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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Why the Psychoactive Substances Act is much better than anyone will admit

Under the Psychoactive Substances Act it will not be a criminal offence for someone to possess for their own consumption recreational drugs too dangerous to be legally sold to the public.

From Thursday, it may be illegal for churches to use incense. They should be safe from prosecution though, because, as the policing minister was forced to clarify, the mind-altering effects of holy smells aren’t the intended target of the Psychoactive Substances Act, which comes into force this week.

Incense-wafters aren’t the only ones wondering whether they will be criminalised by the Act. Its loose definition of psychoactive substances has been ridiculed for apparently banning, among other things, flowers, perfume and vaping.

Anyone writing about drugs can save time by creating a shortcut to insert the words “the government has ignored its advisors” and this Act was no exception. The advisory council repeatedly warned the government that its definition would both ban things that it didn’t mean to prohibit and could, at the same time, be unenforcable. You can guess how much difference these interventions made.

But, bad though the definition is – not a small problem when the entire law rests on it – the Act is actually much better than is usually admitted.

Under the law, it will not be a criminal offence for someone to possess, for their own consumption, recreational drugs that are considered too dangerous to be legally sold to the public.

That sounds like a mess, and it is. But it’s a mess that many reformers have long advocated for other drugs. Portugal decriminalised drug possession in 2001 while keeping supply illegal, and its approach is well-regarded by reformers, including the Liberal Democrats, who pledged to adopt this model in their last manifesto.

This fudge is the best option out of what was politically possible for dealing with what, until this week, were called legal highs.

Before the Act, high-street shops were free to display new drugs in their windows. With 335 head shops in the UK, the drugs were visible in everyday places – giving the impression that they couldn’t be that dangerous. As far as the data can be trusted, it’s likely that dozens of people are now dying each year after taking the drugs.

Since legal highs were being openly sold and people were thought to be dying from them, it was obvious that the government would have to act. Until it did, every death would be blamed on its inaction, even if the death rate for users of some newly banned drugs may be lower than it is for those who take part in still-legal activities like football. The only question was what the government would do.

The most exciting option would have been for it to incentivise manufacturers to come up with mind-altering drugs that are safe to take. New Zealand is allowing drug makers to run trials of psychoactive drugs, which could eventually – if proved safe enough – be sold legally. One day, this might change the world of drug-taking, but this kind of excitement was never going to appeal to Theresa May’s Home Office.

What was far more plausible was that the government would decide to treat new drugs like old ones. Just as anyone caught with cocaine or ecstasy faces a criminal record, so users of new drugs could have been hit with the same. This was how legal highs have been treated up until now when one was considered serious enough to require a ban.

But instead, the government has recognised that its aim – getting new drugs out of high-street shop windows so they don’t seem so normal – didn’t depend on criminalising users. A similar law in Ireland achieved precisely this. To its credit, the government realised it would be disproportionate to make it a criminal offence to possess the now-illegal highs.

The reality of the law will look chaotic. Users will still be able to buy new drugs online – which could open them to prosecution for import – and the law will do nothing to make drugs any safer. Some users might now be exposed to dealers who also want to sell them more dangerous other drugs. There will be few prosecutions and some head shop owners might try to pick holes in the law: the government seems to have recognised that it needed a better definition to have any chance of making the law stick.

But, most importantly for those of us who think the UK’s drug laws should be better at reducing the damage drugs cause, the government, for the first time, has decided that a class of recreational drugs are too dangerous to be sold but that it shouldn’t be a crime to possess them. The pressure on the government to act on legal highs has been relieved, without ordinary users being criminalised. For all the problems with the new law, it’s a step in the right direction.

Leo Barasi is a former Head of Communications at the UK Drug Policy Commission. He writes in a personal capacity