APPENDIX 7
Memorandum submitted by Professor G R
Rubin, Kent Law School, University of Kent at Canterbury
MILITARY LAW AND THE SERVICE ENGAGEMENT:
SOME PRELIMINARY CONCEPTUAL OBSERVATIONS
In early February 2001 it was announced that
a number of paratroops whose service careers, it is alleged, have
been blighted since they contracted malaria in Sierra Leone, may
sue the MoD. Without prejudging the legal issues of duty of care,
negligence, causation and liability in this case, it may be noted
that the men's solicitor complained that "My clients were
trustworthy and honest men in the eyes of the MoD . . . it seems
their word is no longer taken"1. Again, it is not our purpose
to challenge or to endorse this opinion. Rather, we see the episode,
with its reference to mistrust, as an oblique reminder that the
principal (though admittedly not exclusive) focus of Armed Forces
Bills has been on matters of military (that is, criminal) justice.
The corollary has been the virtual absence of any focus on the
legal and conceptual underpinnings of the service engagement itself.
Legally it derives from the Royal Prerogative (though servicemen's
enlistment is also governed by statute such as Part One of the
Army Act 1955) and reflects, in its disciplinary elements, the
expediency of command and control via the chain of command. Moreover,
despite increasing evidence of soldiering more characteristic
of "occupationalism" than of "vocationalism"
(in Charles Moskos' familiar terminology), the engagement remains
unique in respect to the serviceman's unlimited liability.
Nonetheless, a paradox exists at the heart of
this relationship. While strict command necessitates a rigorous
application of military law (though sociologists would insist
that enforcement will be situationally specific2), which is consistent
with a regimen of "low trust" relations and a restricted
"time-span of discretion", in the words of the industrial
sociologist and labour historian, Alan Fox3, military society
and, especially, military operations, require "high trust"
relations. Yet high trust is, or ought to be, a two-way process
and relationship, both from the top down and from the bottom up.
In other words, the service engagement, as the legal embodiment
of the military relationship, should reflect reciprocity in its
provisions. However, the present submission to the Committee will
suggest, first, that some of the legal rules (admittedly on the
basis of a limited trawl) which govern the terms of the service
engagement and which derive from the Royal Prerogative and from
judicial rulings of a previous age, may be unfairly skewed in
favour of the Crown, thus controverting the (assumedly) laudable
aim of enhancing trust between commanders and subordinates4. Second,
it may be timely to address more generally the legal and conceptual
basis of the current service engagement to determine whether an
engagement derived from the Royal Prerogative is adequate to current
needs in terms of high trust relations.
To preface my comments on the legal issues,
let me refer briefly to a recent panel on military morale, held
at the Royal United Services Institute in London on 31 January
2001. While numerous valid points were made (for example, that
communication is vital to morale), nearly all contributions to
the discussion seemed to this writer to view morale from the top
down (from the officers' perspective, some might say). In other
words, the sense of reciprocity or of mutual obligation was (I
felt) insufficiently, indeed not, addressed. And this point was,
in my view, reinforced when a member of the audience invited the
panel to consider the "psychological contract". By this
the questioner meant, of course, that unwritten "contract"
containing a package of expectations regarding terms and conditions
of service which conferred on members of the forces a sense of
psychological security derived from principles of mutuality (".
. . the treatment which each party might reasonably expect from
the other", although the parties might hold "different
perceptions of [the] balance" of the psychological contract5).
Thus whether it relates to providing covering fire during operations,
or to commanders intervening to prevent more junior personnel
in remoter postings from indulging in excessive drinking6, or
to providing anti-malaria tablets at the earliest moment before
deployment, the psychological contract (of which concept the MoD
is bound to be aware) is one characterised by reciprocity.
However, when one examines legal features of
the service engagement, it may be difficult, in the light of notions
of a psychological contract, to appreciate why the uniqueness
of that engagement justifies some rules which appear to lack even
a hint of reciprocity. For example, there is a legal rule (derived
from the proposition that the obligation is "voluntary only
on the part of the Crown": see R v [Secretary of State for
War 1891] 2 QB 326) that service personnel, while entitled to
equal pay by statute, do not appear to be entitled, as a consequence
of the Royal Prerogative basis of the service engagement, to pay
per se. Thus they cannot commence legal proceedings for
shortfalls in their pay packets (unless they claim that this reflects
sex or race discrimination). There is clear legal authority for
this proposition: Leaman v R (1920) 3 KB 663, which, together
with other Commonwealth case authorities, was discussed in a classic
article in 1950 (Z Cowen, "The Armed Forces of the Crown",
Law Quarterly Review, Vol 66, 1950, pp. 478 et seq.). It
is true that pay problems in recent years have related to late
payments rather than to disputed payments or to non-payments (cf,
"Creaking computer hits TA pay": Guardian, September
29, 1997). Nonetheless, the anomalous and one-sided legal position
may do nothing to underpin the sense of mutuality and trust at
the core of the service engagement.
Similarly, the proposition that officers have
no legal right to resign (though administrative rules will normally
permit officers to retire within seven to twelve months of the
date of request to leave) is derived from a decision in 1892 (Hearson
v Churchill [1892] 2QB 144: "An officer who has accepted
a commission in Her Majesty's Navy cannot, under any circumstances
whatever [italics added], resign without the consent of HM
The Queen". Indeed attempts to challenge this legal doctrine
before the Divisional Court (David Pannick, QC, sitting as a Deputy
High Court judge) in early 1999 were unsuccessful7. While there
may be justification for the principle involved, the breadth of
this Prerogative doctrine may be open to question in terms of
mutuality.
That (psychological) contractual mutuality may
have different nuances or emphases according to whether circumstances
of peace or war (or situations in between) prevail is not disputed.
Yet the absence of mutuality in the current legal regime in respect
of those terms of the service engagement noted above may provide
a springboard for further exploration of terms of the service
agreement which have their roots in a legal source, the Royal
Prerogative, heavily slanted in favour of the Crown. Of course
a readjustment has occurred with electronic "blueys",
more phone cards, improved leave arrangements and the like. But
perhaps, if and when a tri-service discipline Act is drafted,
attention might also be given to examining the common law (that
is, Royal Prerogative) rules underpinning the service engagement
in order to consider its appropriateness for the twenty-first
century. The Bett Report (The Independent Report of Armed Forces
Manpower, Career and Remuneration Structures (HMSO, 1995)),
while recommending that service personnel be provided with clearer
statements of their written terms of service, nonetheless left
open whether these terms should constitute a contract of employment
enforceable in the courts or tribunals (para 4. 62). It should
be clear that the present submission does not address this point
directly (and advances no view on the issue). Rather, the emphasis
is on the appropriateness today of a number of legal rules derived
from the Royal Prerogative and whose compatibility with notions
of the psychological contract and of the fostering of mutual trust
seems questionable.
In the landmark House of Lords decision in the
GCHQ case (Council of Civil Service Trade Unions v Minister
for the Civil Service [1985] A.C. 374), Lord Roskill once
famously stated,
"To speak today of the acts of the sovereign
[by which he meant the exercise of the Royal Prerogative] as "irresistible
and absolute" when modern constitutional convention requires
that all such acts are done by the sovereign on the advice of
and will be carried out by the sovereign's ministers currently
in power is surely to hamper the continual development of our
administrative law by harking back to what Lord Atkin once called,
albeit in a different context, the clanking of mediaeval chains
of the ghosts of the past".
That the Defence Council is not exclusively
composed of ministers does not, it is submitted, invalidate the
argument that certain military law doctrines derived from the
Royal Prerogative may have outlived their legitimacy in the light
of notions of the psychological contract. Indeed, lest it be thought
that Lord Roskill was expressing some radical new dogma, it is
well to recall that it was none other than Montgomery himself
who stated,
I do not believe that soldiers are greatly influenced
by "cause" . . . In other words, most men do not fight
well because their ancestors fought well at the Battle of Minden
two centuries ago, but because their particular platoon or battalion
has good leaders, is well-disciplined and had developed the feeling
of comradeship and self-respect among all ranks on all levels.
It is not devotion to some ancient regimental story which steels
men in crisis; it is devotion to the comrades who are with them
and the leaders who are in front of them8.
Our conclusion is therefore that while the bulk
of attention in regard to the Armed Forces Bill is understandably
related to military justice issues, the time has also arrived
to reconsider the Royal Prerogative basis of certain of the rules
underpinning the service engagement, and, in particular, in respect
to their appropriateness today.
NOTES
*The author is grateful to Mrs Caroline A Yates,
Army Management Consultancy Services, The Former Army Staff College,
Camberley for helpful advice.
1 Guardian, 6 February 2001.
2 John Hockey. Squaddies; Portrait of
a Sub-culture, Univ. of Exeter Press, 1986, Ch.2.
3 Alan Fox, Beyond Contract; Work, Power
and Trust Relations, Faber & Faber, 1974.
4 This is not to dispute that some developments,
for example, in regard to tort liability, may potentially increase
distrust. Cf., the views of General Sir Michael Rose, "Sustaining
the Will to Fight of the British Army", Officer, Vol.
10, January—February 1998, pp.40-41.
5 Peter Herriot, W.E.G. Manning and Jennifer
M Kidd, "The Content of the Psychological Contract",
British Journal of Management, Vol. 8, 1997, pp. 151-62.
6 Barrett v Ministry of Defence
[1995] 3 All E.R. 87.
7 Cited at www.Aspals.com, a remarkable
and impressive United Kingdom military law site.
8 Quoted in Royal Military Academy Sandhurst,
Serve to Lead (an Anthology), 1994, pp.15-16.
February 2001
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