Bermudians Against the Draft are to take their battle to abolish conscription all the way to the European Court of Human Rights.

The campaign group yesterday lost their case in the UK Privy Council Bermuda's highest court of appeal.

B.A.D. appeared before the London court earlier this year after their case was dismissed by the Bermuda Supreme Court and Court of Appeal in 2008.

The appeal was heard on February 22-23 but the judges delivered their decision yesterday.

Lord Phillips, Lord Saville, Lady Hale, Lord Brown and Lord Mance dismissed all five arguments presented by B.A.D.'s lawyers, UK barrister Jonathan Crow QC and Delroy Duncan, of Bermuda.

However their key assertion that conscription is discriminatory under the Human Rights Act as only men, not women, are forced to serve, did receive support from Lady Hale.

Baroness Hale said in a postscript: "It is hard to think of a more obvious case of sex discrimination than to oblige the members of one sex to join the armed forces of their country while allowing members of the other to choose whether or not to do so."

Agreeing that B.A.D. had "a grievance", she said: "They have been treated less favourably than their fellow countrywomen.

"The Bermudan legislators may wish to consider reform. If so, they may wish to consider whether there is a more general problem with the design of their Human Rights Act; and if so, whether to adopt the US or Canadian rather than the UK model; or whether the question of conscription should be dealt with specifically; or whether the present situation is indeed justifiable and should be left as it is."

Mr. Duncan said last night: "Lady Hale's judgment is encouraging. She clearly feels there is room for amendment of the Bermuda Human Rights Act, which in her opinion failed to afford protection to our clients in this case."

He said: "My clients are disappointed by the ruling. However they remain positive that the cause they are fighting for is fundamentally correct.

"They are now fully committed to pursuing a further appeal to the European Court and will be discussing this option with their London lawyers this week."

B.A.D. consists of 14 men contesting their conscription, who want to get mandatory military service abolished for good. The group has been campaigning since 2006.

Conscription has been in place in Bermuda since the formation of the Regiment in 1965.

Any Commonwealth citizen can volunteer to be in the Regiment but as there are insufficient numbers, hundreds of Bermudians are recruited each year through a random ballot.

Men aged 18 to 32 are obliged to serve on a part-time basis over a three-year and two-month period.

Although conscripts and volunteers serve on the same terms, those conscripted are subject to arrests, fines and even jail if they refuse to comply.

The Regiment has a strength of approximately 609, including women volunteers.

The main crux of B.A.D.'s appeal is the argument conscription of men but not women constitutes unlawful discrimination contrary to section 6(1) of the Human Rights Act 1981.

Under the Act, sexual discrimination is defined as if someone is treated "less favourably".

However, the judges said that although male-only conscription was discriminatory, it was not unlawful under the provisions in the Act relating to employers.

They said that as women were invited to join the Regiment on the same terms as male conscripts, this did not constitute treating someone less favourably by denying them employment.

Delivering the Board's judgment, Lord Phillips said yesterday: "There is no refusal to recruit women for employment in the Regiment. They are invited to join the Regiment on precisely the same terms as the male conscripts, as are any men who are not conscripted."

Also, the Board said conscription was not a 'term or condition of employment' but rather a manner of procuring employment.

However, it added: "It is plain that some, if not all, of the roles performed by the Regiment could just as well be performed by women.

"There seems no obvious reason why protection from discrimination should not extend to cover conscription."

B.A.D.'s second submission was that conscription was only lawful if volunteers could not be found, and so this required the Governor to review the size of the Regiment and to take reasonable steps to recruit volunteers.

The judges ruled that this had already been determined, as "issues of fact" against B.A.D., by Chief Justice Richard Ground and the Court of Appeal.

The Board said the Governor of the day could be assumed to have read the Defence Board's Review of the Regiment in 2006. Also, he was already persuading recruits to join the Regiment as "all men who qualify for conscription are asked whether they would like to volunteer".

B.A.D.'s third argument, that the Governor had proceeded under an error of law by believing he had no duty to recruit volunteers, was rejected by the Privy Council.

The Board said the courts had previously found the Governor had complied with such duties.

In their fourth submission B.A.D. claimed the Governor had resorted to conscription without considering a quota of women.

The judges however said they were unable to see how such a quota would assist recruitment.

"The Governor could not fill a proportion of the Regiment with a fixed quota of women volunteers any more than King Canute could halt the incoming tide," they said in their judgment.

B.A.D.'s final argument was the claim that call-up notices, published in the Official Gazette, were invalid.

The judges however said publication under the Defence Act 1965 was an administrative act which the Deputy Governor could delegate.

Yesterday current Governor and Commander in Chief, Sir Richard Gozney, said: "I welcome the Privy Council verdict dismissing B.A.D.'s Appeal."

Major George Jones, spokesman for the Bermuda Regiment, said: "The Bermuda Regiment welcomes the decision of the Board of the Judicial Committee of the Privy Council in unanimously advising Her Majesty that the Bermudians Against the Draft (B.A.D.) case be dismissed.

"In accordance with the Judicial Committee's decision, and previous commitments made between the Bermuda Regiment and B.A.D., all members of B.A.D. still required to complete their military service are to report to the Regimental Sergeant Major at Warwick Camp by and before 12 noon, Friday May 28, 2010, for further directions."

Lieutenant Colonel David Burch, Minister of Home Affairs, said: "The Ministry of Labour, Home Affairs and Housing welcomes the ruling of the Privy Council and the validation of service in our Regiment."

Attorney General Kim Wilson told the media: "We've won on all points.

"On the discrimination argument, the Privy Council held that the appellants were stretching the language of sections 6(1)(a), (e) and (g) too far."

She added: "We should, of course, get our costs."