When someone accuses you of “breaching the rules”, what exactly have you breached? Is it the law or is it their training package / assessment sheet? Understanding the difference can prevent a lot of unnecessary expenditure and protocol, diverting you from correctly identifying legal obligations and risk.
As an Expert Witness acting for you, this is a key area I need to identify with you as soon as possible.
I am often faced with clients in confusion concerning the law and are completely confused by numerous people giving different opinions. Typically they get told “it’s the rules, you have to do it this way or you will get sued”.
My full paper on this topic aims to generally explain the hierarchy of legislation and guidance and what it means to you in reality from your liability point of view and priority in schemes of implementation, and is a key corner stone to many future papers in our “Making sense of the law “series.
ACTS are pieces of statutory legislation passed by Parliament. This is law. This is the primary legislation. Breaching of an ACT creates liability enforceable by the judicial system (courts). However, every ACT of offence also creates in law legal DEFENCES.
So ACTS are primary / statutory legislation and examples include:
- The Health & Safety at Work Act
- The Human Rights Act
- The Road Traffic Act
- Offences Against the Person Act
- Police and Criminal Evidence Act
REGULATIONS are subordinate to ACTS. They are linked to an existing ACT and they aim to aid a person to apply the principles of the primary ACT. These are formal guidelines and breaching them is not 100% enforceable in the courts unless the breach is linked to the statutory legislation offence of the ACT, and there was no defence under the Act applicable.
Examples of REGULATIONS include:
- First Aid at Work Regulations
- The Management of Health & Safety at Work Regulations
- Fire Safety Regulations
For example on page 2 of the First Aid at Work Regulations HSE book L74 it states “This guidance is issued by the Health & Safety Executive. Following the guidance is not compulsory, unless specifically stated, and you are free to take other action”
ACTS and REGULATIONS may on first encounter appear to be the same thing and equal but they are legally not the same thing and are not equal.
There are no RULES as acts of parliament.
Underneath ACTS and REGULATIONS then sits formal national guidance and often is called GUIDANCE or CODES OF PRACTICE. Examples of these are:
- Police & Criminal Evidence Act Code of Practice
- HSE First Aid at Work Approved Code of Practice
- Dept of Education Guidance on XXX
A breach of guidance or codes of practice is not necessarily an offence and would need to be directly linked back to the primary ACT offence.
Underneath these we then have individual organizational policies and procedures based upon the 3 areas listed above. However, what often happens is people making the policy or procedure are not legally trained and misinterpret the hierarchy. Policies and procedures then become prescriptive with comments such as “you must”.
Assessment criteria are then created based upon the policy and procedure so the assessors are then assessing based upon contaminated criteria, with the added challenge of informing the assessed people what they are doing / not doing is against the law, when in reality what they are doing / not doing is against a particular point of guidance or policy, not contravening any Acts or Regulations.
The next aspects we need to consider are:
- Case law / stated cases e.g. criminal cases
- Case reviews e.g. safeguarding cases
- Prosecution / charging standards
The law is not easy to understand which is why we have a judicial system containing the likes of Judges, Barristers, Solicitors, Experts.
When someone accuses you of “breaching the rules”, what exactly have you breached? Is it the Statutory law or is it their training package / assessment sheet?