Child Soldiers International v The Secretary of State for Defence [2015] EWHC 2183 (Admin)

Case No CO/4671/2014

2015] EWHC 2183 (Admin)

IN THE HIGH COURT OF JUSTICE

IN THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24/07/2015

Before

THE HONOURABLE MR JUSTICE KENNETH PARKER

Between

CHILD SOLDIERS INTERNATIONALClaimant

THE SECRETARY OF STATE FOR DEFENCEDefendant

David Wolfe QC and Christopher Milsom (instructed by Leigh Day) for Claimant

Ben Collins & Sophie Beesley (instructed by The Government Legal Department) for Defendant

Hearing Hearing dates: 1st and 2nd July 2015

Judgment

MR JUSTICE KENNETH PARKER :

Introduction

[1]The Claimant, Child Soldiers International, is a charity that supports “the establishment of durable mechanisms to prevent the military recruitment and use of children in hostilities”. With permission, it challenges the lawfulness of the statutory provisions governing the rights of recruits to leave the Army. In particular it contends that the Army Terms of Service Regulations 2007 (“the Regulations”), made pursuant to section 2 of The Armed Forces Act 1966, are incompatible with the Equal Treatment Directive 2000/78/EC.

[2]The Regulations set out the circumstances in which a soldier may leave Army service. They are set out in detail in an Annex to this judgment.

[3]The effect of the relevant Regulations for the purposes of recruits enlisting before the age of 18 is as follows:(1) Recruits may enlist in the army from the age of 16, but parental consent is required if they are under the age of 18.

(2) Regulation 9(2) gives a recruit who enlists when he is under the age of 18 the right to determine his service, provided that he gives notice after 28 days but no more than 6 months service.

(3) Regulation 9A gives a recruit under the age of 18 who does not fall within the terms of regulation 9(2) a right to determine his service by giving notice at any time prior to his 18th birthday.

(4) Regulation 11(2) provides that: a) Those recruited over the age of 18 must serve a four-year notice period before being entitled to transfer to the reserve; and b) Those recruited under the age of 18 must serve the same four-year notice period from the date of their 18th birthday; but this requirement does not apply to those who have given notice under Regulation 9 or 9A before their 18th birthday.

[4]At the limit, therefore, someone recruited on his or her 16th birthday would have to serve 6 years before qualifying for transfer to the Reserve. Someone recruited at 18 would have to serve 4 years before so qualifying.

Age equality

[5]Article 3(4) of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (“the Directive”) provides that:

“Member States may provide that the Directive, in so far as it relates to discrimination on the grounds of disability and age, shall not apply to the armed forces.”

[6]Recital 19 to the Directive provides that:

“in order that the Member States may continue to safeguard the combat effectiveness of their armed forces, they may choose not to apply the provisions of this Directive concerning disability and age to all or part of their armed forces. The Member States which make that choice must define the scope of that derogation.”

[7]Schedule 9 to the Equality Act 2010 (“the Act”) sets out exceptions to Part 5 of the Act dealing with “Work”. Paragraph 4(3) of Schedule 9 provides that:

“This Part of this Act, so far as relating to age or disability, does not apply to service in the armed forces…”

[8]The Directive is concerned with “employment and occupation”, and Part 5 of the Act deals with “work”. There is a clear link between the Directive and this part of the Act.

[9]My first task is to decide what Article 3(4) means. In my view, the meaning cannot be plainer. Member States are unambiguously given an unqualified and unrestricted power not to apply the Directive to the armed forces. In particular, Article 3 (4), to the extent that it is applied by national law, does not legally require a Member State to consider, before enacting any provision in respect of the armed forces into national law that would, or might, have the effect of discriminating by reason of age, whether the enactment of such a provision is justified, and proportionately justified, by any clear and legitimate objective. The Community Legislator could no doubt have included within Article 3(4) such a legal requirement, specifying for the armed forces what would count as such a clear and legitimate objective, and in that event any national measure that would, or might, discriminate by reason of age would be justified only in so far as it (under the general principle of EU law) proportionately advanced such an objective. But the legislator has not chosen to do so.

[10]The corollary, of course, is that there is no room for the national judge to review any such measure, taken within the scope of the unqualified and unrestricted derogating power, and to assess whether it is proportionately justified by reason of some unspecified putative legitimate objective. I say “putative” deliberately, because Article 3(4) does not specify in terms what in respect of the armed forces would count as a legitimate objective. The national court would itself have the legislative task of designing one.

[11]I do not see anything immediately objectionable or extraordinary in the present context about what appears to me to be the plain and unambiguous meaning of Article 3(4). The Community Legislator is entitled to rely on the good sense and good faith of the Member State, in so far as it exercises its derogating power to enact measures in respect of the armed forces that would or might discriminate by reason of age, and to expect that the Member State will have sound military reasons, especially in terms of operational effectiveness and efficiency, for such measures. The legislator is also entitled to entrust the definitive evaluation of such matters to the Member State, without the need for a national judge, on a legal challenge, to examine for herself whether the challenged measure is proportionately justified by a putative legitimate objective. There may well be fields where judicial scrutiny of “proportionality” would itself be considered inappropriate and disproportionate. Judges of this generation do not typically have either experience of, or expertise in, military affairs, and in my view, the Community Legislator has made a clear and unambiguous choice to leave these questions for the definitive appreciation of those who do have the relevant experience and expertise in an area, it goes without saying, that touches upon our national safety and, at the limit, as exemplified by two world wars, survival.

[12]This plain and unambiguous reading of Article 3(4) is also conducive to legal certainty, which is itself a principle of EU law. The Member State may take measures within the scope of, and relying upon, the derogating power in the sure knowledge that the measures may not be challenged before a national judge who, in applying the proportionality test, might take a different view of what military objectives can lawfully justify. The absence of judicial review does not, of course, stifle or inhibit debate in a democratic society about the merits of such measures, including whether the right balance has been struck between military exigencies and other important social values.

[13]Recital 19 explains why the Community Legislator has conferred an unqualified and unrestricted derogating power on Member States:

“in order that Member States may continue to safeguard the combat effectiveness of their armed forces”

. It has not been suggested that the legislator itself had no power to confer such an unqualified derogation for the reason stated in Recital 19. Of course, the validity of any Community legislation is subject to judicial review in the Court of Justice on the initiative of those with standing (including Member States), and, in any challenge to the width of the conferred derogating power, the Court of Justice would no doubt consider the adequacy of the legislator’s justification and would examine, with an appropriate degree of intensity, the proportionality of the conferred derogating power. The validity of Article 3(4), on the above interpretation, could also be challenged in appropriate national proceedings. I note that the words in Recital 19, which provide the reason for the grant of a derogating power in the terms of Article 3(4), are not imported into Article 3(4) itself. Again the legislator could have imported those words, or words having some such effect, into Article 3(4) and, if it had done so, I would readily have agreed that the derogating power would not have been unqualified and unrestricted. To put my conclusion in short, Article 3(4) simply permits a Member State entirely to disapply the Directive, in so far as it concerns age discrimination, in relation to the armed forces. In defining the scope of the derogation, the Member State could, of course, choose to limit the extent to which it should apply, for example, by restricting the derogation to certain parts of the armed forces or to specified functions of the armed forces.

[14]Mr Wolfe QC, on behalf of the Claimant, nonetheless submits that Article 3(4) does not mean what it appears clearly and unambiguously to mean. He contends boldly that every derogating power conferred upon Member States is as a matter of law subject to a proportionality test. I invited him to show me one case in the now voluminous jurisprudence of the Court of Justice in which Community legislation had conferred an unqualified and unrestricted derogating power on Member States, in language similar to that appearing in Article 3(4), where the Court, by reference to the principle of proportionality, had reviewed the legality of a Member State’s reliance upon such a power; or where the Court of Justice had ruled that a national court should review, by reference to proportionality, the legality of a national measure taken in reliance upon such a power. He was not able to do so.

[15]By contrast, within the corpus of Community legislation there are myriad instances of unqualified and unrestricted derogations where it is inconceivable, indeed absurd, to think that proportionality could have any role to play. I put one obvious example to Mr Wolfe. Accession Treaties are typically full of derogations for a transitional period, and such derogations are often framed in unqualified terms that, in the relevant context, allow no scope for any proportionality test. Freedom of movement is a fundamental freedom within the EU. However, The Accession Treaty with Bulgaria and Romania (OJ L157 of 21 June 2005), for example, allows Member States to derogate, without qualification or restriction, from this fundamental freedom by excluding workers who might otherwise seek to emigrate from those acceding states for a period of 5 years (Part Five, Annex V1). If quod non a Member State could lawfully exclude such workers only if it were “proportionate” to do so, the immediate question would be: proportionate to what? Member States may extend the period of exclusion to seven years to prevent “serious disturbance” in labour markets, but to import that qualification into the right to exclude in the first five years would, of course, utterly defeat the purpose of the derogating power. I could go on.

[16]Undaunted, Mr Wolfe took me to a number of EU cases, in particular, the trilogy of C-222/84 Johnston v. RUC

[1987] QB 129

; Sirdar v Army Boardand the Secretary of State

[2000] ICR 130

; and Kreil v BundesrepublikDeutschland

[2002] 1 CMLR 36

. All concerned the application of Article 2(2) of Council Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Article 2(2) provides: “The Directive shall be without prejudice to the right of Member States to exclude from its field of application those occupational activities and, where appropriate, the training leading thereto, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.” (my emphasis)

[17]It can immediately be seen that, whatever else might be said about Article 2(2) of Directive 76/207, the power of derogation is not unqualified and unrestricted. It is necessary to examine first, the nature of the occupational activity, second, the context in which it is carried out, and then finally decide whether the nature and/or the context makes the sex of the worker a determining factor (for the particular employment).

[18]The first of the trilogy concerned the Royal Ulster Constabulary in the 1980s. The Chief Constable had adopted a policy in the terrorist conditions then prevailing in Northern Ireland that general policing duties would be carried out only by armed officers. The Chief Constable would not allow women officers to carry firearms for general policing duties, and women, therefore, were in effect excluded from the ranks of those performing such duties. Mrs Johnston lost her job as a constable in the full-time RUC Reserve. According to the Facts for the Reference, the full time non-Reserve RUC had a sufficient number of women officers to perform duties other than general policing duties. If that was the case, women police officers did perform certain duties which did not involve firearms; and if Mrs Johnson were reinstated as a Reserve Constable she would have nothing to do, or special work would have to be created for her, and others in a similar position, because full time non-Reserve women officers were already performing all available non-firearm duties.

[19]The Court, having considered the Chief Constable’s reasons for his policy, said that “in a situation characterised by serious internal disturbances thecarrying of firearms by policewomen might create additional risks of their being assassinated and might therefore be contrary to the requirements of public safety” (paragraph 36 of the Judgment). In such circumstances the context of certain policing activities might “be such that the sex of policeofficers constitutes a determining factor for carrying them out. If that is so, a member state may therefore restrict such tasks… to men”.

[20]I have specifically emphasised certain expressions to show how closely the Court followed the precise ingredients of the relevant derogating power, in particular, by stating that in a context of public safety sex could be a determining factor (for the employment in question). That might have been thought the end of the matter, but the Court also directed the national court as a final step to ensure that the requirement of public safety recognised in this case was “proportionately” balanced against the principle of equal treatment, in the following terms. “ 38. It must also be borne in mind that, in determining the scope of any derogation from an individual right such as the equal treatment of men and women provided for by the directive, the principle of proportionality, one of the general principles of law underlying the Community legal order, must be observed. That principle requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view and requires the principle of equal treatment to be reconciled as far as possible with the requirements of public safety which constitute the decisive factor in the context of the activity in question.”

[21]Once the national court, however, had concluded, as it might well conclude, that public safety required that women police officers should not be permitted to perform general policing duties, because they needed to be, but could not be, armed, it would be hard to see how “proportionately” they could be permitted to perform such duties. However, that is not what the Court had in mind:

“39… It is also for the national court to ensure that the principle of proportionality is observed and to determine whether the refusal to renew Mrs Johnson’s contract could not be avoided by allocating to women duties which, without jeopardising the aims pursued, can be performed without firearms.”

[22]Johnston, on careful analysis, has three striking features for present purposes. First, the relevant derogating power was heavily qualified and restricted. Secondly, the Court closely examined in the circumstances of the case the crucial elements of the qualified derogating power, namely, the nature and context of the employment, and was able to identify public security as the crucial countervailing objective in the relevant context, which rendered sex at least capable of being, in the terms of the qualified derogation, a determining factor for the employment. It was only at the third and final stage that “proportionality” became relevant: the Chief Constable could in principle maintain the challenged discriminatory policy, but, notwithstanding what appeared in the Facts for the Reference (see paragraph 18 above), he might be shown to be able to mitigate its effect on female members of, or recruits to, the full-time Reserve RUC by allocating them to available or specially created duties other than general policing duties.

[23]On analysis I find nothing in Johnston that would support the proposition, which for reasons already explained I frankly find absurd, that every power conferred on Member States to derogate from fundamental freedoms or values must be subject to a “proportionality” test. The observations of the Court of Justice about proportionality in Johnson must be reviewed in the context in which they were made, and I do not think that I need repeat what I have already said at length about the qualified and restricted derogating power conferred in that case by Article 2(2) of the relevant Directive, and precisely how “proportionality” came into play in the Court’s ruling. In law, which includes EU law, as Lord Steyn famously stated, context is everything.

[24]Sirdar and Kreil concern the same qualified and restricted derogating power conferred by Article 2(2) of Directive 76/207 and, in my view, take the matter no further. The Court in each of the cases repeated what it said about proportionality at paragraph 38 in Johnston. However, for completeness, I shall briefly explain the issue and ruling in those cases.

[25]In Kreil, German law barred women from holding any military post “involving the use of arms”. That provision meant in practice that a woman in the military could be employed only in the medical and military-music services.

[26]Nearly all posts in the German military were as a consequence reserved for men, on the ground that in each of those posts the serving soldier would do something that involved the use of arms. Unsurprisingly, the Court of Justice held that the challenged provision was indiscriminate, and did not involve, as was required, an evaluation of the specific nature or context of each male reserved activity in the military to determine whether sex was in fact a determining factor for the activity in question (paragraph 27 of the Judgment). Furthermore, military service by its nature inevitably involved the use of arms. Reliance on such a factor would inevitably exclude women from nearly all military occupations. In these circumstances the challenged provision was also disproportionate (paragraphs 28 and 29 of the Judgment).

[27]Sirdar concerned the British Royal Marines, a small force intended to be the first line of attack, in which every member, even the chef, was trained, and was expected to serve, as a front line combat commando. The Court held that in those very special circumstances (“interoperability”) the exclusion of women from service in the Royal Marines, even as a chef, fell within the proper and proportionate exercise of the derogating power (paragraphs 30 and 31 of the Judgment).

[28]Mr Wolfe also relied upon R (on the application of Lumsdon and others) vLegal Services Board

[2015] UKSC 41

. In that appeal Lord Reed and Lord Toulson (with whom Lord Neuberger, Lady Hale and Lord Clarke agreed) discussed, authoritatively and comprehensively, “Proportionality in EU law” (paragraphs 23-82). Paragraph 23 explains why Lord Reed and Lord Toulson undertook such an authoritative and comprehensive analysis:

“23. It appears from the present case, and some other cases, that it might be helpful if this court were to attempt to clarify the principle of proportionality as it applies in EU law. That is the aim of the following summary. It should however be said at the outset that the only authoritative interpreter of that principle is the Court of Justice. A detailed analysis of its case law on the subject can be found in texts such as Craig, EU Administrative Law (2006) and Tridimas, The General Principles of EU Law, 2nd ed (2006). It has also to be said that any attempt to identify general principles risks conveying the impression that the court’s approach is less nuanced and fact-sensitive than is actually the case. As in the case of other principles of public law, the way in which the principle of proportionality is applied in EU law depends to a significant extent upon the context. This summary will range beyond the type of case with which this appeal is concerned, in order to demonstrate the different ways in which the principle of proportionality is applied in different contexts. It will provide a number of examples from the case law of the court, in order to illustrate how the principle is applied in practice.”

[29]In my respectful opinion, there is nothing in the analysis of Lord Reed and Lord Toulson to support the sweeping proposition that, if the specific derogating power conferred by the Community Legislator is unambiguously conferred in unqualified and unrestricted terms, national measures taken in conformity with the derogating power must nonetheless be “proportionate” to some unspecified putative legitimate objective. Their Lordships examine a number of different contexts in which the principle of proportionality has been applied. Their Lordships do not refer to a single instance where the relevant derogating power under consideration was conferred unambiguously in the unqualified and unrestricted terms that are found in Article 3(4) of the Directive presently under consideration. They do not, of course, address the insuperable problems in terms of inconsistency with legislative intent, legal certainly, appropriate division of responsibility between executive and judiciary, and so on, that I have set out earlier, that would arise if Mr Wolfe’s submission were correct. Whether the principle of proportionality comes into play at all also depends upon the context (cf paragraph 23 of Lumsdon); it does not do so here, given the unqualified and unrestricted terms of Article 3 (4).

[30]Mr Wolfe also relied (quite heavily) upon a judgment of the High Court (Dunne J) in the Republic of Ireland: Smyth v. Minister for Justice, Equalityand Defence and others [2013] IEHC 110. The judgment appears to have been unreserved and is unfortunately somewhat unstructured, but I have endeavoured to distil the salient elements.

[31]Regulation 7 of the Defence Forces Regulations, made under the Defence Act 1954 of the Republic of Ireland, provided that recruits for general service in the army had to be at least 17 and, the important words, “less than 25 on a date to be determined by the Minister [for Justice, Equality and Defence”]. Section 6 of the Employment Equality Act 1998 prohibited discrimination, as regards employment, on the grounds of, inter alia, age. However, section 37 (5) of the same Act provided “in relation to discrimination on the age ground … nothing in this Part II applies in relation to employment in the Defence Forces”. This would appear on its face to be a comprehensive derogation.

[32]The relevant Minister, by oversight, had not in fact “determined a date” on which a recruit had to be under 25 for the purposes of Regulation 7 of the Defence Forces Regulations. Though the matter is not free from obscurity, it appeared from the evidence in Smyth that the Irish army erroneously assumed that the Minister had in fact and law delegated the exercise of the power under Regulation 7 to the Chief of Staff of the Defence Forces, and further assumed that the latter had determined the relevant date to be the date of intended and prospective “enlistment”. Army officers, therefore, took recruitment decisions on the footing that, for the purposes of Regulation 7, an applicant had to be less than 25 on the date of “enlistment”.

[33]Smyth applied to join the Irish Army when he was aged under 25. His application was rejected on the ground that by the time of the actual “enlistment” he would be over 25. He brought a claim on a number of grounds that were singularly devoid of merit (and that were dismissed by the judge), but he did succeed on Regulation 7. The ratio of his success appears to be the following:

“ Recital 19 of the Directive requires Member States to define the scope of the derogation. In circumstances where the Minister has failed to determine the relevant date, it could not be said that the scope of the derogation has been defined. Until such time as the date is determined by the Minister, one cannot say what is the relevant date. To that extent, it seems to me that whilst the legislation has appropriately implemented in accordance with the Directive and the Defence Force Regulations have provided for age requirement, the final step, on evidence before me, to be taken to give effect to the derogation is the determination by the Minister of the relevant date and that step has not been taken. In those circumstances it appears to me that there is difficulty for the Respondents in relation to the derogation and they cannot rely upon the derogation against the Applicant. The process by which the State can rely on the derogation is incomplete.”

[34]With the greatest respect, I find this ratio puzzling. I am simply not able to see how the learned judge in Smyth concluded that the Republic of Ireland had failed to “define the scope of its derogation”. For the purposes of EU law, and entirely consistently with Recital 19, Ireland had defined the scope of its derogation by providing in section 37(5) of the Employment Equality Act 1998 that nothing in Part II of the relevant discrimination legislation applied in any part of the Defence Forces. Assuming, as did the judge, that Regulation 7 simply beat the air, with no completely defined upper age limit, I do not understand how a Member State, by failing to consummate completely what would otherwise have been discrimination on the grounds of age, had failed in that respect to define the scope of a derogation from an age discrimination that ex hypothesi did not exist and therefore needed no such derogation. In short, a failure to define the relevant age is not a failure to define the scope of the derogation. It is no more than a failure to create an age discrimination that would otherwise have fallen within the scope of, in that case, a comprehensive and perfected derogation; and I regret to say that the learned judge appears to have fallen into what Lord Justice Laws, with his knowledge of the great philosophers, would characterise as a category mistake.

[35]Perhaps I might be permitted to observe that if the relevant issue in Smyth had come before our Administrative Court on an application for judicial review, I feel confident that it would have been resolved in the following way. Regulation 7 simply seemed to beat the air, because it did not contain any completely defined upper age limit for recruitment to the army. On one view, there was, therefore, no discrimination at all on the ground of age, because no completely defined upper age limit had been lawfully prescribed. On that view, so far as Regulation 7 was concerned, octogenarians qualified for recruitment to the army, even if their applications might lawfully be rejected on other obvious grounds. If indeed there were no completely defined lawful upper age limit, Smyth qualified for recruitment and his claim succeeded. Of course, especially in certain compelling circumstances (for example, if there happened to be a queue of elderly aspirants who had suddenly been irresistibly attracted to the frisson of military life and, taking advantage of the apparent lacuna in Regulation 7, had applied to join the army) our public law, to avoid uncertainty and administrative inconvenience, not to say chaos, might, by necessary implication, have read into Regulation 7 a fall back definition, such as “………or in default of such determination, on a date that is reasonably appropriate in all the circumstances”.

[36]If, on that latter scenario, the date of enlistment was held by the Court to be the date “reasonably appropriate in all the circumstances”, the claim would fail because, although the now completely defined upper age limited amounted to discrimination, section 37(5) comprehensively disapplied the statutory prohibitions on discrimination so far as the armed forces were concerned. There would certainly be no need, pace Mr Wolfe, to consider whether the derogation was proportionate (“why can’t I enlist in the army after my 25th birthday, when Britain conscripted men of 40 to fight in two world wars?”), or whether the upper age limit, necessarily brought to life by judicial animation, was justified.

[37]In any event, for these reasons, I find Smyth of no assistance for anything that I have to resolve in this claim. I have spent so long dealing with it only because of the prominence given to it in Mr Wolfe’s submissions.

[38]Mr Wolfe finally submitted on this issue that if the exercise of the derogating power were not restricted by the principle of proportionality, a Member State would be free to discriminate on the grounds of age within the armed forces in a wholly unwarranted and outrageous manner. He gave the example of a national provision uniquely requiring someone who was recruited under the age of 18 to serve a minimum period in the army of, say, 14 years. There are a number of answers to that proposition, both legal and political. First, the Community legislates against a background in which Member States have advanced systems of public law and judicial control of abuses of governmental power. So far as the UK is concerned, if English public law is capable of holding that a broad legislative power to regulate prisons was not sufficient to justify an absolute prohibition on prison visits by journalists (R v. Secretary ofState for the Home Department Ex p Simms

[2000] 2 AC 115

), I am confident that the kind of wholly unwarranted discrimination suggested by Mr Wolfe would not survive an ultra vires challenge.

[39]At the Community level, as I have said, the legislator has entrusted the Member States with an unqualified and unrestricted power of derogation. I am sure that the European Commission keeps a watchful eye on the national measures taken with the benefit of such a power, and would first intervene at a political level if a Member State sought to enact the kind of discriminating measures that Mr Wolfe had in mind. More widespread abuse would be likely to threaten the continuation of the derogating power in its present form. At a legal level, Community law (unlike English domestic law: see The Mayor ofBradford v. Pickles

[1895] AC 587

, JF Lever in Oxford Essays inJurisprudence 1961) has a well developed general principle of “abuse of rights” (see, in particular, Case C – 255/02 Halifax and Others, Judgment of the Court, 21 February 2006 at paragraph 68, and the magisterial survey of the wide application of the principle in EU law in the Opinion of Advocate General Maduro, at paragraphs 62-71). That principle could well be invoked, either by the Court of Justice in infraction proceedings or indeed by the national court in any domestic challenge, if a Member State enacted the kind of discriminatory measures assumed by this argument.

[40]I am, therefore, untroubled by the (somewhat unreal) alarmist scenario depicted by Mr Wolfe.

[41]Second Issue: Has the UK exercised the power of derogation under Article 3 (4) so as to disapply for the armed forces the general prohibition of discrimination by reason of age?

[42]Part 5 of the Equality Act 2010 sets out, inter alia, basic prohibitions on discrimination on grounds of age and disability (see, for example, section 39). Section 83 (Interpretation and exceptions) provides at section 83 (11):

“Schedule 9 (exceptions) has effect”

[43]Schedule 9 is entitled “Work: Exceptions”, and under the title “Armed Forces” Schedule 9 paragraph 4 (3) provides so far as is presently relevant:

“This Part [Part 5] of this Act, so far as relating to age or disability, does not apply to service in the armed forces …”

[44]In my judgment, Parliament has plainly exercised the power granted by Article 3(4) of the Directive to derogate from the general prohibitions in the Directive. Consistently with Recital 19, the UK has “defined the scope of derogation”, because the exception in Schedule 9 paragraph 4(3) extends in terms to all units of the armed forces (for example, including for the army the Royal Logistic Corps which now incorporates what formerly was the Army Catering Corps) and to all functions of the armed forces.

[45]Mr Wolfe submitted that Schedule 9 paragraph 4 (3) was intended to disapply only the “enforcement” provisions of the Equality Act 2010, leaving in place the basic prohibitions on age discrimination. I reject that submission. First, Schedule 9 paragraph 4(3) in terms disapplies the whole of Part 5, so far as relating to age or disability; and Part 5 contains the basic prohibitions on age and disability discrimination. The meaning of Schedule 9 paragraphs 4(3) could not be plainer. Secondly, Mr Wolfe’s submission, if correct, would entail a surreal world in which the prohibitions remained in force, and yet there might be no means for individuals, who were subject to such discrimination, to obtain an effective remedy. I am unwilling to impute to Parliament an intention to create such an extraordinary arrangement.

[46]In this context Mr Wolfe also relied heavily on Smyth (see above). As I have explained earlier at length, I cannot see how Ireland failed, as a matter of EU law, to “define the scope” of its derogation, when section 37(5) of the 1998 Act provided in terms that that Act was disapplied (for both age and also disability discrimination) to the whole, not just some part, of the Defence Forces. Nor do I understand the proposition that, assuming Regulation 7 beat the air and there was no upper age limit for recruitment, a Member State, by failing to consummate completely what would be age discrimination, has failed to “define the scope” of the exercise of its derogating power (which was ex hypothesi not needed and not applicable). Smyth, therefore, provides no support for Mr Wolfe’s submission regarding the proper interpretation in this respect of Schedule 9 paragraph 4(3).

[47]I note finally on this aspect that Mr Wolfe did not submit that, if Schedule 9 paragraph 4(3) meant what I hold that it plainly does mean, the comprehensive “scope” of the derogation that it defined was not “proportionate”. As I noted earlier, Article 3(4) of the Directive does permit a Member State to limit the scope of the derogation to certain parts or functions of the armed forces. The United Kingdom has chosen not to limit the scope of the derogation in any way; nor, on my understanding of EU law, has the Republic of Ireland.

[48]No issue, of course, arises in this case as to whether the UK acted lawfully in extending the derogation to all units (including, for example, all parts of the Royal Logistic Corps) and to all functions of the armed forces.

[49]I have, therefore, concluded that no contestable issue of age discrimination arises. I do not need to determine whether those who are recruited under the age of 18 are treated less favourably, and whether, if they are, the unequal treatment is justified. I believe that I should not embark on such a determination. I have firmly concluded that the Community Legislator has granted a derogating power that the UK has exercised. There is no scope for this court to examine the “proportionality” of the challenged Regulations, and it appears to me to be inconsistent with the intention of the legislation if I were to do so. However, for completeness I will simply summarise the position of the parties on these particular matters adding, where I think appropriate, my brief comments.

Unequal treatment

[50]In one respect the Regulations do treat those recruited under 18 less favourably: at the limit such a recruit will have to serve 6 years before being able to transfer to the Reserve. Of course, if recruited closer to his or her 18th birthday, the difference will pari passu recede and become far less significant. Mr Wolfe contends that the inequality of treatment is obvious on the face of the Regulations.

[51]Mr Ben Collins, on behalf of the Defendant, denies that there is an unfavourable inequality of treatment. He contends that it is artificial to consider the challenged Regulation in isolation. It forms part of “a complex and interlocking network of statutory provisions and Army policies which govern the right to leave service.”

[52]Great care is taken to explain the terms of enlistment and to ensure that the precise nature of the commitment is fully understood by potential recruits. In the case of under 18s, the process includes ensuring that the parents of the potential recruit also understand the nature of the commitment. Parents or guardians of those under the age of 18 are given comprehensive written and oral guidance on the terms and conditions of service as well as rights to discharge. Written consent to enlistment is not sought unless that information has been provided. There is no such requirement for those enlisting over the age of 18.

[53]Having enlisted, a recruit under the age of 18 benefits from the additional provisions in regulations 9(2) and 9A. After 3 months of service, a recruit enlisted over the age of 18 is committed to serving for 4 years. A recruit enlisted under the age of 18 benefits from an extended period before they are bound by such a commitment, at least six months, and potentially longer depending upon the age of the recruit at enlistment and hence the period of service before their 18th birthday. No such decision need ever be taken before the recruit reaches the age of 18. When the point is reached that the recruit is committed (after 3 months for those enlisting over the age of 18; at the date of the 18th birthday or after six months for younger recruits) the period of commitment is the same, namely, four years.

[54]Mr Collins submitted that, given that those recruited under the age of 18 benefit from a range of provisions, the terms of their service cannot properly be described as less favourable than the terms of those recruited after their 18th birthday. This is not a case of less favourable treatment which does not in fact result in an unfavourable outcome (as described by Lord Hoffman in Khan). It is a case of two sets of provisions which are different, but which do not amount to less favourable treatment for either group.

[55]I would see force in Mr Collins’ submission if, but for the challenged Regulation, the Army would no longer be able to offer those recruited under the age of 18 more favourable terms, which are significant, in respect of resigning from the service. In that case it would be unreal to sever one element of what was in fact an indivisible and highly favourable package of measures designed to cater for the special needs of those under 18. However, no such causal connection has been suggested, and it would, therefore, appear legally correct, contrary to Mr Collins’ argument, to consider whether the challenged regulation, standing alone, represented unequal treatment. In my view, if the question arose, it would do so.

Justification

[56]The regular Army has a current strength (officers and soldiers) of around 82,000. It is a “bottom-fed” organisation, that is to say that as more experienced soldiers leave, and as soldiers are promoted, they must in turn be replaced by newly trained soldiers. Unlike the other armed services (the RAF and Royal Navy), the Army delivers most of its capability through the use of manpower. Although of course equipment is used by the Army, the focus is on manpower rather than platforms such as ships (as in the Royal Navy) or aircraft (as in the RAF).

[57]This leads to a need for constant, predictable recruitment of new soldiers. The Army requires 7,000 new trained personnel every year in order to maintain its manning levels. Taking into account drop-out rates (it is assumed around 75% of those who start training will successfully complete it) an intake of 9,300 per year is required. That intake itself is derived from around 65,000 applicants to join the Army, only a small proportion of whom are deemed suitable following the recruitment and selection process.

[58]The Army is currently finding the recruitment market to be difficult. There is a manning deficit which is forecast to continue until 2018. There was a recruiting shortfall of 22 per cent in 2014-15. That is notwithstanding the reduction in regular troop numbers over the course of the last few years.

[59]Under 18 entrants make up an important percentage of the recruitment figures. The assumption is that Junior Soldiers will make up around 15 per cent of the requirement, but because of recent recruiting shortfalls the percentage of under18 entrants has increased to 26 per cent of inflow (29 per cent of infantry inflow). In recent years the Junior Soldier figure has been 19 per cent of all recruits and 21 per cent of infantry recruits.

[60]The aim of recruitment is to produce sufficient numbers to deliver the operational capabilities that the Army is required by Parliament to deliver.

[61]The need to ensure a return of service following training is an important factor in requiring minimum terms of service from recruits. In particular a period of four years is set bearing in mind the aim of guaranteeing at least one posting from each soldier, during which they are liable for the full range of potential deployments.

[62]Furthermore, under 18s may not (save in highly exceptional circumstances) be deployed to operations which would involve their becoming engaged in, or exposed to, hostilities. Taking these two factors together, the recruitment and training (in particular Junior Entry training) of under 18s is a more complex, and expensive, task than that of over 18s, which does not provide a fully deployable soldier until the individual’s 18th birthday.

[63]This programme as a whole produces valuable manning results in that:(i) under 18 entrants provide a significant percentage of inflow into the Army; and

(ii) junior entry may result in particularly successful soldiers.

[64]Retention for four years after a recruit’s 18th birthday permits the Army to put junior soldiers through extended training and to allow an extended period where the service of under 18s is limited. The benefit of the process is both the increase in manning numbers and the quality of the trained soldiers.

[65]Reducing the period required to be served after the age of 18 would have inevitable consequences for manning. Brigadier Cavanagh sought in his witness statement to identify potential numbers of lost soldiers, fully recognising the difficulty in seeking reliably to predict how detrimental the consequences could be.

[66]The Defendant could not recruit under 18s without providing the training necessary to permit them to become fully deployable soldiers. The need for additional training forms part of the justification for the four-year period from age 18.

[67]The under 18s who commence training often arrive against a background of difficult social circumstances and poor educational achievement. The training provided for junior entrants provides an invaluable opportunity for development in academic, vocational, leadership and life skills.

[68]Without the different and longer training provided to junior entrants, it is very questionable whether these benefits could be realised.

[69]Mr Wolfe submitted in response that the real question was whether, for example, in respect of the central issue of operational effectiveness, the Defendant had shown that other measures could have been equally effective but less restrictive of the right to equal treatment. The Defendant’s best estimate of immediate reduction in recruitment was 150, but that was “just” a 0.2 per cent “one-off” reduction in the current needed strength of 82,500. After the immediate loss, on the Army’s best estimate, an additional 63 under 18s only would need each year to be recruited (taking account of drop out in training), a modest challenge, in the Claimant’s estimation, in the context of the current recruitment of 9,300 to provide 7,000 fully trained troops. On this, it has to be stressed again that the Army could not be certain of how detrimental a change in regime would be to the achievement of targeted manning levels, and (contrary to some amateur econometrics in the Claimant’s evidence) the Army’s evidence was that it was presently hard pressed to achieve its mandated strength. If all else failed, the Claimant proposed, manning targets could be maintained by increasing, for every soldier in the Army, to 4 years and 1 month the qualification period for transfer to the Reserve. This would no doubt be music to the ears of all serving soldiers.

[70]In my view, this putative contest regarding justification, as summarised above, graphically demonstrates how utterly inappropriate it would be for a judge to decide whether the operational effectiveness, or some other legitimate military objective of the Army, could, by other means, be satisfactorily achieved and maintained, even if the present regime were changed; and how wise it was of the Community Legislator to permit Member States to decide these matters for themselves, without exposure to a judicial critique of “proportionality” of policies and practices considered necessary by those directly responsible for, among other things, the operational effectiveness of its armed forces.

Standing

[71]The Defendant argued that the Claimant lacked standing to bring this claim. Under section 334 of the Armed Forces Act 2006 a person subject to service law who thinks himself wronged in any matter relating to his service may make a service complaint about the matter. Any determination of such a complaint would be amenable to judicial review.

[72]However, as Mr Wolfe points out, the adjudicator of any service complaint would be bound to apply the Regulations as they stand and it would not be open to a complainant to contend that the Regulations were unlawful under EU law, a fortiori where the Directive on its face confers an unqualified and unrestricted power of derogation, which the UK has implemented in comprehensive terms. The prospect of an adjudicator upon a service complaint evaluating the “proportionality” of the challenged Regulation is, in my view, wholly unreal. It is also questionable whether on a judicial review of any determination of a service complaint this court could fairly and properly set aside an adjudication, where the adjudicator had reached the only finding open to him or her under the Regulations as they stand.

[73]If, therefore, there were merit in the Claimant’s grounds of challenge, the only means of bringing the challenge to a court of competent jurisdiction would be an application for judicial review, brought either by a past or present soldier who had been recruited under the age of 18, or by a body such as the Claimant. Although I am dismissing this claim, I have no reservations about the good faith and sense of responsibility of the Claimant, and also believe that it would be a fit and proper person having a legitimate interest to bring a claim of this nature.

Conclusion

[74]For the reasons set out earlier, I dismiss this claim for judicial review.

Postscript

[75]I did raise at the hearing the possibility that I might refer the question of the proper interpretation of Article 3(4) to the Court of Justice. At the end of the day, however, like Sir George Jessel MR, I may be wrong but I have no doubt at all about the correct interpretation. I did indicate that, given that the case raised a point of interpretation of EU law, I would give the unsuccessful party permission to appeal to the Court of Appeal. I do wish, however, to make absolutely plain that, if permission were requested and I granted it, I would not be doing so on the basis that I believed that an appeal would have a realistic prospect of success, which I do not in fact believe, but only because the case raised an issue of interpretation of EU law.