Quality Assurance and the Law

Elaine Pritchard, Richard Reeves

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135389697
• Edition: 1
• Topic: Business
• Subtopic: Business General
• Index: Business

Over the last 25 years there has been a considerable increase in the awareness of quality related issues. In the world of business and commerce, this awareness has manifested itself in the development of what was the British Quality Standard BS 5750 into what is now the international standard BS EN ISO 9000. Alongside all of this, consumers in general have developed increasingly demanding expectations with regard to the quality of goods and services available in the market place. During a similar period there has also been an increase in legislation, together with an expansion of the common law, which has strengthened the protection already afforded to the consumer. This book will provide quality practitioners, managers and those with a general interest in quality, with an insight into the legal issues involved. In addition, the book shows how the implementation of a Quality Assurance Management System - such as that required in order to be registered as a firm of assessed capability, in accordance with BS EN ISO 9000 - can act as an aid to businesses seeking to comply with their legal obligations.In addition, for those following a formal course of study, the contents will prove to be particularly useful to students undertaking the Institute of Quality Assurance's Associate Membership examination: Principles and Techniques of Quality Assurance.

---

1

Sources and Classifications of English Law

Whilst there are a number of sources or origins from which English law is derived, this book is concerned with only three. The first and most commonly known is legislation which is created by Act of Parliament. The second is case law or judge made law, and the third source is the European Community.

As one or more of these sources are concerned with legislation discussed in this book, those involved with quality management should at least have some understanding of the principles and mechanisms involved.

Legislation

In the United Kingdom, Parliament is the ultimate source of law. Once an Act of Parliament, known as a statute, has been passed and receives its Royal Assent – the approval of the Monarch – it becomes the law of the land. From that point onwards, that law must be enforced in the courts, irrespective of any contrary binding precedents which may be in existence. As a result of the ‘Sovereignty of Parliament’, law which results as an Act of Parliament cannot be challenged on the grounds of its own legality and therefore stays in force until such time as it may be amended or repealed. However, whilst statutes, once passed, cannot be challenged on the grounds of legality, they do remain open to interpretation. Many Acts do themselves contain a section on the interpretation of clauses and phrases which appear within the Act. In addition, the Interpretation Act of 1978 defines terms and phrases which commonly occur in Acts of Parliament. In court cases where the meaning of an Act appears to be obscure or open to question, it befalls the courts to provide the necessary interpretation. In so doing the court sets a legal precedent which, with certain exceptions, is bound to be followed by other courts (see Table 1.1).

Parliament also produces what is known as delegated or subordinate legislation. This type of statute confers on Ministers of the Crown, and Government departments, the power to make or amend laws which then become binding upon society and the courts. By creating what is called an enabling Act, Parliament gives authority to Ministers or subordinate departments, which in turn allows that department to create laws, or rules, to cover specific situations with which the Act is concerned. An example of this is the Health and Safety at Work etc. Act. 1974.

Case Law or Judge Made Law

These terms cover the setting of judicial precedent. During the course of a particular trial or court case, a judge may make a decision with regard to a particular aspect of the law, its interpretation, or its application in respect of the particular circumstances of the case being heard. In delivering their judgment (making the decision) judges will:

1 state the facts of the case;

2 discuss the law concerning the legal issues raised in the case;

3 discuss the law relating to the particular facts;

4 give their reasons for reaching a particular decision.

Once this is done, the point of law upon which the case was based becomes the legal precedent, which in turn binds other judges when dealing with a similar case, or with cases concerning that particular aspect of the law. An example of this is highlighted by the case of Donaghue v. Stevenson (1932).

The facts of the case were: the plaintiff, a woman by the name of Donaghue, was given a glass of ginger beer which had been poured from a bottle. As the bottle itself had been made from dark coloured glass it was not possible to see the contents clearly. Upon replenishing her glass the defendant discovered the bottle contained the decomposing body of a snail. As a result of drinking the ginger beer the plaintiff developed gastric illness as well as suffering from nervous shock. She subsequently sued the manufacturer – Stevenson – for compensation on the grounds that her resulting condition was the result of negligence.

After initially being rejected in the courts, the House of Lords ruled that the manufacturer was liable to Donaghue in the tort of negligence (see Chapter 3). In delivering judgment, Lord Atkin defined who it was that was actually owed a duty of care, when he said: ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’ To establish the definition of the term neighbour, Lord Atkin went on to say: ‘ … persons who are so closely and directly affected by my act that I ought to have them in reasonable contemplation as being affected when I am directing my mind to the acts or omissions which are called into question.’

In delivering the judgment, Lord Atkin not only defined to whom a duty of care was owed, he also gave rise to what is now referred to as the reasonable man test. The case set a legal precedent which is considered to be one of the most important of the twentieth century. As a result, Donaghue v. Stevenson has subsequently become the leading and most often quoted case concerning negligence in English law.

Whilst legal precedent becomes binding on judges and courts dealing with subsequent cases, there are however a number of exceptions, the most notable of which being those which are dealt with by the House of Lords. As the highest appeal court in the United Kingdom, concerned with both criminal and civil matters, the decisions made there are binding on all the other courts. However, the House of Lords is not bound by the decisions or precedents set by any other court, nor is it bound by its own previous rulings. Within the hierarchy of the English court system there is a general rule that the lower courts are bound by the decisions of the courts above them. However, like the House of Lords, there are other courts in the English legal system which are not bound by their own previously set decisions. A more detailed explanation of the courts which are, and those which are not, bound by precedent is given in Table 1.1.

European Community Law

The European Communities Act of 1972 created a new source of English law. As a result of the Act all courts in the United Kingdom have to recognize EC law, irrespective of whether it is a direct result of treaties between the member states, or produced by EC legislation.

Within the structure of the EC the main institutions are:

1 the European Parliament, which consists of varying numbers of representa-tives – MEPs – from each member state;

2 the Council of Ministers, which has a single representative from each state;

Table 1.1 Courts having precedent

Name of court	Whether or not bound by its own previous decisions.	Bound by the decisions made by:
House of Lords	No	Not applicable
Court of Appeal (criminal)	Not in all cases	House of Lords
Court of Appeal (civil)	Yes	House of Lords
Queen’s Bench Division of the High Court:
– (criminal)	Not in all cases	House of Lords Court of Appeal (in some circumstances)
– (civil)	Yes	House of Lords Court of Appeal
Crown Court	Varies with circumstance	House of Lords Court of Appeal Divisional Courts of the High Court
The Inferior Courts: – Magistrates (criminal) – County Court (civil)	These courts are not bound by their own decisions nor may they set legal precedent	All the superior courts

3 the European Commission, which also has a single representative from each state.

Of the three, it is the Commission alone which is tasked with the role of instigating and proposing legislation which, once enacted by the European Parliament, is subsequently presented to the Communities’ member states in the form of either a regulation, a directive or a decision.

Regulations

Regulations are automatically binding upon all the member states. In the United Kingdom, EC regulations are binding, at least in theory, without prior reference being made to Parliament. However, there will invariably be some Parliamentary discussion on the topic, or possibly the need for legislative action to be taken. This may well require the repealing or amendment of current English law which itself would be contrary to the regulation concerned.

Directives

As with regulations, EC directives are ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Acknowledgements
• 1 Sources and Classifications of English Law
• 2 Contract Law
• 3 The Tort of Negligence
• 4 The Consumer Protection Act 1987 and the General Product Regulations 1994
• 5 Sale and Supply of Goods Legislation
• 6 Fair Trading: Trade Description and Weights and Measures
• 7 Food Safety Act 1990 and General Food Hygiene Regulations 1995
• 8 BS EN ISO 9000 Quality Systems
• List of Cases
• Index