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The Public Interest Conception of Public Law

Varuhas, Jason N. E., The Public Interest Conception of Public Law: Its Procedural Origins and Substantive Implications (October 12, 2014). Available for download at SSRN:

“This paper charts the development and identifies the core features of a unitary conception of public law that emerged in English law in the wake of procedural reforms in the late 1970s that established the judicial review procedure. This public interest conception holds that the principal concerns of public law are regulation of public power in the public interest and according to precepts of good administration. This conception underpinned major legal developments in a critical ten- to fifteen-year period following the procedural reform which, together, forged a distinctive, integrated “system” of public law in English law. Thus, a substantive system of law was secreted in the interstices of a procedural innovation; and so English legal history repeats itself. The public interest conception has proven influential. It has been used as a normative idea to guide legal development across public law fields. However, the paper argues that this is problematic. This conception was forged by reference to only one branch of public law, the common law of judicial review. Contemporary public law is composed of a range of different bodies of doctrine; it has no functional unity, and it is an error of the first order to maintain that it does. Where the public interest conception is used to guide development in fields other than common law review, the risk is that the distinctively valuable functions of those other fields are impeded, while the coherence of those bodies of doctrine may be distorted. The paper analyses two examples of where this risk has become reality: the approach to grant of relief in review proceedings on EU grounds (specifically in the context of EU environmental Directives), and the approach to damages under the Human Rights Act 1998.”

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