During 2008 we conducted research funded by the Changing Ageing Partnership in Northern Ireland to try to determine whether other countries with legal systems comparable to that of Northern Ireland had been able to give older people better protection from being discriminated against when seeking to buy or use goods, facilities and services. At the moment the law of Northern Ireland, like the law in England, Wales and Scotland, does not grant any such protection, except very indirectly. Our report on the matter was launched in Belfast in March 2009.*

We examined the law of four common law countries – the Republic of Ireland, Canada, the United States of America and Australia. In the case of the last three we looked not only at the national (i.e. federal or Commonwealth) law, but also at the provincial, state or territorial law within each nation. The report’s appendices provide a summary of how the law operates in those places.

In each of the jurisdictions examined, we found that the law protects older people against this form of discrimination very effectively. Naturally there are small differences between the various sets of laws, and in all of the countries there are exceptions to the protection granted, wider in some countries than in others, but across the board there was a willingness to extend to older people significant protection against discrimination in relation to access to goods, facilities and services. It would seem that Northern Ireland (and the rest of the United Kingdom) is one of the few common law jurisdictions where such legal protection does not exist, despite there being extensive protection in Northern Ireland against discrimination based on other grounds.

The report sets out by explaining the legal, social and political background to the research project, including the steps which are to be taken imminently in this field in England and Wales and at the level of the European Union. If Northern Ireland does not follow (or pre-empt) the lead of England and Wales in this respect, it will soon be out of step with two major jurisdictions in these islands. It will in any event have to comply with the imminent EU Directive on the topic, probably within three years of the Directive being formally issued in Brussels.

The report explains that at present there are two kinds of gap in the protection granted by the law of Northern Ireland to people who are discriminated against on the basis of their age when trying to access goods, facilities, or services. The primary gap is between the extent of the law on age discrimination and the extent of the law on other forms of discrimination in Northern Ireland. There is also a secondary gap, between the applicability to public authorities in Northern Ireland of the law concerning equality of opportunity between people of different ages and the non-applicability of that law to private bodies.

The report then proceeds to set out the findings that emerged from the research, all of which are primarily based on a study of the laws operating in the four countries which were closely examined during the project. It outlines the goals which the authors believe any reform of the law in this area in Northern Ireland needs to meet, and then considers whether there should be a general prohibition against age discrimination before looking at the basis upon which any exceptions to this general prohibition should be permitted. The report stresses that it is very important to avoid making traditional assumptions about the characteristics of older people. To ensure that this is reflected in the new law, the proposal is made that exceptions permitting service providers to discriminate against older people (i.e. negative exceptions) should be very specifically set out in the reforming legislation.

In the field of health and social care, therefore, exceptions should be based on clinical and welfare need, not age, and in the field of insurance, exceptions should be based on objectively verifiable actuarial or statistical evidence which is publicly available. On the other hand, the report proposes that service providers should be permitted to discriminate in favour of older people (i.e. make positive exceptions) if the reason for doing so is to promote one of the conventional goals of anti-discrimination legislation, such as the rectification of historical disadvantage, the promotion of social inclusion, the satisfaction of special interests, or the meeting of special needs.

This section of the report concludes by arguing for effective remedies for victims of age discrimination in Northern Ireland in relation to access to goods, facilities or services, and for other measures to be taken to help prevent age discrimination and promote equality of opportunity between people of different ages.

The report contains a number of recommendations which are based on the following six aims:

• to reform the law of Northern Ireland in a way that makes it more fair and more respectful of older people’s right to be treated with dignity;

• to make the new proposed law easy to understand and ‘a good fit’ with existing laws;

• to ensure that the new law protects people in a wide variety of contexts;

• to strictly limit exceptions to the law which permit discrimination to be practised against older people;

• to allow exceptions which permit discrimination in favour of older people whenever these are based on clearly identified goals which will benefit society as whole, e.g. social inclusion and the meeting of special needs; and

• to ensure effective remedies for victims.

The report concludes that there is a very strong case for amending the law of Northern Ireland so as to outlaw discrimination on age grounds when people are accessing goods, facilities or services. We recommended that the law should be designed so that it operates in a similar way to the current laws on discrimination whenever it occurs in this context on other grounds, such as gender or race.

The report further recommends that the Northern Ireland Assembly should move to introduce this legal reform as soon as possible. The Executive (i.e. the government of Northern Ireland) will soon know what the minimum protections are it needs to accord to older people, in order to comply with the imminent EU Directive on Goods and Services, which has just been approved by the European Parliament. But we feel that it should ensure that the Northern Ireland law goes beyond that Directive where this is appropriate, for example where there is an opportunity to harmonise the law on age discrimination with the law in Northern Ireland on discrimination on other grounds.

We feel strongly that, while the new law should contain provisions authorising specific exceptions from the law, these should be strictly limited. In particular, there should be no general defence to a claim of age discrimination based around the concept of ‘reasonableness’. We do not have confidence that a general justificatory defence would be consistently interpreted by courts and tribunals in Northern Ireland in a way that steers clear of traditional ageist assumptions and stereotyping. On the other hand, we recommend that the new law should permit measures designed to benefit older people, provided these measures are based on grounds such as economic need, social inclusion, or special interests.

The report does not go so far as to recommend that the current law requiring public authorities in Northern Ireland to have due regard to the need to promote equality of opportunity among people of different ages (section 75 of the Northern Ireland Act 1998), should be extended to private bodies as well, not even to large private bodies. But it does propose that the guide on public procurement issued jointly in 2008 by the Equality Commission for Northern Ireland and the Department of Finance and Personnel in the Northern Ireland Executive should be given the force of law in the sense that private sector concerns which employ more than 10 people, should have to comply with the parts of that guide dealing with age discrimination if they are to be eligible to supply goods or services to any public authority in Northern Ireland. It makes sense for the parts of the guide dealing with other forms of discrimination to be given the force of law in the same way, but we did not specifically recommend that because doing so goes beyond the terms of reference of the commissioned research.

The report also recommends that the remedies available for age discrimination in relation to access to goods, facilities and services should be just as effective as those available in other discrimination contexts. They should be designed to deter such discriminatory practice taking place in the future and to compensate individuals who have been disadvantaged by such discrimination. As regards an alleged failure of a private business employing more than 10 people to promote equality of opportunity between people of different ages, we recommend that this should be enforced through complaints to the Equality Commission for Northern Ireland, which should be given the power to direct the business in question to put in place policies and practices to ensure compliance with the legislative requirements relating to equality of opportunity. But no compensation should be payable for such a failure to promote equality of opportunity.

In conjunction with reforming legislation, the report finally recommends that government, non-governmental and community organisations working towards equality take measures to raise public awareness of ageism and age discrimination, and to inform both older persons and service providers that the denial or restriction of goods, facilities or services based on age is unlawful.

While the report is primarily focused on the law of Northern Ireland we are aware that it has implications for other jurisdictions in the United Kingdom. The government at Westminster has recently published an Equality Bill which, if enacted, will outlaw age discrimination in access to goods, facilities and services in England, Wales and Scotland. We hope our report will be of some assistance to those who are charged with considering whether that Bill should become law in the way that it is currently formulated.

* Making Older People Equal: Reforming the Law on Access to Services in Northern Ireland, available at http://www.changingageing.org/Research/ResearchLaunchReports/Filetoupload,139662,en.pdf

Copies can also be obtained from the Changing Ageing Partnership, Institute of Governance, School of Law, Queen’s University Belfast, Belfast BT7 1NN. This article is based on the Executive Summary of the report.