UK: Is It All About Age When It Comes To The European Referendum?

With debate on the European referendum heating up in the final days of campaigning, media headlines highlighting a generation gap in voting patterns, and various claims about the potential impact of a Remain or Leave vote on all sort of areas affecting our lives, our All About Age experts look at some of the key age issues when it comes to Britain's decision on EU Membership.

Generation Brexit

Is age a Brexit factor? Pollsters certainly seem to think so. The referendum commentary has been peppered with generalisations; the young like Europe but don't vote, older generations want to leave and usually turn out. But is there any evidence to support these assertions?

In an analysis of the polls that was published towards the end of May, Professor John Curtice noted that "the collective evidence of the polls suggests that there is little sign of a decisive movement in favour of Remain amongst the over 65s, who to date have proven relatively resistant to the idea of staying in the EU". He goes onto say that in April, on average, the polls predicted that 60% of this category would opt to Leave. While that figure may be slightly lower now, it is still significant.

Meanwhile, Curtice notes, support for staying in the EU amongst 18 to 24 year olds has edged up in those same polls from 70% in April (with 30% backing Leave) to 75% (and thus 25% supporting Leave). So the age gap in referendum voting patterns does, according to the polls, look fairly striking.

The youth vote

The campaigns are alive to these issues. The Remain camp has been targeting the youth vote while also placing considerable focus on parents and grandparents voting for their children and grandchildren's futures. The Education secretary Nicky Morgan said: "It's clear that if Britain leaves Europe, it will be young people who suffer the most, left in limbo while we struggle to find and then negotiate an alternative model. If parents and grandparents vote to leave, they'll be voting to gamble with their children and grandchildren's future."

The Electoral Reform Society has also warned of a "worrying generation gap" when it comes to poll turn out. Its Chief Executive Katie Ghose said: "It seems like young people haven't been engaged in a debate which has so far focused on personalities rather than the real issues which affect them. Not only do young people feel less interested, but they are, as we know, far less likely to vote."

And the commentary on the age profile of voters continues to draw interest, with some media outlets suggesting that the extension of the voting registration is likely to have boosted the number of young, and therefore Remain voters.

The extent to which these claims are founded may only be known once the votes have been cast and we see whether or not the polls reflected the reality in terms of age-related voting patterns.

Thanking EU for age discrimination legislation...

The European Union equal treatment directive (Directive 2000/78/EC) sets out the general framework for equal treatment in employment and occupation, and set out a deadline of 2003 for member states to implement the provisions, with a possible later deadline (2006) for them to implement the provisions relating to age and disability discrimination.

Interestingly, unlike many of the characteristics the UK had already protected domestically either before/in anticipation of European legislation (race, sex, disability), age was not a protected characteristic at the time the Equal Treatment Directive was introduced. The prohibition of age discrimination in UK employment law was introduced with the age discrimination regulations 2006, the year of the deadline for implementation.

EU law has played a role in the UK court's interpretation and approach to the application of the concepts behind age discrimination legislation.

Age is the only protected characteristic within the Equality Act 2010 in which both direct and indirect discrimination are capable of objective justification.

In Seldon v Clarkson Wright & Jakes [2012], the Supreme Court had to consider whether the requirement for a partner in a law firm to retire at age 65 was direct age discrimination, or was capable of being objectively justified. In the judgement, Lady Hale drew considerable guidance from European case law in looking at what would be needed in terms of objective justification.

What if Britain follows the "Norway model"?

The extent to which there is any change in approach when it comes to age discrimination protections would depend on the form that a UK exit from Europe took (a question which still seems to be hotly debated).

One option following an exit would be for the UK to remain within the European Economic Area, reflecting the relationship that Norway has with the EU. If this happened, the UK would still be likely to  have to comply with EU social and employment laws but would no longer have a right or ability to negotiate the development of those laws.  

Domestic age discrimination cases in Norway look at whether or not provisions are compatible with Directive 2000/78/EC so arguably that would continue to be the case in the event of a Brexit. 

Norway is not bound by decisions of the Court of the European Union, but is bound by its EEA equivalent (the European Free Trade Association Court). The Framework Directive for equal treatment in employment and occupation (Directive 2000/78/EC) is not incorporated into the EEA but the Norwegian Government has committed to having as high or higher work based anti-discrimination standards as the EU. In line with this commitment the Norwegian Supreme Court, has in recent judgments, indicated that Norway's Working Environment Act shall be interpreted to be compatible with Directive 2000/78/EC.

Age concerns post vote?

Regardless of the model after a Brexit, it is hoped there would be little public appetite for a full-scale roll back of discrimination legislation as a consequence of leaving Europe given its incompatibility with modern social attitudes. It is worth noting that Nigel Farage's pre-election suggestion that race discrimination legislation in the workplace could be repealed was withdrawn following widespread criticism.

However, to say that there would be no likely impact on age discrimination if Britain left the EU however, could be underplaying things.

If "tinkering" with UK discrimination law takes place as result of a departure from the EU, is age discrimination legislation, given its more recent introduction, and strong influence from Europe, more likely to be more vulnerable to change?

In the final days coming up to the vote no doubt each side in the debate will appeal to voters in all sorts of policy areas. One thing is clear: turn out will be key, and whatever the outcome, if a generation gap emerges in the voting, the reasons for that, and the consequences, will be a key talking point in the weeks and months that follow.

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