2.1 NDipA Sources and Types of Law

Question 1

Sources of Law:

Common Law

The roots (or sources) where the law comes from and how it has come about, and how it has been made:

Answer 1

1. Law established through case by case decisions
2. Reactive - came about as case law was challenged
3. Although recorded classed as ‘unwritten law’
4. Judge made precidents
5. Precedents
   
   • Ratio Decidende ‘binding legal principle’
   • Obiter Dicta ‘persuasive words’
6. These Precedents bind the court making them and all inferior courts (exception the Supreme High Court)

Question 2

Sources of Law:

Statute Law

The roots (or sources) where the law comes from and how it has come about, and how it has been made:

Answer 2

1. Statute Law is supreme to Common Law
2. Proactive - made in anticipation of a need
3. ‘written’ Principles, not made by judges but formed in Parliament
4. Judges interpret these ACTS, REGS, DIRECTIVES
5. Only Parliament can change Statues (not judges) the law can be
   
   • AMENDED make tweaks to common law
   • APPENDED add bits
   • or REPLACED
6. ACTS are principle pieces of legislation
   
   • ACTS OF PARLIAMENT. (HASWA)
     There are subordinate pieces of legislations:
   • European REGULATIONS
     (MHSWR, PUWER, LOLER, RIDDOR, COSHH, REACH)
     these are European laws which apply immediately and directly to all member states
   • European DIRECTIVES these must be implemented within 3 years but usually go under HASWA (in the form of MHSWR)
   • ORDERS
   • BY LAWS
7. Duties
   
   • ABSOLUTE - must shall will
   • QUALIFIED - SFARP SFAP

Question 3

Types of Law:

Civil Law

The branches…

Answer 3

Civil Law
- concerned with Loss Suffering

PURPOSE - provide redress to INJURED PARTIES

SANCTIONS - Remedy compensation damages remedial order injunction

WHO BRINGS - Claimant (previously referred to as the plaintive)

WHO PROVES - Claimant must prove a civil wrong

DEGREE OF PROOF - Balance of Probabilities
RISK (Likelihood x Severity) against COST (time, trouble, effort, money, difficulty)

COURTS - High > £50k. County < £50k

PARTIES INVOLVED - Claimant Vs Defendant

INSURANCE AGAINST SANCTIONS - Yes (compulsory) ERS Liability

BREACH - TORT

DURATION - Personal Injury 3 years

Question 4

Types of Law:

Criminal law

Answer 4

Criminal law
- deterant or prevent by threat of punishment

PURPOSE - deterrent prevent by threat of punishment

SANCTIONS - Loss of Liberty
Custodial sentences. and/or. Fines

WHO BRINGS - State (or a body of the state)
DPP director of public prosecution
HSE inspector
CPS Crown prosecution service

WHO PROVES - State that a crime has been committed by charge

DEGREE OF PROOF - Beyond All Reasonable Doubt (higher than civil)
(But under S40 HASWA if SFARP presumed guilty unless the claimant proves that it wasn’t SFARP…)

COURTS - Crown jail up to 6m fine unlimited but relevant to crime.
Magistrates jail up to 2y unlimited fine

PARTIES INVOLVED - Prosecution (State) accuse Defendant

INSURANCE AGAINST SANCTIONS - No - off Profit

BREACH - Crime against State

DURATION - None - however if the state have gone in to investigate you normally have to bring about in 6m (policy rather than a hard and fast rule)

Question 5

Prescriptive Vs Goal Setting Legislations

Prescriptive - says exactly what to do

Answer 5

Prescriptive - says exactly what to do

PUWER Power Press inspect every 4 hours by specified person (goes into detail what qualifies this person)

Advantages

1. No interpretation required
2. Easier to enforce
3. Same standard for every1 level playingfield
4. Does not require higher level of expertise to interpret legislation

Limitations

1. Inflexible
2. May not be wholly appropriate - too high?
3. Require frequent revision as technology advances

Question 6

Prescriptive Vs Goal Setting Legislations

Goal Setting - broad objective leaves the duty holder to decide how best to achieve this goal

Answer 6

Goal Setting - broad objective leaves the duty holder to decide how best to achieve this goal

HASWA Employers Duties ERS duty to ensure SFARP the HS and W at work of all his EES (lets the ER decide what is reasonably practicable using supporting guidance etc)

Advantages

1. More flexibility in interpreting
2. Can be related to the actual risk in the workplace
3. Less likely to need revision
4. Applies to a broader range of workplaces

Limitations:

1. Standard req may not be clear until guidance is published
2. More difficult to enforce
3. Needs a higher level of expertise in interpretation
4. Will lead to different standards due to differing interpretation