1820. Looking back, we have
talked about information systems coming up to Ministers and very
little being before Parliament, you seem to have been uninformed,
and Mr Dales seems to have been uninformed, for most of the time.
I find it very baffling how this thing all got locked up in a
Department. Do you find it baffling?
(Sir John Kerr) I find it extremely unfortunate
and I think it is very important to remember that the Department
were stretched, overloaded, a lot of things going on at precisely
that period, like the return of President Kabbah, but, as Ann
Grant told the Committee, she does not put that forward as an
excuse. She agrees that in retrospect a lot of actions that should
have bene taken in February were not taken and that that is very
unfortunate.
1821. Is it not more unfortunate that when
the issues had to be addressed, by this time at the end of March,
and because of the Customs and Excise inquiries and all the rest
of it, you were not properly and fully informed before you either
made those observations or indeed came to this Committee in the
springtime. You clearly were not informed when you came to the
Committee in the springtime about some of these issues.
(Sir John Kerr) I had a difficulty in the spring.
You may remember that I had several, but this particular one was
the difficulty of cutting across, by an investigation of my own,
an investigation by Customs which could have led to criminal proceedings
against the people I would be investigating. That was conceivable.
I did not know whether I was being told the truth. I did not know
whether there was actual connivance by the people I would investigate.
I could not do that. I talked to the Chairman of Customs and Excuse
and her very strong advice to me was to keep off the grass, which
I think was correct. I acted on that advice. I transferred the
investigation of the allegation away from the Sierra Leone desk.
I moved in someone from elsewhere in the command, someone who
knew about Africa but knew nothing about this and was in no way
touched by the allegation, to handle the investigation. During
the month of April he sought to get to the bottom of the story
and you will find in the Legg Report descriptions of how he got
on. An iteration between him and the Chief Clerk, and the Legal
Adviser, and me, led in the end, and I am very sorry that it took
so long, on the 24 April to his putting up a reasonably full report.
Many other documents turned up subsequently and it is quite true
that when I was giving evidence to the Committee in May I had
not seen the full picture that went to Sir Thomas Legg. I think
that is one of the advantages, if I may say so, greatly daringly,
of having set up the Legg Report, that we do now have a clear
narrative, showing who did what, who said what, and a narrative
established by an independent investigator taking evidence and
with ability to cross-examine all the players. I admit I had a
very partial picture when I first came before the Committee. I
do not think that was my fault. I think that that was the necessity
of not cutting across the investigation.
1822. One other major puzzle, unresolved
as yet, is the utterly conflicting evidence of key meetings that
took place—one on December 23 of Mr Penfold and Mr Andrews
and Ms St Cooke, for example. Are you in any better position to
resolve this puzzle for us than Sir Thomas Legg?
((Sir John Kerr)) No, I am not, Mr Rowlands. Obviously
I see that Mr Andrews has no recollection of the meeting at all;
Ms St Cooke thinks that Mr Penfold did look in just before Christmas
but cannot remember any formal meeting. Mr Penfold's 2 February
minute—and, of course, his 30 December letter—refer
to it. I have no means of throwing any light on that. I can only
rely on what Sir Thomas Legg says, having spoken to everybody.
1823. You said certain instructions have
been sent to everybody. Is there an instruction on how a Permanent
Under-Secretary ought to be better informed when issues are blowing
up like this inside the Department?
(Sir John Kerr) To the extent that the Office
becomes more aware of political sensitivities, I benefit too.
It will not just be the ministers who benefit—I will benefit,
and I really wish to be kept more closely informed than I was.
I entirely accept that what happened in the Foreign Office in
February was unsatisfactory in that there was then clear evidence
of something which was a prima facie breach of the law that should
have been brought to ministers' attention. Fortunately, it was
brought to Customs' attention, though not as fast as perhaps it
should have been. The action that was taken on the Penfold 2 February
minute was unsatisfactory and slow. That action should have included
putting in a report to people like me and ministers.
1824. So nothing, so that was unsatisfactory.
Then what about when the issue has been blown open and you have
asked for an account of what has happened and you need to be informed?
What about the 30 March account? Would you call that less than
satisfactory too?
(Sir John Kerr) No. 30 March was not the reaction
to it being blown open; 30 March is the cloud no bigger than a
man's hand that first comes across. That is the first I see. It
is not a reaction to my asking.
1825. And what conclusion do you draw, or
what adjective do you use to describe the way you were informed
on that occasion? This is no longer an internal departmental matter;
Customs & Excise are in full swing and all the rest of it,
and you get an account of the kind you got on 30 March.
(Sir John Kerr) Mr Dales sent me a rather fuller
minute on 2 April.
1826. But that repeats only roughly the
same as the one of 1 March?
(Sir John Kerr) You are right, Mr Rowlands. If
I may, I will stick on what I said. It was a very short minute;
I wish it had been a lot longer.
1827. Permanent Secretary, I do find the
evidence you have given this morning on the issue of where responsibility
should lie for informing our Ambassadors and High Commissioners
overseas in the critical area of the legal ambit of sanctions
orders frankly extraordinary. Do you not accept, as the Permanent
Secretary, that the first and overriding duty to inform Ambassadors
and High Commissioners as to the legal ambit of arms sanctions
orders lies, first and inescapably, with officials in London?
(Sir John Kerr) I entirely agree with you, Sir
John Stanley. That is exactly right.
1828. So you entirely agree that, in this
area, there was a one hundred per cent total failure by your department
to inform Mr Penfold?
(Sir John Kerr) If Mr Penfold says he was not
informed and did not see the text, I have to accept that. As I
said, I find it rather surprising. The fact is Mr Penfold was
in London and Mr Penfold was, every second day, in the same room
as the people who would have the duty of putting the document
on the line to Conakry had he been there. I also believe it was
Mr Penfold's responsibility to find out, while he was at home,
all information relevant to doing his job when he was there. I
accept it was also the responsibility of the department to make
sure he came across all such information. I would agree with you
exactly, Sir John, had I not discovered, studying the chronology
of the Legg report, that Mr Penfold was in London.
1829. But, Permanent Secretary, you spent
a career in the Foreign Office and you know as well as I do and
every member of this Committee that, when the passing of information
is important, it does not matter a hoot whether somebody is in
one side of the world or another, or in the next office, you minute.
Was it not a total failure by your officials, even if Mr Penfold
was in London, even if he was going into the Sierra Leone room,
to make it clear to Mr Penfold that the legal ambit of the sanctions
order was totally different from the public line being taken by
the Foreign Office?
(Sir John Kerr) I agree it is very unfortunate
and clearly has major consequences that Mr Penfold says he was
unaware of that. Had Mr Penfold been running the High Commission
in Freetown, there is absolutely no doubt that is what would have
happened. I do not know who—I expect it was Mr Glass—who
was minding the store in Conakry, if anybody was, throughout the
period when Mr Penfold was in London but, if you are saying it
is absolutely essential that the desk officer should have (competing
for the same secretary that Mr Penfold was using) used the secretary
to dictate a note to Mr Penfold explaining to him the force of
the legislation that was being written in the office, so that
they could, instead of speaking to each other, exchange a bit
of paper, I am not sure I entirely agree with you. The circumstances
were a bit unique.
1830. I have to say, Sir John, that your
assertion that, if Mr Penfold had been in Conakry he would have
most certainly received the written briefing which you have now
at last acknowledged it is the duty of your department to provide,
I am afraid it is wholly not borne out by the telegrams that passed
from London.
(Sir John Kerr) I said he—could I just—
1831. May I just finish my question? Is
it not the case that the only telegram which passed from London
and went to a number of posts that were concerned with this—Abuja,
for example—was telegram 277, the official Foreign Office
telegram, and it referred to the arms embargo being an embargo
on the Junta? That is the only telegram that is in existence.
What about all the other Ambassadors and High Commissioners in
west Africa? They did not receive any such guidance which you
have asserted they would most certainly have received. They did
not receive it.
(Sir John Kerr) Could I go back to your first
point? I do not think I said "Had he been in Conakry he would
certainly have received it". I think I said "Had he
been in Freetown" and we were in normal times; had there
been a working High Commission in Freetown. Yes, I agree with
you that it would have been a clear task of the desk to make sure
the High Commission had the papers. I entirely agree with that.
I then made a point about not being sure what would have happened
in Conakry because I was not sure who, if anyone, was minding
the store while Mr Penfold was in London. Taking your second point
about the posts, other than Freetown, Conakry, I agree with you:
I think it is very important that we should be clear that all
posts should understand the exact scope of sanctions regimes,
including Orders in Council. That is a point that I have addressed
in new arrangements for the handling of sanctions work in the
Foreign Office which spells out that the United Nations department
has a clear responsibility for UN sanctions regimes—including
Orders in Council; a clear responsibility for the issue of guidance
to posts, as well as announcing UN sanctions to Parliament and
following up allegations of UN sanctions violations. I think you
are right, Sir John, that it would have been better had we sent
a clearer guidance and explanation than we did at the time.
1832. When you say "clearer",
you actually mean "totally different", because you would
allege, would you not, that there is a fundamental policy difference
between saying that an arms embargo applies to, in the Prime Minister's
terms, the baddies only, and saying the arms embargo applies to
the goodies as well as to the baddies, which was the reality?
It was not a matter of lack of clarity: it was actually coming
clean on a fundamentally different policy. You were dismissive
earlier on about the press. They can just be fed the wrong story—apparently
of no consequence. Can you explain, however, why your officials
drafted in a speech for Mr Lloyd for his adjournment debate on
March 12 the fundamentally wrong line in the draft speech which
he then repeated to this House of Commons in Hansard that the
arms embargo was an embargo on the Junta, and failed to draft
in his speech that the arms embargo applied both to the Junta
and to President Kabbah as well?
(Sir John Kerr) Two questions. 1) I was not in
the Office at the time; I was Ambassador in Washington at the
time the Security Council Resolution was drawn up.
Ms Abbott
1833. But you are responsible for the systems
that should have been put in place.
(Sir John Kerr) I entirely agree. 2) I do not
accept that Mr Lloyd was misled. If you look, Sir John, at documents
18, 29, 30 or 33 you will find that the geographical scope of
the sanctions was made absolutely clear. Nor do I accept that,
in talking about an arms embargo to keep arms away from the illegal
Junta, it was misleading not to say "or anybody else".
If it is the case that Mr Spicer was misled, I really find that
baffling because Mr Spicer, as we can see, operates with a firm
of solicitors about him.
Sir John Stanley
1834. I have not raised Mr Spicer. Do you
not accept, Sir John, that there is a fundamental policy and moral
difference between saying that an arms embargo applies to an elected
democratic regime currently in exile and a brutal military Junta?
Was it not totally misleading for officials to draft for the Minister's
speech which he reproduced at column 841 on 12 March—and
of course it is his responsibility and I accept that: "We
were instrumental in drawing up the UN Security Council Resolution
1132 which imposed sanctions on the military Junta". Was
that not profoundly misleading to go the House of Commons?
(Sir John Kerr) No, I do not think so. Could I
ask you to have a look at paragraph 3.9 of the Legg report, where
Sir Thomas discusses precisely this point? I do not myself—I
have not spoken to him—know precisely what he meant by the
last sentence of that paragraph, but it is true that the ECOWAS
resolution had called for military involvement: the first half
of that last sentence: "This was partly because of sensitivities
about the possible role of ECOWAS which, unlike HMG, had explicitly
contemplated the use of force", presumably is Sir Thomas's
view that ministers did not wish to flagrantly and openly get
into a headlong clash with another group who wished to see the
return of the legitimate Government of Sierra Leone. As to the
second half, I suspect the word "partly" is missing
there. Concerning the role of Nigeria, you will recall that Nigeria
was, at the time, under a sanctions regime including an arms embargo—EU
and Commonwealth—and I suppose that is what Sir Thomas is
referring to there. I have no further knowledge about motives.
It does not seem to me that the result of not publishing abroad
this aspect of the policy was a moral issue, as you say, Sir John.
1835. I now want to turn to another area
where Mr Penfold has been the subject of criticism, the criticism
that he did not do sufficient to pass key information up the line.
Can I start with a document which was a document that Mr Penfold
alone obtained, the one and only Sandline document that Mr Penfold—and,
indeed, anybody else obtained—and, within 24 hours of obtaining
it on January 28, the following day Mr Penfold deposited it in
your department. That document was, of course, Sandline's entire
strategic and tactical concept of operations making it unequivocally
clear that Sandline, a British company with a heck of a record—a
pretty bad news record as far as your department was concerned—was
actively engaged in work of the nature of assisting a military
counter coup in Sierra Leone. Can you explain to the Committee,
Sir John, why your department failed at any point to produce a
minute to you or to anybody else, let alone to ministers, making
it quite clear there was absolutely firm documentary evidence
in the department that Sandline were engaged in backing the military
counter coup?
(Sir John Kerr) Yes. I think it was very bad but
it was not that document. Document number 49 which the Committee
has seen, which is a description of Project Python, I find fairly
incomprehensible. The department did the right thing in asking
the Defence Intelligence Staff whether they made anything of it.
There seems to have been a subsequent conversation, according
to the Legg report, in which the Defence Intelligence Staff thought
there was not much to be made of it, so I do not make too much
of the document which Mr Penfold brought back to the department
after his visit to Sandline at the end of January. I do think—
1836. I am sorry, but just so we do not
waste time on documents that we are not referring to, I am referring
to the document about which there is no dispute: the document
that is referred to—
(Sir John Kerr) Document number 49?
1837. No. I am referring to the document
referred to in Sandline's solicitor's letter, the document described
as "Sandline International strategic and tactical plan, its
concept of operations for its involvement in the Sierra Leone
arena"". We have evidence—
(Sir John Kerr) You have it before you, Sir John.
Document 49.
1838. I am sorry. We have evidence, quite
clear evidence, that Mr Penfold received this document and handed
it to your department.
(Sir John Kerr) Yes. You can see that on the face
of it. It says: "This was given to me by Peter Penfold on
29 January. It came from Tim Spicer". I think we are talking
about the same document.
1839. I thought you said I was talking about
a different one.
(Sir John Kerr) No. I am talking about the Project
Python plan which, to me, is incomprehensible. It was incomprehensible
to the department; they send it to the Defence Intelligence Staff
and to the Cabinet Office and nobody could work out what it meant.
The crucial document is Mr Penfold's minute of the 2nd.
