Examination of witnesses (Questions 144 - 159)
TUESDAY 9 JUNE 1998
SIR JOHN
KERR, KCMG,
MR FRANCIS
RICHARDS, CMG,
CVO,
MR ROLAND
SMITH, CMG
and MR ROY
DIBBLE
Chairman
144. Sir John, may I welcome you and your
colleagues to this, what is in effect a resumed enquiry session
of our meeting on 14 May. Perhaps it would be helpful if you were
to introduce your colleagues to the Committee.
(Sir John Kerr) Thank you, Chairman. I am accompanied
by Francis Richards who is the Deputy Under-Secretary of State
in charge of intelligence in the Foreign Office and, given the
agenda you set in your letter asking me to come, by Roy Dibble
who is the Director of General Services in the Foreign Office
and by Roland Smith who is the Director of International Security.
Chairman: Sir John,
I am aware that of course it may well be that at the appropriate
stage this Committee will wish to go into closed session when
we reach those relevant points and of course we will then consult
with you as to which parts can and cannot be published because
of security considerations. Sir John, you have made the point
very clearly in letters to the Committee that there are, in your
judgment, certain constraints which arise from the Legg enquiry.
I would like to make absolutely clear from the outset what are
the powers and responsibilities of this Committee as a Committee
of Parliament. I am going to ask Sir John Stanley to set on record
ab initio what is the position of this Committee.
Sir John Stanley: Permanent
Secretary, you said in your letter of 4 June to the Chairman of
the Committee: "You will be aware that given Sir Thomas Legg's
terms of reference there is some potential overlap between his
independent investigation and the Committee's inquiries about
organisational matters in the FCO and related inter-departmental
questions. In his view, and in mine, it would be wrong while he
is examining all the evidence and seeing witnesses to pre-empt
and so risk prejudicing his investigation. I shall, therefore,
be unable to respond substantively to questions falling within
his remit." You also in your paper to the Committee headed
"Memorandum 1: Outstanding Issues" declined to give
substantive answers to a series of questions which had been put
to you in the previous evidence session which you gave before
the Committee. Sir John, the Committee has taken advice from the
Clerk of the House of Commons on the relationship between the
position you have taken up and the issue of contempt of Parliament
and as we have taken steps, albeit only this morning because of
the timescale, to formally read to you the relevant sentence of
Erskine May, I should like to do so again in the public hearing
of this Committee. The relevant section of Erskine May is under
the heading "Misconduct in Presence of Either House or a
Committee" and the paragraph is headed "Witnesses"
and the opening sentence of that paragraph reads as follows: "Witnesses
who have refused to be sworn or take upon themselves some corresponding
obligation to speak the truth, who have refused to answer questions,
who have refused to produce or destroy documents in their possession,
who have prevaricated and given false evidence, wilfully suppressed
the truth or persistently misled the Committee have been considered
guilty of contempt". We wish to place that on the record
before you, Sir John, and we trust that you will, in answering
the questions that the Members of the Committee put to you, be
giving answers to the questions and not seeking to hide behind
the Legg enquiry.
Chairman
145. Sir John, we hope that is clear, that
the Legg enquiry is a departmental enquiry, it is not a judicial
proceeding, and we shall make what progress we can on the basis
of the position set out by Sir John Stanley this morning.
(Sir John Kerr) Could I respond for a second?
146. Please.
(Sir John Kerr) I do, of course, take extremely
seriously what you have said and what Sir John has said. In your
letter to me, Chairman, your letter of 21 May, you said: "The
Legg enquiry will of course cover issues related specifically
to the allegation of supply of arms to Sierra Leone. The Committee's
further enquiries will focus instead on" and you then listed
the four headings on which you wish me to give evidence today.
147. Yes.
(Sir John Kerr) I thought the approach in your
letter was, if I may say so, entirely reasonable and right and
hence I replied as I did. On Sir John Stanley's comments on my
memorandum and the material I supplied to the Committee, the four
categories of material I was advised that I could not supply to
the Committee, the four categories of material to which Sir John
referred, were about possible warnings from Mr Penfold that Sandline
might break the embargo, that was Sir John's own line of questioning
at the last hearing; Mr Rowlands' line of enquiry about who saw
the Avebury papers at the Foreign Office; Sir Peter Emery's questions
about minuting inside the Africa Department on contacts with Sandline——
Sir Peter Emery
148. That is right.
(Sir John Kerr) And Mr Wilshire's questions about
an alleged contact between Mr Penfold and Sandline at the end
of January. These, I was advised, all fell very, very clearly
within the remit of the Legg enquiry and, therefore, we should
not pre-empt that investigation. Point three, Chairman: you described
Sir Thomas Legg's enquiry as a departmental enquiry. With respect,
that is not strictly correct. Sir Thomas Legg and Sir Robin Ibbs
are conducting an independent investigation Whitehall-wide and
beyond. The Committee will have seen Sir Thomas Legg's advertisement
in the papers asking that anyone who has information on this matter
should contact him. Sir Thomas Legg is seeking to establish contact
and interviews with Sandline. I do not know whether he has had
an interview with Sandline, this is an entirely independent investigation
and I am distant from it. To say that it is a departmental enquiry
is not strictly correct. This is entirely independent, set up
by the Foreign Secretary with the Defence Secretary and the President
of the Board of Trade and the Prime Minister.
Chairman: Sir John,
I do not want to get into a semantic argument with you. This was
an enquiry established by the Foreign Secretary. Of course, we
accept that it is independent, we accept that the two gentlemen
involved are people of the highest integrity, but it is an enquiry
set up by the relevant department, the Foreign and Commonwealth
Office, and it is not a judicial enquiry in any sense and for
that reason it does not debar Parliament. The other question you
raised was relating to the pre-empting of the Legg report. That
is not the intention of this Committee. Indeed, the Committee
would hope on the basis of the platform provided by the investigations
of Sir Thomas Legg to have further enquiries, further evidence
sessions, with Ministers, possibly with civil servants, to ascertain
what in this case went wrong in relationships between Ministers
and civil servants, which is precisely within the remit of a Select
Committee of this Parliament. You are not debarred, following
the advice which Sir John Stanley has read out to you, from answering
questions posed by this Committee. The Legg enquiry is not a judicial
enquiry. Perhaps Sir John would like to comment on that.
Sir John Stanley: Sir
John, I think your responses miss the fundamental point, if I
could just repeat it. The obligation of a witness before a Select
Committee of this House is to answer the Committee's questions.
It is irrelevant whether the issue is indeed a departmental or
indeed non-departmental question. The only ground under which
you can refuse to answer the questions put to you by this Committee
is by the operation of the sub judice rule, on which we
have taken the advice of the Clerk of the House of Commons also.
The sub judice rule, which is set out in full in the appendices
to the Standing Orders of the House, make it quite clear that
the sub judice rule will only operate in relation to prospective
or actual proceedings in court of either a civil or a criminal
nature. In the absence of the operation of the sub judice
rule it is incumbent upon witnesses to Committees of this House
to answer their questions, full stop.
Chairman
149. Sir John, do you wish to comment? Do
you take issue?
(Sir John Kerr) I thought we were coming to discuss
the matters you set out in your letter to me. You said that instead
of pursuing allegations relating to the supply of arms to Sierra
Leone you would be exploring four specific areas. That was what
you told me in your letter. I understand that the Committee's
plan must have changed since you wrote me your letter. It is not
actually the case, as you said, that I have had the relevant bits
of Erskine May conveyed to me this morning, this is news to me,
but I am sure that Sir John has read it correctly and I do not
in any way wish to dispute the Committee's right to take evidence.
I do understand that this is a serious matter. I would like to
say that it is the view of Ministers and Sir Thomas Legg that
the correct sequence to follow is to permit Sir Thomas Legg to
finish his report with Sir Robin Ibbs as soon as possible unprejudiced
by partial exposure of particular lines of evidence, to let the
whole thing emerge in Sir Thomas Legg's report as soon as possible.
I heard what you said, Chairman, about the Committee's intention
then to have further hearings and I welcome that. If there are
lessons to be drawn of general application from Sir Thomas Legg's
report I think it is very important that we should draw them,
I think that is absolutely right. My point is a point about sequencing
and about prejudice. It is also, for me, a particularly awkward
point for a further reason which perhaps I should explain to the
Committee. Clearly, although I do not want in any way to pre-empt
whatever conclusions Sir Thomas Legg and Sir Robin Ibbs draw,
it is conceivable, given some of the allegations that have been
in the press, that their conclusions might justify consideration
of disciplinary proceedings against individuals. I say no more
than that is conceivable. I really do not want to pre-judge. In
this context this Committee will be aware of the guidelines drawn
up by the Public Administration Select Committee and agreed by
the Liaison Committee under which it is accepted that disciplinary
proceedings take place within departments and that it is not the
task of Select Committees to act as disciplinary tribunals. I
have a particularly awkward conflict here because as Head of the
Diplomatic Service I personally have a role in disciplinary proceedings
against members of the Service. It follows that I need to be particularly
careful on the grounds of natural justice in anything I say about
an issue which might result in such proceedings. I would be very
grateful if the Committee would take account of that.
Chairman: You can
have our assurance that we shall take account of that. In no way
are we endeavouring to set ourselves up as a disciplinary tribunal
in respect of matters within the Foreign and Commonwealth Office.
In respect of the letter you will recall, Sir John, the letter
was written on 21 May and the material which you supplied arrived
on Friday when many colleagues would not have been in the House.
I can assure you that the focus will certainly be within those
categories mentioned in my letter, that will be very much the
starting point of our enquiry.
Ms Abbott: The Committee
is united in its admiration for you so I say very gently that
you cannot hide behind Legg in this fashion. We hear what you
say about Ministers' views on the sequencing of events but Ministers'
views are a matter for Ministers, what this Committee does is
a matter for the Committee. This Committee's plans have not changed
since the letter the Chairman wrote to you. We believe that over
and above the matters of the Legg enquiry there is a wide area
of enquiry to do with the internal operations of the Foreign Office
which is a proper matter of concern for this Committee, not just
a proper matter of concern—we could be criticised by the
House for not pursuing these matters. As for throwing up dust
about possible disciplinary proceedings, that will not wash, Sir
John. We are not seeking to elicit your opinions on the conduct
of your staff, we are simply seeking to establish matters of fact,
to pursue the four lines of enquiry which the Chairman set out
in his letter to you. You would do us a service if, as I say,
you cease trying to hide behind Legg and if you drop this stuff
about disciplinary hearings and actually answer our questions.
Mr Godman
150. May I say, Sir John, as a Member of
Parliament and a life long trade unionist, I have no wish in any
way to harm the interests of colleagues of yours. With regard
to the status of the Legg enquiry I take on board what you have
said and the seriousness with which you made those observations
but the Legg enquiry, is it not, is utterly different—I
am trying to think of another contemporary enquiry—from,
say, the enquiry into Bloody Sunday which is being conducted by
Lord Saville and two international jurists. This enquiry does
not have that kind of status, I am sure you would agree. May I
say to you that I believe it is the intention of this Committee
to cross-examine Ministers, and indeed perhaps your good self,
on the findings of the Legg report because I do not believe that
even a full length day long debate on the floor of the House would
allow Members of Parliament, Members of this Committee, to cross-examine
Ministers in a comprehensive way. I would expect you and Ministers
to be called back to this Committee to answer questions on the
findings of Legg. I also take on board what you said in your letter,
and Sir John did not quote this, in your last sentence in the
second paragraph: "However, based on the approach described
in the Chairman's letter I hope that it should be possible to
keep such overlap to a minimum". Given that you have made
that promise to us I think we should be able to proceed with our
cross-examination despite your very serious strictures vis
á vis the Legg enquiry.
(Sir John Kerr) Could I say that I am grateful
to Ms Abbott and I am grateful to Mr Godman, I am very happy to
proceed as is suggested.
Chairman
151. Let us get under way. When would you
expect, on the knowledge now available to you, that the Legg enquiry
will be published?
(Sir John Kerr) As I say, Chairman, I am deliberately
distant from Sir Thomas Legg in the conduct of his enquiry. He
has an independent unit working for him who do not work for me
and do not come from the Foreign Office. I know that it is his
intention, his target, to finish the job so that it is published
in time for the House to debate it before the House rises for
the summer recess. That is his intention, that is his target and
it is the Foreign Secretary's hope that he will be able to meet
his target. I cannot give you an absolute commitment. I do not
know about the rate of progress he is making and I do not know
what is his estimate of the chances of meeting his target but
that is the target that we hope he will meet and that he hopes
to meet.
152. You are not aware of any obstacles
and the assumption, therefore, will be that if there is to be
a debate in the House before the end of July, given the need for
the House to absorb the conclusions, it should be published on
or about the middle of July?
(Sir John Kerr) I am sorry, I cannot give you
an exact date, Chairman. I am talking about a target. Yes, I agree
with your thought.
Chairman: Sir John,
first we turn to matters arising from the evidence which you gave
to this Committee on 14 May. Mr Rowlands has a number of questions.
Mr Rowlands
153. That was the first category that we
did write in our letter to you to say that we would be pursuing
and I assume that is within the terms of reference of this meeting.
I would like to pursue the two lines of enquiry that I was pursuing
at the time and seek further clarification from you. The first
was the innovative and interesting procedure of the High Commissioner
going into exile with the government. I asked you, Sir John, in
questions 45 and 46, in fact Mr Mackinlay asked the final question,
how unusual it was for a High Commissioner or an ambassador to
go into exile with the government. Are you in a position now to
answer whether it was usual or unusual?
(Sir John Kerr) It was extremely unusual. I have
checked and I cannot find a good precedent since wartime when,
of course, the Dutch, the Norwegian and a range of governments
in exile were in this country and there were diplomats accredited
to them. It is extremely unusual.
154. So the burden of my questioning was
right, that it was unusual?
(Sir John Kerr) You were absolutely correct.
155. Who made the decision that the High
Commissioner should go into exile? What were the circumstances
and reasoning behind such an interesting and innovative procedure?
(Sir John Kerr) The High Commissioner played an
important role in the evacuation of the western community from
Freetown at the time of the coup in spring 1997. It was decided
in the Foreign Office that he should be part-time in Conakry to
maintain contact. He was not there all the time, he came back
initially and fairly regularly, but he had an hotel room in Conakry.
He had no staff in Conakry, he had no communications in Conakry
but he had an hotel room there.
156. Was the decision for him to go into
exile made by Ministers as well as officials? Were there, as it
were, terms of reference given to him as to what his role should
be?
(Sir John Kerr) Frankly I do not know, Mr Rowlands,
at what level the decision was made but it certainly was a decision
that was approved by Ministers. I do not know where the initiative
came from, top down or bottom up.
157. What terms of reference was he given
in this very unusual step of a High Commissioner going into exile
with the government?
(Sir John Kerr) To maintain contact with the rightful
government of Sierra Leone.
158. You said in your evidence, for example,
again this is question 48 and following, that DfID helped him
prepare for retaking the administration of the country and, later,
that Mr Penfold was not idle, he had a genuine role to play. The
burden of your submission was that he had a function to play in
trying to attempt the restoration of the legitimate government,
is that right?
(Sir John Kerr) He was maintaining contact with
them. He was our contact with them. We had nobody in Freetown.
As I explained to you in our last session we had closed the mission
completely and there were only locally engaged caretakers there.
Yes, he was in touch with DfID about the economic support which
we were continuing to provide in the sense of aid for good government
when the government was restored to Sierra Leone.
159. But was he either asked to give advice
or to have discussions in any shape or form in conjunction with
the Office about the means by which the legitimate government
could be restored to power?
(Sir John Kerr) Yes, he was bound to have been
discussing with the Office and with President Kabbah's government
in exile how, by peaceful means, that government could be restored.
It was clear that our policy as Government was that it should
be restored by peaceful means.
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