The legal framework
Sources of law
Statute law
There are two types of statute law:
- Acts - Where acts conflict, the more recent takes precedence, with the exception of 'constitutional' statutes, which will only be repealed if Parliament uses express words
- Delegated legislation:
- Statutory instruments, made by government departments
- Bye-laws made by local authorities, public and nationalised bodies, and approved by central government
- Orders in council made by government in times of emergency
Case law
What we think of as 'legislation' is one of several sources of law in the UK. The English legal system is a common law system. The judges look at what actually happened in previous cases (the 'facts' ) and how legal principles were applied. In general, judges must follow previous decisions made by a higher court in cases with the same facts.
Custom
The basis of the common law was tradition. Custom can only confer legally enforceable rights if it has existed since time immemorial, or at least 1189. The principle must also be reasonable, specific to a particular geographic area, have existed continuously and it must have been exercised as of right and consistent with other local customs. It cannot conflict with statute, and where it imposes a specific duty, the duty must be obligatory.
Equity
Equity applies to a specific set of legal principles. These added to those provided in the common law, and applied notions of good sense and fairness. Gradually equity evolved its own case law, into a body of law distinct from the common law. Both equity and common law are now implemented in the same courts, and where there is conflict, equity prevails.
Whereas common law remedies are awarded as of right, equitable remedies are discretionary, so the courts may choose whether to award them. The most important equitable remedies are:
- Injunction: the defendant is ordered to do or not do something
- Specific performance: a party is compelled to fulfil a previous agreement
- Rectification: the words of a document which does not express the true intentions of the parties to it are altered
- Rescission: the parties to a contract are restored to the position they were in before the contract was signe
EU directives and other types of EU legislation
EU law impacts on UK law several ways. National laws should be interpreted in accordance with EU legislation; so the latter has a so-called 'indirect effect'. The legislation may also take 'direct effect' (create rights and obligations without the need to make national implementing legislation). EU legislation comes in different forms:
| Treaties |
In order to have direct legal effect in the member countries, the provisions of a treaty must be unconditional, clear and precise as to the rights or obligations it creates, leaving no discretion to the member state in how to implement it. If on the other hand treaty provisions make statements of policy or intent, more detailed legislation will be required before they can be enforced in the member states. |
| Regulations |
These apply throughout the EU as soon as they come into force. If a new regulation conflicts with existing law in a member state, the regulation takes priority. |
| Directives |
Directives create rights and obligations that can be enforced against member states, but not in proceedings between individuals. The 'state' has been broadly interpreted, to include, for example, nationalised industries. |
| Decisions |
Decisions are only binding on the recipient to which they are addressed. |
| Recommendations and opinions |
Recommendations and opinions made by the council and the commission are not binding law. |
Treaties
In the UK, treaties do not automatically become part of the legal system when they are signed. Parliament needs to produce legislation to enact the commitments made in the treaty before individuals can take advantage of the provisions in the treaty. However, see the section about EU law above.
Access to legislation
UK legislation, including copies of Acts of Parliament and statutory instruments can be obtained from the Office of Public Sector Information (OPSI). In addition to dissemination of legislation and other official information, OPSI offers other services such as advice, guidance and support and click-use licensing.
All parliamentary and statutory publications and the publications of over 2,500 official bodies including government departments, agencies and other bodies is catalogued in the United Kingdom Official Publications Database (UKOP), which is published by The Stationery Office Ltd (TSO). Individual government departments also have in place their own arrangements for the publication and sale of the official publications that they produce. Information about where copies of publications may be obtained is provided on departmental websites.
European Union legislation can be accessed through the free web portal Eur-Lex. The official journal of the EU can be accessed through this website, and includes among other things treaties, legislation, case-law and legislative proposals. For further information see the Eur-Lex website http://eur-lex.europa.eu/.
Courts
There are several types of courts, which may hear different types of cases and of varying authority.
| The European Court of Justice |
The ECJ interprets the European treaties, statutes of council bodies, and decides on the validity of the acts of European community institutions. This is the highest appeal court for matters concerning EU law. The court hears proceedings against member states, and proceedings against European institutions. |
| The House of Lords |
All the other English courts are bound by the decisions made by the House of Lords. Since 1966 it has not been bound by its own decisions. |
| Privy Council |
The Privy Council is the final appeal court for many Commonwealth countries. Although the decisions made by the Privy Council are not formally binding on the English courts, they are nevertheless persuasive. |
| The Court of Appeal |
The Court of Appeal has a civil and a criminal division. |
| The High Court |
This court consists in the ordinary High Court as well as the divisional courts; the Queens bench (criminal appeals and judicial review), the Chancery division (civil appeals) and the family division (civil appeals). |
| The Crown Court |
This court is not bound by its own decisions, since it is not able to form binding precedents. The Crown Court is bound by all the courts above it. When senior judges sit in the Crown Court, the decisions may form persuasive rather than obligatory precedents. |
| Magistrates' courts, County Courts |
The decisions of these inferior courts are not reported and can produce neither binding nor persuasive precedents. |
| European Court of Human Rights |
This is an international court based in Strasbourg, hearing cases alleging breaches of the European Convention of Human Rights. The Human Rights Act 1998 requires English courts to 'take account of' the cases decided by this court, though the English courts are not bound by its decisions. |
Further information about these courts and their activities can be obtained from their websites
Enforcement agencies
Police forces cover regional areas. In addition to these regional police and constabularies, there are national police forces with specific jurisdictions.
Examples of such law enforcement agencies include
Legal Requirements
New approach directives - CE Marking
New approach directives that provide for CE marking range from the safety of toys, construction, electrical equipment and medical devices. Since 1987, many new approach and global approach directives have come into force. These directives aim to ensure:
- the free movement of goods through technical harmonisation
- a high level of protection of public interest
The key points of these directives are to:
- define mandatory essential requirements and
- conformity assessment procedures
- CE marking
The essential requirements must be met, but businesses are given a choice of how to meet these obligations.The European standards bodies draw up technical specifications which offer a pathway to complying with the essential requirements.
Further information can be obtained from the European Commission website for the new approach conformity assessment, legislation and standardisation: http://ec.europa.eu/enterprise/newapproach/index_en.htm
Consumer protection
The general law of contract gives some protection for consumers, in particular for misrepresentations. In the open marketplace, there is an imbalance of power between companies and individual consumers. Therefore, we have particular rules for consumer contracts. This includes:
- contracts for buying goods
- contracts for services
- specialist areas such as distance selling, package holidays, banking, insurance and foods
It is in the public interest to protect consumers from harmful or dangerous items, and there is a general protection from defective goods under the Consumer Protection Act 1987. The CPA transposed the EU directive 85/374/EEC into UK law. The product liability directive and the subsequent amendment 99/34/EEC together cover consumer products, products used at a place of work, primary agricultural products and games.
Producers are obliged to place only safe products on the markets, and must also inform customers about the risks associated with their products. Companies must take appropriate steps to prevent these risks, and also be able to trace their products.
There is strict liability on producers of defective consumer products, which enables consumers who sustain injuries to claim compensations if they can prove that the product was defective and that the product defect caused their injury. It is not necessary for the claimant to prove that the producer was negligent.
Under the Sales of Goods Act 1979, certain terms are implied in contracts. This makes it an implied term of contracts for sale that:
- the goods will match their description
- be of satisfactory quality
- where there is a sale by sample, the bulk of the goods will match the sample
In general, the parties to the contract are however free to decide on the terms of their contract, and most businesses would have standard terms and conditions including exclusion clauses, which the individual consumer would have little or no influence of. The Unfair Contracts Terms Act 1977 provides that the above implied terms cannot be excluded from consumer contracts.
Consumer contracts require one party to be dealing as a consumer, and the other party to be dealing the course of business. For consumers with no contractual rights, the tort of negligence may still give limited protection. Civil law provides opportunities for consumers to seek compensation when they have suffered wrongs. The criminal law on the other hand, deters the abuse of consumers. For example, the Consumer Protection Act is both criminal and civil. Other statutory provisions that lead to criminal sanctions are the Trade Descriptions Act 1968, the Consumer Credit Act 1974, the Food Safety Act 1990 and the Property Misdescriptions Act 1991. Misleading prices and false trade description are within the ambit of criminal law.
The Office of Fair Trading promotes and protects consumer interests, and has certain powers to deal with adverse consumer practices. http://www.oft.gov.uk/
For an overview of product liability from the point of view of the consumer, see the Department of Trade and Industry's leaflet Product Liability, Unsafe Products, Defective Products' http://www.dti.gov.uk/consumers/fact-sheets/page22855.html
Intellectual property
Intellectual property enables ownership of things you create in a similar way to how you can own physical property. By allowing the creator to gain reward, and to control the use of their creation, further innovation and creativity is created. Intellectual property spans a broad range of categories, from trade secrets to varieties of plants, and the same creation can be covered by several types of intellectual property protection. The main types are:
- Copyright - this protects literature, music, films etc
- Designs - this protects the visual appearance of products
- Patents - this protects technical and functional aspects of products and processes
- Trade marks - this protects signs that distinguish the goods and services of one trader from another
More information about intellectual property is available from the UK Patent Office http://www.patent.gov.uk/
Employment law
Employment law covers areas such as:
- holidays
- pay
- redundancy
- discrimination
EU law is very important in the area of employment law. The UK laws may refer questions about EU law to the European Court of Justice,
Further info is available from the Department of Trade and Industry website of employment law http://www.dti.gov.uk/employment/index.html
Data protection
The Data Protection Act 1998 aims to protect the right to privacy and sets standards for handling personal information. Non-compliance could affect the company's reputation and finances. The act applies to holding information about living individuals in electronic format, and in some instances on paper. Specific restrictions apply to sensitive information, such as health information.
The act is based around 8 principles for processing personal information. These provide that information is:
- fairly and lawfully processed
- processed for limited purposes
- adequate, relevant and not excessive
- accurate and up to date
- not kept for longer than is necessary
- processed in line with your rights
- secure
- not transferred to other countries without adequate protection
Individuals have certain rights, including the right to access the information held about them (subject access) and to correct it if it is wrong.
The UK agency for handling data protection is the Information Commissioner www.informationcommissioner.gov.uk . The IC can take enforcement action to bring processing into compliance. Individuals could also seek compensation. Data controllers must be registered with the IC. Failure to register (notify) is a criminal offence.
Health and safety
Health and safety law applies to all businesses, and covers employees, full- or part-time, temporary or permanent; the self-employed; young people doing work experience; apprentices; charity workers; mobile workers and homeworkers. There are also responsibilities relating to the hire of temporary workers from agencies.
The purpose of health and safety legislation is to prevent people from being harmed by, or become ill through work. The primary piece of legislation for occupational health and safety in the UK is the Health and Safety at Work Act 1974 (HASAW or HSW). Health and safety requirements include the need for:
- risk assessment
- health and safety policy
- employers liability compulsory insurance
- health and safety training
- employer giving competent advice
- provision of basic health, safety and welfare needs
- consulting employees on health and safety
- displaying health and safety law poster
- reporting accidents and dangerous occurrences
- registering with the Health and Safety Executive or the local authority
References
English Legal System, Catherine Elliott and Frances Quinn (2006) seventh edition, Pearson & Longman
Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the member states concerning liability for defective products
Department of Trade and Industry's: Product Liability, Unsafe Products, Defective Products fact sheet http://www.dti.gov.uk/consumers/fact-sheets/page22855.html
Directive 1999/34/EC of the European Parliament and of the Council of 10 May 1999 amending Council Directive 85/374/EEC on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.
Eur-Lex http://eur-lex.europa.eu/
European Commission website for the new approach conformity assessment, legislation and standardisation: http://ec.europa.eu/enterprise/newapproach/index_en.htm
European Court of Human Rights http://www.echr.coe.int/ECHR/
European Court of Justice website: http://curia.europa.eu/
Health and Safety Executive http://www.hse.gov.uk/
House of Lords judgments: http://www.publications.parliament.uk/pa/ld/ldjudinf.htm
Information Commissioner website www.informationcommissioner.gov.uk
Office of Public Sector Information (OPSI) website http://www.opsi.gov.uk/
Office of Public Sector Information: Unlocking the Potential of Public Sector Information. OPSI Can Help. 2006.
The Office of Fair Trading http://www.oft.gov.uk/
Trading Standards UK Guidance Leaflet listing: http://www.tradingstandards.gov.uk/cgi-bin/bgllist.cgi
UK Patent Office http://www.patent.gov.uk/