Understanding How Laws are Made and Decided in the context of Health and Care
It seems these days that people either ignore the law or have little understanding of how the law system works. I cannot do anything about people who ignore the law, apart from challenge and unfortunately in more and more cases actually consider legal action. Sometimes it has been necessary to take action via the courts, though I am contrary to popular belief reluctant do so. Do not get me wrong I have done so in the past and been successful but people move on and new people tend to think you will never actually take the actual step. For those of you that read my blogs, as you know I am trying to take a friendlier more open approach, but increasingly finding it difficult.
For others who seem to get frightened of the law, primarily due a lack of understanding possibly due to historical reasons and its formality. At one time only the upper members of society were taught to read and understood law (that is why it is littered with Latin phrases), and unless you make a carer out of it most people have little use for it generally, so ignore it. For those people, I want to go over some basic principles that may decrease some of the concerns surrounding the use of law.
Laws have been around forever it seems, the earliest recorded are the rules of Harumbi (approx 1792 BC. Babylonian), after which you could say came the ten commandments for Moses in the old Testament. In the past with have laws handed down from kings and queens, Later on people have created rules through democracy rather than be overruled by power and we thus had Greek and Roman and overtime even our own common law.
In essence common law is just local rules brought together so every area follows the same rules throughout the country. Most of the common rules were not even written down but were just known and used regularly. a village or area lord would make a decision, this became common knowledge and was then followed.
Within the UK, once we had Magna Cater - which contrary to popular belief was mostly for the lords to take power away from a tyrant, king John, (from the Robin hood days and keep local taxes for themselves). Eventually leading to civil war and the development of Parliament. It was decided that people would have a representative locally. This person would go to Parliament and speak on behalf of the local people. These people were voted in subject to the needs of the local people. In turn, turning in to our two party system or three as some might say. At one time left Labour common man and right Conservatives, upper class. These days there seem to be little difference in the two as they both seem quite central in their views swaying from left to right, but not leaving the centre by much so it seems.
Parliament meets discuss issues and introduce laws to try and meet the peoples needs, based on who represents them in the House of Commons. Once voted for, the member of Parliament (the MP) will vote mostly in line with his parties politics regardless of your local needs. Basically, staying in power until he is forced out.
The issues are put forward as green paper, initial ideas stage, then a white paper more detailed stage before becoming a bill. At each stage generally there are discussions back and forth over which bits need to change or be adapted to suit needs. Once they decide in the Houses of Commons, the discussions move over to House of Lords. The Lords and Ladies are usually people of high rank or particular skills or are there due to their Title or Royal rank. I often find this house to be more sensible in its ideas and tends to argue for what people want; rather than political point scoring. Regardless it is the House of Commons which holds the power and decides at the end of the day what becomes a bill, the back and forth between the the two houses goes on for a while, with two readings in each house. and then once agreed and approved by the Queen an Act of Parliament (though she could still refuse, it has however never been done to date).
One point to note is that whoever has the most seats (MP’s) in the House of Commons has the say over what laws become Acts of Parliament. Regardless of your personal feelings and petitions, most MPs will vote alongside the party they represent. There has only been a few cases where people do not and then they are usually pushed back into line. In essence, they will kick you out of the party as your not following them (personally I have always felt this is a bit of a bullying tactic and not really conducive to democracy.).
Acts of Parliament sit at the highest level. Though Europe is blamed for a lot of issues, people should remember that unlike most European countries where they just implement what the EU says and makes it a law. We have never done that. Even things like the Human Rights Act or Equality Act have been through our own system and changed to reflect our local needs. There is often confusion in the UK that Europe has a lot sway over us politically, it is not the case from a statutory point of view. However, the courts when interpreting the law can make a difference.
On the point of Human Rights or Equality, if you look back far enough you will find embers of these in our common law systems, they have always been there ( see original Bill of Rights 1869). The big difference that Europe has brought to us is where our laws were older, most of them are considered common and come from previous decisions made. Most modern laws these days are made in parliament or legislature (in America). All the Human Rights Act actually did was bring these common law statues to date by having them written down. The only difference it has actually made to the way we live our lives is previously before the Human Rights Act came in if a person wanted to argue their fundamental rights were breeched. They had to go to Europe to have the case heard. By implementing the Act in to UK legislation, anyone can now argue the case of human rights or equality issues (included in the human rights act) at a local level.
Once an Act of Parliament is made, sometimes detail is still required to understand or implement the law. So you have the overall Act and then that Government department under which the Act sits let's say the Care Act, which falls under the Department of Health and Care, brings in regulations to help and expand on the Act. In the case of dispute you always go back to the Act, as it is argued that we chose the MPs to represent us and they voted for the Act in parliament. Under regulations you may also have statutory guidance.
To clarify difficult detailed Acts again like the Care Act. Some departments will introduce statutory guidance. The intention by adding statutory means that this becomes as good as a legal document and is in essence accepted as law as in the statutory guidance under the Care Act. This tends to sit below regulations in strength.
Under Acts and locally we often have other things like orders which specify further instructions on regulations or by ways which effect local policies only. So in essence the stairway from the top in matter of importance is Human Rights at the top, Equality rights, then Acts of Parliaments, regulations then orders and Statutory guidelines.
Increasingly many public organisations like the NHS or Local authorities are using policies which are supposed to help and guide members of staff on how to work the laws into the structure with these locally. Unfortunately, it seems that most of the policies have a list of legislation on which there policy is based. On examination it becomes evident though mentioned in the policy by legislation the main reason or purpose why the the policy was put in to place often gets lost in local bean counting and increasingly people are finding that the policies do not meet the intention of the legislation. As in the case of personalisation under the NHS. The overall ethos of the idea is to give independence, choice and control, yet in implementation the process often strips away the intention, with constantly being told it is not within our process.
This can be seen as clearly evident under the Care Act, where the principle and idea is to make sure people are cared for, yet departments increasingly say no you cannot have that due to the local policy, leaving people with little choice but to challenge it through the courts. People often get confused as to how the courts work. Here again there is a ladder of seniority from local courts, magistrates, regional courts or if more serious judges. The judges increase in seniority and knowledge as they go higher leading to House of Lords or the European courts of Human Rights.
The courts get more confusing with the different types of legislation and in which court listens to what cases, you will have say civil law (arguments between people or business) than criminal law (where a person is punished for not abiding by the rules). You also have procedural and judicial review (which are used often to challenge government organisations on the meaning of the law in relation to how to define something specific).
When it comes to deciding on a case, judges will look at the ladder of law and will seek to ensure that the purpose of the law is followed. If a local policy says one thing and the law says another the law will win out. All the way up the chain.
Sometimes when the law is unclear on what it means, judges nowadays also have the opportunity to look at Hansard. Hansard is a book where every discussion in parliament is written down word for word. By looking at this it helps the judge come to the principles or the purpose of the law.
This is not the only tool open to a judge, they also have a whole set of rules to follow. Three of the more common rules include, the literal, golden and mischief rules.
The literal rule. In essence is what the person has said and take that literally. As in legal fashion all the rules have case law (or what I call stories that allow an explanation of it in use). So for the literal rule say a man applies to vote using another name. Legally this is not allowed as the law says you cannot use another person's name to vote twice. The judge in this case used the literal rule and said the man did not do anything wrong as the person was dead and as he did not exist and was not a person. Thus he cannot actually commit a crime. Seems absurd but bear with it. How many times have we got things wrong by hearing or taking things too literally?
The second rule is the mischief rule. Here the judges look at what the mischief or what was wrong in the first place that needed stopping i.e.. what were they (the law makers) trying to say. So the case or story in relation to this rule relates to ladies of the night. The law says it is illegal for such ladies to perform their trade on the streets. However, in this case the ladies were on balconies or tapping on windows to attract their clients therefore technically not on the streets. The judges decided that the actual mischief was stopping these woman from harassing people therefore the mischief was still happening regardless of it actually being on the street.
The third rule is the golden rule. This rule is used by the courts where if the literal meaning was used then it would be absurd or manifestly unjust. So the story behind explaining this rule relates to bigamy. The law stated that you cannot marry someone who is already married. That obviously though technically correct is absurd and the judge in this case said what was actually meant was that it is illegal to go through another marriage ceremony when you are already married. In this case the judge’s interpretation is based on the golden truth or the real reason behind it.
Often when you read a decision in the papers people often wonder how the judge made that decision the above may explain their way of thinking. They do not always get it right, they are human. Thus challenges occur in higher and higher courts till you get to the top.
When a judge makes a decision this is known as a precedent ie. a proceeding judge has ruled that rule this becomes the most appropriate decision on that argument at the time, unless it is challenged. When arguing a case a person has the right to ask the judge to consider a previous judges ruling on cases. Thus in Care say the Norfolk judicial review. Where the court was asked to review a decision of a Local Authority. The judge it would seem to me used the mischief rule (above) in that was the purpose of the Care Act (it is to care and allow people with needs to have a life). If a policy or decision then stops this from happening it has to be wrong. This then becomes the leading case until such time as it is changed by a higher court, or the law is changed by parliament. This can be evidenced by the judges comments when he said "whats the point of a personal budget if you cannot use it or spend it how you want".
It is unfortunate that these days more and more organisations and even the Government are increasingly not adhering to this system of law and instead are going towards or ignoring it altogether. To such a stage that the present government (new bill of rights)are trying to remove this system, and say judges cannot make these rules unless the Government says so. In essence, everyone must listen to what I say, does not sound much like a democracy where people's voices are heard.
In a society that can be considered fair and just. Laws do change as society change and grow. In these so called enlightened days with the World Wide Web, I do not think laws can even keep up with the pace and people's individual needs for recognition and justification. The concept of law for the greater good overall is sadly being eroded over time, increasingly towards you can have it if you pay for it.
This is a concern in a society we need rules that everyone follows or society breaks down, with the rule of the jungle taking sway and the survival of the fittest, meanest, biggest taking place. The law is needed to bring a balance to ensure a just playing field for the population and so all are protected and have an equal chance of having a life. Your standing in power or financial situation should not make a difference.
Unfortunately, the ways the rules are being made, not by laws but the Government cutting services, like legal aid or advocacy, or by introducing laws that restrict rights (bill of rights) it seems even the basic areas of protection for most people seems to be being harder to achieve and leave most people without protection from the law.
Comments
Post a Comment