Army rules require longer service for those who join as minors. Is this age discrimination? Child Soldiers International brought a claim to find out.
The Army Terms of Service Regulations 2007 (SI/2007/3382), as amended by the Army Terms of Service (amendment etc) Regulations 2008, sets the minimum period of service criteria for soldiers. Those who enlisted to the army at 18 years old or more, and who have completed three years service or more, can leave upon one years notice. The shortest period of service is therefore four years.
However, recruits who enlist as minors (i.e. less than 18 years old) cannot give notice until completing three years’ service after the age of 18, in addition to the time served prior to this age. Consequently, the shortest period of service that a recruit who was 16 at enlistment must serve is six years, whilst the shortest period of service that a recruit who was 17 at enlistment must serve is five years.
Child Soldiers International (“CSI”) argued that this is unlawful age discrimination and contrary to the Framework Directive 2000/78/EC (“the Directive”). There is an exemption from the age discrimination provisions of the Directive which allows member states to enact legislation for the purpose of “safeguard[ing] the combat effectiveness of their armed forces”. CSI argued that member states utilising this exemption must define the scope of it, and that the Ministry of Defence (“MoD”) had failed to do so.
CSI referred to evidence suggesting the risk of physical and mental harm increases as service increases, so to compel minor to endure a longer service puts them at greater risk. CSI also argued that minors are often unaware of minimum service requirements when they enlist, and that these minimum service requirements can be misinterpreted. According to CSI, the issue affects a “significant minority” of those who enlist as minors.
The MoD argued that the policy is justified. The MoD argued that service prior to the age of 18 is less productive than service over the age of 18, due to the Army deploying minors on a more restricted basis. The MoD has also previously argued that a longer period of service is required for minors in order to ensure an economically productive return, given the training provided. The MoD also referred to the extended discharge period afforded to minors, permitting them to an early discharge before the age of 18.
CSI sought a declaration that the Army Terms of Service Regulations are inconsistent with the Directive.
The High Court dismissed the claim for judicial review on the basis that there was no room for a national judge to examine the proportionality of the Regulations. It would be “inconsistent with the intention of the legislation” to do so.
It was held that the Community Legislator had made “a clear and unambiguous choice” to leave questions about expertise in military affairs to those with the experience in that area, and not to judges. Attention was drawn to the fact that although the Directive permits Member States to limit the exemption set out above to certain functions of the armed forces, the UK had chosen not to limit this scope at all.
It was acknowledged that the Regulations do treat those aged under 18 less favourably. However, the following details were considered:
- Minimum terms of service were required in light of a need to ensure a return of service after training. The four year period was set with the aim of guaranteeing at least one posting from each soldier.
- Under 18s are not allowed to be deployed in hostile operations (unless rare exceptions apply).
Therefore the task of recruiting and training under 18s is more complex and expensive compared to over 18s. Since under 18s could not be recruited without providing training for them to be fully deployable, this need for additional training formed a justification for the four-year period from the age of 18.
The judgment is available here.
Child Soldiers International v Secretary of State for Defence, High Court of Justice Administrative Court, CO/4671/2014