Child Soldiers International v The Secretary of State for Defence

Article 3(4) of Council Directive 2000/78/EC permits a Member State to disapply the Directive in relation to age discrimination in the armed forces through an unqualified and unrestricted derogation. Where that power is used, a national court is not required to test the resulting measure for proportionality against an unspecified military objective. The scope of the derogation must, however, be defined by national law. A provision excluding the whole of Part 5 of the Equality Act 2010, so far as relating to age or disability, from service in the armed forces validly exercises that power. The court therefore need not decide whether the challenged service rules produce less favourable treatment or whether any such treatment is justified.

Child Soldiers International sought judicial review of the Army Terms of Service Regulations 2007, as amended. The claim concerned the different periods applicable to recruits who enlisted before and after the age of 18 before they could transfer to the reserve. The claimant argued that the Regulations were incompatible with the age-equality provisions of Council Directive 2000/78/EC and that any derogation required proportionality review. The Secretary of State relied on Article 3(4), together with the armed-forces exception in Schedule 9 paragraph 4(3) to the Equality Act 2010. The central issues were whether Article 3(4) required proportionality review of national armed-forces measures and whether the United Kingdom had exercised the derogation comprehensively.

1. Claim dismissed. Article 3(4) of the Directive was expressed in plain and unqualified terms. It permitted a Member State entirely to disapply the Directive, so far as it concerned age discrimination, in relation to the armed forces. It did not require the Member State first to identify a legitimate objective and show that the measure was proportionate to it.
2. The proportionality observations in Johnston v RUC [1987] QB 129, and the decisions in Sirdar v Army Board and the Secretary of State [2000] ICR 130 and Kreil v Bundesrepublik Deutschland [2002] 1 CMLR 36, concerned a materially different, qualified derogation under Article 2(2) of Directive 76/207. They did not establish a general requirement that every derogation from an EU right be proportionate.
3. The analysis in R (on the application of Lumsdon and others) v Legal Services Board [2015] UKSC 41 was context-sensitive and did not support the claimant’s sweeping argument.
4. The United Kingdom had defined the scope of its derogation through Schedule 9 paragraph 4(3) to the Equality Act 2010. That provision disapplied all of Part 5, so far as relating to age or disability, to service in the armed forces. It was not confined to enforcement provisions.
5. The court therefore declined to determine finally whether the Regulations treated under-18 recruits less favourably or whether any difference was justified. The judicial review claim was dismissed.