My reference: LSM/FOI/120924/29

Background.

“The imperatives of military discipline are clearly of the essence of any effective national defence force, but the entitlement to due process of those subject to military law and discipline is not only a fundamental right but is also in itself a basic component of service morale.” Professor Hilaire McCoubrey, Due Process and British Courts Martial: A Commentary upon the Findlay Case, Journal of Armed Conflict Law 83 (1997), p89.

The military is unique, and it can be difficult to transfer military qualifications to civilian life. Discharged service personnel are deprived of the opportunity to exercise the sole profession for which they have a calling, for which they have been trained and in which they have acquired skills and experience. Under the Army’s internal sanctions regime, the chain of command’s personal whims are imposed upon subordinates through the exercise of arbitrary discretion.

Army General and Administrative Instructions, Chapter 67, known as ‘AGAI 67’ is the Army’s internal sanctions regime. AGAI 67 allows the Army to take action against personnel if, in the opinion of the deciding officer, they have breached the Service Test: ‘Have the actions or behaviour of an individual adversely impacted or are they likely to impact on the efficiency or operational effectiveness of the Service?’, for the purposes of which operational effectiveness is defined as ‘the ability of a unit or formation to function as a cohesive force to perform the operations, missions or actions for which it is organised or designed’. In plain English, the Service Test merely says ‘Is this bad for the Army?’ – a very wide margin for personal opinions and morals. The dangers inherent in this approach are obvious: it confers upon the deciding officer almost complete discretion. Senior Army Legal Services (ALS) officers have noted the dangers of the chain of command’s personal morality being imposed upon subordinates through the exercise of arbitrary discretion; Colonel Nigel Jones, both then and now the senior ALS officer at HQ Army, wrote in Army Legal Services Journal 2007:

‘Boards of Inquiry came and went, and ‘sex, lies and videotape’ continued to preoccupy the wider army in its endless quest for ever tighter Values and Standards, of which we receive daily reminders and about which people continue to go into endless huddles with as many views emerging as hot risottos cooked by Jamie Oliver. The law was never meant to be about morals – or so Public Law at the University of Newcastle upon Tyne had it, albeit many moons ago when that University’s Law Faculty was ‘affiliated’ to the infinitely more prestigious Faculty of Law at Durham. All this goes out of the window at Land Command (now HQ Army) where the message is heavily garnished with moral rectitude and its ever resilient modern military embodiment, AGAI 67. Nodding jostles with ‘real law’ are comparatively few but nevertheless greatly appreciated when they come’.

As Colonel Jones highlights, interpreting AGAI 67 generates, ‘as many views as hot risottos’. As a foreseeable consequence, the law (AGAI 67) is neither intelligible, clear, nor predictable. Therefore, decisions such as whether service personnel lose their livelihood, are resolved not by the application of law, but by the exercise of individual discretion – that of potentially biased and partisan deciding officers, and/or the ‘endless huddles’ of which Colonel Jones warns.

Furthermore, AGAI 67 confers absolute power on the chain of command in decisions such as whether to permit service personnel to challenge the evidence against them in an oral hearing, power over the minutiae of those proceedings, the decision to admit and exclude evidence at will, deny legal representation, refuse witnesses, protect favoured colleagues, senior or otherwise, and comprehensively stack the deck in the chain of command’s favour. In plain English AGAI 67 proceedings are ‘kangaroo courts’ controlled by a small clique of individuals. AGAI 67 can, and has been used to punish junior personnel for making criminal allegations against senior officers, even if those the criminal allegations were supported by evidence collected by the military police – who, under the Army’s rules, subsequently had to hand it over to the mainstream Army for them to do as they wished with. It is, in sum, a “bullies’ charter”, and has been used vigorously by the Army in cases documented by the Employment Appeals Tribunal to harass service personnel for having the temerity to complain about being abused by the chain of command, for example in the case of LBdr Kelly Fletcher: http://j.mp/fletcherEAT

The right to remain in a particular employment sector is a civil right within article 6(1) of the European Convention. Lady Hale: ‘Are we here concerned with a civil right at all? This is uncontroversial…the scope of the concept of civil rights has been greatly expanded from the sorts of dispute which the original framers of the Convention had in mind. But since 1981 it has been held to include the right to practise one's profession… The right to remain in the employment one currently holds must be a civil right.’ Essentially, in ordinary disciplinary proceedings, where all that could be at stake was the loss of a specific job, article 6 of the European Convention on Human Rights will not be engaged. However, where the effect of the proceedings could be to deprive an employee of the right to practise his or her profession, the article would be engaged. This decision affects any public sector employer that enjoys an effective monopoly in the employment market within a particular profession. In, for example, Kulkarni the public sector employer in question was the NHS. The British Army is very clearly even more of a ‘monopoly employer’ in its respective field, than the NHS is in medicine. The applicability of Article 6 must be determined on the basis of the jurisdiction and powers of the tribunal rather than its ultimate decision. The applicable test is whether administrative or disciplinary proceedings ‘would directly determine or exert a substantial influence over’ the decision to terminate someone’s career. Since AGAI 67 includes the power to dismiss someone from the military, or impose sanctions which could lead to that effect, and it lacks any appeal mechanism, it can clearly directly determine or exert a substantial influence over someone’s ability to continue their military career.

Further to s1(1) of the Freedom of Information Act 2000:

Does Article 6 of the European Convention of Human Rights (the right to a ‘fair trial’) apply to proceedings taken by the Army against service personnel under AGAI 67 Major Administrative Action?

My preferred format to receive this information is by electronic means. If one part of this request can be answered sooner than others, please send that information first followed by any subsequent data. If you need any clarification of this request please feel free to email me. If FOI requests of a similar nature have already been asked could you please include your responses to those requests.

I note that under s16 of the Act, it is the MOD's duty to provide advice and assistance, so far as it would be reasonable to expect the department to do so, to persons who make requests for information to it. Accordingly, if the MOD considers attempting to block release of information under s12 of the Act (exemption where cost of compliance exceeds appropriate limit), please a) provide a breakdown of costs, and b) explain what information *would* be releasable within the appropriate limit according to the department's purported calculations. I would, in that situation, apply for internal review, and ultimately apply for decision by the Information Commissioner, per s50 of the Act.

I would be grateful if you could confirm in writing that you have received this request, and I look forward to hearing from you within the 20-working day statutory time period.

Regards,

L Mowday
Ms