by John Coggon, Edward Kirton-Darling, Margherita Pieraccini, Albert Sanchez-Graells, University of Bristol Law School
Widely in legal education, research, and practice, and across different areas of legal jurisdiction, law is a discipline that is characterised by its sharp division into sub-disciplines. With this division comes super-specialisation. That specialisation has the effect of inviting in-depth focus on discrete areas of law and regulation, without claims to expertise or application across the whole. At the same time, though, there are some basic legal concepts and phenomena that span the different ways that we might carve up the legal system. One, of course, is the concept of law itself. And there is a diversity of others, such as rights, duties, enforceability, and burdens of proof. A significant concept on that list is the public interest: a consequential aspect of law and regulation in practice and legal analysis.
Yet it does not take much reflection to challenge the idea that there is a thing that is “the” public interest. Although it features as a defining and constraining phenomenon within law and its application, it is surprisingly difficult to establish what it means, whether it has any sort of meaningful universal essence, or if it even enjoys consistency in single points of application. This presents challenges for governments, legislators, and judges. And it does so too for legal scholars and practitioners. So in the University of Bristol Law School, we have taken it upon ourselves to share understandings, learn from one another, and critically scrutinise the public interest.
This began, on 25th April 2024, with a day-long workshop entitled Regulating in the Public Interest at a Time of Regulatory Fragmentation: Interdisciplinary Perspectives. With scholars spanning areas of specialist expertise in the Law School, we opened up discussions through a series of short reflections regarding approaches to understanding what ‘the public interest’ itself means, and what it in turn means for laws and regulation: both substantively and as regards practical questions such as implementation and adjudication. Speakers were invited to offer reflections on any or all of a range of prompts that we provided. These included detail of the regulatory context in which they had been thinking about the public interest, and why it had arisen as a consideration. And then we wanted to learn about the role of the public interest, and how claims about the public interest are, or should be, established. We wanted to bring to the surface similarities and differences in both the substance of understandings of the public interest and the processes and power dynamics that shape it across specialist sub-fields of law and policy.
In examining the public interest and its role, we asked colleagues to consider whether there is a unified, or unifying, definition of the public interest. If so, is it a synonym for, or distinct to, apparently similar concepts, such as ‘the common interest’ or ‘the common good’? Looking at its role, we also wondered whether different specialist areas of legal inquiry had alighted on contentious issues concerning the public interest, and whether it was perceived more as having a ‘positive’ role in promoting particular benefits, or a ‘negative’ role, serving as a fetter on what might otherwise be permitted. We were also interested in understanding whether the role of the public interest is explicit or implicit. We wanted as well to hear from colleagues who could talk to the (in)consistency between theory and practice: including what might be learned from instances where efforts to invoke the public interest had led to unforeseen consequences. Finally, on role, we sought to open up the question of whether, with a fragmentation of regulatory actors, the public interest can facilitate coherence of purpose and values; or whether it can come to mean so many conflicting things that, in reality, it too easily justifies too much, or even obscures or obfuscates the ‘true’ justifications for legal and regulatory approaches.
In examining how the public interest is established, we asked participants to consider who defines, and ought to define, the public interest in the regulatory contexts that they were considering, and through what methods. These questions of definition were not narrow: we asked about participative engagement, and the inclusion (or exclusion) of different voices; including intergenerational and cross-jurisdictional considerations. We also invited reflection on whether and what distinctions arise where the public interest is established in the promulgation of guidance as contrasted with the issuing of binding decisions. And we wanted to know how public interest determinations could be challenged: looking prospectively to how this might be anticipated by regulators, and to challenges brought after the fact.
In setting this workshop up, we confess that we did not know what to expect. We were delighted to receive expressions of interest from so many colleagues. As academics, we found this particularly heartening because of the spontaneous nature of the event, its detachment from any specific legal sub-discipline, and its impetus and energy coming from people’s own interest and initiative. We were also pleased to see and learn from the way that having the (apparently) single theme of the public interest enabled focused discussion: we now more clearly recognise the importance of the theme being a ‘boundary object’ that helps draw colleagues together while ensuring good diversity among contributors.
During the workshop, there were presentations and discussions spanning from ‘meta’ to rather specific issues. The first panel included a long view on the changing role of public interest in supporting varying legislative approaches in critical infrastructure regulation in the UK by Tony Prosser, a challenge of three problematic assumptions about public interests in law by Václav Janeček, and a reflection on the importance of engaging expertise-by-experience in regulatory systems by Morag McDermont.
A second panel contrasted notions of public interest in human rights and international law, discussed by Lee McConnell from the broader perspective of the public good, and in EU law, discussed by Jule Mulder from the perspective of the difficult balance established under primary law as an exception to free movement. A third panel focused on environmental, climate change and public health law, with complementary presentations by Margherita Pieraccini with a focus on a proposal to shift towards a deliberative pragmatist turn, Elen Stokes on claims and narratives about the future in environmental law, John Coggon (unfortunately in absentia on the day) on elements of conceptual clash and doublespeak, and Keith Syrett on the role of the public interest in public health allocation decisions.
The following panel focused on public law and public sector regulation included presentations on the role of inquests in furthering the public interest by Ed Kirton-Darling, the impact of public sector automation on public interest considerations by Kit Fotheringham, the kaleidoscopic view of the public interest in the Procurement Act 2023 by Albert Sanchez-Graells, and public interest considerations in policing by Clare Torrible.
The final panel included reflections on the privatisation of public interest enforcement in financial services by James Davey, corporate responsibilities in the public interest by Eleanore Hickman, and public interest considerations in copyright law by Yin Harn Lee.
This overview shows the breadth and depth of the expertise that the workshop brought together. There was a buzz in the room that is hard to describe, and our hope that the workshop could provide for a discursive, fluid and collegiate initial engagement with questions of the public interest was more than fulfilled. In this context, there is a risk that reading the blogs as a discrete set of engagements with the public interest will reinscribe the silos and boundaries we sought to challenge, reveal and explore in the workshop. It is therefore important to read these blogs as jumping off points for future collaborations and a continuing conversation. They illustrate the variety of those discussions, giving a flavour of some of the perspectives, interests and arguments explored, but it is important that they are a starting point for further analysis and are not the final word on this work. Nevertheless, we are confident that the blogs included in this series—which span across most presentations—will be equally thought-provoking and inspiring. We are thankful to colleagues and delighted that so many accepted to share their reflections with a wider audience beyond the School. We are also hopeful that publishing this series of blogs will open up conversations and collaborations more broadly.
One final tangential point is worth noting. The event came about following a conversation between us about a potential response to a call for evidence from a Parliamentary Committee on the role of regulators in a fractured regulatory environment. The call came in the middle of a busy teaching term, and with a short deadline for a response. We decided collectively that we did not have capacity to respond to it, but also agreed that the question of the public interest raised by the call for evidence was an interesting conceptual issue which merited further exploration. This was the seed which prompted these discussions, and we would suggest it highlights something important about the productive and serendipitous possibilities which can arise from a reflective and responsive engagement with the impact agenda, and from seeing impact and public engagement as part of our practice as a community of scholars.