We are discussing Patmalniece v Secretary of State for Work and Pensions.
In a message dated 3/2/2016 10:18:33 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes: "My take is different: it is very hard to
make
sense of a judgment like Patmalniece ['P'] without understanding the
problem-situation"
McEvoy, let us recall, in opposing "CA" (alla Hart) -- conceptual analysis
-- to "PS" (alla Popper). So his 'very hard' is meant as an attack to
conceptual-analytic approaches to, say, the philosophy of law.
i. "Very hard" does not mean "impossible".
It does not mean 'inconceivable'.
McEvoy goes on:
"- that problem-situation can be variously characterised but I offer a
sketch below. It might seem petty but it is important to correct [a]
characterisation, which overstates a resemblance between 'P' and a situation
faced
by the ancient Romans:- 'P' is not a problem of English law simpliciter but
of European law which now applies to English law: the old Romans had not
signed up to anything so that their view of citizenry was now subject to a
supra-Roman court, unlike the British Supreme Court ['BSC'] which is now
subject to the European Court ['EC']."
It may do, since McEvoy was wondering if the CA proponent might not wish to
explore on 'considerations' regarding 'nationality', how the Romans got
their idea of 'citizenship'. It might well have been a Greek borrowing (from
'polis', city-state). So, while literally, the Romans never signed up to
anything, their very concept of what a 'citizen' -- or "Roman national" if
you wish -- was borrowed, but never returned, from Greek ideas. Recall the
sophists who visited Rome back in the day and introduced 'conceptual
analysis' to the Roman nationals (Cato was so infuriated he could not see).
McEvoy:
"This problem becomes amplified because the BSC must follow Brussels even
in a case like 'P' where it neither quite agrees or even understands why
Brussels has made certain decisions. Quiet murmurs of jurisprudential
dissatisfaction with Brussels animate many parts of the BSC's discussion
(perhaps
some revenge for the kicking given the BSC by the ECHR in the 'McLibel'
case). But none of this is really the place to start. A better place to start
is that the European Union has given rise to the "Union Citizen""
-- a sort of 'new' concept as it were, or perhaps, to use one of McEvoy's
favourite phrases, a 'new[er] paradigm.
McEvoy:
"and the general proposition is that every "Union Citizen" is equal to each
other in legal status and must be treated so by each member state."
This is very Greek and very Roman. The Greeks of course had one 'polis' too
many. Athenians would not SPEAK to Spartans. Rome was more monolithic.
There was Etruria, but I don't think it was regarded as a 'city' (i.e. Greek
polis). It is true that some of the earliest kings of Rome were Etrurian,
but surely the bad ones!
In any case, the logic of the conceptual analysis does, granted, get
complicated because we have a new concept, "Union Citizen" and "member state",
versus the "state" simpliciter (Recall that the pedantic translation by
classicist of Greek polis, that imbues the Roman idea of 'nationality' and
'citizenship', is 'city-STATE').
McEvoy:
"That effectively outlaws a member state treating its own citizens better
than it treats the "Union Citizen"".
I wonder why capitals are used. Looks too German. Italians won't use
capitals even for 'italiani'! But I suppose 'Union citizen' invites the wrong
implicature.
(And then there's the capital "U" in "Union"!)
McEvoy:
"But now we come to a practical problem: member states have different
rates of economic success and different rates of benefits - what is to stop a
"Union Citizen" from a state with high unemployment and lowish benefits from
moving to another state with much better benefits? In other words, what is
to stop "welfare tourism"? One thing to stop "welfare tourism" would be
rules restricting access to benefits in a host country that apply to foreign
nationals but not domestic nationals. This is what the 'right to reside' is
really about: it has next to nothing to do with the right to actual
residence (which all "Union Citizens" have by virtue of their guaranteed
freedom
of movement and of free access to labour markets) and everything to do with
setting out 'additional requirements' that "Union Citizens" must satisfy
before entitled to benefits. The so-called 'right to reside' is misleading
legalese for what are, in effect, a set of 'additional requirements for
"Union Citizens"' and which might be less misleadingly labelled as such."
Well, perhaps 'mislead' is misleading. In a previous post there was a
reference, and my commentary, on EU using deliberate opaque (and thus
misleading) lingo. My commentary was that this cannot include an open intention
for
that misleading intention to use opaque lingo (legalese) to be recognised.
But I agree that 'misleadingness' may be what Grice calls a 'gradual' rather
than 'flat' concept (as 'to reason', say).
McEvoy:
"The problem is whether this kind of restriction, via 'additional
requirements for "Union Citizens"', amounts to a kind of discrimination against
the
"Union Citizen" that must be outlawed? This turns into a question for the
highest courts that could be rephrased as follows: (for whatever reasons)
are we, the highest courts, going to rule that national governments have no
lawful power to have greater restrictions to benefits for "Union Citizens"
than they have for their "own" citizens?"
I see. Part of the opposition is between the C and the c: the C-c
distinction, if you wish, or c-C distinction. There's citiziens and there's
Citizens. The use of capital C for Union Citizen may invite the implicature
that
it is an abstraction and a Platonic (rather than a Martinian -- after Richard
Martin, the philosopher) one at that!
McEvoy goes on:
"Think about that question carefully. It would be obvious to many that
national courts would be very reluctant to strike down the exercise of such a
power by their national government, and would only do so if they felt
compelled - either because the national government had signed up to something
that removed such a power or (which is actually another version of the former)
the European Court had struck it down."
Well, if the second disjunct is a different version of the first disjunct,
I wonder about the logical form! Conceptual analysis ALWAYS worry about
logical forms. Is this
p v q
or should it be rephrased in terms of 'predicate' logic to who that 'q' is
just a specification of what p _says_?
McEvoy:
"Though perhaps less obvious, it might be further guessed that the European
Court itself would be very reluctant to tell the richest of EU governments
that they could have no policy against "welfare tourism" - particularly
against a background where "welfare tourism" might be used as an argument for
states to secede from the Union and where there are many clamouring for
fundamental reform of the EU."
This use of 'secede' and 'Union' I love: it's starting to remind me of the
Civil War -- as Geary notes, "War? What Great War are you talking about: to
us "War" means a previous one!"
I agree that 'welfare tourism' is provocative, and intentionally so. The
first tourists, as it happened, where the Brits who went to see the
Mediterranean sea. As Johnson said, "The only reason to engage in the Grand
Tour is
to see the shores of the Mediterranean sea". In 'welfare tourism',
'tourism' is used figuratively, metaphorically (as in Grice, "You're the cream
in
my coffee"). It may be true that there's touring involved, literally, but
this is very 'pretty complex'. It may even have Kilgariff complain, "I don't
believe in word senses!" (the sense of 'tour', say).
McEvoy:
"In favour of allowing a policy against "welfare tourism" would be [an]
analysis"
of the conceptual kind -- I assume
"that the over-riding purpose of the European Union is to give effect to
"union" where this has economic or political advantages - but there is no
economic or political advantage from "welfare tourism" (of the sort within
that purpose: economic 'advantage' of sorts for poorer states, in off-loading
their benefit-claimants to other countries, is outside that purpose). The
outcome is clear enough. Yet the problem in legal terms"
-- in legal conceptual terms, one assumes -- but I grant that may implicate
also in "problem-solving" terms.
"in how to reason so that such a policy is lawful: for plainly it is
discriminatory."
The document makes a fine distinction between direct and indirect
discrimination: the direct/indirect discrimination distinction (cfr. Quine on
the
analytic-synthetic distinction). And this may require further conceptual
analysis.
McEvoy:
"Moreover, as the dissenting judgment makes clear, there is a further
problem created by a ruling of the EC itself - the European Court has said any
such policy cannot be lawful unless it is based on considerations
"independent of nationality", yet the whole point of such a policy is to
differentiate between domestic and other nationals which on the face of it
cannot be a
policy "independent of nationality"."
-- a conceptual analyst may distinguish between 'considerations'
"independent of nationality" and 'considerations' "independent of citizenship"
where we would have 'citizens' and (U) "Citizens", requiring different
conceptual analyses. It's good these proceedings are written because it is
sometimes difficult to notice if a judge is using "citizen" or "Citizen" in his
parlance.
McEvoy:
"The scene is set - for a classic judicial fudge over the actual
reasoning."
In Aspects of Reason, Grice concludes that all reasoning is fudge,
metaphorically. Hart knew this ("but Grice is so much cleverer than _me_ that
he
*scares* me," he said when they met across the pond in Harvard).
McEvoy:
"The 'right to reside' restrictions will be held lawful insofar as they
are directed against the "welfare tourist" (though not otherwise) but the
precise reasoning leading to this practical solution"
or conclusion.
"Problem-solving" as a form of reasoning is still about premises and
conclusions, I believe?
"of a practical problem will be left in many respects obscure - with the
obscurity, at least as far as the BSC is concerned, being blamed on the
European Court. The EC themselves may have been deliberately opaque because
this
is one of those occasions where fudged reasons are the best that can be
given to ensure the 'correct' or desired outcome."
Well, if reasoning is a fudge, it seems analytic that rasons will be
fudged.
For the record, there is a controversy as to whether it's 'fudge' (verb)
that gives rise to 'fudge' (noun).
fudge (v.) "put together clumsily or dishonestly," by 1771 (perhaps from
17c.); perhaps an alteration of fadge "make suit, fit" (1570s), a verb of
unknown origin. The verb fudge later had an especial association with sailors
and log books. The traditional story of the origin of the interjection
fudge "lies! nonsense!" (1766; see fudge (n.2)) traces it to a sailor's retort
to anything considered lies or nonsense, from Captain Fudge, "who always
brought home his owners a good cargo of lies" [Isaac Disraeli, 1791, citing a
pamphlet from 1700]. It seems there really was a late 17c. Captain Fudge,
called "Lying Fudge," and perhaps his name reinforced this form of fadge in
the sense of "contrive without the necessary materials." The surname is
from Fuche, a pet form of the masc. proper name Fulcher, from Germanic and
meaning literally "people-army."
fudge (n.) "nonsense, rubbish," (1791), earlier and more usually as a
contemptuous interjection, "lies! nonsense!" Probably a natural extension from
fudge (v.) "put together clumsily or dishonestly," (cfr. 'fudge', the
confection, a mere metaphor alla Grice, "You're the cream in my coffee). q.v.
----- Farmer suggests provincial French fuche, feuche, "an exclamation of
contempt from Low German futsch = begone."
So there.
Cheers,
Speranza
Further the McEvoy's provision of the link
https://www.supremecourt.uk/cases/docs/uksc-2009-0177-judgment.pdf
and in consideration to his remark:
"CA fan-boys might want to look closely at the dissenting judgment which
arguably is based on a CA of what it is for a condition to be "independent of
nationality""
I checked occurrences of 'nationality'. There are 44. Some of them below.
We need 'linguistic botany' before we engage in conceptual analysis proper!
Ms. Patmalniece appealed against that refusal, asserting direct
discrimination on grounds of her nationality contrary to article 3(1) of
Regulation
1408/71.
Ms. Patmalniece’s case was that it was her Latvian nationality that
precluded the entitlement to state pension credit which she would have had if
she
had been a United Kingdom national.
Within the scope of application of this Treaty, and without prejudice to
any special provisions contained therein, any discrimination on grounds of
nationality shall be prohibited.
To this end it lays down a set of rules founded in particular upon the
prohibition of discrimination on grounds of nationality or residence and upon
the maintenance by a worker of his rights
acquired by virtue of one or more social security schemes which are or have
been applicable to him
They are also agreed that it does not prohibit indirect
discrimination if it is objectively justified by considerations
independent of the
nationality of the person concerned.
Her case is that the refusal was on grounds of nationality, as the
requirement to have a right to reside is met in the case of all UK nationals
simply by virtue of their British nationality whereas nationals of the other
Member States, other than Irish citizens (who can rely on their right to reside
in Ireland), do not have that right.
In the Court of Appeal Moses LJ, with whom the other members of the Court
agreed, held that the conditions for entitlement to state pension credit
were not overtly based on the nationality of the claimant because nationals
from other Member States might satisfy the right to reside test – in other
words, they did not discriminate on grounds of nationality so the conditions
were not directly discriminatory: paras 24-25. Addressing himself to the
question whether the indirect discrimination was justified on grounds
independent of the appellant’s nationality, he held that it was so justified.
It is settled case law that the principle of equal treatment, as laid down
in that article, prohibits not only overt discrimination based on the
nationality of the beneficiaries of social security schemes but also all
covert
forms of discrimination which, through the application of other
distinguishing criteria, lead in fact to the same result
Direct discrimination occurs where the discrimination is based on the
nationality of the beneficiaries of social security schemes
I think that Mr Lewis identified the issue in this case correctly when he
said that the key question on the discrimination issue is whether the
conditions for entitlement to state pension credit are formulated in terms of
the nationality of the claimants, or in terms of criteria other than
nationality. 25. The basis of entitlement under section 1(2)(a) of the State
Pension Credit Act 2002 is whether the claimant is “in Great Britain”. Thus
far,
it appears to be based solely on physical presence in this country and to
have nothing to do with nationality.
This test appears, at a superficial level, to have nothing to do with
nationality
A British citizen has, by virtue of his or her United Kingdom nationality,
a right to reside in the United Kingdom by virtue of his right of abode
under section 2(1) of the Immigration Act 1971. Those who do not have United
Kingdom nationality do not have that right automatically.
Everyone, including United Kingdom nationals, must meet this requirement.
But while all United Kingdom nationals have a right to reside in the United
Kingdom, not all of them will be able to meet the test of habitual
residence. Most are, of course, habitually resident here. Others are not. They
can
all meet the “right to reside” requirement that regulation 2(2) sets out
because of their nationality. But nationality alone does not enable them to
meet the requirement in regulation
She said that discrimination could be considered to be direct where the
difference in treatment was based on a criterion which was either explicitly
that of nationality or was necessarily linked to a characteristic
indissociable from nationality.
This discrimination was based on nationality and was therefore direct
discrimination.
The principle of non-discrimination prohibits not only direct
discrimination on grounds Page 16 of nationality but also all indirect forms
of
discrimination which lead in fact to the same result by the application of
other
criteria of differentiation.
The second cumulative condition – as to the right to remain permanently in
Belgium – which the Advocate General said was necessarily linked to a
characteristic indissociable from nationality and directly discriminatory, was
subsumed into the first when the two conditions were treated cumulatively.
In para 54 the Court said that such a difference in treatment could be
justified only if it was based on objective considerations independent of the
nationality of the persons concerned and was proportionate to the
legitimate aim of the national provisions.
The parties are agreed that article 3(1) of Regulation 1408/71 does not
prohibit indirect discrimination if it is objectively justified by
considerations that are independent of the nationality of the person
concerned.
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