Mercer must disclose sources
Afghanistan inquiry chair calls on former officer to show ‘moral courage’
The chair of the statutory inquiry investigating alleged unlawful killings by British special forces in Afghanistan has given the former veterans’ minister Johnny Mercer two weeks to comply with a disclosure notice. Failure to do so may result in the case being referred to the High Court for enforcement, the inquiry announced this morning.
During Mercer’s evidence to the inquiry in February, Sir Charles Haddon-Cave said the then minister’s decision to “refuse to answer legitimate questions... at a public inquiry” was “disappointing... surprising... and completely unacceptable”.
He ordered Mercer to disclose the names of officers who he said had told him about a cover-up. Mercer then challenged the chair’s order.
Dismissing Mercer’s application in a 53-page ruling published today, Haddon-Cave said:
I am satisfied that the public interest in ordering disclosure by the applicant [Mercer] of the names of sources 1 and 2 far outweighs the public interest in maintaining any confidence and that it is reasonable for the applicant to comply with questions (1) and (2) of annex A of the section 21 notice.
Accordingly, for the reasons set out above, I refuse the applicant’s alternative application under section 21(4) of the [Inquiries Act 2005] to set aside the part of the section 21 notice which remains unanswered.
The applicant submits that he is a protector of whistle-blowers. He chose publicly, however, to disclose that friends told him about allegations of unlawful killings by UK special forces in Afghanistan. He has since refused to disclose the names to assist the inquiry, even though:
(1) the inquiry was set up for the very purpose of looking into these allegations;
(2) he says that that his friends were merely witnesses;
(3) he could pass on their names to the inquiry privately and in strict confidence;
(4) he accepts that the inquiry protects the identities of confidential contacts; and
(5) they have protection from risk of prosecution for breach of the Official Secrets Act or failure to report misconduct.
Integrity requires moral courage to do what is right, even when it may not be popular.
Enforcement
A person is guilty who fails without reasonable excuse to do anything that he is required to do by a notice under section 21 is guilty of a criminal offence. The maximum penalty is 51 weeks’ imprisonment.
In addition, the High Court may enforce a section 21 notice in the same way as a court order. The maximum penalty for contempt of court is two years’ imprisonment.
In 2012, Ismail Abedi, whose brother was the Manchester Arena bomber, was convicted in his absence for failing to comply with a notice to appear at the public inquiry into the bombing. A warrant was issued for his arrest.
Ian Paisley junior, a member of the Northern Assembly, was fined £5000 in 2009 for refusing to reveal the name of a confidential source.
Update 25 July: A spokesperson for the inquiry said today:
Mr Mercer has provided further information in response to the section 21 notice and agreed to assist the inquiry further.
The inquiry team will be taking this forward.
For the time being, the chair will not be taking further action in relation to the section 21 notice or making further comment.
Mercer responded:
Sir Charles seems to have got his teeth into this and without question there can be no impunity in respect of any wrongdoing which our armed forces- whatever the circumstances- may have committed. “ Be you never so high [or in this instance authorised in strictly prescribed circumstances to mete out violence], the law is above you.” [ Dr. Thomas Fuller (1700s)]. I appreciate that my observations are a little off the point but all the same I thought it worth saying.