A2 Principles of law Flashcards
Sources of law
Primary sources
Common law:
Judicial precedent - based on custom and practice
Statute law:
EU directives and regulations
U.K. acts of parliament and regulations
Principles and goal setting legislation
Reasonably Practicable
Is an evaluation of the quantum of risk.
Cost vs risk
Case law - Edwards vs NCB (mine road gave way)
first mentioned in section 2.1 HSWA
“It shall be the duty of every employer to ensure so far as reasonably Practicable the health safety and welfare at work of all his employees”
EU directives and regulations
Directives:
Need to be adopted by member states
Regulations:
Directly applicable law
Absolute duty
Imposes a strict duty:
Shall
Will
Must
Case law - stark v post office (bike brake failure)
summers v frost (grinding wheel)
Mentioned in law in the MHSWR 3 (1)
“Every employer shall make a suitable and sufficient assessment of—“
Practicable
Within current technical knowledge and invention (cost doesn’t come into it)
Case law - Adset v KL steel (LEV)
Marshall v Gotham (mine collapsed- comparison between Practicable and reasonably Practicable)
PUWER 11 - machinery guarding
Green and white paper
Green paper = consultative document (consultation with trade unions and industry bodies) it contains policy proposals for debate and discussion, setting out a basic premise.
White paper = following the consultation the government will publish firmer recommendations setting out broad lines of legislation
Statute law
Primary legislation:
Acts of parliament
Secondary or delegated regulation:
Regulations
Orders
Rules and bye-laws
Ratio decidendi
The rationale or decision made by the judge containing the binding precedent
This maybe the judges interpretation of a phrase “reasonably practicable”
Difference between civil and criminal law
Civil law:
Based on legal precedent, law of the land and is intended to right a civil wrong (compensate)
Based on balance of probabilities
County court or high court
Criminal law:
Infringement of statute law as passed down by parliament, enforced by HSE, based on beyond reasonable doubt. Intended to punish
Magistrates or crown court
General structure of the courts
Civil:
County> High Court (queens bench) > court of Appeal
Criminal:
Magistrates> Crown court> High court (queens bench)
Triable either way
A criminal offence that can be heard in either the magistrates or Crown court. If the magistrates decides their sentencing powers are sufficient to deal with the offence, the accused may decide whether to have it dealt with summarily in the magistrates or by incitement in the crown court.
Summarily v indictment
Summarily = judges decision
Indictment = trial by jury
Essentials of a contract
A contract is a meeting of minds, where something of value has been promised in exchange for a promise.
It must be intended as legally binding and have consequences that the law can recognise and enforce and as such can not be for something illegal.
It can be written, verbal expressed or implied (ie duty of care).
Can not be made by persons under 18, of sound mind ie no mentally vulnerable (drunk, drugged or under duress).
Limited to 6 years
Remedies for unfair dismissal
Reinstatement- returning to original role as if no dismissal took place.
Reengagement - return to company but under a different role or department
Compensation- a sum awarded by way of reparation
Progression of a bill through parliament
FIRST READING - basic formal declaration of the bill (no debate)
SECOND READING - discussion of the bill (if it fails here it doesn’t move forward)
COMMITTEE STAGE - subject to close scrutiny (amendments made at this stage)
REPORT STAGE - review and either progress or move back to committee stage
THIRD READING - voted against - if passed receives royal assent
HSWA section 15
This regulation allows the Secretary of State to make, retract or amend regulations (in this case the secretary for work and pensions).
Proposals for regulations are submitted to the appropriate minister by the HSE after consultation with government departments, LAs and other interested bodies. Proposals are often circulated in the form of a consultative document to bodies such as TUC, industry representatives trade unions etc.
In its final form it’s proposed to both Houses of Parliament for 40days, if there are no objections it will become law.
Difference between acts of parliament and regulations
Regulations are one form of delegated legislation made possible by HSWA15 which gives power to the Secretary of State to make regulations for health and safety purposes
Acts of parliament have been voted through parliament as a bill that had to be passed via both houses
Define tort
A tort is a civil wrong, ie trespass, defamation
Health and safety offences dealt with by an industrial tribunal
- Time off for training safety representatives
- Failure to pay a safety representative for time off carrying out his/her functions and training
- Failure of an employer to make a medical suspension payment
- Dismissal, actual or constructive, following a breach of health and safety law and/ or terms of an employment contact
- Appeals against an improvement or prohibition notice.
Protection for whistle blowers
Public interest disclosure act protects those who whistle blow on
- A criminal offence that has been, is being or about to be committed.
- That a person has failed, or is likely to fail to comply with legal obligation to which he is subject
- miscarriage of justice has, is or likely to occur
- Health Safety of any individual has, is or likely to be endangered
- The environment is, has or likely to be damaged
- that information tending to show any matter within one of the preceding paragraphs has, is or likely to be deliberately concealed.
Prescriptive and goal setting legislation
Prescriptive- detailed legislation with clear instructions as to what the duty holder should do in detailed terms eg PUWER s33(2)
Goal setting- specifies broad objectives to achieve but leaves the duty holder to decide the best way to achieve the goal eg HSWA s2(1)
Common law
Originates from judicial precedent and is based on custom and practice.
Advantage = are its based on Practical experience
Disadvantage = the law is uncertain until a case comes before a judge.
Definition of negligence
Any act or omission which falls short of a standard to be expected of “the reasonable man.”to take proper care over something.
Cost benefit analysis CBA with regards to regulations
When a proposal is put forward it is important that thought be given to the impact of the changes. It’s no good introducing legislation that’s too expensive or impractical to implement.
Analysis should include the following
- Description of industry
- Evaluation of the risks addressed
- Assessment of the benefits attributable to the final standards
- Availability of technology
- Estimated cost of compliance
- Economic feasibility of compliance to standard
- impact on small businesses associated with compliance
Cost benefit analysis CBA with regards to regulations
When a proposal is put forward it is important that thought be given to the impact of the changes. It’s no good introducing legislation that’s too expensive or impractical to implement.
Analysis should include the following
- Description of industry
- Evaluation of the risks addressed
- Assessment of the benefits attributable to the final standards
- Availability of technology
- Estimated cost of compliance
- Economic feasibility of compliance to standard
- impact on small businesses associated with compliance
Employment tribunals can deal with
- Sex discrimination
- Race relations
- Trade unions
- Unfair dismissal/ employment protection
- Equal pay
- Industrial relations
- Appeals for enforcement notices
