SQE1 - Solicitors Qualifying Examination Part 1 Constitutional & Administrative Law Questions and Answers — Questions and Answers
Question 1: A local authority, acting under a statutory power to 'regulate and manage public parks', introduces a new byelaw prohibiting any political speeches within all parks in its jurisdiction. A pressure group that regularly holds peaceful rallies in one of the parks wishes to challenge the legality of this byelaw via judicial review. On which of the following grounds is their challenge most likely to succeed?
- Procedural impropriety, because the authority failed to consult the pressure group before enacting the byelaw.
- Illegality, because the byelaw is an unreasonable fetter on the authority's discretion and was made for an improper purpose.
- Irrationality, because no reasonable authority would ever impose a complete ban on political speech.
- Illegality, because the total ban goes beyond the power to 'regulate and manage' and is disproportionate, thus being an unlawful exercise of the statutory power. (Correct answer)
Correct answer: Illegality, because the total ban goes beyond the power to 'regulate and manage' and is disproportionate, thus being an unlawful exercise of the statutory power.
The correct ground is illegality. The statutory power is to 'regulate and manage', which implies a degree of control and organisation, but a blanket ban on all political speeches could be argued to be *ultra vires* (beyond the powers granted). [10] It is not regulating the activity but prohibiting it entirely. This can be framed as an error of law where the authority has misunderstood the scope of its power. The concept of proportionality, particularly relevant in cases involving human rights (such as freedom of expression), would be used to argue that a complete ban is a disproportionate interference and therefore not a lawful exercise of the power to 'regulate'.
Question 2: Which of the following statements provides the most accurate description of the doctrine of Parliamentary Sovereignty in the UK constitution?
- The courts can invalidate an Act of Parliament if it conflicts with fundamental constitutional principles.
- Parliament can legislate on any subject matter, and no other body has the legal authority to override or set aside an Act of Parliament. (Correct answer)
- The Royal Prerogative allows the executive to create laws that take precedence over Acts of Parliament.
- Devolution has transferred ultimate sovereign power to the legislatures in Scotland, Wales, and Northern Ireland.
Correct answer: Parliament can legislate on any subject matter, and no other body has the legal authority to override or set aside an Act of Parliament.
The classic Diceyan definition of Parliamentary Sovereignty holds that Parliament has the right to make or unmake any law, and no person or body can override its legislation. [9, 12, 27] While the courts can interpret statutes and, under the Human Rights Act 1998, issue declarations of incompatibility, they cannot invalidate primary legislation. [12] The Royal Prerogative is subordinate to statute, and devolution does not diminish the ultimate sovereignty of the Westminster Parliament.
Question 3: A senior court issues a declaration of incompatibility under section 4 of the Human Rights Act 1998 regarding a provision in an Act of Parliament. What is the immediate legal effect of this declaration on the statutory provision?
- The provision is automatically nullified and ceases to have legal effect.
- The provision is disapplied in the specific case but remains valid for all future cases.
- The provision remains legally valid and in force unless and until Parliament decides to amend or repeal it. (Correct answer)
- The provision is suspended for a fixed period to allow Parliament to enact remedial legislation.
Correct answer: The provision remains legally valid and in force unless and until Parliament decides to amend or repeal it.
A declaration of incompatibility under section 4 of the Human Rights Act 1998 has no immediate legal effect on the validity of the legislation in question. [4, 14, 29] This mechanism respects the doctrine of Parliamentary Sovereignty. [14, 31] The Act remains law and is enforceable. The declaration serves as a formal notification to Parliament that the provision is incompatible with Convention rights, creating political pressure for amendment, which can be done via a fast-track remedial order under section 10, but Parliament is not legally compelled to act. [4]
Question 4: The Scottish Parliament passes an Act that seeks to regulate the UK's armed forces stationed in Scotland. The regulation of national defence is listed as a reserved matter in the Scotland Act 1998. What is the legal status of the Act of the Scottish Parliament?
- It is valid law within Scotland but is subordinate to any conflicting UK legislation.
- It is not law because it relates to a reserved matter and is therefore outside the legislative competence of the Scottish Parliament. (Correct answer)
- It becomes law only if it is subsequently approved by a resolution of the UK Parliament.
- It is temporarily valid until challenged and struck down by the UK Supreme Court.
Correct answer: It is not law because it relates to a reserved matter and is therefore outside the legislative competence of the Scottish Parliament.
The Scotland Act 1998 grants the Scottish Parliament legislative competence over devolved matters but explicitly lists reserved matters that remain with the UK Parliament. [13, 25, 28] Defence and national security are reserved matters. [13] Any provision of an Act of the Scottish Parliament that is outside its legislative competence, such as legislating on a reserved matter, is 'not law' from the outset (ab initio) under section 29(1) of the Scotland Act 1998. [16]
Question 5: Which of the following is an example of a power exercised under the Royal Prerogative by government ministers?
- Setting the annual rate of corporation tax.
- Creating a new public holiday by statute.
- The deployment of armed forces overseas. (Correct answer)
- Amending the Equality Act 2010 to add a new protected characteristic.
Correct answer: The deployment of armed forces overseas.
The deployment of armed forces is a key executive power derived from the Royal Prerogative, not statute. [2, 17] While there is a constitutional convention that Parliament should be consulted, the legal basis for the power remains the prerogative. Setting tax rates is done via the annual Finance Act (a statute). Creating public holidays and amending primary legislation like the Equality Act 2010 both require new Acts of Parliament.
Question 6: A legal theorist argues that the 'Rule of Law' requires only that laws are clear, publicised in advance, stable, and applied prospectively, without regard to whether the content of those laws is morally just or fair. Which conception of the Rule of Law is being described?
- Substantive
- Procedural
- Political
- Formal (Correct answer)
Correct answer: Formal
This describes the 'formal' conception of the Rule of Law. Formalist theories focus on the form and procedure of law-making and application—such as clarity, publicity, and prospectivity—rather than the substantive content or moral quality of the laws. [23, 24, 30] A substantive conception, by contrast, would incorporate elements of justice and the protection of fundamental rights within the definition of the Rule of Law. [15, 24]
SQE1 - Solicitors Qualifying Examination Part 1 Constitutional & Administrative Law Questions and Answers
A local authority, acting under a statutory power to 'regulate and manage public parks', introduces a new byelaw prohibiting any political speeches within all parks in its jurisdiction.
A pressure group that regularly holds peaceful rallies in one of the parks wishes to challenge the legality of this byelaw via judicial review.
On which of the following grounds is their challenge most likely to succeed?