30-ECA( W100 End of Course Assessment )
Word count: 2,434words plus refs and bibliography
Rules are necessary in a civilized society to help us in work outing differences, originating between “the province and the citizen, or between citizens themselves” ( Portsmouth NHS Trust V Wyatt and Wyatt [ 2005 ] per Hedley J at [ 4 ] ) . However, in any difference, each party will hold regulations and rules that best suit their ain beliefs or involvements. These may change, depending on their faith, their profession or their position ( for illustration, as a parent, household member or instructor ) . It is hence necessary to hold a individual set of regulations that govern everyone every bit, so that the determination reached in a difference is external to the beliefs of any peculiar group ( Arthur et al, Unit 26, p.150 ) .
The formal regulations regulating citizens of a state are described as Torahs. In order for Torahs to derive the regard of society, they must follow common values that society holds. Society expects Torahs to be merely and to ever be tied to justness ( Arthur et al, Unit 26, p.147 ) . But the values held by the populace and society by and large alteration and evolve, and the jurisprudence therefore has to, and so does, germinate in an effort to run into those values. This can be demonstrated by the development of the jurisprudence associating to corporate manslaughter. During the period 2005-2006, 212 workers were killed at work and an extra 146,076 non-fatal hurts were reported ( Health and Safety Commission, 2006 ) . Successful prosecutions for such incidents were highly rare. A figure of big graduated table catastrophes, such as the Clapham Junction clang in 1997 and the Potters Bar clang in 2002 ( Arthur et al, Unit 23 p.18 ) besides saw companies escape liability for serious loss of life, despite grounds of major weaknesss in the administration, due to miss of grounds. Such incidents might hold been treated as unfortunate accidents, but alterations in the perceptual experiences of society mean that today people are more concerned that administrations should be held accountable for their weaknesss ( Arthur et al, Unit 23 p.8 ) . The jurisprudence has had to germinate to run into these positions.
Previously, in order to procure a strong belief against a company, it was necessary to place a ‘controlling mind’ in that company that was responsible for the peculiar weaknesss. But as for the P & A ; O ferry catastrophe, it was frequently the instance that the weaknesss of many different people at all degrees contributed to the catastrophe. The debut of the Corporate Manslaughter and Corporate Homicide Act 2007 made it easier to prosecute medium and large-sized companies where gross failures of direction have led to decease. Under the Act, it is now merely necessary per Section 1 ( 1 ) to set up that the manner in which the senior direction has managed or organised the activities of the administration is a significant component of the breach that caused the decease. This is no easy effort, as identified by Harris ( Harris, cited in Arthur et al, Unit 23 pp.27-29 ) , but it is thought that the Act will better answerability. However, this is still against the corporation as a legal entity, instead than the persons concerned. This means that whilst the alterations demonstrate the development of the jurisprudence to run into society’s demand for answerability, farther alteration may be necessary in the hereafter, as society may non be satisfied that the Act does adequate to turn to its demands. Such a procedure reflects how the jurisprudence has evolved to cover with the demands of society, and this procedure shows that it is “ne’er inactive” and is “ever altering” ( Harris, 2007, p.1 ) .
The assortment of differences that are brought before the tribunals is eternal. Whilst Parliament strives to bring forth a comprehensive jurisprudence that covers as many of these differences as possible, it is portion of the Courts’ function to ‘flesh out’ this jurisprudence by using it to new fortunes non antecedently contemplated by the Legislature. This procedure expands the jurisprudence ; and sometimes, the Courts redefine their application, altering the manner they have viewed an Act of Parliament antecedently. Although the Courts are non rule-makers, in this manner, they “reinterpret” and “redefine” the jurisprudence ( Harris, 2007, p.1 ) .
Such redefinition may non merely consequence from the values of society but besides the manner society is constructed. For illustration, the construct of ‘family’ has changed a great trade through the old ages. Traditionally a household consisted of a married twosome, together with ( normally ) two kids ( Arthur et al, Unit 24 p.36 ) . Nowadays, this is far from the ‘norm’ . One in eight kids experience life in a step-family by the age of 16 ( Arthur et al, Unit 24 p.37 ) and in 2007, 14 % of ‘families’ were live togethering instead than married ( BBC, 2007 ) .
Unfortunately, the jurisprudence does non specify the term ‘family’ ( Arthur et al, Unit 24 p.43 ) – this is left for the Courts to make – but it would surely be unfair to use the traditional construct of the ‘nuclear family’ when using the jurisprudence, since this does non stand for the world. Case jurisprudence has understood ‘family’ to be those with akin or affine ties, but this does non ever reflect how society defines household. Homosexual twosomes have historically non had affine ties because they have non been permitted to get married. Under the Matrimonial Causes Act 1973, a matrimony would non be legal when the parties are non male and female severally ( Arthur et al, Unit 24 p.46 ) . The Civil Partnership Act 2004 now allows homophiles to spouse in a marriage-like relationship, and therefore, the jurisprudence treats them as household, entitling them to similar legal rights as a traditional married twosome. However, the Civil Partnerships Act applies merely to homosexual twosomes – heterosexual twosomes were dropped from its range – significance that unmarried twosomes still have issues like Anna Homsi, who was told she could non claim the war widow’s pension in regard of her long term spouse with whom she had a kid, as she was single ( Arthur et al, Unit 24 p.53 ) . In this regard, the construct of ‘family’ in a legal context has been redefined to reflect alterations in society, but as for corporate manslaughter, the rules associating to marriage and household need turn toing farther ( and so have been capable to further proposed reform ) to accurately cover with the new types of households and relationships that are prevailing in society ( Arthur et al, Unit 24 p.52-54 ) .
The regulations set out by Parliament in the signifier of the jurisprudence can non be overridden by the Courts. If Parliament has made its purpose clear in the words of a legislative act, the Court has no topographic point to make up one’s mind a instance in struggle with that legislative act ( saloon state of affairss where Parliament has said it can – for illustration, by holding on the domination of European Law ) . Parliament strives to update the jurisprudence to reflect altering values in society so that whilst non every cabal of society will hold with every jurisprudence, by and large the jurisprudence enacted is representative of society as a whole. This is reflected in the manner that every new piece of statute law is by and large capable to a drawn-out audience procedure where organic structures such as the Law Commission collect the positions of as many stakeholders as possible, before measuring the best manner for the jurisprudence to germinate, and doing recommendations to this terminal. In this respect, “regulators… strive… to guarantee that the jurisprudence invariably reflects alterations in society itself” ( Harris, 2007, p.1 ) .
Where a affair does non fall under a peculiar Act, the Courts’ function will be to widen the jurisprudence to use to a given scenario. It may be that the Courts have already done this in the past and therefore there is an illustration determination to follow. The philosophy of case in point, keeping that old determinations made by higher tribunals are followed in future instances where the facts are similar, may find a peculiar way is taken in make up one’s minding a instance. However, the higher Courts sometimes depart from case in point to guarantee that the jurisprudence continues to reflect the values held by society.
Arthur et al gives an illustration of a state of affairs where lodging to a case in point would bring forth an unfair consequence. The illustration is of a swimming race, the regulations to which stated “the victor is the first swimmer to touch the side of the pool with both custodies” . The victor of the race in inquiry had merely one arm and was accordingly disqualified ( Hutchinson, 1988, p. 23 ) . In such a scenario, clearly it would be appropriate non to use the regulation, as drafted, rather literally. The consequence would be unfair. In such fortunes, the tribunals may hold to read extra words into the regulation to bring forth a merely consequence, although they can non read words into the legislative act that travel against the will of Parliament. As celebrated, if the jurisprudence is applied unjustly it will lose its credibleness and neglect to derive the support of society. It is indispensable that Judgess maintain this in head when using the jurisprudence.
Equally good as construing Acts of Parliament in such a manner as to reflect alterations in society, Judgess may be required to specify their range. Where an Act does look to clearly put out the positions of Parliament, the restrictions of its application may be determined by the Courts. For illustration, Article 2 of the European Convention on Human Rights and Fundamental Freedoms ( “ECHR” ) , brought into consequence in English jurisprudence by the Human Rights Act 1998, denotes that:
“Everyone ‘s right to life shall be protected by jurisprudence. No one shall be deprived of his life deliberately salvage in the executing of a sentence of a tribunal following his strong belief of a offense for which the punishment is provided by jurisprudence” .
In Portsmouth NHS Trust V Wyatt, this right is qualified. The instance involved a earnestly sick babe, Charlotte Wyatt, who had no esthesis other than that of hurting. The parents of course wanted to protract her life, but the physicians felt to revive her, if she stopped take a breathing, would protract her hurting and hurt.
In making a determination, Hedley J makes mention to Re J ( A Minor ) ( Wardship: Medical Treatment ) [ 1991 ] , in which Lord Donaldson notes that a reconciliation exercising is to be performed in measuring the class of action to be adopted that represents the best involvements of the child” ( cited in Portsmouth NHS Trust V Wyatt, at [ 24 ] ) . Lord Donaldson goes on to state that there is a strong given in favor of intervention to protract life – but this is non irrebuttable. Account must be made of the hurting and enduring involved in the proposed intervention. In the Wyatt instance, Charlotte already had a really limited life anticipation and so Donaldson’s remarks in Re J ( A Minor ) that a intervention would non be in the best involvements of the kid where it would “cause increased agony and bring forth no commensurate benefit” ( Lord Donaldson, Re J ( A Minor ) , at 46–47 and 375 ) were peculiarly relevant to Charlotte.
Hedley J besides makes mention to Taylor LJ in the same instance who stated that the absolute right to life would surely non predominate where “the lone manner of continuing life [ is ] by the uninterrupted disposal of highly painful intervention” . Since the absolute right to life was rejected, the standard was so “a affair of grade” . Treatment should be withheld merely in utmost instances but Taylor suggested that these instances would be where the kid in inquiry, if capable of exerting sound judgement, would see the life tolerable under the proposed intervention ( per Taylor LJ, Re J ( A Minor ) , at at 55 and 383 ) . Taking these opinions into history, the Court in Portsmouth NHS Trust V Wyatt reached the decision that it would non be in baby Charlotte’s best involvements for her great hurting and hurt to be allowed to go on if, after she ceased to take a breath, she was intentionally resuscitated. In this manner, they qualified the Human Rights Act 1998 and the range of Article 2 ECHR. This making did non reflect any peculiar position of Parliament but alternatively reflected the positions of society, embodied in the professional medical sentiment of the physicians. In this manner, the justice can be seen to hold strived “to guarantee that the jurisprudence invariably reflects alterations in society itself” ( Harris, 2007, p.1 ) .
Whilst it is clear from the manner the jurisprudence develops that the Legislature and Judiciary both strive to guarantee it reflects alterations in society, its development can non ever be described as ‘successful’ . As celebrated, the jurisprudence must be merely and applied rightly, without which it has no value ( per Mummery LJ, quoted in Flannery, 2006 ) . However, the Legislature can merely ordain Torahs that meet with the values of the bulk. This means that non everyone will portion the same values that the jurisprudence purports to continue. For illustration, society has progressively recognised the rights of kids as being equal to those of grownups, and accordingly the Children Act 1989 gave kids the right to show an sentiment about affairs impacting their public assistance, to which the Court must hold respect when make up one’s minding issues such as where the kid should populate. The Act besides permits kids to use for tribunal orders in their ain right. Certain groups have denounced the Act as ‘a Brat’s Charter’ , claiming it undermines parental duty and grownup power over kids ( Arthur et al, Unit 24, p.65 ; Lansdown, 1994 ) . In this respect, the alterations that the Legislature makes can be seen to hold ‘changing grades of success’in that they possibly go far beyond what was required, authorising kids to ‘divorce’ their parents or ‘demanding the right to make whatever they wanted’ ( Arthur et al, Unit 24 p.65 ) , non what was originally intended by the passage of the Act.
Further, the Courts can non use the jurisprudence in such a manner that goes against the will of Parliament. This means that they may endeavor to re-explain or redefine the jurisprudence to run into alterations but there is a bound to how far they can make this. Therefore in Cairns and Gamble, the Court, with sorrow, were non able to widen the definition of the word ‘family’ to help Miss Cairns in obtain protection of her occupancy under the Rents Act ( Reader 3, Reading 36, p.97 ) . The Court was bound to see the legal significance of household and could non go from this, even though society ( peculiarly in the country concerned ) would hold recognised Miss Cairns as life in a household relationship, albeit without akin ties. It is clearly non ever possible for the justice to polish the jurisprudence to run into alterations in society when the grade of alteration required would travel against what Parliament intended.
In decision, it is clear that the set of enforceable regulations that make up our jurisprudence are of all time altering, germinating, being reinterpreted and redefined. We have seen how both the Legislature strives to alter the jurisprudence to run into society’s demands and the Judiciary strives to use the jurisprudence every bit far as possible to run into the values of society as a whole. However, both experience changing grades of success. Because values are so diverse, alterations will non be approved by every member of society. The transition of statute law, from the initial audience to the concluding passage, is sometimes highly drawn-out and complicated – the Asleep Wife’s Sister Act 1907, for illustration, took 65 old ages, 46 argument Sessionss and 18 successful 2nd readings in the House of Commons before it became jurisprudence ( Arthur et al, Unit 24 p.47 ) . Similarly, the Judiciary are faced with the hard undertaking of using the jurisprudence uniformly whilst continuing the quality of justness in their determinations. Even where a decision seems morally unfair, sometimes Judgess are limited in the action they can take, since their function is to use and construe, non to do the jurisprudence.
Arthur R. et Al. ( 2007 ) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University
BBC News, Tuesday, 6 November 2007, The UK household: In statistics hypertext transfer protocols: //news.bbc.co.uk/1/hi/uk/7071611.stm [ Accessed 1 September 2008 via Google utilizing keywords ‘uk typical family’ ]
Diduck, A. and Kaganas, F. ( 1999 ) ‘Cairns and Gamble’ , Family Law, Gender and the State, Oxford, Hart. ‘Reading 36’ , Reader 3, W100 Rules, Rights and Justice, Milton Keynes, The Open University, p.97
Harris, P. ( 2007 ) An Introduction to Law ( 7th edn ) , Cambridge, UK, Cambridge University Press, p. 1 cited in W100 Assessment Guide Part 3 ( 2008 ) p.3
Health and Safety Commission ( 2006 ) Health and Safety Statistics 2005/6 ( online ) , available at www.hse.gov.uk/statistics/overall/hssh0506.pdf quoted in Arthur R. et Al. ( 2007 ) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University, p.9
Hutchinson, A. ( 1988 ) Brooding on the Threshold, Toronto, Carswell, quoted in Arthur R. et Al. ( 2007 ) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University, p.138
Lansdown, G. , ( 1994 ) ‘Children’s Rights’ , in Mayall, B. ( ed. ) Children’s
Childhoods: Observed and Experienced, London, The Falmer Press, p.37 ; cited in
Arthur R. et Al. ( 2007 ) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University, p.65
Mummery LJ, quoted in Flannery, L. ( 2006 ) ‘In the oculus of the perceiver? ’ , New Law Journal, vol. 156, no. 7212, pp. 279, in Arthur R. et Al. ( 2007 ) Block 7 Justice, W100 Rules, Rights and Justice, Milton Keynes, The Open University p.155
Portsmouth NHS Trust V Wyatt and Wyatt [ 2005 ] 1 FLR 21
Re J ( A Minor ) ( Wardship: Medical Treatment ) [ 1991 ] Fam 33, [ 1991 ] 1 FLR 366