Child Soldiers International v The Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 24 July 2015 |
| Neutral Citation | [2015] EWHC 2183 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 24 July 2015 |
| Docket Number | Case No: CO/4671/2014 |
[2015] EWHC 2183 (Admin)
IN THE HIGH COURT OF JUSTICE
IN THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Kenneth Parker
Case No: CO/4671/2014
David Wolfe QC and Christopher Milsom (instructed by Leigh Day) for the Claimant
Ben Collins & Sophie Beesley (instructed by The Government Legal Department) for the Defendant
Hearing dates: 1st and 2nd July 2015
Introduction
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.
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.
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 18 th 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 18 th birthday; but this requirement does not apply to those who have given notice under Regulation 9 or 9A before their 18 th birthday.
At the limit, therefore, someone recruited on his or her 16 th 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
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."
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."
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…"
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.
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.
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.
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.
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.
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.
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...
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