Written evidence from the Peace Pledge
Union
UNDER-18S AND CONSCIENTIOUS OBJECTION IN
THE UK ARMED FORCES
EXECUTIVE SUMMARY
This submission is concerned with two issues: the
recruitment and retention in the Armed Forces of young people
under the age of 18; and the right of Members of the Armed Forces
to be discharged as conscientious objectors to further service.
It reviews the policy of not only recruiting young
people under the age of 18 but targeting them; their terms of
enlistment; the unfair disparity, in the army, between terms for
minors and those for adults; the difficulties young people and
their parents may have in understanding the terms; and the refusal
of the government to give an unequivocal assurance that under-18s
will never again be sent into battle. It cites longstanding recommendations
from previous Select Committees on Armed Forces Bills, the Select
Committee on Defence, the Parliamentary Joint Committee on Human
Rights, the UN Committee on the Rights of the Child and Amnesty
UK that have not yet been implemented.
The submission reviews the history of, and present
provision for, discharge from any of the regular or reserve Armed
Forces on the ground of having developed, since commissioning
or enlistment, a conscientious objection to further military service.
It argues that the present provision, although important and worthwhile,
is insufficiently known and available within the Armed Forces.
Eight constructive recommendations are made.
BACKGROUND
1. The Peace Pledge Union, an independent secular
pacifist association, has campaigned for more than 40 years against
the recruitment and deployment of young people under 18 by the
Armed Forces. It contributed to the marginal increase in the minimum
recruitment age from 15 to 16, the introduction of the limited
discharge as of right discussed in paragraph 16 below, and, through
its affiliation to the UK Coalition to Stop the Use of Child Soldiers,
to the eventual ratification by the UK of the Optional Protocol
to the Convention on the Rights of the Child on the Involvement
of Children in Armed Conflict. The PPU has worked on the right
of conscientious objection to military service since 1938, and,
through its co-founding of the Central Board for Conscientious
Objectors (1939-88), and now as a successor body, is an established
authority on conscientious objection.
UNDER-18S
Age of recruitment
2. The Peace Pledge Union welcomed the UK's ratification
in 2003 of the Optional Protocol to the Convention on the Rights
of the Child on the Involvement of Children in Armed Conflict,
which required the UK to make a formal declaration of an age not
less than 16 as the minimum age for armed forces recruitment.
We are concerned, however, that the UK did not take the opportunity
to raise its minimum recruitment age beyond the existing level
of 16. That age was permitted in the Optional Protocol as an exception
to the consensual norm of 18 mainly because of the intransigence
of the UK, and its status as an exception is demonstrated by the
UK now being one of fewer than 20 states recruiting at 16, as
against 134 states which have prohibited any military recruitment
below age 18. It must be asked whether Parliament can in all conscience
continue to permit the UK to match the recruiting age standard
set, for example, by Iran, North Korea and Zimbabwe, rather than
that set by the rest of the European Union, the rest of the Council
of Europe, and the other permanent Members of the UN Security
Council. The Ministry of Defence presently ensures that Britain
endures the obloquy of training people for warfare whilst they
are still too young to drive a car or visit a public house, let
alone to vote. Moreover, the two other publicly sponsored occupations
involving serious risk, the police and the fire service, have
a minimum joining age of 18.
3. We are also concerned that Parliament did
not take the opportunity of the revised and consolidated Armed
Forces Act 2006 to write into statute even the low minimum age
which has been formally declared; the UK is virtually alone in
the world in not having a statutory minimum age for military recruitment.
However, we welcome the step towards this made at secondary legislative
level by the Armed Forces (Enlistment) Regulations 2009, which,
for the first time in UK history, laid down in statutory instrument
form a minimum age for any enlistment. The next two steps, consistent
with international norms and young people's rights, must be to
raise that minimum age from 16 to 18, and to confirm it by act
of Parliament.
4. Recommendation 1: that in Section 325
(2) of the Armed Forces Act 2006 there be inserted a new sub-subsection,
"(b) prohibiting the enlistment of persons under the age
of 18", with consequent re-lettering of the succeeding sub-subsections.
Recruitment policy
5. There are some 4000 under-18s in the UK Armed
Forces, the great majority in the army. This results from a determined
policy of targeting 16-year-olds for recruitment in preference
to adults. The policy was supported by the Select Committee on
the 2001 Armed Forces Bill: "We believe it continues to
be important to recruit young people straight from school, including
at the age of 16. If they are not caught at this point, they are
likely to take up other careers and be permanently lost to the
armed forces." [Select Committee Report, para 63] The
policy was confirmed in the UK's First Report to the UN Committee
on the Rights of the Child, 2007 [para 18]: "To be unable
to recruit from [the under-18] age group would mean that
high quality school leavers would settle into other careers and
be lost to the Services". The implication of such arguments,
especially the use of the word "caught", is that the
personal, educational and career development of individual young
people is to be valued less than the insistent demand of the Armed
Forces for new recruits. Such a proposition is a clear contravention
of Article 3 of the Convention on the Rights of the Child, requiring
that in all matters to do with children (all persons under age
18), the best interests of the child must be the primary consideration.
6. The UN Committee on the Rights of the Child,
in its quinquennial report in 2002 on the UK's observance of the
Convention on the Rights of the Child, commented: "The
Committee is deeply concerned that about one third of the annual
intake of recruits into the armed forces are below the age of
18 years" and "that the armed forces target young
people … The Committee recommends that the State party …
while it recruits persons who have attained the age of 16 years
but have not attained the age of 18 years, shall endeavour to
give priority to those who are the oldest, in light of article
38, para 3, of the Convention, and strengthen and increase its
efforts to recruit persons of 18 years and older." [UN
CRC, Concluding Observations on UK's second periodic report, paras
51-52, 19 September 2002] As part of its next review in 2008,
the Committee asked the UK government to "elaborate on
any initiative taken to give priority to the oldest when recruiting
persons below 18 years, in accordance with article 38 (3) of the
Convention and in line with the spirit of the Protocol".
Acknowledging that 24,150 recruits under 18 had been enlisted
during the financial years 2004-07 (32 % of the total intake),
the MoD responded, "There are currently no specific initiatives
or recruiting policies in place to give priority to 17-year-olds
over those aged 16". [Written responses to the List of
issues to be taken up in consideration of the initial report of
the UK, CRC/C/OPAC/UK/1, 2008, section 2]. The UNCRC, in its Concluding
Observations, "regrets that the State party indicates
that there are no plans to change this" and "encourages
the State party to consider reviewing the position and raise the
minimum age for recruitment into the armed forces to 18 years
in order to promote the protection of children through an overall
higher standard. In the meantime the Committee recommends that,
in recruiting among persons who have not yet attained the age
of 18, priority is given to those who are the oldest". [CRC/OPAC/CO/GBR/1,
paras 12-13, 3 October 2008]
7. The Select Committee on Defence, in its Duty
of Care Report, stated, "Much of the material we received
relates to the risk factors associated with young people, particularly
those from disadvantaged backgrounds. Undoubtedly some people
who apply to join the armed forces are vulnerable … Concerns
have been expressed about the appropriateness of recruiting under-18s
into the Armed Forces. We recommend that MoD examine the potential
impact of raising the recruitment age for all three Services to
18." [Select Committee on Defence, Third Report, 14 March
2005, paras 61-62]. The UNCRC in its Concluding Observations in
2008 was "concerned that [the UK's] active recruitment
policy may lead to the possibility of targeting … children
from vulnerable groups". [CRC/OPAC/CO/GBR/1, para 14,
3 October 2008]
The government has simply argued, "the Armed
Forces must recruit school leavers if they are to be able to compete
for the better candidates and meet current recruiting needs. Once
people attain the age of 18 years they are more difficult to attract
as recruits … we wish to attract recruits before they have
made other lifestyle choices." [Government's Response
to the Defence Committee's Report on Duty of Care, July 2005,
para14] In other words, catch them young before they know any
better—evidence, again, of systematic flouting of Article
3 of the Child Rights Convention.
8. Recommendation 2: that the Select Committee
examine MoD witnesses on the propriety of targeting younger under-18s
for recruitment in disregard of Articles 3 and 38 (3) of the Convention
on the Rights of the Child and the spirit of the Optional Protocol,
as emphasised by the UN Committee on the Rights of the Child.
Terms of enlistment
9. For an under-18 recruit, the army, which recruits
more personnel than the navy and air force combined, has the harshest
terms of enlistment of the three forces. All army recruits are
required to enter on a "versatile engagement", but with
a right to give 12 months notice to resign at any time after completing
the first three years, making a four-year minimum engagement.
In the case of recruits enlisting under age 18, however, the period
between the date of enlistment and the 18th birthday does not
count towards the four-year minimum. This means that a recruit
enlisting on or soon after his/her 16th birthday is liable to
a minimum six-year term, as against the minimum four years required
of an adult entrant. It is described by critics as the "six-year
trap". The navy used to have a six-year trap, and the air
force a five-year one, but they were both abolished in 2001, the
minimum engagement for under-18s being aligned by each force with
that for adults.
10. The Select Committee on the Armed Forces
Bill 1996 found "the justification for the difference
in length of service for under-18s and adults unconvincing"
and recommended the giving of "careful consideration to
the desirability of requiring minors to commit themselves to a
period of service longer than that of adults". [Select
Committee Report, paras 41-42] The 1996 Select Committee also
reported, "The 1991 Committee expressed dissatisfaction
with the conditions of enlistment for under-18-year-olds and recommended
that the MoD bring forward proposals for change. No such proposals
have materialised. However, we were told that following the Bett
Review of the career structure in the Services a working party
is to look at enlistment … of under-18-year-olds."
In its second report to the UN Committee on the Rights of the
Child in 1999 the UK government referred to the 1996 Select Committee's
report: "It again [referring back also to the 1991
Select Committee] recommended that careful consideration be
given to requiring minors to commit themselves to a period of
service no longer than that of adults. As a result a Working Group
was set up to examine how this anomaly might be removed, and to
see whether common terms of service might be introduced across
the three Services … Work is now under way to draft revised
terms of service for personnel under 18." [UK Second
Report to the UN CRC, 1999, para 10.65] What the Working Group
reported has never been published. What is apparent is that the
navy and air force eventually responded positively in 2001, as
mentioned in paragraph 9 above, but the army's response in 1999
was to increase its former five-year trap to the present
six-year trap. The 2001 Armed Forces Bill Select Committee, whilst
approving the targeting of 16-year-old recruitment, refrained
from comment on the six-year trap, despite the matter being drawn
to its attention in written evidence. The 2006 Committee reneged
so far on the concerns of its predecessors of 1991 and 1996 as
not to discuss the issue of under-18s at all, despite written
evidence calling attention to the recommendations of the Duty
of Care report and of the UN Committee on the Rights of the Child.
11. The UN Committee on the Rights of the Child
unsurprisingly commented adversely in its 2002 quinquennial report:
"The Committee is deeply concerned … that those recruited
are required to serve for a minimum period of four years rising
to six years in the case of very young recruits." [UN
CRC, Concluding Observations on UK's second periodic report, para
51, 19 September 2002].
12. The Ministry of Defence had an opportunity
to deal with this matter in the Army Terms of Service Regulations
2007, following the passing of the revising and consolidating
Armed Forces Act 2006. The 2007 Regulations, in force from 1 January
2008, provided for a four-year minimum term of service for all
army recruits, regardless of age on enlistment, thereby meeting
the long expressed concerns of the two Armed Forces Bill Select
Committees and the Committee on the Rights of the Child. However,
in August 2008 the Army Terms of Service (Amendment etc) Regulations
2008 reinstated, with effect from 6 August 2008, the former requirement
that time served by enlisted under-18s up to their 18th birthday
would be an obligatory addition to, rather than part of, the stated
four-year minimum term of service.
13. The MoD has said that the temporary amelioration
of conditions was an oversight that was corrected as soon as it
was noticed. On this, two remarks may be made. First, given the
experience and authority of the legal and civil service personnel
responsible for drafting such regulations, it is reasonable to
conclude that the six-year trap appeared so manifestly unfair,
both on its own merits and in comparison with the conditions for
enlistment in the navy and air force, that it was naturally marked
for writing out. Second, given that it had been written out, albeit
by accident rather than design, it might have been thought reasonable
for the Ministry to reflect that recommendations from two Armed
Forces Bill Select Committees, the Defence Select Committee and
the UN Committee on the Rights of the Child that had waited so
long had at last been implemented, and the credit for that, as
well as the manifest benefit to young people, might as well be
gained. Eventual permanent implementation is inevitable; meanwhile,
there is no evidence that during the seven months and five days
for which the abolition of the six-year trap operated the safety
of the realm was in any way affected.
14. One effect of the process by which the abolition
of the six-year trap was reversed was that the UN Committee on
the Rights of the Child overlooked its mention, without emphasis,
in the middle of a paragraph in section 7 of the 2008 Written
Responses [cited in paragraph 6 above]. The UN CRC, therefore,
in its Concluding Observations in 2008 unwittingly "welcomed"
the abolition of the six-year trap [CRC/OPAC/CO/GBR/1, para 14,
3 October 2008], whereas, had it realised the true position, it
would doubtless have condemned its reinstatement at least as trenchantly
as it had condemned its existence on two previous occasions. Indeed,
it complemented its mistaken welcome by being "concerned
that the new regulations only apply to new recruits from 1 January
2008", and recommending that "all persons who
were below 18 on 1 January 2008 also have the right to convert
their minimum term of service to four years from the first day
of duty".
15. Recommendation 3: that in Section
326 (2) (c) of the Armed Forces Act there be added, after the
words "reserve force", the words, ", provided that
in no case shall a person enlisting under the age of 18 be required
to serve a longer minimum period with a regular force than a person
enlisting over that age on the same engagement".
Right of recruits to give effect to change of
mind
16. For recruits aged under 18 to all three Armed
Forces there is, under the respective terms of service regulations,
a period, from the 29th day after enlisting to the end of the
sixth month after enlisting, to claim what is known as "discharge
as of right". However, as cited by the Duty of Care report,
the Directorate of Operational Capability found that "staff
and instructors applied pressure to recruits to dissuade them
from leaving, as this reflected on success rates and wastage targets."
[Select Committee on Defence, Third Report, 14 March 2005,
para 102] In any case, this arbitrary period does not necessarily
reflect the rapidly changing and developing attitudes of a 16-
or 17-year-old. The Duty of Care report recommended, "that
all Services adopt procedures that allow recruits who express
a wish to leave training an opportunity to leave their training
establishment and contemplate further before making a firm decision
on their future." [Select Committee on Defence, Third
Report, 14 March 2005, para 105] The government's bland response
was, "The Services acknowledge the merit of timely and
pragmatic management of those who desire to leave and seek to
apply common sense and understanding to those individuals."
[Government's Response to the Defence Committee's Report on Duty
of Care, July 2005, para 30]
17. The unsatisfactory nature of the limited
"window" for discharge as of right is further demonstrated
by a provision, for recruits whose period for discharge as of
right has expired, nevertheless to be discharged if, before reaching
the age of 18 years three months, they have expressed "clear
unhappiness" at continuing in the Armed forces. This arrangement
for "unhappy juniors", however, is informal and subjective,
not guaranteed as a right, even though it has been stated that
it is "extremely rare" for such an individual to be
refused permission to leave. Certainly, the question reported
by a witness to the Defence Committee that he put to the Commanding
Officer of Deepcut about a boy who kept running away, only to
be put on a charge each time he was brought back, "If
he is no good, just send him away from the Army. Why are you doing
this?" remains unanswered. [Select Committee on Defence,
Third Report, 14 March 2005, para 103] If the "unhappy juniors"
provision is really as simple as implied, it needs to be asked
why it is not straightforwardly converted to a legal right by
amending the relevant terms of service regulations to extend up
to the 18th birthday, for all under-18 recruits, the "window"
for claiming discharge as of right. The UNCRC in its Concluding
Observations in 2008 "recommends that the State party
review the requirements for, and expand the exercise of, the 'discharge
as of right' for child recruits". [CRC/OPAC/CO/GBR/1,
para 17, 3 October 2008]
18. The moral force of such an amendment has
effectively been admitted in the UK's First Report to the UN Committee
on the Rights of the Child, 2007 [para 32], claiming, "Service
personnel under 18 years have the right to discharge at any time
before their 18th birthday provided they give the required notice".
This was apparently confirmed as recently as 10 January 2011,
when Andrew Robathan, Parliamentary Under-Secretary (Minister
for Defence Personnel, Welfare and Veterans), in a Written Answer
to Caroline Lucas MP, averred, "Service personnel under
18 years who have completed 28 days service have the right of
discharge at any time before the 18th birthday, provided
they give the required 14 days notice". In fact, such
a right, purportedly extending well beyond the discharge as of
right discussed in para 16 above, does not exist. The misstatements
were compounded in the Written Responses to the Committee on the
Rights of the Child, 2008 (section 7) by the comment, "there
are adequate safeguards in place to ensure that young servicemen
or women under the age of 18 years may, if they wish, leave the
Services before committing to adult service". The comment
not only implies a reinforcement of the earlier purported extension
of the discharge as of right up to the 18th birthday, but also
the phrase "before committing to adult service" suggests
some formal procedure for "committing to adult service",
apparently around the 18th birthday. There is no such procedure,
the binding commitment to adult service being incorporated in
an under-18's original enlistment, at whatever age that takes
place. The Parliamentary Under-Secretary also compounded his misstatement
on 10 January 2011 with the comment, "These safeguards
help to ensure that young servicemen and women under the age of
18 years may, if they wish, leave the armed forces, and that any
commitment to service is both considered and voluntary."
The comment does not go as far as that contained in the Written
Responses to the CRC, but is certainly misleading. The significance
of these misstatements for the clarity and reasonableness of the
procedures relating to under-18s in the Armed Forces is discussed
in para 21 below.
19. Recommendation 4: that the Select
Committee urge amendment of the terms of service regulations of
all the Armed Forces to provide for the time for giving notice
to claim discharge as of right to be extended up to the 18th birthday
or six months after the date of enlistment, whichever is the later.
Understanding what is involved
20. The Duty of Care report stated: "We
have considered a range of written material provided to recruits
… In general the pamphlets and brochures are clear and understandable.
However, since a significant proportion of those applying to the
Armed Forces, and the Army in particular, have poor basic skills,
they may not assimilate all the information available, particularly
that related to duty of care issues." [Select Committee
on Defence, Third Report, 14 March 2005, para 53] The significance
of the reference to poor basic skills is illustrated elsewhere,
it being reported that "MoD's figures suggest 50 per cent
of all recruits entering the Services have literacy or numeracy
skills … equivalent of those expected of an 11-year-old."
[Select Committee on Defence, Third Report, 14 March 2005, para
83]
21. The problem of clear understanding has particular
relevance to the Enlistment Paper given to applicants proposing
to enlist, setting out the precise terms and conditions of being
a Member of the Armed Forces. Amnesty International has expressed
concern that "the Notice Paper [former title of the
Enlistment Paper] is written in a complex and obscure manner,
which may not be readily understood by the parent/guardian or
the [young person]. The commitment to serve in the armed forces
has serious consequences. The onus should be on the armed forces
to explain the commitment fully, yet in an accessible and clear
way." [AI, UK Under-18s: Report on Recruitment and Deployment
of Child Soldiers, 2000] It needs to be borne in mind that the
parents of young people with poor educational achievement may
themselves have poor literacy skills, and therefore the undertaking
given by a parent on the consent form that he/she has read and
understood the Enlistment Paper, as well as the young applicant,
is by no means as reassuring as might appear. If, as has been
shown, the legal and civil service drafters of the Army Terms
of Service Regulations 2007 could misunderstand what was required,
and if, as has also been shown, the compilers of the UK First
Report to the Committee on the Rights of the Child in 2007 could
misunderstand the various terms of service regulations themselves—a
misunderstanding repeated almost word for word by the Minister
for Defence Personnel and Welfare in a House of Commons answer
to a Member of Parliament—what hope is there for clear understanding
of military service commitment by young people known to be lacking
in literacy and yet targeted as suitable for diverting them from
further education?
22. The UN Committee on the Rights of the Child,
in its Concluding Observations, 2008, was concerned that "parents
… are only involved at the final stage of the recruitment
process to give their consent" and recommended "that
the State party … ensure that parents are included from the
outset and during the entire process of recruitment and enlistment".
This is certainly borne out by anecdotal evidence of parents
of unhappy under-18s who acknowledge that they never realised
the full extent of the commitment to which they had signed up
their son or daughter. "I thought we could we buy him out"
is one common misunderstanding.
23. Recommendation 5: that the Select
Committee urge amendment of the Armed Forces (Enlistment) Regulations
to provide that, in the case of enlistment of a person under age
18, in addition to written parental consent, a parent, guardian
(or in certain cases some other responsible adult) must attend
at least one interview with the recruiting officer.
Deployment
24. The Peace Pledge Union, having urged UK participation
in the Optional Protocol, is concerned by the UK's additional
"interpretative declaration", originally made on signature
but confirmed on ratification, that, although the UK recognised
the Protocol's commitment not to send under-18s to take a direct
part in hostilities, it would not exclude the possibility of such
deployment where "there is a genuine military need",
or "it is not practicable to withdraw such persons before
deployment", or "to do so would undermine the
operational effectiveness of their ship or unit". The
UN Committee on the Rights of the Child, in its Concluding Observations
on the UK in 2008 [CRC/OPAC/CO/GBR/1, 3 October 2008], was "concerned
at the wide scope of the State party's interpretative declaration
… according to which … children may still be potentially
deployed to areas of hostilities and involved in hostilities",
and recommended "that the State party review this
interpretative declaration to ensure that its policy and practice
are in conformity of article 1 of the Protocol and that children
are not exposed to the risk of taking direct part in hostilities".
It is significant that the UK is the only party to the Protocol
that has made such a declaration—the UK has thus made itself
a pariah. If withdrawing under-18s from a unit is potentially
a major problem, that is all the more reason for not recruiting
them in the first place.
25. Recommendation 6: that the Select
Committee urge the MoD to withdraw its interpretative declaration
on potential deployment of under-18s.
Armed Guard Duty
26. The Duty of Care report expressed concern
about apparent lack of supervision of weapons handling by under-18s,
and in particular their placement on armed guard duty. [Select
Committee on Defence, Third Report, 14 March 2005, paras 326,
327] The UN Committee on the Rights of the Child, in its Concluding
Observations on the UK in 2008, "regrets that armed guarding
of UK military establishments may be undertaken by military personnel
from the age of 17 years, and that this activity entails, as a
minimum, weapon handling training and assessment, as well guidance
on the use of force and the rules of engagement. The Committee
encourages that the handling and use of firearms is abolished
for all children in line with the spirit of the Protocol".
[CRC/OPAC/CO/GBR/1, paras 26-27, 3 October 2008] The Peace Pledge
Union shares this concern.
27. Recommendation 7: that the Select
Committee urge the MoD to prohibit the placing of under-18s on
armed guard duty.
28. The recommendations collectively exemplify
the increasingly widely accepted maxim that children and young
persons have in no place in war or war preparations, either as
participants or as victims. The view was supported by the Joint
Committee of the House of Lords and House of Commons on Human
Rights in its report on Children's Rights: "We recommend
that the UK adopt a plan of action for implementing the Optional
Protocol, including [the UN Committee's extensive set of recommendations]
fully … , together with a clear timetable for doing so".
[25th Report of Session 2008-09, HL 157, HC 318, 20 November
2009]
CONSCIENTIOUS OBJECTION
29. The Peace Pledge Union is recognised by the
Ministry of Defence as having an interest in sittings of the Advisory
Committee on Conscientious Objectors to hear applications by any
member of the Armed Forces, of all ranks and rates, regulars and
reserves, for discharge on the grounds of having developed, since
commissioning or enlistment, a conscientious objection to further
service.
30. The principle of the procedure was established
during the Second World War, when it became clear that, apart
from men and women who claimed conscientious exemption from conscript
military service ab initio, there were others who originally
accepted call-up but then changed their minds on conscience grounds,
and others again who had enlisted as regulars but also felt unable
conscientiously to continue. For these two latter groups the Appellate
Tribunal, set up to hear cases of people in the first group aggrieved
by the decision of their Local Tribunal, was empowered to sit
as an Advisory Tribunal to hear applications for discharge on
conscientious grounds and advise the Admiralty, War Office or
Air Ministry whether an applicant should be discharged. The convention
was established that the advice would always be accepted, and,
if discharge were recommended, it would follow as quickly as protocols
would allow.
31. This procedure continued after the Second
World War until the abolition of National Service in the early
1960s, when the Appellate Tribunal was wound up. An unsatisfactory
period followed, during which there was no clear procedure for
dealing with cases of conscientious objection by regulars. In
1970, however, after representations by bodies such as the Peace
Pledge Union and the National Council for Civil Liberties—the
late Fenner, Lord Brockway raised the matter in the House of Lords
on their behalf on 17 March 1967—the unified Ministry of
Defence established a new procedure modelled on the old.
32. An application by any member of the Armed
Forces for a discharge on conscientious grounds is first submitted
in writing to the person's commanding officer, who forwards it
with relevant observations, including the report of an interview,
to the personnel or administration level of the chain of command.
If the personnel level accepts the application, the person is
discharged forthwith. If the application is rejected, the applicant
is informed of the right to appeal to the Advisory Committee on
Conscientious Objectors (ACCO).
33. ACCO comprises a Chairperson and Deputy Chair,
both senior counsel, and four lay members, all appointed by the
Lord Chancellor. For a hearing a panel comprises one of the Chairpersons
and two lay members. Hearings are held in public on premises away
from MoD property. The applicant is invited to present, and answer
questions on, his/her case in a relatively informal way, and to
bring witnesses and be supported by a friend or legal representative,
if desired. The Committee's conclusions are presented in the form
of advice to the Secretary of State for Defence, and, if the advice
is for a discharge, that follows as expeditiously as possible.
34. During the Second World War and the post-war
conscription period the Ministry of Labour and National Service
recognised the Central Board for Conscientious Objectors (CBCO)
as having a legitimate interest in the matter and an expectation
to be informed of developments and procedures. That recognition
was continued, so far as ACCO was concerned, until CBCO was wound
up in 1988, when the Peace Pledge Union was recognised by the
Ministry of Defence as the successor body for that purpose.
Rights hidden
35. There remains, nevertheless, a problem. In
a memorandum to the 2006 Armed Forces Bill Select Committee the
MoD averred, "these procedures are well established [as]
Departmental policy for many years … We therefore see
no need for them to be included in primary legislation".
Such a claim ignored the fact that very few people within the
Armed Forces are aware that the procedure exists.
36. It is not simply that the procedure is not
included in primary legislation; it is not even mentioned, let
alone included, in secondary legislation, such as the Terms of
Service Regulations for the various armed forces or the Armed
Forces (Enlistment) Regulations, all Statutory Instruments subject
to Parliamentary scrutiny. Although the procedures for the three
Armed Forces are broadly similar, they are contained in differing
types of document within differing administrative protocols.
37. The RN document, Application for Discharge
on Grounds of Conscientious Objection: is in Personnel, Legal,
Administrative General Orders (Royal Navy), chapter 08.01 (Sponsor:
Fleet DCS Law).
38. The Army document, Retirement or Discharge
on Grounds of Conscience, is in Army General and Administrative
Instructions, Vol 5, Instruction 006 (D/AG/M/66/02), with internal
reference to Queen's Regulations for the Army, para 9.402.
39. The RAF document, Procedure for Dealing
With Conscientious Objectors within the Royal Air Force, is
free-standing Leaflet 113, referenced to AP [? Administrative
Procedures] 3392, Vol 5, with internal reference to Queen's Regulations
for the RAF, para 607.11.
40. None of these documents is ordinarily or
easily available to serving Members of the Armed Forces, and it
is evident that they are not normally known even to NCOs and officers.
It is also to be noted that in all three Armed Forces a discharge
resulting from recognition of conscientious objection is classified
as a compassionate discharge, so that no figures normally appear
of discharges by reason of conscientious objection.
41. In 2004 the High Court considered the appeal
of Mohisin Khan, an air force reservist who had gone absent without
leave rather than go to Iraq to take part in a war he could not
support. He explained that he was unaware of his right to apply
for discharge as a conscientious objector. The court upheld his
court-martial conviction, but noted, significantly, "It
is, however, true that the call-out materials in this case, like
the 1997 [terms of service] regulations, do not mention conscientious
objection expressly. In that respect, it would seem that the information
provided to this recalled reservist could be improved".
After more than six years no such improvement, either in the regulations
or the call-out papers, has been made.
42. In 2010 Michael Lyons, a Leading Medical
Assistant in the navy, began to have scruples over a pending deployment
to Afghanistan, where he concluded that the killing of civilians
by coalition forces was contrary to his conscience, particularly
in view of his purposeful choice of a paramedical career. He had
never in his naval service been told about his right to object
to war if he disagreed with it strongly enough, and his chain
of command were unsure about what to do with him once he had begun
to raise objections; when he requested non-combatant duties he
was warned of the offence of disobeying orders. He eventually
stumbled across the voluntary advice service At Ease by googling
some question like, "How do you not go to war if you think
it's wrong?" Through At Ease he became aware of the conscientious
objection procedure, and formally applied for discharge. His application
was under internal consideration for some three months before
he was informed of its rejection, but without any stated reasons.
Although he was told of his right to appeal to ACCO, the chain
of command were "reluctant to let me put it in there and
then, even though it had taken so long to get an answer"
to his original application. Only by his persistence, was LMA
Lyons able to submit his appeal and eventually have an ACCO hearing
on 17 December 2010. The hearing resulted in the Committee announcing
its advice to the Secretary of State to dismiss the appeal, for
the reason that it was held to derive from a political rather
than a conscientious or moral objection. More than a month later
he had not been formally notified of the Secretary of State's
actual acceptance of ACCO's advice. Moreover, since then he has
been charged with disobedience for formally requesting transfer
to non-combatant duties, pending resolution of his application
for conscientious objection discharge, and then refusing to draw
a rifle from the armoury preparatory to attending a course of
rifle training; he is awaiting court-martial, expected in March
2011.
43. A further case is that of a time expired
short-service army officer, but still with a reserve obligation,
who began to have scruples over the UK's ventures in Iraq and
Afghanistan. He found the PPU website and contacted us as to his
rights. Although a graduate, he responded to a detailed exposition
of the appropriate procedure with the comment, "I am in awe
that someone (other than a regimental adjutant) has been able
to demystify the mighty Queen's Regs!" Having submitted his
application for discharge as a conscientious objector, he waited
several months before being told that he was being allowed to
"relinquish" his commission, with no mention, one way
or the other, of his application as a conscientious objector.
Since his ultimate purpose of renouncing his military commitment
would thereby be achieved, he reluctantly accepted this, although
aware that his stand as a conscientious objector would never be
recorded.
44. The three cases of Khan, Lyons and the army
officer (whose name is not in the public domain and therefore
remains confidential), as it happens from the three different
Armed Forces, demonstrate that the procedure for conscientious
discharge is by no means as well known and effective as the MoD
submission to the 2006 Select Committee suggested. Although there
have been six discharges on conscience grounds since 2001 (information
disclosed by the MoD under the Freedom of Information Act), because
of the lack of knowledge of the procedure, and the evidence, in
Lyons' case, of pressure not to appeal to ACCO, and the fact that
ACCO's hearing in 2010 was the first since 1996, the possibility
remains of other Armed Forces Personnel who may have suffered
in one way or another because they never knew of their right to
apply as a conscientious objector, or who were dissuaded from
pushing on to an appeal to ACCO. The army officer's case also
shows that some discharges actually arising from conscientious
objection are disguised as other forms of discharge, and therefore
will not be included even when conscientious objection statistics
are reluctantly divulged under Freedom of Information requests.
45. The Peace Pledge Union welcomes one development
with regard to ACCO, namely the decision of the Committee who
heard Lyons' case to publish their reasoned judgement. A decision
had been made in the late 1950s that all conscientious objection
tribunals should announce reasoned judgements, but abolition of
conscription forestalled proper implementation of the decision.
The lack of a record of decided cases may have contributed to
the 2010 ACCO apparently misdirecting themselves that they could
not accept what they described as a "political" objection;
such an objection has been recognised as acceptable since at least
1941, provided that it "was so deeply held that it became
a matter of inner conviction as to right and wrong and not merely
an opinion". [UK section of a Study on the Legal Position
of Conscientious Objectors in the Member States of the Council
of Europe, published by the Council of Europe, Doc 2170, Appendix,
23 January1967, and never disputed by any UK government since
then.]
46. Just as the MoD, in the Explanatory Memorandum
on the Armed Forces (Enlistment) Regulations 2009 recognised that
"Making the regulations …by statutory instrument ensures
not only that they are properly scrutinised, but also that they
are published and that servicemen [sic] may easily ascertain
their rights and obligations", so it would be beneficial
to all if the core of the three documents named in paragraphs
28-30 above were codified into one and promulgated as a statutory
instrument, leaving minor administrative details for the third
level procedural manuals. The proposed Armed Forces (Discharge
as Conscientious Objector) Regulations would necessarily be founded
upon statute.
47. The need for such statutory provision is
emphasised by Recommendation CM/Rec(2010)4 of the Council of Ministers
of the Member States of the Council of Europe, on human rights
of Members of the Armed Forces, 24 February 2010, that "Professional
members of the armed forces should be able to leave the armed
forces for reasons of conscience … requests should be examined
within a reasonable period of time; … pending … examination
… they should be transferred to non-combat duties where possible
… Members of the armed forces should be informed of their
rights [as to claiming conscientious discharge] and the
procedures available to exercise them". Although this
came after Khan's and the army officer's case, the recommendation
was clearly ignored in Lyons' case.
48. Recommendation 8: that in Section
328 of the Armed Forces Act there be inserted in subsection (2)
(a), after the word: "discharge", the words ",
including on the grounds of having developed a conscientious objection
to further service,".
49. Such recommendation takes advantage of the
attempt in the Act to consolidate and unify the law on many aspects
of Armed Forces procedure; also, for the first time it would bring
into the public arena the established, but almost entirely concealed,
provision for conscientious objection by regular Armed Forces
Personnel. If an officer and graduate finds difficulty in wading
through regulations the problems of Khan, Lyons and others become
even more obvious and urgent.
50. The UK first made provision for conscientious
objection to part-time military service as far back as the Militia
Act 1757, and was the first country to legislate, in the Military
Service Act 1916, for conscientious objection simultaneously with
full-time conscription. In an era of open government and import
of human rights into domestic law it is time to bring recognition
of conscientious objection to continued regular or reserve service
out of the shadow of obscure documentation and into the daylight
of the statute book. Almost a century on from 1916, it is time
for a new beginning.
February 2011
|
