[lit-ideas] Re: When in Rome
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Fri, 4 Mar 2016 19:35:20 +0000 (UTC)
McEvoy:
"there is no analytical resolution in Patmalniece of the two key issues"
"(1) distinguishing direct from indirect discrimination"
Well, my post did make a few observations regarding 'sex' and 'gender' and
how 'indirect' is to be understood best.>
How do these "few observations" constitute a "sufficiently firm or robust
"conceptual analysis" of the difference between direct and indirect
discrimination from which a 'conceptual analyst' could validly determine why
the 'right to reside additional requirement' is only indirect discrimination
whereas the 'large breasts additional requirement' is direct discrimination"?
Answering that is central to (1), so what is the answer given JLS' "few
observations"?
As to (2) of the key issues, where is JLS' answer to how "considerations
independent of nationality" is to be understood in relation to justifying a
policy which explicitly aims to discriminate between nationalities [i.e.
between UK/Irish nationals and other nationals who are EU citizens]? The phrase
"considerations independent of nationality" surely has an ordinary and natural
meaning different to the phrase "considerations not based purely on
nationality"? Or are we to render these phrases as here equivalent (by treating
"considerations independent of nationality" to be satisfied by considerations
'not completely but only partly independent' of nationality? But if this is
what the EC meant surely it is intelligent enough to have said it in clear
terms?
The problem is that the any interpreting court appears between a rock and a
hard place here: the rock is that on Lord Walker's approach it is very hard to
see what could ever be wholly "independent of nationality" in relation to
justifying discrimination between nationalities, whereas the hard place is that
if considerations need only be partly independent of nationality then anything
that transcends mere nationality might appear adequate to justify
discriminating against that nationality. The majority view avoids the rock
without committing to the dark place: and it is to be understood as not
endorsing the view that any considerations partly independent of nationality
will justify discrimination but that discrimination is justified to stop
welfare tourism. It is a particular problem and its practical solution that
explains the result. Not CA.
The reason Lord Walker's approach did not hold sway is that it gives no scope
for justifying any discrimination between different EU nationals and this seems
impractical given the practical need for policies to deter welfare tourism:
again solving a practical problem in practical terms is what decides the
outcome, and if there were no practical need for any policies that
discriminated between different EU nationals, the BSC might have adopted Lord
Walker's logical-sounding approach.
DLegal geniusL
Other related posts:
