Leo Docherty: No other country allows soldiers doing their duty to face perverse legal pursuit

The armed forces do not wish to be above the law. The Human Rights Act has had perverse consequences, which have caused injustice.

Leo Docherty is the MP for Aldershot. He is a member of the Defence Select Committee and a former soldier.

This week in the House of Commons I proposed a bill which would ensure that the UK derogates from the European Convention on Human Rights prior to deploying troops on combat operations. I did this because we need to ensure that our armed forces are protected from legal pursuit and that their resolve and capability to deliver hard fighting power, when needed around the world, is undiminished.

The legal pursuit of our soldiers and veterans is a particularly painful chapter in our country’s history and must be urgently resolved. Last year in my constituency, in the Aldershot garrison, I had a conversation with a senior soldier who had just left the Army after three decades of distinguished service serving in the most elite units, in the most brutal and demanding theatres of operation. His experience of sustained legal pursuit in relation to operations in Afghanistan left him with a deep sense of betrayal. Even though he was the son of a soldier and himself had served 30 years, he told me “my sons will not serve” which pained me.

Of course, soldiers do not wish to be above the law. They just want to be under the right one. For generations, the Law of Armed Conflict and the Geneva Conventions governed operations carried out by our soldiers, until that is, until 1998 when the unintended consequences of the Human Rights Act and the ECHR kicked in, leading to a catalogue of injustice involving hundreds of soldiers from all operational theatres; Northern Ireland, Iraq and Afghanistan.

No other country has such a perverse situation in which soldiers doing their duty face this kind of legal pursuit. Indeed, ten countries – including France and Spain have in effect opted out of certain aspects of the ECHR. So there can be a way forward, a way which my colleague Tom Tugendhat MP has tirelessly pointing out since his election to the Commons in 2015. The excellent Policy Exchange Report which he co-authored Clearing the Fog of Law makes clear the alarming manner in which our Armed Forces are entangled in Human rights law, to the extent that the ECHR applies wherever and whenever a British soldier employs forces. This means that foreign nationals, including enemy combatants can sue the UK for breach of the ECHR both in courts in London and Strasbourg following military operations. To prevent this we must – as other countries have done – derogate from the ECHR.

Another powerful voice is that of Johnny Mercer MP, my fellow member on the Defence Select Committee who has tackled head-on the outrageous scandal of the Iraq Historical Allegations Team and was instrumental – along with other members of the Defence Committee – in urging Sir Michael Fallon to close it down. The Defence Committee continues to investigate the scandal of legal pursuit and we have heard from witnesses about how the army is “running scared of the law”.

This is something that must end. And it must end, not only because of the past and the painful spectacle of legacy cases which cause so much distress to service men and women and their families. It must end because of future operations. Getting the legal basis of military operations right underpins the central mission of our national defence at this time; the rejuvenation of our armed forces to meet the complex new threats that we face.

Whether we like it or not we will need to, in the future, fight our enemies abroad. We need to be honest with ourselves about that. Soldiers are versatile and adaptable, they can be superb peace-keepers, aid workers, policemen, diplomats. They can and do perform all of these roles. But they are first and foremost, above all else, soldiers – whose task is deliver overwhelmingly military fighting power to kill and destroy our enemies.

And they must have the correct basis in law for them do that – in situations where domestic human rights law is simply not applicable. Soldiers need to know they can deploy and fight on our behalf by adhering to the Geneva Conventions and the Law Of Armed Conflict. They need to know they can deploy and fight on our behalf – and know that they will not then face spurious legal accusations decades after the event. And they need to know that they can deploy and fight on our behalf with the full confidence of our government, our society behind them.

For these reasons I hope that the government will back my private members bill, because as well as being a manifesto pledge and something all Conservatives can surely agree on, it is an issue, ultimately, of protecting the people of our Armed Forces and our national security.

Benedict Rogers: Hunt’s review of British policy on the persecution of Christians is crucial and courageous

The Foreign Secretary had already impressed me with his focus on human rights. Now he has created new hope for Christians around the world.

Benedict Rogers is East Asia Team Leader at the international human rights organisation CSW, co-founder and Deputy Chair of the Conservative Party Human Rights Commission, a former parliamentary candidate and a Senior Fellow at the Religious Freedom Institute. He is the author of six books, including “The Very Stones Cry Out: The Persecuted Church – Pain, Passion and Praise” (co-authored with Baroness Cox).

I have always been passionate about defending freedom of religion or belief as a human right for everyone, of all religions and none. I have worked for many years with and for the Rohingyas and other Muslims in Burma, the Ahmadiyya and Shi’a in Indonesia, the Uyghurs, Tibetan Buddhists and Falun Gong practitioners in China and twice visited and campaigned for an atheist in jail in Indonesia. My colleagues in CSW have similarly championed the cause of the Baha’is, the Yazidis, Hindus in Pakistan and others. Our motto is “everyone free to believe”.

However, for some time there has been a sense that the persecution of Christians has not been receiving the attention it deserves in certain quarters of our foreign policy establishment. Regardless of your views of Christianity, in simple statistical terms Christians around the world are persecuted in the most countries, from the widest range of sources – from radical Islamism, extremist Hinduism, Buddhist nationalism, from Communist authoritarianism, militant secularism or non-State actors such as paramilitaries and drug cartels in parts of Latin America. The International Society for Human Rights estimates that Christians are victims of 80 per cent of all acts of religious intolerance, even though they only represent 30 per cent of the global population. The Pew Research Center’s most recent report on global restrictions on religion states that the number of countries where various religious groups were harassed either by governments or social groups increased in 2016, and the most widely targeted groups were Christians, who face harassment in 144 countries, closely followed by Muslims, in 142 countries.

That is why Jeremy Hunt’s announcement on Boxing Day, to conduct a review of the Foreign Office’s response to the persecution of Christians worldwide, is so significant. In the five months since he became Foreign Secretary, I have already been impressed by the way Hunt has prioritised human rights, and shown personal leadership on many issues. As I have written on this site previously, his Policy Exchange speech was one of the most important speeches I have read by any Foreign Secretary. His focus on media freedom, his handling of Yemen, his decision to meet the wives of human rights lawyers jailed in China, his visit to Burma, his statements on the erosion of freedoms in Hong Kong, handling of the case of Matthew Hedges jailed in the United Arab Emirates, and Nazanin Zaghari-Ratcliffe in prison in Iran, are just a few examples of how he has increased attention on human rights. This latest announcement is another, and is potentially the most courageous.

I had the privilege of participating in a meeting a week ago, hosted by the Foreign Secretary, alongside the Archbishop of Canterbury, other senior church leaders and NGOs, and survivors of persecution from Iraq, Pakistan and Eritrea. I had the opportunity to highlight the situation in China, Indonesia, Burma and North Korea. The persecution of Christians in the Middle East is of course the most egregious, but it is not the only part of the world where Christians are in danger. I told Hunt that just three days before our meeting, I had received an email report about a Christian community in Burma holding a pre-Christmas celebration and being attacked and stoned by a mob of fifty militant Buddhist nationalists. China is facing the most severe crackdown on Christianity since the Cultural Revolution, involving the closure of many churches, the imprisonment of pastors and the destruction of crosses. In Indonesia, I visited three churches in Surabaya earlier this year which had been attacked by a family of suicide bombers. Across Asia, Africa, Latin America as well as the Middle East, Christians increasingly live in fear.

So a review of the Foreign Office’s policy specifically on the persecution of Christians worldwide is extremely welcome. We will see what comes out of the review when the Bishop of Truro, appointed to lead it, reports next Easter. I hope that at a minimum it will lead to the British government being more consistently outspoken, using its diplomatic networks to better defend persecuted Christians, ensuring our aid policy genuinely does not discriminate on religious grounds, for or against any religion, but recognises that faith-based aid groups can be part of the solution, and co-ordinates better with like-minded governments – particularly the United States Ambassador-at-Large for International Religious Freedom, the EU’s Special Envoy for Freedom of Religion or Belief and the UN Special Rapporteur for Freedom of Religion or Belief – to ensure that the crisis facing Christians worldwide is no longer ignored.

As the Foreign Secretary says, “Britain has long championed international religious freedom. So often, the persecution of Christians is a telling early warning sign of the persecution of every minority… We must never allow a misguided political correctness to inhibit our response to the persecution of any religious minority.”

The test will be in the outcomes of the review and in the implementation of what recommendations may come, but in taking this initiative Hunt has already symbolically shifted the Foreign Office in a better direction, and for that he deserves our appreciation.

WATCH: Tugendhat’s message to Trump – “In Iraq and Afghanistan, when it was -15 or 50 degrees, we soldiered on”

The US President opted not to attend a commemoration for the fallen due to inclement weather.

Full timely study. The basis on which Cabinet members should see legal advice on any Brexit deal.

There is no case for withholding it from them, for it only being shown after the event, or for not allowing them to study it.

Think it through.  Any Brexit agreement will come with a transition period.  During transition, we will remain members, in effect, of the Customs Union.  If no free trade deal is agreed when transition ends – currently expected to be December 2020 – a backstop will kick in.

That backstop will keep either Northern Ireland or the entire United Kingdom (let us pass over which for the moment) in a customs union.  In effect, it may bind Great Britain as well as the province to much of the Single Market, too.  Today’s Times says that the EU wants state aid, workers’ rights and environmental rules to be adhered to, a claim that has previously been reported.

All that being so, why would it want the whole UK or Northern Ireland, as the case may be, ever to leave the backstop?  It would have achieved an important objective, entirely understandable from its own perspective – namely, to ensure that we remain locked in to its economic model.

Trade talks would thus stretch on towards the distant horizan after 2020.  No wonder the EU won’t concede either a time limit or a unilateral escape clause from the backstop (an issue that Dominic Walsh of Open Europe explores on this site this morning).  As C.S.Lewis put it in another context: “easy in but not easy out, as the lobster said of the lobster pot”.

This explains why Jacob Rees-Mogg believes that the current fever over who should see the Attorney-General’s legal advice on any Brexit agreement is a side issue.  (He set out that view in our Moggcast earlier this week.)  It also provides the basis for the ERG declaring that it is opposed to any extension at all of the Customs Union in the wake of the transition period, either de jure or de facto.

Some will disagree – arguing that a fully-fledged trade deal won’t be ready by 2020; that some backstop provision is reasonable, and that we’ve signed up to it, but that it can’t be allowed to last forever.  They therefore want that unilateral escape clause, or perhaps a time limit.  Which brings us to the contested business of Geoffrey Cox’s legal advice.

It is astounding in retrospect that some Cabinet Ministers at least saw none in wake of last December’s joint report, in which the backstop was originally set out.  Michael Gove was assured by Downing Street that it didn’t commit Northern Ireland to full regulatory alignment.  On this basis, it cleared a Sunday Telegraph article by the Environment Secretary arguing precisely that.

“Fool me once, shame on you.  Fool me twice, shame on me, Gove said recently in Cabinet.  He and other members want to see and study the full legal advice in the event of a deal.  The DUP, Labour and other opposition parties want Parliament to see it, too. There may be a vote on a Humble Address to that effect next week.  David Davis and others want the advice published.

The case against publication is that legal advice to the Government must be confidential because, if it is not, those who write it will inevitably tailor their advice, knowing that others than their client will read it.  However, such advice has been published previously – notoriously in the case of Peter Goldsmith’s about the Iraq War, eventually issued in 2005.

There is a strong case now for arguing that, given the supreme national importance of Brexit, the full legal advice about any deal should be published before a decision is taken, rather than afterwards.  Certainly, it will be very hard to keep such advice out of the hands of MPs as a whole, let alone the relevant Select Committees.

But while Downing Street has a case against publishing the full advice, and even against divulging it to Parliament, it has none against letting Cabinet members study it.  The advice is advice to the Government – not to any single member of it, however senior.  The Ministerial Code says that while its conclusions can be presented in summary form, “the complete text of the advice must be attached.”

A senior backbencher told ConservativeHome yesterday that he would expect such a summary to be a political argument for any deal underpinned by legal analysis.  Under these circumstances, Geoffrey Cox would as a politician (as we anticipated on Monday) be supporting the proposed deal and, as a lawyer, be setting out its legal meanings and implications.

There would be nothing remotely untoward about this.  Nor is the Attorney-General the man to bend his reading of the law – which would, in any event, be informed by other lawyers in his department, and elsewhere.  None the less, the point still stands: Cabinet members would be entitled to see the full advice as well as the summary.

The reasons are obvious.  Legal advice is seldom unambiguous.  Its small print may have big implications.  No wonder some Cabinet members want to see the full advice, see it in good time, and be able to study it: the blessed trinity of their demands.  And no wonder, in turn, that Number Ten is apparently reluctant to concede this.

A question remains about whether only a final deal, signed off by the Prime Minister at a summit, should be subject to full timely study by Cabinet members.  The common sense solution, since Downing Street will be looking for their support, is for them also to see legal advice on the Government’s proposals, such as those that they are currently being shown.

Theresa May is evident desparate to get a move on (though our EU interlocuters are less eager to rush).  The Commons is in recess.  The Cabinet may be summoned over the weekend.  Either way, we are approaching a climacteric.