The Government told the High Court yesterday it was “not responsible” for the actions of Scots Guards who shot dead Malaysian rubber plantation workers over 60 years ago.
The assertion drew criticism from a judge because of a lack of evidence before the court which could support the Government’s claims.
It came as Foreign Secretary William Hague and Defence Secretary Philip Hammond joined forces to fight off a call for an independent inquiry into the deaths in December 1948.
Jason Coppel, representing the ministers, argued that the troops’ actions were “the responsibility of the independent Malayan state of Selangor” at that time.
Mr Coppel said Selangor was then a protected state, with its own ruler and government, and that the UK only exercised powers over foreign affairs and defence from external attack.
He suggested the soldiers might have been acting under the executive power of the sultan of Selangor.
But Sir John Thomas, president of the Queen’s Bench Division, sitting with Mr Justice Treacy, criticised the lack of evidence before the court as to who controlled the troops at the time and gave Government lawyers 10 days to come up with answers.
Sir John said: “When the British Empire was dissolved there were huge internal problems within its territories.”
The judge added: “You cannot run an empire without knowing who controls the troops. I feel it is incumbent on HM Government to do some work on this.
“We are not satisfied that what you are telling us is right. I am criticising those in the MoD and (Foreign Office) who must know what the answer to it is.”
The judges at London’s High Court are being asked by relatives of the dead to overturn the current Government’s refusal last November to hold a formal investigation.
The Government ministers argue they are under no legal obligation to hold an inquiry.
Yesterday lawyers acting for the relatives argued that enough evidence had now come to light to justify a full investigation into the “war crime” killings of the unarmed workers.
The families see an inquiry as the first step to eventually obtaining an apology and reparations.
The incident, involving a platoon of Scots Guards, happened while British troops were conducting military operations to combat the post-Second World War communist insurgency known as the Malayan Emergency.
Soldiers surrounded the rubber estate at Sungai Rimoh in Batang Kali and shot dead the workers before setting light to the village.
Michael Fordham QC, for the families, told the judges it was “a blot on British colonisation and decolonisation” and would “shock the conscience of the court”.
The QC said soldiers involved admitted there had been a cover-up and the men shot dead had not been “bandits” trying to escape: the official version of events maintained over the decades.
One member of the Scots Guards platoon, Alan Tuppen, made a statement in 1970 saying a sergeant had warned: “The (villagers) were going to be shot and we could fall in or fall out.”
Another soldier, George Kydd, said in another 1970 statement: “The bandits were then shot but I’m sorry I must tell you the truth, they were not running away.”
The troops had been told “to tell the same story”.
The hearing continues.