Written by Michael Harris (October 2007)
Introduction.
In this essay, I am going to look at the purpose of both vertical and horizontal direct effects of legislation and how the three ‘sources of law’ cases relate to The Health and Safety (Display Screen Equipment) Regulations 1992; a statutory instrument that was introduced to implement an EU Directive. I will also examine the nature of Statutory Instruments, how they come into force and the advantages and disadvantages of delegated legislation.
Regulations can be both vertically and horizontally directly effective if a specific right is conferred to a citizen. A Regulation is automatically the law of the UK.
Directives are not capable of being horizontally directly effective because they are not intended to create rights to individuals. Currently, directives are only vertically directly effective against a state.
Vertical direct effect
Vertical direct effect involves the relationship between national and EC law. It is a doctrine developed by the ECJ that allows individuals to rely on the Treaty to claim against the state in national courts. The state must ensure that it complies with national law so that an individual citizen can rely on it.
The vertical direct effect of EU legislation was imposed on the UK in Marshall v Southampton AHA (1986) when it was shown that Southampton Area Health Authority were in breach of the Equal Treatment Directive 76/207, which the UK had not fully implemented at the time. They required Ms Marshall to retire at the age of 62 while her male colleagues were able to stay on until the age of 65.
In the Foster v British Gas plc (Case C- 188/890, 1990, ECR 3313),
employees of British Gas, which was then a nationalised industry, could rely directly on the Equal Treatment Directive in making claims in the English courts. Employees were dismissed when they reached the compulsory retirement age of 60 for women. Male employees were not required to retire until aged 65. At this time, there was no prohibition of discrimination in retirement ages. The employees therefore sought to rely on European law against the employers but the claim could only be brought about because the criteria for a claim included privatised industries or services that were formerly public services. Therefore, only employees of a public company (or previously public companies which have been privatised can rely on the provisions on an EU directive to lodge a claim.
So British Gas, a recently privatised company, was held to be an ‘emanation of the state’.
Horizontal direct effect
Horizontal direct effect is about the relationship between individuals or companies and the direct effect of provisions in the Treaty which allow individual rights. Citizens rely on horizontal direct effect to bring claims against other private individuals before national courts.
Regulations can be directly enforced horizontally from EU law. Directives do not have direct horizontal effect against private individuals and so the Treaty has limitations in the fields of employment and industrial relations because it does not confer individual rights in these areas. An example that shows that Directives do not have horizontal direct effect is the Duke v GEC Reliance Ltd (1988), when Mrs. Duke was unable to rely on the Equal Treatment Directive because her employer was a private company.
In the Courage Ltd v Crehan case, Article 81 of the EU Treaty was directly enforceable. Bernie Crehan became the tenant of two pubs in Staines, The Cock Inn and the Phoenix, in July 1991. He had to give up his unprofitable business and he blamed the the‘beer tie’ in his lease with Inntrepreneur. There was a clause in his lease that meant he had to buy certain types of beer for his pubs i.e. light, pale or bitter ale, exclusively from Inntrepreneur or its nominee, Courage. The beer cost him so much that he could not compete on price with neighbouring pubs. In 1993, Mr Crehan brought a claim for damages against Inntrepreneur and Courage on the grounds that the beer tie in the lease infringed Art 81.1 of the EC Treaty which prohibited restrictive arrangements that could affect trade between member states. His claim was upheld by the Court of Appeal following many hearings in the High Court and European Court.
Similarly, the Defrenne v Sabena case 43/75 required respect for the principle of Article 141 of the EC on equal pay for women and men, which states that "each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied".
The 1974 Health and Safety at Work Act (HSW Act) is a very wide ranging Act that cannot be breached. It has been used as an enabling piece of legislation which allows more detailed regulations to become law. One of them is The Health and Safety (Display Screen Equipment) Regulation 1992, which will be examined in the following cases.
Case 1
It is important to look at which parts of Mario’s case are relevant to the definition sources i.e. The Health and Safety (Display screen Equipment) Regulations 1992. We are told that Mario will use a computer monitor occasionally and so the employer must recognise that they must conform to Regulation 1 if Mario is a ‘user’. A user is defined as someone who ‘uses the display screen more or less daily and for continuous spells of an hour or more at a time’. The source information provided is insufficient and does not allow us to determine whether Mario is a ‘user’.
However, assuming that Mario can be classified as a ‘user’ and that he is about to start a new job, it is important that the workstation is assessed for health and safety risks prior to him starting work and this should be the first point of enquiry. This is a mandatory requirement because it is an EC Directive (90/270/EEC) which is binding on Member States and takes precedence over national law. So the employer must comply with the Regulations and must be pro-active in reducing any risks rather than dealing only with the problem once it has been reported by an employee. Future problems can be avoided and the risks reduced by the correct use of the workstation and good workplace design. In recent years, employees have suffered from repetitive strain injuries as a user of a computer workstation with poor ergonomic design. In the case of a clerk bringing a case against Barclays Bank, the clerk was awarded £235,000 for developing RSI as a result of poor ergonomic set up. The employer will need to consider whether tables and chairs are of the correct height to avoid musculoskeletal disorders (MSD’s), the design of keyboards, whether they have hand/wrist rests and are likely to cause repetitive stress injuries (RSI’s) and whether there is suitable lighting. The Deputy Head will also need to consider whether the staff is suitably trained in health and safety matters relating to workstation assessment. The employer must also be able to prove that training on workstation assessment has been done and understood. For example, when Mrs Clark made a claim against The Metropolitan Police, there was no evidence to show that the training had been understood and she claimed that she had only been provided with a video to watch as her training. Consequently, Mrs. Clark was awarded £385,000 and The Met’ were shown to have failed to comply with EU Directives.
Since Mario’s use of the computer monitor is occasional at this time, there should not be a problem with prolonged computer monitor activity which requires planning of daily activities so that its use is interrupted by breaks or activity changes. The Deputy Head would obviously need to consider this requirement if Mario’s computer use became more frequent in the future. At this stage, there should not be any issues with Regulation 3 because Mario has not yet started the job and there will be no eyesight problems caused by using the school computer at this time. However, it is another important issue that the employer should be aware of for the future.
Case 2.
Again, this case involves use of a computer monitor, but this time, Amir is a user of the computer for long periods with sustained concentration. This means that the employer has an obligation to conform to Regulations 1 and 2 concerning workstation assessment and planned activity changes or interrupted breaks from computer use.
The employer should carry out a risk assessment to analyse the health and safety risks of the workstation, consider the job being done and any special needs of the individual. Regulation 2 does not specify the length of break or activity change required by users of computer monitors, but obviously it depends on the type and intensity of work being done. The guidance offered is that short, frequent breaks are better than long, less frequent breaks. However, the employee should have some discretion as to when to take a break as they are the only ones who know how computer use is affecting them and can say when they may be suffering from tiredness or loss of concentration.
Failing to comply with regulations can be expensive to the employer if they fail to deal with identified employee health and safety risks. In one example an RAF typist, who injured her wrist, was recently awarded £484,000 in compensation. The permanent repetitive strain injury was caused by prolonged periods of inputting data onto a computer monitor.
Since Amir is also finding it difficult to sustain his concentration, he should raise this issue with his employer and request either more activity changes or interrupted breaks. We are not told whether Amir has suffered from tired eyes or discomfort from long spells of Visual Display Unit (VDU) work or whether he has requested an eye test, at the employer’s expense, to check whether prolonged use of the computer has in any way affected his eye sight. So, if Amir requests an eye test, the employer must act on all three aspects of the Regulations.
Case 3
As Julie’s work involves monitoring a TV screen of security camera images and constant use of a computer monitor, it is important to identify which areas of Julie’s work meet the criteria under The Health and Safety (Display Screen Equipment) regulations 1992.The use of computer monitors are covered under these regulations, but screens, showing mostly film or TV pictures, are not. Therefore, the Regulations cover Julie for only part of her job.
Julie’s employer should have already implemented the requirements under Regulations 1 and 2 for her constant use of a computer monitor, but since she has also started to suffer from blurred vision, it would be a wise precaution for Julie to request an eye-test and report her problems to her employer. Eyestrain and headaches are known to be caused by screen glare, poor image quality and reading the screen for too long without a break. The employer should therefore carry out further investigations into the suitability of her workstation and the breaks that she is taking. Furthermore, the employer would be obliged to comply with Julie’s request for an eye-test under Regulation 3 of The Health and Safety (Display Screen equipment) regulations 1992 because she is a user of a computer monitor. However, the employer only has to pay for glasses if the employee needs them specifically to undertake computer display screen work. This is demonstrated by case C-455/00, A. Aresu (an agent for employees) v Italian Republic, 1991, when Italy failed to fulfil its obligations to workers who used display screen equipment under Article 2(c) of Council Directive 90/270/EEC. This was directly effective through Directive 89/391/EEC. The Italian Republic failed to provide regular eyesight tests and failed to specify the circumstances under which employees were entitled to claim for glasses for their work.
Nature of Statutory Instruments and process of bringing them into force.
Since Parliament does not have the time, local or technical knowledge to pass all necessary laws, many are delegated under the authority of Parliament through an Enabling Act (or Parent Act). This is because it is much faster and simpler to implement a Statutory Instrument than a full Act of Parliament.
A Statutory Instrument (SI) is one of three types of delegated legislation and is a major method of law making with approximately 3000 of them coming into force each year. Rules and regulations are therefore made by Government Ministers who have responsibility for their specific department. An Enabling Act will specify how the Statutory Instrument will be laid before Parliament. They come in three forms. Those passed by affirmative resolution, involving some debate, must be approved by the House of Commons and The House of Lords before they can become law. The affirmative resolution procedure is usually used for more contentious issues. For example, the Police and Criminal Evidence Act 1984 required an affirmative resolution before it could come into force. The second method of negative resolution is the normal procedure and doesn’t involve debate. Parliament has 40 days to consider an SI presented to it. Under negative resolution procedures, an SI automatically becomes law unless an MP objects to it within the 40 day time frame. If an MP objects to the SI then The House of Commons, House of Lords or a Standing Committee will debate the issue and may pass a negative resolution which makes the SI void. Since SI’s automatically becomes law on the day that it is presented to Parliament, some laws may last a short time until it is annulled. An example of this is that on 22 February 2000, the House of Lords rejected the Greater London Authority Elections Rules(SI 2000/208) and so the SI was annulled. Some SI’s are not laid before Parliament and for this third form, Parliament can usually annul the SI within 40 days. Some examples of Statutory Instruments are the way that child benefit is paid. While Parliament decides the policy issues, a more experienced body in the payment of benefits draws up more detailed rules. SI’s are also frequently used to make amendments to existing Acts, such as the Road Traffic Act or the Health and Safety at Work Act 1974, described in source A. These are required to be frequently updated due to changing economic or technical circumstances. Similarly, the Health and Safety (Display Screen Equipment) Regulations 1992, described in source B, is also a Statutory Instrument.
Advantages of delegated legislation
The clear advantage of delegated legislation is that it saves Parliamentary time. Regulations can be very complex and require detailed investigation and debate which takes up considerable time. Delegated legislation therefore frees up MP’s time to deal with controversial and non-routine issues. For Example, in source A, The Health and safety at Work Act 1974 frequently needs updating and it is impractical to put each change through an Act of Parliament. To overcome this, Parliament deals with the broad policy principles and still has a hold on the passing of legislation by debating the main ideas before delegating the fine details to those with expert knowledge. SI’s are introduced by Ministers of government departments through powers given to them in Enabling Acts. In source A, the Enabling Act in The Health and Safety at Work Act allowed government ministers to update the act by creating the SI ‘The Health and Safety (Display Screen Equipment) Regulations 1992’.
Having experts in the field who can deal with more detailed technical issues is another advantage of delegated legislation. Different powers can be given to different government ministers with a particular specialism in an area of legislation which means that delegation is more widespread. For example, the Lord Chancellor was given power to offer guidance on the procedures for appointing judges under the Judicial Appointments Commission. The Enabling Act which conferred this power to him was section 65 of the Constitutional Reform Act 2005. Such measures mean that laws can be passed more quickly because there are more people implementing more laws.
Another viewpoint is that if many people are involved in offering opinion on law-making, then it is more likely to cover more angles to ensure that delegated legislation is correct.
The passing of laws quickly in emergency situations is another advantage of delegated legislation. Orders in Council are authorised by the Queen and Privy Council under the Emergency Powers Act 1920 and the Civil Contingencies Act 2004. An example of an amendment to a Parliamentary Act by Order in Council was when cannabis was reclassified as a class C drug under the Misuse of Drugs Act 1971.
Delegated legislation is advantageous when local knowledge of an area is required. Laws can be passed at a local level through the implementation of bylaws. County Councils are able to pass bylaws that may affect the whole country, whereas Town or Borough Councils can only make bylaws that affect its district. Examples of bylaws include those regulations that determine local parking restrictions or traffic flow. Public Companies, such as BAA, can also make bylaws concerning the relationship between the public and the public company. BAA are able to enforce a code of behaviour on the public when they are on BAA premises.
There are many advantageous ways in which Parliament maintains overall control while delegating legislation. The procedure of affirmative resolution means that a SI must be debated and approved by the two houses before it can be passed as law. This ensures that there is some degree of fairness in the passing of laws and Parliament is able to revoke, annul or amend a SI when necessary. The Delegated Powers Scrutiny Committee was set up in 1993 to ensure that there was no inappropriate use of delegated legislative power. Although SI’s could be referred back to the Houses of Parliament for further consideration, it did not have the power to change them. Then in 2006, a super affirmative resolution under the Legislative and Regulatory Reform Act, gave Ministers the power to change Acts of Parliament. However, in order to preserve fairness they had to take into consideration ‘any resolution of either House’, ‘any committee recommendations from those asked to report on the draft order’ and ‘any representatives’.
At first, parliamentary control over delegated legislation may all seem a bit one-sided, but this is balanced out because courts also have control over delegated legislation. Courts are able to say if legislation is ultra vires. In other words, they can question the validity of delegated legislation and say whether it should be void and ineffective. A piece of legislation may be described as ultra vires if it exceeds the powers granted by Parliament in the Enabling Act. This was the case in R v Home Secretary, ex parte Fire Brigades Union (1995) when the Home Secretary went beyond the powers given to him in the 1988 Criminal Justice Act and made changes to the Criminal Injuries Compensation Scheme.
Similarly, if procedures are not followed as detailed in the Enabling Act, then any delegated legislation is ultra vires. In the Aylesbury Mushroom (1972) case, the Mushroom Growers Association was not consulted, by the Minister of Labour, about setting up a training board. The legislation was therefore ultra vires for the Mushroom Growers Association but valid for the other groups that he had consulted.
Disadvantages of delegated legislation.
There are also several disadvantages of delegated legislation. Firstly, the process is undemocratic as law-making may be undertaken by non-elected persons for SI’s. Government ministers, for example are not accountable to UK citizens in the same way that MP’s are accountable to their electorate. However, this is not the case for bylaws which are made by local authorities made up of locally elected citizens.
Delegated legislation may create problems and complicate issues because of the risk of sub-delegation. The Enabling Act in the Act of Parliament gives Government Ministers the power to provide detailed rules in the form of Statutory Instruments. The problem is that this responsibility is often further delegated to civil servants who are involved in law-making while being simply ‘rubber-stamped’ by Ministers. So there are no clear boundaries of power.
Another issue is that while Government departments are able to create laws, they are also responsible for enforcing it. The danger of this is that they may interpret the law to suit their own needs, which can lead to corruption.
Whilst Parliament is able to amend Acts of Parliament through the use of SI’s, the disadvantage of this form of delegated legislation is that SI’s themselves cannot be amended. Parliament has to go through the very timely process of either annulling or withdrawing them. The findings of the Scrutiny Committee were designed to offer further insight into SI’s to check that all angles had been covered and so avoid problems of having to annul or withdraw them. However, the problem with this is that the guidance is often ignored by MP’s because they consider there to be too many people involved in law making when it is delegated and then sub-delegated.
Delegated legislation means that law can be changed and new laws made quickly. In some ways this is disadvantageous to citizens who are reluctant to seek the advise of a lawyer and bring a case against offenders breaking the law because they don’t know what the current law is. There are too many pieces of legislation for them to keep up with. The fact that there is a lack of publicity, media coverage and that the public are generally unaware of legislation created in this way means that delegated legislation is not publicly debated as are statutes that are passed through Parliament.
As with other areas of law, delegated legislation faces problems with obscure wording and difficulties in interpretation.
Conclusion.
It is impractical for every new or amended piece of legislation to be passed through an Act of Parliament and so delegated legislation is a necessity in UK law in order for us to keep up to date and pass the vast number of pieces of legislation required by the changes in our society.
There are both advantages and disadvantages to delegated legislation, but I feel that the advantages far outweigh the disadvantages.
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