Johnny Mercer getting a judicial caution is not a minor news story

British politics feels stacked high with public inquiries into official wrongdoing right now. It can be difficult to keep track.

There are the Covid inquiries, Grenfell, undercover policing, infected blood, the Post Office scandal – and a bevvy of Scottish investigations too, from Dr Eljamel’s conduct in Fife and the death of Sheku Bayoh to the most recent announcement that a judge will explore why justice was delayed and denied to Emma Caldwell and her family.

You might be less familiar with the ­Independent Inquiry Relating to ­Afghanistan which summoned Mercer to give evidence last month. ­Established by the Ministry of Defence (MoD) in December 2022, the inquiry is ­investigating “alleged ­unlawful activity by United ­Kingdom ­Special ­Forces” in Afghanistan between 2010 and 2013, exploring whether the ­military police properly investigated a ­series of incidents which amounted to a “wider pattern of extra-judicial killings” by the SAS, and whether there was a cover-up of this fact, how, and by whom.

Stonewalling

The MoD has been dragged kicking and screaming to this inquiry, after years of ­evasions, stonewalling, and outright ­denials that there’s anything to see here. It is ­already clear there is a serious case to ­answer. Major BBC and Sunday Times investigations have already uncovered ­significant evidence of SAS ­wrongdoing in the field, including evidence that a ­single unit may have unlawfully killed up to 54 people during night raids in a single six-month tour, without proper ­investigation or sanction.

British special forces aren’t alone in ­facing credible war crimes accusations about their time in Afghanistan. A senior military judge in Australia has already ­established that 39 civilians and prisoners were killed in Afghanistan by their elite soldiers, ­including evidence that ­plausibly deniable weapons were planted on ­murdered civilians to substantiate claims soldiers were acting within the laws of war and proof junior soldiers were “blooded” by being instructed to execute detained Afghans.

A defamation case last year – brought by Australia’s “most decorated living ­soldier” – found it was substantially true that he had killed four unarmed Afghan civilians, gunning down one man with a prosthetic leg and kicking another off a cliff.

Johnny Mercer is a person of ­interest to the inquiry because of his ­background – but also because of what he claims he has been told about what happened in ­Afghanistan by so-far unnamed ­military personnel, “confirming his worst fears” about what happened. He hasn’t ­elaborated on who told him this, or what precisely those fears were.

This is significant because Mercer has been at the spearhead of the Conservative Party’s attempts over the last decade to shut off legal routes for military personnel to be held accountable for their actions. It was Theresa May who bragged that “we will never again in any future conflict let those activist, left-wing human rights ­lawyers harangue and harass” the “men and women of Britain’s Armed Forces”.

Indefensible

In his own terms, Mercer has been extremely successful in this endeavour, helping get two new acts on the statute book that restrict the liability of ex-soldiers for what they may or may not have done in Northern Ireland, Afghanistan, Iraq – and beyond. This position is inherently controversial. It becomes indefensible if organisations like the MoD are prepared to turn a blind eye to war crimes.

Mercer positions himself in his ­evidence as an honourable schoolboy, trying to do the right thing and follow the rules, as a good man, loyal to ex-servicemen, who has been let down by the opportunism, cynicism and dishonesty of the MoD.

“During all my conversations” with defence staff, he insists he was “assured that the allegations had been investigated and were untrue”.

He now feels “entirely let down – both by the Unit and the Commanders ­involved, and by the MoD,” because he has now been persuaded by persons unknown for reasons unknown that some of his ex-colleagues in the special forces did precisely what those villainous left-wing human rights lawyers accused them of doing.

His evidence implies the MoD was ­content to exploit his faith in the system and zeal for tackling “lawfare” while ­failing properly to investigate credible ­allegations of war crimes.

His pose of naïveté is, at best, only ­partly plausible.

In his evidence, ­Mercer told the inquiry that “on a personal ­level” he had “serious concerns ­surrounding the allegations of extra-judicial ­killings in ­Afghanistan” during his time as a ­minister answering questions about this issue in the House of Commons but ­believed he “had no option other than to trust” MoD investigations – and so parroted these denials while he excoriated troublemaking lawyers for persecuting the “best of us” by pursuing credible allegations that war crimes had been committed.

Collective amnesia

Because he wasn’t answering ­Commons questions in a “personal ­capacity”, ­Mercer claims he didn’t feel the need to tell MPs he personally thought a ­number of the Ministry of ­Defence’s ­explanations about the war crime ­allegations were “not ­plausible”. This included the fact there was allegedly no full-motion ­video of the murderous detention ­operations ­undertaken by the SAS, and the ­“collective amnesia” of everyone ­allegedly ­involved, when questioned.

“I also found it implausible that none of those conducting the operations could remember anything about these ­operations,” he says, continuing ­matter-of-factly that “a day in which multiple individuals (and in some cases children) were killed would have stood out in the memory of all of those present.”

He also disclosed “concerns about the inherent implausibility” that “multiple ­detained individuals had repeatedly gained access to weapons post-detention” and sought to take on the “vastly superior numbers and capabilities” of their captors.

Mercer suggests this scenario “was ­simply not something that I had ever seen or heard of happening during my own extensive combat and non-combat experiences” and neither could he “find anyone versed in these operations who had ever heard of that situation arising”.

“To be asked to believe it happened ­numerous times was again not plausible.”

Another ­implausibility, he says, was that “the number of persons killed in these incidents significantly and ­repeatedly exceeded the number of weapons found on the targets”.

Completely unacceptable

Last month, Lord Justice Haddon-Cave cautioned the Veterans ­Minister that he was refusing to answer “­legitimate ­questions”, describing it as “very ­disappointing, surprising, and completely unacceptable” and raising the prospect of “potentially serious legal consequences” if Mercer won’t name names.

His caution to Mercer was stark and merits repetition. “You need to decide which side you are really on, Mr Mercer. Is it assisting the inquiry fully and the public interest and the national interest in getting to the truth of these allegations quickly, for everyone’s sake? Or ­being part of what is – in effect – an omertà, a wall of silence. This wall of silence is ­obstructing the inquiry and access to the truth, and doing so because of – if I may say so – a misguided understanding of the term ‘integrity’, and inappropriate sense of loyalty.”

For a Minister of the Crown to receive such a judicial caution – and for it to be treated as a minor news item if it is ­reported at all – is remarkable. Last ­weekend, The Telegraph ran ­unconfirmed reports that Haddon-Cave has now slapped an order on Mercer under the ­Inquiries Act 2005 requiring him to ­identify the whistleblowers who told him about war crimes in Afghanistan. Failure to cooperate with a Section 21 order is a criminal offence, publishable by up to 51 weeks imprisonment.

The military establishment is now getting their retaliation in first, with former senior soldier Lord Dannatt claiming that “it is outrageous that the government minister who has done more than anyone else for veterans should be threatened with jail”.

If several people died in civilian ­custody, would we consider, even for a moment, the suggestion that the honourable course of action would be for a ­government minister with knowledge of what happened to keep his mouth shut and sit on his sources? Would we regard it as acceptable for any senior politician to decline to co-operate with a justice process investigating scores of unlawful deaths because there might be uncomfortable consequences?

Without the military falderal and ­manly rhetoric about honour, we wouldn’t countenance it for a minute.