By Rajiv Bhatt
Cloisters’ Chris Milsom is currently being led by Matrix Chambers’ David Wolfe QC in a judicial review of the army’s minimum service requirements for minors. The case has been brought by Child Soldiers International (CSI), an NGO concerned with the involvement of children in armed conflict. It has already generated considerable media coverage from the Independent, Channel 4 and the BBC.
In the UK, potential recruits are permitted to join the army aged 16. Regulation 11 of the Army Terms of Service Regulations 2008 (SI/2007/3382) (“Army Service Regulations”) deals with the right of solders to leave the regular army and transfer to the reserve (at which point they resume civilian life). Regulation 11(2) of the Army Service Regulations specifies that soldiers are required to serve in the army for four years beginning with the date of enlistment or the person’s 18th birthday, whichever is later. Herein lies the differential treatment. Recruits who have joined the army as minors have an additional element to their minimum service period - the length of their employment before they turn 18. This is said by CSI to constitute direct discrimination on the grounds of age.
The Equality Act 2010 does not apply to the armed forces (paragraph 4(3) Schedule 9). CSI will instead seek to rely on the direct effect of the Framework Directive against the Ministry of Defence. However, Article 3(4) of the Directive allows Member States to derogate from the prohibition on age discrimination in relation to the armed forces. The Ministry of Defence will seek to rely on this derogation to justify the current policy.
The Administrative Court will be asked to determine the permissible scope of the derogation under Article 3(4). It is understood to be the first occasion on which the point has been considered head-on. The derogation applies both to age and disability and the decision is likely to have a wider impact on the potential of service personnel to pursue complaints in respect of either characteristic before the ET. It therefore promises to be one of the most hotly anticipated judgments of 2015.