Skip to content

Charles Foster’s Posts

Judges Are Paid To Express Opinions

Introduction

In a series of five harrowing judgments, the President of the Family Division, Sir James Munby, expressed his frustration with the system that endangered the life of a child who was the subject of care proceedings. He was forthright. Some of his words were quoted in the press. A headline in the Guardian read: ‘Judge warns of ‘blood on our hands’ if suicidal girl is forced out of secure care.’ ‘Why won’t NHS help?’ asked the Sun. ‘State will have ‘blood on its hands’ if suicidal teen doesn’t get hospital bed soon, top judge warns.’

While the judge’s comments seemed generally to be applauded by the media, not all were happy. Here is a typical example of a commentator who was not:

To use a rhetorical outburst in one case to make broader political points about the state of public services jeopardises the principle of judicial separation. In saying that there are occasions when doing right “includes speaking truth to power”, and openly condemning the lack of adequate public resources, is to leave the respected realm of judicial neutrality and to enter the political fray. Language and tone matter. Even if the diagnosis is fair, for a judge to use this tactic is, well, pretty ill-judged.’Read More »Judges Are Paid To Express Opinions

‘Being a burden’: an Illegitimate Ground For Assisted Dying

The issue of the legality in England and Wales of physician-assisted suicide has recently been revisited by the Divisional Court. Judgment is awaited. The judgment of the Court of Appeal, granting permission for judicial review, is here.

The basic issue before the Court of Appeal was the same as that in Nicklinson v Ministry of Justice and R (Purdy) v DPP: does the right to determine how one lives one’s private life (protected by Article 8 of the European Convention on Human Rights)  confer a right to have an assisted death?

Many factors have been said to be relevant to decisions about assisted dying. They include intractable pain (rather a weak criterion, given modern palliative methods), hopeless prognosis – likely to result in death in a short time –  and simple autonomy (‘It’s my right to determine where, when, and in what circumstances I end my life, and that’s an end of the matter’). One factor, commonly in the minds of patients asking for help in ending their lives, but rarely mentioned by advocates of assisted dying, is that the patient feels that she is a burden to her family and carers.Read More »‘Being a burden’: an Illegitimate Ground For Assisted Dying

The non-identity problem of professional philosophers

By Charles Foster

Philosophers have a non-identity problem. It is that they are not identified as relevant by the courts. This, in an age where funding and preferment are often linked to engagement with the non-academic world, is a worry.

This irrelevance was brutally demonstrated in an English Court of Appeal case,  (‘the CICA case’) the facts of which were a tragic illustration of the non-identity problem.Read More »The non-identity problem of professional philosophers

Damages and communitarianism

By Charles Foster

The Lord Chancellor recently announced that the discount rate under the Damages Act 1996 would be decreased from 2.5% to minus 0.75%. This sounds dull. In fact it is financially tectonic, and raises some important ethical questions.

In the law of tort, damages are intended to put a claimant in the position that she would have been in had the tort not occurred. A claimant who, as result of negligence on the part of a defendant, suffers personal injury, will be entitled to, inter alia, damages representing future loss of earnings, the future cost of care and, often, private medical and other treatment.

Where damages are awarded as a lump sum, there is a risk of over-compensating a claimant. Suppose that the claimant is 10 years old at the time of the award, and will live for 70 years, and the future care costs are £1000 a year for life. Should the sum awarded be £1000 x 70 years = £70,000? (70, here, is what lawyers call the ‘multiplier’). It depends on the assumption one makes about what the claimant will do with the lump sum. If she invests it in equities that give her (say) an annual 5% return, £70,000 would over-compensate her.

In the case of Wells v Wells1, the House of Lords decided that, to avoid the risk of under-compensation, claimants should be treated as risk-averse investors. It should be assumed, said the House, that the discount rate should be fixed by reference to the return on index-linked gilts – Government securities. The rate was 2.5% from 2001 until February of this year. The reasons for the change to minus 0.75% are hereRead More »Damages and communitarianism

New Year resolutions and tripartite human nature

  • by

Written by Charles Foster

‘I do not understand my own actions’, grumbled St. Paul. ‘For I do not do what I want, but I do the very thing I hate….I can will what is right, but I cannot do it. For I do not do the good I want, but the evil I do not want is what I do….’1

That’s a fair summary of the evidence about the fate of New Year’s resolutions. The University of Hertfordshire psychologist, Richard Wiseman, found that only 10% of New Year’s resolutions succeed. Most of them are abandoned by 23 January.

http://www.independent.co.uk/life-style/health-and-families/features/why-we-make-and-break-our-new-years-resolutions-and-how-to-stick-to-them-9951829.htmlRead More »New Year resolutions and tripartite human nature

The bright side of Brexit

Let’s suppose, entirely hypothetically and for the sake of argument, that Brexit is a disaster for the UK. Let’s suppose that sterling crashes; that foreign travel is punishingly expensive and that, if you can afford to go abroad, you’re a laughing stock. Let’s suppose that the Treasury’s estimates of billions of pounds of losses each year are reasonably accurate; that unemployment rises; that credit ratings plummet. Let’s suppose Brexit creates a corrosive tide of racism; that things that should never be said, and can never be unsaid, are shouted at high volume. Let’s suppose that there’s a torrential brain drain; that UK universities fall down the international league tables; that the innovative treatments prescribed (to private patients only, unfortunately – no money left for the NHS) by the UK’s (predominantly white) doctors are all devised in New York, Paris and Rome rather than London and Leeds. Let’s suppose that the environment, unprotected by EU legislation, is trashed, and that Scotland leaves the UK.  Let’s suppose, too, that nervousness about all this creates an increasingly authoritarian style of government .

If all that happens, it’ll be great. At least if you’re a consistent utilitarian. The horror of the UK’s experience will strengthen the EU and prevent other countries from thinking that they should leave the Union – which would have similarly disastrous results for them and, if the EU itself dissolves, tectonic consequences for the stability of the world.Read More »The bright side of Brexit

Cross Post: Ig Nobel Prize Winner: Why I Lived Like a Badger, an Otter, a Deer and a Swift

  • by

Written by Charles Foster, Research Associate, University of Oxford

This article was originally published in The Conversation

I have lived as a badger in a hole in a Welsh wood, as an otter in the rivers of Exmoor, an urban fox rummaging through the dustbins of London’s East End, a red deer in the West Highlands of Scotland and on Exmoor, and, most hubristically, a swift, oscillating between Oxford and West Africa. For this I was recently awarded an Ig Nobel Prize for “achievements that make people laugh, and then think”. Why I did this is not an unreasonable question. There are many answers. One is that I wanted to perceive landscapes more accurately.Read More »Cross Post: Ig Nobel Prize Winner: Why I Lived Like a Badger, an Otter, a Deer and a Swift

Veterinarians and the best interests of animals

By Charles Foster

English law has traditionally, for most purposes, regarded animals as mere chattels. There is now animal welfare legislation which seeks to prevent or limit animal suffering, but provided that legislation is complied with, and that no other relevant laws (eg those related to public health) are broken, you are free to do what you want with your animal.

Veterinary surgeons are in an interesting position. The UK regulatory body for veterinarians, the Royal College of Veterinary Surgeons (‘RCVS’) publishes a Code of Professional Conduct. This provides, inter alia:

‘1.1  Veterinary surgeons must make animal health and welfare their first consideration when attending to animals.’

‘2.2  Veterinary surgeons must provide independent and impartial advice and inform a client of any conflict of interest.’ 

‘First consideration’ in 1.1 is a rather weasly formulation. Does it mean that it is the overriding consideration, trumping all others, however weighty those others might be? Or the one that veterinarians ought to consider first, before moving on to other criteria which might well prevail?Read More »Veterinarians and the best interests of animals

Brexit: lessons from the law

37% of the UK electorate voted to leave the European Community – slightly more than voted to remain. There is evidence that some of them regret their votes. The former editor of the Sun, Kelvin Mackenzie, who voted ‘Leave’, has spoken publicly about his ‘buyer’s remorse’.  Others have indicated that they would not vote ‘leave’ again.

There are calls for a second referendum, generally based on assertions that the ‘Leave’ campaign made misrepresentations (for instance about how money saved by leaving the EU would be spent), or on the contention that an issue as constitutionally tectonic should not be decided on such a slender majority, or the observation that an overwhelming number of young voters (who will be affected by the decision for the longest) voted to remain.Read More »Brexit: lessons from the law

Private education: in defence of hypocrisy

eton_2855585b(Photo: Daily Telegraph)

I am a bitter opponent of private education. All my political hackles rise whenever the subject is mentioned.

Yet of my four currently school-aged children, one (‘A’) is educated privately (at a specialist choir school), and another (‘B’, who is dyslexic) will shortly be in private education (at a hip, Indian-cotton swathed, high-fibre, bongo-drumming, holistic school). The two others (‘C’ and ‘D’) are currently in state primary schools. There are two older children too (‘E’ and ‘F’) They were both educated privately, at a fairly traditional school.

How can I live with myself?

One way would be to avert my eyes from the apparently plain discrepancy between my actions and my political convictions. That’s often been my strategy. But I want to attempt some kind of defence – at least in relation to A and B, and lay the ground for a potential defence in relation to C and D, should we choose to educate them privately.Read More »Private education: in defence of hypocrisy