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19 Mar: I refer to the reference to servicemen and trade unions. The ECHR does not prohibit membership of trades unions. Article 11.2 says "This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State." Police have a federation so there's no reason why soldiers shouldn't have one too although they could be prevented from striking like police are.   David
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I seem to recall the New Labour manifesto (remember that document?) which was put together before the 1997 election contained a commitment to unions for servicemen. It failed to deliver. The topic has been well debated on this site. It was first mentioned in 1999. More importantly, EC Recommendation 1572 (2002) and Resolution 903 (1988) called on all member states of the Council of Europe to grant professional members of the armed forces, under normal circumstances, the right to association, with an interdiction of the right to strike. Since then, we are delighted to see the British Armed Forces Federation has been set up, and hope it has a strong serving membership. Does anyone have any news of how much cooperation it gets form the Services as a whole?     Aspals
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18 Mar: I apologise for the delay in responding to Ian's last post. However he is setting me so much home work, I reckon I can be reasonably excused. The Three Rivers (No 6) case is an interesting expounding of the law of privilege in both general terms and those attaching to litigation. I am having some difficulty in getting my head round the concepts. I do not think I would make a good judge!
I return to the redress process as it evolved under AA 55, which may inform us of how the redress process will be administered under AFA 06. In doing so I note that neither Ian, nor anyone else has answered the question about reasonable time - under either EHCR or the natural justice - what is reasonable time for a case to be considered in - one case I know of has been on going since 1994, and has currently been sat upon for some 16 months!
In terms of Three Rivers 6's reference between various legal procedures, adversarial, investigative, etc. It is apparent [if I am correct] that s 180 AA 55 is investigative - as that is what subsection 180(7) [AFA 96] states - "The Defence Council shall have any complaint submitted to them investigated …". It can therefore be deduced that the legal privilege is not litigation privilege as the statutory process is not litigation. However it can be argued that the question arises whether the legal privilege is in expectation of litigation? Here I get confused - as I understand it the only reason that leave would be granted for judicial review is if there were procedural impropriety. As the Services should ensure there is no procedural impropriety - then they should not be able to argue litigation privilege - as there should be no expectation of review! Unless of course they deliberately run procedural amok - in clear expectation of review - and thus can claim litigation privilege, as they expect, from their own behaviour - to get reviewed? It is however my view that litigation privilege should not need to be relied upon.
Further in terms of Three Rivers 6, Lord Carswell [at para. 103] quotes the 1967 Law Reform Report at para 18 which includes "This privilege, which is generally referred to as legal professional privilege, extends to all communications between the client or his agents and the client's legal advisers made for the purpose of obtaining legal advice other than communications made for the purpose of obtaining advice to enable the client to commit a crime or a fraud." What concerns me is what happens when the legal advice that is sought to be privileged is so straining at the fringes of credibility and is so patently inconsistent within itself and indeed with any reasonable interpretation of the law [we are talking of Wednesbury unreasonableness and beyond i.e. Lord Diplock in GCHQ (1985) "So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."]. It has to be asked what is the full range of meanings within "for the purpose of obtaining advice to enable the client to commit a crime or a fraud."? Can lawyers give fraudulent advice - and can such advice vitiate legal privilege? Of course there is a chicken and egg situation - how can one ascertain legal advice is fraudulent before it is exposed?
The question that has to be asked is what is the role of the Services legal advisors, i.e. ALS. Is their role to ensure fair play? Or is their role to defend the Services at what ever cost - the ends justifying the means? In these terms in relation to the UK Army it has to be understood that until 2002 the detailed redress procedure was "restricted", i.e. secret from those applicants who were not on the procedure's distribution list, or who had no pal on that list. It seems that the service chain of command are composed of mixture of staff - MoD officials, officers etc. In terms of Three Rivers 6 if compared to an application for redress - the "Bingham Inquiry Unit [three Bank officials]" appears rather like "the entire chain of command and MoD" - able to seek, get, and share legal advice under legal privilege within that huge community. So, in such a huge community - who is the client with whom the privilege rests with? And It appears to be an all informed procedure, except that is for the applicant whom is kept in the dark. Further the Army Legal Services Officer is employed within that chain of command and appears not only give "advice as to the preparation and presentation of the" case [i.e. chose what evidence from the investigations that is used and disclosed, and assists in drafting the brief], they give advice to the commanders on the brief they have helped to draft or have themselves have drafted, and indeed appear to draft the judgements too, routinely before a decision is taken by the commander. Can it be reasonable argued that redresses have predetermined outcomes?
Even the equity of arms is absent - Service personnel are still barred from joining unions [as I understand it], and the expectation to be offered an Assisting Officer is only a recent innovation, that could be and was ignored by the services.
Further this whole process, that has Her Majesty as the last authority to give her directions upon for officers, is commissioned under an umbrella of legal privilege. Pegasus appears correct, it is a "rich man's justice", especially in applications for redress which clearly involve the "loss of employment" and after say 14 years the applicant has still not been permitted to put their case upon all the evidence. But then it has to be clear the redress process under AA 55 does not have an impartial tribunal nor is in adversarial. The question is whether the redress process under AFA 06 is any more just? Indeed under AA 55, differences in evidence could be sorted by a Board of Inquiry. Such a Board could be convened under advice from the same ALS officer as advises the chain of command; the Convening Order could be written by that same ALS officer; the evidence submitted to the Inquiry could be picked by the same ALS officer, the service witnesses could be advised by that same ALS officer, and indeed the Board President could apparently be advised by that same ALS officer; it is not yet established whether the Board's transcript could be edited by that ALS officer, and it is not established if the Board's findings and/or opinion could also be drafted or edited by that ALS officer. Service Boards of Inquiry appear to be very dangerous forums, in terms of their outcome. However it is noted that under AFA 06 that Boards of Inquiry do not get a mention - odd! Perhaps it is a process that is too easily challenged by review? Instead, apparently, there is the 2 member Service Complaints Panel [SCP], that can have the second member from another service from the complainant [whom may be argued to be impartial], and also may, in some cases, have a third member appointed by the Secretary of State who is meant to be independent. It can be asked is 2 to 1 just? It seems that the SCP is now the forum of ECHR compliance ( - but only if required to be). It is however interesting that at Board of Inquiry evidence is normally [I understand] given on oath : however under the new guidance in JSP 831 at Annex K, para. 7, it clearly states: "Evidence is not taken on oath" [my bold/underlining]. Any reasonable subject may conclude - "no chance of perjury there then!" It can be left for the courts to decide whether evidence not taken on oath is tantamount to an invitation to lie. However my recollection is that Lord Hutton's investigation into the death of Dr Kelly did not rely on evidence given on oath, either. As I have said before - the administration of redress cases under AA 55 informs how the new redress provisions under AFA 06 will be administered. I, for one, have no confidence in the new procedures, as I understand their procedures.
So in review, can anyone answer these questions:
What is a reasonable period?
So, in such a huge community [the chain of command and MoD] - who is the client with whom the privilege rests?
What is the full range of meanings within "for the purpose of obtaining advice to enable the client to commit a crime or a fraud."?
Can lawyers give fraudulent advice - and can such advice vitiate legal privilege?
What is the role of the Services legal advisors, i.e. ALS - is their role to ensure fair play?
Or is their role to defend the Services at what ever cost - the ends justifying the means?    Antony Jack
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17 Mar: Briony spoke too soon. Today's press reports show that the Kosovo Serbs are not taking it lying down. What the weak kneed UN has done through failing to condemn the declaration of independence brought about as Aspals says in his paper as a result of the unlawful intervention by NATO is to drive Serbia away from integration into the European community and back into the arms of Russia and at the same time driven a coach and horses through the UN charter, again.   Thinners
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16 Mar: The proof that bully boys always get their way in international law is evidenced by the absence of Kosovo from the media. How quickly it has been forgotten is very worrying.   Briony
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15 Mar: Goldie asked about references for authority to discharge where a serviceman is sentenced to imprisonment by a civilian court. Take a look at QRs, paras 6.148 and 6.149 and 9.404 and also section 11(3) of the 1955 Army Act. Discharge from the services is not mandatory in these circumstances, as it is under section 71(3). That is why the likes of Cpl Clegg, as he then was, are allowed back into the army even though they were sentenced to imprisonment by civilian courts ostensibly for carrying out their duties.   Pegasus
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15 Mar: Does Lizzie have a reference for the MOJ publication she refers to? Perhaps it can be posted here.    Will
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Thanks to Lizzie, we have added a link to this important document which can be found on the Links page under both General and Army.     Aspals
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14 Mar: Under s.71(3) AFA a person sentenced to a custody is dismissed with disgrace or dismissed. Where a serviceman is before a Crown Court and is sentenced to a period in imprisonment, then the same must follow. He is dismissed from the service as he is in civilian custody and cannot serve. Is this correct? If so, can anyone point to the legislation covering this. Enjoying the active sounding board.    Goldie
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14 Mar: Referring to Tess. I am not advocating standing idly by. I am advocating following internaitonal law and abiding by the Charter of the United Nations, rather than acting unilaterally. If you allow one state to act unilaterally, on the basis of a so-called humanitarian motive, opens the floodgates to others. And who is to say one state's interpretation of a humanitarian need is the same as anothers? If the situation is dire, then the UN must authorise states to act. Only they can do it unless the state is acting in self defence.   Scipio
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13 Mar: I have recently asked about BOI's and how they are made up. Today I have come across a brand new Ministry of Justice publication entitled Boards of Inquiry and Coroners' Inquests. On page 2 of it under the title of Who Sits on the Board of Inquiry? it says that the Board consists of a President, who is an Officer, and at least two other members, all of whom will be unconnected with the immediate circumstances. How I wish that was true, the person involved in my case was not connected to the immediate accident, but he was involved within minutes of it orchestrating post accident events. Why can the MOD not do the right thing ever? All of the army to choose from as Board Members and they choose the Adjutant from my sons' regiment. I am livid.    Lizzie
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13 Mar: I've found the discussion on ECHR applicability to redress/admin action very interesting but at the same time quite worrying because, drawing a distinction in the way suggested between disciplinary proceedings that determine the right to practice a profession (which must be ECHR compliant) and those which do not (which do not have to be ECHR compliant), is very a very complicated, unfair and unhelful process when apparently the same procedural rules apply to both. I've always found the argument that not every part of a process has to be ECHR compliant so long as there is recourse to a compliant appellate court a highly unconvincing one, as it requires a complainant to spend a lot of money ultimately to find his way to an ECHR compliant court. That is rich man's justice and, in the context of the services, favours the MoD. Everything that happens before that level is without the rights of article 6 (eg right to an independent and impartial tribunal, right to legal advice/representation etc).    Pegasus
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12 Mar: In reply to Antony, as I said before, where the complaint concerns the loss of employment, then article 6 rights are engaged during the complaint's progress. A complaint of bullying dealt with through the administrative process would not engage those rights during the consideration process as it is not regarded as a determination of civil rights. However, in such a case, it is not every part of a process that has to be article 6 compliant. The fact that JR is available is, in some people's eyes a curative step: See the case of Teherani which held that where the decision of a disciplinary tribunal did not determine the right to practice a profession and was subject to a right of appeal to the Court of Session, the procedure as a whole complied with Article 6(1). I understand your frustration at the distinction, but that is the current state of the law as I understand it. Of course, further challenge through the courts might change this. I am merely expressing a view based on my (limited) understanding of the caselaw.
Aspals corrected my reference to the Three Rivers Case. My apologies for the mistake and my thanks for Aspals' intervention.    Ian
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12 Mar: I don't know how Scipio can take such a pious legalistic stand when people's lives are at stake. Should we stand lidly by and watch the slaughter of people? Surely our "civilisation" has progressed beyond that.   Tess
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12 Mar: International law is the law of the powerful. The UN is about as useful as a one legged man at an a**e kicking contest, it does a lot of talking but nothing more. What is surprising is that the Russians, who made so much noise over Kosovo, seem to have left it at that.    Will
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11 Mar: In reply to Tess. There is no right to humanitarian intervention. It's down to the UN to authorise military operations against member states. Unilateral action paves the way to precisely the opposite of what the UN wishes to achieve, stability and peace and respect for the sovereignty of member states. States can't pick and choose which unilateral acts they approve of and which they don't when all unilateral acts are breaches of international law (unless self defensive).    Scipio
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10 Mar: The declaration of independence by Kosovo is the logical conclusion of NATO's humanitarian intervention. What else should we have done? Stood by and watched innocent civilians get slaughtered just because the Serbs happpened to dislike them?   Tess
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10 Mar: The discussion on Kosovo in Aspals paper goes to show that international law is all about doing what powerful nations want. Its a fancy idea but thats all. Turkey's big mate the US (with lots of bases in Turkey) keeps the heat off them from the rest of the world and has been pushing for them to join the EU. Wills point about the kurds is another example of double standards. When the Islamic Republic of West Yorkshire is established on the same justification as Kosovo, who wants to bet the government wont be so eager to take it lying down - or maybe this lot will, as it wouldnt be politically correct for them to stand up for our rights.   pete
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9 Mar: I also enjoyed Aspals' paper on Kosovo (when do you find the time?) and agree with Antony that it is worrying that the UK and US recognised Kosovo. Just to take up a point Antony made, the US has not ratified the International Criminal Court, but the UK has. The ICC Act 2001 is part of that ratification process and introduces mechanisms to facilitate the prosecution of those who commit crimes within its jurisdiction. The purpose of the act is:
- to incorporate the offences in the Statute into domestic law so that domestic authorities will always be in a position to investigate and prosecute any ICC crimes committed in this country, or committed overseas by a UK national, a UK resident or a person subject to UK Service jurisdiction;
- to make provision, where necessary, to enable the UK to meet its obligations under the ICC Statute and so to enable ratification of that Statute. These obligations relate, in particular, to the arrest and surrender of persons wanted by the ICC and the provision of assistance with respect to ICC investigations;?
- to enable the UK to reach an agreement with the ICC so that persons convicted can serve prison sentences in this country.
As for independence for Scotland its got more justification than Kosovo as it existed as a separate state until James VI of Scotland, James I of England in 1603 and the Acts of Union in 1706 and 1707.
As for the Turks, why dont the US and UK condemn their attacks on the Kurds and recognise the right of the Kurds to have their own state back )it was divided up between Turkey, Iraq, Iran, Afghanistan and Syria). I can understand why the Serbs are sceptical about joining the EU when it has failed to do anything to effectively resolve the illegal occupation of northern Cyprus by the Turks. If anything, it sends out the message that breaches of international law will not only go unpunished but actually be encouraged (as Aspals points out in relation to NATO's actions in Kosovo and the subsequent recognition by the EU).    Will
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9 Mar: I read Aspals' paper on Kosovo with interest, and agree with his concern over the US and UK recognition of the ‘independent' Kosovo. I understand that neither the US nor the UK come under the full jurisdiction of the International Court, indeed nor does Iraq, last I heard. The US opted out after foreign policy problems in Central/South America, and the UK is a voluntary member of some sort. Yet both the UK and US have a veto at the UN Security Council. It is curious that these two sovereign states appear to exert their will in changing international law, when they have put themselves beyond it. It reminds me of Our Sovereign's motto as a member of the Order of the Thistle - nemo me impune lacessit (ed: no one hurts me with impunity"), a useful contraction from the original "Quietem nemo impune lacessit" (ed: though I am peacful, no one hurts me with impunity"). Typical UK hypocrisy or spin.
Dominating the international scene with deliberately unlawful acts does not appear helpful to world stability. The case Three Rivers DC (No. 10) v Governor of Bank of England [2001] UKHL 16 [referred in Ian's last post] is of interest in terms of the frame of mind required to prove misfeasance in public office. It appears readily transferable to the global scene. I understand that the US constitution allows its subjects to rise against tyranny - a mindset that may have allowed the concept of regime change to creep into US foreign policy over the decades of US interventionalism. However rising against tyranny in the UK is apparently against the law : but has the UK's attack on Iraq as a partner in seeking regime change blurred the law? In international law, what proof would be required for a charge of misfeasance - and how can international law pursue the charge if it does not have full jurisdiction? Is the planet seeing the emergence of a neo-imperialism driven by lawlessness. It is not surprising that half the world are concerned with ‘western behaviour'. Are they wrong?
Seeking self determination seems almost a human imperative - indeed the next ‘county' to seek independence may not be the Basques, but maybe Scotland - but not before we have re-secured Berwick on Tweed! Indeed the UK's recognition of Kosovo under PM Gordon Brown may set a precedent for such a move. I wonder whether Brown, a Scot, is a closet nationalist who has deliberately acquiesced to Kosovo to set a precedent for Scotland?
Aspals' paper raises the issue of Turkey's occupation of Cyprus. Is Turkey going to get its comeuppance with Kurdish separatism, that is apparently already smouldering? Indeed will US and UK acceptance of ‘independent' Kosovo fan the flames in the disintegration of Iraq. Is that their strategy?
It is not that long ago that the UK lost most of its Empire, and had to find its place in a ‘new' world. The UK has seemed to be torn between playing lapdog to the US and seeking an influential voice in Europe. The antecedents to the Blair-Brown partnership agreement is one UK subjects should be looking at - what were they : is the UK in stable hands? Recently General Dannett curiously recommended service parades in the streets - an apparent military triumphalism. More recently we have had service personnel defending the right to wear uniform on the streets, and now calls for an Armed Forces day. Is Remembrance Day not enough? Has a subject the right to join up the dots, and fear that the UK is not so subtly moving to a neo-militarism in a planet that is becoming over-populated with humans. Perhaps : our psychologists should be looking at parallels - what happens when rats become overcrowded; or our historians look to parallels in history - a history that we know too well!
It is ironic that ‘suburban man UK' is busily focused on recycling rubbish to save the planet, whilst our leaders that we have inadvertently appointed appear to be focused on recycling history to destroy the planet as we know it! Am I justly worried about our future?    Antony Jack
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9 Mar: I am grateful to Ian's further post. However, as a layperson, I am becoming confused, and must thank Ian for his forbearance in sharing his knowledge with me and anyone else that has an interest in the service redress procedures. Ian makes a number of points, some in relation to my questions.
Forum of last resort. Ian says "I think I answered this above". I can see no answer above : unless he considers the seeking of The Sovereign's direction as forum of last resort. If this is so there is an expectation that the process by which The Sovereign's directions are sought "as the forum of last resort, dealing with an individual's fundamental statutory rights, must by its procedures achieve a high standard of fairness", as per Anderson. The question is : under s. 180 AA 55 for officers - does Ian agree the forum of last resort is by requesting the directions of The Sovereign?
Directions of the Sovereign. Ian says: "I cannot see that a process which is really asking for the favour of the Sovereign can be regarded as a compulsory step prior to seeking JR." As I have stated in an earlier post seeking direction from The Sovereign "is, in fact, the final stage in the internal Appeals procedure." [verbatim from Dr Moonie as Defence Minister]. Internal procedures require to be exhausted before judicial review can be sought, as I understand it. If this is unbelievable then the internal process should be explained more clearly to applicants, in my view. Ian also explained that "if the "other side" produced anything new, then there should be a petitioner's right to comment." I agree, however the draft guidance states that a factual report is prepared by the Army Board that is submitted without opportunity to comment. This seems fundamentally unjust - in a forum of last resort!
European Convention for the Protection of Human Rights and Fundamental Freedoms [EHCR] Article 6 rights. Service personnel are [under most circumstances] denied access the industrial [employment] tribunals. This means that dismissal/termination by other routes than disciplinary processes requires to be dealt with by the redress procedures [as is clarified in TA Regulations]. Therefore the redress process, or some part of it, has to be Article 6 compliant, as I understand it. Further Ian has not answered my question on bullying - is bullying in contravention of Article 3 of EHCR? If it is do claims require to be dealt with under Article 6 rights?
Disciplinary proceedings. Here I am confused - seeking redress seems to be taken as part of the discipline. I don't view it that way - to me it seems more like a complaint procedure or claim in a civil court where the outcome could be damages. I am confused as a case in a civil court requires Article 6 compliance - surely the same can be expected in the redress process, i.e. where there is a claim for damages due to the effects of bullying? Or is the Crown immune to paying damages - or is that where the "favour" comes in [for officers only]?
Judicial review. I am grateful for Ian's comment, and the connection to the English/Welsh JR information site. The issue, as I understand it, in an ECHR-sensitive case is that it needs to have some part in the process that is Art 6 compliant - in Teherani it was the right to a court with full jurisdiction to consider the case de novo. I take Ian's point, if refused, you can appeal to the European Court - but the UK has now its own HR legislation - the right to appeal to the European Court should not be the basis of Article 6 compliance. Compliance should be within the domestic process, i.e. part of the redress process requires to be Article 6 compliant in a ECHR-sensitive case. It is noted that AFA 06 has introduced the requirement of an independent member in a service complaint panel [as I mention below in more detail].
Legal Privilege. The redress procedure does not have a judge in the sense of a court, to weigh the evidence and legal argument, and then give a reasoned judgement. In a district court the case may be argued, and the lay magistrate/JP may take legal advice. The same in a Court Martial [as I understand it]. However the redress process has hidden legal advice. Ian cites Three Rivers DC (No. 10) v Governor of Bank of England [2001] UKHL 16, that has me completely confused. It is an interesting case about misfeasance in public office and indeed perhaps informs us about Mr Darling's decision to nationalise Northern Rock. However having read the judgements today, I do not see it's relevance to "the person claiming the privilege does have to justify it", or indeed the concept of legal privilege. Perhaps Ian can quote the relevant paragraph in the judgement that he is relying upon, so I can understand better?
JSP 831 - 2nd PUS, etc. I am grateful for Ian's input/clarification on this subject. I also note with interest the guidance in JSP 831 where cases can remain unaddressed until considered by either a Service Board [SB] or a Service Complaint Panel [SCP]: the destination to be chosen by the Secretariat [see diagram at sheet G - 1] under authority of the Defence Council. Under the Armed Forces (Redress of Individual Grievances) Regulations 2007 at regulation 9, it states that the SCP shall include one independent member in any case which alleges discrimination; harassment; bullying; dishonest, improper or biased behaviour; and medical/service police grounds. It therefore seems that AFA 06 has introduced a two tier system in which applications are streamed into either an impartial route [i.e. SCP with independent member [ISCP]] or not [i.e. SCP or SB]. It would seem that the list at regulation 9 includes both civil rights and statutory rights, as I understand it. What is curious, in terms of seeking The Sovereign's directions, is that officers' cases under s. 337(3)(b) gives a condition that "the Defence Council's function of taking that decision is not delegated to a service complaint panel to any extent." I am not clear what "to any extent" means in the context of JSP 831. A case seems to be either remitted to a SB or an ISCP/SCP : not to some extent to one and another extent to the other! However it is noted that in JSP 831 at page 5-4 at para. 16 it mentions an SCP being unable to agree, and it reverting back to the Defence Council who may "take the decision" [an ISCP cannot (?) fail to come to a decision, as it is an odd numbered panel]. In this case it is clear that the SCP has not come to a judgement to any satisfactory extent, and further it is unclear who makes the decision at the Defence Council, as both AFA 06 and JSP 831 appear silent on the matter of how the Defence Council, itself, precisely operate in determining a case. Albeit it is mentioned that there is "separate guidance"on "delegation and retention of cases at Defence Council level", but this is issued to single Service Boards and secretariats. I have yet to find this ‘separate guidance' in the public domain. It appears that the Defence Council is master of its own secret procedure. What is also apparent in the framing of AFA 06 and the regulations is that applications are being streamed to either : an ECHR compliant process; or ‘non-compliant' processes [i.e. processes that are within themselves not EHCR compliant, but do not need to be compliant because of the subject of the application]. This change in procedure appears to be tacit admission that procedures under s. 180 AA 55, including seeking direction from The Sovereign, are not ECHR compliant [in cases of civil rights and/or statutory rights]. If this is correct, it leaves a rump of redress cases involving civil rights/statutory rights that are still extant from before 1 Jan 98 [AFA 96] and 1 Jan 08 [AFA 2006] in a quagmire of non-compliance. Further the transitional provisions appear silent on the issue of dealing with inconsistencies that appear to have been thrown up. The lack of impartiality in dealing with complaints still extant before 1 Jan 08 appears not to have been addressed openly.    Antony Jack
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I think the reference to the Three Rivers Case is to No6, which is on-line at the House of Lords website. You can read a synopsis at Charles Russell. Hope that helps clarify Ian's post.     Aspals
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7 Mar [sent 6 Mar]: Sorry it has taken a little while to reply, but Antony's post was substantial. I apologise for my fairly substantial response. I think Antony and I are furiously agreeing that there is very little known about the process for petitioning the Sovereign. I cannot see that a process which is really asking for the favour of the Sovereign can be regarded as a compulsory step prior to seeking JR. However, I accept that I may be wrong about that. The prospect of then JRing the Sovereign is interesting. That is why I think JR is available at the earlier stage.
In terms of Ian's view on a right of response, he relies on their being a "summary of the case, rather than any fresh evidence…."
I did not mean to suggest that the petitioner cannot put forward further evidence when petitioning the Sovereign – this is plainly contemplated by the draft guidance and requires the petitioner to explain why he did not produce this evidence before see paragraph 8). What I meant was if the "other side" produced anything new, then there should be a petitioner's right to comment.
In terms of Ian's second answer, does the ECHR article 6 right "In the determination of his civil rights and obligations" only cover the right "to practice one's profession"…. As far as I can tell from the authorities the ECHR only applies to employment disciplinary proceedings where the stakes are very high: the loss of the right to practice a profession. That is why I think they apply to AGAI 67 proceedings when dismissal from the service is at stake. My point is that whether the ECHR applies or not (and this country drafted the document based upon common law principles) the principles of natural justice apply to Army Board determinations. As for the forum of last resort, I think I answered this above.
As Ian says: Baines involved criminal/disciplinary proceedings; and the DoH site he referred us to involved disciplinary proceedings as well…. I was drawing a distinction between on the one hand criminal proceedings and internal disciplinary proceedings where the charges and/or punishment are really criminal (see Ezeh and Connor), and on the other hand employment-based internal disciplinary proceedings where the sanctions are not classed as criminal. Save in exceptional circumstances, JR does not apply to criminal proceedings (although an extension of this right is being considered at the moment), as there is a right of appeal. The availability of JR clearly does apply to internal disciplinary proceedings, as the Anderson case shows. In the passage Antony quoted, I was not referring to my own view about JR being considered as meeting the requirements of article 6 merely that it was a view. It seems to conflict with the caselaw eg Teherani.
The first is whether Article 6.1 : "In the determination of his civil rights and obligations ... everyone is entitled to a fair… hearing " is actually that relevant [albeit it is]…..
As previously stated, the provisions of article 6 only need to be complied with where there is the potential of the loss of the right to practice a profession. The DOH site cases confirm this.
The second issue is whether an internal redress system requires to be, in itself, ECHR compliant "In the determination of his civil rights and obligations"…It therefore appears that an internal discipline/redress process, in order to comply with ECHR, needs to have some part of it that is ECHR compliant
I am not clear I follow this. The internal redress system does not need to be article 6 compliant as cases it deals with, other than those where the right to practice one's profession is at stake, are not regarded as determining the applicant's civil rights and obligations. But, Judicial Review is available. JR looks for some procedural unfairness. It does not try the case de novo. If JR is refused, that is not the end of the road. There is a right of appeal to the Court of Appeal (Rule 18.2) and then to the House of Lords and ultimately to Strasbourg. More information about the processes to be followed can be found at the JR website at this link Antony raises some interesting points about judicial review and indeed the only way there is ever likely to be a definitive answer to many of his questions is if the matter is ultimately argued in Strasbourg.
As for access to MoD legal advice, this is a very difficult area as legal advice to an employer would usually attract legal professional privilege. But the person claiming the privilege does have to justify it. The chief case on the point is Three Rivers DC (No. 10) v Governor of Bank of England [2001] UKHL 16
The JSP policy that Major Jack refers to is a clear departure from the old law. It provides a statutory basis for the Army Board or "appropriate officer" to be reeled in. The old section 180 provided clear statutory language. Policy – even Government Treasury Policy – could not overrule a statute. This was a concept that MoD civil servants had a problem accepting. The old section required the Army Board "shall grant any redress which appears to them necessary." There was no statutory authority for the proposition that the Army Board was required to seek the permission of 2nd PUS before awarding financial compensation.
This has been changed in the AFA 2006, so that regulations made by the Defence Council now define a number of matters. For example, under s.334(8) "the appropriate person" must— (a) decide what redress (if any), within his authority, would be appropriate; and (b) grant any such redress." This section came into force on 8th October 2007. So, regulations (but not an internal policy letter) can define the authority of the appropriate officer.    Ian
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Thank you for your input, Ian and for the various links. Your reply mirrors the experiences I had when I served and some of the arguments I advanced at the time. The MoD refused to accept that Treasury policy did not overrule the statutory provision in s.180 concerning the Army Board's powers. Of course, when pressed they were unable to produce any authority for that ridiculous proposition. We shall have to see what happens under the new system, as it beds in, and whether the principles discussed here will still apply to it.     Aspals
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4 Mar: Aspals. Thank you for your comment, inserted after my last post. In terms of the current policy, this appears to be referred to in JSP 831 at pages 5-1 and 5-2, where it states "A single Service Board or SCP considering a complaint where a financial redress is sought or appropriate should follow the direction of 2nd PUS" and "A SCP considering a complaint where a financial redress is sought or appropriate must follow the direction of 2nd PUS." It is noted that the use of the words ‘should' and ‘must' make it mandatory [as much as JSP 831 can be]. These sentences refer to a footnote "D/VCDS&2ndPUS/1/9/6/2 dated 31 May 07." I have searched for this reference but not found it. I suspect from the wording that 2nd PUS may not have to be a member of the Board any more, otherwise "must follow the directions of 2nd PUS" appears highly prejudicial to fair consideration by an impartial tribunal – indeed there would be no point in there being two members on the Board!
It is typical of the MoD to publish JSP 831 and not the references that would assist an applicant in understanding the process. In terms of raising a FoI request, I take your point. It would be easy to request the current letter dated 31 May 07, as the reference is shown. However the ‘old' policy is likely to be more difficult to tie down, and I suspect I would just get another infuriating letter saying my request amounted to disproportionate effort! This would be from those routinely using the policy. I also worry that I may be labelled as a vexatious correspondent [which MoD appear - from DPA disclosure – itching to do to me!]. Thanks for your comment,    Antony Jack
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27 Feb:   I agree with JT that Panorama was a bit bland. Just like the BBC's interview of Colonel Mendonca. I was puzzled by JT's reference "There are other areas where he could get a story though, and from the same theatre". What does he mean?   Will
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27 Feb:   I'm a bit more sceptical about the motivation for Mr Shiner and his kind than JT. Human Rights is a great band wagon to climb on. The fact that he's helped some soldiers while in other cases has gone for the army's jugular. The army is an easy target. Whats amazing here is that he doesn't even have any real evidence.   Pete
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27 Feb:  Once again I thank Ian and Aspals for their comment. I have now considered Ian's post of 23 Feb 08 in greater depth; Ian's post of 26 Feb 07; and Aspals' interesting comment.
Ian [26 Feb] argues that the wording of s. 180 is very different in terms of granting redress and seeking directions. That may be. However there is not a great deal of information out there upon which a lay applicant can base an understanding that there is any real distinction [apart from the use of different words whose usage is not explained in the text of the law], especially when Army Board members are publishing to MPs that seeking directions from The Sovereign "is, in fact, the final stage in the internal Appeals procedure." I really have some difficulty in understanding Ian's reliance on it not being an obligation to go to the final stage before seeking review. I am not trying to be thick. Indeed Ian later does state that the process does need greater transparency! We agree on that!
In terms of Ian's view on a right of response, he relies on their being a "summary of the case, rather than any fresh evidence." and "[i]t would be different matter if the report to the sovereign contained reference to new material." I understand this forum is best not to be case specific. It can be deduced that the guidance should cover all cases. In some cases new evidence will be submitted by the applicant, especially in the light of the provisions of the Data Protection Act 1998. In this case there will be both new evidence and new legal advice. Ian, as I understand his logic, is suggesting that under the draft guidance the new evidence and reference to that new evidence is withheld from The Sovereign? Am I correct in this deduction, because I am unclear : as Ian then suggests the right to respond should arise. But this right is absent from the draft guidance. So is the guidance only published to an applicant after the applicant has submitted his/her new evidence? The guidance having been drafted to fit how the MoD intend to manage the applicant's case in the light of such new evidence. A sort of bespoke tailored guidance aimed at avoiding having to grant redress.
In terms of Ian's second answer, does the ECHR article 6 right "In the determination of his civil rights and obligations" only cover the right "to practice one's profession", or are there other civil rights? For instance the late Lord Justice Taylor in Anderson mentioned "The Army Board as the forum of last resort, dealing with an individual's fundamental statutory rights, must by its procedures achieve a high standard of fairness." before the Human Rights Act 1998 came into effect. Also, is there a civil right to work [i.e. practice one's profession] without being: bullied; wrongly dismissed; or indeed both? In terms of Anderson, I note that Ian has not answered my question on his view as to when LJ Taylor's "forum of last resort" occurs for officers?
As Ian says: Baines involved criminal/disciplinary proceedings; and the DoH site he referred us to involved disciplinary proceedings as well. In relation to Baines Ian says "I don't think even the MoD tries to argue it is save, as you point out, that they present the argument that the system is saved by the right of appeal to the SAC, but does anyone really believe that?". However I find Ian's logic hard to follow, since in his last post he stated - without caveat - "In any event, there is a view that the availability of JR was enough to meet the requirements of article 6". I do not agree with Ian on this point, and I suspect he doesn't either. It seems to me that there are two [chicken and egg] issues,
The first is whether Article 6.1 : "In the determination of his civil rights and obligations ... everyone is entitled to a fair… hearing " is actually that relevant [albeit it is]. As I understand it, this website is not here to air specific cases. Therefore, in general terms, it would seem that some redresses will be clearly about "civil rights and obligations" and others may not be [and indeed some may have elements of both]. So the issue, in terms of s. 180 AA 55 and where appropriate in AFA 06, appears to be whether the MoD/Army is going to have two redress procedures: one ECHR compliant and one not? Or whether it could have just one - one that does comply that can be ignored in cases which do not involve "civil rights and obligations". It would seem to me that good practice dictates that there is one procedure that is applied to all cases. This would make all cases compliant [with both ECHR and the natural justice]. But maybe I am being naïve?
The second issue is whether an internal redress system requires to be, in itself, ECHR compliant "In the determination of his civil rights and obligations". In my previous post I referred to the case of Baines where the existence of statutory right to a court of appeal that considers a case de novo prevents a ECHR breach from occurring. The Department of Health site [that Ian referred to] relied, in part, on the disciplinary case of Tehrani, which is a useful case to consider as it clearly illustrates how the law is likely to be applied in a judicial review before the Court of Session in Edinburgh, where I live. Lord Mackay in giving his opinion relied upon Le Compte, Van Leuven and De Meyere, Albert and Le Compte and Bryan to support there being no breach of ECHR if the process is subject to control by a court that has full jurisdiction.
Indeed in Lord Mackay's opinion at para. 59 he clearly states:
"59. In my opinion […] [s]ection 6(1) does not accord the petitioner the right to have each stage of the disciplinary proceedings conducted before a Tribunal which meets all of the requirements of Article 6(1). […] When they took the decision of 12 October 2000, the members of the PPC knew that the right of appeal would enable the petitioner to appeal to the Court of Session against any decision by the PCC to remove her name from the Register." The statutory provisions for UK nurses lay down a procedure whereby nurses that are struck off the register have a statutory right to take the case to a court that is [or should be] ECHR compliant. Further the defendant before the nurses' Professional Conduct Committee has a right to be present, put her case on the evidence, cross-examine the witnesses on the evidence. Further nurses are allowed to join unions and have access to Employment Tribunals, so it can be expected that disciplinary procedures for nurses will have to be just, to avoid further litigation. This is a far cry from the Army redress system under s. 180 AA 55, where service personnel do not have access to Tribunals [except in very specific cases].
It therefore appears that an internal discipline/redress process, in order to comply with ECHR, needs to have some part of it that is ECHR compliant, the question is which part? The seeking of direction from The Sovereign appears not to be, in my opinion. I go back to Ian's comment at the end of his 23 Feb 08 post "In any event, there is a view that the availability of JR was enough to meet the requirements of article 6." The questions that have to be asked are : (a) whether judicial review is a court that has full jurisdiction - i.e. is it a court that will consider the case de novo? And (b) whether an applicant has a right to have a court review his/her application? The answers have to be no.
In neither Scotland nor England is a judicial review allowed to substitute its view for that of the decision maker [i.e. as set out in s. 31 Supreme Court Act 1981 and R v Home Secretary ex parte Mahmood [2001]etc]. In the case of reviewing an application for redress from a service person, the review [if successful] can make one of two orders : of certiorari or mandamus : that either quashes a decision or enforces an authority to take action. This is therefore not a court with full jurisdiction. In a case of redress a successful judicial review will remit the case back to the authority for them to reconsider [such as occurred in Anderson]. Of course if such a case involved contravention of ECHR, it can be deduced that the MoD/Army would need use compliant procedures the second time round!
As I have mentioned in previous posts, an applicant will have to seek leave to apply for judicial review. Such leave may be refused. There is therefore no statutory right of appeal for an applicant for redress : in comparison to the right for nurses' cases to be referred to the Court of Session [in Scotland] in Tehrani. Unless I have misunderstood the process. [It should be noted that I do understand that in Tehrani it explains for disciplinary hearings that do not strike the nurse off the register but give a lesser award, there is no right to have the case heard by the Court of Session : appeal is by judicial review.]
In passing I have to wonder whether the MoD/Army are relying on legal advice, given in secret, that judicial review makes their redress process ECHR compliant? It would be interesting to read such advice, and upon what the advice is founded. This would mean that applicants could understand what is happening to their applications rather than wandering around blindfold.
Also in passing in relation to Tehrani it is to be wondered whether The Sovereign in giving her directions has been advised that the process is EHCR compliant, or indeed whether Her involvement in giving directions in what appears to be a non-compliant process is a tacit acknowledgement of an applicants' right not just to seek leave for judicial review but effectively to have a right to have the case reviewed. I also wonder, in terms of s. 6(1) of the 1998 Act ["6. Acts of public authorities (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."], whether The Sovereign is a public authority and whether Her giving directions in a process that is incompatible with ECHR could be deemed as unlawful? Maybe this is something else that the Treasury Solicitor should be invited to advise upon?
Indeed one can look at the flip side of my question in my post of 22 Feb 08, where I raised the issue of an application for redress being justly rejected in a case administered in breach of procedures. What occurs when redress is granted in a case that is administered in breach of procedures? Obviously there is no point in seeking leave for judicial review on a claim that has been fully met, it surely would be refused! This therefore leaves room for the MoD/Army to reject a case up to the forum of last resort [wherever that is?] in flagrant breach of their procedures, and then settle the case. I am reminded of the case of Arrow Nominees Inc v Blackledge [2000] where Lord Justice Ward stated : "… the attempted perversion of justice is the very antithesis of the parties coming before the Court on an equal footing." In this case it was the claimant's actions being referred to. What I am concerned with is where the MoD/Army's employees' conduct can reasonably described as perverting the course of justice that is neatly and conveniently combined with abuse of their own procedures. In the case of Arrow Nominees the applicant's behaviour did not prevent the court from coming to a just outcome, which can support the argument that MoD/Army's behaviour may also not prevent a just outcome. However Article 6 of ECHR also mentions "reasonable time", it has to be asked what is reasonable time for applications for redress to be dealt with in? Does anyone know? I bet it's not 14 years!
Finally Aspals' intriguing comment about 2nd PUS having to be present if financial redress was to be granted. This is most odd. Does that mean that a case going to an Army Board [for officers the first or second time round] where the members do not include 2nd PUS, that the case has been prejudged and the applicant isn't going to get compensation? There is a case that I am aware of where there is a claim for financial damages that has been remitted to an Army Board that does not include PUS2. Oh dear! Further I have seen no reference to this MoD policy guidance in AGAI Vol. 2 Ch. 70, does anyone know where it can be found? Can this site insert a link to it? Is this policy indicative of additional layers of secrecy in the redress process? Thank you both for your input and your patience.    Antony Jack
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Antony, it is the view of 2nd PUS and his advisers that only he has the financial authority to hand out MoD funds. It is a clear breach of the section and does not represent the law. However, it does not mean the case has been pre-judged by the MS staffing branch. It depends upon the redress being sought. Only if it is apparent that the granting of the redress would entail a financial award, would 2nd PUS then expect to be on the deciding Board. As you can see, that hardly instils confidence that the application will be fairly assessed, when the person in charge of the money, and who has an interest in not paying it out, demands to be on the Board deciding whether to award compensation. You will not find this guidance published anywhere (as far as I am aware), as it is an internal Treasury policy - that might be worth a Freedom of Information Act request! You might want to make such a request to ascertain whether this policy is still extant. If you do, please let us know the result. If anyone knows of a link, please tell us and we will gladly link to it.     Aspals
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