United Kingdom Military Law: Autonomy, Civilianisation, Juridification

Date01 January 2002
AuthorG. R. Rubin
Published date01 January 2002
United Kingdom Military Law: Autonomy,
Civilianisation, Juridification
G. R. Rubin*
This paper argues that military law has undergone a long-term process of change.
Previously an autonomous legal system with little civilian input at the
administrative, judicial and policy-making levels, military law became subject
to a consensual policy of civilianisation from the early 1960s, reflected primarily
in the adoption of civilian criminal law norms by the military justice system. More
recently there has emerged the juridification of significant areas of military
relations in respect to discipline and certain other terms of service which hitherto
have not been subject to externally imposed legal regulation. Explanations for the
shifts from autonomy, through civilianisation, and then to juridification, ranging
from political and social developments to new human rights and equal
opportunities discourses, are offered for such changes.
Over the past few years it has become increasingly clear that United Kingdom
military law has ceased to be the narrow preserve of military lawyers and of a
handful of civilian lawyers who occasionally appeared before courts martial. Thus
challenges before the European Court of Human Rights (ECHR) in respect of the
perceived lack of independence of courts martial (which eventually resulted in
remedial legislation); superior court sentencing guidelines for courts martial; the
criminal consequences of the use by service personnel of lethal force; and recent
legislation in 2000 and 2001 designed to render military disciplinary powers
compliant with the Human Rights Act are the most obvious manifestations of the
change.1However, numerous equal opportunities and equal treatment cases against
the armed forces which have been conducted before employment tribunals,
divisional and appeal courts and European courts,2together with the launching of
novel tort claims against the military,3are further evidence that military law and
ßThe Modern Law Review Limited 2002 (MLR 65:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.36
*University of Kent at Canterbury
On these points see Findlay vUnited Kingdom (1997) 24 EHRR 221 and various provisions of the
Armed Forces Act 1996, especially ss 15–17 and Sched 1 (court martial independence); RvMcEnhill,
The Times, 4 February 1999 (CMAC; sentencing guidelines); R. vClegg [1995] 1 All ER 334 (HL lethal
force); and the Armed Forces Discipline Act 2000 and the Armed Forces Act 2001 (disciplinary powers).
2 They include (a) sex discrimination cases now governed by the Armed Forces Act 1996, ss 21–27.
See A. Arnull, ‘EC Law and the Dismissal of Pregnant Servicewomen’ (1995) 24 Industrial Law
Journal 215; (b) sexual harassment claims, for example, Sunday Times, 4 January 1998; The Times,
25 May 1999; (c) sexual orientation discrimination cases, for example, Smith and Grady vUnited
Kingdom (2000) 29 EHRR 493 and Lustig-Prean and Beckett vUnited Kingdom (2000) 29 EHRR
548; and (d) equal treatment claims, for example, Sirdar vArmy Board and Secretary of State for
Defence ECJ C-273/97, 26 October 1999.
3 They include claims raising a duty of care in respect to (a) post-traumatic stress disorder; see 13 The
Lawyer No 24, 21 June 1999; (b) the conduct of battle; see Mulcahy vMinistry of Defence [1996] 2
All ER 753 (CA); (c) bullying; see The Guardian, 31 October 1996; (d) potentially fatal excessive
drinking by subordinates and a failure to provide adequate medical care when a related emergency
arose; see Barrett vMinistry of Defence [1995] 3 All ER 87 (CA); (e) ‘Gulf War Syndrome’; see The
Lawyer 30 September 1997; and (f) chemical warfare experiments at Porton Down; see The
Guardian, 29 November 2000. See also RvMinistry of Defence, ex parte Walker [2000] 1 WLR 806
(HL), an unsuccessful judicial review challenge to a government refusal to award, in respect to an
injury inflicted by local irregulars on a British soldier in Bosnia, sums made available under an
overseas service injury compensation scheme
civilian law are intersecting on a wider front in domestic law and at greater
frequency than hitherto.4
The regularity with which military activities are now being exposed to the
scrutiny of the civilian courts constitutes a portrait of military law which would
have been unrecognisable to its specialist practitioners forty (or even twenty) years
ago. For prior to this development judicial approaches to military law were
strongly characterised by a policy of abstentionism, whilst governments them-
selves avoided, except in rare and egregious cases (see below), close scrutiny of
existing arrangements. Indeed the isolation from civilian legal oversight of military
law, which I describe as military law autonomy, remained dominant notwith-
standing the existence of the (civilian) Courts-Martial Appeal Court (CMAC)
which had been created in 1951. For until very recently this civilian court has had
only a marginal influence on military law.
The origins of the transformation in military law can be traced, first, to the mid-
1960s when a combination of factors such as pressure group activity, greater
parliamentary activism, the expansion of judicial review more generally, and even
a limited commitment to legal ‘modernisation’ by the military authorities
themselves, began to emerge. The initial shifts away from military law isolation
were mainly reflected in the conscious borrowing by the court-martial system of
substantive and procedural rules which had (usually recently) been introduced
within the civilian criminal law system. This I describe as the process of
civilianisation of military law.
Subsequently this development was complemented in recent years by more
radical shifts within the framework of military law. These in turn were a reflection
of both the widespread, indeed global, legal discourses on human rights and equal
opportunities, and the rise, according to some, of a compensation culture (which all
pointed to a decline in that unquestioning deference to superior authority which is
associated with military service). External legal norms were now being imposed on
the armed forces in situations where such legal norms had hitherto been absent.
This constitutes the juridification of military law.
For much of the period under consideration in this paper, that is, from the mid-
nineteenth to the mid-twentieth century, military justice applied in courts martial
and dispensed summarily by commanding officers, as well as military
‘administrative’ law embodying the plethora of military regulations governing
such matters as enlistment, terms and conditions of service and discharge and
dismissal, constituted a legal system administered primarily by the armed forces
themselves, and applicable, with few exceptions, only to members of the armed
forces. Civilian input was limited to the presence of experienced barristers who, as
judge advocates at some but not all courts martial, advised (but until 1997 did not
give directions) on matters of criminal law, evidence and procedure. The civilian
Judge Advocate General advised post-trial, but did not deliver judgments per se on
the legality of court-martial proceedings. Finally it is relevant to note that until its
repeal in the Crown Proceedings (Armed Forces) Act 1987, section 10 of the
Crown Proceedings Act 1947 normally prevented legal proceedings against the
Crown by service personnel or by their representatives in circumstances which
might otherwise give rise to a claim in tort. The 1947 Act therefore enhanced the
insulation of the armed forces from at least one sphere of judicial scrutiny.
4 Lest it be thought that a compensation culture is one-sided, it may be noted that in February 1998, the
Ministry of Defence issued a writ for more than £8 million against the estate of a pilot who died in a
mid-air collision with a Jaguar aircraft. See The Lawyer, 24 February 1998.
January 2002] United Kingdom Military Law: Autonomy, Civilianisation, Juridification
ßThe Modern Law Review Limited 2002 37

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