One of the most striking declarations in Theresa May’s party conference speech went as follows:

“But we will never again – in any future conflict – let those activist, left-wing human rights lawyers harangue and harass the bravest of the brave – the men and women of Britain’s Armed Forces.”

How was this problem ever allowed to arise, and why is it only now being dealt with? Someone who can help answer these questions is Tom Tugendhat, who between leaving the Army in 2013, and being elected MP for Tonbridge and Malling in 2015, raised the alarm in two pamphlets for Policy Exchange: The Fog of Law and Clearing the Fog of Law.

ConHome: “An excellent short film, made for the BBC by your colleague Johnny Mercer MP and picked up in the press, this week showed how members of our Armed Forces are being harassed at public expense by lawyers about allegations to do with the Iraq War in 2003, which in many cases were already looked into years ago, and prove to be groundless.

“It contained moving testimony from soldiers whose lives have been ruined. The General you used to work for said in the film:

“I think this comes out of this instinct somewhere in Whitehall, within the Establishment, that basically soldiers aren’t good and freedom fighters, we call them terrorists, kill 3,000 people in one go but in the minds of some of these people they are somehow quite good and we are not.”

“Do you agree with General Lord Richards, your former boss?”

Tugendhat: “I think the General knows how to express his own opinions. I think that most people are very supportive of the armed forces.”

ConHome: “Even in Whitehall?”

Tugendhat: “Yes. I think that many people do understand the armed forces, including many people in Whitehall, but what we’ve got is a bureaucracy that looks for as little trouble as possible. I think that most people do value our armed forces, but sometimes it is easier bureaucratically to follow a process through than to think why it is wrong.

“And it demands ministerial courage to stop things. And I think Theresa May has done very well in saying, first of all, that soldiers will get the legal protection they deserve, and secondly that the difference is going to be starting very soon, because the Iraq Historic Allegations Team process will stop very soon.”

ConHome: “What went wrong? Did we fail to get a derogation from the European Convention on Human Rights?”

Tugendhat: “We didn’t ask for one.”

ConHome: “When was this?”

Tugendhat: “Well you have to ask for one before. You can’t derogate afterwards.”

ConHome: “So before 2003?”

Tugendhat: “Exactly. Jack Straw actually, it was quite interesting, it just never occurred to them that the ECHR applied extra-territorially. They didn’t ask because they didn’t think they needed to. They thought it only applied to signatory states. Its never occurred to them that it applied to Brits abroad.”

ConHome: “So how did you yourself get into this?”

Tugendhat: “I got into it because I started to see the beginning of litigation in 2011-12. And when I left the Army in 2013 I’d been speaking to Dean Godson [Director of Policy Exchange] about it.”

ConHome: “And he said, ‘Do a proper piece of work about it’?”

Tugendhat: “Yes. And that was the first pamphlet with Laura Croft. I then did the second one with Richard Ekins and Jonathan Morgan.”

ConHome: “And is the Fog of Law now starting to clear in fact?”

Tugendhat: “Yes it is, in fact. Michael Fallon has picked this up, finally.”

ConHome: “He’s the first Secretary of State to pick this up?”

Tugendhat: “Properly to pick it up, yes. Number 10, the previous Number 10, was talking about it, but various other things came up, I can’t think what.”

ConHome: “So in 2013, when you published your first pamphlet, I remember Charles Moore wrote an appreciative piece about it in the Daily Telegraph, but generally speaking you didn’t get much immediate movement?”

Tugendhat: “No. I got a lot of very positive feedback at the time,but most people thought, ‘Well this’ll feed through and it’ll go away.’

“But of course it didn’t go away. In fact it got worse. And it got worse because of the Iraq Historic Allegations Team – IHAT – which was effectively various lawyers using legal aid money to look for victims, victims in inverted commas, because as we now know, some of the victims were in fact Iraqi militia members who having tried and failed to kill British troops in battle, then decided the appropriate next step was to sue them.”

ConHome: “So you and Godson decided you’d got to have a second crack at this.”

Tugendhat: “Exactly.”

ConHome: “Was it the volume of cases that particularly alarmed you [which as the Telegraph recently reported, has reached, if you add up the numbers for Iraq and Afghanistan, the extraordinary total of over 2,200], or knowing about some individual cases that were very unfair, or both?”

Tugendhat: “When I wrote the first paper I had no idea of the volume. When I wrote the second paper I thought there was an issue with numbers, but I didn’t realise quite the volume. And I don’t think anybody did, to be honest, until last year.”

ConHome: “You’ve said you don’t think there’s prejudice against the Army in Whitehall, but there probably is prejudice in favour of human rights? When officials hear the words ‘human rights’, they probably think ‘We don’t want to be seen to be anti-human rights’.

“And they don’t say, in Disraeli’s words to the purveyors of general doctrines of freedom: ‘I prefer the liberties we now en­joy to the liberalism they profess, and find something better than the Rights of Man in the Rights of Englishmen.’”

Tugendhat: “I think that’s fair. It’s not that they think the British soldier is the scum of the earth, or whatever it is that Wellington said. I think it is that when somebody says ‘human rights’ they get very nervous.”

ConHome: “And is that starting to change now?”

Tugendhat: “I think people are starting to realise that in that wonderful Burke expression, ‘It is a general popular error to imagine the loudest complainers for the public to be the most anxious for its welfare.’  When you look at the income of some of these legal aid firms, it does make you wonder what they mean by human rights.”

ConHome: “Is there a danger of this wholesome reaction going too far, and good stuff being swept away?”

Tugendhat: “No.”

ConHome: “What’s your general attitude to human rights?”

Tugendhat: “My general attitude to human rights is what it always was. Human rights matter. Human rights emerge from about 7,000 years of first Judaic tradition and then Christian and then through various periods and the Enlightenment to today.

“They are absolutely part of the social fabric of our society. I’m not arguing here that nobody has rights. That’s not the point. What I’m arguing is which is the best code of ethics, which is the best law to apply.

“Because the reality is that the battlefield is not the same as Brighton, or London, or whatever, and what is reasonable in one place is not reasonable in another. What you hold someone to account in one place is not reasonable in another.”

ConHome: “So it’s basically the Geneva Conventions that govern behaviour in war?”

Tugendhat: “Yes, it’s International Humanitarian Law, as it’s also called. In the very title of it, you can see it’s not a rejection of all these things. It’s picking the right code.

“The fundamental difference is International Humanitarian Law identifies who is and is not a legitimate target. You do not have to give a warning to a soldier in battle. You do not have to say ‘Stop or I’ll fire’. You just shoot them.

“Not to do so endangers your own side. In Human Rights Law you have to give warnings. What International Humanitarian Law says very clearly is these laws apply very clearly to certain people, uniformed soldiers and so on. Other people, noncombatants, civilians, medics, you cannot do anything to. You’re not allowed to shoot them.”

ConHome: “Can you lock them up?”

Tugendhat: “You can detain them during the period of hostilities if certain conditions are met. There are constraints, but International Humanitarian Law appreciates that a time of war exists. Whereas Human Rights Law says no, no, all people are the same.

“So actually, what you’re doing is removing rights from civilians and imposing them on combatants, because you’re treating them all the same. You, O soldier, have no right to act with force in order to protect Mr Jones the farmer, because you must treat them all equally.

“Therefore if Mr Jones happens to get killed by the militiaman over there, you aren’t allowed to intervene. That’s his tough luck and you can’t intervene. So all that training in order to be able to protect Mr Jones is useless.”

ConHome: “How did the Prime Minister get the point of this? That was a very strong line in her conference speech.”

Tugendhat: “Yes, I think she was very, very well-informed. Very, very wisely advised.”

ConHome: “Who by?”

Tugendhat: “I don’t know. I presume it was Nick Timothy. But to be honest, I suspect the reason she got it is that she’s just spent six years working with intelligence agencies and she’s had to think about it more than some others have done over the last six years so she was ready… I think Cameron was there but he hadn’t got round to doing anything.

“A lot of people who have already been through it, an inquiry in 2004-5 or whatever, they’re going round it again.”

ConHome: “That sort of double jeopardy is monstrously unjust.”

Tugendhat: “It’s really grossly, grossly unfair.”

ConHome: “Is it because communications are now better?”

Tugendhat: “War crimes did get reported before. Massacres of EOKA terrorists who were killed in Cyprus, various British soldiers did go to prison for that. Queen’s Regulations, which govern how a soldier is to behave, and say things like you must cut your hair and you must wear your boots in a certain way, also say you must not beat up and torture.”

ConHome: “The sheer volume of cases, as I think General Mike Jackson pointed out in this week’s film, is impossible.”

Tugendhat: “Unless you actually think, which I don’t think anybody does, that every British soldier was busily torturing and murdering their way around Iraq, it’s absurd.

“I’m not in any way seeking to excuse criminality. When criminality occurs it should be prosecuted, but it should be prosecuted according to the appropriate law, and the appropriate law here is what the Army calls the Law of Armed Conflict, the lawyers call International Humanitarian Law and Joe Public calls the Geneva Conventions.

“If you torture someone, that is a violation of the Geneva Conventions. You are not allowed to shoot wounded people who are not presenting a threat and have surrendered. Soldiers don’t just go around doing whatever they like. The rules are very clear.

“If you cannot securely or confidently deploy forces without being concerned they’re going to be tried ten years later for something that wasn’t a crime when they did it,  or was reasonable, then you’re in a pretty difficult place.

“It effectively means you just cannot use force. Or, worse still, you can use force, but when you do, it’s the individual soldier who takes responsibility, which is really unfair.”

ConHome: “So what else should Fallon be doing to sort this out?”

Tugendhat: “Well Fallon’s doing the right thing on derogation [from the ECHR in future conflicts].”

ConHome: “Though Dominic Grieve contends that derogation from the ECHR will make little difference.”

Tugendhat: “Dominic is right – it will make little difference to liability, but more difference to litigation. What I mean by that is that Queen’s Regulations will still prevent abuse and soldiers will still be liable for any misdeeds but they will instead be tried by court martial etc rather than hunted by lawyers with interests.

“Fallon is also doing the right thing on hiring lawyers. Because the other thing people say is the right thing to do is to stop everything. But actually what we’ve got to do is change the precedents.

“And the way you change precedents is by fighting cases and winning. And what happened over the last five or ten years was the British government settled a lot of these cases instead of fighting them. It settled them because it thought, ‘Well it’s a one-off’.”

ConHome: “They paid Danegeld, in fact.”

Tugendhat: “They paid Danegeld. They not only got the Danes to come back, they also created a legal precedent. As we have a Common Law system, reversing precedents is very difficult. The way you reverse precedents is either a vote in Parliament, or winning future cases. So we’ve got to win some future cases.”

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