The debate between insurers "right" to assess risk vs concerns about unethical discrimination has come into sharp focus again.
The recent EU Court ruling on gender discrimination follows a pattern. These debates always take place on two levels - a technical risk assessment one on whether insurers can prove that any particular group of people is at greater risk than another. And an ethical one - as to whether it is acceptable to discriminate against a particular group per se.
Consensus is easy at each end of the spectrum - on smoking discrimination is fine - on race it is not.
Between these two extremes things are resolved by some form of accommodation between the two - as happened in the UK on genetic tests. And, prior to the Court ruling it seemed that this was the case for gender too.
To find out what went "wrong" we need to look at how we got to the current situation. The ruling itself originated from a dispute in Belgium where their Court had to decide if it was compatible with the fundamental rights of the EU to take gender into account as an insurance risk factor.
At first glance the answer would be no because the Directive states that the use of sex as a factor in the calculation of premiums and benefits for insurance is not allowed.
But Article 5(2) of the Directive - which was not present in the Commission's initial proposal for the Directive, but added later during the legislative process, gives countries the right to "opt out" from the principle of equal treatment.
To do this they had to prove that the use of sex as a determining factor in the assessment of risk is based on relevant and accurate actuarial and statistical data. And this is exactly what many countries did - including the UK and Belgium.
Despite this the EU Court ruled that different insurance premiums for women and men constitute sex discrimination and are not compatible with the EU's Charter of Fundamental Rights. And that the "opt out" clause in the Directive was illegal.
The equivalent in UK law would be if an Act of Parliament on one subject contradicted an all embracing set of laws - for example on race equality. The narrow legislation could be overturned over here using a judicial review.
But hang on a minute - in this case the opt out was contained in the Directive itself, which specifically addressed one of those fundamental rights - so surely that should be OK? Well maybe - but it is certainly arguable that it isn't - and given that the Commission issued a 'fundamental rights checklist' last October to make sure that all laws proposed comply with the EU Charter it is certainly not in the current direction of travel.
And to nail the issue down for good the EU Justice Commissioner said that "it is important to note that the derogation for insurers was not part of the Commission's initial proposal for the 2004 Directive; it was only added later by the Council."
In other words it was contrary to the essence of the original Directive. The same thing argument could be applied in the UK when an amendment to an Act is contrary to what was said in the explanatory notes to the original Act.
There has been a lot of talk about a daft decision by the EU Court - although other coverage in the UK media has actually supported the principal of equal treatment for the sexes on insurance on ethical grounds.
In fact the pass was sold long ago when the original Directive did not recognise any alternative argument. The lesson for future potential equality Directives is get in early and don't rely on later lobbing to gain concessions.
