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17 Mar:  John Hamlet again has a good deal to say. He is entirely correct to stress the European Convention's origins in the aftermath of World War 2, and the atrocities committed by Nazi Germany (in particular though by no means exclusively). He is also correct in his statement that the Convention and its case law seek to uphold the rights and freedoms of the individual against 'lawless and violent abuses of power'. The problem is that the interpretation of the Convention has moved beyond these laudable aims into, on many occasions, upholding the 'rights' of those who play fast and loose with domestic law over the rights of the law-abiding majority to carry on their lawful activities in peace. This can be seen in a number of cases concerning the UK's anti-terrorism legislation, and also in relation to public order law.

John Hamlet is, again, correct, that the civilian politicians, courts and tribunals steer clear of involvement in operational matters per se, but they are involving themselves more and more frequently in matters which have a direct bearing on operational matters, in particular in relation to manpower issues. John Hamlet is entirely correct that an assessment of a person's ability to serve effectively should depend solely on whether he is able to do his job effectively, but, first, the civilian employment tribunals and the law they apply fail to focus on this, and, second, there are more subtle influences at work than the simple issue of whether a soldier is capable of shooting straight and passing his BFT. In an organisation where teamwork, mutual trust and the ability to subordinate one's own needs and desires to those of the unit and the task they are carrying out, and, of course, members of the same unit are required to live at extremely close quarters with companions not of their own choice, sexual orientation does become a relevant factor in determining a person's fitness to serve.

Further, the Service tradition as I see it is that everybody is expected to do their bit and shoulder his (or her) share of the burdens as well as the benefit. an old gentleman whom I knew when I was a teenager had joined the Royal Navy in 1929, and had served in the Navy's last coal-burning battleship, HMS Emperor of India. Coaling had to be carried out every few days and was a thoroughly unpleasant, filthy and gruelling business, taking 10-12hours, plus time for cleaning the ship afterwards, but the principle was quite simple. Everybody, from Boy Seaman to Captain, coaled, with the exception of the cooks (who were keeping everybody fed), the Sick Berth attendants, (required for patching people up), the telegraphists (who had to look after their hands for the morse key) and the bandsmen (providing music while you work). Equally, when my mother was a (civilian) student nurse in the late 1940s, the hospital dealt with the question of who should work on christmas Day and who not by requiring everybody to work on Christmas Day. That, surely, is how things should be, but modern discrimination law, and the maner in which it is applied, creates a range of special cases, who must be exempted from all or some of the burdens. This, in turn, means that some are much more heavily burdened than others, who may still receive the same benefits in terms of pay and promotions (because you can't treat someone 'less favourably' on grounds of sex, which means you cannot take their non-availability for certain duties into consideration when considering them for promotion), which will only create divisions within units.

One small point. Is it possible to paragraph contributions to the Sounding Board if they are submitted in paragraphs? I found John Hamlet's latest and ompletely unparagraphed contribution extremely difficult to follow!   Ann Lyon

Paragraphs provided, Ann. :-) Aspals
8 Mar:  Delighted and stimulated responding to both Ann Lyon & Peter Sullivans responses 5 Mar. Peter Sullivan makes some valuable points worthy of analysis in my Law dissertation paper (26 Dec 99). But, he fails to address the fundamental issues of the ECHR Bill. Namely, that after WW2 the atrocities committed by Nazi Germany- international concern to underline aspiration namely of the 'individual' against lawless and violent abuses of power. The UK is a very strong supporter. (e.g 1st to the first International war crimes) UK, quick to consent to the Convention of HR (Mar 8 1951 prior, to the Discipline Acts in 1955 & 1957) but has been slow to incorporate into domestic legislation. UK does it's part evidenced by its valuable contribution through the Services in distant lands (e.g. Kosovo, Mozambique et al.) This spirited and brave effort, (my perception of the Armed services) I shall call the 'protection' of the weak, vulnerable those who cannot otherwise protect themselves. 'Protection' would cover the UK to defend itself against forms of tyranny both foreign and domestic. (eg aid to the civil 'community' et al) or in the extreme the 'use force' to protect and serve our free democratic process. I lack knowledge in understanding Peter Sullivan's assertion that an individual cannot choose to serve in an operational theatre risking his life? As I fail to see what this has to with basic human rights? (see end) I.e right to life, torture, liberty, right to a fair trial (applying the rules of natural justice; Ridge v Baldwin). Responding to the discrimination angle, (refer to 17 Oct 99) together with Man U analogy suggests that discrimination could occur even on a personal whim ('a bit left field but I could be wrong!). How do we know exactly when a 'minority' whether by race, religion, sex gender or orientation is based on an individual and personal dislike and not based on operational criteria? When it's far too late, when huge amounts of damages are paid to compensate the victim? When resources have been depleted which could have been more effectively used on material etc? Is this not making a choice of who should be in the Armed Services? The ability to serve should not depend on whether a persons race religion sex gender or orientation but whether the individual can do his job/duty properly promoting the operational effectiveness. Was WW2 not fought to protect those who could not protect themselves? Ann Lyon & Peter Sullivan on obedience to orders & Human Rights. I fear I am walking down a path where angels fear to tread so I shall proceed with extreme caution! and apologise outright if any offence is caused as I a firm believer in obedience. However, let us be realistic in peacetime in England there is no general defence to the obedience to superior orders. In war there maybe a defence of 'act of state'. Members of the Armed services are subject to both civil and the military internal law systems and it is an offence for civilian members to seduce them from their duty or allegiance or both (R v Arrowsmith). Out of respect the civilian Courts do not interfere with the 'day to day' running of the military but military tribunals and grievances are susceptible to judicial review (Ex p Anderson) so obedience is basically left down to the individual. (accepts the risk of which orders (s) he going to follow). Now I am NOT suggesting that all orders are wrong, on the contrary that is why commanding officers are commanders. Proceeding with a cautious extreme example; so please forgive and correct me if I am wrong! Let us suppose that an individual 'squaddie' who is black say, and based on a personal whim is treated less favourably (quote from above, is placed on guard duty twice in one week) The 1st duty he completes to the best of his ability and then questions why he is placed on the 2nd when there are more people available that could of done it. Hastily the reply or lack of it is, that he is not liked either because of his colour or his personality or what ever. So he refuses based on this response. The swift military justice system automatically springs to life to bring the 'guilty' party to before its scales. The mitigating factor will be presented before the Commanding officer (who by quoting my highly respected & noble friend) A senior Retired Officer 14 Feb would not be concerned with the accused but the message that it sent to the boys. If correct in my analogy, this would go up the chain with the same response? Ok this is perhaps an extreme example but where does the individual go to seek justice? With the courts reluctance to interfere with policy matters individuals had to go all the way to Strasbourg to drive the message home. Exposing policy matters in public in the European Courts rather than at home in domestic ones. If I am reading the Articles correctly where the military are concerned I believe ECHR approach is a two - pronged namely that (a) has an order been given justified on and meets operational requirements and (b) has the individual access to the right to a fair trial if these two conditions are complied with Bill does a couple of things (a) reinforces that we are individuals with a there is no great cause of concern. If not there must be valid reason(s) for not doing so. The concept of bringing an action against an officer is not new (Heddon v Evans 1919) so I fail to see how the proposed legislation is going to create a huge flux of actions and change this? I do not believe that the average serviceman is now about question everyday orders if the reason behind it is based on logic serving some military purpose. Since if the reasoning is good but the order ends up a total flop then we can legitimately accept the mistake, learn at all levels educating those who have no contact with the military. I believe that the HR right of non- interference unless it can be justified taken on a rational approach. (b) once we respect that in ourselves then we can appreciate these rights in others whether on the streets in Northern Ireland, keeping the peace or assisting those who cannot help themselves in Kosovo. END: A person cannot choose which operational theatre to serve simply because there is a risk his life because the ECHR principle is being used the wrong way around. (Outweighing the needs of the many by the needs of the one). No one joins the services to be killed but, rather to accept the risk to their lives in loyally protecting and serving our Monarch, The government of the day, and acting as ambassadors, protecting those who cannot protect themselves. All the Bill does (through training) is makes better ambassadors by good administration within!   John Hamlet
Good luck with your finals, John. You may wish to look at an excellent article written by Prof Gerry Rubin, entitled "Towards an Understanding of Change in United Kingdom Military Law". It will hopefully be posted to the Aspals List in the not too distant future. Aspals
5 Mar:  Once again I find myself agreeing with John Hamlet on some points but not on others. Yes, when individuals join the Services they accept (or should accept) the special nature of Service life in the sense of the risk of death or serious injury on duty, and the obligations of operational deployments. These are what make the Services different, and what make the modern apparatus of employment law, particularly discrimination law, incompatible with the promotion of military efficiency. John Hamlet is also correct that the greatest single problem facing the Services today is indequate manning levels and inadequate material resources in relation to operational commitments. However, the manning problem can only be exacerbated by the application of sex discrimination law to the Services. In the nature of things, most women in the Services are relatively young, and therefore of childbearing age, and many of them are married. The inevitable consequence of this is a considerable incidence of pregnancy, and therefore a proportion of women being either completely ineffective because of pregnancy and maternity leave, or limited in their effectiveness by their family committments. It is unrealistic to suggest that their husbands stay at home to look after the children, because they are more often than not also in the Services, and not infrequently in the same unit. This problem will only increase if the present Government carries through its policy of increasing the proportion of women in the Services. As to Peter Sullivan's point about the government's idea of allowing Servicemen to sue in respect of 'wrong' orders, the obvious first point is who decides what is a 'wrong' order and on what basis? If it is to be civilian judges, then there is the obvious problem of their lack of Service experience (as clearly demonstrated by some of the decisions of the Courts-Martial Appeal Court in sentencing appeals). Then there is the obvious point that an order issued for the overall good of the unit and to foster the achievement of a particular task might well be unpalatable to some individuals, but that does not necessarily make it 'wrong' in any objective sense. In any event, the main area in which service personnel were seriously disadvantaged in comparison with civilians, their inability to sue in negligence in respect of injuries received on duty, was rectified by the repeal of Section 10 in 1987. If the Government's plan's go ahead, this will only create opportunities for a few disaffected elements, urged on no doubt by trendy lawyers!   Ann Lyon
3 Mar:   John Hamlet seems to be accepting that the plight of the soldier is unique, and yet goes on to suggest he should be treated the same as anyone else! There aren't many jobs I can think of where you have to risk your life as a matter of routine (you can't opt not to serve in an operational theatre), obey orders that may place your life in extreme danger, live together in primitive conditions separated from family and friends for mothns at a time and carry a weapon with you. When you go to war, you have to obey orders. You don't have a discussion about whether you are going to do it or not. You can't consult your TU rep. You have to obey. If you don't the commanding officer must have the power to deal with your breach of discipline, otherwise it could lead to a state of general disobedience in others. As for discrimination. Yes, the Army should be able to discriminate. Surely, one thing that has come through loud and clear from the postings is the overwhelming need to have the best people for the job. That isn't always politically correct. So you can't have disabled people loading artillery, can you? Or people in wheelchairs acting as infantrymen? To say that you wouldn't employ disabled people in such roles is itself discriminatory, isn't it, and therefore recognises that there must be discrimination if there is to be an efficient fighting force. That argument can be extended to homosexuality (if it is felt to adversely affect the morale and cohesion of the unit) and the employment of women. If you watch football, isn't it the best teams that win. Manchester United has the best players (no women or disabled there, either). Our military needs the best. Thank heavens the composition of the Man Utd team isn't something left to government. Neither should the composition of the Army. That is not something that politicians can decide especially if they have never been anywhere near the services. That is something for the generals. Their job is to put together the best army possible to defend our country. That is what we felt when I served in the army. We were proud of the job because we felt we were part of a well disciplined and thoroughly professional force. Now the government has introduced changes that allow COs to be sued by squaddies if they give a wrong order (Aspals Latest News). How can this continuous extension of civilian rights be beneficial for discipline? It encourages quite the opposite, a culture of challenge to authority. And that is downright dangerous when you are about to go into battle. Everyone is scared. I was. If you get someone going wobbly at that critical moment and it is not gripped, the whole mission can collapse. I always remember my service days with affection in spite of my stint in the guardroom as a young soldier. It never did me any harm I deserved it and didn't bear a grudge against anyone. Even though we did not have the Human Rights Act we always felt that the system was basically fair to everyone. Contrary to what people believe, COs do not lock up everyone who is marched in front of them. These new ideas will strip them of the last vestiges of their authority.  Peter Sullivan
17 Feb:  Delighted Anne has yet again provided some stimulating ideas. However, as indicated on 12 Feb when an individual joins the services (s) he does so voluntarily. One of the reasons behind this is that, (s) he freely accepts the risk of death or serious injury. (Touching wood that does not happen!) as part of his normal duties in addition to his obligations of being deployed anywhere operationally or semi-operational ('X' factor rule applying). However, accepting this position to be unique, than any other employment the relationship of the Armed Services is that they are in the public sector. Namely that they have the Crown (in the legal sense) as their as their employer. To treat them differently is a fiction. It is the Crown in the legal sense i.e. (Government of the Day, together with the senior officers) who are by 'absolute right' responsible for the composition, equipment, manning disposition through the 'prerogative'. Manning and equipment seem to be the highlight of both news and debate recently. It is these two topics that appear to affect operational deployments and not the percentage of pregnant women/ women with childcare commitments (although it is possible to be an influencing factor!) On the other hand, it is felt that to achieve operational efficiency in the form suggested implies that the Armed Services should and will discriminate on certain circumstances. It is felt that this distorts the 'rule of law' under two grounds that (1) the Armed services is outside the 'rule' (perhaps I may be wrong) (2) ever changing rules e.g Rule A; applies to individuals today but given the certain circumstances it won't apply to individuals under Rule B tomorrow. Realistically, is the proposed Discipline Bill suggesting that the individual, or the collective is going to change overnight, moving the sense of discipline, loyalty to team spirit and mutual trust? The answer must clearly be no! All that has happened, is that in effect it has whittled away the 'prerogative,' it develops a process of reasoned decision making, by highly talented and respected people, providing a sense of fair play.   John Hamlet
Sorry about the delay in posting this, John. A baby-sitter could not be found for the last few days.   Aspals
15 Feb:  John Hamlet makes some very sensible points, but I cannot agree with his parting shot that the Services are just another employer. In what other walk of life is the risk of death or serious injury part of normal duties rather than an indication that something has gone seriously wrong (the police and fire service are the nearest civilian equivalents, but their position is not the same, and it is interesting to note that the fire service in particular is being heavily criticised by the political correctness industry). In particular, the ending of the practice of automatic discharge on pregnancy now means that at any one time the Services are likely to have a sizeable minority of women either completely ineffective because of pregnancy and maternity leave, or seriously restricted in their availability for posting because of child care commitments. This means that the burden of operational and 'semi-operational' deployments on those personnel whose availability is not so restricted is much heavier. Yes, a similar problem arises in civilian employment, but, given that civilians are not normally expected to deploy operationally, or to go abroad unaccompanied for other than brief periods, it is nothing like as acute. For that reason, the Services are different, and it is in the interests of all personnel that operational efficiency remains the first priority. That being said, it is of vital importance in ensuring the unit cohesion and mutual trust essential to operational efficiency that discipline be maintained in a fair manner and that disciplinary procedures, where these are necessary, are exercised in a disinterested fashion, and without distinction according to rank, gender and whether or not the offender is a Battalion rugby player. In relation to the Armed Forces Discipline Bill, I am relieved to hear that senior officers have had some influence on the drafting of the Bill, and hope that this influence has been strong enough for a proper balance to be struck between operational efficiency and individual rights. It does, of course, remain to be seen to what extent the Bill will be amended during its passage through Parliament.   Ann Lyon
14 Feb:  What a debate has been started ! Good to see that there are some Senior Officers who took the role seriously, however, the expression used by the earlier Officer suggests that some of his 'findings' were based on how his message would be perceived rather than justice !! Is the feeling that summary dealing is a bit out of touch with reality and merely serves the purpose of bolstering egos ? The classic example is the same offence committed by an Officer and a soldier. The soldier is dealt with summarily and is either jailed or fined and the Officer is sent to bed with no supper after writing a cheque out to Regimental funds. At least justice is dealt with relatively evenly in Civvy life rather than relying on a message to the boys ! I also refer the Senior Officer to the RAF unofficial web site referred to in 'latest news'. Also maybe COs' could get a little more legal training if they are to retain this power of magistrate they have fought for over the years. Also maybe they should listen to legal officers and policing agencies rather than instinct. In the 21st century we need to be able to show that the Forces are the best internally as well as externally. There is so much that is right about the system of military law and COs' should not be frightened of change, it will not affect operational effectiveness - what will affect it is if these COs' do not have any soldiers to command as they do not want to join because of the image that is projected.   An ex officer (identity withheld)
14 Feb:  John Hamlet is correct in the most part - we do need to modernise our procedures and the new Bill is attending to most of the HRA issues. Whether or not this will affect operational capability remains to be seen, but as one of those fortunate enough to have input into the new rules, I believe we have taken as much care as we can to 'keep it simple'. Only time will tell! As an erstwhile CO, I take umbrage at the suggestion that my attempts at Summary Dealing were less than fair - I certainly wasn't worried about the 'status' of the accused and I was very conscious of the weight of authority sitting on my shoulders and the messages my dealings sent to the boys!   A senior retired officer
12 Feb:  In responses to P Sullivan 6 Feb, I have read his reply with interest but what it fails to address is that not only is one a soldier but also a civilian as well. When a person joins the services it is done so voluntarily. But, that does not mean that an individual (soldier) automatically gives up his right as a citizen. Whilst I agree that CO's are paid to command, even Commanding officers can get it wrong on occasionally. Emphasised in (Pritchard v Army Board) some time ago that that military law through discipline is coercive enough to commit false imprisonment. Whilst indiscipline can affect operational effectiveness is it suggested that the rights of the individual are merely thrown away? It is felt that when discipline has been breached, the accused (soldier) is marched swiftly in before his OC/Commanding Officer that a proper system of appeal/bail should be in place, to treat the soldier otherwise is to treat him less than a citizen of the society of which (s) he forms part. If need be this should be capable of being enforced before both National courts by means of judicial review or if need be, interpreted by the European Ct of Human Rights. I am NOT suggesting for one minute that operational effectiveness or that discipline should take second place, but now is the time to modernise the services and bring them into the real world where they belong. Modernising the Armed Services and balancing between operational effectiveness and the rights of the individual may be a tough one. But it is no more of yet another a challenge, than one would set to a managing director of a company. After let us not forget that the Armed Services is just part of our society is no more than an employer.   John Hamlet
6 Feb:  Once more Ann Lyon has hit the nail on the head. After reading Ann's post, and out of curiosity, I spent a lot of time looking at the draft legislation on the web and can hardly believe what I've read. Bail hearings? Appeals from COs? It's difficult to believe that we're talking about soldiering here. How do you run a bail hearing in Bosnia or Kosovo? They'll be giving the boys trade union rights next. Like the Ex-Officer said COs aren't legally trained. How are they going to cope with all this added bureaucracy. I thought we paid them to command but then again, I'm old fashioned.   Peter Sullivan
3 Feb:  The university has just got a new E-mail system which isn't working too well, and I'm not at all sure whether this will get through, but here goes. I was interested in the anonymous ex-officer's comments relating to the Armed Forces Discipline Bill. The fundamental problem which the Services now have is of the balance between 'rights' and operational efficiency. To my mind, operational efficiency must always be the paramount consideration, but the civilian world, particularly in the present political climate, seems to regard the rights of individuals as having first priority, and, further, fail to see how the emphasis on such rights may adversely affect operational efficiency. I think that, as a matter of reality, it has to be accepted that there has to be a degree of modification and restriction of individual rights within the Services in order that operational efficiency can be preserved. Given that we have, and have had for many years, an all-volunteer Armed Forces, this should not be considered a problem. As far as the Armed Forces Discipline Bill is concerned, I think the basic premise that there should be more legal input into the summary jurisdiction system is correct, given that COs have extensive powers to impose detention on an individual, deprive him of pay, acting rank etc. However, the changes need to be carefully drafted in order to ensure that operational efficiency is not compromised. I think, therefore, consideration needs to be given as to whether a new regime should apply to the same extent, or at all, when personnel are serving on operations. Further, a point my father (a retired RAF Squadron Leader) raised with me is that it is not usually in the accused's own interests (or in the interests of the unit generally) to leave a disciplinary matter hanging over him while various procedural hoops are gone through. Once more, balance is needed. Incidentally, if the retired officer reads the case of R v Drummond, he will see a clear case of a CO being influenced in his assessment of the accused (a QDG Trooper who was tried by court-martial after assaulting a Staff Sergeant and Sergeant of his regiment off duty) by the accused's sporting prowess (he was a GB bobsleigher and regimental rugby player) rather than by military considerations. Ann Lyon
28 Jan:  The point by Peter Sullivan is interesting in that why should COs' have the right to decide legal matters in their Units ? Controversial statement I know but they have a power vested in them that sadly is often abused, especially if the defendant is a Battalion rugby player ! These Officers, in the majority of cases, have no formal legal training and often do not possess even a degree ! They ask for legal advice from the ALS and often do not take heed. Usually actions that they have taken has so tainted an investigation that it would not stand a chance anyway. Increasingly, as soldiers are becoming more learned are we seeing a questioning of why something occurs the way it does. The Armed Forces must progress into the twentieth century or it will be seen as an anachronism. These assertions may seem controversial but I hope it provokes debate. I have chosen to remain anonymous due to the fact that tentacles reach far !! I look forward to reading the replies, especially if any COs decide to be honest with themselves and readers of this site. Aspals has always been a conduit for good debate and long may it continue into the future.   An ex officer (identity withheld)
24 Jan:  Interesting point the anonymous student makes. But the forces have lost the argument, haven't they? So the point is academic. The government has sold them down the ECHR river. CO's have just got to get on with it.   Peter Sullivan
21 Jan:  Service personnel are compensated for the burdens of military service, above those of the civilian, in the award of additional pay, the 'X factor'. Changes to legislation, in the form of the Armed Forces Discipline Bill, seem to uphold the rights of the individual (laudable) while putting the special requirements of the military second. It appears that the ability of the military to sustain a disciplined force in time of war is being eroded by the increasing introduction of lengthy legal procedures which undermine the ability of a Commanding Officer to command. To what extent should individuals be expected to accept restrictions of their human rights for the needs of military service. After all, by accepting their pay structure, have they not implicitly consented to financial recompense in lieu of restrictions in their rights?   Student (identity withheld)
15 Jan:  Paul Roberts raises a good point about ECHR Art.14 if it is taken to its logical conclusion. Although Art.14 doesn't actually mention disability, the words 'such as' make it clear that the grounds of unlawful discrimination listed are not exclusive. I suspect nobody was thinking of disability at the time the Convention was framed, but now, of course, ideas have changed entirely. 'There is ECtHR case law to the effect that serving in the Armed Forces is not a right protected by the Convention, and I wouldn't have thought military service per se, as distinct from the 'private lives' of serving personnel, would fall within the Convention rights. However, given that the present UK Government seems to see service in the Armed Forces as just another job, and the UK courts and tribunals seem not to have much idea as to what military service actually involves, we may well find ourselves with case law to the effect that there is nothing to stop a disabled person doing, say, a clerical job. If we are thinking solely of clerical jobs in static headquarters and the like, then I would not quarrel with this, provided the person really was capable of doing the job. The problem is that even clerks are moved about; it is unlikely, especially nowadays, that a person will work only in static headquarters, and individual units deploy on operations with ever-increasing frequency. This means that a person who may function perfectly well at, say, Catterick, will not be able to cope at all under field conditions in Kossovo, and will have to be left behind, which, of course, will place a greater burden on his colleagues. I think, too, that fairness in the proper sense (which discrimination law isn't really about) demands that burdens are shared out in a reasonably equal fashion, and it is simply not fair to those who are 100% deployable to require them to take an increased burden of fulfilling operational requirements because there are significant numbers of other service personnel who are not 100% deployable because of situations which they themselves chose (e.g. pregnancy) or disabilities which they had at the time they joined (I think it is proper to treat disabilities acquired during service rather differently, and to make efforts to accommodate them when this is realistic). Happy 2000 to all contributors.'   Ann Lyon
Happy New Year to you too, Ann.   Aspals

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