What is the framework of the legal rules?
Gwyneth Roberts
We can define these two bodies of law into social work law and the second into social welfare law. This is a nice distinction which clarifies I think for social workers the distinction between these two areas of law.
Alison Brammer
The framework of legal rules that social workers need to have an understanding of is quite complex. It can be split most easily into legislation, primary and delegated, and common law. So, to think about legislation first of all, when we talk about The Children Act, or The Mental Health Act, that’s primary legislation. It will have been produced through parliament, undergone a process of scrutiny through various stages in both the House of Lords and the House of Commons. It may have been introduced directly, flowing directly from an election manifesto perhaps. So it may be overtly political in nature, and I think we can see good examples of that if you look at the huge volume of asylum related law that has been introduced in recent years. In addition to legislation that can be directly traced to a political party or the government’s perspective, legislation may also have its origin in public pressure, through pressure groups lobbying parliament and introducing legislation. An example of that would be disability discrimination legislation. It may arise directly as the result of a particular event within society such as a child abuse enquiry and we’ve got clear examples of that with The Children Act of 1989. For which The Cleveland Report really provided a catalyst for the speedy introduction of that legislation. And then more recently, The Children Act of 2004 can be directly traced to events surrounding the death of Victoria Climbie. Other ways in which legislation might be introduced include the work of The Law Commission. The Law Commission is an independent body which reviews existing legislation, makes proposals for new legislation and consults with relevant bodies. Other consultation processes might be instigated by government departments such as the Department of Health, the DFES or the Home Office and their recommendations may then be taken up as government policy presented as a white paper which includes government proposals for legislation which is then translated into a bill which then ultimately, following the parliamentary process, becomes an act of parliament when it receives royal assent. But it’s important to remember that even if an act of parliament has royal assent it won’t necessarily be up and running straight away. So, for example, the Human Rights Act of 1998 was not implemented so that it could be directly used by individuals until 2000. Within that period, before implementation, there were lots of training exercises going on and there was also an opportunity for rules and regulations and guidance to be published which supplement the key legislation, provide more detail, deal with points of procedure and processes.
Stuart Vernon
So, if we were to look at where the law, if you like, comes from, ultimately all law comes from parliament. Parliament is the supreme or sovereign law making body in this country. But we have a legal system that derives its legal rules not only from parliament but from what some people call the common law. Parliament provides both primary legislation, Acts of parliament, and secondary legislation, which is parliament giving other people the power to make law, often that’s ministers but it might be local authorities through by-laws or other agencies so you have both primary legislation and secondary legislation emerging from parliament. But you also have then the development of common law which, by and large, has developed, been developed over the centuries by the judiciary not in a vacuum but by the courts deciding every day legal disputes. Areas of law particularly which have been developed through common law procedures and dispute resolution are things like the law of tort and even, for instance, the law of murder. It seems surprising, but that’s the way it is. The trend these days is to increase the breadth of statute law and to decrease the breadth of common law but don’t ever underestimate the importance of judicial development of the law.
Gwyneth refers to a Body of Law, click on the link to see how this is constructed.
Body of Law
Statute
Statute provides the basic skeleton, the foundation on which everything else is built.
Here the dominant metaphor is “the body”. One way of envisaging the legal rules is to imagine a body. Initially this comprises a skeleton – the outline powers and duties, such as those contained within the Children (Leaving Care) Act 2000, the Adoption and Children Act 2002, and the Carers (Recognition and Services) Act 1995.
Regulations
The muscles which connect different "bones" in order to make them operative/usable/ meaningful.
The different elements of this skeleton may be connected together, and each may be fleshed out by regulations, or secondary legislation.
Thus, special guardianship in the Adoption and Children Act 2002 has been greatly developed by regulations, which clarify who may apply and the role of a council with social services responsibilities. Regulations subsequent to the Children (Leaving Care) Act 2000 clarified which young people were to be eligible for support.
Policy guidance
Policy guidance The arteries that pump oxygen around the body, to give practice life and form.
Policy and practice guidance further flesh out the legal rules by bringing to life how social work practice is to realise the intentions within the legal rules.
Both policy guidance and practice guidance were issued, for example, to shape implementation of the Carers (Recognition and Services) Act 1995.
Policy guidance is issued under section 7 Local Authority Social Services Act 1970 and is binding on those organisations to which it is issued, principally local authorities.
Practice guidance
The veins that shape life by clarifying goood practice.
Practice guidance stands as a code of good practice, what a social worker ordinarily will do. Whilst not mandatory, it should only be departed from with good reason.
Case law
A skin that defines a particular body, or part of it from another.
Case law may clarify what is contained within a particular body of legal rules. Thus, judgements have clarified that unaccompanied minors who, having sought asylum, are accommodated by a local authority, are eligible for the enhanced support that the Children (Leaving Care) Act 2000 offers.