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Role of Government in Law Making Process

University: UKBC College London

  • Unit No: 7
  • Level: Undergraduate/College
  • Pages 16 / Words 4000
  • Paper Type: Assignment
  • Course Code: H/508/0492
  • Downloads: 0

INTRODUCTION

Business law refers to legal framework under which an organisation operates. It deals with issue of both private and public law and provides rights and regulations in relation to employment, hiring practices, security law, intellectual property and other matters related to business. This report discusses about the various sources of laws in UK and the concept of parliament sovereignty. Further, discuss about the role of government in law making process and how common and statutory law is applied in the court. The various laws in UK to which company should be complied like, General Data Protection Regulation, Equality Act and Health and Safety Act.

TASK 1

1. Meaning of statement “Parliament is Sovereign” and the various sources of UK Laws

“Parliament is Sovereign”; the meaning of statement is that Parliament has supreme legal authority in UK which means it can make or end any law in country. This is a principle of United Kingdom and one of the most important parts of the constitution of United Kingdom. The parliament sovereignty has three principal aspects i.e. no parliament can be a successor or predecessor. It is a supreme body and can enact or end any law in respect of any subject matter. No person or body except any court of law can question about validity of the law. The constitution of United Kingdom is partly written and wholly uncodified which means a large part of its constitution is not in a written form unlike other countries like USA and India.

Parliament has passed many laws to limit the sovereignty of UK parliament. They are Human Rights Act, 1988, Entry of UK into European Union, 1973 and establishment of High Court in the UK which ends power of Lord's function (Gordon,2015).

The term sources of law refers to Constitution, Statutes and Treaty or Custom that provides authority to take any judicial decision or any legislative actions. The main principal sources of UK laws are Statues, Common Law and Law from EU.

Statues refers to the legislation from UK and developed parliament. The statues are act of parliament and it is binding in nature which means that it cannot be challenged in any English Court. The sovereign body of United Kingdom consists of Queen whose role is purely formal and the House of Commons which is a main body that creates legislation in the form of statues. The formation of statues started from green consultative paper. Then proposals is been drafted in the form of bill before parliament. It codifies certain rules that are to be followed by the judges in court. Statue law works with common law for smoother functioning of courts and parliament (Beesley and et. al, 2013). Students searching to do my assignment UK services

Common Law The effect legal precedent that is been made by the judges who are present in court room i.e. this law is also known as judge made law or case law. Common law keeps on changing depending upon the case that arrived in courts. In this law, judges interpret the case by using their knowledge with regard to legal aspects, common sense and by applying the fact of previous principle or rules. English law works on the system of common law and not on the set legal statues. This law ensures that it remains common throughout the land of UK. This law was originated by the King Benches and court of Common Pleas. Common law helps in keeping statue law up to date in order to cope up with changes and problems. It helps in creating precedents at place when there is no statutory clarification is given.

European Union It is the body of treaties, courts and law that operates with legal system of EU members countries. At, the time of conflict between national law and European Union law. The decision authority lies within hands of European Union and it is binding to all member states. There is a European Commission that ensures European Union law is effectively applied. This law is divided into two sections which is primary and secondary. In primary legislation, the treaties are formed which act as base for all the actions of European Union. Whereas, directives, decision and regulations are formed from the principles and objectives of treaties in secondary legislation (Berkowitz, Lin and Ma, 2015).

The members of chambers regularly advises and appear in cases concerning European Union law in wide variety of context both in domestic and General court. The Barristers members within European Union provide their particular expertise in field of; Free movement of persons and European Union citizenship,state Aid, The Charter of Fundamental Rights.

2. The role of government in the law making process and the way statutory and common laws are applied in justice courts

Parliament has the supreme legal authority in UK. It examines the work of government and debate on formation of any law and approves them. The two legal bodies are involved in law making process which are House of Lords and House of Commons. They together make a parliament. House of Commons are the members of parliament whereas, House of Lords are appointed by government (Cole, 2017). The bill can still become a law even it is been rejected or not approved by Lords. The stages of law making in government include Bill, First and Second Reading, Committee or Report Stage, Third reading, House of Lords and Royal Ascent.

Bill contains details of proposed laws made by the civil authorities with instructions provided by government. There are three types of Bills which are Public, Private and Private Members Bill.

First reading in thisthe title of bill and what all it includes within it are read out to the House of Commons.

Second Reading here the bill is discussed and Members of Parliament make vote on whether the bill should be passed or not. At this stage, whip system is used to get support from political parties which means majority would win and the result is winning of current ruling party.

Committee Stage, the bill is represented to the House of Commons for detailed examination. Their changes can be made in the bill if required.

Report Stage, at this stage the committee who is responsible for reporting, report in the house about the amendments and debate. Bill is further voted to by the House.

Third reading, here it is represented to house and short debate is done and vote is made for its approval or rejection.

House of Lords, here the Bill is sent to Lords to undergo through the above mentioned five stages. They made amendments and the bill is sent back to House of Commons to verify them.

Royal Ascent this is the last stage where monarch or queen approved the bill and it has become an Act of Parliament (Rasch and et. al 2013).

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Statutory law refers to the legal rules or regulations which are made in order to prohibit the behaviour of public. These laws are made by the government to keep citizens of country safe and assist them to properly function. When any citizen broke the statutory law then that person is liable to have predetermined punishment in proportion to the crime done by the citizen. The court can also address any issue with help of statutory law if the issue cannot be resolved by the judge or courts decision. They are mandotry in nature (Eijffinger, 2012).

Common law refers to the law made through the decision of judges or court with regards to the prior case of similar nature. This law works on basis of certain principles. The decision is made by the Supreme Court and lower courts are bound to follow them. Precedents allows a degree of flexibility and exceptions are also made when required in the law. The areas of tort, contract and property exist within common law. The combination of both the law is been followed by UK which is important for proper functioning of judiciary service and help in serving the justice in the country.

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TASK 2.

1. Potential implications and impact of the Health and Safety regulations Equal Opportunities regulations and General Data Protection Regulation (GDPR).

Health and Safety regulations means to assure the health and safety of the employees at work in UK the law is been applied at the workplace known as Health and Safety at Work Act, 1974 (HASWA). This Act sets out certain duties for employers towards employees and public. It ensures protection against the risk to health or safety in relation to the activities conducted by person at work. The duties are qualified in the principle of “so far as is reasonably practicable”. In other words it means that employer is not responsible to take measures in order to avoid and reduce the risk if it is not technically possible and if the time, trouble and cost of the measure is grossly disproportionate to the measure (Avey, Wernsing and Palanski,2012).

This law requires how good management and common sense would address the employer to look over the risk and take sensible measure to tackle them within time. Modern Health and Safety law of the country is based on the European principle of risk assessment. The Risk assessment in any company should be simple. It should be complicated only if the firm is involved in nuclear power station, a chemical plant, an oil rig or a laboratory. The organisation is responsible to carry out following measures i.e., make arrangements for implementation of health and safety measures in context to risk assessment. Appoint a competent staff to implement these measures. Set up an emergency procedure to be followed at time of risk. Provide training to employees and clear information about the risk at workplace. The employer should work together with other employers or owners sharing the same workplace.

There are Health and Safety Executive that publishes guidance in relation to work or a particular process used in a number of industries. The employer can contact to these executive in relation to health and safety measures. The main aim of this guidance is: To help people understand what law says and how to be complied with the law. It gives technical advice when required by employer. These guidelines are not mandatory to be followed but if the employer follows them it would help it to comply with health and safety regulations. Further, it upgrades guidance due to change in technology, risk and the measures.

Approved Code of Practice it has legal statues, if any employer is found guilty of not for breaching of health and safety regulations and it is proved that employer dose not follow the Approved Code of Practice then he would be at fault in the eyes of court. These codes are generally given by HSE in order to comply with the law. They deal with a wide range of hazardous practice or materials at workplace. The employer of JPM is advised to follow the Health and Safety regulations Approved code of Conduct for there employees at workplace. This would further help company to easily comply with the Health and Safety Act (Haigh, 2013).

Regulations these are laws which is approved by the parliament. They are made under Health and Safety Act. Some issues are complicated and cannot be resolved by the employer and the measure for risk is costly thus, regulations specifies these risk and set an action to be taken. There are certain kinds of regulations which is been applied at all companies like Manual Handling which is applied wherever things are moved to any place by hand or body forcibly and Display Screen Regulation applied where Visual Display Unit's are been used. The JPM company has to use these above mentioned regulations at there workplace (Zanko and Dawson, 2012).

The case which highlighted this employer/employee duty was Wilsons and Clyde Coal Co. Ltd v English (1938), where Lord Wright said: "The whole course of authority consistently recognises a duty which rests on the employer, and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company, and whether the employer takes any share in the conduct of the operations." the House Of Lords stets that employer should provide; Proper and safe plant equipment. Safe premises, including safe access and egress.

Equal Opportunities Regulations it refers to The Equality Act, 2010 prohibits discrimination on employment or in provision with regards to training and education on the basis of following characteristics i.e., Age, gender, caste, religion, marriage, pregnancy or maternity and civil partnership. It replaced the earlier discrimination laws with the single Act. This help in making law easier and provide strength in some situations.

This Act came in force on October 2010 with provisions like, It provides basic framework for protection against the Direct and Indirect discrimination, harassment and Victimisation in service and public functions, work education, association and transport. It changes the definition of gender reassignment, by removing the medical supervision requirement. It gives uniform definition to all the characteristics against indirect discrimination. This law gives clearer protection for breastfeeding of mothers in public.

There are provisions related to work which are; Introduce new powers for employment tribunals to make recommendations which may benefit the whole workforce, It allows to claim for direct gender pay discrimination. This means JPM has to provide equal salary to there employees and cannot discriminate on the basis of gender.

As a part of Equality Act, JPM has a public sector equality which came into force on April 2011. It eliminates; unlawful discrimination, harassment, victimisation and other conduct which is prohibited by the Act, foster good relation between people who have protected characteristics.

The law has certain provisions with regards to disability. The work environment should be harmonised so that duties can be adjustable for disabled people. Provides protection against the harassment of all employees from third parties to all protected characteristics. It restricts circumstances in which job employer can ask for job applicants about disability. Thus, JPM Ltd has to be careful while employing disabled person and should see that it dose not violate there dignity and right by asking about there disability or health issues.

General Data Protection Regulation (GDPR) it refers to regulation imposed by the European Union with regards to protection of data and privacy for all individuals who are under EU or European Economic Areas. This regulation provides UK with the world's strongest data protection. GDPR came into force on 25th May 2018. The main aim of this regulation is to provide control to local residents of UK over their personal data and to simplify the regulations of international business in unifying with EU. The previous data protection act was created in year 1990. This law was not able to cope up with the change in technologies, GDPR boost the performance of the companies and helped them to protect the data of their consumers. This regulation provides harmony with data privacy law of Europe and gives right to each countries to make certain changes in relates to the Act (Nyrén, Stenbeck and Grönberg,2014.).

The General Data Protection Regulation Act replaces Data Protection Act, 1998 in United Kingdom. The law for data protection was already passed in United Kingdom before GDPR. It was redrafted and pass it to the House of Commons and House of Lords.

The scope of General Data Protection Regulation Act is much wider as it covers all Individuals, organisation and those companies who work as “processor” or “controller” of personal data. According to European Commission the term personal data means “any information relating to individual. Whether it is related to his/her private, professional or public life”, example; Name, photo, e-mail address, bank details or a a medical information.

Those companies who are covered under this act is accountable to properly handle the information of their customers. In this act “ destruction, loss, alteration, unauthorised disclosure or access to” information of any person is to be reported to the legal authority within 72 hours after an organisation comes to know about the breach. The people who are affected should also inform the regulator about this. Further, those companies who have regular and systematic monitoring of individuals on large scale must appoint a Data protection Officer (DPO). This means many organisations has to assign new job role within their company. The DPO is responsible to report to senior staff members and compile to monitor of General Data Protection Regulation Act . Data protection Officer is a point of contact for employees and customers.

The impact of General Data Protection Regulation Act will lead many companies to make changes in their privacy policies and features worldwide in order to comply with the law. The company can inform their users through e-mails or by on- site notifications with regards to changes. To comply with the law organisation and companies are given time of around two years.

When an organisation dose not comply or follows the regulation of General Data Protection Regulation Act, them it I liable to pay compensation in relation to the crime. The company would be penalised under all the three circumstances i.e., IF an organisation dose not process an individual data, if there is a security breach and If it requires to have Data Protection Officer and it do not appoint. These monetary policies in United Kingdom will be decided by Denham's office. The initial punishment would be £10 million and can be raised to 2% of companies turnover. Those who are found guilty for big offences are been punished with amount of £20 million or 4% of firm global turnover.

Thus, compliance of JPM with this law would provide better protection to their personal information of customers and employees. Being, engaged in publishing company it required to have GDPR in the organisation. Also, it would help company to penalised a person in case of breaching of their private data. Further, there is guidance on how to comply and adopt GDPR in company by Information Commissioner Officer which would assist the firm and make it easy for organisation to comply with General Data Protection Regulation Act.

2 Provide appropriate legal advice based on case law or statutes to; Champion Ltd on whether the creditors has legal powers for threatening and the processes for liquidation.

The company can undergo liquidation process by three ways which are, Compulsory liquidation, Members Voluntary or by Creditors Voluntary liquidation.

Members Voluntary Liquidation: The share holders of the company along with directors voluntary liquidates the company by appointing a liquidator to realise the asserts of firm and distribute them to the members. The company is legally solvent when they meet its financial obligations and the value of it assets exceeds all its debts and liabilities (Fan,Titman, and Twite, 2012).

Creditors Voluntary Liquidation: In this form of liquidation companies director choose to voluntarily bring down the business by appointing a liquidator to liquidate all its assets. This is different from compulsory liquidation as insolvent company is been forced to liquidate all it assets. In this process directors involves creditors while liquidating there assets. This process involves certain steps while liquidating company. They are; the director's contact an insolvency Practitioner, alternative proposals is considered, A meeting is held with creditors and a liquidator is appointed and last companies assets are liquidated (Etherington, and Ingold, 2012).

Compulsory Liquidation: In this form of liquidation companies are been forced to liquidate there assets and repay there creditors. This process take place when any unsecured creditors files a petition against the company with regard to the money invested in company. In this liquidation the process take place in the direction of liquidator appointed by the court or creditors (Pellerin and Walter, 2012).

In case of Champion Ltd, the liquidation process will be Compulsory Liquidation as the creditors of company has threatened to file a petition in the court. The legal process for liquidating assets of business would include certain steps which are as follows;

The creditors of company would first file a petition in the court asking for the liquidation of company. The petition would be heard by the judge in court. A judge then decides at a court hearing whether it is appropriate or not to wind up a company. The most common basis for winding up is the company has become insolvent. The process of wind up start as soon as the petitioner files a petition in the court. The creditors of company would provide a copy of petition to company and in due period give notice of petition in London Gazette. There would be hearing at court where Champion Ltd gets an opportunity to oppose the petition. A judge may give order of winding up or may dismiss or adjourn the petition (Guéant, Lehalle and Fernandez-Tapia, 2012).

But, if there is a winding up order then Official Receiver would be appointed as a liquidator. The creditors of Champion Ltd may appoint another individual as insolvency practitioner, to act as a liquidator. The function of liquidator is to realised the assets of company and distribute it to the creditors and if the surplus ifs left then provided to the person entitled.

The unsecured creditors is paid on pro rata basis on the end of the liquidation. The secured creditors are paid from the proceed sale of secured assets. The petitioner would be invited to provide details to liquidator for the amount of money invested in company. Creditors are entitled to receive the details regarding the process of winding up from liquidator. They have the right to form a committee with other creditors to assist the liquidator in order to fulfil his functions properly.

The salary of liquidator is paid by company as winding up expense after paying floating charge security over the assets of business.

2. Amber Ltd on the possibility of getting the injunction.

 The term injunction means a judicial order that restrain a person form invading or pursuing a legal right of another person (Smallbone, Deakins, Battisti and Kitching, 2012). In case of Amber Ltd company could file an injunction process as their employee Mr Anderson is been hired by its competitor Beta Ltd. The process of injunction refers to the equitable request that court issues an order to former employee from continuing to act as violation of the covenant or other applicable laws. This is done to prevent former employees from using the confidential details of company.

The injunction would prohibit or stop them for working with competitors. As, Mr Anderson has access to the client records, injunction would prevent him to call the clients of Amber Ltd.

But, in the above scenario Mr Anderson has already served a notice to Amber Ltd for leaving the company before 12 months and even if the company sent him the notice of injunction then he could take legal advise in order to prevent the injunction process. If he fails to take any legal action then he may cost ten to thousands of pounds as a compensation or penalty to company. This will help to get prevention from the action of High Court orders (Waters, 2013).

3. Recommend an alternative legal solution to what is suggested in based on a different legal framework. Compare and contrast the effectiveness of these solutions.

The Amber Ltd can take other legal action against Mr Anderson in order to prevent him to work with it competitor. To prevent poaching of their employees Amber Ltd can take these legal actions which are;

Enforcement of Non- Compete Agreement: In a contract law the clause of non-compete or covenant not to compete is a clause under which one party or employee agrees not to start similar profession or trade in competition against another party i.e. employer. In order to get this agreement valid the employer of company has to prove certain things i.e., The employee has a valid contractual relationship. New employer has the knowledge of that contractual relationship. The new employer tends employee to breach contract. The contract was in fact breached and The employer has caused damaged (Restrictive covenants in employment contracts, 2016). This would help Amber Ltd to retain their competent staff.

Non- Solicitation of Employee and the Duty of Loyalty: This agreement states that employees have duty of loyalty towards their employers. This means they are prohibited from scheming or influencing other employees to leave the employer. This would help to prevent mass exodus. Non- Solicitation of employee agreements has great enforceability and provide little power to the competitor for directly soliciting another companies' employee.

No Poaching Agreement with Competitors: In order to prevent poaching or soliciting of employees from company the best alternative is to enter into a contractual relationship with competitor to agree not to poach. Making of non- solicit ancillary and other “legitimate” reason would help to make contract enforceable. This would help both the organisation from the legal action and would help to save their valuable time and money.

CONCLUSION

This report concludes that there are certain legal frameworks under which company operates. These frameworks help employer to effectively guide there employees and prevent them for risk at work. The employer compliance to the laws like; Health ad Safety At Work Act, Equality Act, General Data Protection Regulations would help him to guide their employees properly and help them to prevent from other legal actions by Court. Further, in the above case certain legal solutions can be applied by company to prevent their employees from providing services to competitors.

REFERENCES

  • Avey, J. B., Wernsing, T. S. and Palanski, M. E., 2012. Exploring the process of ethical leadership: The mediating role of employee voice and psychological ownership. Journal of Business Ethics. 107(1). pp.21-34.
  • Beesley, M. E. and et. Al ., 2013. The regulation of privatized monopolies in the United Kingdom. In Privatization, Regulation and Deregulation (pp. 67-92). Routledge.
  • Berkowitz, D., Lin, C. and Ma, Y., 2015. Do property rights matter? Evidence from a property law enactment. Journal of Financial Economics. 116(3). pp.583-593.
  • Cole, D. H., 2017. Laws, norms, and the Institutional Analysis and Development framework. Journal of Institutional Economics. 13(4). pp.829-847.
  • Eijffinger, S. C., 2012. Rating agencies: Role and influence of their sovereign credit risk assessment in the eurozone. JCMS: Journal of Common Market Studies. 50(6). pp.912-921.
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