SQE1 · Subject page 6 · 7 min read

SQE1 FLK1 subject notes: Parliament and parliamentary sovereignty, the executive and the Crown, devolution, conventions, the prerogative, parliamentary privilege, the rule of law, public order, judicial review, the Human Rights Act 1998 and the place of EU-derived law in the UK constitution.

What this subject covers

The SRA specification covers the core institutions of the state and how they relate (Parliament and parliamentary sovereignty, central government and accountability, the devolved institutions, the monarch and the Crown, constitutional conventions, prerogative power and parliamentary privilege); legitimacy, the separation of powers and the rule of law (making and repealing legislation, public order law on processions, assemblies and breach of the peace, and judicial review); the Human Rights Act 1998 and the Convention rights; and the place of EU law in the UK constitution after withdrawal.

Key principles

Parliament and sovereignty

• Parliament can make or unmake any law, and no person or body can override an Act (Dicey). Parliament cannot bind its successors as to the content of later legislation, so a later inconsistent Act impliedly repeals an earlier one (Ellen Street Estates v Minister of Health). Some "constitutional statutes" may require express repeal (Thoburn v Sunderland City Council).
• Legislative process: a Bill passes through both Houses and receives Royal Assent. Under the Parliament Acts 1911 and 1949 the Commons can pass a public Bill without the Lords' consent after a delay of about a year (one month for money Bills), but not a Bill extending the life of Parliament beyond five years (R (Jackson) v Attorney General upheld the 1949 Act).
• Parliamentary privilege: freedom of speech in debates and proceedings in Parliament may not be questioned in any court (Bill of Rights 1689, art 9). Privilege does not cover statements repeated outside Parliament, or ordinary crimes such as false expenses claims (R v Chaytor).

The executive and the Crown

• Ministers are accountable to Parliament by convention (collective and individual responsibility).
• Constitutional conventions are binding politically but not enforced by the courts, though courts may recognise them (R (Miller) v Secretary of State for Exiting the EU, 2017).
• Prerogative powers are residual common law powers of the Crown. The courts decide whether a prerogative power exists and its limits (Case of Proclamations; R (Miller) v Prime Minister, 2019). Where statute covers the same ground, the prerogative is displaced (Attorney General v De Keyser's Royal Hotel) and cannot be used to frustrate a statutory scheme (ex parte Fire Brigades Union). The exercise of a prerogative power is reviewable depending on its subject matter (Council of Civil Service Unions v Minister for the Civil Service, the GCHQ case). Prerogative powers cannot change domestic law or remove statutory rights (Miller, 2017). The power to dissolve Parliament was revived by the Dissolution and Calling of Parliament Act 2022.

Devolution

The Scottish Parliament, Senedd Cymru and Northern Ireland Assembly have legislative powers set by statute and may not legislate outside their competence; questions of competence can go to the Supreme Court. Westminster keeps the power to legislate for all parts of the UK (for example Scotland Act 1998, s 28(7)), and by the Sewel convention will not normally legislate on devolved matters without consent (s 28(8)), but the convention is not legally enforceable.

Public order

• Processions: advance written notice, normally six clear days, to the police (Public Order Act 1986, s 11); the police may impose conditions (s 12) and in serious cases a procession may be banned (s 13).
• Assemblies: the police may impose conditions (s 14).
• Breach of the peace: a common law power to take reasonable, proportionate preventive action only where a breach is reasonably believed to be imminent (R (Laporte) v Chief Constable of Gloucestershire).
• Statutory public order powers have been amended several times in recent years; questions in our sets stay with the long-standing rules.

Judicial review

• Amenability: decisions of public bodies exercising public functions (R v Panel on Take-overs and Mergers, ex parte Datafin).
• Procedure (CPR Part 54): pre-action protocol letter; claim form promptly and in any event within three months after the grounds arose (six weeks for planning decisions, 30 days for procurement); permission stage; the claimant needs a sufficient interest (Senior Courts Act 1981, s 31(3)), which responsible pressure groups can have (ex parte Greenpeace (No 2)).
• Grounds (GCHQ):
• illegality: acting outside powers, errors of law, irrelevant considerations or improper purposes (Padfield v Minister of Agriculture), and fettering discretion with a rigid policy (British Oxygen v Minister of Technology);
• irrationality: a decision so unreasonable no reasonable authority could have made it (Associated Provincial Picture Houses v Wednesbury Corporation);
• procedural impropriety: breach of statutory procedure, the right to a fair hearing (Ridge v Baldwin), and bias (automatic disqualification for a direct interest, Dimes v Grand Junction Canal; otherwise the fair-minded and informed observer, Porter v Magill);
• legitimate expectation: procedural or substantive, the latter binding unless an overriding public interest justifies frustrating it (ex parte Coughlan).
• Ouster clauses are read restrictively and do not protect decisions vitiated by error of law (Anisminic v Foreign Compensation Commission; R (Privacy International) v Investigatory Powers Tribunal).
• Remedies are discretionary: quashing, prohibiting and mandatory orders, declarations, injunctions, and damages only with a private law or Human Rights Act claim. Relief must be refused if it is highly likely the outcome would not have been substantially different (Senior Courts Act 1981, s 31(2A)). The court may suspend a quashing order or limit its retrospective effect (s 29A).

Human Rights Act 1998

• s 2: courts must take Strasbourg case law into account; it is not binding.
• s 3: legislation must be read and given effect compatibly with Convention rights so far as possible, even departing from the ordinary meaning, but not against a fundamental feature of the Act (Ghaidan v Godin-Mendoza).
• s 4: if that is impossible, the High Court and above may make a declaration of incompatibility, which does not affect the Act's validity.
• s 6: public authorities must act compatibly; core public authorities in everything they do, hybrid bodies only for acts of a public nature (s 6(3)(b), (5)). Parliament is not a public authority for this purpose.
• ss 7 and 8: a victim may bring proceedings within one year, or a longer period the court thinks equitable (s 7(5)); courts may award just satisfaction.
• s 10: remedial orders to amend incompatible legislation; s 19: statements of compatibility for Bills.
• Convention rights (Schedule 1): absolute rights such as Article 3; limited rights such as Article 5; qualified rights such as Articles 8 to 11, where an interference must be prescribed by law, pursue a legitimate aim and be necessary and proportionate (Bank Mellat v HM Treasury (No 2)).

EU law in the UK constitution

The European Communities Act 1972 was repealed by the European Union (Withdrawal) Act 2018, and the UK left the EU on 31 January 2020. EU-derived law kept at the end of the transition period was called retained EU law. Since 1 January 2024, under the Retained EU Law (Revocation and Reform) Act 2023, it is known as assimilated law: the principle of the supremacy of EU law and the general principles of EU law no longer apply to it, and it can be modified or revoked by Parliament and, within statutory powers, by ministers. Parliamentary sovereignty is unaffected. This area has changed recently; check the current SRA specification for its exact wording.

Worked example

A council adopts a policy never to license street traders under 21 and refuses Rae, aged 20, without reading her letter explaining that she has run a stall for three years with her late father. Two months later she consults you.

1. Amenability and time: the council is a public body exercising a statutory function. A claim must be brought promptly and within three months, so she should act at once, sending a pre-action protocol letter first.
2. Standing: as the person refused, she plainly has a sufficient interest.
3. Grounds: fettering discretion by a rigid policy (illegality, British Oxygen), and possibly failure to consider a relevant consideration. Irrationality is harder to show.
4. Remedy: a quashing order and an order that the council decide again, unless it is highly likely the outcome would have been the same (s 31(2A)).
5. Human rights: a claim under s 7 HRA would need a Convention right to be engaged. A refusal of a first licence is a weak fit for any of them, so judicial review on the common law grounds is the main route.

Scope follows the SRA's SQE1 Functioning Legal Knowledge Assessment Specification (FLK1, Constitutional and Administrative Law and EU Law). The notes are our own summary, not SRA material. Law of England and Wales as at 1 September 2026 (the SRA assesses the law as it stands four calendar months before the first assessment in a window).