Child Soldiers International v Secretary of State for Defence

The claimant challenged the lawfulness of the Army Terms of Service Regulations 2007 as incompatible with Council Directive 2000/78/EC, arguing that the Regulations discriminate on the ground of age by requiring some recruits under 18 to serve longer before transfer to the reserve. The court held that Article 3(4) of the Directive gives Member States an unqualified power to disapply the Directive in respect of age in the armed forces and that the United Kingdom had validly exercised that derogation by means of Schedule 9 paragraph 4(3) to the Equality Act 2010. Accordingly the court would not subject the Regulations to a proportionality review under EU law. The judge also considered, but did not decide as a determinative matter, that the Regulations treat some under-18 recruits less favourably and summarised the Army's operational justifications. The claim for judicial review was dismissed.

Background and parties: Child Soldiers International, a charity, brought judicial review proceedings challenging the Army Terms of Service Regulations 2007 on the basis that they were incompatible with the Equal Treatment Directive 2000/78/EC in relation to age discrimination. The defendant was the Secretary of State for Defence. The Regulations and related statutory powers (including section 2 of the Armed Forces Act 1966 and relevant provisions of the Armed Forces Act 2006) set out rights to determine service and transfer to the reserve; key provisions for under-18 recruits were Regulations 9, 9A and 11.

Nature of claim and relief sought: The claimant sought a declaration and relief that the Regulations were unlawful as incompatible with the Directive's prohibition on age discrimination.

Issues framed:

• Whether Article 3(4) of Directive 2000/78/EC permits an unqualified derogation for the armed forces from the Directive's age discrimination rules or whether national measures relying on it must be subject to proportionality review.
• Whether the United Kingdom had validly exercised any derogation under the Directive by disapplying age discrimination rules to the armed forces (Schedule 9 paragraph 4(3) of the Equality Act 2010).
• Whether the Regulations discriminated as between under-18 and over-18 recruits and, if so, whether any such differential treatment could be justified.
• Whether the claimant had standing to bring the claim.

Court's reasoning and conclusion: The judge concluded that Article 3(4) grants Member States an unqualified and unrestricted power to disapply the Directive in respect of age in relation to the armed forces and that the Community Legislator deliberately left the scope and content of that derogation to Member States. The United Kingdom had exercised that derogation by Parliament in Schedule 9 paragraph 4(3) of the Equality Act 2010, which in terms disapplies Part 5 of the Act so far as relating to age or disability for service in the armed forces. Because the derogation was unqualified the national court should not undertake a proportionality review of the military measures taken within its scope. The judge therefore dismissed the claim. The judgment records subsidiary findings: the Regulations can operate to require some recruits enlisted under 18 to serve longer before transfer to the reserve; the Army gave operational reasons (manpower planning, training investment, deployment constraints) for the current regime; and the claimant would have standing to bring such a claim though in the present case the challenge failed on the primary legal point.

Wider context: The court noted the institutional competence of Member States over military matters and observed that judicial intrusion into such policy-laden operational judgments would be inappropriate where the Directive permits an unqualified derogation. The judge granted permission to appeal on the point of EU law interpretation, though he indicated he saw no realistic prospect of success.

The claim is dismissed. The court held that Article 3(4) of Directive 2000/78/EC confers an unqualified power on Member States to disapply the Directive as regards age in relation to the armed forces; the United Kingdom exercised that power by Schedule 9 paragraph 4(3) to the Equality Act 2010, so the court would not undertake a proportionality review of the Army Terms of Service Regulations 2007. Subsidiary issues of unequal treatment and justification were considered but not determinative.