INTRODUCTION

  Whenever a detailed examination of specific legal provisions is undertaken, it is often useful for the analyst to commence with an overview of the field of study and to pose broad questions on the relationship between that field of study and the wider polity. Consequently, this submission to the Commons Defence Select Committee seeks to draw attention to a number of broad issues relating to military law and to its development which it is hoped will be helpful to the Committee in its own deliberations on more specific matters concerning military law which the Committee may be addressing. Thus rather than offering a close analysis of existing provision in service discipline law or of detailed proposals for new military laws, this submission will pose three principal questions. First, what factors have prompted changes in military law over the past 20 years or so? Second, which bodies or organisations have sought such changes? And third, is there sufficient democratic oversight in the United Kingdom of the law-making process in military law, especially given the complex and confusing structure of rules affecting military discipline and terms and conditions of service?

  A few preliminary points should be stressed. First, this submission is a "distilled" version of a much larger paper in which the author has developed in greater detail many of the points presented here.1 Second, in referring to "military law", the submission addresses service discipline law and military "administrative" law. The latter includes terms and conditions of service, such as equal opportunities provisions which may have been adapted from civilian law. The submission does not, however, specifically address the law of war (sometimes described as international humanitarian law). Third, it deals with laws intended, broadly, to apply during peacetime, though service discipline law is obviously also applicable to wartime. Fourth, the submission accepts in principle that military service has unique characteristics which will attract both rules exclusively applied to military service and also the selective adaptation of civilian legal norms to military circumstances. It does not, however, develop and analyse that issue in further detail, and assumes that other witnesses and memoranda will be addressing that particular aspect.

THE COMPLEXITY AND EXPANSION OF MILITARY LAW

  Before adverting to the factors prompting recent military law change, it may be observed that the military law agenda is inordinately complex as, indeed, are the sources of law governing military affairs in the United Kingdom. They include statutes, subordinate legislation issued by the Secretary of State; subordinate legislation issued by the Defence Council under statutory authority; Orders in Council issued under statutory authority or under the prerogative; the (prerogative) Queen's Regulations; prerogative Royal Warrants regulating pay and promotion; Defence Council Instructions (that is, specific administrative instructions issued by the Defence Council and applicable either jointly or to a particular service); general and administrative instructions or orders authorised by the Defence Council and covering instructions and information of a permanent nature not appropriate for inclusion in other permanent publications such as instructions on Military Aid to the Civil Ministries,2 Letters of Policy Guidance; standing orders; standing operating instructions; standard operating procedures; protocols and service codes of practice.3

  It may also be helpful, in conceptualising military law within the wider society, to ask why civilians should at this time address their minds to military law? Apart from the obvious response that in some circumstances military law is also applicable to civilians, a simple explanation is that over the past few years, academics and legal practitioners in the United Kingdom have become increasingly aware that military law is ceasing to be the narrow preserve of military lawyers and of a handful of civilian lawyers who occasionally appear before courts martial. Whether prompted by the demands of European law, by a reduction of deference to authority, by higher educational standards within the armed forces, by a "compensation culture", or by a pronounced human rights discourse, military law and "civilian" law are intersecting on a wider front in domestic law and at greater frequency than hitherto.4 One need only consider, in respect to the armed forces of the United Kingdom, topics such as equal opportunities legislation and litigation,5 sexual harassment claims,6 legal challenges to the prohibition on homosexuals serving in the armed forces,7 various tort claims against the Ministry of Defence relating to, for example, post-traumatic stress disorder,8 or to the duty of care of commanders in respect to conduct during combat,9 or to bullying,10 or to potentially fatal drinking bouts,11 or to a failure to provide adequate medical care;12 judicial review challenges such as regarding a refusal to award sums from an overseas service injury compensation scheme;13 claims for compensation for career loss following the dropping of serious charges against an Army Officer,14 the saga of challenging, before the European Court of Human Rights, the perceived lack of independence of courts martial;15 appeal court sentencing guidelines for courts martial;16 the criminal consequences of the use, by service personnel, of lethal force against civilians;17 claims in respect to "Gulf War Syndrome";18 and many other heads of claim too numerous to mention here.19

INTERNALLY OR EXTERNALLY DRIVEN LEGAL CHANGE?

  While the corpus of domestic law impacting on the armed forces is thus expanding rapidly, with a further measure, the Armed Forces (Discipline) Act 2000 bringing armed forces summary disciplinary procedures into line with European human rights law, a broad understanding of the dynamics of military law change over the past 20 years or so may be helpful to the Committee.

  Thus we can distinguish between internally driven, that is, militarily-prompted changes; and, on the other hand, externally driven, that is, economically, socially or politically prompted changes.

  Internal factors might include the military requirement for improved operational efficiency, enhanced military discipline or better recruitment and retention performances. But they might also derive from a positive services commitment to emulate civilian legal norms where appropriate; a process of consensual civilianisation of military law as well described by the Commons Select Committee on the Armed Forces Bill, 1995-96, at paragraph 4, with which the Committee is presumably acquainted.20

  In contrast, external factors might be societal demands to expand equal opportunities, or political demands to give wider effect to freedom of information principles, or economic demands to make savings on deployments or to dispose of redundant assets such as the Royal Naval College, Greenwich (whose disposal required an amendment to the Greenwich Hospital Act 1869 before the sale could be effected).21

  External legal rulings might alternatively be adverse judgments in the domestic courts (not necessarily relating to European , or to European human rights, law) which will directly inhibit operational effectiveness unless corrective legislation is enacted as rapidly as possible.

  Thus both internal and external factors prompting military law change can be divided into operationally-inspired changes, which self-evidently are designed to enhance military capacity and effectiveness; and, on the other hand, "civilianised" changes which will respond to wider policy considerations. However, it should be stressed that the services' adoption of civilian legal norms which are perceived by them as "appropriate, practical and desirable" (in the words of the AFB 1995-96 Select Committee) indicates that the civilianisation of military law is not exclusively an external imposition on the armed forces but can be driven by the services themselves (must notably in respect to incorporating civilian criminal justice procedures into the court-martial system).

  It may further be noted that the division between internally and externally driven military law change may be difficult to draw in some cases (for example, in respect of certain court martial reforms in the Armed Forces Act 1996; though I would argue that those changes were primarily externally driven). In other cases, it does not seem possible to this writer to distinguish between internal and external factors, for example, in relation to recent provisions regarding reserve forces and new SOFA arrangements (see later).

  In sum, therefore, I submit there are five categories of military law change which can be identified and which are illustrated, below, by representative examples.

FIVE CATEGORIES OF MILITARY LAW CHANGE

  A detailed breakdown of the five categories of military law change proposed here can be found in the full version of the paper from which this presentation is derived. But for the purposes of this submission to the Select Committee, the following summary (with apologies for the prolix sub-titles) is offered.

(1)  (PEACETIME) OPERATIONAL INTERNALLY DRIVEN MILITARY LAW CHANGE

  Here, legal changes are promoted by the service authorities themselves as being required for operational effectiveness or enhancement, and in order to sustain the personnel base of fighting power. Examples include updating military offences and punishment options, changing recruitment rules such as provision for the military local service engagement (MLSE) or a recent technical amendment to the Firearms (Amendment) Act 1988 allowing civilians to "try out" MoD weapons without MoD certificates on Defence property.

(2)  (Peacetime) Civilianised Internally Driven Military Law Change

  The second category reflects military law changes to service discipline law, introduced at the behest of the service authorities themselves, but shaped by, and to some extent dictated by, societal influences rather than by the practical need of operational and disciplinary effectiveness. It is here where the policy commitment to the civilianisation of military law, a consensual process, is most pronounced, As distinct from the updating (or modernising) of military offences and punishments in the previous category, such as a new military offence of interfering with computer programs, introduced in 1986, this second category particularly reflects the proactive endeavour of the service authorities themselves to incorporate as closely as practicable civilian criminal law rules on evidence, procedure and punishment tariffs into court martial jurisdiction. Examples include provisions on child video evidence, inferences from silence, abrogation of corroboration warnings and stated reasons for custodial sentences. The gap between civilian and military justice is thereby reduced accordingly.

(3)  (Peacetime) Operational Externally Driven Military Law Change

  The limited number of examples in this category reflects the practical requirement (in order to maintain operational effectiveness) to correct by legislative means any adverse court ruling on a technical point of evidence, procedure or jurisdiction. Such changes would not be prompted by the services obligation to comply with an external social, economic or political agenda or with European or European human rights law. The Northern Ireland Act 1972, s 1, was enacted in just seven hours 10 minutes to reverse the decision in Hume [1972] NI 91 which had held that the legal powers apparently conferred by the Northern Ireland legislature on the armed forces to arrest, search and detail civilians were ultra vires the Government of Ireland Act 1920.

(4)  (Peacetime) Civilianised Externally Driven Military Law Change

  In this detailed category we are addressing externally prompted legal changes which will tend to reflect social, economic or political agendas, and deriving from a diversity of sources. These are changes which the services are in many if not all cases unlikely to welcome (some may argue that the court martial reforms in the Armed Forces Act 1996 reflected the "internal" influence of the Judge Advocate General and of the Ministry's Service Discipline Acts Review Working Party. I explain in the full version of this paper why I believe these changes were external). The headline-attracting legal changes, such as those relating to pregnancy dismissals, and to recruitment and retention of homosexuals in the armed forces come into this category.

  The diversity of external sources of pressure for change will include adverse ruling of European courts, or compliance with the Human Rights Act 1998 or European Union directives; the possibly linked activities of pressure groups which might (for example, the British Nuclear Test Veterans' Association, or Stonewall and Rank Outsiders) seek to identify a European human rights law deficit, or, in other cases (the Leale and Lane and Sirdar rulings), a European law deficit for which court proceedings the institutional support of the Equal Opportunities Commission might be available. Other pressure groups such as the now-disbanded (because successful) Section 10 Abolition Group in regard to lifting of Crown immunity in certain circumstances involving the armed forces would focus exclusively on the domestic law of the time. Service charities would of course draw attention to welfare or pensions issues affecting service and ex-service personnel where the law might need reforming; though charities cannot of course, engage in political campaigning.

  Finally, military law change might be prompted (and possibly "imposed") as a result of parliament's (or in some cases the executive) giving effect to the recommendations of royal commissions or committees of inquiry such as the Lewis Committee (Cmd 7608, 1949) from whose report the Courts Martial Appeal Court eventually emerged in 1951 (a similar proposal was rejected by the Oliver Committee (Cmd 6200, 1939-40) before the war.

(5)  (Peacetime) Operational Internally and Externally Driven Military Law Change

  In regard to operational enhancement, does the expanded recruitment of women into combat roles in fast-jet aircraft or serving on warships, or into Army regiments such as the Royal Artillery, from which they had hitherto been excluded, reflect both pragmatic, that is, internal considerations, and also a commitment to the wider societal value of equal opportunities? It is suspected that the appropriate answer is, "Perhaps".

  However, in other cases, it is suggested that both internal and external factors have indubitably driven the resultant legal changes. For example, the wider call-out powers of reservists for peacekeeping and peacemaking operation in the Reserve Forces Act 1996 or the promulgation of the Visiting Forces etc Order 1998, affirming the extension of Status of Forces Agreements to new NATO members and to other countries under the NATO Partnership for Peace Initiative reflect the impact of both international realignments (external factors) and of manpower and service discipline (that is, internal) factors. It is also strongly arguable that any reconsideration of matters relating to the controversial issue of fraternisation will disclose both internal and external influences.

  It is because of the impossibility (in our view) of separating internal from external factors prompting military law change in such cases that this additional fifth category of change has been identified.

ANALYSIS OF MILITARY LAW CHANGE: TOWARDS JURIDIFICATION?

  It is apparent that explanations for military law change over the past 20 years disclose a mixture of pragmatism, positive ideology and negative coercion. This is hardly to be wondered at, given that the pressures for change have been generated both internally by the services themselves, and externally, and that legal changes have reflected both the operational needs of the armed forces and also social, economic, political or juridical programmes which, depending on the subject-matter, have attracted either support or disdain from the services.

  Some retired military commentators have regretted, in particular, the adoption of civilian legal norms which they see as inimical to "Sustaining the Will to Fight"22 (such norms may indeed reflect an "occupationalist" rather than an "institutionalist" or "vocationalist" perspective in respect to the armed forces). A developing culture of litigiousness and of liabilities limited by civilian legal norms, they believe, strikes at the military ethos of self-sacrifice, mutual trust and unit cohesion which underpins a unique legal obligation on the part of service personnel to assume physical risks not encountered in civilian society and indeed, to obey orders posing a threat to their (and to others') lives.23

  Indeed, some may claim that what we may be seeing emerging in the wake of the increasing civilianisation of military law (especially of the "coercive" variety) is a slow and gradual, indeed a barely perceptible, juridification of military law. It may be comparable, to a limited extent, with the process of juridification of industrial relations occurring in the early 1970s and involving the legal resolution of disputes hitherto the province of voluntary or unilateral industrial relations settlement.24 For our purposes, juridification may be viewed not in the narrow sense of the "monopolisation of the legal field by legal professionals"25 but as a limited colonisation by explicitly legal norms (such as an accused's right to legal representation, evidence to be presented on oath, the rules of evidence in English law to be applied, agreements to be legally enforceable, and an independent judicial element at various points in disciplinary proceedings) of territory previously unoccupied by legal criteria.

  It is not the purpose of this submission to enter into the debate on whether the incorporation of civilian legal norms will debilitate operational effectiveness. It may, however, be noted that the Director of Personal Services (Army) has recently stated (in regard, primarily, to welfare provision for service personnel rather than to positive legal rights) that,

". . . it is important to view soldiers' aspiration in terms of a series of interlocking needs: the needs of the individual, the needs of the team and the needs of the task. We have been out of balance in recent years, and the needs of the individual have become subordinate, to a greater degree than is acceptable, to the needs of the team and to the needs of the task."26

  However, whether a distinction between welfare "needs" and social and economic "rights" transplanted from civilian legal norms can or ought to be maintained remains problematic. Indeed, it would be erroneous to assume that the debate is exclusively between civilian and military society. Not only is the pressure by service families for instrumental change within military communities recognised officially. There are also internal military voices arguing that the British Army ought not to "insist upon, and to express, a different set of values from those that are widely accepted within civil society".27 Perhaps few would quarrel with the proposition that wide divergences may be unacceptable in a western liberal democracy, though the view may controversially be expressed by some that the armed forces, to be effective, must necessarily be "undemocratic". However, recent challenges have focused on how rather than on whether the services ought to accommodate non-operationally damaging diversity within institutions characterised by their unique cultural ethos vis-a-vis civilian society.28

MILITARY LAW CHANGE: CIVILIAN SUPREMACY?

  What, then, does this analysis tell us about civil-military relations in the United Kingdom with particular reference to law applicable to the armed forces? In law creating, are the armed forces adequately subordinate to civilian authority? Do they require for operational or combat effectiveness a greater degree of autonomy from legal and democratic accountability than currently enjoyed?

  We have noted how much of the agenda of military law change emanates from within the military community itself, whether to further borrow rules of evidence and procedure from the civilian criminal justice system (in the spirit of civilianisation of military law) or to address particular operational needs, which might relate to creating new military offences, to fostering a more congenial legal environment for recruitment and retention, or to counteract anticipated or delivered hostile judgments from the civilian courts, whether domestic or European.

  Nonetheless, in regard to whether civilian supremacy in respect to military law change is "real", parliamentary scrutiny of the defence sector is becoming increasingly specialised. Select Committee expertise is rising, notwithstanding that military experience among its members has declined.29 Indeed, the spectacle of focussed and well-informed bodies such as Stonewall (for the first time in 1990-91) and Rank Outsiders (1995-96) appearing in person before a defence-related select committee does represent a level of access by pressure groups to legal policy-making not hitherto experienced in this sphere. For example, at the 1980-81 committee, only Ministry witnesses were called to give evidence in person. At the 1985-96 hearings, the committee voted to decline to question the Campaign for Homosexual Equality, though the AT EASE organisation was permitted to raise the issue of homosexuality during its appearance before the Committee.30

A COMPARISON WITH THE UNITED STATES

  Thus the argument pointing to a wider democratic input to the process of military law change in the United Kingdom is attractive. Some have argued that globalisation has prompted the decline of mass militarism, mass armies and mass military culture, with the latter, in particular, being refashioned to embrace non-nationalistic principles of gender, race and cultural equality.31 The pattern of such changes globally is, of course, uneven, and it may bypass some societies. While this is scarcely the case in the United States, a brief glance at the country's procedures for effecting military law change suggests weaker democratic-institutional input than we enjoy in the United Kingdom, though indications pointing to greater transparency in American military law-making procedures have recently been observed.32 There is no equivalent to the Commons Select Committee on the Armed Forces Bill, one obvious explanation for which being that the United States Uniform Code of Military Justice does not periodically expire and require renewal.33 Major Congressional revision of the Code has occurred only twice since its creation in 1950, that is, in 1968 and again in 1983. Moreover, many observers believe that the Department of Defense effectively controls the process of introducing changes into military law, and most such changes are effected under delegated authority granted by the Department of Defense Authorisation Act. Where primary (not subordinate) legislative changes occur, they do not generally generate congressional debate. As Fidell observed in 1989, "[United States] military lawyers . . . continue to bear unique responsibility for the development of military legal doctrine. There are relatively few trials or appeals in which civilian counsel play any role, and the civilian bar has not been notably aggressive, independent or effective in troubling itself with respect to military justice".34 There has, in effect, been little public or civilian professional participation in this process, and any civilian influence on policy, for example, in respect to judicial tenure in military courts, has been barely discernable by the time that changes, often after a long delay, have been made. American civilian practitioners in military law have complained that the President's rule-making power for courts martial,

". . . does not provide for an advisory group with broad representation from the professional bench and bar. It does not provide for a broad public rulemaking method designed to instil public confidence in the rules proposed. Finally, it does not provide for meaningful congressional oversight".35

  Whether United States military law-making procedures are moving closer to those in the United Kingdom remains to be seen. It should not, however, be forgotten that regulations for courts martial in the United Kingdom share some of these characteristics, and it is also the case that much of military law, especially in regard to the Royal Navy, is prerogative-based (and therefore does not require prior parliamentary approval).36 Indeed, this is also the case in respect to pre-Armed Forces Discipline Act 2000 provisions concerning summary dealing in the Army and summary trials in the Royal Navy. In those cases, the relevant regulation is issued by the Defence Council under statutory authority, and not by the Secretary of State by statutory instrument. In contrast, however, regulations for courts martial are statutory instruments subject to Commons and Lords oversight, albeit by negative resolution procedure. A parliamentary procedure therefore does at least exist, though its efficacy in respect to military law will obviously be dependent, to a degree, on informed understanding of the issues on the part of members of each House. Similarly, the Armed Forces Act 1996, s 4, provides that regulations in respect to enlistment and terms of service will henceforth be made by statutory instrument subject to the negative resolution procedure. This replaces regulation by Defence Council and enhances the transparency and democratic accountability of such important rule-making procedures. Thus while much of service law in the United Kingdom remains prerogative-based, parliamentary oversight is more favourably placed than its counterpart, congressional oversight, in the United States.

  Moreover, in the United States, the Supreme Court has tended to adopt an extremely deferential approach to the service authorities when determining the outcome of constitutional challenges to military laws,37 whether in respect to freedom of speech, or to privacy, or to searches and seizure. The concept of "military necessity" when invoked in the Supreme Court is thus widely interpreted.38 Admittedly, it is not difficult to identify decisions affecting United Kingdom military law which effectively have upheld "military necessity" doctrines, such as the recent Sirdar ruling in the European Court of Justice (see previously) or the determinations in the United Kingdom (not the European) courts on the legality of the ban on homosexuals serving in the British armed forces. On the other hand, the rulings of "constitutional" courts binding on the United Kingdom government in service-related cases (such as the previously cited Findlay, Hood and Lustig-Prean and Beckett cases)39 are now matching rulings, in Canadian and South African supreme or constitutional courts, which established that major structural defects in the court martial system had to be corrected.40

  Measured against these seismic shifts, and in the light of an admittedly limited comparison between the United States and the United Kingdom in respect to military law-making practices and procedures, a "democratic audit" of civil-military relations in this specific sphere of United Kingdom activity would suggest a reasonably healthy balance.41

AN OBSCURED OR HIDDEN MILITARY LAW AGENDA?

  Nonetheless, much of the military law agenda remains hidden from public scrutiny (as one would anticipate in respect to policy or administrative guidance, especially within security-related organisations). Whether military documents such as the various Provost Manuals should have a restricted classification, given that they prescribe, inter alia, legal procedures for the exercise of arrest powers; or whether, for example, the Army Commissioning Regulations 1999, which of course derive from the Royal Prerogative (as does much of military law) should continue similarly to be so classified, cannot easily be answered in the abstract. Solicitors or barristers representing service or ex-service clients may, of course, require access to restricted documents such as the Military Secretary's Guide of Officers' Confidential Reports; or to Army Form AF B9926, "Request for an Officer's Premature Move to Termination of Service", or to the procedures for dealing with enlisted or commissioned conscientious objectors, as prescribed in Army General and Administrative Instructions, Vol 5, Instruction No 6 (which was prosecution evidence in the court martial of Gnr Vic Williams who refused to serve in the Gulf War).42 On occasions when full access, for example, to Board of Inquiry reports, has been denied, there could of course be resort to discovery proceedings by litigants seeking confidential military material.43 Occasional glimpses of this "hidden" world of military law do therefore emerge in a very small number of cases (and, one suspects, others will be uncovered as the subject-matter of litigation against the Ministry of Defence is expanded). Parliamentarians have also made scathing reference in the past to obscure Defence Council Instructions (now withdrawn) on medical examination, which were prescribed for the detection of serving homosexuals.44 Again the world of DCIs is one which is generally unfamiliar to most lawyers.

SUMMARY OF FINDINGS

  In conclusion, we agree that parliamentary scrutiny of military law is becoming more proficient; that European and European human rights law are transforming legal relations within the United Kingdom armed forces (the consequences of which, for military ethos and for operational effectiveness, have yet to be properly assessed); that the boundaries of litigation against the Ministry of Defence are now regularly being tested; and that United Kingdom military law-making procedures appear to enjoy more transparency than comparable arrangements in the United States. Yet our review of internally and externally driven legal changes and of the relevance of civilianisation and of operational factors on military law-making suggests that a considerable element of the law making agenda remains within the effective control of the service department itself (eg enlistment rules, Pay Warrant, reserve forces, and rules of evidence in courts martial). Perhaps most relevantly, the hidden (and sometimes closed) world of AGAIs, FLAGOs, DCIs, Standing Orders, Rules of Engagement (whether in respect to the United Kingdom or to overseas theatres), Local Purchase Regulations, Road Transport Regulations, Military Flying Regulations, and many others too numerous to mention,45 all testify to a land of military law scarcely known to, or penetrated by, the civilian world. In this respect, the democratic principle of civilian supremacy over the military may have weak purchase (but whether this should be a matter of concern to civilian society in 2000 after the government unfolded its freedom of information proposals in late 1999 is beyond the scope of this submission).46

CONCLUDING OBSERVATIONS

  It would perhaps not be difficult to identify a list of new "rights" to which service personnel might lay claim in the wake of the Human Rights Act 1998. Restrictions on active participation in trade union activities (in respect to the freedoms of association and expression); remaining prohibitions on fraternisation notwithstanding the new Armed Forces Code of Social Conduct of January 2000 and its accompanying "Service Test" (right to privacy and to family life); the "charges raised" provisions following "marching out" from married quarters (right to a fair trial) may all be potential litigation generators (this list does not necessarily imply either a justification for removing or likely legal success in removing, existing restrictions). But a list of rights of this nature is ad hoc and cannot settle the question of what rights in principle should apply. One can, of course, advert to such conceptual frameworks as "The Need to be Different" or "Sustaining the Will to Fight", to which the Committee has already given its attention. But that debate is still unresolved and arguably cannot be resolved in an unequivocal fashion, if, for no other reason than that circumstances differ between services, between units, between persons, between war and peace, between social, economic, political and cultural environments. But underlying these conceptions is a sense of exception (a term used in preference to "uniqueness", or "difference" or "distinctive military ethos"). Therefore, in seeking to identify the substantive provisions of military law which parliament approves, or the substantive provisions of civilian legal norms which should not extend to the armed forces, the focus should be on criteria for exceptions or exclusions. This might mean, for example, that the rights listed in the European Convention on Human Rights and now incorporated in the Human Rights Act 1998 are, a priori, applicable to members of the armed forces except where operational requirements make this exclusion necessary (it assumes that military ethos would discourage trivial or "barrack-room" claims from emerging. If they do, then perhaps the serviceman or woman in question is not "morally fitted" for such service. It also assumes reciprocal recognition by the armed forces of the broad human rights principles underlying the Convention and the 1998 Act; principles enduring in Western democracies (even if not always in practice) since, arguably, the later eighteenth century.

  But what is especially pertinent is that in most such cases, as is known, such rights, though fundamental, are not absolute. Provisos apply, which may fit the armed forces' circumstances in individual cases. Similarly, EU equal treatment provisions are qualified by "combat effectiveness" exclusions or by "general occupational qualification" exceptions. From the legal point of view, therefore, it is difficult to formulate any new legal principles to cast light on which broadly expressed fundamental rights in the Human Rights Act era service personnel should enjoy; that is, principles which cannot be extracted on a case-by-case basis from the existing human rights, equal treatment or military discipline codes where qualifications or exceptions relating to, for example, combat effectiveness, general occupational qualifications, national security, public order or territorial integrity may be found (in express or implied terms).

  Despite this possibly unadventurous conclusion, it is hoped that the foregoing examination of the factors prompting military law change; of the individuals, bodies or organisations instigating the process of change; and of the degree of "democratic participation" in this specialised process will lend a sense of perspective for the Defence Committee to the more detailed working out of future military law provisions.

1 G R Rubin, "Towards an Understanding of Change in United Kingdom Military Law", September 2000.

2 In the Army, they are known as AGAI (Army General and Administrative Instructions) and in the Royal Navy as FLAGO (Fleet Administrative and General Orders). Though mainly classified as "restrictive", some (such as those concerned with equal opportunities or harassment) are widely available as unclassified documents.

3 For further details, see the present author's annotations to the Reserve Forces Act 1996, s 4, in [1996] Current Law Statutes, ch 14.

4 This paper does not, in general, seek to address issues of international law, though treaties are cited at appropriate points in the text.

5 See, for example, Armed Forces Act 1996, ss 21-27; Anthony Arnull, "EC Law and the Dismissal of Pregnant Servicewomen", Industrial Law Journal, Vol 24, 1995, pp 215-34.

6 There are a number of unreported cases. See, for example, Sunday Times, 4 January 1998; The Times, 25 May 1999. For the United States, see Lt Cdr J Richard Chema, ""Arresting Tailhook": The Prosecution of Sexual Harassment in the Military", Military Law Review, Vol 140, 1993, pp 1-64.

7 Smith and Grady v United Kingdom (2000) 29 EHRR 493 and Lustig-Prean and Beckett v United Kingdom (2000) 29 EHRR 548 European Court of Human Rights, 11 October 1999. Compensation payments totalling £324,875 were awarded by the court. See Guardian 26 July 2000. The lifting of the ban and the introduction of a new code of service conduct covering all personal relationships, both homosexual and heterosexual, were announced in January 2000. See Guardian, 13 January 2000. The code is @ www.mod.uk/policy/homosexuality/code.htm.

8 Lawyer, Vol 13, No 24, 21 June 1999 (case of John Callaghan).

9 Ann Lyon, "Negligence and the Field of Battle" New Law Journal, 17 January 1997, pp 46-7; id, 24 January 1997, pp 104-6.

10 Guardian, 31 October 1996.

11 Barratt v Ministry of Defence [1995] 3 All ER 87.

12 Id. Whether criminal or other proceedings will follow in the wake of findings regarding the conducting of nerve gas experiments on national servicemen in the 1950s is awaited.

13 R v Ministry of Defence [2000] IWLR 806 (HL).

14 Lawyer, Vol 13, No 17, 3 May 1999: Guardian, 28 April 1999 (case of Maj Milos Stankovic). The Stankovic case, among others, has drawn attention to whether the Ministry of Defence Police have been exercising their powers (arrest, search etc) without legal authority since 1987. See id, 7 August 2000: also interview on Radio 4 "Today" programme, 18 September 2000.

15 The cause céle"bre is Findlay v United Kingdom (1997) 24 EHRR 221. See also Moore and Gordon v United Kingdom (2000) 29 EHRR 728.

16 R v McEnhill, The Times, 4 February 1999 (CMAC).

17 R v Clegg [1995] 1 All ER 334 (HL); [1995] 1 AC 452.

18 Guardian, 13 November 1996 ("MoD faces 1,000 writs from Gulf veterans over illness"); Lawyer, 30 September 1997.

19 Lest it be wrongly thought that a compensation culture is one-sided, it may be noted that in February 1998, the Ministry of Defence issued a writ for more than £8 million against the estate of a pilot who died in a mid-air collision with a Jaguar aircraft. See the Lawyer, 24 February 1998.

20 House of Commons, Session 1995-96, Special Report from the Select Committee on the Armed Forces Bill [henceforth AFBSC], House of Commons Paper 143, 30 April 1996, para 4.

21 Armed Forces Act 1996, ss 30-31.

22 See General (ret'd) Sir Michael Rose, "Sustaining the Will to Fight in the British Army", Officer, Vol 10, No 1, January-February 1998, pp 40-1.

23 Gerald Frost, "How to Destroy an Army", in Gerald Frost (ed), Not Fit to Fight: The Cultural Subversion of the Armed Forces in Britain and America, London: Social Affairs Unit, 1998, at pp 15-16. A military periodical ran a series of articles on "compensation claims and what commanders can do to avoid them". See Nigel Brain, "The Army and the Law", British Army Review, No 111, December 1995, pp 64-66.

24 Hugh Collins, Justice in Dismissal: The Law of Termination of Employment, Oxford: Clarendon Press, 1992, pp 30-40, and references therein to Simitis and Teubner.

25 Penny Brooker, "The Juridification of Alternative Dispute Resolution", Anglo-American Law Review, Vol 28, 1999, pp 1-36, at p 1. See also John Field and A Caiger, "Lawyers and Arbitration: The Juridification of Construction Disputes", Modern Law Review, Vol 56, 1993, pp 412-40.

26 Brig A S Ritchie, "Turning the Tide": Addressing Army Personnel Issues", RUSI Journal, Vol 114, No 6, December 1999, pp 67-71.

27 Lt Col J D Beaumont, "Armed Forces Within a Democratic Society", British Army Review, No 119, August 1998, pp 35-8. Voices sympathetic as well as hostile to Maj Eric Joyce's analysis and interpretation of deficiencies in British Army personnel policies were also expressed in the columns of the military press. See Eric Joyce, Arms and the Man-Renewing the Armed Services, London: Fabian Society, 1997.

28 Christopher Dandeker, "On The `Need to be Different': Recent Trends in Military Culture", in Hew Strachan (ed), The British Army: Manpower and Society into the Twenty-first Century, London; Frank Cass & Co, 2000, Ch 12.

29 A brief glance at AFBSC membership since 1970-71 will confirm this. The details are omitted here.

30 The Campaign for Homosexual Equality did submit written evidence in 1980-81 and in 1985-86. The Conservative Group for Homosexual Equality did so in 1985-86.

31 Cf, Martin Shaw, "The Post-Military Citizen", paper to conference on "Redefining Society-Military Relations from Vancouver to Vladivostok", Birmingham University, April 1999.

32 See National Institute of Military Justice [Washington DC], Military Law Gazette, No 77, 1 May 2000.

33 For this and subsequent points, see Dwight H Sullivan, "Modalities of Change in Military Justice (a United States Perspective)", in National Institute of Military Justice, Sourcebook on Contemporary Comparative Military Justice, prepared for Conference on Continuity and Change in Military Justice, London, 12 December 1998, pp 460-1.

34 Eugene R Fidell, "The Culture of Change in Military Law", Military Law Review, Vol 126, 1989, pp 125-32, at pp 130-1.

35 American Bar Association, Standing Committee on Armed Forces Law, Report to the House of Delegates, Court Martial Rulemaking Procedures, February 1997, p 11.

36 The Royal Prerogative basis of much military law may have surprising consequences. For example, while there may be a statutory right to equal pay, there is no legally enforceable right to pay, per se. Similarly, there is no legal entitlement, on the part of officers at least, to leave the services prematurely.

37 Sullivan, op cit.

38 Maj Stanley Levine, "The Doctrine of Military Necessity in the Federal Courts", Military Law Review, Vol 89, 1980, pp 3-24. See also Col Frederic I Lederer and Lt Col Frederic L Borch, "Does the Fourth Amendment Apply to the Armed Forces?" Military Law Review, Vol 144, 1994, pp 10-25. Cf, United States v Scheffer 118 S Ct 1261 (1998), upholding the Manual for Courts-Martial (MCM) "per se" exclusion of polygraph evidence in Rule 707(a).

39 See also Coyne v United Kingdom, Case No 124/1996/743/942, European Court of Human Rights, 24 September 1997, in regard to Royal Air Force courts martial.

40 For Canada, see R v Généreux [1992] 1 SCR 259, 88 DLR 4th 100 (1992); Lauzon v R 56 CRR 2d 30 129 CCC 3d 399 (CMAC, 1998). For South Africa, see President of the Ordinary Court Martial v Freedom of Expression Institute, No 5/99, 1999 (South African Constitutional Court, 24 August 1999). See w.w.w.inc.co.za/online news 2/south-africa/law/comartial.html. See, generally, Eugene R Fidell, "A World-Wide Perspective on Change in Military Justice", paper to Inter-University Seminar on Armed Forces and Society, Baltimore, MD, October 1999.

41 So far as is known, the Bar Council and the Law Society of England and Wales have not submitted written or oral evidence to AFBSCs, though the Bar Council (at least) gave evidence to the Lewis Committee in 1947. See Law Journal, Vol 97, 25 April 1947, p 208. There is a United Kingdom Group of the International Association for Military Law and the Law of War in which military lawyers, civilian practitioners, judges, civil servants and academics participate. Unlike the United States' National Institute for Military Justice (cf, note 33 above), it does not campaign for changes in military law, though meetings of the Group will, of course, discuss current issues and concerns, usually on a Chatham House rules basis. Academic interest in military law in the United Kingdom tends to concentrate on the international law of armed conflict, with only a small number of academics specialising in service discipline law.

42 Col [now Maj Gen] G Risius, "Conscientious Objection and the Gulf War, The Case of Gunner Williams", Military Law Journal, No 2, 1995, pp 25-40, at p 34.

43 The cause céle"bre regarding access to "defence" documents is the Thetis case, Duncan v Cammell, Laird & Co [1942] AC 624. More recent "discovery" applications (unreported) include Barrett v Ministry of Defence (prior to the trial of the action; see note 8 above); Ferrante v Ministry of Defence, Independent, 30 March 1991; The Times, 5 March 1996; and R v Secretary of State for Defence, ex parte Sancto (1993) 5 Admin LR 673 (DC).

44 HC Deb, 6th Series, Vol 227, 21 June 1991, Col 137 (Tony Banks).

45 In ex parte Walker (note 13 above) the courts discussed AGAI and DCIs.

46 Matters of deployment of the armed forces tend to be viewed as "non-justiciable" by the courts. See China Navigation Co Ltd v Attorney-General [1932] 2 KB 197; Chandler v Director of Public Prosecutions [1964] AC 736; Council of Civil Service Trade Unions v Minister for the Civil Service [1985] AC 374. The facts in The Zamora [1916] 2 AC 77 might suggest a modification to this doctrine, while the dicta therein suggest otherwise. Similarly, the English courts did not decline jurisdiction in the "homosexuality and armed forces" case, R v Secretary of State for Defence, ex parte Smith et al [1995] 4 All ER 427 (Div Ct); [1996] 1 All ER 257 (CA), on the ground that "operational considerations" were not involved (see Simon Brown LJ [1995] 4 All ER, at p 446). For the United States, cf, The Committee on Military Affairs and Justice of the Association of the Bar of the City of New York, "Congressional Control of the Military in a Multilateral Context", Military Law Review, Vol 162, December 1999, pp 50-131.