SQE1 Legal System

Legal System, Constitutional and EU Law · Parliamentary sovereignty and the Parliament Acts

A government Bill about regional bus subsidies passes the House of Commons but is rejected by the House of Lords. It is not a Money Bill and does not extend the life of Parliament. In the next session the Commons passes an identical Bill again, more than one year after its second reading in the first session, and the Lords again reject it. A client asks whether the Bill can still become law. What is the best advice?

1. No. A Bill cannot become law without the approval of both Houses, and the Lords may reject any Bill indefinitely
2. Yes, but the court may then strike it down as invalid because it was not made with the Lords' consent
3. Yes. Under the Parliament Acts 1911 and 1949 the Bill can be presented for Royal Assent without the Lords' consent, and the resulting Act is a valid Act of Parliament
4. No. The Lords' veto can be overridden only for Money Bills, which are certified by the Speaker
5. Yes, but only after the Lords have been given a further period of 12 months to reconsider it

Show answer and explanation

Answer: C. The House of Lords has only a limited power to block legislation. Under the Parliament Act 1911, as amended by the Parliament Act 1949, a public Bill (other than a Money Bill or a Bill to extend the life of Parliament) that the Commons passes in two successive sessions, with at least one year between the second reading in the first session and the third reading in the second, can be presented for Royal Assent without the Lords' agreement. In R (Jackson) v Attorney General [2005] UKHL 56 the House of Lords held that Acts made this way are valid primary legislation. The Bill here meets the conditions. A candidate who says that both Houses must always agree forgets the Parliament Acts.

Parliament Act 1911, s 2; Parliament Act 1949; R (Jackson) v Attorney General [2005] UKHL 56

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Legal System, Constitutional and EU Law · Implied repeal

Parliament passed the Street Markets Act 2010, which provides that a person holding a council stall licence may trade on any public road without any other permission. In 2024 it passed the Highway Safety Act, which says that no trading is permitted on a public road without a police permit. The Highway Safety Act does not mention the 2010 Act. A stallholder with a council licence is prosecuted for trading without a police permit and argues that the 2010 Act still protects him. Which is the best analysis?

1. The later Act prevails to the extent of the inconsistency, because under the doctrine of implied repeal Parliament cannot bind its successors and the earlier ordinary Act is impliedly repealed
2. The 2010 Act prevails, because an earlier Act can be overridden only by an Act that expressly names it
3. The court must declare the later Act incompatible, because it conflicts with the earlier statutory right
4. The 2010 Act prevails, because it was passed first and creates vested rights that Parliament cannot remove
5. The court may choose which of the two Acts to apply according to which better serves public safety

Show answer and explanation

Answer: A. Parliamentary sovereignty means that Parliament can make or unmake any law and that no Parliament can bind its successors. Where two ordinary Acts conflict, the later one prevails by implied repeal (Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590). In Thoburn v Sunderland City Council [2002] EWHC 195 (Admin), the court said that constitutional statutes are not impliedly repealed and need express words or a specific, unambiguous intention, but a Street Markets Act is an ordinary statute. The stallholder's council licence therefore gives no defence to the later requirement for a police permit. The court cannot ignore the later Act or choose between them.

Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590; Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)

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Legal System, Constitutional and EU Law · Constitutional conventions

A campaign group argues that the UK Government has breached a constitutional convention by introducing a Bill affecting a devolved matter without the consent of the Senedd, contrary to the Sewel convention. It asks you whether it can ask the High Court to stop the Bill. Which is the best advice?

1. The court can enforce the convention by quashing the Bill, because a convention is part of the common law
2. The court can recognise that the convention exists but cannot enforce it, because conventions are political rules and not legally enforceable
3. The court can enforce it by an injunction against the Government, since Parliament has put the convention into statute
4. The court can enforce it because breach of the convention makes the Bill ultra vires and void
5. The court must refuse to hear the matter at all, because it cannot even say whether the convention exists

Show answer and explanation

Answer: B. Constitutional conventions are rules of political practice that the Government and Parliament follow, but they are not enforceable in courts. Courts may acknowledge that a convention exists, but they do not enforce it (Attorney General v Jonathan Cape Ltd [1976] QB 752). In R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 the Supreme Court held that the Sewel convention, although recognised in the Scotland Act 1998, s 28(8) and later Acts, remains a political convention and the courts cannot police it. The same reasoning applies to the Welsh version in the Government of Wales Act 2006, s 107(6). The tempting view, that statutory recognition turns it into a legal rule, is exactly the argument the Supreme Court rejected.

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; Scotland Act 1998, s 28(8); Attorney General v Jonathan Cape Ltd [1976] QB 752; Government of Wales Act 2006, s 107(6)

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Legal System, Constitutional and EU Law · Royal prerogative

The Marine Salvage Act 2015 (a fictional Act) gives the Home Secretary power to grant salvage licences and lists the only grounds on which a licence may be refused. The Home Secretary announces that, under the royal prerogative, she will also refuse licences to anyone who has attended a particular protest, which the statute does not allow. A client who has been refused asks whether the prerogative can be used in this way. What is the best advice?

1. Yes. The prerogative is superior to statute because it comes from the Crown and cannot be limited by Parliament
2. No. Where a statute covers the field, the prerogative power is displaced or limited, and the Crown cannot use it to override the statutory scheme
3. Yes. The courts have no power to review prerogative powers because they are all matters of high policy
4. No, but only if the client first obtains a declaration of incompatibility under the Human Rights Act
5. Yes, but only if the protest was unlawful, in which case the Crown can impose any penalty it chooses

Show answer and explanation

Answer: B. The royal prerogative is the residue of the Crown's historic discretionary powers, now exercised by ministers. Parliament is sovereign and may abolish or regulate any prerogative power. Where a statute deals with the same subject, the prerogative is displaced or cannot be used to contradict it (Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508). Courts also decide whether a prerogative power exists and its extent (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; R (Miller) v Prime Minister [2019] UKSC 41), although some matters, such as the making of treaties, are generally unsuitable for review. The Act regulates salvage licences, so the Home Secretary cannot rely on the prerogative to add a new ground of refusal.

Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; R (Miller) v Prime Minister [2019] UKSC 41

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Legal System, Constitutional and EU Law · Statutory interpretation: the golden rule

A statute makes it an offence to obstruct a police officer 'in the vicinity of a protected site'. Mr Reeve obstructed an officer inside the protected site. His barrister argues that the wording does not cover obstruction inside, so he should be acquitted. The judge accepts that the ordinary meaning of the words is as the barrister says but holds that this would be absurd, and reads the words as including 'in or in the vicinity of'. Which rule of interpretation has the judge applied?

1. The literal rule, because the judge has given the words their ordinary meaning without regard to the result
2. The golden rule, because the judge started from the ordinary meaning but modified it minimally to avoid an absurd result
3. The mischief rule, because the judge has looked at the previous common law and the gap in the law that Parliament meant to fill
4. The ejusdem generis rule, because general words have been confined to things of the same kind as the specific words
5. The purposive approach, because the judge has relied on the explanatory notes and ministerial statements

Show answer and explanation

Answer: B. The literal rule gives words their plain ordinary meaning even if the result is harsh. The golden rule is a modification: the court starts with the ordinary meaning but may depart from it to avoid an absurd or repugnant result. In Adler v George [1964] 2 QB 7, an offence of obstructing an officer 'in the vicinity of' a prohibited place was held to cover obstruction in the place itself, since to hold otherwise would be absurd. The judge here did the same by adding the minimum words. The mischief rule (Heydon's Case (1584) 3 Co Rep 7a) asks what defect in the law the Act was meant to cure. The tempting 'literal rule' answer would have meant an acquittal.

Adler v George [1964] 2 QB 7; Heydon's Case (1584) 3 Co Rep 7a

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Legal System, Constitutional and EU Law · Statutory interpretation: Hansard

Counsel for a client wishes to persuade a court that an ambiguous phrase in a tax statute means 'resident in the UK for the whole year'. Counsel proposes to cite the Treasury minister's statement in Parliament when the Bill was debated, which clearly supports that reading. The other side objects that Hansard cannot be used to interpret statutes. Which of the following best states the position?

1. The court may never refer to Hansard, because Article 9 of the Bill of Rights 1689 forbids any use of parliamentary debates
2. The court may always refer to Hansard and treat any MP's speech as binding on the meaning of the Act
3. The court may consider the statement only if the legislation is ambiguous or obscure or leads to absurdity, the material is a statement by a minister or promoter, and the statement is clear
4. The court may use Hansard only if the other side agrees, because it is evidence that needs consent
5. The court may consider the statement, but only where the Act is clear, to confirm the plain meaning

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Answer: C. Before 1993 courts excluded Hansard as an aid to interpretation. In Pepper v Hart [1993] AC 593 the House of Lords relaxed that rule where (a) the legislation is ambiguous or obscure, or its literal meaning leads to an absurdity, (b) the material relied on consists of statements by a minister or other promoter of the Bill, and (c) the statements relied on are clear. The tax statute is ambiguous, and the Treasury minister's statement is clear, so the conditions seem to be met. Later cases, such as R (Spath Holme Ltd) v Secretary of State [2001] 2 AC 349, caution that the exception is narrow. The court is not bound to follow the statement.

Pepper v Hart [1993] AC 593; Bill of Rights 1689, art 9

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Legal System, Constitutional and EU Law · Statutory interpretation: ejusdem generis

A council's byelaws for its sports stadium, made under a statute, prohibit anyone from bringing into the stadium 'knives, daggers, swords or other weapons'. A spectator is stopped with a small can of pepper spray. The club argues that it is an 'other weapon'. The spectator says that the list is limited to bladed items. Which approach, if applied, supports the spectator?

1. The expressio unius rule, because naming specific items means every other item of the same type is also included
2. The ejusdem generis rule, because general words that follow a list of specific items of one kind are likely to be limited to things of that kind
3. The noscitur a sociis rule, because a word takes its meaning from the other words in the list so it must be broadly read
4. The mischief rule, because the byelaw was designed to cure the general problem of unsafe stadiums
5. The golden rule, because the ordinary meaning of 'weapon' is absurdly wide and must be reduced

Show answer and explanation

Answer: B. Under the ejusdem generis rule, where general words follow a list of specific words of the same kind, the general words are read as limited to items of the same genus (Powell v Kempton Park Racecourse Co [1899] AC 143). Knives, daggers and swords are bladed weapons, so 'other weapons' may be read as limited to bladed weapons, which would exclude pepper spray. The club could argue that the list does not form a clear genus or that the purpose points the other way, and the rule is only an aid, not a binding rule. The expressio unius rule, by contrast, implies that what is not named is excluded. The distinction between those two is a common trap.

Powell v Kempton Park Racecourse Co [1899] AC 143

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Legal System, Constitutional and EU Law · Precedent and professional conduct

You are instructed in a Court of Appeal case by a claimant who wants to argue that an earlier Court of Appeal decision on the same point was wrong. While preparing, you find another, later Court of Appeal decision, on similar facts and decided against your client's argument, which neither opponent nor judge has mentioned. It clearly applies. What should you do?

1. Draw the court's attention to the later decision, since you must bring relevant authorities that are likely to affect the outcome to the court's attention, even when they harm your client
2. Say nothing, because your duty is to your client and it is for the other side to find and cite authorities
3. Say nothing unless the judge asks, because you need only cite authorities that help your client
4. Cite it, but withdraw from the case, since you cannot continue to act for a client whose argument is now doomed
5. Tell the opponent privately about the decision, but not the judge, so that the opponent can decide whether to use it

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Answer: A. A solicitor must draw the court's attention to relevant cases and statutory provisions, or procedural irregularities, of which they are aware and which are likely to have a material effect on the outcome (SRA Code of Conduct for Solicitors, para 2.7). This duty applies to authorities adverse to the client. It stems from the duty to uphold the proper administration of justice (Principle 1). The Court of Appeal is bound by its own previous decisions unless one of the exceptions in Young v Bristol Aeroplane Co Ltd [1944] KB 718 applies: conflicting Court of Appeal decisions, a decision inconsistent with a later Supreme Court decision, or a decision made per incuriam. You must cite the decision and argue that an exception applies.

SRA Code of Conduct for Solicitors, para 2.7; SRA Principles 2019, Principle 1; Young v Bristol Aeroplane Co Ltd [1944] KB 718

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Legal System, Constitutional and EU Law · Precedent: ratio and obiter

In Case A, the Court of Appeal decided that a shop owner was not liable because the customer had been warned of a wet floor. In its judgment, one Lord Justice also said that, had there been no warning, the shop owner would have been liable even to a trespasser. A High Court judge is now hearing Case B, involving a trespasser and no warning, and is asked to follow Case A. How should the judge treat the statement about trespassers?

1. As ratio decidendi, which binds the High Court because it comes from the Court of Appeal
2. As ratio decidendi, which binds only if the other two judges in Case A agreed with it
3. As a decision that the High Court must follow unless it can show that it was reached per incuriam
4. As irrelevant, because comments made in a judgment have no legal weight and may not be cited
5. As obiter dicta, which are persuasive only, so the judge is not bound by it but may follow it

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Answer: E. The ratio decidendi is the legal principle necessary to the decision on the material facts and it binds courts lower in the hierarchy. Obiter dicta are statements that are not necessary to the decision, such as comments on hypothetical facts. They are not binding but can be persuasive, especially from senior judges. In Case A the decision rested on the warning. The statement about trespassers without a warning was hypothetical, so it is obiter. The High Court is bound by Court of Appeal ratio, but here it is free to decide Case B on its own analysis, giving weight to the Lord Justice's view if it finds it persuasive. Treating it as ratio is the tempting error. A well-known example is Denning J's statement on promissory estoppel in Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130, which was obiter.

Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130

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Legal System, Constitutional and EU Law · Precedent and the Supreme Court

In 2026 a claimant in the Court of Appeal argues that a House of Lords decision from 1998, which would defeat her claim, was wrongly decided and has been criticised by academics. She asks the Court of Appeal to decline to follow it. Which statement best describes the position?

1. The Court of Appeal may depart from the decision if it thinks it wrong, because it sits above the High Court
2. The Court of Appeal may depart from it, because the 1998 decision was made before the Human Rights Act took effect
3. The Court of Appeal is bound by decisions of the House of Lords and Supreme Court, and only the Supreme Court may depart from them under the Practice Statement
4. The decision is binding on all courts for ever, since the Supreme Court has no power to overrule House of Lords cases
5. The Court of Appeal must follow it unless a majority of three Lords Justices agree that academics have criticised it

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Answer: C. Under the doctrine of precedent, the Court of Appeal is bound by decisions of the House of Lords and of the Supreme Court. The House of Lords, and now the Supreme Court, may depart from its own earlier decisions under the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, but does so only rarely and where it appears right to do so. The Court of Appeal cannot decline to follow a binding House of Lords decision because it thinks it wrong (Broome v Cassell & Co Ltd [1972] AC 1027). The claimant would have to seek permission to appeal to the Supreme Court, asking it to depart from the 1998 decision. Academic criticism is persuasive but not a legal exception.

Practice Statement (Judicial Precedent) [1966] 1 WLR 1234; Broome v Cassell & Co Ltd [1972] AC 1027

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Legal System, Constitutional and EU Law · Tribunals and appeals

Mr Zielinski lost an appeal in the First-tier Tribunal against a decision refusing him a disability benefit. He thinks the tribunal judge misunderstood the legal test for eligibility. He wants to know where he can take the matter next. What is the best advice?

1. He may apply for permission to appeal to the Upper Tribunal, but only on a point of law, and a further appeal to the Court of Appeal needs permission and a point of law
2. He may appeal to the High Court on the facts and the law, because tribunal decisions are reviewed by the High Court
3. He may appeal to the Upper Tribunal on any ground, including a disagreement with the tribunal's findings of fact
4. He may appeal directly to the Supreme Court, because tribunal decisions on benefits are of public importance
5. He has no further appeal, because the First-tier Tribunal is the final tribunal for benefit decisions

Show answer and explanation

Answer: A. The tribunals system was reorganised by the Tribunals, Courts and Enforcement Act 2007 into the First-tier Tribunal (FTT) and the Upper Tribunal (UT), arranged in chambers. A party may appeal from the FTT to the UT on a point of law, with permission (s 11). A further appeal lies from the UT to the Court of Appeal on a point of law, with permission and subject to the second appeals test (s 13). Mr Zielinski's complaint about the legal test is a point of law, so he qualifies. He could not use the appeal merely to challenge findings of fact. The tempting answer that he can go to the High Court ignores the statutory appeal structure.

Tribunals, Courts and Enforcement Act 2007, ss 11 and 13

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Legal System, Constitutional and EU Law · Criminal courts: appeals from magistrates

Ms Ashby was convicted by magistrates of a regulatory offence after a trial in which she pleaded not guilty. She believes the magistrates misread the statute and also wrongly disbelieved her witness. Her solicitor explains the options. Which statement correctly distinguishes them?

1. An appeal by case stated can rely on both the facts and the law, while an appeal to the Crown Court is limited to law
2. Both routes are limited to errors of law, because appellate courts never review facts found by magistrates
3. An appeal to the Crown Court can be brought only against sentence, not against conviction
4. An appeal lies only to the Court of Appeal, Criminal Division, which hears all appeals from magistrates
5. An appeal to the Crown Court is a rehearing and can cover facts and law, while an appeal by case stated to the High Court is limited to a point of law or excess of jurisdiction

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Answer: E. A defendant convicted in the magistrates' court after a not guilty plea may appeal to the Crown Court against conviction and sentence (Magistrates' Courts Act 1980, s 108). The Crown Court appeal is a rehearing, so facts and law can both be argued. Alternatively, a party may ask the magistrates to state a case for the opinion of the High Court (Divisional Court of the King's Bench Division) on the ground that the decision was wrong in law or in excess of jurisdiction (s 111). Case stated does not allow a challenge to findings of fact unless they were ones no reasonable bench could reach. Ms Ashby's complaint about the witness is best raised in the Crown Court.

Magistrates' Courts Act 1980, ss 108 and 111

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Legal System, Constitutional and EU Law · Delegated legislation

An Act authorises a minister to make regulations setting food labelling standards, but says that before making them the minister 'shall consult such organisations as appear to be representative of the interests concerned'. The minister makes regulations without consulting any trade bodies. A small manufacturer, who is prosecuted under the regulations, wants to challenge them. What is the best advice?

1. The regulations are valid, because they were made by a minister with the authority of Parliament
2. The regulations cannot be questioned by a court, because they have the same status as an Act of Parliament
3. The regulations are void automatically, because every failure of procedure makes delegated legislation invalid
4. The manufacturer can only ask Parliament to annul the regulations, since only Parliament may review them
5. The regulations can be challenged as ultra vires for procedural failure, and a court may hold them invalid if the consultation requirement was mandatory

Show answer and explanation

Answer: E. Delegated (secondary) legislation is made under powers given by an enabling Act. Unlike primary legislation, courts can review it. It may be invalid if it is substantively ultra vires (outside the power) or procedurally ultra vires (made without following required procedures). In Aylesbury Mushrooms Ltd, Re [1972] 1 WLR 190 a failure to consult a body that should have been consulted led to the instrument being held invalid as to those entitled to be consulted, because the requirement was mandatory. The court examines whether the requirement is mandatory or directory. The manufacturer may raise the point by judicial review or as a defence in the prosecution (Boddington v British Transport Police [1999] 2 AC 143). Regulations are not immune because Parliament authorised the minister.

Aylesbury Mushrooms Ltd, Re [1972] 1 WLR 190; Boddington v British Transport Police [1999] 2 AC 143

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Legal System, Constitutional and EU Law · Rule of law

Officers from a regulator enter business premises and take documents without a warrant. They have no statutory power to do so, and the owner has not consented. The regulator says it acted in the public interest. The owner asks whether the officers' conduct was lawful. Which principle best supports the owner's argument?

1. Parliamentary sovereignty, because only Parliament may decide whether regulators may enter premises, so the entry is automatically unlawful
2. The doctrine of legitimate expectation, because the owner expected to be told about the search in advance
3. The separation of powers, because only a court can ever seize documents, whatever the statute provides
4. Under the rule of law, state officials may act only with legal authority, so without a power in statute or common law their entry and seizure are unlawful, as in Entick v Carrington
5. Proportionality under the Human Rights Act, because the search interfered with a right in Article 8

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Answer: D. A core element of the rule of law is that the executive may act only within powers conferred by law. In Entick v Carrington (1765) 19 St Tr 1029 the court held that officers who broke into a house under a secretary of state's warrant were liable in trespass because no statute or common law rule authorised the warrant. 'Public interest' alone is not a source of power. The regulator here identifies no statutory power, so its entry and seizure are unlawful and the owner may seek remedies in trespass or judicial review. Human rights arguments (Article 8 and Protocol 1, Article 1) add to the case but are not the main answer.

Entick v Carrington (1765) 19 St Tr 1029

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Legal System, Constitutional and EU Law · Judicial independence: professional conduct

Your client, Mr Brandt, is in a dispute pending in the High Court before Mr Justice Hale. A partner at your firm is a close friend of Mrs Justice Rowe, a judge of the same court, and Mr Brandt asks whether she could 'have a quiet word' with Hale J about the case. The partner says it would be harmless since Rowe J will only offer her view. What is the proper course?

1. Approach Rowe J informally, but make it clear that no pressure is intended so the contact is transparent
2. Approach Rowe J, but only if the other side is told afterwards that the conversation took place
3. Approach Rowe J, because the client has authorised it and a solicitor must act in the client's best interests
4. Decline to approach Rowe J, because trying to influence a judge outside the proper process undermines judicial independence and the administration of justice
5. Approach Hale J directly in writing and without copying the opponent, since it is quicker than an application

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Answer: D. Judges must decide cases independently, and the Lord Chancellor and ministers have a statutory duty to uphold that independence (Constitutional Reform Act 2005, s 3). Solicitors must uphold the constitutional principle of the rule of law and the proper administration of justice (Principle 1) and act in a way that upholds public trust (Principle 2); they must also act with integrity (Principle 5). Asking one judge to speak to another about a pending case seeks to influence the outcome outside the court process. Principle 7, acting in the client's best interests, applies subject to those higher principles. You should decline and explain to Mr Brandt that the issue can only be pursued through proper applications and hearings.

Constitutional Reform Act 2005, s 3; SRA Principles 2019, Principles 1, 2, 5 and 7

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Legal System, Constitutional and EU Law · Judicial review: illegality

A council has a policy of paying home adaptation grants only to people who have lived in the borough for ten years, and a committee has resolved that 'no exceptions will ever be made'. Mrs Dube has lived in the borough for eight years and applies for a grant for a stairlift because of a sudden illness. The officer refuses her without considering her circumstances, citing the policy. What is the strongest ground for judicial review?

1. Irrationality, because a ten-year rule is so unreasonable that no council could ever lawfully adopt it
2. Procedural impropriety, because the council failed to give Mrs Dube a hearing before it made the policy
3. Bias, because the council has a financial interest in the amounts paid out as grants
4. Illegality, because the council has unlawfully fettered its discretion by adopting a rigid policy and refusing to consider individual cases
5. Legitimate expectation, because the council had promised that adaptation grants would be paid in all cases

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Answer: D. The grounds of judicial review (Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) are illegality, irrationality and procedural impropriety. Illegality includes acting beyond power, misdirecting oneself in law, taking account of irrelevant considerations, and unlawfully fettering a discretion. A public body may adopt a general policy, but it must always be prepared to consider an exception if good reasons are put forward (British Oxygen Co Ltd v Board of Trade [1971] AC 610). A resolution that no exception will ever be made, applied without considering Mrs Dube's illness, is a classic fetter. Irrationality is tempting but requires a decision outside the range of reasonable responses.

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; British Oxygen Co Ltd v Board of Trade [1971] AC 610

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Legal System, Constitutional and EU Law · Judicial review: irrationality

After consultation and a lengthy debate, a council decides to close a small community library to save money. Residents disagree strongly and say the decision is wrong because a majority of local people want the library kept open. The council considered all relevant factors and followed a fair process. A resident asks whether the court can overturn the decision for irrationality. What is the best advice?

1. Unlikely. Irrationality requires a decision so unreasonable that no reasonable authority could have made it, and the court does not substitute its view on the merits
2. Likely, because a decision opposed by a majority of residents is automatically irrational
3. Likely, because the court can quash any decision if it would have decided the matter differently
4. Unlikely, because irrationality is available only against Ministers and not against local authorities
5. Likely, because the court can require the council to keep the library open as a mandatory order on the merits

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Answer: A. Judicial review is concerned with the legality of decision-making, not the merits. Irrationality, or Wednesbury unreasonableness, applies to a decision that is so unreasonable that no reasonable authority could ever have come to it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), or which defies logic or accepted moral standards (GCHQ). The threshold is high. Where the council considered relevant factors, consulted, and weighed cost against community need, a choice that many residents dislike is within the range of reasonable decisions. The court would not substitute its own view. A candidate who thinks that popular opposition proves irrationality confuses disagreement with unlawfulness.

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

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Legal System, Constitutional and EU Law · Judicial review: time limit and conduct

Five months ago a regulator refused your client, Greenway Waste Ltd, a permit. Greenway has just instructed you to start a judicial review. It says the delay was because the directors hoped the regulator would change its mind. You read the decision and think the grounds are weak but not hopeless. The director says, 'Just file it and say we only found out last week.' What is the correct course?

1. Advise that the claim must be brought promptly and within three months, so it is probably late and needs an extension, and refuse to put forward a false account of when Greenway knew
2. File the claim form stating that Greenway only found out last week, since the client has authority to decide the facts
3. File the claim form without mentioning dates, since the court will only ask about delay if the regulator raises it
4. Wait until the time limit is extended by agreement with the regulator, which the parties can arrange between themselves
5. Decline to act at all, because any claim brought after three months is automatically barred

Show answer and explanation

Answer: A. A claim for judicial review must be filed promptly and in any event not later than three months after the grounds first arose (CPR r 54.5(1)). The parties cannot extend this by agreement (r 54.5(2)), but the court can grant an extension for good reason. Five months is out of time and 'hoping the regulator would change its mind' is generally a weak explanation. A solicitor must not mislead the court (SRA Code of Conduct for Solicitors, para 1.4) and may advance only assertions that are properly arguable (para 2.4). You should explain these points, the costs risk and the possibility of an extension application, and not give a false account to the court.

CPR r 54.5(1) and (2); SRA Code of Conduct for Solicitors, paras 1.4 and 2.4

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Legal System, Constitutional and EU Law · Judicial review: relief

A local authority withdrew a business grant from Maple Cafe Ltd without giving it an opportunity to comment, which is a clear procedural unfairness. However, the evidence shows that Maple had in fact breached the grant conditions, and any reasonable authority would have withdrawn it anyway. Maple seeks judicial review. What is the likely outcome?

1. Relief is granted as of right, because any procedural unfairness makes the decision void
2. Relief is granted because the court may not consider what the authority would have done had it acted fairly
3. Relief is refused only if the court decides the council's decision was correct on the merits after a full trial
4. Relief is likely to be refused, because the court must refuse it if it is highly likely the outcome would not have been substantially different, unless exceptional public interest reasons apply
5. Relief is refused because judicial review is never available against local authorities in grant matters

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Answer: D. Senior Courts Act 1981, s 31(2A), inserted by the Criminal Justice and Courts Act 2015, provides that the High Court must refuse to grant relief on an application for judicial review if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. Under s 31(2B) the court can disregard this where it considers it appropriate for reasons of exceptional public interest. Maple suffered a clear procedural unfairness, but the facts show that the decision would inevitably have been the same. The court would probably refuse relief, although it might say that the council acted unfairly. Candidates often forget that procedural breaches do not automatically lead to a remedy.

Senior Courts Act 1981, s 31(2A) and (2B)

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Legal System, Constitutional and EU Law · Judicial review: amenability

Mr Clarke was expelled from his local golf club by its committee after a dispute over unpaid fees. The club's rules are a contract between members. He says the decision was unfair and wants to bring a judicial review claim in the Administrative Court. The club is a private members' association and carries out no governmental function. What is the best advice?

1. Judicial review is available, because any decision that affects a person's reputation can be reviewed
2. Judicial review is available, because all clubs are required to act fairly and any unfair expulsion is unlawful
3. Judicial review is unlikely to be available, because the club's power comes from the contract between members and it is not exercising a public function
4. Judicial review is available, because the Human Rights Act 1998 makes every private association a public authority
5. Judicial review is available, but only if the club has more than 100 members and an annual turnover above £1m

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Answer: C. Judicial review is a public law remedy, so the defendant must exercise a public function. The court asks about the source of the body's power and the nature of its function. In R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] QB 815 a non-statutory body was reviewable because it exercised a public regulatory function backed by government. In R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909 the Jockey Club was not, because its power was derived from contract. A golf club's power over its members stems from their contract, so Mr Clarke's remedy lies in private law, for breach of contract or the club's rules.

R v Panel on Take-overs and Mergers, ex p Datafin plc [1987] QB 815; R v Disciplinary Committee of the Jockey Club, ex p Aga Khan [1993] 1 WLR 909

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