Perverse culture of 'lawfare' profoundly affecting troop morale

As someone who served on operations and saw men under my command have their self-control tested to the extreme I constantly wondered at how young men, often with little education, could show such intelligent restraint at times of great provocation. And I am only talking about Northern Ireland.

In the quarter century since the first Gulf War hundreds of thousands of young men and women have been put through degrees of combat not seen since the Korean War. A perverse culture has built up alongside the campaigns fought by our troops. Some call it “lawfare”. It is having a profound effect on the morale of our armed forces and on how we are able to fight wars in the future.

I firmly believe we need to have a clear legal system that does hold servicemen and women to account when they break the rules of war. But the system that has been allowed to develop is absurd. The Iraq Historic Allegations Team tracks down veterans who are interviewed and told they may face prosecution for actions taken over a decade ago, often on spurious evidence supplied by British lawyers. These cases are funded either by legal aid or through no-win-no-fee arrangements. At least one of the two legal firms involved in this Klondike fee-fest has been referred to the Solicitors Regulation Authority following the damning Al-Sweady inquiry into an action known as the Battle of Danny Boy.

In recent weeks we have heard of a case is being investigated against a sniper who shot and killed an insurgent who was about to fire an RPG7 round towards British troops. The shot was made from about 1200m away. An act of skill that it is hard to imagine. But in absolutist terms it could have been an illegal fatality as the sniper did not issue a verbal warning. To give such a warning, in a language that an assailant could understand, over that distance is a ridiculous concept – even before you try to second guess the thoughts racing through the sniper’s mind as he balanced the rules of engagement with the safety of his mates. I think he did the right thing. Surely it is time to draw a line under such investigations?

The Prime Minister has made a recent welcome announcement that could see a ban on no-win-no-fee schemes, the speeding up the planned legal aid residency test and a strengthening of penalties against firms that abuse the system. I would go further. The Government should derogate from the European Convention on Human Rights in respect of future overseas armed conflicts – using the mechanism of Article 15 of the ECHR. We should also revive the Armed Forces’ Crown immunity from actions in tort during all future “warlike operations” overseas, by Ministerial Order under the Crown Proceedings (Armed Forces) Act 1987.

Tom Tugendhat MP’s report describes a climate of “legal imperialism” that has been allowed to develop in recent years. I worry that this trend risks putting a dangerous caution in the minds of the snipers of the future. Rather than taking a life to save many, a caution prompted by a fear of legal implications might, to quote another colleague Sir Nicholas Soames MP, put a splint around his trigger finger. We need to accept that this culture of never ending inquiries and legal processes affects everyone from the most junior soldier just out of training, to the most gnarled veteran of a quarter century of expeditionary warfare. The Apache pilot, the mortar platoon commander, the front line rifleman all need to be governed by the rule of law - but which law? That is the matter that the Government must tackle with haste.

Richard Benyon is the Conservative MP for Newbury