This article is commentary and not legal advice. If you have a query relating to a JSP (or anything else) and require independent advice outside of your chain of command and the military, then you ought to speak to a specialist solicitor or public access barrister.
What are JSPs?
Joint Service Publications are a series of tri-service documents containing instructional and regulatory rules, guidance and manuals. They supersede all MOD manuals* and numerous single-service publications, and cover a wide variety of subjects including those within the administrative, medical and technical sectors.
Every area of defence concern is covered; from pensions and law to accommodation. Publicly visible JSPs can be found here, the full list is contained on the Defence Gateway.
JSPs have been in the news recently, with JSP 752 being the court’s focus during the prosecution of Maj. Gen. Nick Welch (Retd)** for dishonestly claiming Continuity of Education Allowance. JSP 752 concerns allowances and expenses.
We will not poke into the facts of that case too deeply here, but this JSP is a very good example of one that invites flexibility of interpretation, as opposed to JSPs more rigidly drafted, such as those governing specific areas of engineering, or troop deployment.
For the previously uninitiated and for civilians, JSPs are a daunting, lengthy read, usually numbering many hundreds of pages. However, they are extremely important documents and the prosecution of Maj. Gen. Welch (Retd) served as a timely reminder of the need to pay them extremely close attention.
What is their status?
They are not law, but failing to adhere to them can have consequences that are as serious as breaking the law. The best way to describe them is that they are rules. Each JSP makes it clear at the beginning of the document what it expects of the reader. From this, we can understand whether it falls into one or more or the following (non-exhaustive) categories:
1 – Strict application (Regulations or Directives)
2 – Guidance
3 – Regulations open to interpretation, with Chain of Command overall approval
4 – Instructional framework
5 – Manual
Look for words such as ‘must’ and ‘should’. If a sentence uses ‘must’ then you are expected to follow this part of the JSP to the letter. If the instruction is ‘should’ then there is slight flexibility.
How do I know what is expected of me?
Taking JSP 752 as our example, you will see this JSP describes itself as ‘regulations’ and a ‘policy source document’.
Here, the JSP invites service personnel to interpret it ‘reasonably and intelligently’. This is because this JSP governs allowances, and the living situations of tens of thousands of service personnel will naturally vary and require a bespoke approach to each individual.
‘Reasonably and intelligently’ seems a little vague?
Interpretation guidance is given at the beginning of the document. We can see above that you must take into consideration the aim of the regulation, the specific circumstances of the service personnel concerned, overall defence interests and ‘over issues’.
Paragraph 01.114 explains that ‘over issues’ are payments made or received in error.
So are you saying that I can interpret the regulations in the Allowances JSP in whatever way best suits me?
No, any interpretation has to tick the boxes set out at the beginning of the document, and there is an overarching caveat that prevents you going rogue and claiming your own interpretation is the right one.
‘Where any… entitlement to an allowance or expense is unclear…. advice must be sought through the relevant chain of command’
It is important to keep a note of people to whom you have spoken when seeking any advice, or the email thread if you have done so in writing. To be doubly sure, ‘print’ the email chain as a PDF document and save it somewhere safely.
Do all JSPs allow for intelligent interpretation?
No, JSPs are set out differently and vary according to their subject. It is important to read the preface or summary and the interpretation heading if there is one. The language has been carefully chosen.
A useful comparison can be found if we look at JSP 753, which concerns the mobilisation of reserve forces.
Here we see that part 1 comprises a Directive, and the directive must be followed ‘in accordance with statute, or policy mandated by Defence or on Defence by central government.’ There is therefore no room for interpretation or deviation, and the document must be applied in line with the law and policies mentioned.
Part 2 contains guidance and best practice that will assist the user to comply with the directive detailed in Part 1. This is designed to assist, but is not written in a way that forces adherence. The words ‘best practice’ tell us that the expectation is that it will be followed.
You will notice that the guidance is always longer than the directive. It is the guidance that really shows what is expected of you.
The statutes applicable to this JSP are listed from page 9 onwards, and you will see from reading other JSPs that when the law is relevant, they will tend to set out relevant primary and secondary legislation in this way. They will often refer to international as well as domestic law.
Anyone working with these documents should always read the relevant legislation separately. Legislation is ‘living’ and therefore liable to change, so JSP references may not always be up to date.
JSPs do not set out the relevant legislation within them but merely refer to it, leaving research homework for the reader.
Do I really need to read JSPs? I am very busy. Surely this is the clerk’s job?
The conviction of Britain’s highest ranking military officer in over 200 years for allowance fraud is a salutary reminder that service personnel are expected to adhere to JSPs, and either failing or choosing not to do so can have extremely serious consequences. Where allowances are concerned, you are responsible for your own claims as you are the person responsible for providing the information, even if you don’t physically put in the claim yourself.
There will of course be administrative errors from time to time, and the allowances JSP provides for the ability to recoup over-payments both during service and after severance of service, when the money becomes public debt.
The assumption is that you have read, digested and understood a JSP if you rely on it. JSP 752 is over 750 pages of guidance and has three different views on whether you can claim for a packet of crisps. Whole careers are spent understanding and interpreting it, but if you make a claim you are assumed to have understood.
What happens if I fail to adhere to a JSP?
Because they are not law, breaching them is not an automatic offence. Therefore the answer is ‘it depends what you have done and how bad it is’. Your omission or error may be capable of remedy, or it could be more serious and result in disciplinary action or court martial. If the JSP contains a medical framework and you have contravened it to the detriment of the patient, you could open the MoD up to litigation, and so on.
The criminal law, civil law and disciplinary procedures exist separately from JSPs, but the interplay between them becomes obvious. In Welch we saw the relationship between a dishonesty category criminal offence (fraud) and the wrongful claiming of Continuity of Education Allowance as per the above JSP.
Best practice is always to seek guidance from your Chain of Command if you find yourself in a situation where you are potentially in conflict with one or more JSPs. An honest failure to follow the relevant JSP can still amount to negligent performance of a duty, or conduct prejudicial to good order and discipline.
Three Top Tips
The three most important things to remember are:
1. Read the section of the relevant JSP including the advice FIRST
2. Take advice from your CoC if you find anything unclear
3. Record the advice you receive and what you do e.g. which claims you submit, and keep it safe
In this article we explore Major AGAI (Army only) and disciplinary sanctions.
*JSPs sit alongside Joint Doctrine Publications, Defence Manuals, Defence Council Instructions (DCIs), DCI Joint Service, DCI General and MOD Personnel Instructions.
**We have referred to him by the rank he held when he was prosecuted. He is now Brig. Welch (Retd).