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Summary SQE 1 Constitutional and Administrative Law and EU Law

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Introducing Constitutional and Administrative Law and EU Law notes from The SQE Hub specifically tailored by addressing each of the assessment specifications listed on the SRA website. These high yield notes are an amazing revision aid and address the following: - Core institutions of the state a...

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sra
sqe 1
flk 1
barbri sqe
qlts
eu law
european union
judi
solicitors qualifying exam
sra assessment specification
university of law
the college of legal practice
constitutional and administrative law

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Module SQE1

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CONSTITUTION AND ADMINISTRATIVE LAW AND EU LAW

SQE 1 Assessment specification: Core institutions of the state and how they
interrelate
SQE 1 Assessment specification: Legitimacy, separation of powers and the rule of law

Role of constitutional conventions:

Monarch and crown:

Prerogative power = relationship with legislation and constitutional conventions

Constitutions = written and unwritten. Written will have its constitution set out in a single
document. Unwritten will not but will be made up of statutes and case law.

Republican = state with an elected president as its head of state.

Monarchical = unelected monarch as head of state.

Federal = division pf power between the central govt and regional govt.

Unitary = single sovereign legislative body, with power being concentrated at the centre.

Rigid = constitution is entrenched. i.e. written constitutions tend to be rigid. May be changed
by a special procedure.

Flexible = can be changed/amended quite easily i.e. unwritten constitutions.

Formal separation of powers = clear separation both of functions and of personnel
between executive (i.e. the govt), the legislative (i.e. the parliament) and the judicial (i.e. the
courts) branches of state.

Informal separation of powers = will have significant overlap in terms of functions and
personnel between exec, legislative and judicial branches of state.

Constitutional principles

Rule of law =

❖ No arbitrary exercise of power by state/govt – all actions of the state/govt must be
permitted by the law.
❖ Laws should be made properly, following a set procedure.
❖ Laws should be clear - laws should be set out clearly and be accessible and a citizen
should be punished only for a clearly defined breach of the law
❖ Law should be certain – not operate retrospectively and a citizen should not be
punished for an act that was not a crime at the time it was carried out.
❖ There should be equality before the law – all citizens should have equal access to
the legal process and the law should treat all persons in the same way

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❖ Judiciary should be independent and impartial – courts should be sufficiently
independent from legislature and the executive.

Separation of powers:

1. The legislature – the body that makes the law. In UK – legislature is Parliament
which is made up of the Queen, the House of Lords, and the House of Commons.

2. The executive – the body that implements the law. In UK, this is the Queen, the
Prime Minister and other govt ministers such as civil service, members of the police
and armed forces.

3. The judiciary – the body that resolves disputes about the law. Judicial branch of
state is made up of Queen. All legally qualified judges, and magistrates.

Sovereignty of Parliament = common law doctrine accepted by the judiciary, which courts
acknowledge that legislation enacted by Parliament takes precedence over common law.

Sources of UK constitution:

Acts of parliament:

➢ Magna Carta 1215 – first assertion of rights that limited powers of Monarch and
powers of individuals. Created principle that govt to be conducted according to the
law and with consent of the governed. Established that no one is above the law.
Introduced right to protection from unlawful imprisonment.

➢ Bill of Rights 1689 – imposed limitations on powers of the Crown and its relationship
with Parliament. Removed Crown’s power to suspend Acts of Parliament, impose
taxations without Parliament’s consent. Parliament should meet on a regular basis,
elections to parliament should be free from interference from crown.

➢ Acts of Union 1706-1707 – united Scotland and Scotland under a single Parliament
of Great Britain. Also preserved the separate Scottish church and legal system.

➢ Parliament Acts 1911 and 1949 – allowed will of House of Commons to prevail over
the unelected House of Lords by enabling the passing of legislation without the
consent of the House of Lords.

➢ Police and Criminal Evidence Act 1984 – relevant to civil liberties. Provides police
with extensive powers to arrest, search and detain and contains procedural
safeguards to ensure police do not abuse such powers.

➢ Public Order Act 1986 – limitations to be placed on rights of citizens to hold marches
and meetings in public places.

➢ Human Rights Act 1998 – HRA 1998 incorporates European Convention on Human
Rights (ECHR) into our domestic law.

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➢ Acts of devolution i.e. Scotland Act 1998 – created devolved systems of govt in
various parts of the UK. Scottish Parliament, Welsh Assembly and NI Assembly
(decentralising the process of govt and gives greater autonomy to these parts of the
UK.

➢ Constitutional Reform Act 2005 – reformed office of Lord Chancellor by transferring
powers as head of judiciary to the Lord Chief Justice and permitting HL to elect its
own speaker. Created Supreme Court and created the Judicial Appointments
Commission to oversee appt of judges.

➢ The European Union (Withdrawal) Act 2018 – repealed European Communities Act
1972 which created UK’s membership of the EU. Provided UK’s exit from the EU but
also retained EU law in the UK’s legal system.

Case law:

➢ The common law – an important source of principles:
o Residual freedom – developed through common law. Citizens free to do or
say whatever they wish unless the law clearly states that such action or
statement is prohibited.
o Actions of the state must have legal authority - Entick v Carrington –
established state officials could not act in an arbitrary manner and exercise of
power by the state had to have clear legal authority.
o Legal disputes should be resolved by judiciary - Case of Prohibitions
(Prohibitions del roy) (1607) – Monarch had no power to decide legal matters
by way of arbitrary rulings and legal disputes should be properly resolved by
the courts.
o Habeas Corpus and individual liberty = where individual has been detained by
state has the right to have the legality of that detention tested before the
court.
o Right to a fair hearing = fundamental constitution principle and an important
part of the rule of law. Also, in Art 6 of the ECHR which forms part of HRA
1998.
➢ Judicial review of executive actions – enables courts to ensure that the Govt and
other public bodies exercise the powers that they have been granted, so as not to
breach the rule of law.
➢ Interpretation of statute – judiciary also develop constitutional principles when
interpreting statute i.e. R v Miller = SC stated ECA 1972 preventing Govt from using
royal prerogative as legal basis for notice of withdrawal from EU.

Royal Prerogative:

Reside of discretionary or arbitrary authority, which at any given time is legally left in the
hands of the Crown…every act which the Govt can lawfully do without the authority of an Act
of Parliament is done in virtue of this prerogative’ (Dicey).

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