SCIE Practice guide 09: Dignity in care

Promoting dignity within the law: Sources of law

This gives 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 (guarding the rights and freedoms of individuals that have been agreed as fundamentally important in maintaining a fair society) 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 if the law prevents them from doing so. For example, organisations such as local councils cannot take action unless the law gives them the authority to do so. This applies even where the action is for the person’s own good.

The role of the courts

Courts are both bound by and uphold the rule of law. Their function is twofold. 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.

Common law and equity

Common law is most simply explained as law that is established by the courts and developed from precedents (judicial decisions in earlier comparable cases). It is judge-made law. It is distinct from statute law, which is legislation passed by Parliament.

Equity describes the principles of fairness developed by the courts to mitigate or reduce the harsh impact of certain common law rules. For example, common law remedies are limited to damages (financial compensation), whereas equitable remedies can extend to specific performance (insistence that a party performs its obligations) and injunctions (orders preventing certain behaviour such as harassment).

Statute law

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.

Statutes start life as Bills. These may be sponsored by government ministers or be private members’ Bills, and are debated and voted for in Parliament. They go on the statute book as an Act of Parliament when they receive the Royal Assent. Note: 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 Mental Capacity Act 2005, for example, was not implemented until 2007, and then in two parts).

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, and many Acts of Parliament (which are primary legislation) contain a provision which gives ministers and other executive bodies, such as the Welsh Assembly Government, power to produce detailed regulations which 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. However, the courts may overrule a decision based on secondary legislation, but not primary legislation (see Declaration of incompatibility).

Guidance

Guidance provides advice and assistance on the procedures for putting into action provisions of statute. It may be statutory or non-statutory. Statutory guidance – that is, guidance authorised by statute – is more authoritative than non-statutory guidance. The Code of Practice under the Mental Capacity Act 2005 is an example of statutory guidance. Non-statutory guidance might be, for example, in the form of local authority circulars.

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 can be taken to be the clearest expression of the government’s intention, although it remains the function of the court to decide what the legislation actually means should a particular guidance be questioned.

Good practice

Good practice is quite distinct from delegated legislation or guidance. It can be very helpful, and can provide principles for making decisions. It is not, however, statute law, and much of what does amount to good practice is not issued in the form of either regulations or statutory guidance. Therefore, good practice must always give way to the requirements of statute, regulations and guidance, if the requirements conflict.

Statutory interpretation

When courts have had to decide what a statute says, there develops a series of so-called 'rules' that 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.

Declaration of incompatibility

The Human Rights Act 1998 has an impact on statutory interpretation, in that courts must strive to interpret legislation in a way which is compatible with the European Convention on Human Rights and the intention of Parliament. When it is not possible to interpret the legislation in this way, the courts may strike down delegated legislation but not primary legislation, although they may make a declaration of incompatibility.

A declaration of incompatability is the means by which courts inform Parliament that primary legislation may be in breach of the UK’s obligations under the Convention. This should prompt Parliament to act, although it is not obliged to change the law. For more on this, see Mechanisms for enforcing human rights law.

Public law and private law

Public law cases are cases that 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. Those standards are achieved through the operation of the law. The particular area of the law that performs this function is administrative law.

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 (often described as transparency in cases)
• fairness, rationality (including giving reasons for decisions)
• impartiality (which means that decision-makers should be independent)
• accountability
• the control of discretion
• consistency
• participation
• efficiency
• equity
• equal treatment

Public bodies must also take account of service users’ legitimate expectations (which means strong indications that the user can rely on public provision). 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 he or she can in the circumstances (see box).

Further information

For more information on the operation of the law see SCIE's e-learning resources on law and social work.

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