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The Constitutional Question

#1
Forgive my ignorance on the matter, and apologies for starting yet another CGS thread, but I am afraid this might be lost in the noise otherwise.

A number of current and former politicians, as well as political journalists have condemned CGS' speech for being 'unconstitutional'. This raises the question in my mind - how so?

I am aware of the prohibition on members of the armed forces speaking with journalists without first gaining permission, however:

(a) this is an internal regulatory matter for the armed forces and has nothing watsoever to do with our 'constitution'

(b) CGS had ministerial aproval for his interview.

I understand and support the primacy of parliament in so far as the decision making process which dictates our deployments and funding etc etc. Furthermore I appreciate that the monopoly of force enjoyed by the armed forced necessitates such political primacy in any democracy.

I do not understand, however, how CGS remarks, which were not as I see it politically partisan but merely reflected his professional opinion of the state of play with various deployments and the army, can be considered unconstitutional.

How are CGS' remarks unconstitutional?

Where is it written that CGS may not, in an authorised interview, give his opinion?

If it is part of our (in)famous unwritten constitution, what precedent is being invoked?*

I will lay my cards on the table - I am a libertarian and the last thing I would like to see is a politicised armed forces, but democracies are not immune from abusing compliant armed forces to commit great ills, as evidenced by the acquiescence of the Whermacht. The parralel is rather obtuse (though I note I am not the first to make it) but good democracy cannot flourish in a society where the plebiscite has no access to accurate information on the consequences of parliament's (not just this goverment's) decisions.

Pay_Mistri
[hr]
*I mean really, which exact precedent, and how does it relate to this case? Not just 'well we can't have another Cromwell'. Was it an act of parliament or perhaps a decision by the law lords? How does our constitution work anyway?
 
#2
Pay_Mistri said:
Forgive my ignorance on the matter, and apologies for starting yet another CGS thread, but I am afraid this might be lost in the noise otherwise.

A number of current and former politicians, as well as political journalists have condemned CGS' speech for being 'unconstitutional'. This raises the question in my mind - how so?

I am aware of the prohibition on members of the armed forces speaking with journalists without first gaining permission, however:

(a) this is an internal regulatory matter for the armed forces and has nothing watsoever to do with our 'constitution'

(b) CGS had ministerial aproval for his interview.

I understand and support the primacy of parliament in so far as the decision making process which dictates our deployments and funding etc etc. Furthermore I appreciate that the monopoly of force enjoyed by the armed forced necessitates such political primacy in any democracy.

I do not understand, however, how CGS remarks, which were not as I see it politically partisan but merely reflected his professional opinion of the state of play with various deployments and the army, can be considered unconstitutional.

How are CGS' remarks unconstitutional?

Where is it written that CGS may not, in an authorised interview, give his opinion?

If it is part of our (in)famous unwritten constitution, what precedent is being invoked?*

I will lay my cards on the table - I am a libertarian and the last thing I would like to see is a politicised armed forces, but democracies are not immune from abusing compliant armed forces to commit great ills, as evidenced by the acquiescence of the Whermacht. The parralel is rather obtuse (though I note I am not the first to make it) but good democracy cannot flourish in a society where the plebiscite has no access to accurate information on the consequences of parliament's (not just this goverment's) decisions.

Pay_Mistri
[hr]
*I mean really, which exact precedent, and how does it relate to this case? Not just 'well we can't have another Cromwell'. Was it an act of parliament or perhaps a decision by the law lords? How does our constitution work anyway?
Would it have been constitutional for him to lie? Blunkett, Portillo, Ashdown etc are people who, IMHO, are complete starngers to the Truth. You could bet your bottom dollar that if CGS had stood up and said that everything in Iraq was just jim-dandy and that overstretch in the Armed Forces was just a figment of the Press's imagination, every Governemnt Miinister would be quoting him saying how wonderful he was. Maybe that is Blunket's idea of being constitutional.
 
#3
Pay_Mistri said:
Forgive my ignorance on the matter, and apologies for starting yet another CGS thread, but I am afraid this might be lost in the noise otherwise.

A number of current and former politicians, as well as political journalists have condemned CGS' speech for being 'unconstitutional'. This raises the question in my mind - how so?

I am aware of the prohibition on members of the armed forces speaking with journalists without first gaining permission, however:

(a) this is an internal regulatory matter for the armed forces and has nothing watsoever to do with our 'constitution'

(b) CGS had ministerial aproval for his interview.

I understand and support the primacy of parliament in so far as the decision making process which dictates our deployments and funding etc etc. Furthermore I appreciate that the monopoly of force enjoyed by the armed forced necessitates such political primacy in any democracy.

I do not understand, however, how CGS remarks, which were not as I see it politically partisan but merely reflected his professional opinion of the state of play with various deployments and the army, can be considered unconstitutional.

How are CGS' remarks unconstitutional?

Where is it written that CGS may not, in an authorised interview, give his opinion?

If it is part of our (in)famous unwritten constitution, what precedent is being invoked?*

I will lay my cards on the table - I am a libertarian and the last thing I would like to see is a politicised armed forces, but democracies are not immune from abusing compliant armed forces to commit great ills, as evidenced by the acquiescence of the Whermacht. The parralel is rather obtuse (though I note I am not the first to make it) but good democracy cannot flourish in a society where the plebiscite has no access to accurate information on the consequences of parliament's (not just this goverment's) decisions.

Pay_Mistri
[hr]
*I mean really, which exact precedent, and how does it relate to this case? Not just 'well we can't have another Cromwell'. Was it an act of parliament or perhaps a decision by the law lords? How does our constitution work anyway?
I have wondered about that as well. Its not as if the General is saying "I am not sending any more troops to Iraq" so he cannot be said to be disobeying the orders of the government of the day.

In addition, the General is not part of the labour government so the Constitutional Convention that ministers should not generally publicly criticise the goverment is not an issue here.

I think the more plausible reason for all this talk about 'uncontitutionality' is that where this government is concerned, it is unconstitutional to disagree with the governemnt. :)
 
#4
It's important not to get lost in the muck-throwing when discussing this issue, not least because the Constitution is something that lawyers and politicians can weild very effectively to prevent future CsGS from telling it how it is.

I think, I'm not an expert understand, that the constitutional concern comes from the perceived threat posed by a politically active army to the sovereignty of Parliament. An army can be a potent political force (see Thailand), and most western constitutions strive to remove the army's ability to influence government.

When HMG is saying one thing, and the CGS is perceived to say the opposite, it can be argued that the General is using the influence of his position and his army to affect government. What he was doing was speaking his mind, but some (not I) would argue that his position, and the constitutional principle of an apolitical army, do not allow him to do that. Politicians would argue that he has the eternal soldier's choice: like it or lump it.

In this case, I can't imagine Labour will push the constitutional angle too much as it was probably they who set the CGS talking to release some of the pressure built up from various leaks, angry emails and soldiers' letters home. They didn't think it would backfire and be perceived as a personal attack on them, but they can't blame the General for following their orders.

I'd be surprised if the CGS will be allowed that much airtime again, but I hope his successors are of the opinion that there's only one occasion when their truthful views threaten the sovereignty of parliament - when our soverign parliament is lying.

That's a much bigger constitional issue than a talkative General.
 
#5
Of some relevance to the issue of the current British CGS and his remarks, would be the case of US General Billy Mitchell, whose outspoken advocacy for the development of airpower--to include the accusation of "near-treasonous" mis-administration of the nation's military power, got him a court martial, in which he was convicted of gross insubordination, and suspended from duty for 5 years without pay--he retired. All his predictions which were ridiculed during his court-martial were proven correct--from aircraft flying above the speed of sound, to airborne troops attacking from the sky, to a Japanese aerial attack on Pearl Harbor.

I'm not taking a position on the specific issue of the CGS' remarks, that's y'alls' business...I'm just pointing out a somewhat similar case in US history.
 
#6
RTFQ said:
It's important not to get lost in the muck-throwing when discussing this issue,
Quite agree.

I think, I'm not an expert understand, that the constitutional concern comes from the perceived threat posed by a politically active army to the sovereignty of Parliament. An army can be a potent political force (see Thailand), and most western constitutions strive to remove the army's ability to influence government.
Understood, however, my question is more specifically, where is it written / not-written in our constitution?

It's all very well to be concerned about the sovereignty of parliament, but if parliamentarians wish to beat this particular CGS (or any future CDS etc) with the 'unconstitutional' stick, I'd like to know the specific charge.

Otherwise, I might just suspect that those same parliamentarians were attempting to smear someone whose proffesional opinion is politically inconvenient.

Pay_Mistri
 
#7
Yank_Lurker said:
Of some relevance to the issue of the current British CGS and his remarks, would be the case of US General Billy Mitchell, whose outspoken advocacy for the development of airpower--to include the accusation of "near-treasonous" mis-administration of the nation's military power, got him a court martial, in which he was convicted of gross insubordination, and suspended from duty for 5 years without pay--he retired. All his predictions which were ridiculed during his court-martial were proven correct--from aircraft flying above the speed of sound, to airborne troops attacking from the sky, to a Japanese aerial attack on Pearl Harbor.

I'm not taking a position on the specific issue of the CGS' remarks, that's y'alls' business...I'm just pointing out a somewhat similar case in US history.
But it is another fine example of someone standing up and being counted, there are few enough public examples.
The standard rules are there for obvious reasons, but, from what I read and hear there is little respect for the upper echelons of the chain of command, so this episode will hopefully show 'the shop floor' that something is being dicussed at the highest levels and the upper echelons are not just filled with yes men, which often appears to be the case.
Conditions of service,overstretch, lack of, and malfunctioning equipment these are the basics for the broken Army to which he alludes.
"Something must be done"
Well perhaps 'something' has.
"With appologies to Winston Churchill
This is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."
 
#8
Yank_Lurker said:
Of some relevance to the issue of the current British CGS and his remarks, would be the case of US General Billy Mitchell [who] ...... was convicted of gross insubordination..
This is an interesting comparison precisely because whilst Gen Billy Mitchel was clearly outspoken he was (as I understand it) undermining the direct chain of command - POTUS being Commander in Chief.

He was also convicted for a Military Offence - insubordination - whereas CGS has comitted no Military Offence (he even obtained clearance for the interview).

Pay_Mistri
 
#9
Pay_Mistri said:
Understood, however, my question is more specifically, where is it written / not-written in our constitution?
Considering the Constitution is a collection of Ye Olde Poste It Notes and a shoebox of Acts of Parliament scrawled on the back of Banks Bitter beer mats, you'll have a job finding out the specifics I should imagine :wink:
 
#10
RTFQ said:
Considering the Constitution is a collection of Ye Olde Poste It Notes and a shoebox of Acts of Parliament scrawled on the back of Banks Bitter beer mats, you'll have a job finding out the specifics I should imagine :wink:
Precisely my point. I wonder if said parliamentarians are any more able to quote such a precedent, Ye Olde Post it Note or act of parliament?

Pay_Mistri
 
#11
Not quite 100% on topic but I query why those with opinions that what the general said was right but he should not have said it, did not raise these very same points themselves from their ivory towers/positions of influence?
 
#12
Our constitution is essentially just a set of precedents set by parliament and the courts.

The only way his remarks could be considered unconstitutional, is if Parliament has passed a bill against such action, or the courts had tried it and found it to be illegal/unconstitutional.

Neither of which has happened, its just politicians trying to sound smart by using a word with more than 2 syllables.
 

cpunk

LE
Moderator
#13
Unfortunately, the difficulty with our constitution is that much of it rests on convention and precedent, rather like the common law. The 'convention' that service chiefs don't make political statements is much like the convention that the Queen doesn't do likewise. It falls from the constitutional reality that Parliament - and particularly the elected element - is sovereign. Whatever we think about our situation, in our constitutional democracy it would be an abomination for the service chiefs to be suggesting in public that they oppose aspects of the government's policy: if they do and they can't resolve the issue in private, they should, as some politicos have suggested, make their point and leave.

The problem with CGS's statements is that everyone is assuming as much about what he didn't say as about what he did. In my view, there is little that is actually controversial in what CGS has said: it has always been our policy that we should get out of Iraq as soon as we can, for example. But we are all assuming, probably correctly, that what CGS actually means is that there is little point in hanging on to try to achieve something which isn't actually achievable. It's a very difficult path to tread and the reality is that he may well have damaged his credibility and reduced his influence with the government by speaking out in this way.
 
#14
Pay_Mistri said:
Precisely my point. I wonder if said parliamentarians are any more able to quote such a precedent, Ye Olde Post it Note or act of parliament?

Pay_Mistri
Quite. It's also telling when you look at the types of political entity that has come out to damn the General's unconstitutional ways; Portillo, Blunkett and Ashdown? Obviously the main parties are trying to discredit him by proxy, using their washed-up expendables, but those three?

I actually quite like the effect of a soldier speaking his mind - it presents our masters with the unflankable target - integrity - all they can do is chuck smoke and retreat, or attack and show their true colours. Encore!
 
#15
From what I read, the MOD press Officer with him was fine and dandy with his comments, so lets see:

He has permission to do the interview
The Government Press Officer was fine with the comments (guess they are out of a job now!!)
He didnt really say anything that was that bad

so what is un-constitutional about what he said??

EL Presidenti Tony got a bit miffed!! Thats all!

Shows what a shower all these Politicos are!

Up the Revolution!!!!!!!!! Clarkson for PM!!
 
#16
As I understand the problem it is that as a public servant he is not supposed to give an opinion on matters out side his area of responsibility.

If you accept that he can talk to the press about government policy then Sir Humphrey can do the same. It has always been accepted that civil servants, and because he is paid by the government he is a civil servant, do not have any politics and faithfully serve the government of the day. Or we go to the US system and its “all change” every 4-5 years.

It is not unconstitutional it is just not done.
 
#17
cpunk said:
Unfortunately, the difficulty with our constitution is that much of it rests on convention and precedent, rather like the common law.
Again, I understand this. But what precedent? A convention not to do something only exists if it was somehow established by precedent, otherwise I might say that by convention Armed Service Chiefs do not take tea with chimpanzees; it may well be true, but only trivially.

On the other hand perhaps, more charitably, the convention should be interpreted as one where Service Chiefs resign before criticising government policy. If this is the case, when did this convention begin and, should it continue in a world where access to information is both readily available and, paradoxically, tightly controlled and spun? Perhaps it should.

Whatever we think about our situation, in our constitutional democracy it would be an abomination for the service chiefs to be suggesting in public that they oppose aspects of the government's policy: if they do and they can't resolve the issue in private, they should, as some politicos have suggested, make their point and leave.
I quite agree; but as I understand it no Armed Forces Chief has suggested in public that they oppose aspects of the government's policy without first resigning. :D

Pay_Mistri
 
#18
offog said:
As I understand the problem it is that as a public servant he is not supposed to give an opinion on matters out side his area of responsibility.
However, the state of the Army and the nature of its deployments are certainly well within his area of responsibility.

Pay_Mistri
 

cpunk

LE
Moderator
#19
Pay_Mistri said:
Again, I understand this. But what precedent? A convention not to do something only exists if it was somehow established by precedent, otherwise I might say that by convention Armed Service Chiefs do not take tea with chimpanzees; it may well be true, but only trivially.
I don't know how the convention was established but I assume it follows the convention which establishes that the Monarch does not make political interventions. We swear an oath of loyalty to the Monarch and she has ceded her powers - including the power to direct the armed forces - to the elected executive.

Anyway, for me this demonstrates the unreality of the Military Covenant: it can only work if there is a bond of trust between the Government and the armed forces and CGS's intervention demonstrates that that bond isn't there. Whatever he might want to do on our behalf he isn't going to get anywhere unless the government listen to him and take him seriously. One can imagine the conversation:

PM: 'CGS, none of your carping: I want a win in Iraq, a win in Afghanistan and Darfur's looking pretty apt for some of the old Tony Blair magic.'

CGS: 'But, Prime Minister, the problem is that we're short of helicopters, short of properly armoured patrol vehicles, we're short of infantry and overstretch means that a lot of our best guys are leaving because their lives are so disrupted by the operational tempo. They feel that their willingness to do a tough job for a relatively poor salary is being exploited by the Government. There's this thing called the Military Covenant: our guys give up a lot of the rights and freedoms enjoyed by civilians on the understanding that we will make every effort to support them in all ways while they're doing it, and to look after them and their families if things go wrong and somehow they get killed or injured. So, if you give us the resources, we'll get on with it.'

PM: 'Fuck off mate! Never going to happen. Crack on... oh, and by the way, if you go public, you're fired'.

Which is why we need BAFF to represent our needs independent of the relationship between the CofC and the government.
 
#20
Yank_Lurker,

It may come as a surprise to you and Shrub but CGS is not subject to the UCMJ and particularly Article 88.

On a serious point;
As I understand the problem it is that as a public servant he is not supposed to give an opinion on matters out side his area of responsibility
If the use of military force in other countries and the deployment and support of soldiers on operations and those injured on ops isn't in CGS's area of responsibility what is? National Childcare policy?

CGS kept all his comments within his AOR by ensuring that everything was referneced against current ops. Islamic threat and its increasing spread in UK linked to the perceved Jihad and insurgency inflamed by the presence of our forces in Iraq etc.

Offog - you need to go back to the drawing board and start to design your argument again from the fundamentals
 

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