The unlawful deployment of 77th Brigade’s information warfare capabilities during the pandemic, with the Brigade spying on the general public and on Members of Parliament, has raised a number of constitutional issues.
These include questions about how the Rt Hon. Tobias Ellwood MP can be eligible to sit as the Member of Parliament for Bournemouth East and can chair the House of Commons Defence Select Committee whilst also being a reservist Lieutenant Colonel for the Brigade.
This dual office-holding surely brings both the Armed Forces and Parliament into grave disrepute. As an MP, Ellwood is required to faithfully discharge the high trust put on him by the electors of Bournemouth East to, amongst other things, freely and impartially debate and vote upon Armed Forces legislation, without whose regular renewal the Bill of Rights outlaws the existence of any British armed forces. He has also been tasked with holding the Armed Forces and Ministry of Defence to account as Chairman of the Defence Select Committee.
Ellwood’s committee chairmanship is particularly concerning in light of revelations of 77th Brigade’s activities during the pandemic. This is because he has chaired the Defence Select Committee since 29 January 2020 and thus during the whole of the pandemic. [1]
Was Ellwood briefed on or involved in 77th Brigade’s pandemic role? Could his dual office-holding have contributed to the Committee’s evident failure to conduct hearings into the Brigade’s activities now that they have come to light?
Honouring two oaths
Ellwood has sworn two conflicting oaths:
I […] swear by Almighty God that I will be faithful, and bear true allegiance to his Majesty King Charles III, his heirs and successors, and that I will as in duty bound, honestly and faithfully defend his Majesty, his heirs and successors in person, crown and dignity, against all enemies, and will observe and obey all orders of His Majesty, his heirs and successors and the generals and officers set over me.
—Armed Forces Oath of Allegiance to the King[2]
I [...] swear by Almighty God that I will be faithful and bear true allegiance to His Majesty King Charles III, his heirs and successors, according to law. So help me God.
—Parliamentary Oath of Allegiance
A member of HM Armed Forces and a Member of Parliament must both swear an oath to the King to exercise their office. In contrast to MPs, however, members of the Armed Forces also swear to obey all orders from His Majesty and the generals and officers set above them.
Imagine also the prospects for a member of the Armed Forces who voted against a war or an Armed Forces Bill that the flag officers supported, given the military doctrine of obedience. It is also not beyond all likelihood that a serving MP who was in the military could find himself expressly ordered to speak or vote a certain way in Parliament.
Yet in our constitution, as set out in a previous article regarding the unlawfulness of domestic deployment of 77th Brigade, Members of Parliament are tasked with freely and impartially debating and voting on armed forces legislation and the engagement of our armed forces in any war for the defence of a place not owned by the Crown of the United Kingdom (such as, recently, Iraq, Syria or Ukraine). The Preamble to the Bill of Rights 1688 stipulates as a constitutional red line:
That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.
That sacred civilian legislative role, again, is inconsistent with being beholden by oath to any orders from His Majesty and any generals and officers. To the contrary, MPs should be free to criticise the King, generals and senior officers. If they cannot, they are unable to represent their constituents.
Serving two masters
Active military service is also in a practical sense incompatible with being an MP. It involves abandoning constituents for a protracted period of time, and possibly permanently if the worst should happen. This leaves a constituency without a Member of Parliament, who is by the nature of his duty tasked with attending what the Bill of Rights 1688 calls frequent Parliaments, the purpose of that frequency being (according to Art. 13):
for Redresse of all Grievances and for the amending strengthening and preserveing of the Lawes.
If democracy is worth fighting for, is it not worth maintaining during a war, particularly when a world war can take years—or a cold war decades—to resolve? It is extremely unlikely that any war effort would be lost because a hundred or so Members of Parliament did not fight in battle. More likely by far that the Government would make foolish decisions in their absence, without them there to carry out their duty to hold the Crown to account.
For these reasons, members of the regular Armed Forces are disqualified from being Members of Parliament by Art.1(1)(c) House of Commons Disqualification Act (1975) [3] and are prohibited from many political activities:
Provided also that nothing herein contained shall extend or be construed to extend to any Member of the House of Commons being an Officer in Her Majesties Navy or Army who shall receive any new or other Commission in the Navy or Army respectively.
—s. 32 Regency Act 1705[4] and s. 27 Succession to the Crown Act 1707[5]
Until 1957, the above clauses applied to provide broader prohibition—that was nonetheless breached during the two World Wars. 164 MPs were off serving with the armed forces in January 1916[6] and a patently unconstitutional Act was passed in 1939 to allow MPs to sign up[7], rendering a substantial proportion of the House of Commons incapable of freely and impartially debating the war effort on behalf of their constituents at the time that scrutiny was most important.
A loophole for Reservists and Auxiliaries, etc.
The loophole that allows Ellwood to sit in Parliament and hold the chairmanship of the Defence Select Committee was created in 1957 and is now found in s. 3 of the 1975 Disqualification Act.
The section exempts from disqualification retired or emergency-list, emergency-commissioned and reservists of the regular Armed Forces. Should such people be recalled for service, they are not then disqualified, despite it being the case that a regular MP will be disqualified if he signs up with the Armed Forces. Such non-disqualified reservists in Parliament will then be obliged to accept orders on matters that they may have a duty to debate in Parliament.
Also expressly allowed are to sit in Parliament are an Admiral of the Fleet, a Field Marshal or Marshal of the Royal Air Force, if they do not for the time being hold an appointment of command in the naval, territorial or air forces. Also, a person is not disqualified from the Commons by reason of their being a member of the Royal Observer Corps unless they are employed full-time.
At the time when these clauses were written, a Memorandum (legal advice) submitted to the Select Committee by Parliamentary Counsel recognised that allowing reservists and auxiliaries to sit in Parliament did raise the question of whether they should then become disqualified if subsequently called up for active duty.
These post-war government lawyers expressed the finding that it would be “distinctly odd” to allow them to sit, only for a by-election to be forced if they are called up to active service. This correct observation should have led the Committee to retain the previous status quo, ensuring that all members of the Armed Forces are entirely ineligible from being MPs.
Instead, the fudge was created, and we are now in the absurd position of Tobias Ellwood potentially having to be called up by 77th Brigade to spy on MPs on behalf of the Crown in its Cabinet Office guise during any national crisis, whilst chairing the very Defence Select Committee that should safeguard against such atrocities.
Mr Ronald Bell, MP for Beaconsfield, raised such a concern to the Select Committee regarding the first form of this fudge, the 1957 Disqualification Act[8], at the time of its drafting. He observed that any MP could be compelled to serve in the regular Armed Forces of the Crown if drafted, with this being the only office that an MP could be compelled to take that would render him ineligible to be an MP. Reservists and the like would then have an unfair exception, because if they were called up, they could retain their seat.
MPs at the time seemed more concerned about whether a role was practically compatible with sitting in the Commons: would it take an MP away from his duties for an unreasonable period of time? This predominated in their legislative reasoning rather than the greater constitutional concerns regarding conflicts of interest and the chance, however slim, of failing to mitigate the future risk of martial law and military dictatorship.
The Committee considered whether a reservist, etc., called up for active service would become ineligible after three months of active service, seeing that a longer period of absence than that may cause unacceptable loss of an MP to a constituency. That draft clause was not, however, incorporated in the final 1957 Disqualification Act.
Remedy
This problem remains, and the 1975 Act should therefore be amended to secure that no MP can be drafted to serve in the Armed Forces, thereby forcing Parliament’s hand to block conscription for MPs by statute at a time when it would not be otherwise politically acceptable to make such an exemption.
This should be particularly the case during times of war, to ensure that any war effort can be freely and impartially debated in Parliament, and so that those who remain at home continue to be represented at Westminster.
Section 3 of the 1975 Disqualification Act should also be entirely repealed so that the conflict of interest cannot occur again in the next Parliament, with all reservists, auxiliary and other non-full-time members of the Armed Forces disqualified for running in the next election.
Transitional measures can be put in place for existing MPs prior to the next election. However, there should also be an urgent move to strip Tobias Ellwood of his chairmanship of the Defence Select Committee so that it can freely and impartially debate 77th Brigade’s pandemic deployment and the war in Ukraine without any perception of bias.
The issue of Armed Forces Pensions
Art.3(1)(b) of the 1975 Disqualification Act allows a naval, army, marine or air force pensioner or former soldiers to sit in the House of Commons even if they are subsequently called up for service. At the time of writing, there are 47 such military veterans in the Commons, mostly Conservatives. There are also seven pensioned military veterans serving as Police and Crime Commissioners.[9]
The problem with Crown pensions such as these is that they are incompatible with the Parliamentary duty of holding HM Government to account. This is because the pensions do, or can, contain provisions that would cause an MP to forfeit their pension as a result of exercising their Parliamentary duties. For example, an MP who has a military pension is subject to forfeiture clauses set out in The Armed Forces Pension Regulations 2014.[10]
Whilst apparently innocuous, these regulations cause a pensioner of HM Armed Forces to forfeit their pension if they are convicted of offences under the Official Secrets Acts or if the Secretary of State believes that an offence that they have committed is gravely injurious to the defence, security or other interests of the state.
The serious constitutional problem with this is that MPs should not be subject to the Official Secrets Act in the first place. This is because Parliament has joint jurisdiction over this and all other Acts in concurrence with the King, and because Parliament can vote to declassify national secrets.
Whereas speech, proceedings and debates in Parliament can be impeached or questioned by Parliament, the King’s courts are also prohibited from doing so, as confirmed by Article 9 of the 1688 Bill of Rights.
Therefore, if the Speaker of the House consents, an MP can reveal national (i.e. Crown) secrets in Parliament without risk of prosecution. Such a revelation, in faithful discharge of the MP’s duty, would place an MP in direct conflict with their employer or pension provided if they choose to exercise this right, with overt or covert consequences resulting.
This constitutional issue also applies to the regular Armed Forces and to reservists, etc. who will also be subject to the Official Secrets Acts by virtue of other similar clauses in their contracts.
For example, Ellwood and pensioned MPs who are veterans could hypothetically be prohibited from discussing the activities of 77th Brigade under the Official Secrets Acts, yet it could be their fiduciary duty to discuss such things as an MP on behalf of constituents. Moreover, Art.13 of the 1688 Bill of Rights confirms that one of the very purposes of Parliament is to seek the redress of all grievances, including those relating to matters subject to the Official Secrets Act.
This is an example of why the 1700 Act of Settlement stated that “no person who receives a pension from the Crown shall be capable of serving as a Member of the House of Commons”, with this provision being expressly repeated in the 1705 Regency Act and 1707 Succession to the Crown Act, two of the key statutes that rounded off the post-1688 constitutional settlement, setting the conditions for future reigns.
This disqualification was further elaborated by the Crown Pensioners Disqualification Act 1715, which was repealed in 1957.[11] The Act recognises that this provision was intended to:
secure that the honour of the House of Common may not in future times be defeated or eluded by any person who shall be a Member of the House of Commons, accepting any pension for any term of number of years.
The Act reiterated previous provisions, adding that violation of the restriction would result in forfeiture for any person who sues the MP for the violation, to the amount of twenty pounds for every day in which the Crown pensioner shall sit and vote in the House of Commons. These exemplary damages would amount to circa £3,500 a day in today’s money.
Remedy
This disqualification ought to be reinstated. However, an alternative could be that any Crown pension to which a serviceman is entitled be transferred to Parliament upon election, with all forfeiture clauses removed.
77th Brigade activities during the Covid–19 pandemic highlight serious constitutional issues that had been resolved centuries prior and then were undone. This should be urgently rectified with legislation to restore the honour of the House of Commons and its freedom and impartiality, so that Britons can never again be slaves to any form of arbitrary military dictatorship or martial law, such as the despotic mobilisation of 77th Brigade by HM Government to target British subjects for the purported crime of lawfully opposing government policy.
[1] https://en.wikipedia.org/wiki/Defence_Select_Committee
[2] https://www.army.mod.uk/news-and-events/news/2022/09/first-officer-cadets-swear-oath-of-allegiance-to-the-king/
[3] Art.1 of the House of Commons Disqualification Act 1975 https://www.legislation.gov.uk/ukpga/1975/24/section/1
[4] Regency Act (1705): long title, An Act for the better Security of Her Majesties Person and Government and of the Succession to the Crown of England in the Protestant Line https://babel.hathitrust.org/cgi/pt?id=pst.000033905846&view=1up&seq=557&q1=498
[5] Succession to the Crown Act (1707): long title, An Act for the Security of Her Majesties Person and Government and of the Succession to the Crown of Great Britain in the Protestant Line https://babel.hathitrust.org/cgi/pt?id=pst.000033905846&view=1up&seq=804
[6] List of Members of Parliament holding military or naval rank during the Great War https://www.parliament.uk/globalassets/documents/parliamentary-archives/List-of-sitting-MPs-holding-military-or-naval-rank-during-the-Great-War.pdf
[7] House of Commons (Service in His Majesty’s Forces) Act (1939)
[8] House of Commons Special Report From The Select Committee On The House Of Commons Disqualification Bill Together With The Proceedings Of The Committee, Minutes Of Evidence And Appendices, 26 July 1956
[9] List of Military Veterans in British Politics https://en.wikipedia.org/wiki/List_of_military_veterans_in_British_politics
[10] Chapter 3 of Part 10 of The Armed Forces Pension Regulations 2014 https://www.legislation.gov.uk/uksi/2014/2336/contents/made
[11] Pensioners Disqualification Act 1715 1 Geo. 1. St. 2. c. 56: long title, An Act to Diʃable any Perʃon from being Choʃe a Member of, or from Sitting and Voting in the Houʃe of Commons, who has any Penʃion for any Number of Years from the Crown
