[2024] UKUT 395 (AAC)

The Tribunal said that it was “within the knowledge and experience of the Tribunal that rugby has been approved by the Defence Council as being a sport which enhances the fitness, initiative and endurance of members of the forces” (see §24 of the Tribunal’s detailed written reasons). However, it didn’t explain the evidential basis for that position. It should have done.

The AFCS Order doesn’t specify how sports or sporting activity may be approved by the Defence Council. Miss Bara, a senior executive in the ‘Defence People, Armed Forces People Support Compensation and Insurance team’, provided a witness statement which sought to shed light on this. In it she referred to two policy documents published by the Ministry of Defence: document JSP 765, entitled ‘Armed Forces Compensation Scheme Statement of Policy’ (“JSP 765”), and document JSP 660 entitled ‘Sport in the UK Armed Services’ (“JSP 660”). She pointed the Upper Tribunal to §2.32 of JSP 765, which states that JSP 660 “sets out the types of sporting activities that are approved on behalf of the Defence Council by the UK Armed Forces Sports Board, Single Services Sports Boards or unit commanders” (emphasis added).

JSP 765 and JSP 660 are simply policy documents. They are not legislation. The operation of the AFCS is governed by the AFCS Order, not by policy documents. Nothing said in the policy documents can change how the AFCS operates, but these documents are helpful because they show how the Secretary of State seeks to implement the AFCS Order.

While JSP 660 refers to “approval” in the context of the approval by the Sports Council of national governing bodies (§11 a. of Chapter 1 of Pt 1), the approval of the constitution and articles of association of UKAF sports associations and amendments to them (§5 a. (3) and (4) and 6 a. of Annex A to Chapter 1 of Pt 1 of JSP 660), as well as approving grants and other funding to sports associations (see §11 of Annex A to Chapter 1 of Pt 1), it does not use the language of “approval” in relation to sports or sporting activities themselves as the AFCS Order does.

Neither does JSP 660 refer in terms to “enhancing the fitness, initiative and endurance” of members of the forces (as contemplated by Article 11(6)(a) of the AFCS Order). It does, however, refer to various benefits of service personnel engaging in sport such as contributing “to both mental and physical fitness, teamwork, leadership, self-discipline, determination, co-ordination, courage, competitive spirit, individual and collective resilience, and consequently military ethos” and it says that competitive sport plays a key role in operational capability, making “a significant contribution to operational effectiveness, fighting spirit and personal and collective development”.

JSP 660 also sets out categorisations of sports by reference to their eligibility for public funding (§11 et seq. of Chapter 1 of Pt 1). In Annexe E to Chapter 1 of Pt 1 of JSP 660 the sport of rugby (both union and league) is listed as a “Cat 1” sport for all services, and indeed Ms Seaman’s submissions at the hearing proceeded on the basis that service rugby was approved, but that the approval did not extend to charity or civilian rugby.

Pt 2 of JSP 660 provides ”practical guidance” for the organisation, administration and conduct of sporting activity in the UK armed forces. While the focus of that document is principally on participation in sports playing for UK armed forces teams in UK armed forces fixtures, it also deals with the circumstances in which service personnel may participate in civilian sport (see §10 of Chapter 1 of Pt 2) and charity sporting events (see §17 of Chapter 1 of Pt 2) as well as participation in international and elite events (see §22 of Chapter 1 of Pt 2).

Article 11(7) permits the Defence Council to approve sports subject to conditions, and §10 of Chapter 1 of Pt 2 of JSP 660 states:

“Service personnel participating in civilian sport at all levels, including national representation, have no duty status and do so at their own risk and in their own time. The MOD accepts no liability either for personal or third party accident. It is therefore essential that Service personnel involved in civilian sport take out the necessary insurance cover. At national level, athletes should make insurance arrangements with their appropriate [National Governing Body].”

Considering the matter in the round, I find that the sport of rugby has been approved by the Defence Council, but its approval is subject to conditions, including that involvement in civilian rugby is at the participant’s own risk and must be done in the participant’s own time. Therefore, while participation in civilian rugby is not prohibited, the Defence Council’s approval of the sport of rugby for the purposes of Article 11(6)(a) of the AFCS Order does not extend to civilian (including civilian charity) rugby.