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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacAuley v. Advocate General for Scotland [2002] ScotCS 329 (08 November 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/329.html Cite as: [2002] ScotCS 329

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MacAuley v. Advocate General for Scotland [2002] ScotCS 329 (08 November 2002)

OUTER HOUSE, COURT OF SESSION
A2322/01	OPINION OF LORD EASSIE in the cause GARY G. MACAULEY Pursuer; against DR M. LYNDA CLARK, Q.C., M.P. The Advocate General for Scotland Defender: ________________

Pursuer: L.C. Kennedy; Russel & Aitken

Defender: Clancy, Q.C.; Robson McLean, W.S.

8 November 2002

Introductory

1. This action is brought against the Advocate General in her capacity as representing the Ministry of Defence.
2. In the Autumn of 1997 the pursuer was a serving private in the Argyll and Sutherland Highlanders. Along with other soldiers, he underwent a compulsory drugs test which, in his case, produced a positive result respecting the controlled drug cannabis. The soundness of the result of that test is not in dispute. When the result was known, the pursuer was advised by his commanding officer, Lieutenant Colonel Wade, that he would be discharged from the Army and by letter of 4 December 1997, following the obtaining of authority to discharge the pursuer from the appropriate level, viz the Director of Manning (Army), the commanding officer confirmed that discharge.
3. The pursuer sought to reverse that decision to discharge him by submitting an application dated 19 January 1998 for "Redress of Complaint". The pursuer's contention in these proceedings is that in the subsequent treatment by the Army of his application for Redress of Complaint, he was given the redress which he sought in that his discharge was duly rescinded. In the first conclusion of the summons - as amended in the course of the debate before me - the pursuer seeks declarator that "notwithstanding the pursuer's discharge from the Army on 5 December 1997 he was reinstated on 29 July 1998". There is a second, ancillary conclusion seeking payment of a certain sum of money but it is not necessary to consider that aspect at this stage in the proceedings.

The Statutory and Regulatory Provisions

4. Before turning to the way in which the pursuer's application for redress of his complaint against the decision discharging him from service in the Army was dealt with and to the basis upon which the pursuer seeks that declarator, it is appropriate to mention the statutory and regulatory provisions pertinent to the present dispute between the pursuer and the Army.
5. The Army Act 1955 made provision in Sections 180 and 181 for complaints by members of the Army. The sections are headed "Redress of Complaints". Section 180 related to complaints by officers. Section 181 related to complaints by warrant officers, non-commissioned officers and soldiers. The Armed Forces Act 1996 removed the distinction between commissioned officers and other ranks by repealing Section 181 of the Army Act 1955 and substituting a new Section 180 of that Act. The substitution took effect in October 1997, shortly before the pursuer's discharge. The substituted Section 180 contains, among others, these subsections:-

"(1) If a person subject to military law thinks himself wronged in any matter relating to his service he may make a complaint with respect to that matter to such officer as may be prescribed.

....

(3) The procedure for making and dealing with a complaint under this section shall be laid down in Queen's Regulations, which may, in particular, provide -

....

(c) for a complaint to be referred, for its first consideration, by the officer to whom it was made to a superior officer; and

(d) if the complainant does not obtain the redress to which he thinks he is entitled (whether from the officer who first considered the complaint or from a superior officer by virtue of provision made as mentioned in this paragraph), for the complaint to be referred to, and considered by, a superior officer.

....

(5) An officer to whom a complaint is made or referred under provision made by virtue of subsection (3) above, shall grant any redress which appears to him necessary.

(6) If the complainant does not obtain the redress to which he thinks he is entitled by the procedure referred to in subsection (3) above, he may submit his complaint to the Defence Council in accordance with the procedure laid down in Queen's Regulations.

(7) The Defence Council shall have any complaint submitted to them investigated and shall grant any redress which appears to them necessary.

....

(10) In this section "prescribed" means prescribed by Queen's Regulations."

6. The provisions of the Queen's Regulations to which my attention was drawn as being relevant to the issues in this case are to be found in Chapter 5 of those Regulations, namely in Regulation 5-204 headed "Redress of Complaints". The first sentence of paragraph (a) of that Regulation narrates that:-

"Any member or former member of the Army who believes he has been wronged in any matter relating to his service may exercise his right under Section 180 of the Army Act 1955 to make a complaint. ..."

Paragraphs (f) and (g) are in these terms:-

"(f) Complaints should be submitted to the complainant's commanding officer. However, if the commanding officer is the subject of the complaint, or is alleged to be implicated in any way in the matter complained of, the complaint shall be submitted direct to the next level in the chain of command. Where this would require the complaint to be submitted to an officer who is also implicated in any way in the matter complained of, the complaint shall be submitted to the next level in the chain of command above him.

(g) It is the duty of the officer to whom the complaint is made or referred to investigate it as soon as possible and to grant any redress which appears to him necessary and which is within his power. If the officer refuses, or is unauthorised, to grant the complainant the full redress to which he thinks he is entitled, he must give a full explanation in writing of the reasons for not doing so. In these circumstances, the complainant may request the officer to refer the matter to a higher authority. The officer must comply with this request, for warding the case together with his recommendation. He shall refer it direct to the authority specified in the separate instructions given to commanding officers in Army General and Administrative Instructions, Volume 2, Chapter 70."

A copy of Chapter 70 of the Army General and Administrative Instructions has been produced as no. 7/5 of process. The particular provision to which I was referred by counsel for the defender (to whom, given the representative capacity of the Advocate General for Scotland I shall hereinafter refer as counsel for the Army), was paragraph 70.022 which, following the heading "Redress not Granted", continues thus:-

"If the officer receiving the complaint is unwilling, unauthorised or considers it otherwise inappropriate to grant fully the redress being sought, he must give to the complainant a full explanation in writing for the reasons for not doing so, before referring the matter for consideration at district/division or equivalent level."

There thereafter follows certain administrative instructions relating to the sending of information to the various branches of the Army's administrative structure.

The History of the Pursuer's Complaint

7. The actual document whereby the pursuer sought redress of his complaint has not been produced, but I did not understand there to be any dispute that it sought reversal of the decision that he be discharged from service in the Army and that he be reinstated. It appears (cf no. 6/6 of process) that, in physical terms, the application for Redress of Complaint arrived at the Army Personal Centre, Secretariat Appeals, Room 4300, Kentigern House, 65 Brown Street, Glasgow whence it was forwarded to the pursuer's commanding officer at Redford Barracks, Edinburgh. That procedure, no doubt, conformed with Regulation 5-204 of the Queen's Regulations. Questions evidently then arose whether in terms of paragraph (g) of that Regulation, the commanding officer, Lieutenant Colonel Wade, was "implicated" in the matter of which complaint was made in the sense that he had participated in the decision which led to the Director of Manning's giving sanction for the pursuer's discharge. It appears from the pleadings and from what I was told at the Bar, that Brigadier Durcan was in ascendant line of command, but questions similarly arose respecting his being likewise implicated in the decision. Against that background, the officer attending to the administration of the pursuer's complaint, Major Halcrow, wrote from Army HQ, Scotland at Craigiehall by letter of 30 April 1998 (no. 7/14 of process) to the commanding officer of the Scottish Transport Regiment, Lieutenant Colonel Parrott, in these terms:-

"REDRESS OF COMPLAINT EX 25023471 PTE McAULEY G G A and SH

References:

A. AGAI Vol 5 Instruction 4.

B. AGAI Vol 2 Ch 70.

C. Redress of Complaint by Ex Pte McAuley.

1. The above mentioned ex serviceman was one of 10 members of 1 A and SH found to be positive following CDT visit on 30 October 1997. The Commanding Officer reviewed the cases and recommended the discharge of 8 of the servicemen concerned, including Pte McAuley.

2. McAuley submitted a Redress of Complaint to APC (Appeals) in January 1998, which was passed to the Commanding Officer. McAuley subsequently complained that his, then, Commanding Officer was dealing with the Redress although he was by inference the person being complained about having decided to apply for the complainant's discharge.

4. To ensure equity it has been decided that another Commanding Officer should be appointed to investigate ex Pte McAuley's Redress of Complaint. Headquarters 51 (Highland) Brigade has suggested that you should act in the matter and you are asked to do so (case file enclosed). Commanding officer 1 A and SH is aware of the action being taken.

5. The outcome of your investigation should be promulgated to McAuley in the normal way and the case file staffed through this Headquarters."

By a letter similarly dated 30 April 1998 (no. 6/10 of process), Major Halcrow wrote to the pursuer. After thanking for the pursuer for an earlier letter of 9 March 1998 and apologising for the delay in reply, Major Halcrow wrote:-

"In view of your concerns about a possible lack of partiality (sic) by your then commanding officer, Lieutenant Colonel Parrott RLC, Commanding Officer, Scottish Transport Regiment, has been appointed to investigate your Redress of Complaint and he will be in touch with you in connection with his investigation."

Counsel for the Army pointed out that Lieutenant Colonel Parrott was not within the pursuer's chain of command and I did not understand counsel for the pursuer to contend otherwise.

8. Lieutenant Colonel Parrott thereafter carried out certain inquiries, including an interview of the pursuer. He then reported his inquiries to Army HQ, Scotland by a letter dated 24 June 1998 (no. 7/2 of process). The letter is relatively lengthy and it is unnecessary to set out or summarise all its contents. In the first paragraph of the letter the Lieutenant Colonel records that the letter of 30 April 1998 (no. 7/14 of process) directs him to ... "to investigate the complaint made by Ex 25023471 Pte G G McAuley A and SH on 19 January 1998." Having dealt with certain other matters, Lieutenant Colonel Parrott then outlines in the opening sentence of paragraph 3 of the letter the question for his consideration. That sentence is in these terms:-

"It is proper now to consider whether the decision taken by CO 1 A and SH in consultation with Comd 52 (L) Bde should stand or whether it should be recommended that Ex Pte GG Macauley should be re-enlisted/re-instated."

There then follows a consideration of matters such as the Army's policy on the misuse of controlled drugs; the manner in which the decision to discharge the pursuer was taken and the pursuer's personal circumstances and personnel records, including the explanation given by him at interview of the circumstances in which he had consumed the cannabis which resulted in his positive test. Having referred, put shortly, to the balancing or ponderation of factors in the decision to retain or discharge a soldier who had tested positively in a drugs test, Lieutenant Colonel Parrott expressed (paragraph 14 in fine) the view that the balance of factors provided grounds for the pursuer's retention. The final paragraph of the Lieutenant Colonel's letter is expressed in these terms:-

"By way of conclusion and decision I uphold the complaint by Ex 25023471 Pte GG Macauley against discharge and support his claim for re-enlistment/re-instatement. Not having the authority to action this decision, I refer the matter back to the appropriate higher authority."

9. Following the receipt of his instruction dated 30 April 1998 Lieutenant Colonel Parrott naturally communicated with the pursuer and since certain passages from his letters to the pursuer were invoked by counsel for the pursuer it is convenient to mention them at this point. By letter of 6 May 1998 (no. 6/1 of process) sent from his office in the Royal Logistic Corps in Dunfermline, Lieutenant Colonel Parrott narrated his receipt of the file relating to the pursuer's Redress of Complaint. He then wrote:-

"It is my duty to investigate your complaint as soon as possible and in the next few days I will be reading all the letters on the file and reading the relevant Regulations. ...".

The remainder of the letter concerns practical arrangements for the interview of the pursuer. No. 6/2 of process is a letter from Lieutenant Colonel Parrott to the pursuer, dated 9 June 1998 in these terms:-

"I said I would write to you concerning the outcome of your redress of complaint. I have completed my own investigation of the matter but Army HQ, Scotland have now required me to take advice on a number of points

before I submit my conclusions to them. I am now taking advice on the points in question and hope to write back to you in the near future with my decision on your complaint."

Thereafter, on 29 July 1998, Lieutenant Colonel Parrott wrote to the pursuer the letter (no. 6/3 of process) which essentially constitutes the foundation for the pursuer's declaratory conclusion. Omitting the manuscript salutary and valedictory phrases the full content of the letter reads as follows:-

"I wrote to you on 9 June 1998 to say that I had completed my investigation of your redress of complaint but that, at the direction of Army HQ Scotland, I was seeking advice on a number of points. That process has now been completed.

I have decided that, while the correct procedures were followed, your administrative discharge, following a positive compulsory drugs test, was based, in my belief, on a flawed interpretation of the relevant regulations. I have therefore concluded that your redress of complaint should be allowed and your administrative discharge should be rescinded.

I do not have the authority to initiate the necessary administrative procedures to action my decision on your redress of complaint. I have therefore passed the matter back to Army HQ Scotland for their action as required. I have sent a copy of this letter to Army HQ Scotland and I have asked that they contact you in due course."

10. Following the conclusion of Lieutenant Colonel Parrott's involvement with the pursuer's complaint, the matter eventually came before Major General Gordon, the General Officer Commanding Second Division. (By that time the post of General Officer Commanding the Army in Scotland which, I was told, was the next level of command above Brigadier Durcan, had effectively disappeared with the amalgamation of the Army in Scotland into the Second Division). By a document (no. 7/9 of process) dated 8 May 2001 - i.e. after the raising of this action - and headed in terms indicating that it contained Major General Gordon's comments on the pursuer's application for redress of complaint, the Major General noted at the outset that it was unsatisfactory that the application for redress of complaint had taken so long to reach his office. The Major General then recorded his understanding that the delay had occurred "because, at the formation of the new Headquarters, all Redress of Complaint files were reviewed and, through clerical error, the case file was closed". Put briefly having narrated that the Army's policy of discharging the majority of soldiers found positive on compulsory drug testing was well known by all ranks; that the pursuer would have been well aware of this policy; and that the pursuer's commanding officer had investigated matters and had discussed the matter with the Brigade Commander, Major General Gordon recorded that he was satisfied that "all the circumstances of Private McAuley's condition were understood and taken into consideration". He then noted that in the interests of impartiality, Lieutenant Colonel Parrott had been asked to "investigate the complaint" and the Major General then goes on to examine the Lieutenant Colonel's view. Major General Gordon writes, respecting the Lieutenant Colonel's views, that:-

"I believe he focused too closely on the interpretation of paragraph 74 of AGAI s and ignored the overall intent of the Army's drugs policy and the context of the Service intent as needing to be interpreted by a Commanding Officer while imposing discipline within his infantry battalion."

In paragraph 6 of his comments, the Major General Gordon sets out his conclusion thus:-

"On balance, I therefore conclude that I cannot support Private McAuley in his application for Redress of Complaint. As I can neither grant nor deny the Redress he claims, I direct that the file be passed APC (Appeals Wing) in accordance with Queen's Regulations 1975, paragraph 5.204 g."

11. It appears from the documentary productions that thereafter certain letters were posted to the pursuer, at least some of which inquired whether, the General Officer Commanding having expressed himself unable to grant redress, the pursuer wished his application for Redress of Complaint to proceed to the Army Board (being the relevant branch of the Defence Council). It is averred on behalf of the pursuer (closed record 16E) that in response to that invitation, the pursuer maintains that his Redress of Complaint had already been determined. The pursuer further avers that following receipt of Lieutenant Colonel Parrott's letter of 29 July 1998 he attended for duty and was told by a Corporal Paterson, after discussion between Corporal Paterson and the commanding officer, that the decision of Lieutenant Colonel Parrott was not determinative and that he had not been reinstated. That view was broadly confirmed in a letter of 11 August 1998 from Major Halcrow. Following reference in these pleadings to that letter, the pursuer avers certain further attempts to return to duty which are not admitted by the defending party in this litigation.

Submissions

12. Counsel for the Army submitted that the pursuer's invocation of the letter of 29 July 1998 from Lieutenant Colonel Parrott was misconceived and that the action accordingly fell to be dismissed as irrelevant. Even if the letter bore the interpretation which the pursuer sought to place upon it (which counsel for the Army disputed), it was clear that on a proper construction of the Act and the Queen's Regulation, Lieutenant Colonel Parrott had no authority to perform the act of granting redress in the form of reinstating the pursuer in service. Lieutenant Colonel Parrott was not the competent officer under paragraph 5.204 of the Queen's Regulations, not being in the pursuer's chain of command. Lieutenant Colonel Parrott had simply an investigative rôle and even if Lieutenant Colonel Parrott had thought otherwise, what he thought he was empowered to do was not determinative although, said counsel, in fairness to Lieutenant Colonel Parrott, the terms of his remit were not entirely clear.
13. Counsel for the Army further submitted that in any event Lieutenant Colonel Parrott's letter could not properly be construed as effecting a recall or rescission of the pursuer's discharge from the service since the Lieutenant Colonel, while expressing the view that the pursuer's Redress of Complaint should be allowed, recognised that he had no authority "to action" that view and that matters therefore had to be remitted to another authority. Consequently, the decision discharging the pursuer still stood following that letter and the application for redress of complaint remained "live". The application eventually came before the appropriate officer in the chain of command, Major General Gordon, but he too properly took the view that he lacked authority to rescind that discharge. The authority lay with the Director of Manning. Accordingly, the application for redress of complaint was still extant and could be pursued to the next rung in the ladder, viz the Defence Council.
14. In responding to the argument advanced by Mr Clancy for the Army, Mr Kennedy, who appeared for the pursuer, invited the granting of decree de plano in terms of the first declaratory conclusion as amended at the bar in the course of the discussion, reserving for further inquiry such pecuniary consequences as might flow from that decree. Essentially, said Mr Kennedy, there were two issues at this stage in the case. The first of those issues was whether in his letter of 29 July 1998 Lieutenant Colonel Parrott took a decision which granted the pursuer's application for redress of complaint. The second issue was whether, if the Lieutenant Colonel did take such a decision, the Lieutenant Colonel had the authority to take that decision.
15. In support of his contention that Lieutenant Colonel Parrott did take a decision determinative of the pursuer's complaint, counsel for the pursuer referred to the terms of subsection (5) of Section 180 of the Act which provides that an officer to whom a complaint is made or referred "shall grant any redress which appears to him to be necessary". Passing to the Queen's Regulations, Mr Kennedy pointed out that Regulation 5.204 f envisaged submission of a complaint to another, superior, officer where the officer to whom the complaint fell initially to be made, was "implicated" in the decision. Paragraph (g) of the Regulation however talked in different terms of an officer "to whom a complaint is made or referred". Lieutenant Colonel Parrott was an officer to whom the pursuer's complaint had been referred. It therefore became the Lieutenant Colonel's duty in terms of that paragraph "to investigate [the complaint] as soon as possible and to grant any redress which appears to him necessary and which is within his power". The letters nos. 7/14, 6/1 and 6/2 of process all indicated the view that Lieutenant Colonel Parrott was not simply investigating matters of fact, but was empowered on that investigation to reach a view of the merits of the pursuer's complaint and was enabled to grant redress of that complaint.
16. Adverting to the terms of the letter of 29 July 1998, counsel for the pursuer submitted that it was plain from the terms of its middle paragraph, that Lieutenant Colonel Parrott had taken a decision that redress of the pursuer's complaint should be granted and that the pursuer should be reinstated in military service. The Lieutenant Colonel did not suggest that such a decision was beyond his remit and all that was indicated by the final paragraph of his letter was that he lacked the administrative authority to instruct the administrative procedures necessary to give effect to the decision which he had taken, and for that purely mechanical or administrative reason matters required to be referred to that administrative authority. There was, said counsel, no provision in the Queen's Regulations for referring the decision on the merits of an application for redress of complaint to a higher authority. The pursuer's complaint having thus been referred to Lieutenant Colonel Parrott and he having decided that redress should be granted in form of reinstatement in service, it was within the Lieutenant Colonel's power to require that that reinstatement occur. If the defender were contending that the Lieutenant Colonel lacked the authority to take such a binding decision, it was for the defender to explain why that should be and she had failed to do so.

Discussion

17. As was either expressly or implicitly recognised by counsel in the course of their submissions, the letter of 28 July 1998 upon which the pursuer's action is based, as also the other correspondence, must be read against the regulatory background to be found in the Queen's Regulations. That background contains two particular features which I think it important to note. First, in so far as an application for redress of complaint may proceed from the officer to whom it was initially submitted to a further or higher instance, that procession is intended to be in the military hierarchy, following the chain of command to which the complainer is, or was, subject while in service. That feature results in particular from paragraph (f) of Regulation J5.205 and in my view there is force in the observation by counsel for the Army that, as a matter of construction of the Regulation and contrary to that which was suggested by Mr Kennedy, the use of the word "referred" in the opening sentence of the succeeding paragraph of that Regulation must have in contemplation the passage of a complaint to the next stage in that hierarchy of command. The second notable feature, which emerges from the terms of paragraph (g), is that whatever view the officer considering the complaint as part of that hierarchical progression may reach concerning its merits, that officer cannot grant any redress which would go beyond his ordinary powers or authority. Put another way, the officer to whom the complaint is submitted or referred is not acting as an independent tribunal with general remedial powers. As I construe the Regulation, in so far as the officer, acting within his ordinary powers of command, may grant redress of the complaint it is open to him to do so if he think that appropriate. If he lacks authority to give the redress which he might think appropriate, the complaint must then ascend the levels of command until, if need be, ultimately reaching the Defence Council. These two aspects are, in my view, interlinked. In such a hierarchical system, it would not make practical sense that an officer considering a complaint involving matters outwith his area of authority should be able to impose his views on a senior officer having charge of that area of authority or command. While the junior officer to whom the complaint is submitted or referred may properly form a favourable view on its merits and urge that view upon the superior officer it is, I think, inherent in the system of internal complaint that the view expressed and urged by the officer lacking power to give effect to that view cannot be a view which the superior, having the requisite power, is obliged automatically to adopt and implement.
18. Although in his letter of 28 July 1998 to the pursuer Lieutenant Colonel Parrott expressed a clear view on the merits of the pursuer's complaint in terms favourable to the pursuer, it is also evident that the Lieutenant Colonel recognised his lack of authority to give effect to the view which he had formed. Although the language which he employed in his letter to the pursuer might give the impression of an assumption that his view would automatically be accepted and followed by those having the proper authority to reinstate the pursuer in service, that possible infelicity of expression does not detract from the fact that the Lieutenant Colonel neither had, nor claimed in his letter to the pursuer to have, the authority to reinstate the pursuer in service without the interposition of those with the requisite authority. That Lieutenant Colonel Parrott was properly aware that he did not have authority to grant the redress which he thought appropriate is underscored by his reference in the concluding two sentences of his report of 24 June 1998 to supporting the pursuer's claim, which sentences, for convenience, I quote again:-

"By way of conclusion and decision I uphold the complaint made by [the pursuer] against discharge and support his claim for re-enlistment/re-instatement. Not having the authority to action this decision I refer the matter back to the appropriate higher authority."

Supporting a claim for re-enlistment or re-instatement is plainly very different from granting re-enlistment or re-instatement.

19. Accordingly, given the Lieutenant Colonel's proper recognition of his lack of authority to give effect to the view which he had formed as to the merits of the pursuer's complaint, and the need to refer the complaint further within the military command structures, I am satisfied that the pursuer's invocation of the letter of 28 July 1998 as determinative of his complaint and constituting his reinstatement in service is misplaced. However forcefully Lieutenant Colonel Parrott may have viewed the pursuer's complaint as justified, he did not have the power to grant redress. His view therefore cannot be taken as effecting the reinstatement of the pursuer in military service.
20. I would add that, although at points in his submission, counsel for the Army gave the impression of painting a picture of Lieutenant Colonel Parrott's rôle as being simply one of investigating and reporting facts (albeit that counsel candidly acknowledged that there was a lack of clarity in the instructions given to the Lieutenant Colonel), I have some difficulty in accepting that description as wholly accurate of Lieutenant Colonel Parrott's rôle. It appears to me that, confronted with the objection that the pursuer's commanding officers, Lieutenant Colonel Wade and Brigadier Durcan, were "implicated" in the decision of which complaint was made, Major Halcrow adopted, no doubt in good faith and for understandable pragmatic reasons, the course of steering the complaint laterally to Lieutenant Colonel Parrott rather than vertically as strict observance of the Queen's Regulations would appear to have required. As I understood him, counsel for the Army volunteered recognition that, strictly speaking, the Queen's Regulations so required. However, even if the pursuer's complaint were thus directed to the wrong branch of the military organisation, that misdirection is of no relevant consequence for these proceedings since, even assuming Lieutenant Colonel Parrott to have been in the direct line of command or even assuming such a horizontal or lateral direction of the complaint to be competent, Lieutenant Colonel Parrott did not have, and did not claim to have, the power or authority to rescind the pursuer's discharge (authority for that discharge having ultimately lain with the Director of Manning) or to reinstate the pursuer in the service.

Decision

21. Both parties were content that the matter be disposed of on a consideration of the pleadings and the documents without the need for further inquiry. For the reasons which I have indicated, the conclusion which I have reached is that counsel for the Army is correct in his submission that the pursuer's claim is in these proceedings is misconceived and therefore that the action is irrelevant. I shall therefore uphold the first plea-in-law for the defender and dismiss the action. In so doing, I would record again that counsel for the Army maintained that the pursuer's application for redress of complaint renamed "live" and capable of proceeding to the Defence Council. As I understood matters, it is not suggested that the Defence Council would lack the requisite authority over the Director of Manning to order reinstatement of the pursuer in service if that were judged appropriate.