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The High Court has rejected a claim that the system of enlistment for Army recruits aged 16-18 is discriminatory on grounds of age. Kenneth Parker J dismissed a judicial review brought by Child Soldiers International alleging that the relevant regulations were in conflict with the Equal Treatment Directive.
Ben Collins and Sophie Beesley of Old Square Chambers acted for the successful Defendant.
Regulations provide that those recruited to the Army over the age of 18 must serve four years before being entitled to transfer to the reserve. In contrast, for those recruited under the age of 18, the four years starts from the date of their 18th birthday.
The Claimant argued that this amounts to age discrimination contrary the Equal Treatment Directive. However, the Directive gives Member States the choice as to whether the Directive, in so far as it relates to age discrimination, should apply to its armed forces. The Defendant argued, and Mr Justice Kenneth Parker agreed, that the UK, through provisions contained in the Equality Act 2010, has exercised this power and that the Claimant’s claim must therefore fail.
The Claimant had sought to argue that every derogating power conferred upon Member States must be subject to the requirements of proportionality, but Mr Justice Kenneth Parker strongly disagreed that a national judge should assess whether a measure within the scope of the derogating power is proportionately justified by reason of some unspecified legitimate objective.
In light of the Judge’s conclusion, the Court did not need to determine the issues of less favourable treatment or justification. However, for completeness, the Judge summarised and expressed a view on the parties’ respective positions.
In relation to less favourable treatment, the Judge’s view was that recruits enlisted before the age of 18 are treated less favourably than over 18 recruits by the challenged regulation.
In relation to justification, the Defendant highlighted, amongst other points, the effect on manning levels of reducing the mandatory period of service for under 18 recruits. Conversely, the Claimant contended that the number of additional recruits required to make up the shortfall would be small and that the Defendant had failed to show that less restrictive measures would not be equally effective.
Mr Justice Parker’s conclusion was that this “putative contest” only highlighted how “utterly inappropriate” it would be for a judge to analyse the operational effectiveness, or other legitimate military objective, of the Army’s decisions and the importance of the derogation permitted to Member States to decide these matters for themselves.
Click here for a copy of the Judgment.
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