In more recent times, when the significance of ‘social groups’ by law and society was recognised as the societal way of systematically discriminating, ‘age’ as a unique legal category was usually missing or invisible.
Interestingly, the ways in which ageism shapes legislation can be found not only in domestic law but also at the international level. As an example at the United Nations level, the Universal Declaration of Human Rights does not mention ‘age’ as a unique category. More specifically, at the European Level, the European Convention of Human Rights does not include a specific article regarding the rights of older persons and its ‘equality’ article does not mention ‘age’ as a specific ground for discrimination. The human rights declarations in our Constitution having been based on these international instruments also exclude ‘age’ as a discriminatory factor in Articles 32 and 45.
There is a close connection between ageism and discrimination on the grounds of age. Discrimination, or discriminatory behaviour, is an integral part of most definitions of ageism. The EU ban on age discrimination was introduced as secondary law through Directive 2000/78/EC: the Employment Equality Directive. It was preceded by Article 13 of the Amsterdam Treaty (now Article 19 TFEU) and later on confirmed by the EU Charter of Fundamental Rights (CFR 2000).
Unfortunately, discrimination on the ground of ‘age’ in the EU Directive is the weakest compared to other discriminatory factors since it leaves the door open for justification of direct age discrimination. According to Article 6, differences in treatment on the grounds of age shall not constitute discrimination if, in the context of national law, they are objectively and reasonably justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. A ‘legitimate aim’ includes legitimate employment policy, labour market, and vocational training objectives.
The Court of Justice of the European Union (CJEU)’s general acceptance of compulsory retirement tallies poorly with the promotion of active ageing and contrasts with economic research on the ‘lump of labour fallacy’ (Dewhurst 2013). On the other hand, the abolition of compulsory retirement requires alternative ways of ending employment, such as voluntary retirement or performance management which may present the risk of weakening employment protection. Nevertheless, the United Kingdom found a way to remove the Default Retirement Age in October 2011. The Council of Europe’s Committee of Ministers Recommendation CM/Rec/(2014)2 urged Member States to make explicit reference to ‘age’ in their domestic anti-discrimination laws.
In Malta, the Equality Bill 96 of 2019, which is currently in Parliament at Committee Stage, has established ‘age’ as a protected characteristic. Among the various EU directives that Bill 96 is incorporating, one finds Council Directive 2000/78/EC, the Employment Equality Directive.
Discrimination relating to employment is the most well-known and documented form of age discrimination in the international fora. Age discrimination is a way in which ageism manifests itself; it is its behavioural component and could well be the most common human rights violation faced by older persons. However, currently, there is no explicit prohibition of discrimination on age at the international level. Article 25 of the EU Charter of Fundamental Rights declares that “the Union recognises the rights of the ‘elderly’ to lead a life of dignity and independence and to participate in social and cultural life”. Transforming these principles into concrete EU legislative measures has been slow and the EU has not yet succeeded in delivering a comprehensive secondary legal framework to ensure substantive equality for older persons.
In 2018, the EU Rights Agency published a landmark report arguing for the need to move away from thinking about old age in terms of ‘deficits’ that create ‘needs’ towards a ‘rights-based’ approach to ageing. A rights-based approach to ageing seems to be gaining ground among states and UN Human Rights Commissions, such as those of Scotland and Australia, but is also spurred by international organisations, foremost among which is AGE Platform Europe. Such an approach uses human rights principles and standards to ensure that the rights of older persons are put at the centre of policies and practices, recognising that older persons are holders of rights and not mere passive beneficiaries.
In the United Nations Economic Commission for Europe (UNECE) Ministerial Conference on Ageing, held in Rome in June 2022, the final Ministerial Declaration sets the agenda for what seems to be a new era in ageing. Way back in 2010, the UN General Assembly established the Open-Ended Working Group on Ageing (OEWG), which is working on the development of a UN Convention on the Rights of Older Persons (UNCROP).
More nations are rallying around to fill human rights gaps regarding older persons, notable among them Argentina. Malta is supporting the Argentina Initiative for a United Nations Convention.