching of EU law and Brexit. Whether or not EU law remains a core subject, in her view, it is likely to remain as relevant, if not more so, in light of the way in which the European Union (Withdrawal) Act 2018 operates to translate the acquis into domestic law after the UK exit. That in turn opens questions about access to resources, both curricular and substantive law.

While there is a growing network of public lawyers, Christine O’Neill of Brodies noted that there is also a need for practitioners who do not deal with this area daily to be aware of possible public law issues. That in turn bears on the process of professional formation. She anticipated real questions in the future about accessibility of law in some areas, especially once the European Union (Withdrawal) Act is in operation. On her wish list for public law education were: more history of constitutional and administrative law (to deepen knowledge of the language and structure of this area); sources; and methodology, in terms of identifying the source of a power or duty and then determining the mode of challenge.

Subject to constraints

Professor Aileen McHarg, lately of Strathclyde and now of Durham University, opened the afternoon session with an address about what university law schools are and are not trying to achieve when teaching public law at undergraduate level. In her view, the law school aims to teach fundamental concepts and knowledge, but does not aim to produce practice-ready lawyers. It also seeks to develop intellectual skills and the ability to identify legal issues in public law problems.

In that context, Professor McHarg outlined some of the institutional and subject-related constraints. There is limited curriculum space, compounded by huge recent growth in the reach and complexity of the subject. There is less time for teaching because staff are compelled to focus on research, and many students also have part-time jobs. As an essential, foundational subject, public law is generally taught in the first and second year of the LLB, when students are getting to grips with the essence of the law. In the background is the pressure of the Research Excellence Framework, and over-specialism in research with consequent narrowing of research outputs.

Some of those themes were developed in the panel session chaired by Jen Jack of Harper Macleod which followed. Professor Alan Page reflected on the challenges of teaching the multiple dimensions of public law in Scotland (national, sub-national, and supra-national), and the limited utility of comparative models in this context. He suggested that a foundations of public law course on the Australian model might be useful as a precursor to more detailed substantive study.

Under the banner “Everyone’s a theorist”, Dr Cormac Mac Amhlaigh reminded us that law is completely new as a subject of study for almost all students. Echoing Professor McHarg, he was of the view that the subject of public law teaching was more than the practice of law. Rather it is about producing high quality knowledge about the world, specifically legal knowledge. A theoretical approach allows key provisions to be identified, and aids students’ critical reflection.

Graham Crombie of SGLD raised broader questions about the purpose of legal education, and the place of the Diploma in Professional Legal Practice in the mix. In doing so, he added a provocative thought about whether all of the core, professional subjects in the law degree remain necessary.

Recurring themes

Several recurrent themes were evident in the discussion following both panels:

• accessibility of public law sources, and the effects of search engine-first searching by new students;
• the recurrent and fundamental question about the role of the law school in the professional formation of lawyers;
• a perceived disconnect between undergraduate study, and the Diploma;
• the particular ethical dimension to legal practice in the public service, where the clients are colleagues in executive or policy branches of the same organisation;
• students failing to join up skills and knowledge across subject areas.

The Society’s own Director of Law Reform, Michael Clancy, drew the day together with a reflection on the significant changes in the practice of the profession and in legal education across the relatively short period of one professional life. Picking up the European thread, he left us with the tantalising prediction that comparative law is one of the things we are going to have to learn more about.