Service personnel should be allowed to exercise their right to freedom of speech to help bring about reform

02nd May 2021

The Telegraph has reported today that the CMJ is acting for three women that are bringing a legal challenge to the MoD’s blanket policy that prevents any service person communicating with the press, with Parliament 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 inevitably suffer.  The MoD is of course the very institution that they hold wholly or partly responsible for their unfair treatment.

In two of the cases, 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, and how they feel about how services are tackling problems of sexual harassment and sexual assault generally. In the third, the claimant has attempted to raise concerns about racism and sexism using the internal service complaints process, but believes her concerns have not been dealt with fairly.

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 current policy is far too broadly drawn and needs urgent amendment – because it prevents them and others from speaking out about perfectly legitimate issues, on which their voices really matter, all for the reputational convenience of the MoD.

Current MoD policy is 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.

In the recent Defence Inquiry into Women in the Armed Forces, its Chair, Sarah Atherton MP, concerned about what she referred to as this ‘gagging order’, secured one-off consent from the Defence Secretary to enable women to respond to her Inquiry in writing.  In that way, more than 4000 responses were received, indicating service women have a great deal to say.

But they are still prevented from speaking publicly about any aspect of the Inquiry and they will not be able to comment on its report once it is published. They are not able to express their views about the Wigston Report on Inappropriate Behaviours and the subsequent MoD refusal, confirmed just last week by the Chief of Defence People before the Defence Inquiry, to implement its key recommendation, that complex service complaints must be taken outside of the single services. They are not able to speak about current efforts by the MoD to restrict service personnel’s appeal rights in the already-highly-unfair service complaints process.

And service personnel that have suffered racial injustice in the forces cannot speak to Parliament or the press at all about their experiences, and are prevented from sharing publicly their reflections on their treatment and the regular bias and discrimination they have to put up with. A recent MoD internally-commissioned report revealed the existence of blatant racist behaviours in defence, open resistance to diversity and inclusion and the pervasiveness of the white, male prototype that is so undermining of inclusion.

In this way the policy, affecting all service personnel, has a disproportionate impact on women and BAME people.  They bear the brunt of the bullying, harassment and discrimination that goes on – yet their voices are muted. The potential for their voices and experiences to bring about important pressure for reform is prevented. Who benefits from this?

The MoD has said it will review its policies, but by the time it gets round to doing this, it will be too late for service women to comment or respond to the Defence Inquiry, which is due to report in June. Because of this policy, service personnel have already not been able to make known what they think about the current Judge Advocate General’s comments on the handling of rape in the court martial (‘our people are thoroughly good people, they drink too much, something goes wrong and they end up in court’). Service personnel will not be able to express an opinion on the proposed measures contained in the Armed Forces Bill currently going through Parliament (which include clauses on the handling of serious offences including sexual offences, the handling of service complaints or the make-up of court martial boards). The next Armed Forces Bill will not come around for another 5 years so there is an important opportunity that is being missed right now.

The policy is principally for the benefit of the MoD. 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.

The claimants are represented by the CMJ and by counsel Oliver Sanders QC at 1 Crown Office Row chambers and Sarah Hannett QC of Matrix Chambers.









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