Common Professional Examination (CPE) Public Law (Constitutional and Administrative Law) Syllabus

Public Law (Constitutional and Administrative Law) syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Public Law (Constitutional and Administrative Law) in Common Professional Examination (CPE), not a summary of it.

1. 1

   Foundations of the UK Constitution

   4 topics

   • Nature and Sources of the Constitution
     • Uncodified constitution: statute, common law and conventions
   • Constitutional Conventions
     • Identification and enforcement
   • The Rule of Law
     • Dicey and modern conceptions
   • Separation of Powers
2. 2

   Parliamentary Sovereignty

   3 topics

   • The Diceyan Doctrine
     • Legislative supremacy and the enrolled bill rule
   • Limits and Challenges to Sovereignty
     • Implied repeal and constitutional statutes
     • Devolution and the European legacy
   • Devolution
     • Scotland, Wales and Northern Ireland settlements
3. 3

   Institutions of Government

   3 topics

   • The Executive and the Royal Prerogative
     • Prerogative powers and judicial control
   • Parliament and Legislative Process
   • Accountability and Responsible Government
     • Individual and collective ministerial responsibility
4. 4

   Judicial Review

   5 topics

   • Amenability and Standing
     • Public bodies, procedural exclusivity and sufficient interest
   • Grounds: Illegality
     • Ultra vires, improper purpose and relevant considerations
   • Grounds: Irrationality and Proportionality
     • Wednesbury unreasonableness
   • Grounds: Procedural Impropriety
     • Natural justice and legitimate expectation
   • Remedies and Ouster Clauses
5. 5

   Human Rights

   3 topics

   • The Human Rights Act 1998
     • Sections 3, 4 and 6 and declarations of incompatibility
   • Convention Rights
     • Articles 2, 3, 5, 6, 8, 10 and 11
     • Absolute, limited and qualified rights
   • Proportionality and Margin of Appreciation

Public Law (Constitutional and Administrative Law) flashcards for Common Professional Examination (CPE)

20 of 66 cards from the Public Law (Constitutional and Administrative Law) deck — real questions with worked answers.

1. What type of constitution does the United Kingdom have, and what are its three defining characteristics?

   The UK has an uncodified constitution. It is (1) uncodified (not contained in a single written document), (2) flexible (changed by ordinary Act of Parliament, no special amendment procedure), and (3) unitary (power historically centralised in the Westminster Parliament, now partly devolved).

2. List the principal sources of the UK constitution.

   (1) Acts of Parliament (statute); (2) Case law / common law (including judicial decisions and the royal prerogative); (3) Constitutional conventions; (4) Royal prerogative; (5) The law and custom of Parliament; (6) Authoritative academic/legal writings; and (7) International treaties / retained EU law.

3. What is a 'constitutional statute' and what is its key legal consequence (per Thoburn v Sunderland CC)?

   A constitutional statute is one that conditions the legal relationship between citizen and state or enlarges/diminishes fundamental rights (e.g. Magna Carta, Bill of Rights 1689, European Communities Act 1972, Human Rights Act 1998). Per Laws LJ in Thoburn (2002), such statutes cannot be impliedly repealed; repeal requires express words or unavoidably clear intention.

4. Define a constitutional convention.

   A constitutional convention is a non-legal but binding rule of constitutional behaviour, regarded as obligatory by those it concerns. It is a settled practice of political/constitutional actors enforced by political pressure rather than by the courts (e.g. the Monarch grants Royal Assent to Bills passed by Parliament).

5. State Jennings' three-part test for identifying a constitutional convention.

   Sir Ivor Jennings asked: (1) What are the precedents? (2) Did the actors in the precedents believe they were bound by a rule? (3) Is there a (good constitutional) reason for the rule? A single precedent with a good reason can establish a convention.

6. What is the legal status of conventions, and which case confirms they are not legally enforceable?

   Conventions are not laws and are not enforceable by the courts. Confirmed in Attorney-General v Jonathan Cape Ltd (1976) and the Patriation Reference (Re Resolution to Amend the Constitution, Canada, 1981); courts may recognise a convention's existence but will not enforce it.

7. Give three key examples of constitutional conventions in the UK.

   (1) The Monarch acts on the advice of ministers and always grants Royal Assent; (2) Individual and collective ministerial responsibility; (3) The Sewel Convention (Westminster will not normally legislate on devolved matters without the devolved legislature's consent); also the Salisbury Convention (Lords does not block manifesto Bills).

8. What is the Salisbury(-Addison) Convention?

   The House of Lords will not reject at second reading, or wreck, a government Bill that implements a manifesto commitment on which the governing party was elected. It reflects the primacy of the elected Commons.

9. What is the Sewel Convention, and what did the Miller (No 1) case decide about its legal force?

   The Sewel Convention states that Westminster will not normally legislate on devolved matters without the consent of the relevant devolved legislature. In R (Miller) v Secretary of State (No 1) (2017), the Supreme Court held that despite partial statutory recognition (e.g. s.28(8) Scotland Act 1998), it remains a political convention the courts will not enforce.

10. Define the rule of law in its broadest sense.

    The rule of law is the principle that everyone and every body, including the government, is subject to and accountable under the law, and that the law should be applied equally, prospectively, openly and through fair procedures rather than by arbitrary power.

11. State Dicey's three meanings (limbs) of the rule of law.

    (1) No one may be punished except for a distinct breach of law established before ordinary courts (no arbitrary power); (2) Equality before the law: all persons, including officials, are subject to the ordinary law administered by ordinary courts; (3) The constitution (rights) is the result of judicial decisions of ordinary courts (rights protected by common law).

12. Distinguish between 'formal' and 'substantive' conceptions of the rule of law.

    A formal (thin/procedural) conception (e.g. Raz) concerns how law is made and applied: clear, prospective, certain, equally enforced laws, without judging their content. A substantive (thick) conception (e.g. Bingham, Allan) additionally requires the law to protect fundamental human rights and embody justice.

13. Name four of Lord Bingham's eight sub-rules of the rule of law (from 'The Rule of Law').

    Any four of: (1) law must be accessible, clear and predictable; (2) questions of legal right resolved by law not discretion; (3) equality before the law; (4) ministers/officials exercise power in good faith, reasonably, within powers; (5) adequate protection of fundamental human rights; (6) means to resolve civil disputes without prohibitive cost; (7) fair trial/adjudicative procedures; (8) compliance with international law obligations.

14. Which case strongly affirms that access to the courts is a fundamental element of the rule of law?

    R (UNISON) v Lord Chancellor (2017): the Supreme Court held that employment tribunal fees unlawfully impeded access to justice, a constitutional right grounded in the rule of law and common law. Also R v Lord Chancellor, ex p Witham (1998).

15. Define the doctrine of the separation of powers and name its three branches.

    The separation of powers (Montesquieu) holds that state power should be divided among three branches to prevent tyranny: the legislature (makes law), the executive (implements/administers law), and the judiciary (interprets/applies law and resolves disputes). Each should check and balance the others.

16. How is the separation of powers only 'partial' in the UK? Give examples of overlap.

    The UK has fusion rather than strict separation. Overlaps: the executive (government ministers) sits within and is drawn from the legislature; the Monarch is part of all three branches formally; until 2009 the Law Lords sat in the House of Lords. The doctrine operates more as 'checks and balances' than rigid separation.

17. What two key reforms did the Constitutional Reform Act 2005 introduce to strengthen separation of powers?

    (1) It created the UK Supreme Court (operational 2009), removing the highest court from the House of Lords; and (2) it reformed the office of Lord Chancellor (removing the judicial/Speaker roles) and created the Judicial Appointments Commission to safeguard judicial independence.

18. Define parliamentary sovereignty according to Dicey.

    Parliament has the right to make or unmake any law whatever; and no person or body is recognised by the law as having a right to override or set aside an Act of Parliament. It has a positive limb (Parliament can legislate on any subject) and a negative limb (no body, including courts, can override an Act).

19. State the two positive limbs and one negative limb of Diceyan parliamentary sovereignty.

    Positive: (1) Parliament can legislate on any subject matter; (2) Parliament cannot bind its successors (no Parliament can entrench legislation). Negative: (3) No person or body, including the courts, may question the validity of an Act of Parliament.

20. What is the 'enrolled bill rule' and which case established it?

    The enrolled bill rule (Pickin v British Railways Board (1974), following Edinburgh & Dalkeith Railway v Wauchope (1842)) is that once a Bill has passed both Houses and received Royal Assent, the courts cannot inquire into the manner of its passing or its validity; they accept the parliamentary roll as conclusive.

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