1860. Sir John, you have
acknowledged that serious mistakes were made and errors of judgment
were committed. Could I ask you a couple of questions relating
to chapter 4 of the Legg report? I want to ask you a couple of
questions on the relationship between your officials and mercenaries.
Sir John calls them "British companies"—I call
them mercenaries. Earlier in your examination, you said that Mr
Penfold's relationship with the President was "unusually
close" and that there were risks in such a close relationship
and I also believe you went on to say that you told Mr Penfold
to draw that relationship to an end. Could not the same observations
be made of Mr Penfold's relationship with the mercenary Spicer?
They had lunch together; Mr Penfold, a senior official of the
Foreign Office, visited Mr Spicer in his office in the King's
Road; Mr Spicer spoke to Mr Penfold when he visited Freetown over
the Easter weekend; I think at that point Mr Spicer was deeply
concerned over the Customs & Excise investigation. Was that
not an over close relationship between a high commissioner and
this mercenary?
(Sir John Kerr) I think one has to disaggregate
a little bit. Calling on Branch Energy before going to take up
his job seems to me to be, as he said to the Committee in evidence,
not unreasonable. Going to have lunch on 23 December unaccompanied
was a bit rash. It is a very serious offence or mistake that he
did not report clearly and immediately on what he had seen at
that lunch, where he appears to have been shown a contract. The
meeting at the end of January, again unaccompanied, was a bit
rash. In April, when Mr Spicer is in Freetown, I do not think
they meet. If I recall correctly Mr Spicer asked that they should
meet and Mr Penfold, quite properly, says he does not think that
would be right. I think it might have been better if the penny
had dropped a little earlier, but it clearly had by 30 April.
1861. I am tempted to suggest to you that
this affair is characterised more by the ineptitude of some of
your officials than by collusion with these mercenaries in deliberately
seeking to ignore this arms embargo.
(Sir John Kerr) Are you inviting me to choose?
1862. Just for the moment.
(Sir John Kerr) Between the—
1863. —ineptitude and, if you like,
deliberate malpractice.
(Sir John Kerr) I have to take my stand with Legg
who believes that "There was no connivance; that the High
Commissioner gave a degree of approval which he had no authority
to do but he did not know the shipment would be illegal, and no
other official gave any encouragement or approval. All concerned
were working to fulfil government policy and there was no attempt
to hide information from ministers". I have no reason to
disagree with Sir Thomas Legg.
1864. Do you disagree with the view that
your officials were outwitted by these mercenaries and taken advantage
of by these mercenaries?
(Sir John Kerr) I saw that the Committee asked
Mr Murray if he thought he had been set up. I do not know; I have
not met Mr Spicer so I would not wish to hazard a view.
1865. These guidelines that have now been
produced relating to the dealings with mercenaries. Since they
were introduced, have any dealings with such people been brought
to your attention?
(Sir John Kerr) Yes, most recently the murders
in Angola of expatriate staff employed by Diamond Works, which
is a company based in Vancouver and comes into this story. There
has been contact with Mr Spicer over the fate of the missing British
citizen—two British citizens were murdered and a third is
missing. Mr Spicer is in touch with the office about rumours that
he hears; the office were in touch with his company about making
sure that the families were aware of the deaths before confirming
the names in what our news department put out. So, yes, there
has been that contact. There has also been another contact in
July which was to warn that a particular business man in a particular
country seemed to us to be not a good person to do business with
of any kind.
1866. Who gave you the warning?
(Sir John Kerr) That was a warning that we gave.
It was a warning that was given on instructions. There was a third
meeting, I believe, where a director in the Foreign Office, on
instructions, made quite sure that Mr Spicer was aware of the
exact scope and meaning of the sanctions resolutions in respect
of Yugoslavia.
1867. When was that given to him? Did you
say July?
(Sir John Kerr) I think that was September. Perhaps
I will be corrected from behind, if that is not the case. The
meeting about the particular individual who seemed an undesirable
contact was in July. Third, and just the other day, we had, alas,
the Angola murder. These contacts are taking place specifically
with ministerial authority in a properly controlled environment
with witnesses and records.
1868. And documentary records?
(Sir John Kerr) Yes.
1869. Because it has been suggested that
these killings at the mine run by Branch Energy, it was claimed
at the weekend, were a revenge attack upon Sandline. When we talk
about guidelines, you seem to be hinting—well, more than
hinting—that you are attempting to monitor the activities
of these outfits such as Spicer's.
(Sir John Kerr) No. I am extremely anxious to
monitor any contacts between our people and these people—private
military companies in general. Because you ask, Dr Godman, I recall,
since I promulgated new instructions formalising the need for
caution and laying down ground rules, I think three such meetings
have taken place or three such contacts. In the case of Angola
I do not think it is meetings but telephone calls.
1870. There are some of us who believe that
perhaps more than guidelines are needed. On the 9 June, Andrew
Mackinlay at Question 350 asked you to look ahead and "open
up Parliament to revisit the legislation on mercenaries of these
armies" and went on: "The way I understand it, for a
company based in the United Kingdom, there is nothing unlawful
for them to actually organise an army or a mercenary army, call
it what you like, but there is grey legislation saying that you
cannot recruit people within the United Kingdom, or something
like that", and he pursued this in question 351. Your answer
was, "I do think that is an interesting question and it is
one which we in the Foreign Office are reflecting quite seriously
on now. It is a very serious point". Miss Grant said in answer
to question 1552: "There is a case for more regulation, particularly
for more transparency about how these companies operate and are
set up". Have you given any advice to the Foreign Secretary
concerning the need to examine legislation in this field and to
control these mercenaries?
(Sir John Kerr) Yes. Mr Mackinlay raised the point
and I remember telling him I thought it was a very serious point
and we would look very seriously at it. There is a process of
Whitehall consultation going on now. The existing situation is
that—
Chairman
1871. Whitehall consultation regarding the
updating of the Foreign Enlistment Act?
(Sir John Kerr) Yes. Whether it would be updating
the 1870 Act or producing some new piece of legislation; whether
it would have the same effect—a ban; or whether it would
be a regulatory piece of legislation designed to impose requirements
on companies operating out of the UK, are open questions to which
we still have no answer. I must say I think what Mr Mackinlay
was asking about, and what I think I was answering him about,
in the spring was regulation of the companies rather more than
creating a new offence for a British citizen to enlist in any
foreign or private army. That is the area of the 1870 Act. I do
not think there has ever been a successful prosecution under the
1870 Act for an offence in connection with illegal enlistment
or recruitment and, in 1976, the Diplock Committee concluded that
the standard of proof required in a court of law would probably
be unattainable. I am not ruling out the possibility of looking
at the 1870 legislation; my own personal view is that we need
to look very closely at efforts by other governments, including
establishing a regulatory structure, efforts by other Governments
to curb mercenary activity based in their countries. It seems
to me it is quite a difficult issue; no decision has been taken
at this stage to introduce any new measure—either an amendment
of the 1870 Act or some new regulation in this country. Personally,
I hope we shall, but this clearly is a matter that involves not
just the Foreign Office but also a range of other Departments,
and it is a matter on which we have not yet reached a conclusion.
Dr Godman
1872. So you are confident that the Government
is not ducking this issue of enforcing tougher rules and regulations
on these—
(Sir John Kerr) I was going to say it is being
actively explored. I am afraid you might think that sounds like
an admission that we are ducking it. We are not. We are actively
exploring it.
1873. And you have examined the extant legislation
in other, say, European Union countries?
(Sir John Kerr) I have not myself but I think
that is being done. We also, of course, are looking closely at
the regulatory structure introduced by the South African government
which is perhaps particularly relevant.
Mr Heath
1874. Obviously you take this matter of
mercenaries seriously and the Government does yet, when we had
the 5 August article in the Toronto Globe and Mail, nobody
even sent that to the High Commissioner in the country to which
you referred for corroboration or otherwise. Is that the case?
(Sir John Kerr) Yes. I think that is right.
1875. Can you equate the seriousness with
which you are suggesting the Government takes the problem with
that action by your department?
(Sir John Kerr) This puts us back to unique circumstances
again. There clearly was very little material sent to Mr Penfold
in Conakry. You are right: the letter from Ottowa and the reply
are not copied to Conakry. Had there been a real working High
Commission, then they certainly would have been. It is obvious
that that is what would have happened. This is a little straw
which goes in the same direction for me as a number of bigger
ones, suggesting that we ought to think very hard before we repeat
the experiment of having a High Commissioner accredited to a government
in exile.
Mr Wilshire
1876. Sir John, when Mr Penfold appeared
before us I asked him about the conclusions that he had drawn
from discovering that a $10 million contract had been agreed.
The full references are questions 1223 to 1227 but the really
important bit is where Mr Penfold explained to us that he had
come to the conclusion that that was bound to include arms and
ammunition. I asked him: "You would not hold yourself out
as the only person in the FCO who would reasonably come to that
conclusion?" Mr Penfold said, "No, there is nothing
special about me." I continued: "So you would presume
anybody else given that information would come to the same conclusions?
(Mr Penfold) I would have thought others would, yes."
Do you agree with Mr Penfold's conclusion?
(Sir John Kerr) I also read Mr Murray's evidence,
which, I must say, told me things that were new to me about the
huge amount of money being paid to other companies for training
and logistic support. I confess that I think if I saw the number
10 million I would want to ask a lot of questions about what it
was being spent on. I do not know that I would have assumed it
must be arms but I think I would have wished to establish by a
series of questions that it was not, because it does seem a lot
of money.
1877. So that from the moment that piece
of information came into the Foreign Office, anybody who came
across even that bit of information should at least have asked
questions if not arrived at the conclusion that Mr Penfold arrived
at?
(Sir John Kerr) Yes, I think $10 million justifies
asking questions, I agree.
1878. So is it not the case then that to
try to fall back upon saying he did not actually know until 2
February is quite an unrealistic defence because this information
was known much sooner?
(Sir John Kerr) I am not sure that is right. For
example, the Everard minute of 5 January, which struck you as
very significant, I agree it is significant, but according to
Everard, the money was to be spent on "training and medical
supplies, no high-profile stuff", or words to that effect.
I have forgotten the exact wording; you have the minute. Mr Everard
clearly was led to assume, or led to expect, that it was not arms.
I think Sir Thomas Legg is right. I think the moment when it is
crystal clear that it has to be arms—it is crystal clear
to the Department that it has to be arms—is the 2 February
Penfold minute.
1879. Very well. Sir John, when you appeared
before us on this matter you explained to us how much paperwork
you have to read every week. You put a figure on it. Can you recall
that particular bit of evidence?
(Sir John Kerr) No, I do not think I can.
