The Recognition of a Substantive English Public Law through the Privileged Legal Treatment of Public Assets, by Deborah Thebault

Against the backdrop of French public law with its separate administrative and ordinary courts, French lawyers often assume that English law does not have a system of public law, nor a system of public property. This is inaccurate. Starting with the imposition of a feudal structure of property by William the Conqueror in the 11th century, the King soon became Lord Paramount. Unlike France, however, England has never undergone a bloody and sudden revolution, but rather a concealed revolution. English Law has closely followed core societal developments: the tenurial system slowly gave way to the doctrine of estates, based on the classic distinction between freeholds and leaseholds. Compared to the French legal classification of property, in English law there is a hierarchy of property rights, determined by whether a title can be opposed to third parties at law or in equity. The less your title can be legally challenged by a third party, the more your title is valuable and legally enforceable. For instance, the title held at law in absolute title stands as the closest legal qualification to the French definition of ownership as provided in the Civil Code. In English law, therefore, all property titles are submitted to a private law scheme, including Crown lands. Over the centuries, the Lord Paramount became the Lord Administrator of English Lands. This was facilitated by the creation of a national Land register regulated by the State.

Therefore, by its feudal foundations, English property law is very far from the contemporary French model: the concepts of state, public property or ‘domaniality’, ‘legal person of public law’, public services, are unknown. However, English law is fundamentally pragmatic. Thus, to allow British subjects to wander or indulge outdoors when there is only one legal concept of property (private property), or to use goods of services for health care, education, housing, while there is no public services nor public institution, English law has developed a corpus of specific rules which pursue the protection of these assets and the satisfaction of the public in the public interest.

By applying the structured approach of the civilian French legal method to English law, my research shows that some assets are subject to special rules. In an unprecedented process, I built an original methodology, adapted to the subject, which could be qualified as reversed comparative law. Reversed comparative law consists in mobilizing the tools of one legal system to better apprehend another legal system. This method was achieved by identifying each rule which was either setting exceptions or was deviating from the ordinary law throughout the entire English legal corpus since the 11th century. These rules are found not only in primary and secondary legislations but also in case laws in both equity and common law. These derogatory rules constitute the substantive rules of English public law. Substantive public law should be distinguished from judicial review, which is not substantive but procedural public law. Thus, from these special derogatory rules of public law identified, I mobilized the structuring criteria of French law, the organic and functional criteria, to conceptualise the English reality of law. Henceforth, this conceptualisation of English public law led me to identify different categories of public assets. Therefore, my thesis aimed, firstly, to demonstrate the existence of a substantive public law rooted in the English legal system since the 11th century. Secondly, the existence of rules of substantive public law reveal that some assets are subject to special legal treatment. Such treatment qualifies them as public property.  

In support of this methodology, two categories of public assets can be identified within the English legal system. The special treatment of public assets is triggered either by the ‘publicness’ of the owner (organic criterion) such as the Crown or the public itself or by the pursuit of the public interest (functional criterion), regardless of the public nature of the owner, such as charities or privatized companies’ assets.

The first set comprises assets belonging to the Crown or to the public itself. This organic criterion triggers ‘publicness’. On the one hand, the Crown, as understood in its Dicey’s concept, does not escape from adverse possession. It is very interesting to note that squatters can legally take possession of a Crown asset by usucapio. However, some of the assets are subject to derogative rules: this is where public law rules strike down rules of English law. Indeed, according to Kantorowicz’ theory of the “King’s Two Bodies”, Crown assets are divided into two categories: one belonging to the King as a natural person, the other belonging to the King in his (her) body politic in right of the Crown. The ‘publicness’ of the legal regime fluctuates depending on which category the asset belongs to. For instance, the Duchy of Cornwall legally belongs to the King as a natural person, and should therefore be subject to common law. Nevertheless, as it is the ‘training ground’ for the future king, it is strongly governed by public law rules, especially when it comes to its administration and specifically disposition of parts of it.

On the other hand, assets belonging to the public itself attract derogative rules based on their use. This comprises highways, footpaths, open spaces, as well as rights of common hold in equity. The public’s rights of use are, however, tied to the land itself: if the land is sold, therefore, the rights are conveyed to the new title holder. The town or village greens are among the assets whose legal regime is most strongly dependent on their ‘publicness’. These greens can be acquired by the public by prescription. Once the public claimed its rights to use it for recreational or leisure activities over a period of twenty years, even if it has not been continuous, greens become almost inalienable. Indeed, the nature of the use is not registered by the local council. The use can therefore change over the years, and still the public will keep it as collective property.  

The second set comprises functional assets regardless of the public nature of their owner. Contrary to an often widespread idea, the reforms initiated by Margaret Thatcher have not aimed to remove the notion of public service and public interest missions of the economic functioning of society. On the contrary, these reforms have led to the emergence of a new “public sector” in the United Kingdom. In coherence with the Liberal project considering the private sector as being more efficient than the State, these missions have been assigned to private agents, leading to a transformation of the role of the State in the pursuit of the public interest. The ‘publicness’ of this category of assets is therefore revealed by the public interest they pursue: it includes charities and privatised assets formerly managed by “ministerial companies” (since ministries have legal personhood in English law).

Charities, based on the exclusivity and specialty of their charitable object, are entities of ordinary law driven by public law rules rooted in their intended public benefit. Often constituted as trusts, these entities have progressively mutated to become the local relay of national public services in the context of the Big Society. In other words, they are taking over the place of the hollowing state. Their charitable status attracts ‘publicness’. The legal regime governing them makes their assets almost inalienable. In response to the new shape of the Hollow State, the legislator has recently created specialized tribunals to deal with litigation involving charities. In order to integrate the public interest of this sector in growth, and however impervious to the public-private French law dualism, English law has thus adapted itself to the mutations generated by liberal policies by creating deviating rules from the ordinary system.

Privatisation had major effects not only on English culture, but also on its legal system. Unlike French law, English law does not know the concept of ‘legal person of public law’. Therefore, privatisation has to be understood in its context, in its original legal sense: the privatisation of capital assets. Inevitably, privatisation is interpreted as a withdrawal of the State. This is not entirely accurate, however, since the State, in England at least, created strong legal instruments to control the privatised assets. Ministries – or, as I qualify them as ‘ministerial companies’ – have inherited from contract law a legal personhood unlike French ministries. For instance, ‘publicness’ rules can be found in the ‘no fettering’ principle of contract law. This  forbids a public authority to renounce its discretionary power. They also benefit from golden shares and soft law-rules enacted by the Government. These legal techniques allowed ministers to create agencies charged with implementing their policies at a local level. Privatisation in England gave the State a strong regulatory role and contributed to maintain a certain level of assets protection.

In conclusion, however different the roots of civilian or common law systems are, both legal systems have developed inner special derogatory rules in order to protect the assets either owned by public owners embodying a sovereign interest or let at the disposal of the public. And Brexit does not seem to reduce the interest of this study as the United Kingdom is a dualistic system which transposed European Union law into its domestic law and this has had very little influence on public property law. On the contrary, it will strengthen the interest of this study as the United Kingdom will not be bound anymore by the standardization effect of the European Union law.

Posted by Dr Deborah THEBAULT (Université PSL)

Suggested citation: D. Thebault, “The Recognition of a Substantive English Public Law through the Privileged Legal Treatment of Public Assets”, BACL blog (https://british-association-comparative-law.org/?p=3861).

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