Questions for Wallace over war crimes bill change that would have protected SAS

Former Defence Secretary Sir Ben Wallace is facing questions astir a alteration made to a draught measure that would person protected the SAS from prosecution.

At the clip the changed measure was presented to Parliament, Sir Ben was already alert of warfare crimes allegations against the elite regiment, elder authorities sources told BBC Panorama.

The Overseas Operations Bill had primitively projected British troops beryllium protected from warfare crimes prosecutions relating to alleged offences much than 10 years ago.

But nether Sir Ben, the 10-year clause was halved to 5 years.

The alteration had the effect of pushing warfare crimes allegations against the SAS extracurricular the cut-off play for bringing a prosecution nether mean circumstances.

Government sources adjacent to the measure told the BBC that Sir Ben took idiosyncratic complaint of its transition and nary changes were made without his approval.

The allegations against the SAS – of extrajudicial killings connected nighttime raids successful Afghanistan betwixt 2010 and 2013 – are present being investigated by a nationalist enquiry chaired by Lord Justice Haddon-Cave. Sir Ben is owed to springiness grounds astatine the enquiry connected Monday.

The erstwhile Conservative Attorney General, Dominic Grieve, who expressed superior misgivings astir the measure erstwhile it was introduced, told the BBC the alteration to the timeframe “certainly raises questions” successful airy of the allegations against the SAS.

“If ministers knew determination were imaginable prosecutions that were apt to originate from operations successful Afghanistan, if you knew astir the allegations regarding peculiar forces during that clip period, it strikes maine arsenic troubling that you would question to marque that change,” Grieve said.

“The nationalist enquiry whitethorn privation to look astatine this arsenic portion of their enactment examining the government’s handling of the allegations successful question,” helium added.

Lieutenant Colonel Nicholas Mercer, who was the army’s apical lawyer during the penetration of Iraq, told the BBC the alteration raised superior questions astir the bill’s intent.

“Ministers look to person known astir the allegations against the SAS each along,” helium said. “So was this a deliberate effort to screen up those allegations nether the guise of dealing with alleged vexatious claims? It’s a precise superior question.”

In effect to questions astir this article, Sir Ben told the BBC it would beryllium "wholly inappropriate and so disrespectful to Lord Justice Haddon-Cave to supply immoderate remark whatsoever successful respect of your questions lone a time oregon truthful earlier I springiness grounds to the inquiry".

The BBC asked the erstwhile defence caput if helium disputed knowing astir allegations against the SAS earlier the measure was changed but helium declined to reply our questions astatine this time. In a abstracted station connected societal media, helium characterised our questions arsenic “leading and inaccurate”.

The Overseas Operations Bill was designed to forestall what the authorities has characterised arsenic “vexatious” ineligible claims against troops serving abroad.

But the measure drew terrible disapproval from some erstwhile elder members of the equipped forces and quality rights advocates, who said it gave soldiers effectual immunity from prosecution.

The archetypal measure projected a "triple lock" of protections aft 10 years: a statutory presumption against prosecution; a request for prosecutors to springiness value to the “exceptional demands and stresses” connected work unit operating overseas; and a request to get the consent of the lawyer wide for immoderate prosecution to proceed.

The lone offences exempted from this triple fastener were rape and intersexual violence. Other alleged warfare crimes, including extrajudicial killings and torture, were to beryllium afforded the presumption of these ineligible protections.

During the transition of the draught bill, the 10-year clause primitively projected by the Ministry of Defence was halved to 5 years, bringing the full clip play of the allegations against the SAS successful Afghanistan nether the protections offered by the bill.

At the clip the measure was introduced, Sir Ben was alert the Royal Military Police had already investigated respective SAS squadrons for execution connected nighttime raids successful Afghanistan – scrutinising much than 60 deaths successful total.

Sir Ben had besides been briefed by then-defence curate Johnny Mercer astir superior concerns astir the adequacy of the RMP investigations, which had resulted successful nary prosecutions. The Ministry of Defence was besides being sued astatine the High Court astatine the clip for an alleged nonaccomplishment to adequately analyse the allegations against the SAS.

And Mercer had informed Sir Ben that video footage of the SAS operations nether scrutiny, which should person been captured by drones and stored, had seemingly disappeared.

Addressing parliament during scrutiny of the measure successful 2020, Stephen Morgan, past shadiness defence minister, noted the alteration to a five-year timeframe “meant that operations successful Afghanistan, which ended successful 2014, fell extracurricular the clip bounds unless the circumstances for prosecuting immoderate caller alleged offences were deemed exceptional”.

“That raises questions astir the government’s reasons, and astir the grounds oregon proposal that they received, for changing the deadline to 5 years,” helium said. “Five years seems to beryllium an arbitrary figure, with nary wide grounds for wherefore that timeframe has been selected.”

Mercer argued successful parliament that responses to a nationalist consultation had supported a simplification of the archetypal 10-year timeframe. Though according to the published consultation, 90% of respondents described themselves either arsenic serving subject personnel, veterans, oregon a comparative of either.

Tessa Gregory, a spouse astatine the instrumentality steadfast Leigh Day, which represents the bereaved Afghan families astatine the nationalist inquiry, told the BBC that Sir Ben was “well alert of superior concerns surrounding UK Special Forces operations" astatine the clip the Overseas Operations Bill was introduced.

“Our client’s judicial reappraisal was nether mode and [Sir Ben's] ain curate was raising the alarm that thing had gone gravely wrong,” she said.

“In specified circumstances, it would beryllium a substance of existent interest for the bereaved families we correspond if it was [Sir Ben] who personally decided that the presumption against transgression prosecution successful the measure should use to each offences much than 5 years ago, alternatively than the 10 years recommended by his department.”

The measure was voted connected respective times by the Conservative-controlled House of Commons but repeatedly sent backmost by the House of Lords implicit concerns from peers the UK could extremity up taxable to involution by the International Criminal Court, if it was seen to beryllium unwilling to prosecute its ain forces for warfare crimes.

The measure was subsequently amended to exclude warfare crimes, torture and genocide, alongside rape and intersexual violence, from the presumption against prosecution. Sir Ben was inactive caput of authorities for defence erstwhile it passed into instrumentality successful April 2021.

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