A tale of two court cases

Neither of which has anything to do with climate change. They are:

* Foster parent ban: ‘extreme distress’ of ‘anti-gay’ Christians’ over ruling courtesy of the Torygraph; and
* ECJ gender ruling hits insurance costs

God hates fags

I was going to rant about the first one but I won’t (err, other than my mildly provocative headline). Instead, I’ll ask you to compare the Torygraph and the Beeb to the actual judgement, which helpfully contains a summary of the case.

From which I quote a bit of background: The claimants are members of the Pentecostalist Church and believe that sexual relations other than those within marriage between one man and one woman are morally wrong. Between August 1992 and January 1995 they were approved as foster carers by Derbyshire County Council. They last fostered a child in September 1993 when they did so for one month. They applied for approval by the defendant in September 2004 but, because of professional and other personal commitments, withdrew that application. In June 2006 they again expressed interest in fostering. In January 2007 they applied to the defendant to be short-term foster carers. It is the treatment of that application which has given rise to these proceedings.

For the details of the case I refer you to the judgement, which is well worth a read. Highlights include the judges giving the claimants’ barrister gets a good kicking (extravagant rhetoric… simply wrong as to the factual premises… at best tendentious in their analysis of the issues… It is hard to know where to start with this travesty of the reality) and the gentler but equally firm kicking they give to Lord Carey, former archbish.

The judges reject the claimants’ attempts to frame this as a matter of religious persecution, and quoting a previous judgement reaffirm

In a free constitution such as ours there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian’s right and every other person’s right to hold and express his or her beliefs, and so they should. By contrast, they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society

which I think is well said. The conclusions are paras 107-9, from which we find the parties have: (a) been unable to agree on an appropriately focused question for the court to address, (b) each identified questions that do not raise a question of law that can be answered with anything approaching a simple ‘yes’ or ‘no’, and (c) furnished the court with no evidence… we have concluded that we should make no order.

So: not only has the council made no decision (other than, with the plaintiffs agreement, to defer making a decision) but the court made no decision (other than not to make a decision). So all the talk of people being “banned” is utter twaddle.

Point (b) is quite interesting. What happened is that both sides realised they were in disagreement, and (I’m guessing) realised that if they pushed it to a decision (by the council) then it was going to end up in court. So what they (apparently sensibly) tried to do was defer the decision, and ask the court to decide in advance. The court, however, was deeply unhappy with this. Because instead of a clear question (“was decision X lawful”?) the court was being asked to rule on a series of rather vague and sweeping statements that were far too wide.

EU declares itself insane

Unfortunately, I’m also getting my views on the second case from the Torygraph and the Grauniad. But only because I couldn’t find the judgement itself. I did look but failed to find. [Updated: but others are better than me: J found the judgement and PL the press release.]

Anyway, what appears to have happened in this case is that the judges have made a ridiculous reality-defying decision, but only because they have followed the ridiculous reality-defying law. People’s risk profile is affected by age and sex based on good statistical evidence, and companies should be able to use that information.

[Update: based on reading the court's own press release, and the judgement, I've revised my opinion. The law as it existed was a little murky and confused, but capable of being interpreted sanely. The judges, possibly due to actuarial incompetence, possibly due to intrinsic stupidity, or who knows exactly why, willfully decided to produce an insane decision, which is entirely their own fault.]

[Update: Other people have a different view. Timmy quotes Ministry of Truth (who get confused about the temporary exemption, and comes down on the wrong side: viz, that the situation is clear. It isn't clear, that much is clear) and the City Law School who talk similar nonsense. Sigh.

My own view, as I made clear in the comments, is that there is no problem here that the law needs to solve. There is no pressing case of anyone being unjustly discriminated against; the EU should not have passed the original law (in good or in bad form) and the court should have declined to hear the case -W]

Refs

* Paul’s view
* Misplaced outrage over High Court “ban” on Christian foster parents

Comments

  1. #1 Julian
    2011/03/03

    This appears to be the ruling http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-236/09

    Unlike the report in the press, which indicate the judges were ruling on the Charter of Human Rights, they seem to have been ruling on the validity of a Directive.

    Not easy to find or understand, which is of course part of the problem.

  2. #2 P. Lewis
    2011/03/03

    Press release pdf of ECJ ruling and the ECJ ruling itself.

  3. #3 P. Lewis
    2011/03/03

    Bugger! You trumped me during composition!

  4. #4 P. Lewis
    2011/03/03

    And next, an equivalent decision on age-related discrimination on insurance matters? And on those with disability and those without?

    As night follows day probably.

    It points to there being something slightly awry with the framing of the law IMO, as in principle the legislation against discrimination must be sound.

  5. #5 crandles
    2011/03/03

    The coverage I saw seemed to concentrate on women being cross that insurance was going to cost them more. Maybe that is inevitable but my reaction was to think that the effect is to reduce the financial incentive to men to avoid their tendancy toward unsafely aggressive driving. That seem far from what a sane society should want.

  6. #6 Contrarianot
    2011/03/04

    “Anyway, what appears to have happened in this case is that the judges have made a ridiculous reality-defying decision. People’s risk profile is affected by age and sex based on good statistical evidence, and companies should be able to use that information”

    Do you support a company’s right to use risk profiles to determine a female applicant’s chance of getting pregnant, going on maternity/part-time/leaving, before deciding to hire her?

    [That is difficult. However, its not at issue, because in that case the law is perfectly clear: Entities have to pretend not to discriminate and must take care not to get caught or they will be in trouble -W]

    How about insurance companies taking race and Black-on-Black violence in London into account before offering someone insurance?
    Where do you draw the line when it comes to collectively punishing a non-homogenous group for the sins of their peers by allowing discriminatory rates for the entire group?

    [Again, this is difficult. For almost anything you can find special cases. the law in this case was very clear though: any "discrimination" had to be backed up by good actuarial evidence. If you push the argument down to small groups that evidence wouldn't exist.

    But for insurance, I think the situation is clear: there is no compelling argument for government or legal intervention. There is a competitive marketplace and no evidence at all that people are being unjustly handled -W]

    How about if we find a town where the White population gets into fewer accidents than others. Can we replace the real company ‘Diamond’ (car insurance exclusively for women at better rates) with ‘White Diamond’ (car insurance exclusively for whites at better rates)?

    [I would say yes, why not? But I suspect that the law explicitly prohibits this -W]

  7. #7 Sou
    2011/03/04

    Like P. Lewis, I figure although bad for women (and insurance companies), this must be good for the oldies, assuming the case sets a precedent for those wanting to remove discrimination of any kind.

  8. #8 Contrarianot
    2011/03/04

    Ok, I can’t say I like the cut of your jib, but you’re certainly consistent.

  9. #9 jaydee23
    2011/03/04

    On the EU decision relating to insurance and pensions, my initial reaction was very like yours. This is nuts. On reflection I’m not so sure.

    The situation prejudgement was that a young man that drove safely (and I’ve met one or two) was discriminated against badly. Now insurance premiums will have to be closer to the accident record of the individual. For new drivers things will start out badly, but should (if the market does its job), quickly improve.

    [This is wrong. For individuals, the statistics aren't good enough. You need to average over a sufficient number of people. It is not possible to set premiums in an actuarially meaningful way based on one persons accident record.

    The idea that because one person gets discriminated against, therefore you have to do insane things, is just foolish. It is not possible to arrange the system to achieve compete justice for all. Nor has the judgement moved the system incrementally towards more justice: it has shifted it away from justice -W]

    The pensions situation is less clear cut, but I can see that we may move to a situation where if you have a medical at the behest of your pension company, then you may get a better or worse payout depending on the result. If you can demonstrate that you are going to kick the bucket sooner rather than later then you may get a bigger pension.

  10. #10 Julian
    2011/03/05

    The only logical positions are either to base insurance costs on accident record alone (no claims bonuses) or to group people according to different levels of risk. Of course, some young men drive safely and never have accidents. So do some fast sports car drivers.

    Is there any logical reason why, if you’re not allowed to discriminate by sex, you should be allowed to discriminate by age?

    [None that I can see. My position on this, though, is very much that there is no clear case for government or legal intervention at all. There is no problem there to solve. The government and the courts should just back off and allow citizens to live their lives in peace -W]

  11. #11 eddie
    2011/03/06

    What’s your opinion of the underlying causes of the evident demographic difference in life expectancy? Are the facts, that women live longer (for the pensions issue) and have fewer accidents (for the insurance one), that actuaries work with, just the way things are? Do women deserve to live longer?
    I know that’s a somewhat flippant framing of the issue but I’m hoping it helps to look at this from another angle.

    [I'm not sure "deserve" to live longer means much. But anyway, actuarially, it is well known that they *do* live longer: and so they get smaller annual amounts when they buy annuities. And this is Just. As to *why*, I'm less interested -W]

  12. #12 eddie
    2011/03/06

    Also: “[This is wrong. For individuals, the statistics aren't good enough. You need to average over a sufficient number of people. It is not possible to set premiums in an actuarially meaningful way based on one persons accident record.]”

    Rather, it is wrong that insurance uses actuarial data. Any insistence that they must use it may well be dogmatic. It’s not the insured’s or society’s problem that they can’t/won’t assess risk any other way :-)

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