Conscientious Objection to Military Service: Issues for the Country Report Task Forces - UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

Submission to the 91st Session of the Human Rights Committee: October 2007

SUMMARY:

On the surface, the UK’s record with regard to conscientious objection to
military service is exemplary. At no stage in the last century has the UK imposed obligatory military service without provisions allowing the exemption of conscientious objectors, and it is today
one of the few States to have an established procedure for the honourable early discharge from the armed forces of serving personnel who have developed a conscientious objection.

Inevitably, the detailed picture is not so uniformly positive. Of particular concern at present is the secretive and uneven implementation of the regulations permitting the discharge of in-service conscientious objectors. It is suggested that legislative provision would be more
appropriate.

CPTI would also draw the attention of the Committee to a growing movement in the UK of those who wish accommodation of their conscientious objection to the use for military expenditure of the money they have paid in tax.

Background

With the exception of the periods between 1916-1919 and 1939-1960 the UK’s armed forces have been manned by voluntary recruitment only, and the legislation which brought in both periods of conscription incorporated provisions permitting the exemption of conscientious objectors. The reference to conscientious objection in the Military Service Act of 1916 was one of the earliest legislative acknowledgments anywhere of this principle.¹ In practice, the treatment of conscientious objectors, particularly during the First World War, was often extremely harsh,²

Whereas
the First World War conscription was phased out as soon as feasible
after the end of hostilities, “national service” persisted for
some years after the Second World War; the final conscripts completed
their service in May 1963. During the Second World War, the
Appellate Tribunal which dealt with cases of conscripts who claimed a
conscientious objection was empowered to sit in an "advisory"
capacity to hear cases where a serving member of the armed forces
claimed to have developed a conscientious objection; in such cases it
was referred to as the "Advisory Tribunal".³

There was a period of uncertainty following the ending of conscription. Prasad
and Smythe⁴,
writing in 1968, referred to a parliamentary announcement extending
the window of time for reconsideration to new recruits from three
months to six months, made on 5^th February of that year,
which described this as a conscientious objection provison, and
described the procedures which still apply, although the principle is
now firmly established that the possibility of discharge applies to
any service personnel, whether full-time, part-time or reservist,
“who, during their service, develop a genuine conscientious
objection to further military service”.⁵
Successful application would lead to discharge on compassionate
grounds, and accordingly applications would be considered in the
first instance by the individual’s commanding officer and then
passed to a higher authority within the branch of the Services
concerned for decision. Rejected applicants would however be able to
appeal to the Appellate Tribunal.

In 1970, the Appellate Tribunal was replaced by the Advisory
Committee on Conscientious Objection (ACCO). “The ACCO is an
independent committee appointed by the Minister for Constitutional
Affairs.  It consists of a Chairman, a
Vice Chairman and 4 lay members.  A quorum is the Chairman, Vice
Chairman and 2 members.  ACCO hearings are held in public but
the procedure is relatively informal.  The applicant is not
informed of the Committee's decision on the day of the hearing as
their advice must first be formally accepted by the Secretary of
State for Defence's representative.  This representative is the
Director General Legal Secretariat.”⁶
An earlier source⁷ indicates that as initially set up, the ACCO was appointed by the Lord Chancellor with slightly different membership and quorum
rules, and expands slightly on the procedure: “There is no
swearing-in of witnesses, and, although the witnesses and the
appellant may be questioned, there is no cross-examination.” The
applicant may opt to be represented before the Committee and to be
accompanied by a witness.

Despite the formality of the advisory process, it is claimed that “A
successful appeal to the Advisory Committee is invariably accepted by
the Department as decisive on the question of conscience and the
applicant will immediately be granted a release from military
service.”⁸
Moreover, at least in the Army, the files of those who are granted
such release, with or without the involvement of the ACCO, are to be
marked “Conscientious objector - NOT TO BE RECALLED”⁹

On the other hand, “If the ACCO reject an appeal for discharge on the
grounds of conscientious objection, the appellant is interviewed by
their Commanding Officer and informed of the ACCO’s decision. The
appellant is also informed that he or she must continue their
military service under the same conditions that applied to them
before the ACCO heard their plea, until such time as they retire or
are allowed to resign, if an officer, or are discharged on completion
of their engagement or allowed to purchase their discharge, if a
Serviceman or woman. The appellant is advised that they continue to
be subject to Service discipline. However, they are not prevented
from resubmitting their case, provided that there is additional and
relevant evidence to be heard. In such cases the whole appeals
procedure is repeated.”¹⁰

Within
this broad framework, detailed rules are drawn up by the individual
branch of the armed services concerned, and are not made public.
Copies of the relevant documents have now been obtained by War
Resisters International (WRI) by a request under the Freedom of
Information Act, and more details are given in the separate
submission made by that NGO.

Problems with the current system

It must
be stated at the outset that the existence, independence, and
detailed procedures of the ACCO are an excellent model. Very few of
the world’s States allow for the possibility that a conscientious
objection may develop during military service and that non-punitive
procedures to allow the release from service of those affected are
essential to prevent an interference with the right to change one’s
religion or belief.

There are three major areas of concern.

1. Until
   such time as rejected and made the subject of an appeal to ACCO,
   applications for release on the grounds of conscientious objection
   are handled neither independently or publicly.
   


2. Such
   applications do not have a suspensory effect.


3. Information
   about the possibility of release has not been readily available to
   those affected. As noted above, the documents outlining the
   procedures to be followed have been treated as confidential.

Lack of independent and public process in the first instance

Between
its foundation in 1970 and 2001 ACCO handled only 36 appeals, 11 of
which it upheld.¹¹
Since 2001, not a single case has been referred to it.¹²
There is too little information to give a clear picture of the
number of cases which do not reach the stage of being appealed to
this independent tribunal.

Any
release of a conscientious objector by the individual services is
recorded simply in the figures giving the number of releases on
compassionate grounds. We are aware of the results of two
independent requests under the Freedom of Information Act for more
detailed figures, including unsuccessful applications. In March
2007, the Ministry of Defence reported that no records were
maintained of unsuccessful applications, but that in the period April
2001 to March 2006 there had been four successful applications, all
from Air Force personnel;¹³
in September 2007 that there had “since 2000” been three
applications from the Navy and three from the Air Force, and that one
of the Navy applications had been unsuccessful.¹⁴
In neither instance were any applications from the Army reported.
There are obvious inconsistencies between the two replies, but it
seems clear that no systematic records are kept of the number of
applications which are initiated but subsequently withdrawn, resolved
to the satisfaction of both parties by release not recorded as being
on grounds of conscientious objection (or by redeployment), or
overtaken by other events or processes, such as disciplinary
discharges, let alone of the number of instances in which the
would-be conscientous objector is dissuaded from registering a formal
application.

Both the
Armed Forces and genuine conscientious objectors have a legitimate
interest “to avoid abuse by those who simply wish to circumvent the
normal PVR (premature voluntary retirement) procedures”.¹⁵
Over and above this, however, it is no reflection on the will of
the armed forces to come to a satisfactory resolution of a crisis of
conscience faced by any of their personnel that they are acutely
aware that “objections to military service on grounds of conscience
can often attract disproportionate Parliamentary and public
interest”.¹⁶
It is therefore to be expected that there is a strong perceived
interest in resolving such cases by other means. The individual
conscientious objector, too, has more interest in achieving a
favourable outcome than in following a process, however correct,
where the request may be opposed more vigorously, but is the weaker
party in such negotiations. At the very least, by consenting to
release on other grounds, he or she loses the full protection against
subsequent recall, eg in time of emergency, which, as described above
is granted to those who have been released on explicit grounds of
conscientious objection.

Even if a
formal application is lodged, the naval and air force rules refer
explicitly to the possibility of persuading the applicant to
reconsider:

“The
applicant is to be interviewed by OC PMS and, having considered the
individual's personal circumstances, counselled on the possible
implications of such action.  It may be necessary to obtain
guidance from respective policy areas within the RAF PMA before
advising on the financial implications of premature exit on pensions
or incentive bonuses etc.  It may also be appropriate to suggest
that the individual should defer proceeding with the application for
a short period in which to reflect.  This period should not,
however, exceed 10 working days.”¹⁷

“It may
be appropriate in certain cases to suggest that an applicant should
defer his or her request for a week or two and give the matter
further thought. Such a delay must however be of only short
duration. Deferments of, for example, six months are not
acceptable.”¹⁸

These
examples illustrate that the existence of separate regulations will
inevitably lead to systematic inconsistencies between the different
branches of the armed forces. Beyond that, the handling of any
individual application will vary with the individual commanding
officer who receives it. In practice, there must always be a fear
that many conscientious objectors will find themselves in a very
hostile environment and under strong institutional and peer pressure
to reconsider.

Lack of suspensory effect

An
application for discharge as a conscientious objector has no
suspensory effect. There is no protection whatsoever against the
possibility that the conscientious objector may, after lodging the
application, be given a specific order which is directly
contradictory to the nature of the objection.

“the
applicant remains subject to Air Force Law and is required to respond
appropriately to lawful commands.  The applicant also remains
liable to normal disciplinary action regardless of whether the
commission of any offence is related to the plea of conscience.”¹⁹
This means that in the most extreme case a dismissal on
disciplinary grounds may not be unrelated to the conscientious
objection.

Lack of information

Information
about the possibility of applying for a discharge on the grounds of
conscientious objection is not included in any information routinely
given to new Army recruits.²⁰
This means that even where a conscientious objection could be clearly
articulated, the correct procedures will not always be followed. A
typical error is to absent oneself before revealing one’s
conscientious objections.²¹

Underlying
the specific concerns about unsatisfactory aspects of the current
system, general aspects of recruitment into the UK armed forces make
it likely that there is an unusually high latent demand for
in-service conscientious objection. The UK is unique among European
states in the high proportion of recruits into the armed forces who
are aged under 18 - 34% overall in 2005-2006, rising to 40% in the
army. Even more unusual is the systematic recruitment into the army
of 16-year-olds. In the same year, approximately 2,400 army recruits
were aged sixteen at their last birthday, as compared with
approximately 2,500 aged seventeen, 1,700 aged eighteen and
progressively fewer at higher ages.²²
This implies that sixteen-year-olds represented very nearly 20% of
all recruits. The presence of minors in the ranks, particularly in
such large numbers, poses a number of problems which were highlighted
by the House of Commons Defence Committee in its “Duty of Care”
report²³,
but also raises specific issues with regard to conscientious
objection. It is reasonable to assume that those who enlist at such
a young age are more likely than others to find their outlook
subsequently changing as they mature; in some cases this will result
in the development of a conscientious objection.

Moreover,
the low recruitment age is set in order to attract those who leave
formal education at the first legal oportunity. The Army’s own
research indicates that approximately half of all recruits have
literacy and numeracy skills equivalent to those of an average
11-year-old.²⁴
This implies that a large proportion of army recruits would not be
able to articulate a claim of conscientious objection in those terms,
no matter how genuine the objection. Information on the
possibilities is the very least that could be done to mitigate this.
As it stands at the moment, the fact that there have been no recent
successful applications in the most numerous, but least skilled, of
the three services strongly suggest that the current procedures place
a strong premium on articulacy.

Conscientious objection to taxation for military purposes

No UK
citizen who is now below the age of 65 has been faced with a call-up
to perform military service. Despite this, the UK has remained a
major military power. British troops have been prominently engaged in
diverse, sometimes highly controversial, campaigns in many parts of
the world. Technological sophistication and professionalism have
taken the place of mass recruitment. The UK has maintained a nuclear
deterrent, which is the supreme example of capital expenditure taking
the place of manpower in terms of military readiness.

It is not
necessary to elaborate these arguments in detail to explain why the
belief has been widespread among UK citizens that they no less
effectively conscripted into contributing to the military activities
of the State through the payment of tax as in other circumstances
they might have been through personally bearing arms. Over the
years, many have accordingly claimed a conscientious objection to
paying towards these activities. Many have attempted, pending
assurances that it will be diverted to other areas of public
spending, to withhold the proportion of their tax assessment which
they calculate goes towards military expenditure. The website of
Conscience - The Peace Tax Campaign²⁵
lists four cases between 1986 and 1995 where objectors were even
imprisoned for a continued conscientious refusal to pay. A very much
larger number have ultimately paid under protest, or have had no
choice in the matter because of the deduction at source of tax on
earned income.

The Human
Rights Committee, although not directly involved, should be aware
that in January 2006 an application was lodged at the European Court
of Human Rights by seven UK citizens who had unsuccessfully brought a
joint action in the British courts for judicial review of their
individual cases against the tax authorities, claiming a violation of
Articles 9 (Freedom of thought, conscience and religion) and 14
(Non-discrimination) in conjunction with 9 of the European Convention
on Human Rights. Further details, including the full text of the
submission to the European Court of Human Rights, can be read on the
group’s website: www.peacetaxseven.com .CPTI is actively working
with and supporting the “peace tax seven”.

Suggestions for the list of issues:

CPTI
suggests that the UK might in the list of issues be invited to
consider improvements to the existing arrangements concerning
service personnel who develop a conscientious objection to further
service, for instance:

1. enshrining
   in law (eg in the periodic Armed Forces Acts) the procedures for
   dealing with applications for release.


2. that
   all applications be referred in the first instance to an independent
   tribunal


3. that
   a mention of release on grounds of conscientious objection be
   included in the information supplied to all recruits, together with
   an indication of where to obtain further guidance.

and
that furthermore consideration be given to what measures might be
feasible in order to minimise the risk that a serviceman or -woman
who has applied for release on grounds of conscientious objection
might unnecessarily be faced with subsequent orders blatantly
contrary to the nature of the objection.

21^st September 2007.

Notes