Select Committee on Armed Forces Appendices to the Minutes of Evidence


Memorandum submitted by Professor G R Rubin, Kent Law School, University of Kent at Canterbury


  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.


  *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, 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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