A subtler approach is needed than laws against ageism

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The spread of the concept of discrimination to more and more areas of activity is a striking example of the power of emotive language to extinguish critical thought. The practice and consequence of declaring non-discrimination a governing principle is to give power to regulatory bureaucrats and politically motivated obsessives.

On Sunday, discrimination on grounds of age became illegal in Britain. Most people instinctively know that this is nonsense. Age and experience naturally bring wisdom and reduce agility: parliament cannot legislate against these facts. The old and the young receive special attention in every culture – parliament cannot legislate against these desirable social practices.

In reality, age discrimination will continue. Women in lap-dancing clubs will still be young, men in boardrooms old. Employers can still make workers retire at 65, at least for the moment – a test case is pending in the European Court. Businesses are much more likely to fall foul of the regulations through inadvertence than malign intent.

The spread of the concept of discrimination is a striking example of the power of emotive language to extinguish critical thought. This process reached its apogee in the failed European Constitution, which proclaimed non-discrimination a fundamental European value, along with justice and tolerance.

It would be closer to the truth to describe discrimination as a core European value. Discrimination in architecture, science, food, wine and education is the basis of European culture. Tribal discrimination is the source of both the solidarity that underpins the European social model and the nationalist wars that have almost destroyed the continent.

Non-discrimination does not even have the status of tolerance, a virtue we approve, even if we do not exercise.

What is offensive is not discrimination but inappropriate discrimination. This distinction is made according to different social attitudes and economic circumstances. Racism, restriction of educational and career opportunities for women and criminal sanctions on adult sexual activities were all as self-evidently right to our ancestors as they seem self-evidently wrong today. Legislation records and may reinforce, but does not cause, these changing values.

Yet the perceived success of policies in these areas has created an anti-discrimination industry. Lawyers have done predictably well out of it and most large companies have their own experts. But it is the public sector that offers the most extensive employment for people engaged in sniffing out any hint of racism, sexism or homophobia.

Like all new businesses, the anti-discrimination industry has sought new markets and has allied itself with interest groups that understand that the charge of discrimination is a powerful weapon in debate. To be accused of discrimination is to find oneself in a line-up with anti-Semites, gay-bashers and the Ku Klux Klan. Most people realise it is wise to remain silent and bad arguments go unchallenged.

The concept of age discrimination touches on, but does not address, important issues. Increased longevity builds a case for edging up the age of retirement. Since the 1980s, many European workers in their fifties have found themselves without a job and without a focus in life. But such problems require pragmatic policies, rather than a rhetorical declaration of the evil of ageism.

There is scope for serious discussion of whether fixed retirement ages are appropriate. Some people are still young at 60, others too old at 40. But no one can have watched the saga of Tony Blair’s departure without envying the Americans their system of fixed presidential tenure. It is never easy to tell someone it is time to go and it is harder still for them to reach that conclusion themselves.

The right way to determine how retirement can be made more flexible is through public debate and political decision. The wrong way is to ask the European Court of Justice to resolve it through textual exegesis of Commission directives and to apply a concept of non-discrimination that is fundamentally incoherent.

The consequence of declaring non-discrimination a governing principle is to give power to regulatory bureaucrats and politically motivated obsessives, to create uncertainty in the ordinary conduct of business and to ask the courts to determine policies on grounds that have little regard to the costs and benefits of the alternatives.

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