Why the military covenant should not be made law

In a democracy, there is no mutuality of obligation between the armed forces and the government.

The enshrining of the military covenant into statute is a dangerous mistake. Oh, it's good politics. In fact, it's mandatory politics. The minister, or shadow minister, who attempts to stand in the way of the press and public clamour to "back our boys" won't remain a minister for long.

But the reality is that this proposed law is wrong in logic, practice and principle. I'm still at a bit of a loss to find out where this concept of the military covenant actually came from. Some claim it dates back to Henry VIII, which is odd, given that in his time Britain, or England, as it was, didn't even have a standing professional army or navy.

Obviously, the values underpinning it are sound. Britain's armed forces are ritualistically praised by politicians for their courage and professionalism, then rewarded with lousy pay, dysfunctional equipment and disgusting living conditions. When they cease to serve, the gratitude of a grateful nation has all too often consisted of a sleeping bag beneath the arches of Charing Cross railway station. But, in our desire to right that manifest wrong, it is important we do not inadvertently, and recklessly, alter the delicate nature of the relationship between the armed forces and the democratic state.

A number of arguments have been made in support of codifying the covenant in law. The main one is that members of the armed forces, uniquely, must be prepared to pay the "ultimate price" for their service. That is factually inaccurate, as the family of the Northern Ireland Police Service officer Ronan Kerr would tragically attest. Policemen, firemen and lifeboatmen, to pick just three professions, all accept death as an occupational hazard. That is not in any way to diminish the heroism of our soldiers, sailors and airmen. But heroism is not the unique preserve of the military.

How, too, is this enshrining of the covenant going to function in practice? Think of the following clause: "British soldiers must always be able to expect fair treatment, to be valued and respected as individuals."

What, in law, will be the definition of "respected as individuals"? If you order someone to charge an enemy machine gun nest, could you really be said to be valuing and respecting them?

A step change too far

The grim reality of military service is that, on occasion, personnel will be sacrificed to secure broader national objectives. The welfare of the individual will at times, by necessity, become secondary.

But there is a much more fundamental problem with this proposed legislation, one that goes to the heart of the power balance existing between ministers and generals. As the covenant states: "the unique nature of military land operations means that the army differs from all other institutions, and must be sustained and provided for accordingly by the Nation". It represents, it adds, a "mutual obligation".

That is wrong. In a democracy there is no mutuality of obligation between the armed forces and the civil power. The former is subservient to the latter. That is the founding principle on which all democracies are based.

There are rare exceptions to this rule. If the military are given orders that are illegal, they have a right to disobey them. But the implications of such a schism are so great that they can only be allowed to occur in extremis. Control of the military should be removed from the hands of the politicians only in the most exceptional circumstances. And to abolish that principle explicitly, via statute, is an incredibly dangerous step to take.

Because these are not abstract notions. In the run-up to the invasion of Iraq, the service chiefs sought independent advice on the legality of that operation. Admiral Sir Michael Boyce, chief of the general staff, specifically demanded unambiguous advice from Lord Goldsmith, then attorney general, that the US-led invasion was legal under international law and that existing UN resolutions provided a basis for the use of force.

Whatever your views on that conflict, imagine for a second if the response from the lawyers had not been adequate. If we had faced a situation where the prime minister had ordered our armed forces into battle, but the service chiefs had refused. Britain would have faced a constitutional crisis.

This is big politics that goes way beyond the peeling walls of the NAAFI and the level of the service pension. These matters certainly need to be addressed, but in a way that does not undermine the primacy of our elected politicians, or place them on an equal legal footing with the generals they purportedly command.

The true covenant between the military and its government is that it will serve it loyally, without fear or favour. If necessary, it will march and fight and die for policies or causes that it does not necessarily understand or support. Theirs is not to reason why. We replace that covenant at our peril.

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What type of Brexit did we vote for? 150,000 Conservative members will decide

As Michael Gove launches his leadership bid, what Leave looks like will be decided by Conservative activists.

Why did 17 million people vote to the leave the European Union, and what did they want? That’s the question that will shape the direction of British politics and economics for the next half-century, perhaps longer.

Vote Leave triumphed in part because they fought a campaign that combined ruthless precision about what the European Union would do – the illusory £350m a week that could be clawed back with a Brexit vote, the imagined 75 million Turks who would rock up to Britain in the days after a Remain vote – with calculated ambiguity about what exit would look like.

Now that ambiguity will be clarified – by just 150,000 people.

 That’s part of why the initial Brexit losses on the stock market have been clawed back – there is still some expectation that we may end up with a more diluted version of a Leave vote than the version offered by Vote Leave. Within the Treasury, the expectation is that the initial “Brexit shock” has been pushed back until the last quarter of the year, when the election of a new Conservative leader will give markets an idea of what to expect.  

Michael Gove, who kicked off his surprise bid today, is running as the “full-fat” version offered by Vote Leave: exit from not just the European Union but from the single market, a cash bounty for Britain’s public services, more investment in science and education. Make Britain great again!

Although my reading of the Conservative parliamentary party is that Gove’s chances of getting to the top two are receding, with Andrea Leadsom the likely beneficiary. She, too, will offer something close to the unadulterated version of exit that Gove is running on. That is the version that is making officials in Whitehall and the Bank of England most nervous, as they expect it means exit on World Trade Organisation terms, followed by lengthy and severe recession.

Elsewhere, both Stephen Crabb and Theresa May, who supported a Remain vote, have kicked off their campaigns with a promise that “Brexit means Brexit” in the words of May, while Crabb has conceded that, in his view, the Leave vote means that Britain will have to take more control of its borders as part of any exit deal. May has made retaining Britain’s single market access a priority, Crabb has not.

On the Labour side, John McDonnell has set out his red lines in a Brexit negotiation, and again remaining in the single market is a red line, alongside access to the European Investment Bank, and the maintenance of “social Europe”. But he, too, has stated that Brexit means the “end of free movement”.

My reading – and indeed the reading within McDonnell’s circle – is that it is the loyalists who are likely to emerge victorious in Labour’s power struggle, although it could yet be under a different leader. (Serious figures in that camp are thinking about whether Clive Lewis might be the solution to the party’s woes.) Even if they don’t, the rebels’ alternate is likely either to be drawn from the party’s Brownite tendency or to have that faction acting as its guarantors, making an end to free movement a near-certainty on the Labour side.

Why does that matter? Well, the emerging consensus on Whitehall is that, provided you were willing to sacrifice the bulk of Britain’s financial services to Frankfurt and Paris, there is a deal to be struck in which Britain remains subject to only three of the four freedoms – free movement of goods, services, capital and people – but retains access to the single market. 

That means that what Brexit actually looks like remains a matter of conjecture, a subject of considerable consternation for British officials. For staff at the Bank of England,  who have to make a judgement call in their August inflation report as to what the impact of an out vote will be. The Office of Budget Responsibility expects that it will be heavily led by the Bank. Britain's short-term economic future will be driven not by elected politicians but by polls of the Conservative membership. A tense few months await. 

Stephen Bush is special correspondent at the New Statesman. He usually writes about politics.