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. A national of most Member States of the European Union must in general be allowed to work in any other Member State and will be entitled to the same social security benefits as the ‘locals’, though the nationals of the most recent entrants had their rights temporarily restricted. Medical and nursing qualifications obtained in any Member State must be recognised in all other Member States.
Employment laws, including health and safety laws, protect those who work in Great Britain. They may also extend to those who work abroad if they have a sufficiently close connection to GB. Unfair dismissal under section 94 Employment Rights Act 1996 was held to extend to a security adviser at an RAF base on Ascension Island, who was a British citizen, domiciled in England, working for a British company and receiving his wages in a bank account in England (Lawson v. Serco (2006)). The House of Lords held that he was in effect employed in a British enclave and should be protected by British law. British unfair dismissal law also applied to pilots employed by an airline based in Hong Kong, but who were themselves based in London (Crofts v. Cathay Pacific Airways Ltd (2005)). In Hottak v. Foreign and Commonwealth Office (2016), the claimant was an interpreter employed in the British Embassy in Kabul. He was a locally recruited Afghan citizen and his contract of employment was governed by Afghan law. He wished to claim for race discrimination in an English employment tribunal, claiming that he was protected by the Equality Act. The Court of Appeal held that he did not have a sufficiently close connection with GB for the Act to extend to him.
An action for damages for a breach of contract (including a contract of employment) may be brought in domestic courts against an employer with a place of business here, wherever the employee works. There are special, and highly complicated, rules about the jurisdiction of courts in the European Union, which are outside the scope of this book. The law which the court will apply will be that chosen by the parties in their agreement. Where they have not made a choice, it will be the law of the place