Haroon Marshall and Others v Deputy Governor of Bermuda and Others
| Jurisdiction | UK Non-devolved |
| Judge | LORD PHILLIPS,LADY HALE |
| Judgment Date | 24 May 2010 |
| Neutral Citation | [2010] UKPC 9 |
| Date | 24 May 2010 |
| Docket Number | Appeal No 0074 of 2009 |
| Court | Privy Council |
and Others
and Others
[2010] UKPC 9
Lord Phillips
Lord Saville
Lady Hale
Lord Brown
Lord Mance
Privy Council
Appellant
Jonathan Crow QC
Delroy Duncan
(Instructed by Dorsey & Whitney (Europe) LLP)
Respondent
Rabinder Singh QC
Howard Stevens
Huw Shepheard
(Instructed by Charles Russell LLP)
Introduction
The Bermuda Regiment ("the Regiment") was raised pursuant to the Defence Act 1965. It is Bermuda's sole military force. Any Commonwealth citizen, man or woman, may join the Regiment as a volunteer. Few choose to do so. Most of the Regiment consists of conscripts, who serve on the same terms as the volunteers. Only men are liable to be conscripted. Service is part time and extends over an initial term of three years and two months.
The appellants belong to an organisation known as "Bermudians Against the Draft". Some or possibly all of them have been called up to join the Regiment as conscripts. They do not wish to do so and contend that they cannot lawfully be required to do so for the following different reasons.
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i) Conscription of men but not women constitutes unlawful discrimination contrary to article 6(1) of the Human Rights Act 1981 (the discrimination argument).
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ii) Conscription is only lawful if the number of volunteers is inadequate to make up the strength of the Regiment. This means that conscription is only lawful if:
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a) The Governor has kept the size of the Regiment under periodic review.
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b) The Governor has taken all reasonable steps to recruit volunteers.
The burden lies on the Governor of proving that he has satisfied these preconditions. He has failed to discharge this burden ("the precondition argument").
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iii) The Governor has proceeded under an error of law in that he believed that he had no duty to attempt to recruit volunteers before resorting to conscription ("the error of law argument").
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iv) The Governor has resorted to conscription without giving consideration to a material matter, namely the possibility of establishing a quota of women in the Regiment ("the quota argument").
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v) The call-up notices issued under section 17(1) of the Defence Act were invalid ("the invalidity argument").
Of these consolidated proceedings one, in which Mr Eve was the applicant, was commenced by an application for judicial review, and the remainder by originating summons. The appellants' challenges to the legality of their conscription were dismissed by Chief Justice Ground on 7 March 2008. Their appeal against his decision was dismissed by the Court of Appeal consisting of Zacca P, Nazareth and Ward JJA, on 28 November 2008. In granting permission to appeal to the Privy Council the Court of Appeal certified a single issue for determination: "can the Government of Bermuda lawfully enforce compulsory military service against the appellants?" The importance of this issue speaks for itself.
The Defence Act 1965
Much of the appellants' case focuses on the following provisions of the Defence Act:
"Raising of Regiment
3. Subject to and in accordance with this Act, there shall be raised and maintained in Bermuda one military force to be called the Bermuda Regiment, consisting of such number of officers and men as may from time to time be determined by the Governor after consultation with the Minister of Finance; and such military force is in this Act referred to as the regiment.
Voluntary enlistment supplemented by compulsory military service
4. The regiment shall be raised and maintained by means of voluntary enlistment, and also, in case voluntary enlistment proves inadequate for the raising or maintenance of the regiment, by means of compulsory military service, in the manner hereinafter in this Act provided."
Section 5 of the Defence Act provides that in exercising his powers and duties under the Act the Governor shall act in his discretion. Provision is made by sections 6 and 7 for the appointment of a Defence Board, to which the Governor is permitted to look for advice. Section 11 provides for the Governor to make Orders in relation to all matters relating to the Regiment, including pay and allowances. Sections 13, 13A, 15 and 16 deal with the liability to compulsory military service of "specified persons". These are defined by section 12(2) as male Commonwealth citizens with Bermudian status. Specified citizens, unless exempted, become liable once they reach the age of 18 to be selected by ballot to fill vacancies in the Regiment. Section 14 provides for the enlistment of volunteers. Conscripts and volunteers serve under precisely the same conditions, including the term of service, which is three years and two months. At the end of that term they are entitled to volunteer for a further term of service. Section 17 is only of relevance to the invalidity argument and we shall refer to its provisions when we deal with that argument.
Facts in the public domain
In January 2005 the Governor, after discussions with Ministers, invited the Defence Board to provide him with advice on the Regiment in relation to:
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i) The demands likely to be placed on the Bermuda Regiment over the period 2006 to 2011;
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ii) The Regiment's desirable future mission, structure and training;
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iii) Based on present manning, structure and training, whether or not the Regiment could meet these demands or desires.
The Defence Board commissioned a Fitness For Role ("FFR") inspection from British Defence Staff, Washington. This was conducted by the British Army with assistance from officers from the Regiment and the Bermuda police. The FFR Report dated 29 November 2005 recorded a nominal strength of the Regiment of 633, "overborne by 24 against an establishment of 609". Of this number 483 were declared available for service. The Report concluded that in its current state the Regiment was able to fulfil its existing roles adequately but not as well as it could.
Those roles were more fully described in the Defence Board's Review dated February 2006. They are:
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i) Providing unarmed assistance to the Civil Authority by, inter alia, providing support in responding to crises and by providing Ceremonial Guards and a Regimental Band;
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ii) Providing armed assistance to the Civil Power in the case of a breakdown of normal civil order;
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iii) Providing assistance to Bermudian society;
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iv) Providing assistance to the international community.
The Defence Board gave detailed consideration to the strength of the Regiment, in the light of the FFR Report. It concluded that under current conditions the best deliverable strength of the Regiment was unlikely to exceed 500 persons and that at a deliverable strength of approximately 450 persons it should be capable of carrying out its current roles. The Defence Board considered:
"that the existing Regimental policy of accepting and encouraging all suitable male and females as volunteers should continue; and that there should be an increased emphasis on attracting volunteers."
The Defence Board found that remedial action was required in relation to pay, plant, infrastructure and military equipment in order to ensure that service in the Regiment was recognised as being valuable and meaningful. It identified a need to improve retention of soldiers who had completed the initial three years of service.
In relation to the size of the Regiment the Board recorded that this had been reduced from 703 to 630 after a Review by the Governor in 1992 and recommended that the established strength of the Regiment should "remain at 609". There is no evidence as to when this figure had been reduced from 630 to 609.
There is a paucity of evidence as to the proportion of the Regimental strength that was made up of volunteers. The Chief Justice was informed by counsel for the respondents that 13 women were currently serving and that 137 women had done so in the past. All of these will have been volunteers. Mr Burchall, who at the material time was the Administrator of the Defence Department, stated in an affidavit that only two volunteers enlisted in the year that Eve was conscripted. It can be inferred from this, and from data in the FFR Report and the Defence Board's Review, that the Regiment is largely made up of conscripts.
The discrimination argument
The appellants submit that because conscription is restricted to men the Human Rights Act 1981 ("the HRA") is infringed. As section 30B of the HRA confers primacy on that Act it will follow, if this submission is correct, that the power of conscription that the Defence Act purports to confer is invalid.
Section 2 of the HRA includes the following definition of discrimination:
"(2) For the purposes of this Act a person shall be deemed to discriminate against another person—
(a) if he treats him less favourably than he treats or would treat other persons generally or refuses or deliberately omits to enter into any contract or arrangement with him on the like terms and the like circumstances as in the case of other persons generally or deliberately treats him differently to other persons because—
…
(ii) of his sex;"
It is common ground that conscription constitutes discrimination against men within this definition. The issue is whether other provisions of the HRA renders this discrimination unlawful.
The provisions of the HRA upon which the appellants rely as rendering conscription unlawful are the following:
"Employers not to discriminate
6 (1) Subject to subsection (6) no person shall discriminate against any person in any of the ways set out in section 2(2) by—
(a) refusing to refer or to recruit any person or class of persons (as defined in section 2) for employment;
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(e) establishing or maintaining any employment classification or category that by its description or operation...
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