Kate Emmerson, associate, Field Fisher Waterhouse
Public and Regulatory Law
12 March 2010
Lawyers in the public and regulatory sector advise a wide variety of public bodies and commercial organisations on regulatory, disciplinary and public law matters. In the public and regulatory sector lawyers have the opportunity to advise clients on a diverse range of topics and support regulators in performing their statutory functions.
What’s it all about?
Public lawyers act for both applicants (the party making a challenge) and respondents (the public body decision-maker). Applicant work involves advising and acting for private individuals, companies and organisations who are challenging the decision or policy of a central or local government department. Lawyers may also be involved in interpreting and drafting legislation, advising on formulating and implementing policies, providing support at public inquiries, and challenging EU measures and their implementation.
Regulatory work can include advising clients on regulatory liabilities, health and safety, reporting obligations, penalties for non compliance, corporate governance issues and reputation issues. Lawyers may be involved in raids, crisis management advice, caution interviews and court proceedings. At Field Fisher Waterhouse (FFW) we specialise in the field of professional regulation. Our lawyers assist clients in planning and undertaking investigation of disciplinary cases against a wider variety of professionals. We secure witness statements and documentary evidence, drafting charges, and presenting cases at disciplinary tribunals. The issue is not about ‘winning’ or the costs that can be recovered but ensuring that the right result is reached in the interests of both the regulator and the public. Unlike civil or commercial litigation, few cases settle in this area of law. There is little scope to negotiate or mediate what is ‘right or wrong’. Our lawyers will find themselves spending a considerable amount of time out of the office attending hearings and gathering evidence.
What is the working culture like in a public and regulatory team?
At FFW the public and regulatory law group has six partners and over 30 fee earners based in London and Manchester. We have long standing relationships with many clients and have developed a good understanding of the needs of their businesses.
As our work is litigation driven rather than corporate focused (and as the cases do not often settle), this means that our associates and trainees will be in court more often than almost any other area of the firm. Consequently our lawyers need excellent communication and organisational skills as they are often out of the office taking statements or attending hearings.
Associates are involved in advising on regulatory law matters, preparing cases for tribunal hearings, defending and bringing judicial review claims on behalf of clients and drafting legislation and codes of practice. Solicitors handle their own caseloads under partner supervision and play a role in managing client relationships. There is an opportunity to be involved in advocacy and many of our associates present cases before disciplinary tribunals.
Trainees can expect to be involved in attending disciplinary hearings, drafting and taking witness statements, preparing instructions to counsel and experts and preparing research and advice for a wide variety of public and commercial bodies.
What is the typical makeup of a public and regulatory lawyer’s client base?
Lawyers in the regulatory and public law sector can be involved in advising local government, professional regulatory bodies, housing associations, universities, charities, NHS Trusts and police authorities. Lawyers may represent organisations and individuals investigated or prosecuted by government departments, local authorities or public bodies. Firms will often have a sectorial or institutional focus so the client base will vary between firms.
Our client base is focused on supporting professional disciplinary bodies in the healthcare, finance, sport and education sectors. We also advise central government, statutory and Royal Charter bodies on wider aspects of their work including professional conduct, human rights issues and the development of public policy. We advise and support clients at public inquiries and undertake a varied caseload of judicial review work.
What other practice areas do you work most closely with?
Our lawyers draw on expertise from around the firm including from colleagues experienced in competition and EU, public sector, commercial, litigation, media and privacy and information law.
We have recently assisted our Brussels offices in challenging the introduction of European legislation though judicial review in the UK Courts.
We are currently assisting colleagues in the competition department with an appeal from the Competition Appeal Tribunal to the Court of Appeal. We have also worked alongside corporate colleagues on the restructuring of a professional regulator as it separates its disciplinary and regulatory functions.
Often our work involves Freedom of Information (FOI) issues and we have recently worked with our FOI specialists relating to the disclosure of a disciplinary inquiry report into the conduct of a senior police officer.
What skills make a good public and regulatory lawyer?
Lawyers in this sector will need wide ranging skills as the work involves advisory, contentious and non-contentious work. Lawyers will find themselves working with a variety of professionals and other individuals so they will need excellent communication skills and social intuition.
Project management skills and the ability to work under pressure are important. A lawyer in this sector must be able to prioritise and summarise vast amounts of information quickly and accurately. A flexible approach to clients is required as there are many different pressures and priorities to be aware of. Preparing cases for disciplinary tribunals may involve interviewing witnesses from all walks of life who feel they have been treated unprofessionally. Issues such as a regulator’s public and political image and unwanted publicity may also need to be considered.
Strong drafting, research and communication skills are important as lawyers are regularly required to draft letters, instructions to counsel and experts, pleadings and other litigation documents in many different circumstances. An interest in tribunal advocacy is also advantageous.
A regulatory lawyer will also need to maintain an up-to-date knowledge of the legislative and disciplinary regimes of their regulator clients in this rapidly developing area of law.
What impact has the recession had on your practice area?
The recession has not had quite the same effect on public and regulatory lawyers as it has on many other sectors. In fact there has been a tendency to discuss the increased need for regulation. There will always be a need to regulate and discipline individuals such as doctors, dentists and nurses. However, we are mindful that the squeeze on public sector finances could affect some clients. The ability to provide efficient cost effective working practices will be rewarded.
What prominent public and regulatory cases has your firm been involved in?
One of our partners headed our team as solicitors to the Inquests into the deaths of Diana, Princess of Wales and Mr Dodi Al Fayed. He is currently acting as solicitor to the inquests into the 7/7 London bombings being conducted by Lady Justice Hallett, and has also been involved in a number of independent private investigations for public sector bodies. We have also been instructed in several high profile and sensitive disciplinary cases including the regulatory prosecution of Harold Shipman (and representing a party on the Shipman Inquiry), the paediatric cardiac surgeons at Bristol, Dr Andrew Wakefield (the researcher who made a link between MMR and autism), and paediatric expert witness Professor Meadow.
What do you think is the future shape of public and regulatory law?
We have discerned a definite drive to regulate more sectors of society and three influences appear to be shaping how that regulation might develop. Firstly, the funding available for additional regulation may be limited in times of recession. Secondly, the requirement for greater regulation may itself arise from the recession. Thirdly, there may be a potential direction change caused by a change of administration – a Conservative government may favour less micro management and regulation. But it is clear that for the future – this is a sector which is going to be busy.
What phrase is a public and regulatory lawyer most likely to use and what does it mean?
In the field of Public law, in particular for those working in the judicial review field, two of the well known buzz words are ‘proportionality’ and ‘reasonable’. The latter is often referred to as ‘Wednesbury reasonableness’ which refers to the test in judicial review that the appellant has to show that no reasonable authority could behave in the way it did. Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve.
Kate Emmerson is an associate in the Public Regulatory Group at Field Fisher Waterhouse LLP