The Armed Forces Bill

AFB 12

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.


1. The Peace Pledge Union, an independent secular pacifist association, has campaigned for more than forty 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 (1939-1988), and now as a successor body, is an established authority on conscientious objection.


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.


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]


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