The Armed Forces Bill

AFB 13

Written evidence from ForcesWatch

A. INTRODUCTION

1. ForcesWatch is a network of organisations and individuals concerned with ethical issues relating to the Armed Forces. As the Armed Forces Act is the primary legislation that provides the basis for military law in the UK, we are raising our concerns relating to the human rights of service personnel with the Armed Forces Bill Committee. We make a number of recommendations to bring the UK into line with current international standards and improve terms of service.

Complying with international standards on the minimum age of recruitment

2. The UK is the only country in Europe and the only permanent member of the UN Security Council to recruit 16 year olds into its Armed Forces and is one of fewer than 20 countries in the world which recruit from the age of 16 years. Those who sign on when 16 or 17 years old must serve until they are 22.

3. Since the Armed Forces Act 2006, the recruitment of minors has been criticised by the United Nations Committee on the Rights of the Child, Parliament’s own Joint Committee on Human Rights, and children’s charities amongst others. The Armed Forces Bill is an opportunity to phase out the recruitment of people under 18 in line with international standards, while introducing greater protection for 16- and 17-year-old personnel in the meantime.

Concerns over terms of service

4. Employment in the Armed Forces is unique in placing severe restrictions on rights and freedoms that are available to the rest of the UK population. The Armed Forces are also the only employers in the UK who legally require their employees to commit themselves for several years, with the risk of a criminal conviction if they try to leave sooner.

5. This situation is all the more worrying given that many recruits are very young. There is also evidence that many personnel are unclear about the length of their commitment and their rights to leave and that the information they receive can be misleading. Terms of service need to be less restrictive and more transparent.

Upholding the right to conscientious objection

6. Life in the Armed Forces can have a significant effect on the outlook and attitudes of those who undertake it. Exposure to warfare can radically alter a person’s values and beliefs.

7. While the Armed Forces recognise the right of serving personnel to be discharged if they develop a conscientious objection, this right is not set out clearly in legislation, is not mentioned in the terms of service and many, perhaps most, forces personnel are unaware of it. The system for registering a conscientious objection needs to be far easier to access and the different types of conscientious objection need to be fully recognised.

Political rights of serving personnel

8. A number of fundamental political freedoms can not be enjoyed by those in the Armed Forces including the right to join a trade union or a political organisation, to speak to the media or in public without permission or to stand for elected office. This is out of step with the US and much of Europe. Personnel in the Armed Forces should not be exempt from rights granted to all others under the Human Rights Act.

B. OUR CONCERNS

Recruiting minors

9. People under 18 are not legally recognised as adults. They cannot vote or, in most cases, sign contracts. They are barred from buying the most violent films and video games. For minors to join the Armed Forces, they must have parental consent. Yet, a contract which they signed as a minor will legally bind them for up to 6 years.

10. Independent research has highlighted many areas in which the recruitment of young people into the Armed Forces is not characterised by transparency. Not only is recruitment material often less than balanced about the risks, obligations and dilemmas involved but after enlistment there is considerable misunderstanding by those recruited as to their rights. The research concludes that, as a result, many young people are not making an ‘informed choice’ to join the army [1] .

11. The UK is the only country in Europe which routinely recruits minors into the Armed Forces. Worldwide, 134 countries have prohibited the practice. 37 countries recruit from the age of 17. The UK is one of only 20 countries in the world to recruit 16-year-olds. These countries include no other member of NATO and no other permanent member of the UN Security Council. But they do include several regimes with little respect for human rights, including Iran, Zimbabwe and North Korea [2] .

Restrictive and unequal minimum length of service

12. Those recruited under 18 must serve up to 2 years more than those who join as adults as they are committed for four years from their 18th birthday to remaining in the forces until turning 22. On turning 18, those already serving are not given the opportunity to reconsider their commitment as adults.

13. In 1999 the army increased its minimum length of service from 3 to 4 years, or up to 6 years for under 18s. If they wish to leave they then have to give a year’s notice (in the army or navy) or 18 months (in the air force). Recruits may also be required to serve for longer than the usual period if they undertake education or training other than their initial training.

14. On leaving full time service personnel are then transferred into the reserves which usually lasts for six years further extending the commitment someone must make even if they wish to leave.

Limited discharge as of right

15. Recruits have a discharge as of right (DAOR) at certain points in their early days in the forces. This allows them to leave by giving fourteen days' notice. For those aged over 18 in the army the DAOR is after 28 days' service, but before three months' service. For those under 18 in the army and all those in the Navy and air force, the DAOR period is after 28 days' service but before six months' service [3] :

16. After the period of six months is over, an 'unhappy junior' in the Armed Forces may be discharged at the discretion of their commanding officer. However, this is not a legal right and thus is not equivalent to DAOR.

17. For most recruits, their entitlement to DAOR elapses during the period of training and preparation and before they have had any experience of the frontline.

Calls for change to be made

18. Since the Armed Forces Act 2006, two significant authorities on children’s rights have called on the UK to reconsider its policy of recruiting under 18s into the Armed Forces. In 2008, the UN Committee on the Rights of the Child asked that the UK "reconsider its active policy of recruitment of children into the Armed Forces and ensure that it does not occur in a manner which specifically targets ethnic minorities and children of low-income families". It also recommends that the UK Government review the limited discharge rights for child soldiers and "that parents are included from the outset and during the entire process of recruitment and enlistment." [4] In 2009, the Joint Human Rights Committee called on the UK Government to raise the minimum age to 18. In their report on Children's Rights, they recommend that the "UK adopt a plan of action for implementing the Optional Protocol, including these recommendations, fully in the UK, together with a clear timetable for doing so." [5]

19. These calls echo the recommendations made in 2005 by the Defence Select Committee, which recommended that the Ministry of Defence look into raising the minimum recruitment age, and previous Armed Forces Bill committees which addressed the issue of the minimum age of recruitment [6] . Both the 1991 and 1996 Armed Forces Bill Committee reports sought answers to questions relating to the recruitment of under 18s and their terms and conditions, particularly difference in the length of service and discharge as of right, and made recommendations requesting proposals for change.

20. As far as we are aware, the MoD have not carried out a feasibility study on phasing out the recruitment of under 18s, despite the requests noted above.

Confusion over terms of service for recruits

21. There is evidence that many personnel, and their parents, are unclear about the minimum commitment and rights to discharge. The SSAFA and At Ease helplines report that the most common questions raised by callers relate to their length of service, with frequent confusion about the conditions [7] . The researcher David Gee found in 2007 that a number of parents of 16- and 17-year-old personnel believed that they would be able to choose whether to continue when they reached 18. This is not the case.

22. Anecdotal evidence suggests that recruitment officers have told young recruits and their families that if the recruit is unhappy they will be allowed to leave. Although there is a provision for ‘unhappy minors’ to request discharge from their commanding officer, there is no guarantee that this will be granted and further evidence from those requesting advice from At Ease is that discharge requests are often refused, although statistics on refusals are not kept.

23. The Notice Paper, which recruits sign on joining the forces, sets out their terms and conditions in language that is often unclear and technical. In 2008 the wording of the army’s Notice Paper was improved but changes are still needed to make it reasonably clear. Research by the MoD has found that fifty per cent of people joining the army at non-officer level have a reading age at or below that of an average eleven-year-old [8] , meaning many will find it particularly difficult to understand the Notice Paper.

24. In 2008, the Ministry of Defence (MoD) made a mistake with the papers which new recruits signed, allowing those under 18 committed to a minimum of four years instead of committing until their 22nd birthday. The MoD rectified their mistake a few months later and later recruits had to sign up to up to 6 years' service once more. This error means that a number of personnel will soon be leaving below the age of 22, while their colleagues who signed up just before or just after them will have to wait for up to two years longer.

Confusion over terms of service in government

25. There is also confusion at Government level. In January 2011, Defence Minister Andrew Robathan, told Parliament that "service personnel under 18 years who have completed 28 days of service have the right to discharge at any time before their 18th birthday provided they give the required 14 days’ notice" [9] . This is not the case. It contradicts the Armed Forces regulations, which state that the right to discharge elapses after six months’ service.

26. A very similar erroneous statement was made in the UK report to the UN Committee on the Rights of the Child that, "service personnel under 18 years have the right to discharge at any time before their eighteenth birthday provided they give the required notice." [10]

27. These errors suggest that the complexity of the situation is a serious cause of confusion all round. A more just and clear system would be for young people to indeed have a right to discharge until their 18th birthday.

Lack of awareness of the right to conscientious objection

28. Although each member of the Armed Forces has a right to conscientious objection, this right is not mentioned in either primary or secondary legislation relating to the Armed Forces and, of the three services, only the army sets out the procedure for registering a conscientious objection in its Queen’s Regulations [11] . Procedure for discharge due to conscientious objection is different for each service and difficult to access. The regulations governing conscientious objection in the Navy and RAF have only become apparent by using Freedom of Information requests [12] . Finally, no reference is made to this right in the Notice Paper which is signed on joining the forces.

29. It is very likely that most forces personnel are unaware of their right to discharge if they develop a conscientious objection. Discharges due to conscientious objection are rare, with only six granted between 2001 and 2010 [13] but there is evidence that the small number of cases recorded by the MoD does not reflect the true number of those who act on their ethical objections. There is anecdotal evidence of personnel with ethical problems being encouraged to suppress their feelings and carry on. The forces helpline At Ease reports that at least some who raise a conscientious objection have been discharged on other grounds such as for "service no longer required" or "unfit for further service" [14] .

30. More worryingly, there is evidence to suggest that serving personnel are going absent without leave on the basis of ethical issues [15] . In these cases the procedure for registering a conscientious objection is not safeguarding the rights of those in the Armed Forces and, through lack of awareness, some could end up facing court martial and a criminal conviction.

31. In 2004, the High Court considered the appeal of Mohisin Khan, an air force reservist who had gone absent without leave rather than fight in Iraq in a war in which he did not believe. He explained that he was unaware of his right to apply for discharge due to conscientious objection. The court upheld his conviction, but declared, "It is, however, true that the call-out materials in this case, like the 1997 regulations, do not mention conscientious objection expressly. In that respect, it would seem that the information provided to the recalled reservist could be improved" [16] .

Treatment during the process of requesting a discharge on the grounds of conscientious objection

32. While an application for discharge is being considered, the applicant remains a member of the forces and is subject to military discipline. He/she can therefore be punished for refusing to obey orders for reasons of conscience. This contradicts a recommendation by the Council of Europe Committee of Ministers that personnel applying for discharge due to conscientious objection should be removed to non-combatant duty while the application is considered [17] .

Concern over the dismissal of ‘political’ objections

33. In December 2010, The Advisory Committee on Conscientious Objectors (ACCO) met for the first time since 1996 (which is in itself an indication of the difficulties inherent within the system). They heard an application for discharge from Michael Lyons, a medic in the Royal Navy who was due to be deployed to Afghanistan in 2011.

34. Lyons had developed an ethical objection to participating in the war in Afghanistan after having been told at a medical briefing not to waste resources by treating civilians and after hearing that the majority of casualties were civilians. Subsequent research into the reasons for going to war and the number of Afghan civilian casualties had led him to believe the war was wrong. Lyons requested an appeal to be held by ACCO who advised the Defence Secretary to reject Lyons’ request to be discharged [18] . In giving their decision, ACCO stated that they considered Lyons’ objection to be "political" rather than "moral".

35. It is not at all clear that objections can easily be split into these categories. In the case of Michael Lyons, why has an objection based on medical ethics and to the killing of civilians case been dismissed as ‘political’ rather than as a matter of conscience? How does a deeply help ‘political’ conviction differ from one based on morals or religion?

36. A study presented to the Council of Europe as long ago as 1967 stated that "in principle all grounds of conscience resulting in refusal to do military service are respected [in the UK]". It noted that "In the UK objections to military service in specific circumstances – so called political objections – have been allowed regularly since 1941" [19] . This assertion appears never to have been disputed by any UK Government.

37. The study quotes a staff member of the Central Board for Conscientious Objectors, that political objectors were recognised as "the objection was so deeply held that it became a matter of inner conviction as to right and wrong and not merely an opinion."

38. ACCO’s have clearly failed to apply the test of "inner conviction as to right and wrong". This suggests confusion on the part of the authorities about the legal situation regarding conscientious objection.

Restriction of political rights

39. Members of the Armed Forces face considerable restrictions on political freedoms that are taken for granted by most of the population. They are not permitted to join a trade union or a political organisation, to speak to the media or in public without permission or to stand for elected office.

40. Members of the Armed Forces can be criminalised, and even imprisoned, for relatively minor acts of personal expression. The political restrictions imposed on UK personnel are more extreme than those that govern the Armed Forces in the US and in many EU member countries.

41. The Council of Europe Committee of Ministers has recommended that members of the Armed Forces should have freedom of expression and freedom of peaceful assembly and association with others (complying with Articles 10 and 11 of the European Convention on Human Rights respectively) and the right to stand for election to political office [20] .

Dissatisfaction in the Armed Forces

42. An inability to leave the forces legally before several years have elapsed almost certainly contributes to the number of personnel going absent without leave (AWOL). In the last 10 years, between 2000 and 3000 serving personnel have gone AWOL each year, mainly from the army [21] . At Ease also report that some who wish to leave resort to self harm, taking drugs to get caught and suicide attempts.

43. The Armed Forces Continuous Attitude Survey reports that, across the services, only 32% felt valued in the service and only 51% agreed with the statement ‘I am reluctant to leave’ [22] . 20% were dissatisfied or very dissatisfied with their job – with 189,420 members of the Armed Forces in all ranks, that is nearly 38,000 servicemen and women who say they are not satisfied with their job [23] . It is therefore unsurprising that many try to find more immediate ways of leaving than those legally available to them.

C. RECOMMENDATIONS

Addressing concerns about the recruitment of minors

In order to bring the UK into line with international standards regarding under 18s in the Armed Forces, to provide greater protection for the rights of young people, ForcesWatch recommends:

· implementing a phasing out of the recruitment of minors into the Armed Forces;

· in the meantime, minors should be given Discharge As Of Right at any point until they turn 18;

· until recruitment of minors is phased out completely, those who enlist under 18 should be given the opportunity to reconsider their commitment to the Armed Forces on turning 18;

· the minimum length of service should be the same for all personnel regardless of the age they joined.

Improving terms of service for all personnel

In order for people who find they are dissatisfied with life in the services to leave within a reasonable timeframe, ForcesWatch recommends:

· an overall reduction in the minimum length of service;

· a reduction to the required notice period to 6 months in all three branches of the forces;

· bring the period for discharge as of right for adults serving in the army in line with over 18s in the Navy and RAF;

In order to allow recruits and their families to make an informed choice about enlistment:

· the terms of service should be simplified so every recruit is clear about the commitment involved;

· the length of service should be unified for all three services to help avoid confusion;

Allowing Armed Forces personnel to benefit from human rights legislation:

· A commitment in line with the Council of Europe recommendations to improve freedom of expression and association for members of the forces.

Upholding the right to conscientious objection

ForcesWatch recommends that:

· the right to conscientious objection, and the basic procedures for applying for discharge, should be unified across the three forces and set down clearly in primary legislation (the Armed Forces Bill);

· the Notice Paper should state clearly that there is a right to discharge due to conscientious objection;

· information on conscientious objection should be freely available to all members of the Armed Forces. It should be mentioned in appropriate literature;

· ethical concerns should be formally treated as conscientious objection, and recorded as such, whether or not the term "conscientious objection" is used by the person concerned;

· people registering conscientious objection should be suspended from duty while the application is considered;

· objections, where seen to be based on political reasons, should be viewed as a matter of inner conviction as to right or wrong, rather than merely as an opinion.

14 February 2011


[1]

[1] NOTES

[1] . See David Gee, Informed Choice: Armed Forces Recruitment Practice in the UK , 2007 http://www.informedchoice.org.uk

[2] . Information supplied by the Coalition to Stop the Use of Child Soldiers - http://www.child-soldiers.org/regions/country?id=225

[3] . Terms of Service Regulations: http://www.legislation.gov.uk/

[4] . UN Committee on the Rights of the Child, Concluding Observations on the Initial Report of the United Kingdom of Great Britain and Northern Ireland under the Optional Protocol on the Involvement of Children in Armed Conflict (UN Doc: CRC/C/OPAC/GBR/CO/1) 2008, para.13.

[5] . Joint Committee on Human Rights report: Children's Rights , 2009

[6] . House of Commons Defence Committee report: Duty of Care , 2005

[7] . See David Gee , Informed Choice: Armed Forces Recruitment Practice in the UK , 2007 http://www.informedchoice.org.uk

[8] . Analysis of socio-economic and educational background of non-officer recruits , submitted as written evidence to House of Commons Defence Committee Duty of Care, 2004-05, Volume II, Ev255

[9] . Hansard, 10 January 2011 http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110110/tex

[10] . Consideration of reports submitted by States Parities under article 8, paragraph 1, of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict: UK . 2007 http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.OPAC.GBR.1.pdf

[11] . The Armed Forces Act 2006 has no mention of conscientious objection. Terms of Service Regulations for the Royal Navy, Royal Marines, Army and Royal Air Forces, (Statutory Instruments) do not mention conscientious objection. The Queen’s Regulations for the Royal Navy has no mention of conscientious objection; details can only be found in administrative guidelines. The Queen’s Regulations for the Army sets out the procedure for conscientious objection in full. The Queen’s Regulations for the RAF references an administrative leaflet about conscientious objection but mentions no further detail.

[12] . See http://wri-irg.org/news/2007/uk2007-unreport-en.htm

[13] . This information was supplied by the Ministry of Defence under the Freedom of Information Act - http://www.mod.uk/DefenceInternet/FreedomOfInformation/ConscientiousObjectors20012010.htm

[14] . See David Gee, Informed Choice: Armed Forces Recruitment Practice in the UK , 2007 http://www.informedchoice.org.uk

[15] . At least 1,000 UK soldiers desert , BBC News online, 28 May 2006, http://news.bbc.co.uk/1/hi/uk/5024104.stm

[16] . For details of the case see http://www.bailii.org/ew/cases/EWHC/Admin/2004/2230.html

[17] . Recommendation CM/Rec(2010)4 of the Committee of Ministers to member states on human rights of members of the Armed Forces , February 2010 https://wcd.coe.int/wcd/ViewDoc.jsp?id=1590149&Site=CM .

[18] . Navy medic loses appeal over objections to Afghan duty , Daily Telegraph, 17 December 2010 ( http://www.telegraph.co.uk/news/newstopics/politics/defence/8209595/Navy-medic-loses-appeal-over-objections-to-Afghan-duty.html ) and other reports.

[19] . Study on the Legal Position of Conscientious Objectors in the Member States of the Council of Europe , presented by the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, to the Consultative Assembly of the Council Europe, 23 January 1967 (Doc 2170, Appendix)

[20] . Recommendation CM/Rec(2010)4 of the Committee of Ministers to member states on human rights of members of the Armed Forces , February 2010 https://wcd.coe.int/wcd/ViewDoc.jsp?id=1590149&Site=CM .

[21] . Ministry of Defence AWOL statistics including Prosecution and Sentences for Desertion 2000-2010 http://www.mod.uk/DefenceInternet/FreedomOfInformation/DisclosureLog/AwolStats20002010IncludingProsecutionAndSentencesForDesertion.htm

[22] . Armed Forces Continuous Attitude Survey 2009 http://www.mod.uk/DefenceInternet/FreedomOfInformation/PublicationScheme/SearchPublicationScheme/ResultsForArmedForcesContinuousAttitudeSurveyafcas.htm

[23] . UK Armed Forces - Quarterly Manning Report , 1 July 2010, Defence Analytical Services and Advice http://www.dasa.mod.uk. Figures for ‘dissatisfied’ and ‘very dissatisfied’ are aggregated by the MoD.