Judge orders Johnny Mercer to name whistleblowing soldiers

Johnny Mercer has been ordered by a judge to name the Special Forces whistleblowers who raised concerns about the alleged executions of Afghans – or face jail if he refuses to comply.

The minister for veterans’ affairs has been served with a section 21 notice compelling him to reveal the identities of his sources.

If Mr Mercer continues to refuse, he could be fined or sent to prison for up to 51 weeks.

He has received widespread support for his stance in protecting “vulnerable” soldiers.

Gen Lord Dannatt, the former head of the Army, has described his treatment as “outrageous”.

The Telegraph understands the notice was served in recent days and follows evidence given last month to the Afghan inquiry by Mr Mercer, a former Army captain who served on three tours of Afghanistan.

Sir Charles Haddon-Cave, the inquiry’s chairman, had told Mr Mercer it was disappointing that he had declined to reveal his sources. He warned Mr Mercer that he had “very significant powers” at his disposal.

Lord Justice Haddon-Cave has now issued the notice under the Inquiries Act 2005, which gives him the power to compel the minister to hand over the names.

Mr Mercer has so far ignored the request and if he continues to do so will be in contempt of the inquiry and almost certainly jailed or fined.

Any such finding would put Mr Mercer in breach of the ministerial code, leaving Rishi Sunak with the difficult decision of whether to sack one of the most recognised names in his Cabinet and one of the most popular ministers with Tory activists.

It is unclear if a judge has ever previously issued such a notice to a minister, putting the inquiry on a collision course with the Government.

Lord Dannatt, who was Chief of the General Staff, said: “It is outrageous that the government minister who has done more than anyone else for veterans should be threatened with jail. He gave his word to the whistleblowers that their identity would be protected. The information that they gave Mr Mercer has already been passed by him to the inquiry.”

Lord Dannatt added: “He [Mr Mercer] sees this as a matter of public interest. He wants future whistleblowers to be assured they can speak to figures of authority in confidence.”

The inquiry has declined to comment. A spokeswoman said the inquiry and its chairman would not be “giving running commentaries on proceedings”. It declined to say if a section 21 notice had been issued to Mr Mercer.

‘Serious allegations’

Lord Justice Haddon-Cave, a Court of Appeal judge, is investigating allegations that special forces carried out extrajudicial killings in Afghanistan between 2010 and 2013. The inquiry was set up in December 2022 over initial claims that one SAS squadron had killed 54 Afghans in suspicious circumstances.

Mr Mercer said in a 19-page written statement provided to the Afghan inquiry in November last year, that “serving officers” had informed him in 2017 that there were “serious allegations of incidents” regarding UK Special Forces “that made members of that community feel very uncomfortable”.

He said he was “also made aware” of a separate allegation by a member of the Special Forces that he had been asked to carry a “dropped weapon”, an untraceable gun that would be placed besides a corpse “to make it appear as though they had been a legitimate target as a combatant”.

Asked repeatedly during his oral evidence last month to reveal the identities of his sources to the inquiry, Mr Mercer declined.

He told the inquiry that his sources were “not direct-hand witnesses”, adding: “They were not there.” He told the inquiry that he needed to maintain his “integrity” and that “the simple reality is at this stage that I’m not prepared to burn them”.

But Lord Justice Haddon-Cave told the minister it was “very disappointing and surprising, particularly for someone in your position, and, I am bound to say, completely unacceptable” for him to decline to provide the information. The judge also warned Mr Mercer he had “very significant powers” that he would use “if necessary”. It now appears the judge has begun to exercise those powers by issuing the section 21 notice.

The judge has warned Mr Mercer he would be “part of… an omerta” over what he called “this wall of silence… obstructing the inquiry”.

‘Not about protecting wrongdoers’

A friend of Mr Mercer’s pointed out to The Telegraph that the minister had given the soldiers an undertaking not to reveal their identities. The friend pointed out the sources had not done anything wrong and were extremely vulnerable having served in Afghanistan. “This is not about him protecting wrongdoers,” said the friend.

The friend said Mr Mercer, far from trying to obstruct the inquiry, had highlighted the “failure of the Ministry of Defence” to investigate the allegations of war crimes when they were first flagged.

The friend added: “Johnny gave these soldiers his word they would not be identified. The inquiry should have used Johnny as a person whom the military community trusts. Instead they’ve made it less likely for people to tell anyone anything.”