You are 140 questions into FLK1. The screen shows a minister who has used prerogative power to ratify a treaty that will change domestic rights, without asking Parliament. Four options. Two of them mention the Case of Proclamations. One mentions statute. One says the courts cannot interfere at all. You have ninety seconds, and suddenly every constitutional case you revised feels like it is describing the same thing.
This is the classic FLK1 trap in Constitutional and Administrative Law. The subject is not difficult because the rules are complex — it is difficult because the rules are principles, and principles do not slot neatly into a single-best-answer question unless you have practised applying them to facts. Let me walk you through how I teach this subject to candidates who have already failed once and cannot afford a second attempt.
Parliamentary sovereignty in SQE1: what examiners actually test
Dicey's orthodox formulation is that Parliament may make or unmake any law, and no body may override an Act of Parliament. In FLK1 that translates into three testable ideas.
The first is that courts cannot strike down primary legislation. They interpret it; they may declare it incompatible with Convention rights; they do not annul it. Candidates lose marks by choosing an option where a judge "quashes" an Act. Quashing orders bite on decisions of public bodies and on secondary legislation, not statutes.
The second is implied repeal and its exception. Where two Acts conflict, the later prevails. But in Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), Laws LJ recognised a class of "constitutional statutes" — the Magna Carta, the Bill of Rights 1689, the Human Rights Act 1998, the devolution statutes — which cannot be impliedly repealed. Parliament must use express words. A question that gives you a vaguely inconsistent later Act and asks whether the HRA has been repealed is testing exactly this.
The third is that sovereignty operates alongside conventions that are politically binding but not legally enforceable. The Sewel convention — that Westminster will not normally legislate on devolved matters without consent — was put into statutory language in section 28(8) of the Scotland Act 1998, yet the Supreme Court in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 held that the courts would not police it. Recognising a convention in statute does not automatically make it justiciable. That distinction appears in FLK1 more often than people expect.
Drill for this week: write out five one-line propositions on sovereignty (no striking down, express repeal for constitutional statutes, conventions not enforceable, Parliament cannot bind successors, Article 9 Bill of Rights 1689 protects proceedings in Parliament). Then find a question for each. If you cannot find one, you have not done enough practice questions.
Royal prerogative: the FLK1 questions that catch people out
The prerogative is residual — the leftover common law powers of the Crown, exercised in practice by ministers. Four authorities carry most of the weight in FLK1.
In the Case of Proclamations (1611) 12 Co Rep 74, the King was held to have no prerogative but that which the law of the land allows. No new prerogatives can be created. If a question invents a fresh "prerogative power to license internet providers", that option is wrong on its face.
Where statute covers the same ground, the prerogative goes into abeyance: Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508. Ministers must use the statutory scheme, with its statutory safeguards. Candidates often pick the answer that says the minister has a "choice" between prerogative and statute. Usually not.
In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case), the House of Lords confirmed that the exercise of prerogative power is in principle reviewable — what matters is subject matter, not source. Some areas remain non-justiciable: the making of treaties, defence deployment, the grant of honours. Others, such as the exercise of powers affecting individuals, are firmly reviewable.
Then the two Miller cases. Miller (No 1) established that ministers could not use the prerogative to trigger a process that would remove rights conferred by statute; an Act was required. R (Miller) v The Prime Minister; Cherry v Advocate General for Scotland [2019] UKSC 41 held the prorogation unlawful because it frustrated, without reasonable justification, Parliament's ability to carry out its constitutional functions. Learn the ratio in one sentence each. Question writers rarely ask "what happened"; they ask "which principle applies to these new facts".
Rule of law and separation of powers: the linking themes
Think of the rule of law as the reason behind the rules you have just learned. Entick v Carrington (1765) 19 State Tr 1029 is the cleanest illustration: state officials searched a home under a warrant from the Secretary of State, and the court found no legal authority for it. Executive action requires a legal basis. Full stop.
Section 1 of the Constitutional Reform Act 2005 expressly preserves the constitutional principle of the rule of law, and the same Act reshaped the office of Lord Chancellor and created the Supreme Court. On separation of powers, remember that the UK model is partial: the executive sits inside the legislature, while judicial independence is protected by security of tenure and by the appointments process.
A v Secretary of State for the Home Department [2004] UKHL 56 — the Belmarsh case — is the best single authority for how these themes meet. Indefinite detention of foreign national suspects under the Anti-terrorism, Crime and Security Act 2001 was held disproportionate and discriminatory. The House of Lords did not quash the statute. It issued a declaration of incompatibility, and Parliament responded. That is the British constitution working exactly as FLK1 expects you to describe it.
Human Rights Act 1998 for FLK1: the section numbers you must know cold
HRA questions are highly mechanical, which makes them a scoring opportunity. Work through the statute in order.
- Section 2 — courts must take into account Strasbourg jurisprudence. Take into account, not follow.
- Section 3 — legislation must be read compatibly "so far as it is possible to do so". Ghaidan v Godin-Mendoza [2004] UKHL 30 shows how far that stretches; R (Anderson) shows where it stops, because the court will not go against a fundamental feature of the statute.
- Section 4 — declaration of incompatibility, available only in the High Court and above. It does not affect the validity of the provision and does not bind the parties.
- Section 6 — unlawful for a public authority to act incompatibly, unless primary legislation compels it. Watch for hybrid bodies exercising functions of a public nature.
- Sections 7 and 8 — the claimant must be a victim (narrower than the judicial review "sufficient interest" test), generally within one year, and damages are awarded only where just and appropriate.
Then classify the right. Article 3 is absolute. Article 5 is limited, with an exhaustive list of permitted detentions. Articles 8 to 11 are qualified: interference must be prescribed by law, pursue a legitimate aim listed in the second paragraph, and be necessary in a democratic society. For proportionality, use the four-stage structure from Bank Mellat v Her Majesty's Treasury (No 2) [2013] UKSC 39 — legitimate aim, rational connection, no less intrusive measure, fair balance. If an answer option skips the "less intrusive means" stage, it is usually the distractor.
EU law after Brexit: assimilated law and what still gets examined
Candidates ask me every cycle whether EU law is still worth revising. It is — the SRA specification still covers the core institutional and supremacy concepts, and questions can be framed historically or in transitional terms.
Know the foundational quartet: supremacy from Costa v ENEL (Case 6/64), direct effect from Van Gend en Loos (Case 26/62), the rule that directives have vertical but not horizontal direct effect (Marshall, Case 152/84), and state liability under Francovich (Cases C-6/90 and C-9/90) with its three conditions — a rule conferring rights on individuals, a sufficiently serious breach, and a causal link. Add the preliminary reference procedure under Article 267 TFEU, and the domestic effect once given by the European Communities Act 1972, illustrated by R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603.
For the current position, the European Union (Withdrawal) Act 2018 preserved a body of EU-derived law in domestic law. The Retained EU Law (Revocation and Reform) Act 2023 then renamed the surviving body assimilated law from the start of 2024 and removed the principle of supremacy of EU law and the general principles as interpretive tools. Practically: EU-derived rules now take effect as ordinary domestic law, and post-exit CJEU decisions do not bind UK courts. Say that in a sentence, and you will handle most questions in this area.
Turning knowledge into marks: a four-step method for the exam
Every FLK1 constitutional question I have seen rewards the same discipline. Identify the actor — Crown, minister, Parliament, devolved legislature, court. Identify the source of power — statute, prerogative, or nothing at all. Ask whether a statute already occupies the field. Then ask what the court can actually do about it, remembering that the answer is never "strike down the Act".
Two habits worth building now: keep a one-page case grid with case name, one-line ratio, and the fact pattern that would trigger it; and after every practice set, write down why the wrong option was tempting. Understanding the trap is worth more than re-reading the notes.
One more thing. Timing in this subject is generous compared with, say, Solicitor Accounts, because the reasoning is short once you know the framework. Bank that saved time and spend it on the questions that genuinely need it. With 180 single best answer questions in each paper and 5 hours 20 minutes on the clock, a fast, confident run through constitutional questions buys breathing room elsewhere.
How CELE SQE can help
If you would like this subject taught with worked question sets rather than lecture slides, our SQE1 courses run as Long-term (£3,720), Mid-term (£2,750) and Short-term (£1,750), with a single-FLK option at half price and £150 off for early bookings or entries made within three months of your sitting. The SQE1 question bank subscription is £575 per month and textbooks are £950 for the full set, or £570 for a single FLK. We have been supporting candidates at CELE SQE since the very first sitting in 2021 — a quick message on WeChat SQE100 or an email to [email protected] is enough to talk through what your timetable really needs.