Army Legal Services – the risk that military lawyers will ‘go native’ and acquiesce to the demands of their employers, at the detriment of vulnerable service personnel

L Mowday made this Freedom of Information request to Ministry of Defence

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

The request was refused by Ministry of Defence.

My reference: LSM/FOI/120909/20

Background. The Advisory branch of Army Legal Services is usually the sole source of legal advice to the Army’s chain of command, when dealing with service personnel issues such as bullying, victimisation, harassment, sexual harassment and assault. In-house legal practice presents special challenges with regard to professionalism. Every lawyer owes his clients the sometimes-conflicting duties of loyalty and professional independence, but that conflict is exacerbated in the in-house context, where exercising independent judgment and maintaining objectivity are more difficult, and even greater loyalty is demanded by the employer. The lawyer's economic well-being depends on continued good relations with a single employer. In the military, in-house lawyers may be torn by the potential for conflicts between the interests of the military chain of command and the interests of service personnel. In other words, maintaining high professional standards can conflict with career objectives. A number of attributes of the job potentially foster neglect, or even disregard, of professional obligations. This is particularly true in the Armed Forces where, for example, Army Legal Services have in the past told their officers that they are ‘Army Officers first; lawyers second’. This is particularly the case when performance reviews and appraisal reports are written by non-lawyers, who may not recognize, understand or share the lawyer's ethical obligations. For example, Army Legal Services officers' appraisal reports are routinely written by their superiors in the mainstream Army. These appraisal reports are the means by which officers' careers, assignments, promotions, and 'contract extensions' are determined. For example, as Channel 4 News reported in Oct 11:

‘Top army lawyer slams MoD over human rights abuses. The army's top lawyer during the Iraq war tells Channel 4 News his superiors blocked him when he tried to make British forces treat prisoners in a lawful way… [report includes distressing video of abuse of Iraqi civilians by British troops – initially covered up by the British Army] Shami Chakrabarti of Liberty describes him as "a human rights hero and a military hero as well. A man of principle and a credit to both the legal profession and the corps of officers in the British Army." One imagines that Lt Col Nicholas Mercer's former superiors in the Ministry of Defence might choose different words. Lt Col Mercer was the commander legal of the British land forces that invaded Iraq at the start of the war in 2003. He was, in other words, the army's top lawyer in Iraq. A successful and well-regarded career officer, it was his job to make sure British troops stayed within the law. But Lt Col Mercer's efforts to do that job were to cost him his dear. And in an exclusive interview with Channel 4 News he describes how he was blocked, harassed and mocked by his superiors in the MoD as he tried to make sure British forces treated prisoners in a lawful and humane way. … had the procedures he proposed been implemented, it is likely that innocent Iraqi hotel worker Baha Mousa - who died after 36 hours of abuse and beating at the hands of British soldiers - would still be alive. Had he been listened to, Britain would have saved tens of millions of pounds paid out in compensation and legal fees. And - many argue - had his professional advice been taken, Britain's reputation would not have been tarnished by the allegations of torture and mistreatment which continue to surround operations in Iraq and have tarnished the UK's reputation around the world. So why did this happen? Mercer argues that the root cause is what he calls an attitude of "moral ambivalence" about Britain's human rights obligations which goes right to the top of the MoD.’

Source: http://www.channel4.com/news/top-army-la...

Finally, the risk of sanction, disciplinary action or malpractice liability is comparatively low for lawyers working for the military as opposed to their privately-employed counterparts who are more closely scrutinised by the Solicitor’s Regulatory Authority and Bar Standards Board.

Army Legal Services officers’ responsibilities are primarily towards their single employer, the British Army. Not only, as the unfortunate Lt Col Mercer found out, does that expose honest personnel to their employer’s wrath, it can inculcate a sense of impunity where personnel are accused of, for example, negligence or assault, may be treated with undue leniency, at the expense of victims. For example, Dr Freddy Patel was employed by the Metropolitan Police for many years until the death of Ian Tomlinson brought to light his incompetence (Source: http://www.dailymail.co.uk/news/article-...).

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

a. Please provide a copy of the 2006 Army Legal Service Study, [‘The Mason Report’], dated November 2006.

b. Please provide all documentation regarding possible options for greater Army Legal Services independence from the Army chain of command, including but not exclusive to analyses conducted in the aftermath of the deaths of young recruits at Deepcut, the killings by Parachute Regiment personnel of joyriders in Kosovo, and the killing of Baha Mousa and allegations regarding the killing of multiple Iraqi prisoners in the aftermath of the so-called "Danny Boy incident", and alternative models for provision of legal advice to the Army, such as a lawyers being seconded from the Government Legal Service. Please include, where held, any comparative examples of military legal provision in other countries.

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 authority 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

LF-Sec-&Group (MULTIUSER),

1 Attachment

Ms Mowday,

 

Please see attached a reply to recent Freedom of Information Act Requests.

 

Regards,

 

Army Secretariat

Army Headquarters | IDL 24 | Blenheim Building | Marlborough Lines |
ANDOVER | SP11 8HJ