2) What is a member state?

(usually not the govt itself which is acting in breach of EU law)

  • Comm v Belgium, 1970: just cos institution responsible is constitutionally independent is NOT a justification. MS responsible regardless of which agency of the State is responsible.
    • Also liable for acts/omissions of constitutionally independent public authorities (Comm v Ireland, 1982). Here entity received govt funding.
    • And for constituent state within federation (Comm v Greece, 1988)
    • And even private companies if govt exercises considerable influence over them (Comm v Germany, 2002)
  • Although it is nat govt who will appear before ECJ, the defendant is the State – legislature/judiciary are organs of the state, and their acts may trigger enforcement proceedings.
  • But can enforcement action be brought against national courts? Huge discussion in Kobler, 2003:
    • Contro cos in democratic society, govt not meant to have influence over judiciary (and legislative). Rather, Parlt should be controlling govt, with judiciary being entirely independen, the Manchester Taxi firm
    • Here, focus on question of representation, not liability.

ECJ in this case said that if MS sup ct made mistake in application of EU law, it did so as a rep of the State, hence can bring enforcement action against judiciary’s action!

Civil Liability:

E/ers can be personally liable to e/es for accidents at work on a number of bases:

i. negligence

ii. breach of statutory duty (eg Regulations made under HSWA

1974 or Occupiers’ Liability Act 1957)

iii. breach of contract (eg breach of the implied term to provide

a safe premises, plant and equipment and a safe system of


Criminal Liability:

This can arise under the following:

i. HSWA 1974 – eg both the company and individual directors can be

prosecuted for breaches of the Act

ii. General criminal law, if death results, in a possible prosecution for


iii. S37 HSWA – prosecute officer if breach occurred with their consent

or due to neglect

New Legislation – Notary Public London solicitors

In June 2000, the Department of the Environment, Transport and the Regions (DETR) issue

Continue reading “Civil Liability:”

Health and Safety at Work

EXAM TIP – discuss both the Act and the Regulations

Exam Checklist

1. s2 HSWA “as far as reasonably practicable”

look at what the e/er has done including size and resources of the company then look at the degree of risk and decide whether e/er should have done eliminated/reduced the risk on the basis of the

cost, time, disruption to workforce, etc Framework of legislation and regulations:

 Health and Safety at Work Act 1974 (HSWA) – it’s actually criminal legislation but you use it to show civil liability

– This provides the framework for modern health and safety legislation

– the Act specifically recognizes the need to progressively replace pre-1974 legislation by a system of Regulations and Approved

Codes of Practice (ACOPs) made under it.

The result will be that eventually, pre-1974 legislation will be repealed and those provisions which have modern application will exist as Regulations and ACOPs made under HSWA 1974

 – aim to secure the health, safety and welfare of people at work, inc employers, employees and self employed. Also protects people other than those at work against

risks to their health and safety arising out of work activities, i.e. visitors, contractors, even trespassers, it protects the public in general as well as employees.

 S.2 – ‘it shall be the duty of every employer to ensure, so far as reasonably practicable, the health, safety and welfare at work of all his employees’.

Such things as system of work, use, handling, storage and transport of articles and substances, info, instruction, training and supervision, place of work, plant; system of

work; use, handling, storage and transport of articles and substances; information, instruction, training and supervision; place of work; and working environment

 ‘So far as is reasonably practicable’ means the degree of risk should be balanced against the time, trouble, cost and difficulty of taking measures to avoid the risk and is therefore less than absolute (Hawes v Railway Executive (1952) RB 199)

 Burden of proof is on the accused to prove reasonably practicable.

 S.2(3) requires every employer who carries on an undertaking employing 5 or more employees to prepare a written statement of health and safety policy.

 S.3 – obliges employers and self employed persons “so far as is reasonably practicable, to conduct their undertakings in such a way as to ensure that non- employees affected by work activities are not exposed to risks to their health and safety.” This covers public at large, visitors, contractors, even trespassers.

Non-employees range from outside contractors (R v Associated Octel Co Ltd) to visitors or even trespassers. Similar to the case of  abogados de accidentes de carro file.

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The ‘Internal Aspect’ of Law

Another important way in which both Kelsen and Hart tried to improve upon Austin’s legal positivism was to give a better account of law’s “internal aspect”. Austin presented those who were subject to the law as being passive in the face of an external force: law was the command of a Sovereign backed up by sanctions in the face of which the population had a habit of obedience. In Hart’s view, this account of law only explained how law looked on the surface, and from the ‘outside’ and was akin to an account of cars stopping at traffic lights such as a Martian sociologist might offer. A Martian sociologist could state that cars have a habit of stopping in the face of traffic lights turning red. This way of looking at the situation, however, fails to tell us how things appear ‘from the inside’ to those who use legal rules to guide their conduct in their daily lives. Cars do not merely happen to have a habit of stopping at red lights. Rather, those people in the cars understand that there is a rule requiring them to stop which they are using to guide their conduct, and which they take as a reason for stopping when the traffic light turns red. The point which Hart wanted to make was that legal theorists will miss some of the most important things about the nature of law unless they understand law as it is understood by those who are subject to it and use it as a guide to conduct. Hart dubbed this insiders perspective the internal aspect of law, and insisted that law had to be understood taking into account this internal point of view if it was to be understood adequately.

Hart and Kelsen gave different accounts of this internal aspect of law, but both wanted to stop short of turning it into an intrinsically moral aspect, which would cast doubt on their legal positivism. According to Hart and Kelsen, then, legal theorists must understand law from the internal point of view, but that point of view must not be so internal as to entail a moral endorsement of the law. For Hartian and Kelsenian legal theorists, having an internal attitude toward the law, then, does not entail accepting the law as a morally good thing which creates moral reasons to do as it says because it says so.

General Reading

Continue reading “The ‘Internal Aspect’ of Law”

Introduction to Legal Positivism

Legal positivism is a doctrine about the nature of law according to which (a) all laws are laid down or posited by a certain person or procedure, and (b) something counts as a valid law of a certain system in virtue of being laid down by a certain someone or according to a certain procedure. In other words, the legal validity of a rule or decision depends on its sources (e.g. where it has come from, and how, and when), rather than its merits (e.g. whether or not it is a good rule or decision). This way of understanding law was made famous during the nineteenth century by the ‘command’ theories of law espoused by Jeremy Bentham and John Austin. According to these theories, something is law if it has been commanded by a Sovereign, and is backed up by the threat of a sanction in case of non–compliance.

Command theories help us to understand the posited nature of law, allow us to identify and understand what law is before considering whether it is morally good or bad, and foreground the role which coercion plays in the law, and so furnishes us with a legal theory which attempts to tell citizens subject to the law exactly the sort of thing they are dealing with.

Unfortunately, however, the command theory makes it difficult to understand how legal systems work as a system. Each law is a law because it is posited by an act of the Sovereign, and so each law appears to be self–contained and self–sufficient, unified only in that all laws have in fact been commanded by the present Sovereign in the way explained by the command theory. This, however, fails to explain the way in which legal systems seem to have a life of their own, independently of the lives of the Sovereigns, or legislatures, which posit their laws. Legal systems remain in force, and are capable of altering the laws which comprise them, and of creating new laws, across time, and they retain these characteristics even when one Sovereign dies or one legislature dissolves and a new one ascends to the throne or is reconvened. Twentieth century legal theorists H.L.A. Hart and Hans Kelsen both criticised these weaknesses in Austin’s command theory of law, and, in their own separate ways, set out to explain what it is that unifies laws into legal systems, and which allows legal systems to regulate their own creation: to determine which laws belong to the system, alter existing laws, and make new ones, according to their own internal procedures for so doing.

How can legal systems pull off this amazing trick of regulating their own composition and creation?