Administrative & Public Law: A UK-wide Overview

We have heard it said that the glory days of public law are over… judging, however, by the public law horizon, even if that is true for now, it is not set to last. The prospect of increasing use of AI and automated decision-making, continuing pressures on public finances and an uncertain political landscape all fuel the likelihood of public law having a major impact in 2026. Public bodies have needed to adopt ever more careful and defensive positions and whilst draconian restrictions on the availability of legal aid remain, we have seen an increase in commercial entities being prepared to rely on their public law rights.

Moreover, we have seen strong signs of civil society and action groups stepping up into the public law arena. This is particularly true in the arena of climate change litigation – a good example of which was the Supreme Court’s decision that environmental impact assessments must consider downstream emissions, hinting also perhaps at a more interventionist judiciary than we have seen in recent years.

Legislation

The legislative landscape looks to increase public law’s reach, including partly in response to the above, a Climate and Nature Bill. Expect also to be passed the so-called “Hillsborough Law” Bill (officially termed the Public Office (Accountability) Bill). This Bill at its heart would impose a duty on public authorities and public officials to act at all times with candour, transparency and frankness when dealing with inquiries and investigations. This is a wide duty, carrying with it potential criminal offences for non-compliance. The Bill’s aim is to recalibrate the dynamics of public inquiries and investigations such that fact finding is not hindered by institutional defensiveness or procedural delay. Depending on how this Bill proceeds through Parliament, public authorities and officials will need to think carefully about the Bill’s impact.

Watch out also for the Public Service (Ethics, Integrity and Independence) Bill, addressing service standards, digital access and complaints handling (also possibly consolidating various ombudsmen).

Human Rights

The UK’s constitutional dialogue over human rights and the role of the courts shows no sign of closure. The post-Brexit years have left unresolved the question of whether the UK will remain substantively aligned with the European Convention on Human Rights

(ECHR) system in the longer term. While talk of withdrawal is currently limited to opposition parties, the government’s proposals to “rebalance” the relationship between Parliament, the executive and the courts continue to circulate – see for example the government’s proposal to limit reliance upon Article 8 of the ECHR, right to private and family life, in immigration cases (see below).

Automation of Administrative Decisions

There are undoubtedly many benefits of AI in administrative decision-making – managing scarce resources more effectively, consistency and potentially ruling out human error and biases. The converse is also worryingly true, particularly as relates to the building in of human prejudice. Moreover, a prevailing feature of various AI models, or so-called “black box algorithms”, is their opacity. Because these systems often lack transparency, traditional judicial review methods with their in-built limitations, will continue to struggle with automated decisions. This leaves a potential accountability gap across a range of areas, including for instance in the government’s use of automated decision-making in the reclaiming of overpayments of universal credit.

Even where it is not strictly a black box algorithm, it may be necessary to obtain the precise methodology underlying an AI model – and this may equally be blocked by commercial confidentiality or technical complexity. This could prove especially restrictive in the context of decisions around equality, human rights, welfare and immigration, where AI may be liable to think in black and white, without the human capacity to evaluate, especially for qualitative notions of fairness, dignity or morality. Public bodies should be called upon to find solutions to clearly document decisions, incorporating human oversight and transparency into automated decision-making.

Access to Justice

The widening justice gap has become a prevailing feature of modern administrative law in recent years. Legal aid “deserts” leave many potential claimants unable to secure timely advice, while the procedural rigours of judicial review – tight time limits, pre-action correspondence, and the looming adverse costs risks – compound these barriers. The shift toward digital justice, though efficient for repeat institutional players, risks excluding vulnerable individuals who lack reliable internet access or digital literacy. Public confidence in the system is faltering; the Law recent Society’s 21st Century Justice report revealed that only a small minority of citizens believe the justice system treats everyone equally. These pressures are magnified by an economic context in which severe fiscal constraints result in public bodies’ delay in responding to pre-action letters or complying with disclosure orders. As more claimants appear unrepresented, courts expend time managing procedural irregularities, leading to a dynamic some commentators argue is transforming public law into a patchwork of reactive crisis management. Whilst there is broad consensus that limited uplifts in rates for immigration and housing signal a step in the right direction, many would suggest that they are insufficient to bring with them meaningful change. The proposed introduction of non-means-tested legal aid funding for bereaved families at inquests (under the Hillsborough Law Bill referred to above) would address one area which has been the subject of a long campaign.

The Rule of Law

Protest rights continue to animate the courts, with challenges relating to the Public Order Act 2023, including the recent Liberty litigation on Henry VIII powers and the scope of permissible dissent; actions such as the Palestine Action judicial review reflect the same dynamic. Again, political imperatives drive this area of law and current tensions both domestically and globally seem set to continue the pressures on all parts of our society.

Asylum and Immigration

Immigration law continues to serve as a crucible for developing public law principles. From Epping Forest DC v Bell Hotel, which highlighted the entanglement of public law and frontline political decision-making, to the Afghan data-leak challenge, which concerned the overlap of data protection duties and ministerial discretion – illustrate this as an increasingly complex space. For public bodies, particularly the Home Office and local authorities, the litigation burden is an onerous one. Political commitments to “control borders” materialise as operational policies that must withstand scrutiny under the ECHR (for now), the Equality Act and common-law fairness, and each new initiative, whether relocation schemes or AI-assisted risk assessment, imports fresh public-law risk. In response, the third sector have been scaling up their approach to immigration litigation, and well-known charities are actively engaged in contesting not only individual decisions but also the architecture of the immigration systems.

This trend seen over the last few years may now sharpen in light of the Border, Security, Asylum and Immigration Bill, which includes proposals to remove the current legal obligation to provide support to asylum seekers and prevent them from becoming destitute, to amend the definition of the ECHR Article 8 right to private and family life, and to create a new appeals body to hear appeals against asylum decisions. These proposals are closely tied to the discussion around withdrawal from the ECHR. Whilst it is yet to be seen whether the debate around withdrawal will cool off in light of government policy, for now the public dialogue shows no sign of resolution.