text:
Acing the SQE/Public Law

=Introduction= Constitutional and Administrative law and EU law or Public Law in short is one of the subjects tested in SQE1. It covers four areas- the core institutions of the state including the parliament, the government, the Crown, and how they interrelate, legitimacy, separation of powers and the rule of law, Human Rights Act 1998 and the European Convention on Human Rights, and the place of EU law in the UK constitution.

=Core institutions of the state and how they interrelate=

Parliament
The UK Parliament is the legislative branch of the UK government, composed of two houses: the House of Commons and the House of Lords. The House of Commons is made up of elected Members of Parliament (MPs) who represent constituencies across the UK, while the House of Lords is made up of appointed members, including life peers, hereditary peers, and bishops.

parliamentary sovereignty
Parliamentary sovereignty is a key principle of the UK's constitutional system, which means that Parliament is the supreme legal authority in the country, and its laws cannot be overruled by any other body or institution. This principle is reflected in the fact that Parliament can pass any law it wishes, without being bound by previous laws or decisions, and that the courts are required to interpret and apply laws passed by Parliament.

However, the concept of parliamentary sovereignty has been somewhat challenged in recent years, particularly with the UK's membership in the European Union and the incorporation of the European Convention on Human Rights into UK law. In addition, devolution has led to the creation of separate legislatures in Scotland, Wales, and Northern Ireland, which have their own powers to pass laws on certain matters. Nonetheless, the principle of parliamentary sovereignty remains a fundamental feature of the UK's constitutional system.

central government
The UK central government is responsible for making and implementing policies and laws that affect the entire country. It is composed of three branches: the executive, the legislative, and the judicial.

The executive branch is headed by the Prime Minister, who leads the government and is responsible for making decisions on behalf of the country. The executive branch also includes the Cabinet, which is made up of senior ministers responsible for different areas of government.

The legislative branch is composed of the House of Commons and the House of Lords, which are responsible for passing laws and scrutinizing the actions of the executive branch. The judiciary branch is responsible for interpreting and applying the law.

accountability
Accountability is a key principle of the UK's constitutional system, and the central government is accountable to various bodies and institutions. The government is accountable to Parliament, which has the power to scrutinize government policies and decisions and hold the government to account. The government is also accountable to the electorate, who have the power to vote out the government in general elections.

status of the devolved institutions and their relationship with Westminster
The devolved institutions in the UK are the Scottish Parliament, the Welsh Parliament (Senedd Cymru), and the Northern Ireland Assembly. These institutions have been granted powers to make decisions on certain matters that affect their respective nations, such as health, education, and the environment.

Although the devolved institutions have their own legislative and executive powers, they are still ultimately accountable to the UK Parliament in Westminster. This means that the UK Parliament can legislate on any matter, including those that fall under the remit of the devolved institutions, and can override any decision made by the devolved institutions if it chooses to do so.

There is also a system of intergovernmental relations between the UK government and the devolved administrations, where they work together to make decisions on matters that affect the whole of the UK. This is done through a series of formal and informal meetings, including the Joint Ministerial Committee (JMC), which brings together representatives from the UK government and the devolved administrations.

Overall, the devolved institutions have a degree of autonomy in making decisions on certain matters, but they still remain accountable to the UK Parliament and must work with the UK government on matters that affect the whole of the UK.

the monarch and the Crown
Crown immunity is a legal doctrine in the United Kingdom that holds that the Crown, or the monarch and the government, is immune from being sued or prosecuted in court without its express consent. This means that the Crown is exempt from the usual rules and laws that apply to ordinary citizens and organizations, and cannot be held legally accountable for its actions in the same way that individuals and businesses can be.

Historically, crown immunity was based on the notion that the monarch was above the law and that the state could not be sued without its consent. However, in modern times, the concept has been modified to reflect the idea that the Crown is subject to the law but that it can only be sued or prosecuted with its consent.

Crown immunity applies to a wide range of activities and functions carried out by the government, including the exercise of the royal prerogative, the actions of government officials, and the administration of justice. However, there are some exceptions to the doctrine, such as cases involving breaches of human rights or environmental law, where the Crown may be sued or prosecuted even without its consent.

In recent years, there has been growing debate over the use of crown immunity and its impact on accountability and transparency in government. Some argue that the doctrine is outdated and should be abolished or limited, while others maintain that it is necessary to protect the interests of the state and maintain the separation of powers between the judiciary and the executive.

the role of constitutional conventions
In the UK, constitutional conventions are unwritten rules and practices that are considered to be an important part of the country's constitutional framework. While they are not legally binding like statutes or case law, conventions are widely accepted as binding and are seen as essential to the functioning of the UK's political system.

Constitutional conventions play a vital role in shaping and regulating the relationship between the different branches of government in the UK, and between the government and the people. They provide guidance on how power should be exercised and how the institutions of government should interact with each other.

For example, conventions dictate that the monarch must act on the advice of the Prime Minister and not interfere in the day-to-day running of the government. They also dictate that the Prime Minister must have the confidence of the House of Commons in order to govern, and that Parliament must be dissolved and elections held at regular intervals.

While conventions are not legally enforceable, they are often considered to be just as important as legal rules. They provide a framework for political behavior and help to ensure that the government operates within the boundaries of democratic norms and values.

In some cases, conventions can become codified into law. For example, the Fixed-term Parliaments Act 2011 codified the convention that general elections should be held every five years, while the Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law.

Overall, constitutional conventions play an important role in the UK's legal system by providing a framework for the exercise of power and ensuring that government operates within democratic norms and values. While they are not legally binding, they are widely accepted as essential to the proper functioning of the UK's political system.

prerogative power: relationship with legislation and constitutional conventions
Prerogative powers are a set of residual powers that are vested in the Crown (i.e., the monarch) under UK law. These powers are based on historical prerogatives that were once exercised by the monarch, but are now exercised on their behalf by the government. Prerogative powers can be exercised without the need for parliamentary approval, and they cover a wide range of areas, including foreign affairs, national security, and the appointment of public officials.

The relationship between prerogative powers, legislation, and constitutional conventions in UK law is complex. While prerogative powers can be exercised without the need for parliamentary approval, they are subject to legal and constitutional limitations. For example, the exercise of prerogative powers must be consistent with the UK's obligations under international law, and cannot be used to circumvent or undermine legislation passed by Parliament.

In recent years, there has been debate over the extent to which prerogative powers can be exercised in relation to issues such as Brexit and the conduct of foreign policy. The UK Supreme Court has ruled that the exercise of prerogative powers can be subject to judicial review, and that the government must be able to justify its use of such powers on legal and constitutional grounds.

Constitutional conventions also play a role in regulating the exercise of prerogative powers. While conventions are not legally binding, they are widely accepted as binding and provide guidance on how prerogative powers should be exercised. For example, the Salisbury Convention provides that the House of Lords should not reject government legislation that has been promised in the government's election manifesto. This convention influences how the government exercises its prerogative power to prorogue Parliament, as the government cannot use this power to prevent Parliament from carrying out its legislative function.

In summary, prerogative powers in the UK are subject to legal and constitutional limitations, and their exercise is regulated by both legislation and constitutional conventions. While they provide the government with a degree of flexibility in certain areas, their use must be consistent with the UK's legal and constitutional framework.

parliamentary privilege
Parliamentary privilege is a legal doctrine in UK law that grants certain legal immunities and freedoms to members of Parliament and the Houses of Parliament in order to allow them to carry out their duties without fear of outside interference or prosecution. It is a fundamental aspect of the UK's constitutional framework and is considered to be essential to the functioning of parliamentary democracy.

There are two main types of parliamentary privilege: immunity from civil and criminal liability, and freedom of speech.

Immunity from civil and criminal liability means that members of Parliament and the Houses of Parliament cannot be sued or prosecuted for anything said or done in the course of their parliamentary duties. This includes anything said during parliamentary debates, committee meetings, or votes, as well as any actions taken in the course of their parliamentary work.

Freedom of speech means that members of Parliament are free to express their views and opinions without fear of being sued or prosecuted. This extends to anything said in Parliament, as well as anything said outside of Parliament that relates to parliamentary proceedings.

Parliamentary privilege is considered to be an important protection for members of Parliament and the Houses of Parliament, as it allows them to carry out their duties without fear of outside interference or pressure. It is also seen as an essential aspect of democratic accountability, as it allows members of Parliament to speak freely and without fear of retribution.

However, parliamentary privilege is not an absolute right and can be limited in certain circumstances. For example, it does not extend to anything said or done that is outside the scope of parliamentary duties, or that constitutes a criminal offence or a breach of privilege or contempt of Parliament. In addition, members of Parliament can still be held accountable for their actions under the law, even if they are immune from prosecution for parliamentary proceedings.

Overall, parliamentary privilege is a key aspect of the UK's constitutional framework, providing important protections for members of Parliament and the Houses of Parliament while also upholding democratic accountability and free speech.

=Legitimacy, separation of powers and the rule of law= Legitimacy, separation of powers, and the rule of law are all fundamental principles of English constitutional law.

Legitimacy refers to the concept that a government or system of government has the authority and consent of the people it governs. In English constitutional law, legitimacy is derived from the principle of parliamentary sovereignty, which states that ultimate power and authority rests with Parliament, as the elected representatives of the people.

Separation of powers refers to the division of government into separate branches with distinct functions and responsibilities, in order to prevent any one branch from becoming too powerful. In English constitutional law, the separation of powers is not strictly observed, as the executive and legislative branches are intertwined, with the Prime Minister and Cabinet holding significant power in both areas. However, the judiciary is largely independent and separate from the other two branches, ensuring a degree of balance and accountability.

The rule of law refers to the principle that everyone, including the government, is subject to the law, and that no one is above the law. In English constitutional law, the rule of law is closely linked to the principle of parliamentary sovereignty, as laws are made by Parliament and enforced by the courts. The rule of law also ensures that the exercise of government power is subject to legal and constitutional limitations, preventing the abuse of power and upholding individual rights and freedoms.

Together, these principles form the foundation of English constitutional law, providing a framework for democratic governance, protecting individual liberties, and ensuring that those in power are held accountable to the people they serve.

powers and procedures for the enactment, implementation and repeal of primary and secondary legislation
In English constitutional law, legislation can be divided into two categories: primary legislation and secondary legislation. Primary legislation is law made by Parliament and takes the form of Acts of Parliament, while secondary legislation is law made by government ministers or other bodies under the authority of Acts of Parliament.

The powers and procedures for the enactment, implementation, and repeal of primary legislation are as follows:

Enactment: Primary legislation is enacted by Parliament through a process of several stages, including:

First reading: The proposed bill is presented to the House of Commons or House of Lords. Second reading: The bill is debated and voted on. Committee stage: The bill is examined in detail by a committee of MPs or Lords. Report stage: The bill is debated and voted on again. Third reading: The final version of the bill is debated and voted on. Royal Assent: The bill becomes an Act of Parliament once it is signed by the monarch. Implementation: Once a bill has become an Act of Parliament, it is up to the government to implement and enforce it. This may involve creating new regulations, policies, or procedures, as well as allocating resources and funding to ensure that the new law is enforced.

Repeal: Primary legislation can be repealed or amended by Parliament through a similar process to that used for enactment. A new bill is introduced to Parliament, debated, and voted on, and if passed, becomes an Act of Parliament that supersedes the previous law.

The powers and procedures for the enactment, implementation, and repeal of secondary legislation are as follows:

Enactment: Secondary legislation is made by government ministers or other bodies under the authority of Acts of Parliament. The powers and procedures for making secondary legislation vary depending on the type of legislation being made, but generally involve a process of consultation, drafting, and approval.

Implementation: Once secondary legislation has been made, it is implemented by the relevant government departments or agencies. This may involve creating new policies, procedures, or guidance documents to ensure that the new law is enforced.

Repeal: Secondary legislation can be repealed or amended by the same body that made it. This may involve a process of consultation, drafting, and approval, similar to that used for enactment.

In both cases, the process of enacting, implementing, and repealing legislation is designed to ensure that laws are made democratically, implemented effectively, and can be amended or repealed when necessary to reflect changing circumstances or priorities.

Public Order law

 * 1) Section 1: Riot - This is defined as 12 or more people threatening or using unlawful violence, acting together for common purpose. The conduct of the 12 must be such that would cause a person of reasonable firmness to fear for their safety.
 * 2) Section 2: Violent disorder - This is similar to riot but only three or more people are required, and they do not have to be acting for any common purpose.
 * 3) Section 3: Affray - A person commits affray by using or threatening unlawful violence so that someone of reasonable firmness would fear for their safety. No minimum number of people is required.
 * 4) Section 4: Fear or provocation of violence - An offence is committed by using threatening, abusive or insulting words or behaviour towards another person, or by distributing any writing, sign or other visible representation which is threatening, abusive or insulting. There must be an intention to provoke or to cause immediate unlawful violence.
 * 5) Section 4A: Intentional harassment, alarm or distress
 * 6) Section 5: Harassment, alarm or distress -This section covers harassment, alarm or distress and disorderly behaviour taking place within the hearing or sight of a person likely to be caused harassment, alarm or distress.

Processions
Processions under the Public Order Act 1986 are defined as a march or procession of two or more people which takes place on a road, public highway or open public space. A procession may be organised in order to express one's views or display one's support for a cause or to commemorate a particular event. The police can impose conditions on processions, such as the route, the number of people taking part and the length of time it will take place. The police must be informed in advance of any procession taking place and have the power to impose conditions to ensure that it does not disrupt public order.

Assemblies
Assemblies under the Public Order Act 1986 are gatherings of two or more people taking place in a public place or on highways, who are conducting themselves in such a way as to cause harassment, alarm or distress to other people in the vicinity. This includes, but is not limited to, carrying offensive weapons, threatening behaviour, or displaying threatening banners or flags.

Breach of the peace

 * 1) 'there is a breach of the peace wherever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through assault, an affray, a riot, unlawful assembly or other disturbance.' R v Howell (1981)

judicial review
Judicial review (JR) is the process by which a court reviews the lawfulness of executive or administrative action.

the nature, process and limits of judicial review
nature

Ultra vires: a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament.

process

Standing: Sufficient interest test

limit

Courts cannot review primary legislation (Acts of Parliament) due to the doctrine of parliamentary sovereignty and only review the decisions of public bodies and secondary (delegated) legislation.

supervisory nature
JR is a form of supervisory jurisdiction, which means that the courts exercise oversight to ensure that public bodies and other entities comply with the law.

remedies

 * 1) Quashing order (certiorari)
 * 2) Mandatory order (mandamus)
 * 3) Prohibiting order (prohibition)
 * 4) Injunction
 * 5) Declaration

time limits
The time limit for making a claim is three months from the date on which the grounds for the claim arose.

illegality
Illegality is one of the grounds for judicial review. Illegality as a ground for judicial review means that the decision being challenged must be in breach of a legal rule or provision. If a public authority has acted in a manner that is illegal, then the courts can intervene and declare the decision to be invalid.
 * 1) Simple illegality
 * 2) Misinterpreting the law
 * 3) Abuse of discretion
 * 4) fettering discretion
 * 5) Error of fact

Some examples of illegality are:
 * 1) Acting without legal authority
 * 2) Delegating decision making powers
 * 3) Fettering of discretion by either acting unless the direction of another or by applying a policy too regidly
 * 4) Using powers for an improper or unauthorised purpose
 * 5) Taking into account irrelevant considerations
 * 6) Ignoring relevant considerations
 * 7) An error of law or fact in the decision
 * 8) Where a decision covers dual purposes but one of those purposes is unlawful and materially relevant to the decision unless the authorised purpose is the dominant purpose

irrationality
Irrationality, also known as "Wednesbury unreasonableness," is a ground for judicial review. The principle of irrationality as a ground for judicial review holds that a decision made by a public authority must be reasonable, meaning that it must be based on rational considerations and not be arbitrary, capricious, or fanciful. If a decision is found to be irrational, it may be set aside by a court, even if the decision was technically within the power of the public authority to make.

procedural impropriety
Procedural impropriety, also known as a breach of natural justice, is a ground for judicial review. The principle of procedural impropriety holds that a public authority must follow fair and impartial procedures when making decisions that affect the rights and interests of individuals.

legitimate expectation
The principle of legitimate expectation is a ground for judicial review. Legitimate expectation is a principle of administrative law that requires public authorities to act in accordance with representations that they have made to individuals or groups.

=Human Rights Act 1998 and the European Convention on Human Rights=

ss.2, 3, 4, 6, 7, 8, 10 Human Rights Act 1998
Sec 2 Interpretation of Convention rights.

(1) A court or tribunal determining a question, which has arisen in connection with a Convention right,  must take into account  any (a) Judgment, decision, declaration or advisory opinion of the European Court of Human Rights

Sec 3 HRA Interpretation of legislation.

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way, which is compatible with the Convention rights

Sec 4 Declaration of incompatibility.

(2) If the court is satisfied that the [legislative] provision is incompatible with a Convention right, it may make a declaration of that incompatibility.

(6) A declaration under this section ...

(a) Does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and

(b) Is  not binding on the parties  to the proceedings in which it is made.

Sec 6 Acts of public authorities.

(1) It is unlawful for a public authority to act in a way, which is incompatible with a Convention right.

(3) In this section “public authority” includes—

(a) A court or tribunal, (under a duty to act in human right compatibility manner) and

(b) Any person certain of whose functions are functions of a public nature...

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)

(b) if the nature of the act is private.

Sec 7 Proceedings.

(1) A person who claims that a public authority has acted …in a way which is made unlawful … may …rely on the Convention right or rights concerned in any legal proceedings, but only if he [or she] is (or would be) a  victim  of the unlawful act.

Compare this to sufficient interest test in judicial review.

Sec 8 Judicial remedies.

In relation to any act .. a public authority, which the court finds is .., it may grant such relief or remedy, or make such order, within its powers, as it considers just and appropriate.

Sec 10 Power to take remedial action.

...if.. provision of legislation has been declared under section 4 to be incompatible with a Convention right....

Schedule 1 HRA 1998 the "Convention Rights"

 * 1) The right to life (Article 2)
 * 2) The prohibition of torture and inhuman or degrading treatment or punishment (Article 3)
 * 3) The right to liberty and security of the person (Article 5)
 * 4) The right to a fair trial (Article 6)
 * 5) The right to respect for private and family life, home, and correspondence (Article 8)
 * 6) The right to freedom of thought, conscience, and religion (Article 9)
 * 7) The right to freedom of expression (Article 10)
 * 8) The right to peaceful assembly and freedom of association (Article 11)
 * 9) The right to marry and found a family (Article 12)
 * 10) The right to an effective remedy and a fair hearing (Article 13)
 * 11) The prohibition of discrimination (Article 14)

=The place of EU law in the UK constitution=

Sources of retained EU law
Retained EU law refers to the body of EU law that has been incorporated into UK law following the UK's withdrawal from the EU. There are several sources of retained EU law in English law, including:

The European Communities Act 1972 (ECA): This was the primary source of EU law in the UK prior to Brexit. The ECA has now been repealed, but it has been replaced by the European Union (Withdrawal) Act 2018, which ensures that existing EU law continues to apply in the UK.

EU regulations: These are directly applicable in the UK and have been incorporated into UK law through the European Union (Withdrawal) Act 2018.

EU directives: These are binding on member states but require implementation into national law. Any EU directives that were implemented into UK law prior to Brexit are now part of retained EU law.

Decisions of the European Court of Justice (ECJ): The decisions of the ECJ are part of EU law and have been incorporated into UK law through the European Union (Withdrawal) Act 2018. However, UK courts are no longer bound by decisions of the ECJ.

Treaties: Any treaties between the UK and the EU that were in force prior to Brexit are now part of retained EU law.

Overall, the sources of retained EU law in English law are varied, but they all form part of the body of EU law that has been incorporated into UK law following Brexit.

Categories
Retained EU law refers to the body of EU law that has been incorporated into UK law following the UK's withdrawal from the EU. There are three categories of retained EU law in English law:

EU-derived domestic legislation: This includes any legislation that was made in the UK to implement EU law before Brexit, and which has been retained as part of UK law after Brexit. For example, the Working Time Regulations 1998, which were introduced in the UK to implement the EU Working Time Directive, are now part of retained EU law.

Direct EU legislation: This includes any EU regulations that were directly applicable in the UK before Brexit and have been retained as part of UK law after Brexit. EU regulations are immediately enforceable in the UK without the need for further implementation, so they form a direct part of UK law. For example, the General Data Protection Regulation (GDPR) is an EU regulation that was directly applicable in the UK before Brexit and has been retained as part of UK law.

Rights and principles: This category includes any rights and principles that were established by EU law and which have been incorporated into UK law after Brexit. For example, the principle of non-discrimination on the grounds of nationality, which is a fundamental principle of EU law, has been retained as part of UK law.

Overall, the categories of retained EU law in English law are designed to ensure that the body of EU law that was in force before Brexit continues to apply in the UK, and that individuals and businesses are able to continue to rely on the rights and obligations that were established under EU law.

Status
Retained EU law refers to the body of EU law that has been incorporated into UK law following the UK's withdrawal from the EU. The status of retained EU law in English law is as follows:

Retained EU law has the same status as any other domestic law in the UK: This means that it is binding on UK courts and must be applied in accordance with UK legal principles.

Retained EU law is subject to amendment or repeal by the UK parliament: The European Union (Withdrawal) Act 2018 provides that retained EU law may be amended or repealed by the UK parliament in the same way as any other domestic law.

UK courts may depart from retained EU law in certain circumstances: Although retained EU law has the same status as any other domestic law, UK courts are not bound by decisions of the European Court of Justice (ECJ) that were made after Brexit. This means that UK courts may depart from retained EU law if they consider it appropriate to do so.

The principles of EU law continue to apply in the UK: The European Union (Withdrawal) Act 2018 provides that retained EU law should be interpreted in a way that is consistent with the aims and principles of the EU, as well as with the decisions of the ECJ that were made before Brexit. This means that the principles of EU law, such as the principle of non-discrimination on the grounds of nationality, continue to apply in the UK.

Overall, the status of retained EU law in English law is designed to ensure that the body of EU law that was in force before Brexit continues to apply in the UK, while recognizing that the UK is no longer bound by EU law and is free to depart from it where appropriate.

Interpretation
The interpretation of retained EU law in English law is governed by the European Union (Withdrawal) Act 2018, which sets out the rules for how retained EU law should be applied and interpreted in the UK after Brexit.

The Act provides that retained EU law should be interpreted in a way that is consistent with the aims and principles of the EU, as well as with the decisions of the European Court of Justice (ECJ) that were made before Brexit. However, UK courts are no longer bound by ECJ decisions and are free to depart from them if they choose to do so.

The Act also provides that UK courts may have regard to relevant decisions of the ECJ that are made after Brexit, but only if they consider it appropriate to do so. This means that UK courts are not required to follow decisions of the ECJ that are made after Brexit, but may choose to take them into account if they are relevant to the case at hand.

In addition, the Act provides that retained EU law should be interpreted in accordance with any relevant retained case law, which includes any case law of the ECJ that was applicable to the UK before Brexit. This means that UK courts are required to apply existing case law in interpreting retained EU law, as long as it is relevant to the case at hand.

Overall, the interpretation of retained EU law in English law is designed to ensure that the body of EU law that was in force before Brexit continues to be applied in a consistent and coherent manner, while also recognizing that the UK is no longer bound by EU law and is free to depart from it where appropriate.

Modification
Retained EU law refers to the body of EU law that was incorporated into UK law after the UK's withdrawal from the European Union. The European Union (Withdrawal) Act 2018 (EUWA) provided for the incorporation of EU law into UK law, to ensure continuity and legal certainty after Brexit.

However, since the EU is no longer a part of UK law, changes may need to be made to the retained EU law to ensure that it continues to function effectively in the UK legal system. This includes making modifications to reflect changes in circumstances or to correct any deficiencies that may arise.

The UK government has the power to modify retained EU law through the use of statutory instruments. These instruments allow the government to make changes to the law without the need for primary legislation. However, any modifications must be compatible with the principles of EU law, and must not reduce the level of protection provided by the original EU law.

The process of modifying retained EU law is ongoing, and will continue as new issues arise and as the UK's relationship with the EU evolves. The aim is to ensure that retained EU law continues to operate effectively and provides the necessary legal protections for individuals and businesses in the UK.

Withdrawal
The withdrawal of retained EU law from English law refers to the process of removing EU law that was incorporated into UK law following the UK's withdrawal from the European Union. This process may occur for a variety of reasons, such as changes in policy, legal inconsistencies or incompatibilities, or as a result of changes in the UK's relationship with the EU.

The European Union (Withdrawal) Act 2018 (EUWA) provided for the incorporation of EU law into UK law, to ensure continuity and legal certainty after Brexit. However, the Act also gave the UK government the power to repeal or amend retained EU law through the use of statutory instruments.

The process of withdrawing retained EU law may involve repealing entire pieces of legislation or specific provisions within them. The government may also make modifications to retained EU law to remove any references to the EU or EU institutions, or to replace EU institutions with UK equivalents.

It is important to note that any withdrawal of retained EU law must be done in a way that does not undermine the legal protections provided by EU law or reduce the level of protection provided to individuals and businesses in the UK. The government must ensure that any changes made to retained EU law are compatible with the principles of EU law and do not conflict with any international obligations or agreements.

Overall, the withdrawal of retained EU law is a complex and ongoing process that will continue to evolve as the UK's relationship with the EU changes and as new legal issues arise.

Parliamentary sovereignty and retained EU law
Parliamentary sovereignty is a fundamental principle of the UK constitution that holds that the ultimate power to make and amend laws rests with Parliament, and that no other body, including the courts, can override or challenge the laws made by Parliament. In other words, Parliament has the power to make, amend, and repeal any law, and no other body can question or overrule its decisions.

Retained EU law refers to the body of EU law that was incorporated into UK law when the UK left the European Union on January 31, 2020. Under the European Union (Withdrawal) Act 2018, EU law was transposed into UK law at the moment of Brexit and became part of the UK's legal system. This means that the UK continues to be bound by EU law in certain areas, such as employment law, environmental law, and consumer protection law, unless or until Parliament decides to amend or repeal it.

Parliamentary sovereignty and retained EU law are closely linked because, under the principle of parliamentary sovereignty, Parliament has the power to make, amend, and repeal any law, including retained EU law. This means that Parliament can decide to retain or modify any aspect of EU law that has been incorporated into UK law, and can ultimately decide whether or not to continue to be bound by EU law in any given area.

However, the relationship between parliamentary sovereignty and retained EU law is complex and raises questions about the limits of parliamentary power. On the one hand, Parliament has the power to amend or repeal retained EU law, but on the other hand, the incorporation of EU law into UK law means that some aspects of EU law have become deeply embedded in the UK's legal system, and may be difficult or politically contentious to remove.

In practice, the relationship between parliamentary sovereignty and retained EU law is likely to continue to evolve over time, as Parliament grapples with the practical and legal implications of Brexit, and seeks to balance the need for flexibility and autonomy with the need for legal and regulatory coherence.

title: Acing the SQE/Public Law


text:
Acing the SQE/Legal Services

=Chapters=
 * Chapter 1 The Regulatory Role of the SRA
 * Chapter 2 The Equality Act 2010
 * Chapter 3 Money laundering
 * Chapter 4 Financial Services
 * Chapter 5 Funding Options for Legal Services

principles and risk-based regulation

 * The SRA is the approved regulator for solicitors, the firms in which they work (and their non-lawyer employees), Registered European Lawyers and Registered Foreign Lawyers.
 * The SRA adopts a risk-based approach to regulation.
 * A firm must be authorised by the SRA to carry out reserved legal activities.

reserved legal activities

 * 1) the exercise of a right of audience
 * 2) the conduct of litigation
 * 3) reserved instrument activities
 * 4) probate activities
 * 5) notarial activities
 * 6) administration of oath

Reserved legal activities can only be carried out by those authorised by an approved regulator.

The approved regulators are:
 * 1) Solicitors Regulation Authority
 * 2) Bar Standards Board
 * 3) CLIEx Regulation
 * 4) Council for Licensed Conveyancers
 * 5) Intellectual Property Regulation Board
 * 6) Costs Lawyers Standards Board
 * 7) Master of Faculties

 * Anyone acting as a solicitor must have a practising certificate or else it is a criminal offence.

professional indemnity insurance

 * All firms authorised by the SRA must take out and maintain professional indemnity insurance.
 * Indemnity insurance cover must meet minimum requirements and be adequate and appropriate.
 * Firms must be open with clients about their professional indemnity insurance provision.
 * The cover required for a recognised sole practice under the minimum terms and conditions is 2 million pounds.
 * Firms must be open with clients about their professional indemnity insurance provisions.

other regulated providers of legal services

 * Barristers
 * Chartered legal executives
 * Licensed conveyancers
 * Patent attorneys
 * Trade mark attorneys
 * Costs lawyers
 * Notaries
 * Chartered accountants

The Equality Act 2010
The following characteristics are protected under the Equality Act:
 * 1) Race
 * 2) religion and belief
 * 3) sex
 * 4) sexual orientation
 * 5) age
 * 6) disability
 * 7) gender reassignment
 * 8) marriage/civil partnership
 * 9) pregnancy and maternality

The Act outlaws certain forms of discrimination including:
 * 1) direct discrimination
 * 2) indirect discrimination
 * 3) disability discrimination
 * 4) victimisation
 * 5) harassment

 * There is a duty to make reasonable adjustments for disabled people.
 * Discrimination is outlawed in certain circumstances including in the provision of services and the workplace.
 * Equality Act 2010 allows employers, when deciding between two equally qualified candidates, to choose a candidate from an under-represented or disadvantaged group, so long as the employer reasonably thinks that people with a particular protected characteristic are disproportionately under-represented in the workplace

money laundering

 * Money laundering is the process whereby the proceeds of crime are changed so that they appear to come from a legitimate source.
 * The Government has introduced legislation to disrupt this process.
 * Solicitors who undertake relevant business must comply with the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulation 2017 (SI2017/692).
 * Under the 2017 Regulations, firms must appoint a money laundering compliance officer and a nominated officer, who will receive internal reports concerning money laundering and must consider whether to report the matter to the NCA.

 * Placement
 * Layering
 * Integration

purpose and scope of anti-money laundering legislation including the international context

There are three legislation of anti-money laundering.
 * 1) Proceeds of Crime Act 2002 ('PoCA');
 * 2) Terrorism Act 2000 (as amended);
 * 3) Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I.692/2017) (‘The 2017 Regulations’)
 * PoCA: defines ML offences
 * Terrorism Act 200: define terrorism funding and financing offences
 * 2017 Regulations: define requirements for AML within regulatored sectors and customer due diligences

circumstances encountered in the course of practice where suspicion of money laundering should be reported in accordance with the legislation

 * Shah v. HSBC [2012]: When reporting on the suspicion of money laundering, the Money laundering Reporting Officer has no obligation to investigate on the suspicion.

 * the appropriate person or body to whom suspicions should be reported, the appropriate time for such reports to be made and the appropriate procedure to be followed

Disclosure to a constable, customs officer or nominated officer "MLRO) that property is criminal property It is made before the prohibited act (MLO makes a suspcious activity report ("SAR") to National Crime Agency ("NCA"), or

National Crime Agency

direct involvement and non-direct involvement offences, and defences to those offences under Proceeds of Crime Act 2002 1. Concealing 2. Arranging 3. Acquiring
 * Direct involvement offences under PoCA 2002

Failure to Disclose
 * Non-direct involvement offences under PoCA 2002

Failure to Disclose - Nominated Officer (regulated sector)

Failure to Disclose - Nominated Officer (Outside regulated sector)

Prejudicing an investigation/Tampering with Relevant Document

Defences under PoCA 2002

Defences to Direct Invovlement Crimes - Authorised Disclosure - Reasonable Excuse - Appropriate Consent - Adequate Consideration

Defences to non-direct involvement crimes Failure to disclose - Reasonable excuse - Privileged circumstances - No training - Disclosing a suspicious activity report - Disclosing an investigation - Disclosures within undertaking or Grou[ - Disclosure between undertakings - Disclosure to your supervisory authority - Dissuading illegal conduct

Defences to Prejudicing an investigation/Tampering with Relevant Document - No Knowledge/Suspicion - Professional legal Adviser

due diligence requirements Under the MLR 2017 you are required to:

identify your client and verify their identity on the basis of a reliable independent source (such as a passport) where applicable, identify the beneficial owners of the client, take reasonable measures to verify their identity so you know who they are and, if the beneficial owner is an entity or legal arrangement, take reasonable measures to understand its ownership and control structure assess and where appropriate obtain information on the purpose and intended nature of the business relationship or transaction and identify and verify the identity of a person who purports to act on behalf of a client and verify that they are authorised to act on behalf of the client

Financial services

 * the financial services regulatory framework including authorisation, and how it applies to solicitors' firms
 * recognition of relevant financial services issues, including the identification of specified investments, specified activities and relevant exemptions
 * application of the Financial Services and Markets Act 2000 and related secondary legislation to the work of a solicitor
 * appropriate sources of information on financial services.

private retainer
As known as private funding, the client pays for the work done based on the solicitor's hourly charging rate.

conditional fee arrangements
If client wins the solicitor receives an enhanced fee calculated as a percentage of the solicitor's usual charging rate. If the client loses the solicitor receives a lower fee or no fee.

damages based agreements
If the client wins the solicitor receives a percentage of the damages received. If the client loses the solicitor receives no fee.

eligibility for criminal and civil legal aid
The legal aid scheme enables those who qualify to have their legal fees paid from public funds.

 * Magistrates Court: Means Test (financial eligibility) and the Interests of Justice Test (Merits Test) for public funding in a magistrates' court. D meets Means Test if D is under 18 or in receipt of a passporting benefit
 * Crown Court: D should mee the Means Test ONLY (financial eligibility) since Crown Court trials are deemed to automatically satisfy the Interests of Justice Test.

third party funding
A third party (usually a commercial funder) agrees to fund the litigation.

legal expenses insurance
Legal expenses insurance (LEI) is a type of insurance policy that provides coverage for the cost of legal expenses incurred in relation to a specific legal dispute or event. In England and Wales, legal expenses insurance is commonly offered as an optional add-on to other insurance policies, such as home insurance or motor insurance.

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/

title: Acing the SQE/Legal Services