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vypracovaná otázka (19kový) č. (q_5.doc)

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1. The executive branch of government

The government consists of the ministers appointed by the Crown on the recommendation of the Prime Minister, who is appointed directly by the Crown and is the leader of the political party which for the time being has a majority of seats in the House of Commons. The office of Prime Minister dates from the 18th century and is the subject of a number of constitutional convention. The Prime Minister is the head of the government and presides over meetings of the Cabinet; by convention he is always a Member of the House of Commons. He consults and advises the Monarch on government business, supervises and to some extent co-ordinates the work of the various ministries and departments and is the principal spokesman for the government in the House of Commons. He also makes recommendations to the Monarch on many important public appointments, including the Lord Chief Justice, Lords of Appeal in Ordinary, and Lords Justices of Appeal.

The Cabinet is the nucleus of government; its members consist of a small group of the most important ministers who are selected by the Prime Minister. The size of the Cabinet is today about 23 and its principal function, much of the work being carried out in Committee, is to determine, control and integrate the policies of the government for submission to Parliament. The Cabinet meets in private and its deliberations are secret; no vote is taken, and, by the principle of ’Cabinet unanimity’, collective responsibility is assumed for all decisions taken.

The central government ministries and departments give effect to government policies and have powers and duties conferred on them by legislation, and sometimes, under the Royal Prerogative. Each is headed by a minister who is in most cases a member of either the House of Lords or the House of Commons. There are over 100 ministers of the Crown at the present time; they include departmental ministers (e.g. the Secretary of State for Foreign and Commonwealth Affairs; Chancellor of the Exchequer (Treasury); non-departmental ministers (e.g. Lord President of the (Privy) Council, Paymaster-General, Ministers without Portfolio); ministers of state (additional ministers in departments whose work is heavy); and junior ministers (usually known as Parliamentary Secretary or Parliamentary under-secretary) in all ministries and departments.

The Lord Chancellor and the Law Officers of the Crown deserve special mention at this point.

The Lord High Chancellor of Great Britain presides over the House of Lords both in its legislative capacity and as a final court of appeal; he is a member of the Cabinet and also has departmental responsibilities in connection with the appointment of certain judges. He advises on, and frequently initiates, law reform programmes with the aid of the Law Commissions, the Law Reform Committee and ad hoc committees. The four Law Officers of the Crown include, for England and Wales, the Attorney General and the Solicitor General, the Lord Advocate and the Solicitor General for Scotland. The English Law Officers are usually members of the House of Commons and the Scottish Law Officers may be. They represent the Crown in civil litigation, prosecute in certain exceptionally important criminal cases, and advise government on points of law. They may appear in proceedings before the International Court of Justice, the European Commission of Human Rights and Court of Human Rights. They may also intervene generally in litigation in the United Kingdom as representatives of the public interest.

The UK has no Ministry of Justice. Responsibility for the administration of the judicial system in England and Wales is divided between the courts themselves, the Lord Chancellor, and the Home Secretary. The Lord Chancellor is concerned with the composition of the courts, with civil law, parts of criminal procedure and law reform in general; the Home Secretary is concerned with the prevention of criminal offences, the apprehension, trial and treatment of offenders, and with the prison service.

2. Defences in the Law of torts

A defence need only be argued by the defendant once the basic requirements of the tort have been established by the plaintiff.

Remoteness – Thus when causation has been established and the basic elements to the tort have been proved, the defendant may be able to escape payment of some or all of the damages claimed by showing that there is not a sufficiently close connection between his behaviour and the damage suffered by the plaintiff, i.e. that the loss is too remote. The test for remoteness is called reasonable foreseeability; i.e. the defendant is only liable for those consequences of his act that a reasonable man would have foreseen. The remoteness thus serves as one of successful defences in tortious actions. In Lamb v. Camden Borough Council 1981, Council workmen broke a water main, causing serious damage to L’s house. In fact the house became unsafe and the tenant to whom it was let moved out pending repairs. Squatters then moved into the empty house and caused £ 30.000 damage. The Court of Appeal awarded P damages in respect of damages due to flooding (liability was admitted by the Council) but rejected the claim for damage caused by squatters because this was not a reasonably foreseeable result of the Council’s breach.

Volenti non fit injuria (consent) – A person has no remedy for harm done to him if he has expressly or impliedly consented to suffer the actual harm inflicted, or if he has consented to run the risk of it. Thus, for example a boxer could not sue as a result of a broken jaw suffered in the ring.

Mere knowledge does not necessarily imply consent. The plaintiff must both appreciate the nature of the risk of injury and consent to run that risk.

In Smith v. Baker 1981, P., who worked in a quarry, was injured when a stone fell from a crane which his employers negligently used to swing stones above his head. When sued his employers pleaded the defence of volenti. They were able to show that P know of the risk of injury, but they could not show that he freely consented to run that risk – He may have continued to work under the crane through fear of losing his job. P’s action succeeded.

Mistake – The general rule is that mistake is no defence to a tort action. There are 3 exceptions. In each case the success of the defence depends on whether or not the defendant acted reasonably in making the mistake. False imprisonment – if a policeman without a warrant arrests somebody who has not committed a crime when he reasonably believes that they have; Malicious prosecution – if the person who commenced the prosecution (the defendant in the present tort action) was under the mistaken belief that the plaintiff was guilty of a crime.

Inevitable Accident – It has been said that a defendant is not liable if he can prove that damage is due to an inevitable accident, i.e. that he is utterly without fault.

In Stanley v. Powell 1891 D fired his gun at a pheasant but the bullet hit a tree and ricocheted into P. D was held to be completely blameless and not therefore liable in negligence. In any event the plea of inevitable accident cannot be raised in cases of strict liability.

Act of God – This means circumstances, which no human foresight can guard against. Act of god differs from inevitable accident since it is available as a defence in strict liability cases and the act must be caused by the forces of nature without human intervention.

Self Defence – A person may use reasonable force to defend himself, or his property, or another person against unlawful force. What is reasonable – depends on the facts of each case, however retaliation will never be reasonable.

Necessity – This defence may be used where the defendant has inflicted loss on an innocent plaintiff while attempting to prevent a greater loss to himself.

In Cope v. Sharpe 1912, a fire broke out on P’s land. D, a gamekeeper on adjoining land, entered P’s land and burnt some of the heather to form a firebreak to prevent the fire spreading to his employer’s land. When sued for trespass his defence of necessity succeeded (even though the firebreak had proved to be unnecessary), since there was a real threat of fire, and D had acted reasonably.

The difference between self defence and necessity is that self defence is used against a plaintiff who is a wrongdoer, and necessity s used against an innocent plaintiff.