R (on the application of Age UK) v Secretary of State for Business, Innovation & Skills, [2009] EWHC 2336 (Admin)
Queen’s Bench Division, Administrative Court (London), Blake J, 25 September 2009
The designated retirement age (DRA) of 65 years adopted by the United Kingdom in the Employment Equality (Age) Regulations 2006, SI 1031/2006, (the Regulations) is lawful under European Council Directive 2000/78/EC (the Directive) as being a legitimate social policy aim to protect the integrity of the labour market.
Robin Allen QC & Declan O’Dempsey (instructed by Irwin Mitchell Solicitors) for the claimant. Dinah Rose QC & Emma Dixon (instructed by the Treasury Solicitors) for the defendant. Lord Lester QC & Diya Sen Gupta for the intervenor.
The claimant brought proceedings challenging the legality of the Regulations, which had been promulgated in April 2006 and were intended to give effect to the Directive. The Directive required the United Kingdom to legislate to give effect to its terms in, amongst other things, age discrimination. The effect was that employers could not discriminate on the ground of age save to the extent that such discrimination was permitted by the Regulations that gave effect to the Directive.
The claimant contended that the Regulations were over-broad in what they permitted by way of derogation from the principle of non-discrimination. As such, they failed to give effect to the terms of the Directive and were liable to be struck down or declared invalid. The claimant’s submissions were directed, first, to reg 3, which permitted employers to justify direct discrimination on the ground of age; second, to reg 30 that provided that it did not constitute unlawful discrimination for an employer to dismiss an employee on the grounds of retirement at age 65. Reference was made in the hearing to material arising in the legislative process undertaken prior to the implementation of the Regulations. The issue arose as to whether the court should receive such material and what use could be legitimately made of it without infringing Parliamentary privilege.
Blake J:
The first issue concerned the relevant principles that should be applied when adjudicating on the legality of the transposition of a Directive, and in particular what margin of appreciation the court should afford to the executive.
After considering, inter alia, R v Secretary of State for Employment, ex p Seymour-Smith (No 2) [2000] 1 All ER 857, his lordship held that the law was accurately spelt out in both leading text books, Lester, Pannick and Herberg, Human Rights Law and Practice (3rd Edition 2009) and Clayton and Tomlinson, The Law of Human Rights (2nd Edition 2009). The former stated at para 3.10: “There must be ‘a reasonable relationship of proportionality between the means employed and the legitimate objectives pursued by the contested limitation’ a measure that will satisfy the proportionality test only if three criteria are satisfied: the legislative objective must be sufficiently important to justify limiting of fundamental rights; the measure designed to meet the legislative objective must be rationally connected to that objective. They must not be arbitrary, unfair or based on irrational considerations; the means used to impair the right or freedom must be no more than is necessary to accomplish the legitimate objective-the more severe the detrimental effects of a measure, the more important the objective must be if the measure is to be justified in a democratic society.”
His lordship turned to whether the material relating to the evidence given to Parliamentary committees could be relied on.
He considered, inter alia, Prebble v Television New Zealand Ltd [1994] 3 All ER 407, R (on the application of Bradley) v Secretary of State for Work and Pensions [2007] All ER (D) 261 (Feb) and Hamilton v Al Fayed [1999] 3 All ER 317.
He concluded that there was no constitutional impediment to the court receiving the material for the purpose of informing itself as to the statutory history, the relevant considerations that led to the formation of policy, the aim of the policy in promoting the Regulations, and the existence of factors that might be relevant to the assessment of whether the Regulations were proportionate in their derogation from the principle of equal treatment of the grounds of age.
He turned to the lawfulness of the Regulation. There was no illegality in the form of transposition of art 6 of the Directive in reg 3 of the 2006 Regulations. The social policy aim was the protection of the integrity of the labour market. Such concerns were legitimate concerns within the principles of the Directive and case law of the European Court of Justice. Examining the legislative context as a whole, there was a distinction between the social aim of confidence in the labour market and the application of that aim in the particular Regulations that permitted employers to discriminate where they could show it was necessary and proportionate to do so in the interests of their business. The private employer was not afforded a wider margin of discretion in the application of the regulation that the state was. In the special context of age discrimination, the kind of business practice reasons that could justify indirect discrimination were not fundamentally different from those that could justify direct discrimination. Any defect in reg 3 as drafted could be remedied by the national court reading down and reading in what the emerging ECJ jurisprudence required to be read in to achieve compatibility.
He further held that the decision to adopt a DRA had been both legitimate and proportionate. The idea of a DRA was not inherently arbitrary and illegitimately discriminatory but was the making of a social choice in the light of a number of social and economic factors. A DRA was not a generalised statement of social worthlessness, but was a measure designed to give certainty and corresponding focus for planning purposes for employers and employees alike. It was a statement that a person was liable to be retired because they had reached the kind of age where it was generally considered appropriate for retirement issues to be addressed.
The claim would be dismissed.
