Solicitors Qualifying Examination (SQE) Public Law and Legal System (FLK1) Syllabus

What is meant by 'illegality' as a ground of judicial review?

The decision-maker must understand correctly the law regulating its decision-making power and give effect to it — includes acting ultra vires, errors of law, improper purpose, irrelevant/relevant considerations, fettering discretion, and unlawful delegation.

Define Wednesbury unreasonableness (irrationality).

From Associated Provincial Picture Houses v Wednesbury Corporation (1948): a decision so unreasonable that no reasonable authority could ever have come to it — 'so outrageous in its defiance of logic or accepted moral standards' (GCHQ).

What are the two limbs of procedural impropriety in judicial review?

(1) Failure to observe statutory procedural requirements; and (2) breach of the common law rules of natural justice / procedural fairness (the right to a fair hearing and the rule against bias).

State the two rules of natural justice.

Audi alteram partem (the right to a fair hearing — hear the other side) and nemo iudex in causa sua (the rule against bias — no one may be a judge in their own cause).

What test for apparent bias was set in Porter v Magill (2002)?

Whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.

What is automatic disqualification for bias, illustrated by R v Bow Street Magistrate, ex p Pinochet (No 2)?

A decision-maker is automatically disqualified where they have a direct pecuniary interest, or (per Pinochet) a non-pecuniary interest such as promoting a cause they are closely connected to (Lord Hoffmann and Amnesty International).

What is the doctrine of legitimate expectation in judicial review?

Where a public body, by a clear and unambiguous representation or established practice, leads a person to expect a benefit or procedure, the courts may protect that expectation (procedurally or, exceptionally, substantively — R v North and East Devon HA, ex p Coughlan).

What is the proper procedure for bringing a judicial review claim?

A claim under the Civil Procedure Rules Part 54 in the Administrative Court (King's Bench Division of the High Court), requiring permission (leave) to proceed, with mandatory pre-action protocol steps.

What is the time limit for bringing a judicial review claim?

Promptly and in any event within 3 months of the grounds first arising (CPR 54.5). Note: planning challenges are 6 weeks and procurement challenges 30 days. The court may refuse for delay even within 3 months.

What must a claimant show to have standing (locus standi) for judicial review?

A 'sufficient interest' in the matter to which the claim relates (s 31(3) Senior Courts Act 1981), assessed by the court (IRC v National Federation of Self-Employed).

Name the prerogative (now statutory-titled) remedies available in judicial review.

Quashing order (formerly certiorari), prohibiting order (prohibition), and mandatory order (mandamus). Plus the private law remedies of declaration, injunction, and (rarely) damages.

Are remedies in judicial review discretionary or as of right?

They are discretionary — the court may refuse a remedy even where grounds are made out (e.g. for delay, lack of standing, or where it would make no difference). Under s 31(2A) SCA 1981 relief must usually be refused if the outcome would not have been substantially different.

What is an 'ouster clause' and how do courts treat it?

A statutory provision attempting to exclude or limit judicial review. Courts construe them very narrowly; in Anisminic v Foreign Compensation Commission (1969) a clause that a 'determination shall not be questioned' did not protect a nullity (a decision affected by an error of law).

What did Anisminic (1969) establish about errors of law and jurisdiction?

It effectively abolished the distinction between jurisdictional and non-jurisdictional errors of law — any error of law renders a decision a nullity (ultra vires), so an ouster clause protecting a 'determination' does not protect a void decision.

What is the supervisory (as opposed to appellate) nature of judicial review?

Judicial review reviews the legality, rationality, and procedural propriety of how a decision was made — not the merits. The court does not substitute its own decision for that of the public body; it controls the process, not the outcome.

What is the distinction between a void and a voidable decision in administrative law?

A void decision is a nullity from the outset (no legal effect, e.g. ultra vires); a voidable decision is valid until set aside. Modern law largely treats unlawful decisions as void, but the practical effect depends on a remedy being granted.

What is the primary purpose of the Human Rights Act 1998?

To 'give further effect' in domestic law to the rights and freedoms guaranteed under the European Convention on Human Rights (ECHR), so they can be enforced in UK courts.

What does section 2 of the Human Rights Act 1998 require of courts?

Courts must 'take into account' relevant Strasbourg jurisprudence (judgments, decisions, opinions of the ECtHR) when determining a Convention rights question — but they are not strictly bound by it.

What is the interpretive obligation under section 3 of the HRA 1998?

So far as it is possible to do so, primary and subordinate legislation must be read and given effect in a way compatible with Convention rights (Ghaidan v Godin-Mendoza — courts may read words in or out, but not contrary to a fundamental feature of the legislation).

What is a declaration of incompatibility under section 4 of the HRA 1998?

Where a court cannot interpret legislation compatibly under s 3, higher courts may declare the provision incompatible with a Convention right. It does NOT invalidate or disapply the legislation; it signals to Parliament to consider amendment.

What does section 6 of the HRA 1998 make unlawful?

It is unlawful for a 'public authority' to act in a way incompatible with a Convention right, unless required to do so by primary legislation (s 6(2)). Courts and tribunals are public authorities; Parliament is excluded.

What does section 7 of the HRA 1998 provide regarding who may bring a claim?

A person who is (or would be) a 'victim' of an unlawful act by a public authority may bring proceedings or rely on the right. The 'victim' test is narrower than the 'sufficient interest' test in ordinary judicial review.

What remedies can a court grant under section 8 of the HRA 1998?

Any relief or remedy within its powers that it considers just and appropriate, including damages — but damages only if necessary to afford 'just satisfaction', taking account of ECtHR principles under Article 41.

Classify Convention rights into absolute, limited, and qualified, with an example of each.

Absolute (no derogation/balance, e.g. Art 3 prohibition of torture); limited (subject to express exceptions, e.g. Art 5 right to liberty); qualified (may be interfered with if legitimate aim, prescribed by law, and necessary/proportionate, e.g. Arts 8–11).

What does Article 2 ECHR protect and what are its two duties?

The right to life. It imposes a negative duty (not to take life unlawfully) and a positive duty (to protect life, including operational measures where there is a real and immediate risk — Osman v UK).

What does Article 6 ECHR guarantee?

The right to a fair trial — a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, including (in criminal cases) the presumption of innocence and minimum defence rights.

State the structured test for a justified interference with a qualified right (e.g. Article 8).

(1) Is the right engaged? (2) Is there an interference? (3) Is it 'in accordance with / prescribed by law'? (4) Does it pursue a legitimate aim? (5) Is it 'necessary in a democratic society' (proportionate)?

What are the four limbs of the proportionality test (Bank Mellat v HM Treasury (No 2))?

(1) Is the objective sufficiently important to justify limiting the right? (2) Is the measure rationally connected to the objective? (3) Could a less intrusive measure have been used? (4) Does a fair balance strike between individual rights and community interests?

What is the 'margin of appreciation' in ECHR law?

The latitude the European Court of Human Rights affords to national authorities in how they secure Convention rights, reflecting that domestic bodies are better placed to assess local needs. It is a Strasbourg doctrine, not strictly a domestic one (domestically: 'discretionary area of judgment').

How is the European Court of Human Rights (Strasbourg) reached and what is its enforcement power?

An applicant must first exhaust all effective domestic remedies (Art 35) and apply within (currently) 4 months. The Court delivers binding judgments; states are obliged under Art 46 to abide by them, with execution supervised by the Committee of Ministers, though the Court cannot strike down national law.

What is the difference between the European Court of Human Rights and the Court of Justice of the European Union?

The ECtHR (Strasbourg) enforces the ECHR for the 46 Council of Europe states; the CJEU (Luxembourg) is the EU's court. They are entirely separate institutions; the UK remains in the Council of Europe/ECHR after leaving the EU.

Outline the structure of the senior courts in England and Wales (civil), from lowest to highest.

County Court / High Court (three divisions: King's Bench, Chancery, Family) → Court of Appeal (Civil Division) → Supreme Court. The Supreme Court replaced the Appellate Committee of the House of Lords in 2009.

Outline the criminal court structure in England and Wales from first instance upwards.

Magistrates' Court (summary/either-way) and Crown Court (indictable/either-way) at first instance → appeals to the Crown Court or by case stated to the High Court (KBD Divisional Court) → Court of Appeal (Criminal Division) → Supreme Court.

What is the doctrine of judicial precedent (stare decisis) and which courts bind which?

Lower courts are bound by the ratio decidendi of higher courts. The Supreme Court binds all below and may depart from its own decisions (Practice Statement 1966); the Court of Appeal binds itself (subject to Young v Bristol Aeroplane exceptions).

Distinguish ratio decidendi from obiter dicta.

Ratio decidendi is the legal reasoning essential to the decision and is binding; obiter dicta are statements 'by the way' not necessary to the decision and are only persuasive.

What are the three traditional rules of statutory interpretation?

The literal rule (ordinary, plain meaning of words), the golden rule (modify the literal meaning to avoid absurdity), and the mischief rule (Heydon's Case — interpret to suppress the mischief the Act aimed to remedy).

What is the 'purposive approach' to statutory interpretation?

Interpreting a statute to give effect to its underlying purpose or object, looking beyond the literal words. It is the dominant modern approach, reinforced by EU-derived law and s 3 HRA, and by Pepper v Hart use of Hansard.

What did Pepper v Hart (1993) permit regarding statutory interpretation?

Courts may refer to Hansard (parliamentary debates) as an aid to interpretation where the legislation is ambiguous or obscure, the material consists of statements by a minister/promoter, and those statements are clear.

Name three internal (intrinsic) and three external (extrinsic) aids to statutory interpretation.

Intrinsic: long/short title, preamble, headings, marginal notes, definition/interpretation sections, schedules. Extrinsic: dictionaries, the Interpretation Act 1978, Hansard (per Pepper v Hart), Law Commission reports, prior case law, and international treaties.

List three rules of language used in statutory interpretation.

Ejusdem generis (general words following a list take their meaning from the genus); expressio unius est exclusio alterius (expressing one thing excludes others not mentioned); noscitur a sociis (a word is known by the company it keeps).

What is the hierarchy and primacy of UK legal sources after the literal text?

Acts of Parliament (primary legislation) are supreme; delegated/secondary legislation (e.g. statutory instruments) must be intra vires the parent Act and can be struck down by courts; common law fills gaps but yields to statute. Statute overrides conflicting common law.

What is delegated (secondary) legislation and how is it controlled?

Law made by a body (e.g. a minister) under authority delegated by a parent Act — e.g. statutory instruments, byelaws, Orders in Council. Controlled by Parliament (affirmative/negative resolution procedures, scrutiny committees) and by courts via judicial review for ultra vires.

After Brexit, what is the status of retained/assimilated EU law in the UK?

EU law ceased to have supremacy as a living source; the European Union (Withdrawal) Act 2018 converted EU law into 'retained EU law', renamed 'assimilated law' from the end of 2023 by the Retained EU Law (Revocation and Reform) Act 2023, with the principle of supremacy of EU law abolished.