Legislation - Understanding the legal framework
This is a very brief introduction to the basic workings of the English legal system. It explains the sources of law and the functions of the courts, as starting points for understanding the relationship between human rights legislation and the care and treatment of adults using care services.
The rule of law
The rule of law, in simple terms, means that neither an individual nor the state is above the law. The rule of law is a crucial element of democracy. People cannot take action in connection with another person unless the law allows it. Organisations such as local authorities cannot take action unless the law gives them the authority to do so. This applies even where the action is thought (by the person or organisation carrying it out) to be for an individual’s own good.
Common law is most simply explained as law that is established by the courts and developed from precedents, which are judicial decisions in earlier comparable cases. It is judge-made law. It is distinct from statute law, which is legislation passed by Parliament.
Equity is justice that is applied within the law, where the principles of ethics and fairness influence the decisions and outcomes. Common law remedies are limited to damages (e.g. financial compensation), however equitable remedies can, for example, insist that a party performs its obligations or restrict a person’s movement or freedoms through an injunction. If there is a conflict between the principles of common law and equity, equity prevails.
Statute law is law that has been passed by Parliament. As society has become more complex the role of common law has diminished and an ever-increasing number of statutes – Acts of Parliament – have been passed, dealing with more and more areas of behaviour within society.
Proposals for new laws, or amendments to existing laws, are initially presented to Parliament in a draft form known as a Bill. Bills can be introduced by the government, individual MPs, Lords, private individuals or organisations. A Bill will be debated and voted for in Parliament. If it is approved by a majority in the House of Commons and House of Lords, and approved by the reigning monarch (known as Royal Assent) it will become statute law – an Act of Parliament – known as primary legislation.
An Act does not necessarily come into force when it receives Royal Assent. Different Acts have different implementation schedules, which are either contained in the statute itself or announced later.
The role of the courts
Courts are bound by the rule of law and responsible for upholding it. They must decide what principles of common law and/or equity are relevant to the issues in front of them. They also have a crucial role to play in the interpretation of the will of Parliament as expressed in statute law.
Delegated (secondary) legislation
No matter how long Parliament sits, it would not be able to pass sufficient legislation in the detail that the running of a sophisticated democracy requires. As its name implies, delegated legislation gives the power to some person or body to pass legislation. Many Acts of Parliament (which are primary legislation) contain a provision that gives ministers and other executive bodies, such as the Welsh Assembly Government, power to produce detailed regulations that are not debated by Parliament but have statutory force.
Delegated legislation (also known as secondary legislation or statutory instruments) has the same effect as if it had been passed by Parliament through its normal process. The courts may overrule a decision based on secondary legislation, but they may not overrule primary legislation.
Guidance can be statutory or non-statutory. It provides advice and assistance on the procedures for putting provisions of statute into action. Statutory guidance must be followed unless there is a valid reason not to. The Code of Practice under the Mental Capacity Act 2005, for example, is statutory guidance. Non-statutory guidance is more advisory in nature and may be in a different form, for example, a local authority circular. As a general rule, all guidance should be followed unless there are powerful and justifiable reasons not to do so. In the field of social care and health services, guidance issued by the relevant Secretary of State or government department should be seen as the clearest expression of the government's intention. However, it remains the function of the courts to decide what the legislation actually means if particular guidance is questioned.
When courts have had to decide what a statute says, a series of so-called 'rules' are developed to guide the courts. Their effect is to set out the approach that should be adopted by the courts. There are three main rules: first, the 'literal rule', which says that the words in a statute are taken to have their literal meaning unless such an interpretation produces a nonsensical result. In that case the 'golden rule' applies, which says that if the literal meaning produces an absurd result then it should be looked at in the overall context of the statute. If these two rules do not help then the 'mischief rule' is applied. This rule states that meaning is interpreted in the light of the problem or 'mischief' that the statute was passed to deal with.
The Human Rights Act 1998 has an impact on statutory interpretation, in that courts must strive to interpret legislation in a way that is compatible with both the European Convention on Human Rights (EHCR) and the intention of Parliament. When it is not possible to interpret legislation in this way, the courts may quash or ‘strike down’ delegated or secondary legislation, declaring it unenforceable or illegal. They may not quash primary legislation, although they may make a declaration of incompatibility. This informs Parliament that primary legislation may be in breach of the UK's obligations under the Convention and should prompt Parliament to act, although it is not obliged to change the law. However, any declaration of incompatibility makes it clear to the government that there is a problem with the legislation and provides support for the victim in taking the challenge to the European Court of Human Rights in Strasbourg. This court hears cases brought against those states who are parties to the European Convention, and acts as a final decision-maker on allegations of non-compliance.
Public law and private law
Public law cases involve the actions of public bodies, such as local authorities. Private law cases are concerned with actions between private individuals. The actions of public bodies – because they involve them intervening with the way individuals live their lives – are required to conform to certain standards set out in administrative law.
The state is very powerful and well resourced in comparison with an individual. Administrative law attempts to ensure that justice is done between the state and the individual by embracing particular principles that operate to restrain arbitrary or wrong decision-making by the state. These principles are:
- openness and transparency
- rationality, including giving reasons for decisions
- impartiality, which means that decision-makers should be independent
- the control of discretion
- equity and equal treatment.
These principles can be collectively described as the requirements necessary for fairness, and are often referred to as the requirements of 'natural justice'. Sometimes these principles conflict, and then the decision-maker must weigh up the various principles and make the best decision they can in the circumstances. Public bodies must also take account of the legitimate expectations of people using services, which means strong indications that the user can rely on public provision.
This was demonstrated in the case of R. v North & East Devon Health Authority ex parte Coughlin (2001) [QB 213]. The local health authority decided to close the residential home in which Mrs Coughlin lived. She applied for a judicial review of the decision since she had been promised the residence would provide her with ‘a home for life’. The court ruled that the closure decision was unfair because of the promise made to Mrs Coughlin and that the decision could not be justified by an overriding public interest.
For more information on the operation of the law see e-Learning: law and social work