Hello! These notes are a complete review of the SQE1 course from the University of Law. They contain everything you need to know to pass. I successfully completed both SQE1 and SQE2 both times and I attribute it to these notes which were incredibly effective when reviewing prior to the exams.
Question One: Main Features of the Constitution
The United Kingdom constitution is composed of intricately entwined principles that,
although were made to complement each other, have now evolved to be in stark opposition;
this concept of incompatibility is a topic worth discussing. The first constitutional principle is
that of the royal prerogative. The prerogative powers are those powers which may only be
exercised by the monarch or the executive in the name of ‘the Crown’.1 These powers include
the creation of treaties, conducting of diplomacy, governance of overseas territories, and the
deployment of armed forces.2 The second constitutional principle of importance is that of
Parliamentary sovereignty. Parliamentary sovereignty is the idea that Parliament is the
supreme law maker of the UK and have the powers to legislate on anything they like, without
the threat of the judiciary adjudicating on the legislation. 3 To begin the critical analysis of the
two principles, first the concept of the rule of law will be looked at. The rule of law is essentially
the idea that there should be clear guidance on how the government operates and there should
be limitations in place for checks and balances.4 The Formal Theory of the rule of law, as
proposed by Joseph Raz, states that the judiciary’s independence must be guaranteed, natural
justice must be promoted, and the courts should have review powers over the implementation
of other principles.5 Both Parliamentary sovereignty and the royal prerogative have powers that
are exempt from judicial challenge, which starkly contrasts the ideals of the rule of law.
Parliamentary sovereignty has been criticised for failing to uphold basic human rights.
Indeed, political constitutionalists believe that Parliamentary supremacy should continue to be
the foundation of the constitution and believe elected officials should have full powers to
legislate on the laws, while in opposition to this, legal constitutionalists believe that it is
dangerous to allow such powers with limited constraints and may permit for freedoms to be
undermined.6 I am in agreement with legal constitutionalists. Often, when bills are proposed in
Parliament, there is outrage in the potential for human rights to be impinged upon. As an
example, ex parte Simms and O’Brien7 revolved around the issue of prison governors restricting
prisoners’ rights to have oral interviews with journalists; although the Law Lords held that the
Prison Act 19528 did not allow prisoners rights to be undermined in such a way, Lord Hoffman
explained that Parliamentary sovereignty allows Parliament to legislate contrary to
fundamental principles of human rights. In cases such as these, where human rights upheld by
the European Convention on Human Rights are undermined, the judiciary may make a
1
Le Sueur, 302.
2
Payne, Week Six Lecture.
3
Payne, Week Four Lecture.
4
Payne, Week Eight Lecture.
5
Ibid.
6
Le Sueur, 54.
7
[1999] UKHL 33
8
Prison Act 1952
,‘declaration of incompatibility’ – yet, in effect this does little against the validity of the
Convention impingement.9
The royal prerogative has also been vastly criticised. Part of the reasoning behind such
an intricate governmental system is to uphold democracy. Yet, the principle of the royal
prerogative is a clear sign of failure in the system to have checks and balances, as Parliament
and the judiciary are not allowed to challenge acts of the executive. Many argue that the
powers to make such decisions should reside in the publicly elected officials of Parliament,
rather than the specific group of executives. Another element is the relationship between the
prerogative and constitutional conventions; both of which cannot be challenged by the courts. 10
This essentially means that neither have a means of accountability, which is considerably
unjustified in a democratic society. It would appear the prerogative powers sits in opposition of
the concep of Liberalism, which is the assurance of rights and freedoms, protection of
minorities, limitations of governmental power, and the promotion of political pluralism. 11 The
lacking checks and balances of the royal prerogative serves as a basis to assume that it is not
compatible with the lawful governance of Parliament and the constitution.
It is clear that there are major issues in relation to democracy and human rights when
discussing Parliamentary sovereignty and the royal prerogative. Further to this, there are issues
in compatibility between the two principles. These issues are exemplified in the Miller 1 case.12
The case revolved around the issue on whether formal notice of withdrawal from the European
Union could be given without parliamentary legislation. The Appellant argued that prior
legislation was not necessary for Notice to be given because of the prerogative power to enter
and withdraw from treaties. The Respondents argued that Parliamentary sovereignty dictated
that the executive could not change domestic law, and since EU laws had been absorbed into
domestic law, Notice had to be given via statutory authorisation. The courts agreed with this.
This exemplifies the clear confliction between the constitutional principles in the UK. Not only
are these principles criticised for the variety of reasons discussed above, but also for the clear
incompatibility of their interactions constitutionally.
The simplest reform would be to adopt a written constitution that clarifies all powers
and provides a system of checks and balances. Currently, the notions of Parliamentary
sovereignty and prerogative powers clashes with modern constitutionalism; 13 I argue both need
to be eradicated for the UK to join other democratic societies and modernize. The rule of law
must be prioritized over everything else by following a legal constitutionalist approach, where
the judiciary must be able to challenge the executive and Parliament to provide a means of
accountability.14 It is my opinion that no legislation should be able to override human rights, so
if the judiciary lays down a declaration of incompatibility, there should be a process whereby
the legislation is critically analysed and Parliament may be overruled (which would undermine
9
Le Sueur, 113.
10
Payne, Week Six Lecture.
11
Payne, Week Three Lecture.
12
[2017] UKSC 5
13
Payne, 2018
14
Le Sueur, 616.
, Parliamentary sovereignty). Parliament and the judiciary should also be able to challenge
prerogative powers to ensure accountability and the assurance of the rule of law. It is of my
opinion that neither Parliamentary sovereignty or the prerogative powers promote good
government and democratic values. There must be radical change, whereby both are
eliminated to uphold the rule of law and modernize the UK constitution.
Question Two: Judicial Review
The purpose of judicial review is to ensure that government decisions are made lawfully
and fairly; essentially, to uphold the rule of law. It is important to stress that judicial review
focuses on the process of a decision, rather than the decision itself. The four grounds for
judicial review are illegality, procedural impropriety, irrationality and proportionality. The four
grounds will be explained, and a critical analysis of each will provided to reveal various issues
surrounding judicial review. Finally, changes that are needed will be identified.
Illegality is that idea that decision makers must understand the extent of their legal
duties and the limits to their powers.15 Lord Diplock in the GCHQ case explained that illegality is
where “the decision-maker must understand correctly the law that regulates his decision-
making power and must give effect to it.”16 Illegality seems quite straightforward, especially
given that there are various sub-grounds to further clarify; for example, there must be a lawful
exercise of discretion (ie. the assurance that what they do is permitted by law), there must be
an actual exercise of discretion, policies must be lawful, published and not give rise to a
legitimate expectation, and relevant considerations must be taken into account. As an example
to show illegality in action, McKee v. Northern Ireland Prison Service17 surrounded an
application for judicial review where a prisoner was denied compassionate temporary leave to
attend a funeral. The court decided that the prison governor had not erred in law, that his
decision was reasonable, he had not fettered his discretion and that the facts were given effect
to, thus the application failed.18 Illegality is one of the grounds that are fair and just in the
judicial review process.
Procedural impropriety is where a decision maker has failed to comply with procedures
as set out by legislation or the common law requirements of procedural fairness. 19 Statutory
procedural requirements include the requirement of consulting with local authorities, the
publishing of the decision, and making due inquiry.20 Procedures for natural justice include the
requirement for a decision maker to be neutral, independent and unbiased, and the right for
audi alteram partem – the right for those affected by a decision to have a fair hearing. 21
Arguably, this is where issues of incompatibility begin to surface in the UK government system.
15
Le Sueur, 639.
16
[1985] AC 374, 410.
17
[2018] NIQB 60
18
Ibid.
19
Le Sueur, 653.
20
Ibid, 654.
21
Ibid.
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