Understanding the law on safeguarding

Safeguarding laws and regulations in England come from a range of sources. This page explains the key sources that we refer to throughout this guide.

Parliament passes legislation that sets frameworks for:

• the functions of government bodies (public law)
• how individuals should interact with each other (civil law)
• offences in relation to things people must not do (criminal law).

This is often achieved by acts of parliament, which are also known as primary legislation or statutes. Examples include the Care Act 2014, which says local authorities must safeguard adults, and the Terrorism Acts, which make it an offence to plan terrorist acts.

The role of primary legislation

Acts of parliament can outline criminal acts for which an individual (or in some circumstances an organisation) can be prosecuted and subject to sanctions or penalties. They can also set out civil law routes of redress when someone feels they’ve been poorly or inappropriately treated by an individual or organisation.

They can also create specific organisations known as ‘statutory bodies’. The duties and functions of statutory bodies are set out in legislation, which means they’re required or empowered to make particular decisions or take specific action.

Sometimes, Acts of parliament can require a public body, such as a local authority, to have “due regard” to certain matters when they exercise their functions. This means the public body in question should place an appropriate amount of weight on that matter when they consider all the other factors relevant to making decisions and taking action. For example, the Children Act 2004 sets out the duties of public bodies and other organisations to safeguard and promote the wellbeing of children.

Acts of parliament can give the government, or a statutory body, powers to make other laws or rules. This can include powers to issue secondary legislation such us regulations or orders. This is also known as 'delegated' or ‘subordinate’ legislation (as it is subordinate to the primary legislation).

The role of secondary legislation

Secondary legislation often explains how the primary legislation will be applied. It can also create regulatory duties that organisations must follow. For example, the Charities (Accounts and Reports) Regulations 2008, made by the Minister for the Cabinet Office, requires charities to make a risk management statement.

Some duties that apply to statutory bodies can also apply to voluntary organisations where specified, especially if the organisation is delivering a function on behalf of a statutory body. The statutory body may also require a voluntary organisation to act as if that law applied to them through their grant agreement or contract.

All statutory bodies, such as local authorities or regulators, must act in accordance with public law.

This broadly means that they must:

• act in accordance with and not beyond their powers
• comply with the law (including in respect of human rights and equality)
• act in a way that is otherwise rational and fair.

Courts or tribunals (depending on the public body and the nature of the issue) can consider whether statutory bodies have acted lawfully in accordance with these public law principles and whether their decisions are therefore legally sound.

Primary legislation can also require or empower ministers or public bodies to issue statutory guidance. Statutory guidance can outline how ministers or public bodies should exercise their respective functions, or set standards for those they regulate to meet.

Legislation often requires those whose operations are affected by the particular guidance to follow that guidance unless it’s objectively justifiable for them not to (also known as paying it due regard).

It can also require regulators to enforce the guidance. Even where organisations are not bound to pay the guidance due regard, it often reflects best practice, so is important to follow.

Examples include the Department for Education’s guidance on working together to safeguard children or the Department of Health and Social Care’s guidance on care and support.

Sometimes public bodies issue guidance even when the law doesn’t require or empower them to do so. This is known as non-statutory guidance. Depending on how the public body’s empowering legislation is set out, they may issue guidance if it will help it fulfil the functions that parliament has delegated to it.

While non-statutory guidance does not have the same status as statutory guidance, courts and regulators may look to this guidance when they consider whether an organisation is meeting its obligations and duties. Public bodies are also required to follow their own policies (to the extent that they are lawful).

Common law includes laws that have been created by the decisions of judges in their judgments. This can include judgments that interpret and apply acts of parliament. A judge's decision in a case may, depending on the subject matter and the court or tribunal in which it is heard, become a 'precedent'. This means it’s binding on similar cases heard in courts at the same level or lower unless or until a higher court overrules it.

Common law can apply to any organisation – including public bodies, businesses, charities or other voluntary organisations – or individuals, depending on the subject matter.

The judgments of senior courts are published on their websites or on bailli.org. Tribunal decisions of different kinds may also be found on their respective websites.

There is no universal legal definition of ‘safeguarding’. It means different things to different people.

To learn more about appropriate language and key terms in safeguarding, see our talking about safeguarding guide.

‘Conventional’” or “‘statutory’” safeguarding

This refers to work that aims to:

• prevent harm
• respond to harm
• promote the wider welfare of children and adults at risk (or in some acts of parliament, ‘adults at risk’).

There are different definitions of specific types of safeguarding in statutory guidance.

• For definitions of safeguarding children, see 'Working together to safeguard children' on gov.uk.
• For definitions of safeguarding adults, see 'Care and support statutory guidance' on gov.uk.

Charity Commission definitions

For the purposes of charity law and reporting, the Charity Commission defines safeguarding as: “the range of measures in place to protect the people who come into contact with charities through their work from abuse and mistreatment of any kind (including neglect).”

• To know more about the Charity Commission definition, see the government guidance on safeguarding and protecting people for charities and trustees.

The international development sector

The UK Foreign, Commonwealth and Development Office (FCDO) defines safeguarding as broadly meaning avoiding harm to people or the environment. The FCDO has been focused on safeguarding against sexual exploitation and abuse and sexual harassment (SEAH). It generally uses ‘duty of care’ in relation to the management of other risks of harm to people.

• To know more about the FCDO’s approach to safeguarding, see their guidance on safeguarding against sexual exploitation and abuse and sexual harassment (SEAH) in the aid sector.