Judicial review dismissed on free speech and human rights grounds, but equality duty breach upheld
The High Court has dismissed most of a judicial review brought by two current and former service personnel challenging Ministry of Defence policies governing communication with the media and Parliament, while finding a breach of the public sector equality duty in the making of those policies.
In proceedings issued against the Secretary of State for Defence, the claimants challenged three policies: the Media Defence Instruction Notice 2025, the Parliamentarian Defence Instruction Notice 2024, and the “Raising a Concern” whistleblowing policy contained in Joint Service Publication 492. The claimants argued that the policies unlawfully restricted service personnel from speaking publicly about experiences of rape, sexual assault, harassment and bullying without prior authorisation.
The case was heard in the Administrative Court, the claimants’ identities were anonymised by order of the court. One claimant was a serving member of the Armed Forces and the other a former service member.
The court rejected arguments that the policies were ultra vires, irrational, or incompatible with Articles 8 and 10 of the European Convention on Human Rights. It found that, properly interpreted, the Media Defence Instruction Notice 2025 did not impose a blanket ban on communications with the media and did not apply where personnel wished to raise concerns using whistleblowing protections.
The court held that the Raising a Concern policy extended whistleblowing protections equivalent to those under the Public Interest Disclosure Act to service personnel. As a result, protected disclosures could be made externally without prior authorisation in circumstances permitted by that framework.
The court also rejected the claimants’ allegation of unlawful discrimination under Article 14 of the Convention. It concluded that the claim was based on an incorrect reading of the policies and that the required difference in treatment between service personnel and civilians had not been established.
The court further found that service personnel retained the right to contact their constituency Members of Parliament without prior authorisation in relation to matters affecting them personally, subject to restrictions on sensitive information.
However, the Secretary of State for Defence conceded that the public sector equality duty under section 149 of the Equality Act 2010 had not been complied with when making the Media Defence Instruction Notice 2025 and the Parliamentarian Defence Instruction Notice 2024. The court held that this concession meant the judicial review succeeded on that ground.
Despite this finding, the court declined to quash the policies or grant declaratory relief. It held that quashing would leave an undesirable gap in policy provision and noted that a review of the policies, including a lawful equality impact assessment, was already underway.
The judicial review was dismissed on Grounds 1, 2 and 3, allowed on Ground 5, and Ground 4 was not pursued.