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Question 1
What are the main sources of law today?
Answer Plan
This is, apparently, a very straightforward question, but the temptation is to ignore the European Community (EU) as a source of law and to overemphasise custom as a source. The following structure does not make these mistakes:
- in the contemporary situation, it would not be improper to start with the EU as a source of UK law;
- then attention should be moved on to domestic sources of law: statute and common law;
- the increased use of delegated legislation should be emphasised;
- custom should be referred to, but its extremely limited operation must be emphasised.
Answer
European law
Since the UK joined the European Economic Community (EEC) (now the EU), it has progressively but effectively passed the power to create laws which are operative in this country to the wider European institutions. The UK is now subject to Community law, not just as a direct consequence of the various treaties of accession passed by the UK Parliament, but increasingly, it is subject to the secondary legislation generated by the various institutions of the EU.
European law takes three distinct forms: regulations, directives and decisions. Regulations are immediately effective without the need for the UK Parliament to produce its own legislation. Directives, on the other hand, require specific legislation to implement their proposals, but the UK Parliament is under an obligation to enact such legislation as will give effect to their implementation. Decisions of the ECJ are binding throughout the EU and take precedence over any domestic law.
Parliamentary legislation
Under UK constitutional law, it is recognised that Parliament has the power to enact, revoke or alter such and any law it sees fit to deal with and no one Parliament can bind its successors. The extent of this sovereignty may be brought into question with respect to the EU for such time as the UK remains a member, but within the UK, Parliament's power is absolute. This absolute power is a consequence of the historical struggle between Parliament and the Stuart monarchy in the seventeenth century. Parliament arrogated to itself absolute law-making power, a power not challenged by the courts, which were in turn granted an independent sphere of operation. It should be remembered, however, that the Human Rights Act (HRA) 1998 has, for the first time, given the courts the power to question, although not strike down, primary legislation as being incompatible with the rights protected under the European Convention on Human Rights (ECHR). It also allows the courts to declare secondary legislation to be invalid for the same reason.
Parliament makes law in the form of legislation, that is, Acts of Parliament. There are various types of legislation. Whereas public Acts affect the public generally, private Acts only affect a limited sector of the populace, either particular people or people within a particular locality. Within the category of public Acts, a further distinction can be made between government Bills and Private Member's Bills. The former are usually introduced by the Government, whilst the latter are the product of individual initiative on the part of particular MPs.
Before enactment, the future Act is referred to as a Bill and many Bills are the product of independent commissions, such as the Law Commission, or committees, such as the Law Reform Committee and the Criminal Law Revision Committee. Without going into the details of the procedure, Bills have to be considered by both Houses of Parliament and have to receive Royal Assent before they are actually enacted.
Delegated legislation has to be considered as a source of law, in addition, but subordinate, to general Acts of Parliament. Generally speaking, delegated legislation is law made by some person or body to whom Parliament has delegated its general law-making power. In statistical terms, it is arguable that at present, delegated legislation is actually more significant than primary Acts of Parliament. The output of delegated legislation in any year greatly exceeds the output of Acts of Parliament and, each year, there are over 3,000 sets of rules and regulations made in the form of delegated legislation, compared to fewer than 100 public Acts of Parliament. Delegated legislation can take the form of Orders in Council, which permit the Government to make law through the Privy Council. This power is usually considered in relation to impending emergencies, but perhaps its widest effect is to be found in relation to EU law, for under s 2(2) of the European Communities Act 1972, ministers can give effect to provisions of the Community which do not have direct effect. Most delegated legislation, however, takes the form of statutory instruments, through which government ministers exercise the powers given to them by general enabling legislation to make the particular rules which are to apply to any given situation within its ambit. A third type of delegated legislation is the bylaw, through which local authorities and public bodies are able to make legally binding rules within their area of competence or authority.
Delegated legislation has developed for a number of reasons. One such reason is the increased pressure on Parliamentary time, with the consequent hiving off of detailed and time-consuming work to ministers and their specialist departments. Another reason for the growth in the output of delegated legislation is the highly technical nature of the subject matter to which it tends to be addressed and the concomitant need for such rules themselves to be highly technical. Any piece of delegated legislation is only valid if it is within the ambit of the powers actually delegated by Parliament. Any law made outside that restricted ambit of authority is void, as being
Common law
The next source of law that has to be considered is case law, the effective creation and refinement of law in the course of judicial decisions. It should be remembered that the UK's law is still a common law system and, even if legislation in its various guises is of ever increasing importance, the significance and effectiveness of judicial creativity should not be discounted. Judicial decisions are a source of law, through the operation of the doctrine of judicial precedent. This process depends on the established hierarchy of the courts and operates in such a way that generally, a court is bound by the
An extension of the doctrine of judicial precedent leads to a consideration of a further possible source of law, for when the court is unable to locate a precise or analogous precedent, it may refer to legal textbooks for guidance and assistance. Such books are sub-divided, depending on when they were written. In strict terms, only certain venerable works of antiquity are actually treated as authoritative sources of law. Amongst the most important of these works are those by Glanvill from the twelfth century, Bracton from the thirteenth century, Coke from the seventeenth century and Blackstone from the eighteenth century. Legal works produced after
Custom
The final source of law that remains to be considered is custom. The romantic view of the common law is that it represented a crystallisation of common customs, distilled by the judiciary in the course of its travels around the land. Although some of the common law may have had its basis in general custom, a large proportion of these so-called customs were invented by the judges themselves and represented what they wanted the law to be, rather than what people generally thought it was.
There is, however, a second possible customary source of law and that is rules derived from specific local customs. Here, there is the possibility that the local custom might differ from the common law and thus limit its operation. Even in this respect, however, reliance on customary law as opposed to common law, although not impossible, is made unlikely by the stringent test that any appeal to it has to satisfy. Amongst these requirements are that the custom must have existed from ‘time immemorial’ (that is, since 1189) and must have been exercised continuously within that period and without opposition. The custom must also have been felt as obligatory, have been consistent with other customs and, in the final analysis, must be reasonable. Given this list of requirements, it can be seen why local custom does not loom large as an important source of law.
Question 2
How far is it true to say that society is becoming more litigious, and is a move in that direction a socially healthy development?
Answer Plan
The following issues will need to be discussed:
- society is becoming more legalistic;
- the scale of the problem;
- the experience of the USA;
- what can be inferred from booming litigation;
- the area of clinical negligence and what it can teach us.
Answer
Today, society seems much more tilted towards the legalistic settlement of disputes than it was in previous eras.
Nowadays, a person will be asked to sign solemn legal declarations if he is about to receive hospital treatment, hand in a university assignment, join a company, leave a company or even send a child to school or on a school trip. It is possible to buy confectionery nut bars bearing the label: “this product may contain nuts” and a cup of coffee with the warning: “this product is hot”.
Certainly, the range of behaviours for which people are being sued and the sorts of duties which are, allegedly, being breached have expanded in recent times — schools for failing to identify dyslexia (Phelps v Hillingdon LBC (2000)), for example, or employers for exposing employees to unbearable stress (Beverley v Birmingham CC (1999)). The headlines of recent newspaper reports indicate a similar phenomenon: “Parents sue over exam failure” (The Independent, 1 August 2000); “Insurer sues boy who ‘failed to stop accident‘” (The Independent, 19 December 2000); “Girl, 16, sues father over payment of school fees” (Guardian, 7 November 2000); “Service veterans seeking millions for combat stress” (The Independent, 22 April 2000).
According to an investigation conducted by The Independent (10 October 2000), compensation payouts are running at about £12 billion a year, with the brunt of the bill being borne by the taxpayer. This is a different index, of course, from the number of cases being brought, but it is nonetheless an important indicator of the scale of compensation. Compensation payouts in 2000 required £9 billion from the public purse. This, therefore, changes the issue into one of public importance, as the £9 billion is the equivalent of 4p on the basic rate of income tax. The money would pay for four new hospitals, or 3,000 new schools, or put £2.50 on the basic weekly pension. The Treasury, however, does not know the full scale of the problem, because the compensation claims from public bodies being found liable (which need to be paid from the public purse) are not recorded or tracked.
Eight out of 10 Whitehall departments could not say how much compensation cost them or the extent of their liabilities. The Ministry of Defence, one of the two departments that does monitor payouts, stated to The Independent that compensation claims by service personnel trebled in the period 1996–2001. The problem is so serious that the National Audit Office (NAO) is pressing the Government to establish risk management taskforces to reduce “financial loss and impropriety”. This is at a time when the Government faces a wave of new compensation claims. Miners suffering from coal dust-related lung disease are likely to get a record industrial payout of £2–3 billion. A Department of Trade and Industry spokeswoman said claims were being received at an “unprecedented” rate of about 600 a week, some dating back to the 1930s. See Griffiths and Others v British Coal Corp and the Department of Trade (2001).
The Ministry of Agriculture, Fisheries and Food is fighting a compensation battle with victims of CJD, the human form of mad cow disease, which, combined with the amount already paid out to farmers who were forced to cull their cattle, is expected to top £4 billion. The Home Office is facing a legal challenge by the former directors of Matrix Churchill — who were wrongly accused of selling arms to Iraq — which could open the floodgates for hundreds of people convicted of crimes, but subsequently exonerated, to sue the Home Office.
The NHS is the biggest single target for compensation claims. According to the Medical Defence Union, negligence claims in some areas of practice are outstripping those in the USA. The NAO says that negligence claims are exposing the NHS to “potential liabilities” now running at £2.4 billion a year, an increase of £600 million on the 2000 figure, with a further £1 billion worth of claims going unreported. The annual cost of medical negligence compensation would pay for 40,000 patients to receive dialysis treatment.
Behind the rise is a series of court rulings that have created costly potential liabilities dating back many years. Claims are also being stimulated by a burgeoning compensation industry, which attracts clients by prime time television advertising.
Councils are facing hundreds of “failure to nurture” cases, due to alleged negligence in schooling or childcare and about 4,000 claims are being brought by emergency services staff for stress suffered in dealing with incidents such as the 1996 Dunblane school massacre.
The rise in litigation is seen by many as emanating from the USA, which is generally regarded as the most litigious society in the world. It will soon become the first country in the world to boast one million lawyers. Litigation in the USA is an immensely important phenomenon, as the decision in the Florida tobacco case (July 2000) illustrates. A jury issued a “death penalty” to the big tobacco companies, ordering them to pay record punitive damages of $145 billion (£96 billion) to 500,000 sick smokers in Florida. The case will now go to a long and expensive appeal, but would bankrupt the companies if the decision is upheld. In 1999, a jury in Los Angeles awarded a $4.9 billion judgment against General Motors for the negligent production of a dangerous car, although the award was later reduced to $1.2 billion by a judge.
Curiously, official figures tell the story of a decline in litigation in England and Wales. According to Judicial Statistics, published by the Department for Constitutional Affairs, 153,624 writs and originating summonses were issued in 1995 in the Queen's Bench Division of the High Court. By 2002 the number had fallen to just 18,624. By 2005, the figure was 15,317. This is the court that deals with all substantial claims in personal injury, breach of contract, negligence actions and other civil matters. The number of claims issued in the county courts (which deal with less substantial civil disputes in the law of contract, negligence, and debt) has also fallen significantly in recent times. In 1998, the number of claims issued nationally was 2,245,324 but by 2005 the number of annual claims had fallen to 1,870,374.
It might well be that the number of actions formally commenced has fallen, while social litigiousness has risen. This could happen if many more actions were being threatened, but a substantial number were being settled by solicitors before actions went to court. Intriguingly, the phenomenon of a more litigious society can be interpreted in two quite antithetical ways. It can be seen as a desirable development, because more people are asserting their rights and are testing new claims to improve the legal protection afforded to consumers, voters, drivers, students, patients, employees, and so forth. By contrast, however, it can be seen as an undesirable development, because the law is putting more people into arm's-length, mistrustful relationships and thereby pervading communities with formal and confrontational styles of dispute settlement.
At the American Bar Association conference in London in 1999, one of the sessions was entitled “Products over the pond — is US style litigation invading the UK?” In one event, the legal consequences of a fabricated accident were played out as a drama — starting with recorded television mock news coverage of the incident. Real lawyers and judges from the USA and UK then acted out all the parts, including client interviewing and advocacy, to show how the two systems would deal with the case.
The incident under discussion was fraught with detailed uncertainties. A woman was killed when her car crashed under the rear of a large lorry she was following. The rear bumper of the lorry was possibly defective, the lorry had made an emergency stop because the van it was following had lost its load and the reason for the shed load might have been a door left open by a worker, as part of a union dispute.
In some ways, the approach of the two legal systems is very similar, in respect, for example, of the principles of establishing negligence or strict liability, but there are also key differences. The American court would hear this case with a jury, whereas in the UK, it would be heard by a judge alone. One consequence of this is that it is a judge who decides the quantum of damages, so our awards have not spiralled into the ionosphere, as in the USA.
If the American influence of litigation practice continues to develop in the UK, what shall we see next? Some lawyers are considering suits against the alcoholic beverage industry, which they would hold liable for drink-driving deaths and other alcohol-related losses, using the same “negligent marketing” allegations that have been lodged against gunmakers. An action, however, that will not be brought here is one against McDonald's by anyone who spills cold milkshake on himself while driving a car, gets a shock and crashes his vehicle. Such an action was brought in America recently, but failed.
Since the 1960s, there has been an exponential growth in people suing for alleged clinical negligence — indeed, this new term is now to replace “medical negligence”, so as to include the dental surgeons, nurses and other practitioners who are commonly facing the growth in litigation. The Medical Protection Society, the doctors' insurance body, receives over 1,000 inquiries a week, regarding incidents that could be followed by legal action.
For lawyers, clinical staff, politicians and the public, one critically important question is whether surrounding health care with the threat of litigation is a socially healthy option. Do lawyers help keep clinicians on their toes, or is the net effect the promotion of distrust between patients and the health service?
In May 1999, a conference in London, attended by the Health Minister Baroness Hayman, was told that more than 800 medical accidents happen in NHS hospitals every day. Arnold Simanowitz, a prominent medical injury lawyer, and president of the charity Action for Victims of Medical Accidents (AVMA), said that the number of medical accidents annually in the NHS was about 300,000, of which about 82,000 arose from incidents of actionable negligence. Of these, though, only 15,000 resulted in legal action. This calculation takes no account of the 9.8 million new attendances in A&E in the period April to December 1998.
The NAO reported in 1999 that the NHS was operating under the shadow of a £2.8 billion bill for negligence claims. Mr Simanowitz observed that the bill would be for a great deal more, were everyone entitled to compensation to take legal action. The mission of AVMA is to ensure that medical accidents are reduced to the barest minimum and that “when such accidents take place, all patients' resulting needs and those of their families, including that for compensation, are dealt with speedily, fairly and thoroughly”. Along with many other experienced professionals in this field, Mr Simanowitz is convinced that patients are not primarily interested in money when things go wrong. They want be to be told the truth, they want an apology, where that is appropriate, and they want changes of practice to prevent others suffering in future.
One of the greatest challenges here, however, is the absence of hard data about how many cases there are of medical negligence each year. The figure of 82,000 cases of negligence is based upon the most reliable large-scale study, the Harvard Medical Practice Study, conducted in America. It was found that 3.7 per cent of a sample of 30,000 hospital patients had been victims of medical accidents and, of these, 27 per cent had resulted from negligence. It is when these percentages are transposed into the UK raw figures that the figure of 82,000 cases of negligence emerges. When in April 1999, Jacqui Smith MP asked in Parliament how many claims have been brought against the NHS and how many were successful, she was told by John Denham: “The information is not available in the format requested.”
At another conference in London entitled “The Influence of Litigation on Medical Practice” (1999), very divergent views were expressed by lawyers and clinicians as to whether the new litigious environment was desirable.
Adrian Whitfield QC, a widely respected specialist in the field of medical litigation, identified three areas in which there have been improvements in medical practice as a result of it having come, more generally, under legal attention during the last 20 years. Medical record-keeping has, he argued, become more detailed, accurate and reliable. Communication with patients, especially over issues like consent to treatment, has become much better and in areas like obstetrics, where there has often been much dispute about whether certain procedures have caused injury, much epidemiological and neurological research seems to have been prompted by the volume of legal claims in this area.
One problem for clinicians is rising patient expectations of what medicine can achieve. In the 1950s, there were relatively few tests that could be carried out on patients to assist diagnosis. Much medical insight was gained from what was discovered after death, when patients were subject to post-mortem examinations. By contrast today, there are scores of possible tests that can be conducted on patients presenting with various syndromes. One fear is that, faced with the tide of litigation, many doctors are ordering an unwarranted range of tests on all patients, in order to safeguard against being accused of not having considered a possible diagnosis.
Margaret Brazier, director of Manchester University's Institute of Medicine, Law and Biotechnics, has referred to the “spectre of defensive medicine” in Street on Torts (1999) which has followed the rise in medical litigation. The idea is that fearful of being sued, some doctors will recommend treatments which have been generally least likely to attract litigation, rather than the treatment which might, in their better judgment, be more appropriate for any given patient. As Professor Brazier points out, however, there is very little evidence that such conduct is anything other than extremely rare.
Technically, it has recently become easier in some respects to sue health care professionals. The House of Lords has declared that in order to vindicate any treatment, it will now take more than doctors in court giving evidence that in their clinical judgment, a defendant doctor had acted reasonably. Clinical opinion with no “logical basis” can be discounted by a judge. How far the queue of medical negligence claimants is allowed to grow will now depend in no small part on governmental legal aid policy.