Solicitors Qualifying Examination

Constitutional and Administrative Law

RICHARD CLEMENTS

This book helps candidates preparing for SQE1 to revise the constitutional theories and their workings in the UK, including legitimacy, the rule of law and the separation of powers. It explains how the core institutions of the state interrelate and their respective roles in the constitution. And it covers the key areas of public order, human rights and the status of EU law in the UK constitution following Brexit. Readers will have the opportunity to test their subject knowledge and relevant legal principles through multiple-choice questions in the style of the SQE assessment.

 

The constitution and conventions

MAKE SURE YOU KNOW
This chapter will explain what a constitution is, the difference between
written and unwritten constitutions, the role of constitutional
conventions and constitutional theories such as the separation of
powers and the rule of law. You will need to know about these topics
and be able to apply them to scenarios, problems and situations for
your SQE1 assessment.
Written
Values
Organisation
Procedures
State structure
Bill of Rights
Unwritten
Evolutionary/adaptive
Conventions
Multiple sources
(eg Acts of Parliament)
Federal
Divided power – central
and regional
eg USA
Unitary
Sovereign powers
retained by central
government
eg UK
Purpose of constitutions
Government
Power
Protection
2 The constitution and conventions

SQE ASSESSMENT ADVICE
The SQE1 Assessment Specification for constitutional and administrative
law covers a wide range of topics, which might seem unconnected. To
do well in the SQE1 assessment, it is essential that you understand how
these topics fit together and this chapter aims to explain this.
As you work through this chapter, remember to pay particular attention
in your revision to the following:
• The UK does not have a written constitution, which is unusual. That
does not mean that it does not have a constitution.
• The UK has a constitution that applies to the whole country, but
Scotland, Wales and Northern Ireland also have their own, different
constitutional arrangements.
• The UK constitution is not just law, but also constitutional convention.
Clearly identify what is a law and what is a convention.

WHAT DO YOU KNOW ALREADY?
Have a go at these questions before reading this chapter. If you find
some difficult or cannot remember the answers, make a note to look
more closely at that subtopic during your revision.
1) Why do countries have a constitution?
[The purpose of a constitution, page 3]
2) A written constitution is one contained in an Act of Parliament. True
or false?
[Written and unwritten constitutions, page 3]
3) Why does the UK not have a written constitution?
[The UK has an unwritten constitution, page 4]
4) What is the difference between a federal and a unitary state?
[Federal or unitary constitutions, page 6]
5) Is any of the UK constitution legally enforceable?
[The sources of the constitution, page 7]
6) Which of the following is correct? The royal prerogative:
a) allows the Queen to govern the country
b) allows the government to govern in the Queen’s name
c) gives the royal family immunity from the law.
[The royal prerogative, page 9]
7) What are constitutional conventions?
a) meetings of Parliament
b) non-legal rules of the constitution
c) international treaties.
[Conventions, page 13]
Constitutions 3
CONSTITUTIONS
First, we need to define what a constitution is. This section will help you
revise:
• the purpose of a constitution
• written and unwritten constitutions
• the contents of a constitution
• the UK’s unwritten constitution
• federal or unitary constitutions.
The purpose of a constitution
Every organisation, for example companies, clubs and societies, have
some sort of basic rules about how they are to be run. This would
include information about who has the power to take decisions, whether
and how those decisions must be approved by the members of the
organisation and the other rights of those members. These rules are
commonly called the constitution of that organisation.
Similarly, a country would have a constitution. This would state who has
the power to govern that country, how they were chosen and the powers
that they possessed. The idea is that the constitution would be generally
accepted by the people of that country and therefore grant legitimacy to
whatever the system of government was in that country. The constitution
should limit the power of government and give protection to the rights
and liberties of the people of that country.
Key term: constitution
The system of government and the collection of rules that establish
and regulate it.
Written and unwritten constitutions
Nearly every country in the world has a written constitution, sometimes
called a codified constitution. This is a document that sets out the
government framework in that country, the organs of government
and their powers. It could be a short or lengthy document, as different
countries make different choices, but the important point is that the
constitution has a higher legal status than the ordinary law. Many
countries would make a distinction between public law that relates to
the written constitution and private law that relates to ordinary citizens
in areas such as contract and tort. It is common to have different courts
for public and private law and even a high-level, specialist court to
interpret the constitution, such as the Supreme Court in the USA. There
4 The constitution and conventions
is usually a special procedure to change the constitution, such as a twothirds majority of the legislature or a referendum.
Key term: written (or codified) constitution
A document with a special legal status that sets out the system of
government and the collection of rules that establish and regulate it.
Contents of a constitution
Written constitutions vary in size and content, but they would contain
some or all of the following features:
1. A statement that this is what the ‘people’ want.
2. A statement of the values important to that country.
3. An organisation chart of government setting out the executive
(government), legislature (law making) and judicial (deciding legal
disputes) functions.
4. Electoral procedure.
5. The structure of the state, specifically whether it is unitary or federal
in nature.
6. Procedures to change the constitution.
7. A Bill of Rights that protects the liberties and freedoms of the people
of that state.
8. Protections for minority groups.
The UK has an unwritten constitution
The UK is unusual because it does not have a written constitution. The
reasons for this are historical. Countries adopt written constitutions when
there is a dramatic break with the past, such as overthrowing the previous
form of government, defeat in war, economic collapse or the gaining of
independence. None of these have occurred in modern times in the UK,
so the system of government has evolved over the centuries. Despite
the absence of a constitutional document, the UK does have a clear and
generally accepted system of government, so it does have a constitution.
The UK constitution is evolutionary
The UK constitution has developed and changed over the centuries. The
powers of the King or Queen, Parliament and the prime minister have all
changed since those institutions came into existence. Once the monarch
was the most important person in the constitution, now it is the prime
minister.
Much of the UK constitution can be found in Acts of Parliament and
is therefore legally binding, but in contrast to a written constitution,
Constitutions 5
Acts of Parliament that have constitutional effect are no different from
any other Act of Parliament and there is no special procedure to repeal
them. For example, Parliament passed the European Communities Act
1972 in order to join the European Union (EU) and could repeal it in
the EU (Withdrawal) Act 2018, so that the UK could leave. Although a
referendum was held in 2016 to ask the electorate whether they wanted
to leave the EU, as explained in R (Miller) v Secretary of State for Exiting
the European Union [2017] UKSC 5, there was no constitutional or
legal requirement to do this. All that was required to change one Act
of Parliament was another Act of Parliament (see Chapter 9 for more
information about the EU).
Human rights were not legally protected within the UK until the Human
Rights Act 1998. Although under s 3 of that Act legislation must
be interpreted in accordance with that Act, there is nothing to stop
Parliament passing laws that infringe human rights or, indeed, repealing
the Human Rights Act.
Much of the UK constitution is not law at all but is made up of
conventions. These are understandings, habits or practices that regulate
how members of the government behave. In other words, they are the
accepted way of doing things, which most people respect. Conventions
mean that the constitution is very adaptable and can change according
to the circumstances. Have a look at Practice example 1.1 for an
illustration of this.
Practice example 1.1
A new prime minister has just been elected and wants the UK
to rejoin the EU. The prime minister thinks that she must hold a
referendum to gain approval for this course of action. Is the prime
minister correct?
There is no legal requirement to do so, because there is not a
written constitution that requires this procedure for constitutional
change. There may be a political problem in not holding a
referendum if the electorate expect it.
Revision tip
Just because the UK does not have a written constitution it does not
mean that there are no constitutional rules. There definitely are rules,
which you need to learn and remember for the SQE assessment.
6 The constitution and conventions
Federal or unitary constitutions
In a federal state, the federal constitution divides power between a
central government and the governments of the different regions of that
country. For example, the USA has a federal government and each of the
50 states also has its own government. As the name suggests, the UK is a
union of once independent countries, namely England, Scotland, Wales
and Northern Ireland, but a federal structure was not adopted. Instead, it
is a unitary constitution, where the ultimate sovereign power is retained
by the central government based in Westminster. In particular, the UK
Parliament retains sovereignty, which is the power to enact any law that
it chooses. These Acts of Parliament override any other kinds of law. In
contrast, the legislature of a federal state usually cannot override the
written constitution or the legislative powers allocated to the regions.
Key term: federal constitution
A system of government in which the authority to govern is divided
between a central government and regions, provinces or states.
Key term: unitary constitution
A system of government in which the authority to govern is
concentrated in the central government.
From 1998 onwards, the UK Parliament began a process of devolution,
granting powers of self-government to Scotland, Wales and Northern
Ireland. However, the UK Parliament was careful to retain sovereignty
and can override the wishes of the devolved countries, as indicated in
R (Miller) v Secretary of State for Exiting the European Union [2017]
UKSC 5. Only the Parliament of the UK needed to legislate to leave the
EU. The consent of the legislatures of Scotland and Northern Ireland was
not required. Have a look at Practice example 1.2 for an illustration of
this (see Chapter 3, page 49 for more about devolution).
Practice example 1.2
The prime minister wants to abolish the Scottish Parliament. Can he
do this?
Legally yes, if the Parliament of the UK passes an Act of Parliament
to do so. An Act of the UK Parliament, the Scotland Act 2016,
states that the Scottish Parliament and the Scottish government
are permanent parts of the UK constitution, but this Act can be
repealed. This neatly illustrates the difference between the UK
unitary constitution and a federal constitution.
The sources of the constitution 7
Summary: constitutions
WHAT is a constitution? The rules under which a country is
governed.
WHEN is it used? All the time, but it is particularly
relevant when there is a dispute about
the rights of the government or citizens.
WHO is it used by? The government and all the citizens of
that country.
THE SOURCES OF THE CONSTITUTION
The constitution of the UK cannot be found in one constitutional
document but has various sources. This section will give an overview of
the following sources:
• Acts of Parliament
• case law
• the royal prerogative
Table 1.1: Written constitutions versus UK unwritten constitution
Written constitutions UK unwritten constitution
Special procedure to change All constitutional rules can be
changed
Most countries have one UK is unusual
Rights are protected under the
constitution
Specific legislation to protect rights
Constitutional rules can be found in
one document
Constitutional rules can be found
in Acts of Parliament, cases and
conventions
Better control over government Government has freedom to act
Constitutional court enforces the
constitution
Constitutional cases are heard in the
ordinary courts
Written constitution might not be
obeyed
Tradition respected
Written constitution cannot contain
every rule
Conventions, cases and Acts
of Parliament provide more
constitutional rules
The constitution may divide
power between federal and state
governments
The UK (Westminster) Parliament
retains supreme power
(sovereignty)
8 The constitution and conventions
• historical documents
• the law and custom of Parliament
• EU law
• constitutional theories.
Acts of Parliament
Much of the UK constitution is written down and legally enforceable as
it is contained in Acts of Parliament. In contrast to a written constitution,
these Acts can be easily amended or repealed, simply by passing another
Act of Parliament. Many of the most important parts of the constitution
can be found in Acts of Parliament. Table 1.2 gives a few examples,
which you will see later in the book.
Table 1.2: Constitutionally important Acts of Parliament
Act of Settlement
1700
This provides for the royal succession and lays down
who is entitled to be King or Queen (see Chapter 4,
page 62).
Act of Union
1706
Two independent countries, England and Scotland,
joined to form Great Britain and the Parliaments of
England and Scotland were dissolved and merged into
one, new Parliament (see Chapter 3, page 49).
Parliament Acts
1911 and 1949
Although these two Acts do not set out the powers
of Parliament, they do restrict the power of the House
of Lords. The elected House of Commons became
the superior House and the Lords may only delay
legislation passed by the Commons for one year (see
Chapter 2, page 24).
Human Rights
Act 1998
This Act allowed victims of a breach of human rights
to enforce the provisions of the European Convention
on Human Rights (ECHR) in the courts of the UK (see
Chapter 8, page 134).
Constitutional
Reform Act 2005
The Act established the Supreme Court and provided
for a separation of powers in the UK constitution (see
Chapter 1, page 12).
European
Communities Act
1972
Under this Act, the UK joined the EU (then known as
the European Economic Communities) and allowed
EU law to be enforced in the courts of the UK (see
Chapter 9, page 157).
EU (Withdrawal)
Act 2018
Under this Act the UK left the EU. Although EU Law
(now known as ‘retained law’) remains in force in
the UK, it no longer has supremacy over UK law (see
Chapter 9, page 159).
The sources of the constitution 9
Case law
Many countries have specialist constitutional courts, such as the
Supreme Court in the USA. The UK does not, and a constitutional issue
may be tried in any level of court. Under the precedent system, the
decisions of the House of Lords and its successor, the Supreme Court,
are the most authoritative. The Supreme Court of the USA has the power
to overrule unconstitutional laws, but the UK Supreme Court does
not. Despite that, as the constitution is unwritten many constitutional
issues can only be decided in court. The fundamental principle of the
constitution, parliamentary sovereignty, can only be found in court
decisions. Table 1.3 shows some examples of constitutionally important
court decisions.
Table 1.3: Constitutionally important court decisions
Pickin v British Rail
Board [1974] AC 765
The House of Lords concluded that Parliament
was the supreme authority in the constitution and
a court could neither investigate nor question an
Act passed by Parliament.
R v Secretary of State
for Transport, ex parte
Factortame No 2
[1991] 1 AC 603
After joining the EU, the House of Lords had
to reconsider the question of parliamentary
supremacy. Their Lordships concluded that the
European Communities Act 1972 had given the
EU authority to legislate for the UK and given
permission for EU law to have supremacy over
UK Acts of Parliament.
R (Miller) v Secretary
of State for Exiting
the European Union
[2017] UKSC 5
The Supreme Court concluded that leaving
the EU could not be done by using the
royal prerogative, because only another Act
of Parliament could repeal the European
Communities Act 1972.
The royal prerogative
The monarch retains legal powers to enable her to rule the country,
which is known as the royal prerogative. Some originate from ancient
Acts of Parliament, but others are powers that have always been claimed
and are therefore part of the common law. Sometimes, the existence
and extent of these powers is disputed and then the courts might be
called upon to adjudicate. For example, the Queen has the power to
summon, dissolve or prorogue (suspend) Parliament, but nowadays
the convention is that this is done on the advice of the prime minister.
R (Miller) v Prime Minister [2019] UKSC 41 decided that Parliament
10 The constitution and conventions
fulfilled a vital constitutional role and could not therefore be suspended
for longer than a short period of time.
The prime minister or other senior government minister decide upon
the use of the Queen’s legal powers and exercise these powers in her
name. The established practice (convention) is that the Queen must be
consulted. She can express agreement or disagreement with the prime
minister’s chosen course of action, but ultimately would not refuse (see
Chapter 4, page 62).
Key term: royal prerogative
The remaining royal powers of government.
Historic documents
The two main historical sources are:
• Magna Carta 1215
• The Bill of Rights 1689.
Magna Carta 1215
The significance of this charter is that King John agreed that his powers
were not unlimited and that his subjects did have certain rights. It could
be regarded as the ancestor of written constitutions, but even though
it was turned into an Act of Parliament in 1297, it is of little practical
significance today and its provisions would not be enforceable in a
court. Clause 39, which stated that a freeman should be tried for crimes
by ‘his peers’, could be regarded as a recognition of jury trials and clause
40 guarantees a right to justice. At most, these might be regarded as
underlying constitutional principles.
The Bill of Rights 1689
James II fled England in 1688 during events described as the Glorious
Revolution and was replaced by King William and Queen Mary. Parliament
laid down the terms under which they would rule in the Bill of Rights,
which was later given statutory force by Parliament. The importance
of this document is that Parliament was now the supreme authority in
England, not the King or Queen. Parliament, not the monarch, would
make the laws, raise taxes and authorise the keeping of an army.
The law and custom of Parliament
As it is the supreme authority in the constitution, Parliament makes its
own laws about its procedures and its members’ behaviour. Article 9 of
the Bill of Rights recognised freedom of speech in Parliament and the
Constitutional theories 11
courts accepted that they could not rule on parliamentary procedure
in Pickin v British Rail Board [1974] AC 765. This area of law is known
as parliamentary privilege (see Chapter 2, page 30 for parliamentary
privilege).
EU law
This might once have been regarded as a separate source of
constitutional law for the UK, but the EU (Withdrawal Act) 2018 makes
clear that retained EU law only has force in the UK because an Act of
Parliament allows it to do so and subsequent Acts may alter that law
(see Chapter 9, page 159).

CONSTITUTIONAL THEORIES
You need to know about constitutional theories (Figure 1.1) because
they are the underlying principles behind many court decisions. They
are particularly relevant when we look at judicial review (see Chapter 7).
Sources of
the UK
constitution
EU law
Acts of
Parliament
Case law
The royal
prerogative
Historical
documents
eg Magna
Carta
The law
and
custom of
Parliament
Figure 1.1: Constitutional sources
12 The constitution and conventions
The separation of powers
Simply put, this means that no one person or body should hold all
the powers of government, otherwise there would be a tyranny or
dictatorship. The best-known version of this theory is that of Montesquieu,
who wrote that there were three main functions of government and that
they should be exercised by three separate bodies:
• the legislative or law making
• executive or law applying
• judicial or law enforcing.
The USA constitution is based on Montesquieu’s theory, where under
Article 1 the legislative branch are the elected Houses of Congress,
under Article 2 the executive branch is the separately elected president
and under Article 3 the judicial branch is the Supreme Court, which is
able to overturn unconstitutional legislation.
The UK does not have this system, as the legislature and executive are
mixed. The elected House of Commons and the appointed and hereditary
House of Lords form the legislature, Parliament. The conventions are
that the executive, which is the prime minister and his/her ministers,
must be members of the Commons or Lords and that they must have
a majority in the House of Commons. Yet there is some separation, in
that there are only about 120 government ministers and they are heavily
outnumbered by the rest of the legislature, which hold them to account.
The judiciary are, however, separate and maintain their independence
from Parliament. Parliament makes the law, but judges decide what it
means when they apply it in court cases.
The rule of law
Even the rulers or government of a country must obey the law. In the UK,
a nineteenth-century English writer, AV Dicey, developed an influential
version of this theory. There were three main principles:
• All government actions should be authorised by the law. Government
officials could not interfere with the liberty of a person, unless the law
allowed it. The government should not possess wide, discretionary
powers.
• There should be equality before the law. There should be the
same laws and courts for everyone, including the government. The
government should not have immunities from the law.
• The courts would protect individual liberty. Anyone could apply to
the courts and the judges would uphold liberty against the claims of
government.
Conventions 13
The importance of an independent judiciary can be found in both these
theories and they received some recognition in the Constitutional
Reform Act 2005. Have a look at Practice example 1.3 for an illustration
of this.
Practice example 1.3
The secretary of state for justice wants claimants before employment
tribunals to pay the full cost of their hearing, so that these tribunals
are self-financing. Would this be legal?
On the face of it, yes, if the secretary of state used the correct
legislative procedure to change court fees. However, this would be
contrary to the second rule of law principle. Access to the courts is
a fundamental constitutional principle and a judicial review of this
decision would be successful.
Revision tip
The separation of powers and the rule of law are quite often
confused. The independence of the judges is important in both
theories, but remember that these are two different theories.
CONVENTIONS
Much of the UK constitution is not law at all, but just the established
and accepted way of doing things. For your revision, it is important to
understand what conventions are and how to identify them.
What are conventions?
The nineteenth-century constitutional writer Dicey popularised the
ideas of conventions, understandings and practices. Many of the most
important parts of the constitution are only governed by convention.
There is no law that says that there must be a prime minister, how he
or she should be chosen or the extent of his or her power. Every prime
minister has an inner group of ministers, called the Cabinet, but this is
not required by law either. The Queen retains considerable legal powers,
but these are only exercised on the advice of the prime minister. Legally,
the Queen could refuse the royal assent to a Bill presented by Parliament,
but the convention is that she would never do so. Similarly, the Queen
14 The constitution and conventions
commands the armed forces, but the prime minister or secretary of
state for defence decides upon their deployment.
Key term: convention
Non-legal rules of the constitution.
Identifying conventions?
Nowadays, many conventions have been written down. The Ministerial
Code lays down detailed rules for the conduct of government and
ministers, but it is not an Act of Parliament and so is not legally
enforceable. However, many conventions have not been officially written
down and there can be disagreement about the existence and scope
of some conventions. The constitutional writer, Ivor Jennings, did not
believe that this was a problem and that conventions laid down clear
constitutional rules. The existence of a convention could be determined
by applying a three-stage test.
Namely, are there precedents?
• Has this situation occurred before and what happened?
• Did the people involved think that there was a rule that compelled
them to act that way?
• Is there a reason for this rule, in other words does it fit in with the rest
of the constitution?
This works well for a convention where there is a clearly established
pattern of behaviour, such as the Queen and royal assent, but less well
with ministerial misconduct, where the situations in which a minister
should resign are constantly changing.
Enforcement of conventions
A bigger question is how can conventions be enforced if they are not
law? The courts will not enforce them, as shown with the convention
of Cabinet confidentiality in Attorney General v Jonathan Cape [1976]
QB 752. Dicey thought that conventions would be obeyed because
of the political difficulties that breaking them would cause. It is the
convention to summon Parliament every year and if this did not happen
taxation could not be authorised nor could the keeping of an army.
Perhaps the best explanation of the workings of convention comes
from a Canadian case, Reference re Amendment of the Constitution of
Canada (1982) 125 DLR (3d) 1. Canada has a written constitution, but
it also has conventions. In this case, the court stated that conventions
are like morality and reflect the constitutional values of the period.
Conventions 15
People obey conventions because they think that it is right thing to
do, so enforcement is not usually necessary. If it is, the sanction is
political. A constitutional superior could dismiss the convention breaker.
For example, the prime minister can sack ministers and ultimately the
Queen could require the prime minister to resign. As with morality, the
opinion of others might enforce obedience to the conventional rules.
A misbehaving government minister would face the disapproval of his
colleagues and maybe the rest of Parliament. Public opinion might also
ensure compliance, as ultimately governments must face elections. Have
a look at Practice example 1.4 for an illustration of this.
Practice example 1.4
The prime minister has been recently elected with a large majority
in the House of Commons but has been behaving in an eccentric
manner, which is very unpopular with the public. Can the Queen
dismiss him from office?
Legally yes, because under the royal prerogative the Queen
appoints the prime minister. However, the convention is that while
the prime minister maintains a majority in the House of Commons
they remain in office. If the prime minister lost that majority and yet
refused to resign, the prime minister would break that convention
and, as a last resort, the Queen could use her legal power to dismiss.
Although the courts cannot enforce conventions, because they are not
the law and might even contradict the strict legal position, they certainly
recognise their existence and conventions can influence their judgments.
This can be seen in R (Miller) v Prime Minister [2019] UKSC 41, where
the convention of ministerial accountability to Parliament was accepted
as a vital part of the constitution. If the prime minister could prorogue
(suspend) Parliament there would be no accountability. Therefore, the
court concluded that there was no legal power under the prerogative to
suspend Parliament for over a month.
Exam warning
The constitution consists of both laws and conventions. When you
are asked a question, you will be asked about the constitutional
position. As in Practice example 1.4, conventions may modify the law.
Your answer should be what the convention says.
16 The constitution and conventions
Summary: conventions
WHAT is a convention? They are the non-legal rules of the
constitution.
WHEN are they used? When there is no legal rule, or the
legal rule is out of date.
WHO are they used by? The Queen, government minsters,
members of Parliament and civil
servants.
KEY POINT CHECKLIST
This chapter has covered the following key knowledge points. You can
use these to structure your revision, making sure to recall the key details
for each point, as covered in this chapter.
• Countries have constitutions because there need to be rules about
how that country is governed.
• In a written constitution the constitutional rules are contained in a
document of higher legal status. In an unwritten constitution the
constitutional rules are found in different sources.
• The minimum contents of a constitution would be an organisation
chart of government.
• In a federal constitution power is divided between a central and
regional governments. In a unitary constitution power is concentrated
in the central government.
• The UK constitution can be found in Acts of Parliament, cases and
conventions.
• Constitutional conventions fill the gaps not covered by Acts of
Parliament or cases.
KEY TERMS AND CONCEPTS
• constitution (page 3)
• written or codified constitution (page 4)
• federal constitution (page 6)
• unitary constitution (page 6)
• royal prerogative (page 10)
• conventions (page 14)
SQE1-style questions 17
SQE1-STYLE QUESTIONS
QUESTION 1
The government wants to repeal the Human Rights Act 1998. The
[fictitious] Human Rights (Repeal) Bill has been passed by the Commons
by a large majority. The House of Lords, however, has rejected the Bill,
also by a large majority.
Which of the following best describes the legal position in this case?
A. It is not possible to repeal the Human Rights Act 1998 because that
would breach an international treaty, the European Convention on
Human Rights.
B. The government must obtain royal assent.
C. The government must obtain consent from the House of Lords.
D. The government must pass the Bill through the Commons again.
E. The government must wait a year and then pass the Bill through the
Commons again.
QUESTION 2
The Scottish Parliament votes to reduce the rate of income tax in that
country. The UK government disagrees with this course of action.
Which of the following best describes the course of action the UK
government can take to stop this?
A. Negotiate with the Scottish government.
B. Use the royal prerogative.
C. Nothing, the Scottish Parliament has the power to legislate on this
subject.
D. Pass a UK Act of Parliament.
E. Order the Scottish government not to do this.
QUESTION 3
The Lord Chancellor is obligated by law to uphold the independence
of the judiciary. A judge has been much criticised in the media for a
controversial decision he has made. The Lord Chief Justice (LCJ) wants
the Lord Chancellor to defend the judge, but the Lord Chancellor
declines.
18 The constitution and conventions
What options are available to the Lord Chancellor?
A. The LCJ may seek a judicial review to compel the Lord Chancellor to
act.
B. The LCJ may only seek to criticise the Lord Chancellor.
C. The LCJ can do nothing, as the Lord Chancellor is his constitutional
superior.
D. The LCJ can do nothing, as the Lord Chancellor decides the meaning
of an Act.
E. The LCJ can do nothing, as the obligation owed by the Lord
Chancellor is too vague to enforce.
QUESTION 4
A client who has been accused of speeding approaches a solicitor for
legal advice. He is to be tried in the magistrates’ court for this alleged
offence, but he claims that he has a constitutional right under Magna
Carta to trial by jury.
What advice should the solicitor give him?
A. Magna Carta has been repealed, so trial by jury is no longer guaranteed.
B. Magna Carta is a document with no legal effect.
C. Speeding is governed by road traffic legislation.
D. All constitutional rights are subject to exceptions.
E. The UK does not have a written constitution guaranteeing rights.
QUESTION 5
The Supreme Court has decided that a certain category of self-employed
people are not liable to pay income tax. The government is concerned
because there are thousands of people in this category and there will be
a major loss of tax revenue.
What is the best course of action that the government could take?
A. Appeal the decision to the Court of Justice of the EU.
B. Appeal the decision to the European Court of Human Rights.
C. Order the Justices of the Supreme Court to change their decision.
D. Use Parliament to pass an Act amending the tax law.
E. Accept the decision of the Supreme Court.
Answers to questions 19
ANSWERS TO QUESTIONS
Answers to ‘What do you know already?’ questions at the start of the
chapter
1) Every country, even dictatorships, need some rules on how they are
governed.
2) False. The constitution of a country is laid down in a document that
has higher legal status than the ordinary law. An ordinary Act of
Parliament could not do this.
3) The reasons are historical. The UK has not had a revolution or gained
independence in modern times.
4) In a federal state, government powers are divided between central
and regional government. In a unitary state, government powers are
concentrated in central government.
5) Yes. Most of the constitution is contained in Acts of Parliament.
6) The correct answer was (b). The royal prerogative is the legal power
of the Queen, but by convention it is exercised, on her behalf, by Her
Majesty’s government. The Queen has immunity from the law, but
not the rest of her family.
7) The correct answer was (b). Conventions are non-legal customs
and practices, under which a country is governed. Convention is
another name for an international treaty, but that is not the same as
a constitutional convention.
Answers to end-of-chapter SQE1-style questions
Question 1:
The correct answer was E. If the House of Lords disagrees with the
House of Commons, this is the procedure required by the Parliament
Acts 1911 and 1949. All Acts of Parliament may be repealed, even
important constitutional Acts.
Question 2:
The correct answer was D. Although the Scottish Parliament has the
power to change the income tax rate under the Scotland Act 2012,
the UK Parliament has sovereignty and can overrule it.
Question 3:
The correct answer was B. This is because the guarantee of judicial
independence is not specific enough to be enforced in the courts.
But it does lay down a principle that could be used as a basis of
criticism.
20 The constitution and conventions
Question 4:
The correct answer was C. This is because although Magna Carta
is an Act of Parliament, all Acts of Parliament can be repealed or
amended by later Acts of Parliament.
Question 5:
The correct answer was D. This is because Parliament has
sovereignty and can change any law it wants, including decisions by
the highest court.
KEY CASES, RULES, STATUTES AND INSTRUMENTS
The SQE1 Assessment Specification does not require you to remember
the names of these two cases and the statute, but the principles
contained in them are important:
• R (Miller) v Secretary of State for Exiting the European Union [2017]
UKSC 5.
• R (Miller) v Prime Minister [2019] UKSC 41.
• Constitutional Reform Act 2005.

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