http://alevelpolitics.com/tag/parliament-roundup/
Parliament
Parliament has several functions, which include; controlling national expenditure and taxation; making law; scrutinising executive action; being the source from which the Government is drawn; and debating the issues of the day. All areas of the UK are represented in the House of Commons, which provides a forum for Members of Parliament (MPs) to speak and correspond on behalf of their constituents, where they can seek redress if necessary.
Parliament comprises the Sovereign in Parliament and two Houses; the House of Commons, which is wholly elected, and the House of Lords, which comprises the Lords Spiritual and Temporal. Parliament has overall control of the public purse; the Government may not levy taxes, raise loans or spend public money unless and until it has authorisation from Parliament. However, this is where “authorisation from Parliament” can be manipulate by Collective Ministerial Responsibility I.e. Collective Ministerial Responsibility requires each minister to support each Government decision. All members of the Government are bound by the convention of collective responsibility, except “where it is explicitly set aside”. The formal suspension of Collective Ministerial Responsibility on an issue does not happen often and is usually referred to as an ‘agreement to differ’.
Government accountability in the UK also operates through the convention of Individual Ministerial Responsibility. Individual Ministerial Responsibility refers to the convention that a minister is responsible to Parliament for the actions of their department, irrespective of whether these actions are known or unknown to that/those minister/s.
The House of Commons claims exclusive rights and privileges over the House of Lords in relation to financial matters, and the powers of the House of Lords to reject legislation passed by the House of Commons are limited by statute. So what use is the House of Lords?
An example of a legal fiction is that the English courts (which have no legislative power, but have nevertheless developed the bulk of the common law) do not "create" new law but merely "declare" the common law that has existed since time immemorial. A further example would be that of the reasonable person, reasonable man, or the man on the Clapham omnibus is a hypothetical person of legal fiction crafted by the courts and communicated through case law and jury instructions.
http://brendanconley.com/barexam/remedies/remedies-big-picture/
A tort, in common law jurisdiction, is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits a tortious act. It can include the intentional infliction of emotional distress, negligence, financial losses, injuries, invasion of privacy and many other things.
http://www.writeopinions.com/cause-of-action
A cause of action, in law, is a set of facts enough to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff sues (such as breach of contract, battery, or false imprisonment). The legal document which carries a claim is often called a 'statement of claim’.
https://universitarianweb.com/2016/04/18/the-role-of-the-precedent-in-the-e
The principle by which judges are bound to precedents is known as stare decisis (a Latin phrase with the literal meaning of "Let the decision stand"). Common-law precedent is a third kind of law, on equal footing with statutory law (that is, statutes and codes enacted by legislative bodies) and subordinate legislation (that is, regulations promulgated by executive branch agencies or in the form of delegated legislation (in UK parlance).
There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit ("what one has earned").
Punitive damages - Punitive damages are to punish a defendant, rather than to compensate plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a negligence action, but only if the plaintiff shows that the defendant’s conduct was more than ordinary negligence (i.e., wanton and wilful or reckless).
http://trevisanmichele.it/eventi/
restitutio in integrum ("restoration to the original condition").
Negligence (Lat. negligentia) is a failure to exercise appropriate and or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.
Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, breach, actual cause, proximate cause, and damages.
Four elements are deemed necessary for a statute to apply in a negligence case.
• First the person harmed must be a member of the class of persons which the law was intended to protect.
• Second, the danger or harm must be one that the law was intended to prevent.
• Thirdly, there must be some causal relationship established between the breach of the statute and the harm caused.
• Fourthly, the criminal statute must be concrete, specific and measurable enough to clearly establish a standard of breach.
https://www.juanlaw.com/dallas/negligence-per-se/
However, there are five valid excuses that are available for a defendant to defeat a standard of negligence per se. (Restatement (Second) of Torts section 288.1(2).)
• First, the defendant may not know of the breach due to incompetence.
• Secondly, he might either lack knowledge or reason to know of the breach or duty.
• Furthermore, for some explainable reason, he may be unable to comply, despite diligence.
• The breach may be due to a sudden emergency not of one’s own making (Parent Act = Corona).
• And lastly, in special situations it may be safer to not comply than to comply.
In cases where these defences are applied, negligence per se doctrine creates no more than a disprovable speculation of negligence that shifts the burden of proof from the complainant to the defendant.
Most jurisdictions say that there are four elements to a negligence action:
- Duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable care,
- Breach: the defendant breaches that duty through an act or culpable omission,
- Damages: as a result of that act or omission, the plaintiff suffers an injury, and
- Causation: the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission.
Some jurisdictions narrow the definition down to three elements: duty, breach and proximately caused harm. Some jurisdictions recognize five elements, duty, breach, actual cause, proximate cause, and damages. However, at their heart, the various definitions of what constitutes negligent conduct are very similar.
Legal causation says that one's negligence is 'too remote' (in England) of another's harm if one would 'never' reasonably foresee it happening. Note that 'proximity test' under the English duty of care is to do with closeness of relationship. The idea of legal causation is that if no one can foresee something bad happening, and therefore take care to avoid it, how could anyone be responsible?
https://www.mylawfunds.com/res-ipsa-loquitur
Res Ipsa Loquitor ("it speaks for itself"). To prove negligence under this doctrine the plaintiff must prove (1) the incident does not usually happen without negligence (2) the object that caused the harm was under the defendant’s control (3) the plaintiff did not contribute to the cause. Negligence Per Se comes down to whether a party violated a standard in law meant to protect the public such as the Public Health (Control of Disease) Act 1984. For example:
http://www.practicenurse.co.uk/index.php?p1=a-z&p2=infectious-diseases
Regulations for control of certain diseases.
[F19(1) Subject to the provisions of this section, the Secretary of State may, as respects the whole or any part of England and Wales, including coastal waters, make regulations—
(a) with a view to the treatment of persons affected with any epidemic, endemic or infectious disease and for preventing the spread of such diseases,
(b) for preventing danger to public health from vessels or aircraft arriving at any place, and
(c) for preventing the spread of infection by means of any vessel or aircraft leaving any place, so far as may be necessary or expedient for the purpose of carrying out any treaty, convention, arrangement or engagement with any other country.
Regulations made under this section may provide for—
a) the signals to be displayed by vessels or aircraft having on board any case of epidemic, endemic or infectious disease,
b) the questions to be answered by masters, pilots and other persons on board any vessel or aircraft as to cases of such disease on board during the voyage or on arrival,
c) requiring persons alighting from aircraft to answer questions pertaining to their state of health or their contact with infection,
d) the detention of vessels or aircraft and of persons on board them,
e) the duties to be performed in cases of such diseases by masters, pilots and other persons on board vessels or aircraft, and may authorise the making of charges and provide for the recovery of such charges and of any expenses incurred in disinfection.
Therefore, the latter is determined by the parameters of the former i.e. the regulation is to limit/cancel international vessels and/or aircraft and detain/quarantine and decontaminate/disinfect international citizens, not detain/quarantine the UK public. Moreover, the inaction to prohibit international vessels and aircraft form entering the UK during the lockdown is intentionally negligent and led to the increased confirmed cases rate – and the subsequent elevated death rate evident in the UK.
https://www.propertylogy.com/academic/malfeasance-misfeasance-nonfeasance
Definition of Nonfeasance – Not stopping international flights from hotspots
Nonfeasance is the failure to do what ought to be done i.e. the Public Health (Control of Disease) Act 1984; Regulations for control of certain diseases. [F19(1)(b). Legally, it goes a step further by recognizing that this intentional inaction caused harm. While this statement may seem simple, tort law requires three different criteria be met to be recognized as nonfeasance:
a) the person who is responsible for not acting would be the person expected to act, the same person who did nothing is the one expected to do something
b) the person did not act as expected, and there was an appropriate action expected by that person, and it did not occur
c) not acting caused harm, because if the action did not occur, there was an injury i.e. “but for” claim.
Definition of Malfeasance – Unlawful legislation
Misfeasance in public office is a tort that is rarely invoked in personal injury claims. It is only available against public authorities. There are advantages to the tort of misfeasance in public office, if appropriate, over an action in negligence, namely:
• there is no requirement to establish a duty of care
• it is not necessary to establish proximity
• exemplary damages may be claimed
Practitioners should, however, note that there are also potential disadvantages to bringing a claim for the tort of misfeasance in public office, compared with an action in negligence:
• only public officers can commit the tort
• a claimant is required to show that those officers are abusing their power or position
• establishing the tort requires malice on the part of at least one public officer within a department or public body and it is insufficient to show gross incompetence, neglect or breach of duty
In general terms, the tort is invoked where a public officer has exercised (or failed to exercise) their power as a public officer in bad faith, knowing that the act in question would probably cause harm.
Malfeasance in office, or official misconduct, is the commission of an unlawful act: Health Protection (Coronavirus) Regulations 2020/ Coronavirus Act 2020, done in an official capacity, that affects the performance of official duties. Malfeasance in office is often grounds for a just cause removal of an elected official by statute or recall election Malfeasance in office contrasts with "misfeasance in office", which is the commission of a lawful act, done in an official capacity, that improperly causes harm; and "nonfeasance in office," which is the failure to perform an official duty.
The tort of misfeasance in public office represents a “safety net” adjustment to that position, by allowing damages where the public defendant’s unlawfulness is grossly culpable at a moral level. Briefly, misfeasance in public office is a tort remedy for harm caused by acts or omissions that amounted to:
- an abuse of public power or authority;
- by a public officer;
- who either;
a. knew that he or she was abusing their public power or authority, or
b. was recklessly indifferent as to the limits to or restraints upon their public power or authority;
- and who acted or omitted to act
a. with either the intention of harming the claimant (so-called “targeted malice”), or
b. with the knowledge of the probability of harming the claimant, or
c. with a conscious and reckless indifference to the probability of harming the claimant.
In short, misfeasance is an intentional tort, where the relevant intention is bad faith. Pleading bad faith is difficult, because the pleading rules require details, and professional conduct rules forbid practitioners supporting obviously baseless allegations. Proving bad faith is even more difficult. Where they have a choice, the courts are strongly disposed to believing that bureaucratic error was caused by genuine mistake, even incompetence, rather than by bad faith.
When a legislation creates a duty that does not exist in the parent act, there are three things the parties can do wrong:
• Nonfeasance is the failure to act where action is required—wilfully or in neglect.
• Misfeasance is the wilful inappropriate action or intentional incorrect action or advice.
• Malfeasance is the wilful and intentional action that injures a party.