New reports that SAS personnel are quitting in “substantial numbers” signal yet another warning light flashing on the dashboard for the British Army. However, whereas other crisis areas for military preparedness seem to be due to a chronic lack of funding and long-term Government negligence, the SAS issue is primarily the result of legal activism.

Last month it emerged, in a memo circulated by the service associations of the SAS and Special Reconnaissance Regiment, that there were 242 ongoing legal investigations into special forces personnel. Of these, just over half concerned currently serving members, while the remainder of the investigations looked at veterans. The scope of the investigations included the conflicts in Northern Ireland, Afghanistan and Syria.

As a result, many elite troops are making the reasonable calculation that special forces operations are just too personally risky, in an environment where they are liable to be hounded by lawyers for the situations they encounter in the course of their duties.

The proportion of all those who enlist in the armed forces (itself a shrinking number) who are suitable for special forces selection is a fraction of a percent — and the amount of effort and resources invested into their training is huge, relative to the numbers involved. If even a handful decide to leave early as a result of legal liability, this represents a massive and irreplaceable loss to each cohort. And the reports suggest that the numbers doing so are considerably more than a handful.

How has it come to this? The extraterritorial application of the European Convention on Human Rights (ECHR) opened up individual service personnel to legal scrutiny in a manner that was not generally possible previously. In earlier times, a country would have had to lose a war in the manner that Germany and Japan did in 1945 for the decisions and behaviour of individual servicemen acting under orders to face this kind of scrutiny in the courts. And even then, such investigations did not typically go down as far as the level of private soldiers and non-commissioned officers. But in an age where no limits are applied to the justiciability of human rights, nothing is beyond investigation.

Beginning in the late Nineties, a cadre of political campaigners with legal degrees began testing cases in the courts to establish precedent, which they hoped would constrain the behaviour of governments in future conflicts. The intention was that warfare would be conducted in a manner compliant with human rights law — or, better yet, not conducted at all. Keir Starmer and his Attorney General Richard Hermer were both notable among this cohort of legal campaigners. In particular, they wanted to challenge the idea that covert operations were a legitimate element of warfare. If individual decision-makers were legally accountable, they would need public political cover.

The problem with this plan was that it relied on ministers with a sense of personal obligation to the troops they sent into battle. There has been relatively little sign that contemporary political figures are at all troubled by veterans facing legal repercussions for activities they carried out as part of their deployment. This is particularly the case of former New Labour ministers who introduced the Human Rights Act into law, and then sent troops into highly kinetic and legally contested theatres of war.

That this deters Britons from joining the special forces — or, for that matter, any area of the armed forces where they may have to make split-second life-or-death decisions — is such a painfully obvious question of basic incentives that it scarcely needs pointing out. The relentless persecution of Sergeant Martyn Blake in the wake of the shooting of the gangster Chris Kaba has had a similar effect on armed response units in the police.

However, the idea of leaving or reforming the ECHR remains untouchable to most of Britain’s political and legal establishment, not least the Prime Minister. Questions of national security, evidently, can’t be allowed to interfere.

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Chris Bayliss is an independent consultant who works on energy infrastructure in the Middle East.

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