The High Court has delivered an extremely critical judgment against the Ministry of Defence in relation to its response to a legal challenge brought by two survivors of rape. See the judgment here.
The Centre for Military Justice is acting for two women that are bringing a legal challenge to the MoD’s blanket policies that effectively prevent any service person communicating with the press, with Parliament (including the Defence Committee) or with campaign organisations, on any matter connected to their service, without seeking the prior consent of the MoD.
They fear that if they inform the MoD that they wish to speak out, their careers will suffer. The MoD is of course the very institution that they hold wholly or partly responsible for their unfair treatment.
The women are survivors of rape in the armed forces and they have a lot to say about their experiences – such as their impressions of the court martial process, the way their chain of command supported them (or not) throughout the process, the punitive consequences for them of reporting, issues with service policing and how they feel about how services are tackling problems of sexual harassment and sexual assault generally.
The claimants are not arguing that there should be an unqualified right for all service personnel to communicate publicly on all operational matters, but they are saying that the policies are far too broadly drawn – because they prevent them and others from speaking out about perfectly legitimate issues, on which their voices really matter, mainly for the reputational convenience of the MoD.
MoD policy for years has been that no service person can communicate publicly with the press, with Parliament or with campaign organisations without first notifying the MoD that they want to do so and securing MoD consent. The problems with this are obvious. Most people simply will not seek that consent in the first place because of the feared impact on their career, victimisation and because of what information they will have to share, just to get consent.
In 2021, the Defence Committee, while conducting its inquiry into ‘Women in the Armed Forces’, was concerned about what it Chair referred to as this ‘gagging order’ and secured one-off consent from the Defence Secretary to enable women to respond to the Inquiry in writing. In that way, more than 4000 responses were received, indicating service women have a great deal to say. But when we asked for the MoD’s consent to allow our clients to speak to the press about the Atherton report after it was published, this was flatly refused. At the same time, the MoD was quite happy to keep asking one of the Claimants to be a ‘poster girl’ in the press for the armed forces, for its recruitment purposes.
The MoD kept promising for years that it would review its policies and change them. It didn’t do this and so our clients issued their judicial review last September and the High Court granted permission for them to proceed in December 2024. Finally the MoD published an amended policy in February this year, more than 4 years after the women first raised their concerns. The amended policy does not fix the problem at all. And in any case, it does nothing to help the women that have been gagged from speaking all these years.
The policy remains principally for the benefit of the MoD, not service personnel. It is not right that those with the best and most direct experience of the matters the MoD is currently grappling with are prevented from engaging in reasonable public debate and discussion about them.
As can be seen from the judgement, the court was extremely critical of the MoD’s conduct to date. Our clients are bringing this case on behalf of all service personnel.
The claimants are represented by the CMJ and by counsel Oliver Sanders KC and Emma-Louise Fenelon of 1 Crown Office Row. https://www.1cor.com/london/