You are 140 questions into the FLK1 paper. A local authority has refused a street trading licence to a woman who has traded on the same pitch for eleven years. The committee never told her about the complaint against her. One of the councillors on the panel is the brother of a rival trader. She wants the decision overturned. Four options sit in front of you, all of them plausible, and the clock is not slowing down.
This is what Constitutional and Administrative Law looks like on the day. Not an essay on Dicey. A short factual problem where you must spot the ground, spot the remedy, and reject three answers that are almost right. Below is how we teach candidates to attack it.
Before the grounds: is judicial review even available in this SQE1 FLK1 question?
Candidates lose easy marks by jumping straight to Wednesbury. The examiner often hides the point earlier in the chain.
Amenability. Judicial review lies against public bodies exercising public functions. The source of the power matters, but so does its nature — R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] shows that a body with no statutory or prerogative underpinning can still be reviewable where it performs a public function and would be underpinned by statute if it did not exist. Contrast a purely contractual or domestic dispute: a private club expelling a member is a contract problem, not a public law one.
Standing. Section 31(3) of the Senior Courts Act 1981 requires a "sufficient interest" in the matter. The courts read this generously, and pressure groups have succeeded where the issue is important and the claimant is well placed to argue it. But if the claim is brought under the Human Rights Act 1998, the test tightens: section 7 requires the claimant to be a victim. A campaign group with no personal stake fails the victim test even though it would pass the sufficient interest test. That contrast is a favourite distractor.
Time limits. Under CPR 54.5 the claim form must be filed promptly and in any event not later than three months after the grounds first arose. Promptness matters: a claim filed in month three can still be too late. Watch the shorter specialist limits — six weeks for most planning decisions, thirty days in procurement claims.
Alternative remedies. Where a statutory appeal or an ombudsman route exists, judicial review is a remedy of last resort and permission is usually refused. If the fact pattern mentions an unused right of appeal, that is rarely decoration.
Exam habit worth building: for every administrative law question, run the same four-second checklist — public body, sufficient interest (or victim), in time, no adequate alternative. Only then look at the grounds.
The GCHQ grounds: illegality, irrationality, procedural impropriety
Lord Diplock's classification in Council of Civil Service Unions v Minister for the Civil Service [1985] still frames the syllabus. Learn the sub-heads, because SBA questions test the sub-head, not the label.
Illegality covers everything from a simple error of law to a misuse of discretion. Anisminic Ltd v Foreign Compensation Commission [1969] established that an error of law takes a body outside its jurisdiction. Padfield v Minister of Agriculture, Fisheries and Food [1968] deals with improper purpose: a discretion must be used to promote the policy and objects of the Act. Then there are the four recurring failures — taking irrelevant considerations into account, ignoring relevant ones, unlawfully delegating a decision (subject to the Carltona principle for ministers acting through officials), and fettering discretion by applying a rigid policy without listening to the individual case.
If a question says a licensing officer "applies the council's blanket policy without exception", that is fettering, not irrationality. Choose precisely.
Irrationality is the narrow Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] standard: a decision so unreasonable that no reasonable authority could ever have come to it. The threshold is high, and the exam rewards candidates who resist reaching for it. Where fundamental rights are engaged, the courts apply more anxious scrutiny.
Procedural impropriety splits into breach of a statutory procedure and breach of common law natural justice. The right to be heard was restored to modern life in Ridge v Baldwin [1964]. On bias, distinguish automatic disqualification where the decision-maker has a relevant interest — see R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] — from apparent bias, tested by asking whether a fair-minded and informed observer would conclude there was a real possibility of bias (Porter v Magill [2002]). Note that the observer test is objective; the councillor's honest belief in his own impartiality is irrelevant.
Our street trader has two clean grounds: she was not told of the complaint, and the panel included a relative of a competitor. Both sit under procedural impropriety. That is the answer the examiner wants — not "unreasonable".
Legitimate expectation, the ground candidates under-use
Where a public body makes a clear, unambiguous promise, or has an established practice, a claimant may have a procedural expectation (to be consulted before change) or, more rarely, a substantive expectation (to receive the benefit itself). R v North and East Devon Health Authority, ex parte Coughlan [2001] is the leading authority on the substantive variety. Eleven years of renewals plus an assurance from an officer is exactly the sort of fact pattern that turns on this ground.
Human rights in FLK1: section 6, proportionality and declarations
The Human Rights Act 1998 sits inside the Constitutional and Administrative Law syllabus and appears constantly. Fix the architecture:
- Section 2 — courts must take Strasbourg jurisprudence into account; they are not bound by it.
- Section 3 — legislation must be read compatibly so far as it is possible to do so.
- Section 4 — if compatible reading is impossible, the higher courts may make a declaration of incompatibility. It does not invalidate the statute and does not bind the parties. This is the single most commonly mis-selected option in the whole topic.
- Section 6 — it is unlawful for a public authority to act incompatibly with Convention rights, subject to the defence where primary legislation compels the act.
- Sections 7 and 8 — victim standing, one-year time limit for a free-standing HRA claim, and damages only where necessary to afford just satisfaction.
For qualified rights such as Articles 8, 9, 10 and 11, work the structure: is the right engaged, is there an interference, is it prescribed by law, does it pursue a legitimate aim, and is it necessary in a democratic society? The proportionality analysis in Bank Mellat v Her Majesty's Treasury (No 2) [2013] gives you the four questions — legitimate aim, rational connection, no less intrusive measure, and a fair balance. Proportionality is more searching than Wednesbury. If an option says the two tests are the same, discard it.
Remedies: what the court can order, and why it might refuse
The prerogative remedies are the quashing order (setting the decision aside), the prohibiting order (stopping unlawful future action) and the mandatory order (compelling performance of a duty). Add declarations and injunctions. Damages are not available for the mere fact of an unlawful public law decision — there must be a recognised private law cause of action or an HRA claim.
Two refinements matter for SQE1. Quashing usually sends the matter back to be decided lawfully; it does not hand the claimant the licence. And under the Judicial Review and Courts Act 2022 the court may make a quashing order that is suspended, or that has prospective effect only.
All relief is discretionary. Delay, the claimant's own conduct, and lack of practical benefit all bite. Section 31(2A) of the Senior Courts Act 1981 requires the court to refuse relief where it appears highly likely that the outcome for the applicant would not have been substantially different had the conduct complained of not occurred, unless there is an exceptional public interest reason. Expect at least one question where the breach is obvious but the remedy is refused.
EU law after Brexit: assimilated law for SQE1 candidates
This is the corner of FLK1 that candidates most often revise from out-of-date notes. The framework moved.
The European Union (Withdrawal) Act 2018 preserved a body of EU-derived law in domestic law after exit. The Retained EU Law (Revocation and Reform) Act 2023 then reshaped it: with effect from the start of 2024, what was called "retained EU law" is now known as assimilated law, the principle of supremacy of EU law and the EU general principles no longer apply to domestic law for the period after that date, and certain directly effective rights preserved by the 2018 Act were repealed. The rules on when the higher courts may depart from assimilated EU case law were also widened, with a reference mechanism allowing lower courts to send points upwards.
What should you actually be able to do? Explain what the historic doctrines of supremacy and direct effect meant while the United Kingdom was a member; identify that domestic legislation now takes priority over assimilated law; and recognise that Court of Justice rulings are no longer binding, although a court may have regard to them where relevant. Keep the vocabulary current — an option that talks about EU law "prevailing" over an Act of Parliament today is wrong. Where the detail is genuinely technical, the safe position in the exam is the general one stated in the latest SRA specification.
A revision drill you can run this week
Reading this topic passively is a trap, because everything sounds familiar and nothing sticks. Try this instead. Write out ten one-line fact patterns — a minister acting for a purpose outside the Act, a panel that refuses to hear the affected person, a rigid policy, a promise broken without consultation, a decision so extreme no reasonable body could reach it, and so on. Shuffle them. Each morning, label the ground and name one authority in under fifteen seconds. When that is automatic, add a second layer: what remedy, and would section 31(2A) or delay defeat it?
Then do the same for the Human Rights Act, with the section number attached to each scenario. Section 3 or section 4? Section 6 or section 7? Most candidates know the Act; far fewer can pick the section at speed. That gap is worth several marks across a full paper, and this subject rewards precision more than volume.
How CELE SQE can help
Constitutional and Administrative Law & EU Law is one of the seven FLK1 subjects we cover across our thirteen-subject SQE1 programme, with structured notes, tutor sessions and practice sets that mirror the 180 single best answer questions you will face in each paper. The Long-term Course is £3,720, the Mid-term Course £2,750 and the Short-term Course £1,750, with a single FLK option at half price and a £150 discount for early bookings or entry within three months of your sitting. If you only want drilling, the SQE1 Question Bank runs at £575 per month, and textbooks are £950 for the full set or £570 for a single FLK. Questions? WeChat SQE100, [email protected], or celebar.com — we are happy to talk through what actually fits your timetable.
