Bermudians Against the Draft will today take their fight against conscription to Bermuda's highest court of appeal, the Privy Council in London.

The campaign group, comprising of 14 men contesting their conscription into the Regiment, hope to get mandatory military service abolished for good.

The policy was scrapped in the UK in the aftermath of the Second World War, and Bermuda is the only overseas territory where men must do mandatory military service. Speaking ahead of today's case, Bermudians Against the Draft (B.A.D.) founder Larry Marshall Sr. said they were "quietly confident and cautiously optimistic" they would win.

"I think what we hope to achieve, if we are successful, at the Privy Council will be a tremendous benefit to our Country, because for 45 years not everyone has enjoyed the most fundamental right, which is freedom," he said. "That's what this fight is about, to bring freedom to everyone in the Island. If we are not all free, then none of us is free."

B.A.D. first launched the court action in late 2006. They lost their first hearing in the Supreme Court in March 2008 and lost again in the Court of Appeal in November 2008. However, the Court of Appeal gave permission to take the case to the Privy Council because it is of public importance.

The conscription policy is administered by the Defence Department in order to ensure that the Regiment, which was formed in 1965, has enough soldiers to fulfil its functions.

Recruitment to the Regiment is primarily through conscription and all Bermudian men aged over 18 and under 32 are liable to call-up through a random ballot. They must complete three years and two months of part-time service.

Both men and women can volunteer, although only men can be conscripted. Only a small number of volunteers sign up each year. At the annual recruit camp last month, there were 153 conscripts and five volunteers three male and two female.

New privates in the Regiment can expect to earn just under $5,000 per year including pay for recruit camp, drills and performance awards. Those who complete further leadership training can earn just under $10,000 per year.

In court papers relating to the Privy Council hearing, B.A.D. listed several grounds upon which they say the policy is unlawful (see separate story). Their main point is that it is discriminatory against men under the Human Rights Act because only men, not women, are forced to serve.

Mr. Marshall, a Minister at the Church of the Living God in Pembroke, is the founder of B.A.D. His sons, Larry Jr. and Lamont, are named in the legal action.

He said: "This is a human rights issue. We're not against a regiment per se. We are against the process by which it's formed and it has always been our position from the outset that forced cheap labour is wrong."

The most recent survey on conscription, conducted by Research.bm in 2007, showed that two thirds of Bermuda residents support the policy, although support was much higher among seniors than young people. However, Mr. Marshall criticised Premier Ewart Brown and his Government for "reprehensible" conduct in failing to end the policy, as per the recommendations of a report on the Overseas Territories filed by the UK parliament's Foreign Affairs Committee in 2008.

B.A.D. has made repeated allegations about physical and sexual abuse within the Bermuda Regiment, and this newspaper revealed last year that 14 male soldiers made allegations of sexual misconduct between 1989 and 2002.

Claims of abuse are not part of the case that will be presented to the Privy Council, but Mr. Marshall nonetheless cited it as a reason why conscription should be abolished.

"We're talking about an institution that's brought suffering to innumerable young men and their families and that's a scathing indictment on the Government," he said. "February 22, 2010 is a bright spot for Bermuda because it shows that this younger generation is no longer prepared to tolerate this oppressive and abusive system."

The case which is listed for two days is contested by the Government, which says conscription is necessary in Bermuda. Regiment Commander Brian Gonsalves, Minister of Public Safety David Burch, and Governor Sir Richard Gozney, all declined requests for comment. Both sides will be represented by top British lawyers at the Privy Council Jonathan Crow QC for B.A.D. and Rabinder Singh QC for Government.

Mr. Marshall declined to comment on how much the court case has cost so far, beyond confirming it is a "significant amount". However, he did reveal that the group has received contributions of $10,000 and $5,000 from two local businessmen.

If the group is unsuccessful in the appeal to the Privy Council, it could go to the European Court of Human Rights.

What's at stake

A Privy Council ruling in favour of Bermudians Against the Draft (B.A.D.) could prompt the abolition of a conscription policy dating back 45 years.

The controversial policy of making men serve in the Regiment has been in place since it was formed in 1965, enjoying the support of successive governments and governors.

Hundreds of recruits, ranging in age from 18 to 32, are conscripted each year when their names are selected by a random ballot. They are subject to being arrested, fined or even jailed if they refuse to serve.

B.A.D. will rely on several arguments today when they take their fight against the policy to the Privy Council, the highest court of appeal for the Overseas Territories. Only one of those arguments could get conscription outlawed as it affects all young Bermudian men. That is that the policy is discriminatory under the Human Rights Act because only men, and not women, are forced to serve.

According to lawyer for B.A.D. Delroy Duncan: "If the appeal succeeds on the discrimination argument, which is that conscription only applies to men and not women, then the conscription regime in Bermuda would be unlawful."

He added: "You only have to look at comments made by past governors and ministers of Labour and Home Affairs about their view on whether conscription has a place in Bermuda, to see that conscription is of enormous significance. There are obviously generations to come that will be affected by the Privy Council decision either way."

If the Privy Council rules in favour of B.A.D. on the human rights argument, there would be no need to argue the remaining points any further.

However, Mr. Duncan explained: "In the event that the Privy Council rejects that argument, then there are four other arguments, any one of which, if they are successful, only relate to the men who appealed to the Privy Council."

The first of the other arguments is that Government and Government House must show they tried to fill the Regiment with voluntary recruits who can be male or female before resorting to conscripting the members of B.A.D.

The group claims there is no evidence before the court that voluntary enlistment proved inadequate, and on the basis of evidence from previous court hearings "they have made no real effort to secure volunteers".

The next point is that the decision to conscript the B.A.D. members was because policymakers "did not appreciate that voluntary enlistment had first to be tried and found inadequate".

The third point is that the decision to impose conscription was made without first considering whether a quota should be fixed for a certain number of women to serve in the Regiment.

The fourth is that the men's call-up notices were invalid for technical reasons relating to the way they were published.

Mr. Duncan said if the members of B.A.D. should win on any of the four points relating specifically to them, conscription in general could still continue.

It would be up to other individuals to contest their own conscription through legal action if they wished to. However, he warned that the courts could rule it too late for further claims to be brought.

Since launching their legal case in 2006, B.A.D. founder Larry Marshall has made a number of public comments suggesting that conscripts to the Bermuda Regiment are subjected to both physical and sexual abuse.

This newspaper revealed last year that 14 male soldiers made allegations of sexual assault or harassment against them between 1989 and 2002.

The Regiment has already completed an internal probe into those claims, but said that they were dealt with at the time and no fresh evidence has come to light since. The Human Rights Commission is still in the process of investigating.

Asked why allegations of abuse do not form part of the B.A.D. case, Mr. Duncan explained this is because they were not part of the case as previously heard and rejected by the Supreme Court and Court of Appeal in Bermuda in 2008.

"An appeal is an appeal against a court decision and it's rare we can introduce new material," he said.