Constitutional Foundations — SQE1 FLK1 Legal System

A Cabinet agrees to close a network of local offices. One minister argued against it in the room, lost, and has spent three weeks on television calling the decision indefensible. She has not resigned. The Prime Minister has not dismissed her. A member of the public asks the High Court to declare her in breach of her constitutional obligations, and to order her to support the decision or go. What does the court do? Nothing.

This is Constitutional Foundations, the last topic in Legal System, and one line runs through it. On one side, what the constitution requires. On the other, what a court will actually enforce. Keep our minister in mind. We are coming back for her.

Here is the route. The shape of the constitution first, and why nothing in it is entrenched. Then the Crown, which is not the King. Then the executive, and how Parliament holds it to account. Then conventions, the heart of the topic. Then the royal prerogative, and how far the courts will follow it. Then parliamentary privilege. And finally the law of protest.

Start with the shape of the thing. The United Kingdom has no single document called the constitution. Its rules sit in statutes, case law, conventions, and the law and custom of Parliament. Magna Carta 1215. The Bill of Rights 1689. The Human Rights Act 1998. So it is uncodified rather than unwritten. Most of it is written down, but never gathered into one instrument.

And none of it is entrenched. In most states constitutional rules change only by referendum or a supermajority. Here they are passed, amended and repealed like any other Act, because Parliament cannot bind its successors. So try one. A government announces the repeal of a rights statute more than twenty years old. The opposition says that needs a referendum, or a two-thirds majority. Does it? No. Political difficulty is not legal entrenchment.

Now the Crown, and a distinction that decides questions on its own. The monarch is a person. The Crown is a legal concept, the corporation sole through which the executive acts. So a statutory power given to the Crown, or to a Secretary of State, belongs to the executive, not to the King personally. Sue the Secretary of State. Never the monarch, never the minister.

What the monarch does is formal. Appointing the Prime Minister. Giving Royal Assent. Proroguing and dissolving Parliament, and making treaties through ministers. Almost all on ministerial advice, which by convention is followed. So, a petition of 400,000 signatures asks the Palace to refuse Assent to a Bill. Could the King refuse?

As a matter of strict law, yes. By firm convention, no, and Assent has not been refused since 1708. Hold that pattern. It runs through the whole topic. A legal power, hollowed out by a convention about how it is used.

The executive next. The Prime Minister, the Cabinet, the other ministers, the civil service. There is no legal separation between executive and legislature here. By convention ministers are drawn from Parliament and stay in it. So never write that this country has a strict separation of powers. It is partial, with checks and balances.

Ministers answer to Parliament individually, for their department and their own conduct. Give accurate and truthful information. Correct errors at the earliest opportunity. Resign if you knowingly mislead Parliament. Collectively, ministers must support decisions taken together, whatever they argued in private, or resign.

Parliament holds them to account through questions, select committees, debates and confidence votes. And the Ministerial Code? Issued by the Prime Minister, not by statute. The Prime Minister enforces it, and decides what follows from a breach. The courts have been reluctant to treat compliance as a legal obligation at all.

The executive next. The Prime Minister, the Cabinet, the other ministers, the civil service. There is no legal separation between executive and legislature, because by convention ministers are drawn from Parliament and stay in it. So never write that this country has a strict separation of powers. It is partial, with checks and balances.

Two more by name. The Salisbury convention: the Lords does not block a Bill implementing a manifesto commitment. And the Sewel convention, on devolved matters. Now the defining feature. A court will recognise that a convention exists, and may describe one in a judgment. It will not enforce it, or grant a remedy for its breach.

So our minister on television is safe from the High Court. She may be criticised. She may be dismissed. None of that is a court's business. The consequences of breaking a convention are political, every time.

Sewel is the sharpest illustration. Westminster will not normally legislate on devolved Scottish matters without the Scottish Parliament's consent. That practice was written into statute, at s.28(8) of the Scotland Act 1998, inserted by the Scotland Act 2016. Surely statutory form makes it enforceable? No. In the first Miller case the Supreme Court held that the word normally signalled a political judgement, not a rule for the courts to police.

The royal prerogative now. It is the residue of discretionary power left in the hands of the Crown at common law. No statute confers it. Ministers exercise almost all of it in the Crown's name: foreign affairs, defence, passports, mercy, honours, dissolving Parliament.

Two features follow. It can only shrink, because no new prerogative power can be created. And it exists only where no statute occupies the ground. So try this. A government faces a new technology no Act addresses, and announces that operators must obtain approval, with sanctions for those who do not. Can it do that under the prerogative? No. A novel coercive power comes from Parliament.

Which takes us to a hotel. The Crown took possession of one for wartime use. It argued it was acting under the prerogative, where no compensation was payable, not under the statutory scheme, where it was. In Attorney General v De Keyser's Royal Hotel, from 1920, the House of Lords said no. Where statute and prerogative cover the same ground, the statute governs, and the prerogative is held in abeyance. Government cannot use the older power to escape conditions Parliament has attached.

But abeyance is not abolition. Repeal the statute occupying the ground, and the prerogative can revive. Parliament has done exactly that. The Dissolution and Calling of Parliament Act 2022 repealed the Fixed-term Parliaments Act 2011, which had put dissolution on a statutory footing. The dissolution prerogative is exercisable again, as if the 2011 Act had never been enacted.

Can a court review how a prerogative power is used? Until 1985 the orthodox answer was no. Then came Council of Civil Service Unions v Minister for the Civil Service. The House of Lords held that the exercise of prerogative power is reviewable in principle. What decides review is the subject matter, not the label. Treaties, the defence of the realm and high policy are still left alone.

Two modern cases mark the edges. In the first Miller case ministers wanted to give notice of withdrawal from the European Union under the prerogative. The Supreme Court held they could not. It would remove rights an Act of Parliament had conferred in domestic law. The prerogative works on the international plane, and cannot take away statutory rights.

In the second, the Prime Minister advised the monarch to prorogue Parliament for five weeks. The Supreme Court held that advice justiciable, and unlawful. A prorogation is unlawful if it frustrates or prevents, without reasonable justification, Parliament's ability to carry out its constitutional functions. And the remedy was total. The prorogation was null and of no effect, so Parliament had never been prorogued at all.

Parliament answered that, in the same 2022 Act. Section 3 says a court may not question the exercise, or purported exercise, of the revived dissolution powers. Nor any decision relating to them, nor the limits or extent of those powers. Read that last limb again. It reaches even the jurisdiction to say how far a prerogative goes.

Parliamentary privilege next, and it is the separation of powers made visible. The foundation is Article 9 of the Bill of Rights 1689. Freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. So what is said in proceedings cannot found a claim in defamation.

A member names a businessman in a debate and accuses him of serious dishonesty. It is untrue, and it costs him dearly. That evening they repeat it, word for word, in a television interview outside. Which statement can he sue on? The interview. The chamber is a proceeding in Parliament. The pavement is not.

The second limb is exclusive cognisance. Each House regulates its own composition, procedure and discipline, and no court will inquire into it. A challenge built on a departure from standing orders fails, whatever its merits. But privilege covers proceedings, not everything a member does. In R v Chaytor the Supreme Court held that false expenses claims were not proceedings in Parliament, so the prosecutions went ahead.

Last, the law of protest, and everything turns on one distinction. The Public Order Act 1986 separates processions, which move along a route, from assemblies, which are static. Behind the Act sit Article 10, expression, and Article 11, peaceful assembly. Both are qualified: an interference must be prescribed by law, pursue a legitimate aim, and be proportionate. The police are a public authority under s.6 of the Human Rights Act 1998, so a disproportionate restriction on peaceful protest is unlawful.

Processions first. Section 11 requires written notice to the police at least six clear days before a public procession. That covers a march to support or oppose a view, publicise a cause, or mark an event. Notice is excused where it is not reasonably practicable, and funeral processions are excepted. Give it late, or depart from the notified date, time or route, and the organisers commit an offence.

Then s.12. The senior officer may impose such conditions as appear necessary, on reasonable belief of serious public disorder, serious damage to property, or serious disruption to the life of the community. A purpose of intimidating others is the fourth trigger. Conditions can dictate the route, or keep a march out of a public place.

Section 13 goes further and bans. The chief officer must reasonably believe that conditions will not prevent serious public disorder. They then apply to the local council for an order prohibiting processions in the area for up to three months. The council makes the order, with the Secretary of State's consent. In London the power lies with the Commissioner. The police apply. The council orders.

Assemblies now, and the powers narrow sharply. A public assembly, under s.16, is two or more people in a public place wholly or partly open to the air. Two. The threshold was originally twenty, and s.57 of the Anti-social Behaviour Act 2003 cut it. So three people on a pavement with banners are an assembly.

Under s.14 the triggers are the same as for a procession. But the conditions are a closed list of three: the place the assembly may be held, its maximum duration, and the maximum number of people. That is all of them. Section 14A is a narrow exception, for assemblies on land the public has no right to enter.

One thing changed recently. The Crime and Policing Act 2026 amended ss.12 and 14. An officer deciding whether the serious disruption threshold is met must now weigh the cumulative effect of repeated or concurrent protests in the same area, whatever their subject. Those provisions came into force on 29 June 2026.

One power sits outside the Act altogether. Breach of the peace is a common law concept. It arises where harm is done, or likely, to a person, or to their property in their presence. It also covers putting someone in fear of such harm, through an assault, affray, riot or other disturbance. Violence, or the threat of it. Annoying or obstructive conduct will not do.

The powers are preventive. An officer may arrest someone committing a breach of the peace. Or where one has been committed and renewal is reasonably apprehended. Or where a breach is imminent and reasonably apprehended. Short of arrest, they may move people on or contain a crowd, and they may enter private premises, including a home.

Imminent means imminent. A general fear that trouble may happen at some point will not do. The response must be proportionate under Articles 10 and 11, and aimed as far as possible at those responsible rather than at peaceful protesters. Moving a peaceful vigil two miles away because another group might turn up needs strong justification.

A word on how this is tested. You will not be asked to recall a case name or a section number. You get a scenario, five answers, and one instruction: pick the best. Learn the rules. The names here are memory pegs.

If you keep only three. Attorney General v De Keyser's Royal Hotel, from 1920, where the statute beat the prerogative and the safeguards had to be honoured. Council of Civil Service Unions v Minister for the Civil Service, where the courts took the power to review how a prerogative is exercised. And the second Miller case, where a prorogation of five weeks was held null and of no effect.

Four traps, and the examiners set all four. One: breach of the peace is not a criminal offence in England and Wales. Nobody is charged with it, and nobody is convicted of it. After an arrest the person is released once the risk has passed, or bound over by magistrates to keep the peace. Any option charging someone with breach of the peace is wrong.

Two: never apply the more than minor test to serious disruption. The word serious sets a high threshold, and ordinary inconvenience is not enough. Regulations made in 2023 tried to lower it. They were quashed in 2024 for going beyond the enabling Act, and the Court of Appeal upheld that in 2025.

Three: a prohibition order is not aimed at one march. It bans all processions, or a class of them, in the area for the period specified. That blanket quality is deliberate, which is why bans are rare.

Four: privilege belongs to the House, not the member. A member cannot personally waive it, even to sue a newspaper for distorting what she said. It exists for Parliament's functions, not hers.

Quick check. A static protest outside a company's offices, around 60 people, two hours in. The senior officer reasonably believes it may result in serious disruption to the life of the community. He wants three directions: that the protest ends by 4pm, that no more than 40 people take part, and that no placard refers to the company by name. The organiser questions the third.

Three candidate answers. One: yes, because the officer may impose whatever conditions appear to him necessary to prevent the disruption. Two: no, because conditions on an assembly are confined to its place, its maximum duration and the maximum number of people. Three: yes, because a direction about placards is a condition as to the manner in which the assembly is conducted. Pause here if you want a moment.

The answer is two. The conditions available for a public assembly are a closed list: place, maximum duration, maximum numbers. A direction about what a placard may say falls outside it. So the first two directions are lawful, and the third is not.

Why the others fail. Option one describes the wide power that applies to processions, not the closed list for assemblies. Option three invents a general power to regulate how an assembly is conducted, and there is none. The company's complaint about its reputation changes nothing.

Five things to take away. One: conventions bind politically and are never enforced by a court, even when Parliament writes them into a statute. Two: the Crown is the executive as a legal entity, and the monarch acts on ministerial advice.

Three: the prerogative is residual, cannot be created, is held in abeyance by a statute covering the same ground, and is reviewable by subject matter. Four: Article 9 protects proceedings in Parliament, not everything a member does. Five: processions can be conditioned widely and even banned, while an assembly is limited only as to place, duration and numbers.

And our minister? She may lose her job. She will not lose a case, because no court will enforce a convention. That is the end of Legal System. Next time, a new subject: Contract.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.