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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 86

P2082/06

OPINION OF LORD GLENNIE

in the Petition of

DR JOHN HUNTER MILLER

Petitioner;

for

Judicial Review of a determination of the Army Board dated 12^th March 2005

________________

Petitioner: Lindsay; Balfour & Manson

Respondent: Webster; Morton Fraser

22 May 2007

Introduction

[1] The petitioner is a consultant radiologist. He joined the Royal Army Medical Corps ("RAMC") and attained the rank of major. He contends that he was entitled to be promoted to the substantive rank of lieutenant colonel on or about 1 August 2000, having by then accumulated 11 years reckonable service. He was not so promoted and made a complaint to the Army Board under section 180 of the Army Act 1955 as amended. On 12 March 2005 the Army Board refused the petitioner's complaint. The petitioner seeks judicial review of that refusal.

[2] At the heart of the dispute is an issue as to whether promotion from the rank of Major to that of Lieutenant Colonel falls to be determined "by time" (i.e. automatically after a certain period of service, subject to satisfactory reports), by selection or by a combination of the two.

[3] By its decision of 3 December 2001, made in respect of another medical officer (to whom I shall refer as "Major C"), the Army Board determined, in effect, that promotion in such a case fell to be determined "by time". The petitioner made his complaint to the Army Board in August 2002. While the petitioner's complaint was pending, the Army Board was asked to consider whether its decision in the case of Major C should be applied to other RAMC officers. A differently constituted Board had its attention drawn by the DM(A) (the Director of Manning for the Army) to certain "facts" which had not been brought to the attention of the previous Board. Those "facts" related to how the regulations then in force had been interpreted and applied prior to the decision concerning Major C. In light of that further information, the Army Board issued a "Loose Minute" dated 16 October 2003 in which, in effect, it ruled that promotion for Major C should have been on the basis of a combination of time and selection. The Board apparently came to this view on the basis of the way in which they rules had been applied, rather than by any independent consideration of what the rules meant. By a Further Determination dated 16 October 2003, however, the Board decided that its reconsideration of the principles applicable to promotion in such a case should not affect their initial decision concerning Major C.

[4] In rejecting the complaint by the petitioner, the Army Board followed the approach taken in the Loose Minute.

[5] Mr Lindsay, who appeared for the petitioner, submitted that the original decision concerning Major C was correct and ought to have been applied to the petitioner's case. The relevant question was what the regulations meant rather than how they had been applied over a period. In focusing on how the regulations had been applied, the Army Board had erred in law. On a proper construction of the relevant regulations, he submitted, the petitioner was entitled to promotion as of right after the expiry of 11 years reckonable service. He relied upon certain provisions of the Army General Administrative Instructions ("AGAIs"). He also put forward certain subordinate submissions to do with the lack of an oral hearing and alleged inadequacies in the reasons given by the Army Board. Mr Webster, who appeared for the Ministry of Defence, did not seek to defend the reasoning of the Army Board in so far as it relied upon how the regulations had been applied rather than what they meant. However, he submitted that the effect of the regulations, and the Pay Warrant under which they were issued, was that promotion in the case of the petitioner was by selection within a certain time band; and that the decision of the Army Board was therefore correct. He also made submissions relating to the lack of an oral hearing and to the adequacy of the reasons given by the Army Board.

The relevant regulations concerning promotion

The Pay Warrant

[6] Pay, promotions and appointments in the Army are governed by the Pay Warrant 1964 as amended from time to time. This is a Royal Warrant which counsel agreed has the status of primary legislation. Section 4 of the Pay Warrant deals with promotion and rank. Articles 110-113 are concerned with promotion to the rank of lieutenant colonel. I set out below the terms of Article 110 and Article 111 (though I should note in passing that those Articles have since been amended):

"110. General rule. Except as otherwise provided in this Warrant an officer holding the substantive rank of major may be promoted by selection to the substantive rank of lieutenant colonel in accordance with instructions laid down by the Defence Council.

111. Medical officers of the Household Cavalry and of the Royal Army Medical Corps and dental officers of the Royal Army Dental Corps. A medical officer of the Household Cavalry and of the Royal Army Medical Corps may be promoted to the substantive rank of lieutenant colonel between 12 and 14 years but normally at 13 years reckonable service, and a dental officer of the Royal Army Dental Corps may be promoted to the substantive rank of lieutenant colonel after 13 years, subject to such instructions as may be laid down by the Defence Council."

The Defence Council referred to in Article 111 is a body constituted by Letters Patent to exercise the powers of the Royal Prerogative in relation to the Armed Forces and to be responsible for the administration thereof. The Letters Patent empower and direct the Defence Council to establish an Army Board to be charged with administration in relation to the Army. The duties of the Army Board are set out in the Army Board Directions 2000 issued by the Defence Council. In terms of paragraph 3 of those Directions, the Army Board, under the Defence Council, has command over the officers and soldiers of the Army and is charged with the administration of all such matters relating to the Army as may be administered by the Defence Council.

The AGAIs

[7] Chapter 35 of the AGAIs, issued by the Army Board, deals with the question of substantive promotion within the Army. The AGAIs have also since been amended; however, so far as material, the version in force at the material time provided as follows:

" 35.002. Before any officer is granted substantive promotion he must:

a. Have completed a required period of service.

b. Have an unqualified recommendation for promotion in his most recent confidential report. Where it is considered necessary in the interests of the officer an additional report or recommendation may be called for by MS.

c. Dependent on the rank or corps, have qualified or be exempt from qualifying under the Junior Officer Training and Education Scheme (JOTES) (formerly PQS) or have obtained other professional qualifications demanded.

d. If subject to promotion after a set period of service but without selection, have his promotion confirmed by the responsible authority.

e. If subject to selection, be selected by the responsible authority.

35.003. The categories of promotion are:

a. To lieutenant. Time promotion for all officers.

b. To captain. Time promotion for all officers. Additionally all lieutenants are required to qualify at or be exempt from JOTES

c. To major. All captains are required to qualify at or be exempt from JOTES 2. [This paragraph then goes on to set out criteria for promotion, variously by selection within a set age bracket, by selection after a set period of service and without selection after a set period of service]

d. To lieutenant colonel, colonel and brigadier.

(1) Promotion of all officers other than those listed in sub paras (2) and (3) is by selection.

(2) Promotion to lieutenant colonel in the AGC (ALS Branch)(legal officers) is by selection after a set period of service.

(3) Promotion up to colonel in the following corps is by selection after a set period of service H Cav (medical officers), RAMC (medical officers) RADC (dental officers)."

Paragraph 35.004 identifies the responsible authority for selection and promotion in the case of the RAMC as being DGAMS (Director General Army Medical Services). The responsible authority in the case of promotion from major to lieutenant colonel before non-medical officers is Selection Board.

[8] Other relevant parts of Chapter 35 of the AGAIs include the following:

" Time Promotion

35.008. The substantive promotion of an officer who is subject to promotion after a set period of service, provided he is recommended and where required, qualified, will normally be confirmed from the date on which he completes the required period of service (see para. 35.002). Substantive promotion should only be withheld by the responsible authority when, for medical or other reasons, it is apparent that the officer cannot be employed in the higher rank."

There are then further paragraphs under the heading "Selection". The next heading after that is "Due Promotion Date". Under this heading, paragraph 35.013 identifies the Due Promotion Date as being the date upon which the officer completes the required period of reckonable service for promotion as laid down in the appropriate Article of the Pay Warrant 1964. Under the next heading, "Actual Promotion Date", paragraph 35.014 deals with "Time Promotion" in these terms, namely that "an officer will be granted substantive promotion on the due promotion date subject to the provisions of paras.35.002 and 35.008". The "due promotion date" is that defined in paragraph 35.013, in other words that laid down in the Pay Warrant. Paragraph 35.015 deals with "Promotion by selection". Sub-paras a. and b. of that paragraph cover promotion on the Beige List and promotion on the Pink and Blue Lists. Sub-para c. is concerned with promotion to lieutenant colonel, colonel and brigadier other than by time or by selection on the Pink and Blue Lists. Included within this category at (4) are RAMC (medical officers). They are to be granted substantive promotion to lieutenant colonel and to colonel on a date decided by DGAMS's Board. Finally, paragraph 35.017 states that detailed instructions covering the various ranks are contained in various annexes. The relevant annex, so far as the petitioner is concerned, is Annex D.

[9] Annex D to Chapter 35 of the AGAIs sets out rules for promotion to the substantive rank of lieutenant colonel for all officers of the Regular Army. In paragraph 2 thereof it is stated that the instruction is divided into four parts. These are as follows:

"a. Selection. All officers less RAMC (medical officers), RADC (dental officers) and AGC (ALS Branch) (legal officers) and LE officers (see paras 3-10 of this Annex).

b. Selection. LE Officers (see para 11 of this Annex).

c. Time promotion. Applicable to RAMC (medical officers), RADC (dental officers) and AGC (ALS Branch) (legal officers) (see para 12 of this Annex).

d. Actions arising from selection boards (see paras 13-20 of this Annex)."

The following paragraphs appear in Annex D under the heading "Selection (Para 2a refers)".

"3. Completion of a required period of service in the rank of major and up-to-date recommendation for promotion are prerequisites for promotion to lieutenant colonel (para 35.002a and b refers).

4. In addition to merit, the factors taken into account by selection boards are officers' confidential reports, employability, age, medical category and special qualifications required for particular corps (para.35.009 refers)."

Paragraph 5 is headed " Promotion zone". It explains that because of differing career patterns and terms of service, and because only officers of certain categories may be appointed to the Special List under AGAIs Chapter 31, zones for promotion vary for individual arms and services and are as shown at Appendix 1 to Annex D. This is important because it provides the context in which reference is to be made to Appendix 1. I shall refer to Appendix 1 shortly. Before doing so it is necessary to set out the terms of paragraph 12 of Annex D. This provides as follows:

"12. Substantive promotion when governed by time is dependent on:

a. Completion of the requisite period of service stipulated in the Pay Warrant.

b. An unqualified recommendation for promotion in the most recent confidential report (para. 35.002b).

c. Confirmation by No.4 Selection Board or DGAMS Board (para 35.008)."

I have already observed that DGAMS stands for Director General Army Medical Services. There is no specific reference in Annex D to the role of DGAMS in this context. However there is a reference in paragraph 8 of Annex D to the No 4 Selection Board. That paragraph explains that the Selection Board grades and selects all officers for promotion to lieutenant colonel other than chaplains, nursing and administrative officers of RAMC and QARNC. It is made clear that, after grading, the Selection Board selects sufficient majors for promotion to lieutenant colonel to meet calculated requirements in the following calendar year. I was given to understand that the role of DGAMS in relation to promotion of officers of RAMC was similar.

[10] Finally, I should refer to the relevant parts of Appendix 1 to Annex D. This sets out in tabular form categories of those eligible for promotion to lieutenant colonel, the qualifications necessary for some one in any particular category and the exceptions to the stated qualifications. Paragraphs 1-6 fall under the heading "Promotion by Selection". Paragraphs 7-10 appear under the heading "Time Promotion". It is instructive to notice what is said in relation to paragraphs 7 and 8. Paragraph 7 deals with RAChd (Chaplains 2^nd Class). The maximum age for promotion to lieutenant colonel in such a case is 50. The qualification for promotion is expressed as follows:

"promotion is by selection from eligible Chaplains 3rd Class has a vacancy occurs. Officers must have completed 11-12 years of reckonable service and be under 50 years of age at time of promotion."

Paragraph 8 deals with H Cav/RAMC (medical officers). There is no maximum age for promotion in such a case. The qualification for promotion there is that

"Officers must have completed between 11 and 15 years, but normally 13 years, reckonable service."

However, this is subject to the following, under the heading of "Exceptions":

"Only consultants, GP Trainers and officers with the qualification 'psc' may be considered for promotion at the 11 year point."

It is apparent that, although dealt with under the heading "Time Promotion", the qualifications for both Chaplains 2nd Class and medical officers identify a range of completed years reckonable service within which a particular officer may be promoted to the rank of lieutenant colonel. In the case of Chaplains 2nd Class, that range is 11-12 years reckonable service. In the case of medical officers, that range is 11-15 years reckonable service, with the norm being 13 years. It is emphasised that only officers with certain qualifications, e.g. consultants, may be considered for promotion at the beginning of that range. This shows the flexibility of the general heading "Time promotion". At the other end of the spectrum, also under that heading, paragraphs 9 and 10, which deal with dental officers and legal officers provide, in the one case, for promotion after a fixed number of years and, in the other, for promotion after a fixed number of years or on reaching a certain age, whichever is later.

Principal submissions

[11] Mr Lindsay's principal submission was that the Army Board had erred in law in its interpretation of the applicable regulations governing promotion from major to lieutenant colonel in the Army Medical Corps. He submitted that the regulations were quite clear. Under reference to paragraph 2c of Annex D to Chapter 35 of the AGAIs, he submitted that "Time promotion" was clearly stated to be applicable to all RAMC officers. So far as paragraph 12 of Annex D was concerned, the effective trigger for promotion was the completion of the requisite period of service. The requirement for an unqualified recommendation for promotion in the most recent confidential report did not infer that promotion was by selection. Rather it was a straightforward requirement that before being promoted upon completion of the requisite period of service the officer must have a report showing him to be up to a certain standard. If he was of that standard, promotion should be automatic. Similarly, he submitted, the requirement for confirmation by the DGAMS board was but a formality. He submitted that Appendix 1 confirmed this interpretation by positioning RAMC officers under the heading "Time Promotion". The original decision of the Army Board in relation to Major C was correct and its revised assessment of the position in the Loose Minute was incorrect. In the alternative, even if I were not persuaded that the proper construction of the regulations was that for which he contended, it was clear that the Army Board had not applied its mind to the relevant question of what the regulations meant. In the case of the petitioner, the Army Board had simply asked itself the same questions about how the regulations had been applied in practice as had been identified in the Loose Minute in relation to Major C. He submitted that I should remit the case to the Army Board for it to answer the correct question as to the interpretation of the regulations. However, he accepted that if I was clear that the regulations were to be interpreted in a manner contrary to that for which he contended, there would be no point in my sending the matter back to the Army Board.

[12] For the respondents, Mr Webster identified at 7/4 of Process all the material that had been before the Army Board when considering the petitioner's case. He pointed out that when Major C pursued his complaint, he did not argue that he should have been promoted on the basis of time only. His complaint was that the selection process was not fair to him. The Army Board which decided the interpretation of the rules in his favour had done so without argument on the point. The differently constituted Army Board which decided in terms of the Loose Minute had material put before it by DM(A). That material concerned the way in which the regulations had been applied. In the Loose Minute, the Army Board had given its opinion as to how the matter of promotion should be dealt with in similar cases in the future. It had set out a series of questions largely relating to consistency and fairness. It had not explicitly addressed the question of what the regulations meant, but it was implicit in its guidance that in its view promotion from major to lieutenant colonel in the RAMC was not automatically by time served but by selection within a time band. Ultimately, however, this was irrelevant to the present dispute. If the recommendation in the Loose Minute was wrong, the court could say so. However, the real question in the present case was whether, on a proper construction of the relevant provisions, the petitioner was entitled to promotion by time rather than by selection. He submitted that the question was determined by the proper construction of the Royal Warrant. That had the status of primary legislation. In support of this proposition he referred me to volume 8(2) of Halsbury's Laws of England at paras 906-920; to pages 62-66 of the fourth edition of Anson, The Law and Custom of the Constitution; to volume 22 of The Laws of Scotland, Stair Memorial Encyclopaedia, at para 171; and to the speech of the Lord Fraser of Tullybelton in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 398-399. If the Pay Warrant provided for selection, he submitted, it mattered not what was said in the AGAIs. Article 110 of the Pay Warrant laid down the general rule that promotion from the rank of major to that of lieutenant colonel was by selection. That general rule applied "except as otherwise provided" in the Warrant. The only provision in the Pay Warrant dealing with promotion to that rank in the RAMC was Article 111. This provided that a medical officer in the RAMC might be promoted to the substantive rank of lieutenant colonel between 12 and 14 years, but would normally be so promoted at 13 years reckonable service. Mr Webster accepted that there was no specific reference in that Article to selection, but it was implicit in the choice of a range and the reference to "normally". However, even if it was not implicit in this way, in the absence of any express reference to promotion otherwise than by selection the general rule in Article 110 applied. Under specific reference to the age range of 12-14 years, Mr Webster submitted that it did not in fact matter for the petitioner whether promotion was by time or by selection; he was not entitled to be promoted after 11 years reckonable service but only after 12 years. The fact that the AGAIs referred to a different period of time was irrelevant. There was no power to promote the petitioner after only 11 years reckonable service. He submitted that it was possible to construe the AGAIs in a manner consistent with the Pay Warrant. He suggested that the wording under the heading "Qualifications" in the table at Appendix 1 to Annex D to Chapter 35 of the AGAIs should be read as meaning that after completion of 11 years service an officer would be assessed for promotion at the commencement of the following year, i.e. after 12 years service. He was not able to offer a similar construction which made the endpoint of 15 years in Appendix 1 fit with the Pay Warrant. Leaving aside the question of 11 or 12 years service, the AGAIs were consistent with the Pay Warrant in pointing to the requirement for selection and away from any entitlement to promotion purely by time.

Discussion

[14] Article 111 concludes with the words "subject to such instructions has may be laid down by the Defence Council". It was, I think, accepted by Mr Webster, on behalf of the respondents, that the AGAIs promulgated by the Army Board could be treated as instructions laid down by the Defence Council, since the Army Board acts on behalf of the Defence Council in this regard. However, he submitted that the AGAIs, being in the nature of subordinate legislation, could not contradict the Pay Warrant. Mr Lindsay accepted that this was correct. It seems to me, therefore, that even if the AGAIs, on a proper construction, stipulated that promotion in such a case was by time, i.e. was automatic upon the officer having completed the requisite number of years service, that could not prevail. Subordinate legislation contradicting the primary legislation in such a manner would be ultra vires.

[15] However, this problem does not arise since I do not accept that the AGAIs bears the construction placed upon them by Mr Lindsay. Mr Lindsay founds principally upon the terms of Annex D and Appendix 1 thereto. Appendix 1 does not support the petitioner's case. It shows, to my mind, that the expression "Time Promotion" is not used in the narrow sense contended for by Mr Lindsay. Whilst, on the face of it, it appears that dental officers and legal officers will be entitled to promotion after a certain number of years reckonable service or on reaching a certain age, the position is very different for medical officers and (for what it is worth) for Chaplains 2nd Class. Although appearing under the heading "Time Promotion", it is made clear that officers in the latter category are entitled to promotion "by selection ... as a vacancy occurs" having completed a certain number of years reckonable service. It follows that the positioning of Chaplains 2nd Class under the heading "Time Promotion" does not carry with it the inference that they are entitled to automatic promotion upon completion of a number of years service. The position of RAMC medical officers, which is dealt with under the same heading, is similar to that set out in Article 111 of the Pay Warrant in that it provides that officers must have completed between 11 and 15 years service and states that the norm is 13 years. Putting to one side, for the moment, the apparent conflict between the Pay Warrant and Appendix 1 as to the number of years service required for promotion, the very fact of a range, and a norm in the middle of that range, is wholly inconsistent with the notion that an officer has a right to be promoted at any particular time falling short of the last date in that range. Further, the qualification, under the heading "Exception", that only consultants and certain others "may be considered for promotion at the 11 year point" makes it clear that even consultants do not have a right to be promoted at that point. "May be considered"" is the language of selection rather than automatic promotion by time. Nor, to my mind, does Annex D support Mr Lindsay's case. It is true that paragraph 2c says that "Time promotion" is applicable to RAMC medical officers, but this is explained in paragraph 12 which shows that, even when "governed by time", promotion is dependent not only on completion of the requisite period of service but also on an unqualified recommendation for promotion as well as confirmation by DGAMS. The role of DGAMS, if it is similar to that of the No.4 Selection Board, is one which involves grading and selection to meet calculated requirements. Accordingly, it seems to me that paragraph 12 makes it clear that promotion "by time" will not necessarily exclude an element of selection.

[16] I have so far considered only those parts of the AGAIs upon which Mr Lindsay principally relied. However, it is the wrong, in my opinion, to construe the AGAIs by starting with the Annex and the Appendix to the Annex. The main part of the AGAIs dealing with this aspect is Chapter 35 itself, to which the Annex is annexed. Paragraph 35.003d(1) makes it clear that promotion to lieutenant colonel for all officers - other than those listed in sub paras (d)(2) and (d)(3) - is by selection. Sub para (d)(3) states that "promotion up to colonel" in certain corps, including the RAMC, is by selection after a set period of service. If the words "promotion up to colonel" are read so as to include promotion up to every rank up to colonel, and therefore to include promotion to lieutenant colonel, then sub para (d)(3) clearly states that promotion is by selection after a set period of service. If, on the other hand, the words "promotion up to colonel" are to be given a narrower meaning, and are limited to the specific promotion from lieutenant colonel to colonel, then sub para (d)(3) is silent on the point; with the result that sub para (d)(1) applies the general rule that promotion is by selection. In neither case is the officer entitled to promotion as of right after a certain number of years service. In this respect, the position of officers seeking promotion to the rank of lieutenant colonel and higher ranks differs from those seeking promotion to the ranks of lieutenant or captain. For them, the position is governed by paragraph 35.003(a) and (b). Promotion to these ranks is expressly stated to be "Time promotion". Time promotion in the sense applicable to them is defined in paragraph 35.008 in the manner for which the petitioner contends. However, as I have indicated, paragraph 35.003(d) makes it clear that time promotion in that narrow sense does not apply to a person in the position of the petitioner. A similar point can be made in respect of paragraph 35.014.

[17] It follows, therefore, that I reject the principal submission for the petitioner. I have not based my decision upon the fact that, in terms of Article 111 of the Pay Warrant, there is no entitlement to promotion before the officer has served 12 years reckonable service. As I have said, Appendix 1 to Annex D of the AGAIs, which identifies a minimum period of service of 11 years, appears to be inconsistent with this. Mr Webster bravely attempted to reconcile the two provisions. I will not attempt to explain his efforts. Suffice it to say that I was not persuaded that the two provisions were reconcilable. The AGAIs makes it clear that the period of service required to be served is that stipulated in the Pay Warrant (see, for example, paragraph 12 of Annex D). Only the table in Appendix 1 appears to suggest a different period of service. Had this been the only point upon which I was against Mr Lindsay, I would have been minded to remit the matter to the Army Board for them to consider the apparent inconsistency, and whether the provisions of Appendix 1 had given rise to an expectation amongst medical officers which it would have been unfair to disappoint. However, in view of the conclusions which I have reached on the main point, there would be no purpose in my so doing.

Other submissions and discussion

[18] Mr Lindsay advanced other submissions in support of the petition. First, he submitted that the Army Board ought to have fixed an oral hearing. This was on the basis that the Army Board had decided the complaint on the grounds set out in the "Loose Minute". He submitted that the petitioner ought to have had the opportunity to address the Army Board in person on the way in which, to his knowledge, the regulations had hitherto been interpreted and applied. I was referred to R v Army Board of the Defence Council, ex parte Anderson [1992] 1 QB 169, 187G-H, and to R (West) v Parole Board [2005] 1 WLR 350, per Lord Bingham at paras 31 and 35, per Lord Slynn at paras. 48-50 and per Lord Hope at paras. 67-8. However, this submission was superseded, as the hearing progressed; and Mr Lindsay accepted, as I understood him, that if I were to decide that the regulations plainly did not give the petitioner a right to automatic promotion after 11 years reckonable service, then there would be no purpose in my remitting the matter back to the Army Board to allow the petitioner to address them on how the regulations had been interpreted to date, a point which both counsel agreed was ultimately irrelevant. Since I have come to that view, I need not consider the question of an oral hearing further.

[19] Mr Lindsay also complained that the Army Board had failed to provide sufficient reasons for its decision. He made his submission under reference to the well known line of authority summarised in Singh v Secretary of State for the Home Department 2000 SC 219. However, he accepted that his primary criticism was not so much that the reasons were inadequate in this sense but that they were wrong, since they focused on how the regulations had been applied rather than what they meant. With this criticism I agree, as did Mr. Webster. However, Mr. Lindsay also accepted, as I have indicated, that there was no point in my sending the case back to the Board simply for them to apply my interpretation of the regulations contained in the Pay Warrant and the AGAIs. This point therefore falls away.

Disposal

[20] In the circumstances, therefore, I shall uphold the Respondents' second plea-in-law and refuse the prayer of the Petition.