a failure to follow their advice may be regarded as evidence of fault, though in a few cases courts have decided that a Code is wrong and it has had to be amended. Examples are Approved Codes of Practice under the Health and Safety at Work Act and the ACAS Codes under a number of employment statutes. Amendment of a Code is simpler than altering legislation and judges can be more flexible in their interpretation.
As long as the United Kingdom remains a Member State of the European Union and the Council of Europe, courts must interpret legislation as far as possible to give effect to European directives and the European Convention on Human Rights. This will sometimes necessitate stretching words to cover situations not previously envisaged. One example in the field of disability discrimination is Coleman v. Attridge Law (2008) (Chapter 8). The Disability Discrimination Act 1995 on its literal meaning quite clearly protected only those who were themselves disabled, but after the European Court of Justice decided that the EU Employment Equality Directive 2000 extended the protection against direct discrimination and harassment to primary carers of the disabled, an employment tribunal held that the Act should be construed to give effect to that ruling, and this was upheld by the Employment Appeal Tribunal. This was given statutory effect in the Equality Act 2010. As long as the UK remained in the EU courts had to interpret legislation as far as possible in line with European directives and decisions of the EU court. After Brexit and a transitional period which, at time of writing, is planned to cease on 31 December 2020, this will no longer apply. However, decisions of the European Union Court of Justice before that date, for example in the field of disability discrimination, will remain in force until reversed by the Supreme Court.
Judicial review of administrative action
The sovereignty of Parliament means that any decision of a UK court can be overruled by an Act of Parliament, but not that the Executive has a free hand. The rule of law subjects public authorities, up to and including Ministers of the Crown, to the jurisdiction of the courts, sometimes to their considerable annoyance. The power of judicial review of administrative action is conferred on the Administrative Court, part of the High Court. The citizen may petition the judges for justice in the same way as in past centuries he would supplicate the sovereign. The primary tasks of the judges in a judicial review case are to interpret statutes, control unreasonable exercise of discretion, examine the validity of secondary legislation, determine the fairness of procedures and prevent bias. Occupational health professionals will be familiar with these procedures if they work in the public sector, because, for example, a decision to refuse a pension may be appealed to the Administrative Court.
One such example was Commissioner of Metropolitan Police v. Stunt (2001). Stunt was a former police officer who was medically retired in 1996 after 28 years in the force. Under reg B4 of the Police Pensions Regulations 1987 a police officer became entitled to an additional injury pension if he was ‘permanently disabled as a result of an injury received without his own default in the execution of his duty’. Stunt retired as a result of a permanently disabling psychiatric injury suffered in reaction to an internal police investigation in which he was accused of misconduct. He had arrested a headmaster accompanying a group of pupils outside the Palace of Westminster. A disciplinary hearing was in fact never held because Stunt went off sick and never returned. Both the selected medical practitioner and the independent medical referee decided that he had not suffered an injury on duty. He asked the Administrative Court to rule that the doctors had wrongly interpreted the regulations, but the Court of Appeal eventually held that they were right: an injury which results from subjection to disciplinary proceedings cannot be regarded as received in the execution of duty. In 2019 the decision of the Prime Minister to advise the Queen to prorogue Parliament was held unlawful by a unanimous Supreme Court of 11 justices (Miller v. Prime Minister (2019)).
Criminal and civil law
The criminal law is concerned with the punishment of those who offend against society as a whole. Criminal prosecutions are brought by public officials such as the Crown Prosecution Service (Procurator Fiscal in Scotland) and the Health and Safety Executive. The defendant has to bear the costs of his defence, unless he qualifies for public funding. If a defendant is convicted, he will be sentenced to some form of penalty, like a fine, imprisonment or community service. The money paid in fines goes to the courts, not to the victims of crime.
Compensation is a function of the civil law. The claimant (pursuer in Scotland), the individual harmed by an unlawful act, sues in the civil courts or tribunals for damages to make up for what he has suffered. He may also ask for a court order, like an injunction (interdict in Scotland), directing the defendant to return to legality, breach of which will be a contempt of court. The claimant has to finance his own civil action, unless poor enough to qualify for public funding. It is now possible for a solicitor to represent his client on a conditional fee basis, that is that he will waive his fee if he is unsuccessful, but will charge a higher fee if successful in litigation. Conditional Fee Agreements are regulated by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. They must be made in writing and must make clear the amount of the ‘success fee’ expressed in percentage terms which will be payable to the solicitor out of the damages if the claim is successful. In personal injury claims no deduction can be more than 25 per cent of the total damages. The winner of an action in the civil courts will almost always obtain an order that the loser must pay at least some of his costs and these will be paid to the solicitor. Any remaining costs (for example to pay the barrister and expert witness) can be covered by legal expenses insurance. If the case is lost, the claimant will not have to pay his opponent any legal costs unless he has been dishonest or had no reasonable grounds to make the claim. This ‘no‐win, no‐fee’ system has been criticised as encouraging a compensation culture. Television advertisements encourage people to bring claims for accidental injury. Claims handling companies must be registered and from 2019 are regulated by the Financial Conduct Authority.
The separation of punishment and compensation is not absolute. Criminal courts are empowered to order the convicted criminal to pay small amounts of compensation. Victims of violent crime can claim compensation, financed by taxation, from the Criminal Injuries Compensation Authority. Those who flout an injunction granted by a civil court may be jailed for contempt. Also, many incidents give rise to both civil and criminal proceedings. For example, a company fails to provide protection for employees working with asbestos. It is prosecuted, convicted and fined in the criminal court for breach of regulations made under the Health and Safety at Work Act, a criminal statute. One of the employees concerned is diagnosed as suffering from lung cancer and asbestosis. He claims a disablement pension from the Department for Work and Pensions and sues his employer in a civil court for damages for the tort of negligence. The criminal penalty will be paid by the company, but the compensation will be paid by insurance, state‐administered in the case of the pension and privately organised in the case of the award of damages.
The geographical extent of the law
The United Kingdom consists of England, Wales, Scotland and Northern Ireland. England and Wales have the same law on the whole, but Scotland has a separate legal system and different procedures. As a general rule, Acts of the Westminster Parliament relating to health and safety, employment law and equal opportunities apply throughout Great Britain (which includes Scotland but excludes Northern Ireland). The Northern Ireland Assembly has had a chequered history in recent years, but since 1997 is competent to pass its own laws. Scotland and Wales now have devolved administrations and the Scottish Parliament has power to make law in a number of important fields, including health and education; the Welsh Assembly has power to pass legislation within a limited field of competence.
The Health and Safety at Work Act (Application outside Great Britain) Order 2013 extends the application of the Health and Safety at Work Act to offshore oil and gas installations, pipeline work, offshore construction, diving operations, etc. Safety statutes do not otherwise protect those who work abroad: they will have to rely on local regulations.
