Tag Archives: Law


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    • Used where A wishes to challenge, in the course of proceedings initiated for a different reason, the legality of some other measure. Latter measure being challenged indirectly must be a general act.
    • Eg. When challenging a decision of direct and indiv concern, A wishes to raise legality of the Reg on which the decision is based.
      • See Simmenthal for typical case
    • Same grounds of annulment as for annulment.
    • Hence NOT an independent course of action.
      • Time limit for principal action still applies!
      • Must have real connection between principal decision being challenged, and the general measure of which legality is being contested.
    • Cannot be used in proceedings before national court – only in proceedings brought before ECJ under some other Treaty provision (incidental + limited effect)
    • Can only be used to challenge acts of general application (usually Regs/directives made pursuant to arts 289 or 290 TFEU).
    • This is a test of substance! Simmenthal case, 1979:
      • A wanted to use plea of illegality to challenge certain Regs and notices, which formed legal basis of the contested decision.
      • ECJ held that art 277 expresses a general principle conferring upon a party to proceedings the right to challenge validity of previous acts which form the legal basis of the decision which is being attacked, if party was NOT entitled to bring direction action against those acts.
      • Hence, has to include acts which, though not being in form of Reg, still produce similar effects and hence cannot be challenged via direct action (too general) – need a wide interpretation of the plea of illegality!
      • Who can use the provision?
        • Available to private parties, UNLESS it is clear that act could have been challenged directly under art 263 (where there was indiv + direct concern).
        • Greater controversy over privileged applicants – Manchester Taxi
          • [Bebr]: NO, since privileged applicants can challenge any binding EU act under art 263, subject to time limit.
          • [Barav]: YES. Irregularities in general act might appear only after relevant implementation measures are adopted, hence after the time limit.
          • ECJ decided that MS can invoke use art 277 even if it did not contest measure within art 263’s time limit (hence agreeing with Barav)
            • Textual analysis: art 277 refers to “any party”
            • There may be good reasons why MSs did not challenge act directly within time limit!

Time Limit for Questionnaires

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Q if late in the day can be served within 21 days of the IT1 to protect the right to claim. For additional information, check out Notary public for London

Procedural steps for claim

1 Qs to e/er to get info back

2 IT1 before 3 month time limit

Failure to complete Q by e/er

If e/er fails to complete Q or gives vague answers the ET will assume discrimination

took place by taking an ADVERSE INFERENCE. – ie, you have the relevant info but

chose not to supply it suggesting you have something to hide

Info to put in Q

1 Manner of interview of each applicant

2 Why was X selected rather than client

3 Length of interview for each applicant

4 Topics discussed – ie, qualifications, experience,

5 Any notes made by e/er

6 Was X already known to the e/er (if yes and that’s why he was selected it’s

NOT discrimination)

7 ANYTHING else which is sensible which helps to try and prove D

Indirect Discrimination


 Harder to detect

 Basically, it’s the e/er asking all e/ees to do something but it’s accidentally to

the detriment of one group (race, gender)

 Definition: ‘Gender neutral provision, criterion or practice which would be to

the detriment of a considerably larger proportion of one sex/race.’

 Impacted sex discrimination especially with part time work – discriminates

against more women than men, due to child birth etc.

 EVIDENCE – get stats, speak to workmates and get their opinion, consider

going nationwide if there isn’t enough info from one place of work – need to

be funded by applicant though !

 You can still have this type of claim while V is still working for the same e/er

 Defence is justification. IE, being justified fir business needs such as having

to have small hands to paint bone china

 It is wide definition, so work out pool of people for comparison, take the

larger proportion and see if they are discriminated against. Pool for

comparison and statistical differences, then may be able to use expert or

sociological evidence to refine results. It will be something that affects

everyone but impacts one group more than the other.

 FOR EXAM – ALWAYS check whether V has left the job. If he hasn’t it’s

just D, but if he has it could be UD, WD, constructive


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The majority of the principles relevant to sex D also apply to Race D unless it states


Employers may be in breach if discriminates against a person on grounds of:

 Sex or marital status

 Gender reassignment

 Race or ethnic origin

 Disability

 Trade union membership

 Part time work

From Dec 2003 this list will include religion, belief and sexual orientation.

4 types of discrimination: direct, indirect harassment and victimisation, discrimination

is not, in itself unlawful, it must be accompanied by an unlawful act.

Exam Question Method

 Is it an unlawful type of discrimination?

 Is there an unlawful act e.g. on recruitment, terms, dismissal, subjection to a detriment? – Seek guidance from abogados de accidentes de auto

 Is it direct or indirect or victimisation?

 Is the employer actually or vicariously liable?

Direct discrimination

(Sex Discrimination Act 1975)

s1= women s2 = men s2A = gender re-assignment

s3 = married persons

Question to Ask:

 Has the employee been treated differently and less favourably because of her


o Have to differentiate between bad behaviour and different behaviour.

If employer treats everyone badly then it may not be discriminatory.

Try comparing against someone who is in the same position as the


o There has to be causation ie because of sex, race etc.

 No defence (beyond Genuine Occupational Qualification RB 145), motive

is irrelevant. GOQ covers occupations like authentic actors, male father

xmas’s etc where you are ok to discriminate.

 Burden of proof – applicant to prove behaviour was because of sex, race etc.

Applicant has to prove the different behaviour, Respondent to rebut

presumptions. Court must now infer presumption of discrim if there is a hint

of it. Ask who got the job instead, someone better qualified or was it due to


sex/race ? If it was due to sex/race, the e/er is stuffed as there is no defence to

direct D

 Questionnaires – filled in by applicant. If employer does not respond or takes

a log time then inferences can be drawn. Vital for employers to reply.

 Time limits – have 3 months from act complained of to bring action and get

the IT1 filed. Can get extensions if continuing acts etc, may need preliminary

hearing to see if fit time limit.

Example = Ace Mini Cars – Ace refused to hire a female black cab driver

– worried about her safety at night

– ET said motive irrelevant, she was treated unfairly

– Cant have less favourable treatment

– you have to get evidence re DD as e/ers wont readily

admit it

– get historical background re qualifications, experience

to see whether applying for the job was realistic

– see how the interview went by sending a Q to the e/er

for more info

– client may be able to tell you who the other applicants

were so you may be able to speak to them


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  • Did the Nazis Have Law? Check out the script from Abogados de accidentes 
    • Legal pragmatism is sceptical because it rejects assumption that past decisions provide rights to future ones. Some claim that due to this there is no law at all, and some claim that in some countries, although leg and judiciary exists, too wicked to be law.  – this makes sense under interpretive theory, because those practices in wicked society yield no interp that can have any justifying power at all.
    • Semantic: say we had law, but very bad law. This fact about linguistic practice argues for positivism, the axiom being that the existence of law is independent of the value of that law.
    • If useful theories of law not semantic but interpretive, then problem of immoral legal nazi system has diff character. Why? Because interpretive theories are by their nature addressed to a particular legal culture, generally the culture to which their authors belong. No reason to expect abstract conception to fit foreign legal systems who developed in different ways and reflect different ideologies.
    • Doesn’t follow if US lawyer doesn’t find in Nazi law one feature he has in US law that he must deny that Nazis had law. (would be like the stages of courtesy…Nazi law on different part of continuum, nazi law is like one strand in the rope). (law in preinterpretive sense)
    • Nice thing is, with interp, not so worried about black white q was it law, we understand and can see both.


  • The Flexibility of Legal Language
    • Semantic theory like positivism denies us to use ‘law’ in flexible way, letting it depend on context or point. Doesn’t mean we can’t sometimes used “positivist” formulation, if it is preferable, but shouldn’t limit ourself to that language!!**
    • Context sensitivity even more important when question in play is sharper, more practical than just classification of nazi law, e.g., how foreign judge Siegfried decides hard case. This requires not just general comparison, but independent interpretation of that system in some detail. We might arrive at conclusion that interpretive attitude is wholly inappropriate there, that practice can never provide any justification for stat coercion.   We might then say that Siegfried should ignore legislation and precedent altogether.
      • Point: nothing in mere fact that his nation has law in pre-interp sense provides any litigant with any right to win what he seeks in its courts.
    • Then we search further, and see not true, something in history of legal practices of Siegfried’s community that we think justifies some claims of legal right by some litigants (but entire law still shit).
    • Now imagine more complex e.g., suppose these are hard cases (jew wants remedy only given to aryans). New difficulty: we would just get by hard cases by looking what decision flows from best interp. We can give of legal process as whole. But cannot do this here, whole system too wicked —- we must ask which interp. Someone like siegfried, who likes his system, would put countries legal practices in what we believe would be their least bad light.
    • Now what if we must ask not how he SHOULD but how he probably WILL decide case? Now we must interpret from fully within Siegfrieds shoes.  We can do that, and then declare that because so shit not really law at all. But we omit that, because not relevant.
    • Next shift: say we discover that part of our own law is immoral. Don’t the legal practices, though morally infirm still generate weak political rights in those who have relied on them? Or do they not generate any rights at all? Could say he may have to disregard law or that there is no law, lingistic distinctino not important, the point is.
    • So, another relic from semantic times. They take all the various above questions we distinguished, concerning wickedness or deficiency of instances of what is law in pre-interpretive sense as THE SAME QUESTION. — namely the semantic Q whether the linguistic rules we share for applying “law” include or exclude such legal systems. Thi sis fake question as we do not share any rules of the kind it assumes. “It disarms us by withdrawing the subtle and context sensitive distinction the right language of law provides.
      • The question of wicked legal system is not one q but many q and all arise at level where conceptions compete!

Hart The Concept of Law, Ch. 7 and Postscript:

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  • Sometimes cases are indeterminate i.e. the law is “open textured” (hard cases). Obviously there must be discretion in such cases because “we are men, not gods” and therefore cannot determine the outcome perfectly in uncertain cases. All legal systems have a tension between the need for certainty and the need to leave the law open whether for fairness or for future development. The courts have a “role producing function” in uncertain cases. Rule scepticism is therefore valid in hard cases (Dworkin reject this).
  • Hart refutes (in postscript) the semantic sting argument deployed by Dworkin. He says that he never suggested all judges had one conception of what law is, merely that they share a belief in what criteria need to be fulfilled for it to be applied. He never claimed that the RoR is used to say what a law “is”.
  • Hart also says that his theory is capable of incorporating moral criteria or principles within the rule of recognition, so that he is NOT a “plain fact positivist” as Dworkin claims (For objections to Hart’s soft positivism concessions see Raz week 2 reading).
  • Hart denies that his positivism = what Dworkin terms conventionalism. Conventionalism’s point according to Dworkin is to justify coercion, whereas Hart does not claim this. Hart says that coercion is used when the law’s primary methods (promulgation of laws etc) breaks down, so that he certainly does not consider the law’s aim.
  • Hart rejects Dworkin’s claim that soft positivism is inconsistent with the positivist aim to provide certain, value-free criteria for identifying law (Dworkin is right here- see Raz week 2 notes). Hart says positivism is not minded to maintain absolute certainty but can make concessions, so that the courts can make an informed decision in hard cases.
  • Hart says the difference between rules and principles is not so profound- it is a matter of degree of conclusiveness. In Riggs v Palmer, which Dworkin often cites (man murdering his grandfather to get the will) a principle (that a man shouldn’t profit from his own wrongdoing) overcame contradictory statutory rules on wills, demonstrating how the distinction between rules and principles is not so sharp as Dworkin claims. Thus principles can be legally binding if recognised as such by RoR and Hart concedes that he was wrong not to consider principles initially. Thus he goes on to make a half-concession: That laws can include moral standards but do not have to in order to be valid.
  • Most importantly, Hart denies that positivists like himself set out to show law in its best light. They seek to provide general information about social institutions and to explain how claims concerning validity, obligations, rights, etc figure within such institutions. We need, Hart maintains, a clear understanding of these matters as a precursor to evaluative theories.
  • In fact, he says, we can make propositions about the function of law without committing ourselves as to whether these are valuable functions. Arguments for positivism are backed up by professional practice – lawyers can convey information about law without apparently committing themselves on questions of political morality – they may even describe the laws of past, foreign or unjust legal systems.