Constitutional Law and Retained EU Law in SQE1: A Survival Guide

There's a particular kind of candidate who opens the FLK1 syllabus, sees "Constitutional and Administrative Law and EU Law", and quietly files it under the one I did at university, I'll be fine. Two months later they sit a mock, get a judicial review question wrong because they confused illegality with irrationality, and discover that the undergraduate essay muscle is entirely the wrong muscle for a single-best-answer paper.

This subject is not hard. It is fiddly. The SRA tests it the way a supervising partner would test it — can you spot that your client has no standing, that they're three weeks out of time, that the decision-maker fettered its discretion, and that the remedy they want doesn't exist? Essay-style knowledge of Dicey will not answer any of those questions.

Where this subject sits in the SQE1 architecture

SQE1 has two assessments, FLK1 and FLK2. Each is 180 single-best-answer multiple-choice questions, delivered in two sessions of 2 hours 33 minutes on the same day — so around five hours in the chair per paper, before breaks. FLK1 carries seven functioning legal knowledge subjects: Business Law and Practice; Dispute Resolution; Contract; Tort; the Legal System of England and Wales; Constitutional and Administrative Law and EU Law; and Legal Services. FLK2 carries the other six. Thirteen subjects in total across SQE1, and your mark for each paper is aggregated — you do not pass or fail individual subjects.

That aggregation matters more than most people realise. Constitutional and Administrative Law will not, on its own, sink you. But it is one of the cheapest places on the paper to bank marks, because the rules are finite and the fact patterns are formulaic. Compare that with Business Law, where a single question can require you to track a director's duty, a shareholder resolution and a filing deadline simultaneously. Public law questions tend to test one clean issue. Take the free marks.

How many questions come from each subject? The SRA publishes an assessment specification setting out the coverage — read the current version on sqe.sra.org.uk rather than trusting a figure you saw on a forum. The specification also gets refreshed periodically, and it is genuinely worth downloading the live PDF at the start of your revision cycle rather than relying on a summary someone made two intakes ago.

The constitutional core: five ideas that generate most questions

Strip the subject back and the examinable constitutional material clusters around a handful of principles. Each one produces a recognisable question shape.

Parliamentary sovereignty

Parliament can make or unmake any law; no Parliament binds its successors; no court may set aside an Act of Parliament. The interesting SQE questions live in the qualifications — implied repeal, the treatment of so-called constitutional statutes, and what a court can and cannot do when a statute clashes with the European Convention on Human Rights. A court can issue a declaration of incompatibility under section 4 of the Human Rights Act 1998. It cannot strike down the Act. Candidates get that wrong constantly, usually by picking the answer that sounds most satisfying rather than the one that is legally correct.

The rule of law and the separation of powers

Entick v Carrington for the proposition that executive action needs legal authority. M v Home Office for the proposition that ministers are not above the law. These are the sort of authorities the SRA can safely assume you know. You are far more likely to be tested on the practical consequence — a minister acts without statutory power, what is the ground of challenge? — than on the academic debate about formal versus substantive conceptions of the rule of law.

Constitutional conventions

Non-legal rules, politically binding, judicially unenforceable. The examiner's favourite trap is an answer option asserting that a court will enforce a convention. It will not, though it may recognise that one exists. Keep the distinction crisp.

The royal prerogative

Residual executive power, exercisable by ministers, reviewable in principle since the GCHQ case although some exercises remain non-justiciable by subject matter. Where statute covers the same ground, the statute displaces the prerogative. That single rule answers a surprising number of questions.

The institutions

The legislative process, delegated legislation and its scrutiny, the devolution settlements in outline, and the relationship between the executive and Parliament. Devolution tends to be tested lightly but it does appear — know that devolved legislatures are creatures of statute and that their legislation can be challenged on competence grounds, unlike an Act of the Westminster Parliament.

Judicial review: the engine room

If you have limited revision time, spend it here. Judicial review is procedurally structured, which makes it perfect MCQ material, and it overlaps usefully with Dispute Resolution.

The gateway questions

Before grounds, before remedies, four threshold issues:

• Is the decision amenable to review? Public body exercising a public function, or a private body performing a public function. Contractual and employment decisions of public bodies usually are not.
• Standing. Section 31(3) of the Senior Courts Act 1981 — a "sufficient interest" in the matter. Broadly construed, and campaign groups with genuine expertise have succeeded.
• Time. The claim must be brought promptly and in any event within three months of the grounds arising, with shorter periods in specific contexts such as planning and procurement. "Promptly" is the bit candidates forget: three months is a longstop, not an entitlement.
• Alternative remedy. If there is a statutory appeal route, the court will usually expect the claimant to use it. Judicial review is a remedy of last resort.

The grounds

Illegality, irrationality, procedural impropriety — the GCHQ trilogy — plus legitimate expectation, which sits awkwardly across the boundaries and is examined on its own terms.

Under illegality: acting beyond powers, error of law, using a power for an improper purpose, taking into account irrelevant considerations or ignoring relevant ones, unlawful delegation, and fettering discretion by applying a rigid policy without considering the individual case. Fettering is a gift of a question. Any fact pattern containing the words "the council has a blanket policy of refusing" is signalling loudly.

Irrationality is the high threshold — a decision so unreasonable that no reasonable authority could ever have come to it. If an answer option offers irrationality where a cleaner illegality ground is available, the cleaner ground is almost always the better answer. The examiner rewards precision, not the most dramatic label.

Procedural impropriety splits into breach of a statutory procedure and breach of natural justice: the right to a fair hearing, and the rule against bias. For bias, remember the objective test — whether a fair-minded and informed observer would conclude there was a real possibility of bias — and remember that actual financial interest produces automatic disqualification.

The single most valuable habit in public law MCQs is refusing to reach for a ground until you have asked whether the claimant can even get through the door. Half the wrong answers I see are perfectly good analyses of a claim that was three weeks out of time.

Remedies

Quashing order, prohibiting order, mandatory order, declaration, injunction, and damages — but damages only where there is a recognised private law cause of action or a Human Rights Act claim. There is no free-standing right to damages for maladministration. All remedies are discretionary. An MCQ that describes a flawless breach and then offers "the court must quash the decision" is testing exactly that discretion.

A worked example

A district council adopts a policy of refusing all applications for street trading licences in the town centre, in order to reduce litter. A trader who has held a licence for eleven years applies for renewal, is refused in a two-line letter with no opportunity to make representations, and comes to you four months after the refusal. She wants the licence back and compensation for lost trade.

Work it through. Timing first: four months is outside the three-month limit, so the claim is prima facie out of time and you need to consider whether an extension is realistically available — that alone may be the point of the question. Assuming time is not fatal, the grounds are strong: the blanket policy fetters discretion; the absence of any opportunity to make representations breaches natural justice, particularly given an eleven-year licensing history that generates a legitimate expectation of at least being heard. Remedy: a quashing order and, realistically, a mandatory order requiring the application to be reconsidered lawfully — not an order that the licence be granted, because the court will not substitute its own decision. Compensation for lost trade? No. There is no private law cause of action here.

Notice how many discrete testable points sit inside one modest fact pattern. That is why practising these under timed conditions beats re-reading notes. Working through a few hundred tagged judicial review questions in a bank like the Ant Law SQE Question Bank will expose the patterns far faster than a textbook chapter, because you start recognising the signalling language the examiners use.

Retained EU law — and the assimilated law rebrand

This is the part of the syllabus most likely to be revised from an out-of-date source, so be careful what you learn from.

The European Union (Withdrawal) Act 2018 preserved a body of EU-derived law in domestic law at the end of the transition period, so that the statute book did not develop enormous holes overnight. That body was called retained EU law. The Retained EU Law (Revocation and Reform) Act 2023 then did three significant things: it revoked a large tranche of instruments at the end of 2023; it renamed what survived as assimilated law; and it removed the principle of the supremacy of EU law and the general principles of EU law from the domestic legal order.

That last point is the one that changes answers. Supremacy no longer operates as an interpretative or disapplication principle in the way it did before 2024. Domestic legislation takes priority. The pre-exit position — Costa v ENEL, Van Gend en Loos, the disapplication of an Act of Parliament in the Factortame litigation — remains historically important for understanding how the constitution accommodated EU membership, and for understanding why sovereignty debates were framed the way they were. It is no longer a live rule of decision.

For SQE purposes you need the framework, the vocabulary and the direction of travel — not a doctorate. Know what assimilated law is, know that supremacy has gone, know that the courts have a structured power to depart from retained EU case law, and know that the Charter of Fundamental Rights does not form part of domestic law. Then check the current SRA assessment specification, because this is precisely the area where the syllabus wording is most likely to have been updated since whatever revision notes you inherited from a friend.

The Human Rights Act overlay

Public law questions frequently arrive wearing a human rights coat. The mechanics of the Human Rights Act 1998 are examinable in their own right:

1. Section 2 — courts must take Strasbourg jurisprudence into account; they are not bound by it.
2. Section 3 — legislation must be read compatibly with Convention rights so far as it is possible to do so. A strong interpretative obligation, but not a licence to rewrite.
3. Section 4 — where compatible reading is impossible, the higher courts may declare an incompatibility. The provision remains in force.
4. Section 6 — it is unlawful for a public authority to act incompatibly with Convention rights, unless primary legislation leaves it no choice.
5. Sections 7 and 8 — who may bring a claim (the victim test, narrower than judicial review standing) and what remedies are available, including damages where just satisfaction requires it.

The victim test versus sufficient interest distinction is a favourite. A campaigning organisation may well have standing for an ordinary judicial review claim and simultaneously fail the victim test for a Human Rights Act claim. Answer options are built on exactly that asymmetry.

On the qualified rights — the ones subject to justification — the structure is what earns marks: is the interference prescribed by law, does it pursue a legitimate aim, and is it necessary and proportionate? Apply that sequence mechanically and the right answer usually falls out.

Revising it without wasting weeks

Some blunt advice, from watching people do this well and badly.

Do not read constitutional law like literature. The temptation to enjoy the theory is real, and it is a time sink. Your SQE revision here should be roughly 30% reading and 70% question practice, and if it isn't, you are optimising for the wrong exam.

Build a one-page judicial review flowchart — amenability, standing, time, alternative remedy, grounds, remedies — and run every question through it until the sequence is automatic. That page is worth more than a chapter of notes.

Interleave with Dispute Resolution. Both involve procedure, time limits and remedies, and studying them together makes the deadlines stick, because you start noticing how differently the civil courts treat delay depending on the claim type.

Keep a wrong-answer log and be honest in it. Not "got confused" — write down whether you missed the ground, misapplied the threshold, or simply failed to read the last line of the stem. The pattern in that log is your actual revision plan. Question banks with a built-in wrong-answer book and subject-level analytics make this considerably less painful than maintaining a spreadsheet; it is one of the practical reasons candidates end up asking which is the best SQE question bank rather than just buying the cheapest one. Whatever you choose, the criterion is simple: does it tell you what you don't know, in enough detail to fix it?

A note of perspective, since anxiety about SQE pass rates drives a lot of poor revision decisions. Historically a meaningful proportion of candidates do not pass FLK1 at the first attempt — the SRA publishes statistical reports after each sitting and those are the figures to trust, not the numbers circulating in group chats. The candidates who struggle are rarely the ones who didn't know enough constitutional theory. They are the ones who ran out of time, or who never practised at exam pace.

And remember that SQE1 is one component of qualification. The route to solicitor qualification in England and Wales also requires a degree or equivalent qualification, SQE2, two years of qualifying work experience signed off in accordance with SRA requirements, and satisfying the SRA on character and suitability. If you are mapping out how to become a solicitor in the UK, get the QWE clock running early — plenty of paralegal, in-house and law clinic work counts, and the procedural detail for recording it sits on sra.org.uk.

Where to go next

Pick one hour this week. Do 30 mixed public law questions at 100 seconds each, without notes, and log every miss by category rather than by topic. If more than a third of your errors turn out to be threshold errors — standing, time limits, amenability — you have just found the highest-value fix available to you in this subject, and it will take you an afternoon rather than a fortnight.

Then keep going. You can practise FLK1 constitutional and administrative law questions, tagged down to sub-topic and timed to the real ratio, in the Ant Law SQE Question Bank at antlaw.ai — on the app or in the browser — and check the live assessment specification and sitting information on sqe.sra.org.uk before you finalise your study plan.