12.1 Constitutional Institutions, Devolution and the Rule of Law

12.1 Constitutional Institutions, Devolution and the Rule of Law

Exam focus: SQE1 FLK1 tests whether you can advise a client who is dealing with a public body, a Bill, or a devolution dispute. Independent OpenExamPrep teaching for this section follows the SRA FLK1 list under Constitutional and Administrative law and EU law (Legal System). From 1 September 2026 the SRA deleted a standalone Legitimacy heading; those issues are examined through sovereignty, the rule of law, the prerogative and public order, not under a separate title.

Parliament and parliamentary sovereignty

The UK Parliament at Westminster is the House of Commons, the House of Lords and the Crown-in-Parliament. Parliamentary sovereignty remains the legal starting point. In Dicey's classic statement, Parliament can make or unmake any law; no person or body can override an Act of Parliament; and no Parliament can bind a successor. If two Acts collide, the later Act prevails by implied repeal. Courts interpret statutes. They do not strike down a valid Act as they would under a codified higher-law constitution.

That legal picture is politically constrained but not legally replaced. Manifesto promises, international treaties and the Sewel convention may make repeal expensive. They do not, by themselves, remove the power. So-called constitutional statutes (the Human Rights Act 1998, the devolution statutes, and historically the European Communities Act 1972) are politically hard to repeal by a side-wind, but they remain statutes. On an SQE1 item, if a later clear Act occupies the same ground, the later Act wins unless a specific later statute says otherwise.

Central government and accountability

Central government is the Prime Minister, Cabinet and the departments of state. Ministers use statutory powers and what remains of the royal prerogative. Under the Carltona principle, officials may take decisions in the minister's name. That is not a free-standing power of civil servants; it is the minister's power exercised internally.

Accountability is political and legal. Collective Cabinet responsibility means ministers support Cabinet decisions in public or resign. Individual ministerial responsibility means a minister answers to Parliament for the department. Commons tools include questions, select committees, debates and confidence motions. Legal accountability is judicial review of public-law decisions and, where it applies, a Human Rights Act claim. The Ministerial Code and the Cabinet Manual describe expected practice. They are not Acts. Breach is ordinarily a political matter, not a private-law cause of action for a client.

Devolved institutions and Westminster

Devolution is a statutory grant, not a federal compact. The Scottish Parliament, Senedd Cymru and the Northern Ireland Assembly exercise competence given by Westminster (Scotland Act 1998; Government of Wales Act 2006 as amended by the Wales Act 2017; Northern Ireland Act 1998). Westminster remains sovereign and can still legislate for each nation. Each devolution statute records that the UK Parliament will not normally legislate on devolved matters without consent. After R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, treat that Sewel / legislative-consent practice as a convention the courts will recognise as existing, not as a rule they will enforce.

Wales is named expressly in FLK1. After the Wales Act 2017, Wales uses a reserved-powers model: Senedd Cymru may legislate on matters that are not reserved. Acts of Senedd Cymru are primary legislation within competence. Welsh Ministers make regulations and orders under Senedd Acts and, where a UK parent Act so provides, under UK Acts. A provision outside competence is not law. A UK Act still applies in Wales unless a later valid Senedd Act occupies a devolved field or the UK Act limits its own extent. Scotland's reserved-powers model and Northern Ireland's transferred, reserved and excepted split rest on the same idea: devolved legislatures are powerful in practice and subordinate in legal theory.

The monarch and the Crown

Keep the monarch as a person distinct from the Crown as the executive. Most Crown activity is ministerial. Personal prerogatives that still appear in problems include appointing as Prime Minister the person who can command the confidence of the Commons, granting Royal Assent, and dissolving Parliament. The Dissolution and Calling of Parliament Act 2022 repealed the Fixed-term Parliaments Act 2011 and restored a prerogative-style dissolution, with a statutory bar on judicial review of dissolution decisions. Royal Assent is not refused in modern practice. Treat refusal as a constitutional crisis, not as a routine legal option a client can invoke.

Constitutional conventions

Conventions are non-legal rules of constitutional practice. Working examples: the monarch acts on ministerial advice; a government that loses a confidence vote resigns or seeks a dissolution; ministers are drawn from Parliament; legislative consent is sought for devolved matters. Courts may record that a convention exists. They will not grant a legal remedy for breach. On the exam, classify the source before you pick the remedy: statute is enforceable; prerogative is reviewable in principle after Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (GCHQ); convention is enforced politically.

Prerogative power, legislation and conventions

The royal prerogative is the residue of common-law Crown power that does not depend on a statute: treaty-making, deployment of the armed forces, honours, and some civil-service management. Five working limits appear repeatedly:

1. Case of Proclamations (1611): the Crown cannot change the general law by proclamation.
2. Attorney General v De Keyser's Royal Hotel [1920] AC 508: where statute occupies the field, the prerogative is displaced for that purpose.
3. R v Secretary of State for the Home Department, ex p Fire Brigades Union [1995] 2 AC 513: ministers cannot use the prerogative to frustrate a statutory scheme.
4. Miller [2017] UKSC 5: ministers could not give the Article 50 notification by prerogative because that would cut down rights in domestic law.
5. R (Miller) v The Prime Minister; Cherry v Advocate General [2019] UKSC 41: advice to prorogue was justiciable; it was unlawful because it prevented Parliament from performing its constitutional functions without reasonable justification.

Conventions tell ministers how to use remaining prerogative (act on advice; account to the Commons). They do not convert prerogative into statute. If a parent Act already provides the machinery, advise the client to attack the statutory power, not an imagined leftover prerogative.

Parliamentary privilege

Article 9 of the Bill of Rights 1689 provides that freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament. Exclusive cognisance lets each House control its own internal proceedings. Privilege protects parliamentary work. It is not a personal immunity for MPs who commit ordinary crimes outside that work. R v Chaytor [2010] UKSC 52 allowed prosecution of false expenses claims. A client cannot found a cause of action on words spoken in debate. A solicitor who is asked to sue on a Hansard extract should stop and re-characterise the claim.

Enactment, implementation and repeal by Westminster, Senedd Cymru and Welsh Ministers

Westminster primary legislation. A public Bill typically moves through first reading, second reading, committee, report and third reading in each House, then amendment ping-pong, then Royal Assent. The Parliament Acts 1911 and 1949 allow certain Commons Bills to become law without Lords agreement after a defined delay (money Bills on a shorter path). Repeal is by a later Act, express or implied.

Westminster secondary legislation. Parent Acts authorise statutory instruments. Scrutiny is commonly negative resolution (the instrument becomes law unless annulled) or affirmative resolution (approval is required). Henry VIII clauses let ministers amend primary legislation by instrument. The product is still secondary legislation, so it can be ultra vires. Implementation is often a commencement order plus departmental guidance. Guidance is not law unless the parent Act gives it legal effect.

Senedd Cymru and Welsh Ministers. A Senedd Bill needs Senedd stages and Royal Assent to become an Act of Senedd Cymru. Welsh Ministers then commence and implement through regulations. They also make instruments under UK parent Acts where those Acts confer the power. Repeal of a Senedd Act is by a later Senedd Act within competence or, legally, by Westminster. Ultra vires Welsh subordinate legislation can be quashed. An Act of Senedd Cymru outside competence is not valid law.

Separation of powers and the rule of law

The UK does not run a rigid three-branch split. Ministers sit in the legislature. Courts interpret statutes they cannot strike down. Separation of powers still does concrete work: independent judicial appointment after the Constitutional Reform Act 2005, open justice, and the ban on the executive changing the general law by prerogative.

The rule of law, in Lord Bingham's widely used working summary, requires that public power have a legal source, that disputes be decided by independent courts, that the law be accessible, and that the state provide access to justice. R (UNISON) v Lord Chancellor [2017] UKSC 51 treated employment tribunal fees as unlawful because they denied effective access to the courts. Entick v Carrington (1765) remains the classic illustration: officials need legal authority to interfere with persons or property. Ouster clauses are read strictly (Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22).

When an item looks like a legitimacy question, do not search for a heading the SRA removed. Ask: is this a legal rule or a convention; has statute displaced prerogative; does the body exercise public power so that the rule of law and judicial review apply?