There are two main types of law. Criminal law that controls public order and determines how those who disrupt it should be dealt with. These 'offences' can range from serious to minor offences. They are dealt with in criminal courts. Civil law can be seen as all law that is not criminal, and is also known as private law. Some of the main branches of civil law are land law, family law, company law and torts. In the United Kingdom the highest tier of law has for centuries been the statutes or acts issued by parliament.
But since the United Kingdom accepted the Treaty of Rome and entered the European community, and the consequences of this decision were spelled out by Parliament in the European Communities Act 1972, there is a higher tier of law, that of the European Community Law, which take precedence over United Kingdom Law1.
There are various different sources of law. The term 'source' can mean a number of things, there are formal sources of law – where the law derives its binding source from i. e. why it is called that name e. g. business law. The main source of UK law is from legislation i. e. from UK or Scottish parliament, but one third of UK legislation comes from Europe. There are also other common law sources. The EC Treaties are the primary legislation and these then give rise to secondary legislation in the form of Regulations, directives and Decisions. Regulations and Decisions are 'directly applicable' in member states of the EC; they have the force of law without the need of any further national legislation.
Regulations are binding in their entirety on all member states, while Decisions are binding only on those states, corporations or individuals to whom they are addressed. Directives (which are usually Health and Safety Law) are not directly binding. A directive may set a time limit for the implementation of its provisions. A person who suffers loss as a result of their government's failure to change national law within the specified time can sue the government to recover compensation for losses suffered.
However, public utilities such as ourselves, can be subject to legal action brought by a party using a directive even though it has not been passed as law. As a public utility, we are seen as an emanation of the state. To qualify as an emanation of the state the entity should provide a public service, should be under the control of the state, and should have powers in excess of those which result from the normal rules applicable in relations between individuals: Foster v British Gas Corp. 1991.
Thus the European Health and Safety directives may be directly enforced by employees against state employers2. The structure of UK Health and Safety Law has two main branches. The criminal law, set out in statutes and known as statute law (or legislation), and common law (civil law), which produces a means of compensation for injuries or damage suffered because of a failure of another party to comply with the duties established by common law over the years3. Statutory duties are comprised in Acts passed by Parliament (e. g.
Health and Safety at Work etc Act 1974) or regulations which are made by government ministers using powers given to them by virtue of Acts. The Act of Parliament is therefore the primary legislation; regulations made under Acts are secondary, subordinate delegated legislation. Delegated legislation relates to situations where the right to legislate has been delegated to another party. Parliament delegate's power by an enabling Act which enables government ministers or local authorities to create regulations (statutory instruments) or byelaws.
In terms of Health and Safety Law the Statutory Instruments or Regulations are more important. Under such powers of an enabling Act of Parliament, government ministers and public bodies (such as the Health and Safety Commission and Executive) are empowered to draft regulations which fall within the scope of their areas of responsibility. The guiding Act of Parliament (e. g. the Health and Safety at Work etc Act 1974) sets out a general framework and guiding parameters for the enacting of delegated legislation which brings into being particular rules and regulations within the general sphere of activity.
Delegated legislation usually affects the public and companies more than the Acts of Parliament, however it is not widely publicised and the people it affects are expected to find out for themselves. In law, ignorance cannot be used as a defence. Regulations can apply to employment conditions generally, for example the Noise at Work Regulations; they can control specific hazards in specific industries (such as the Construction (Health, Safety and Welfare) Regulations); and they can have the most general application, as in the case of Reporting of Injuries, Diseases and Dangerous Occurrences Regulations.
Approved Codes of Practice (ACoPs) can supplement Acts and Regulations, in order to give guidance on the general requirements which may be set out in the legislation (thus effectively enabling the legislation to be kept up to date by revising the code of practice rather than the law). The HSC has power to approve codes of practice of its own, or of others such as the British Standards Institution3.
A failure on the part of any person to observe the provisions contained in an Approved Code of Practice does not, of itself, render that person liable to any criminal or civil proceedings, but in any criminal proceedings, if a person is alleged to have committed an offence concerning a matter in respect of which an Approved Code is in force, the provisions of that Code are admissible in evidence, and a failure to observe it constitutes proof of the breach of duty, or contravention of the regulation or statutory provision in question, unless the accused satisfies the court that he complied with the regulation of the law in some other equally effective manner. Approved Codes, therefore, are guides to good safety practice.
If a person follows the requirements of the Codes it is unlikely that he will be successfully prosecuted for an offence. If he fails to follow the Code, he may be guilty of an offence unless he can show that he observed the specific legal requirements in some other way (HSWA, s. 17)4. The Commission and Executive frequently issue Guidance notes, sometimes alongside Codes and sometimes independently. Guidance notes contain practical advice and sound suggestions, and are frequently more informative than Codes. Although the Guidance notes have no legal standing, it is possible to use them as evidence of the state of knowledge at the time of issue.
Due to their origin and the experience employed in their production, they are 'persuasive' in practice to the lower courts and useful in civil cases to establish reasonable standards prevailing in an industry. In Burgess v Thorn Consumer Electronics (Newhaven) Ltd it was held that if employers do not warn employees of the dangers referred to in the Guidance notes, they may be liable to employees for negligence, as the notes indirectly give rise to a duty of care. ACoPs and Guidance Notes can therefore be said to have a 'quasi-legal' status, rather like the Highway Code 3,4. Health and Safety law contains different levels of duty, and there are three levels or types of duty imposed by statute, which allow different responses to hazards.
These are: absolute duty, duty to do what is practicable, and duty to take steps that are reasonably practicable. Over the years, a body of case law has built up which gives guidance on the meaning of these duties in practice. 1. Absolute Duty (also known as strict liability) – There are circumstances when the risk of injury is so high unless certain steps are taken, and in consequence Acts and regulations have recognised these by placing an absolute duty on the employer to take specific steps to control the hazard. The best-known example is probably the former Section 12 of the Factories Act 1961, which required 'the fencing of every moving part of every prime mover'.
The absolute nature of this duty was upheld by courts, even in circumstances where a machine has become practically or financially unusable because of the strict guarding requirement. Absolute requirements must be complied with whatever the practicalities of the situation or the economic burden. 2. 'Practicable' – Some regulations specify that steps must be taken 'so far as is practicable'; for example Regulation 11(2)a of PUWER 98 requires the provision of 'fixed guards enclosing any dangerous part or rotating stock bar where and to the extent that it is practicable to do so. ' 'Practicable' means something less than physically possible, and that measures must be possible in the light of current knowledge and invention3.