240. So you would provide
him with an interpretation or a summary often of documents?
(Sir John Kerr) Yes, sometimes on paper a summary
and often a private secretary talking to his Minister will tell
him about the telegrams or some other bit of correspondence.
Mrs Bottomley
241. Permanent Secretary, did you say they
come out with marking on or no marking on?
(Sir John Kerr) The box comes out with markings.
That is the private secretary's job in the morning.
242. It is common practice for a Minister
to make some form of symbol on their papers, they might tick it,
they might write "noted", they might write "action
point".
(Sir John Kerr) Correct.
243. But it would be most unusual for a
Minister not in any way to put any marking on a document they
had actually seen, albeit they might only have glanced at it?
(Sir John Kerr) Myself, I do not actually put
a tick on all the telegrams I read. For example, at the weekends
I read an astonishing range of telegrams which make me a real
expert on the Middle East because the Middle East has a different
weekend. I would pop these telegrams in folders and put a tick
on the front of the folder or on the first telegram inside, I
would not necessarily tick every one. I would have pulled a dozen
out that I want to do something with as I have gone through, and
I would have scribbled something on them.
Ms Abbott
244. I am slightly sceptical about your
picture of the Foreign Office as a snowstorm of paper much of
which is not kept track of. Just looking at your last set of answers
to this Committee it strikes me that it is a little like Hamlet
without the prince because the Sandline operation is ultimately
a military operation and therefore it is a matter in which the
MoD would have had an interest. I was just curious to what extent
and at what level the Foreign Office would liaise with the MoD
over these matters because after all most of the Sandline personnel
were ex-MoD personnel.
(Sir John Kerr) Yes, and of course the Legg enquiry
goes Whitehall-wide and it will look inside the MoD as well as
inside the FCO, inside the DTI.
245. I know you are anxious about the Legg
enquiry but tell me how would you liaise with the MoD about this?
(Sir John Kerr) I have on my left Francis Richards
who is in charge of defence and intelligence work and, on my right,
the Director of the International Security Command. May I ask
Roland Smith to answer your question.
(Mr Smith) You are asking the general question
how the Foreign Office liaises with the MoD?
246. No, I would not dream of asking that
at 12 o'clock when we have a whole range of other issues to raise.
I am asking in relation to this specific thing where there was
the possibility of a breach of a UN embargo but also where there
was the possibility of Sandline who were mercenaries, but mercenaries
led by people who were ex-MoD personnel, how and at what point
there would have been MoD liaison? Would it have been at the post,
would it have been back here in London? There must have been some
liaison with the MoD.
(Mr Smith) Let me try to answer your question
as a generic question about Foreign Office liaison with the MoD.
247. Well, all right.
(Mr Smith) As regards the matters that were dealt
with in the Restricted Enforcement Unit, the MoD are always present
at meetings of the Restricted Enforcement Unit and of course they
also receive the minutes. So they are automatically involved in
that way. That is at desk officer level. Matters can be taken
up with the MoD at every level, from discussion between the Foreign
Secretary and the Defence Secretary downwards—I have frequent
meetings with my opposite number in the MoD. So in principle,
in relation to the sort of matters you are talking about, the
liaison could take place at a variety of different levels.
248. Thank you for that generic answer.
What I notice about this is that the MoD have kept completely
out of the frame on this and yet, when Robin Cook came before
the House to make his statement, there were MoD Ministers on the
bench. So on this specific matter was there liaison with the Ministry
of Defence and at what level did it take place, because it does
have a bearing on the internal workings of the Foreign Office?
Sir John, you look as though you are about to answer. Go on, give
way to the impulse!
(Mr Smith) The point is, first of all, I do not
have in my possession knowledge of all the liaison which might
have taken place with the MoD, that is why I can only give you
a generic answer. But, secondly, I cannot help suspecting that
we would be getting again into the territory which will be covered
by the Legg Inquiry.
Mr Wilshire: That
is two people who are in contempt.
Chairman: We have
two major blocks left, Sir John. One is the Restricted Enforcement
Unit and the other is matters specifically relating to intelligence,
but Mr Wilshire has one brief area of questioning before we move
on.
Mr Wilshire
249. Mine arises, Chairman, out of Question
91 to Sir John last time, which was the brief discussion about
the United Nations Resolution 1032 and the legal advice obtained
within the Foreign Office. Can I first of all say that the specific
question was, could we have a copy, you have provided a copy and
thank you very much for that. Could we now have a copy please
of the United Nations' legal opinion?
(Sir John Kerr) I get typecast for this, but this
is quite tricky actually.
250. The briefest questions usually are,
Sir John.
(Sir John Kerr) The legal opinion by the UN Assistant
Secretary General Legal Affairs is the property of the Sanctions
Committee of the United Nations. Its papers are not normally released,
quite a lot of them are confidential or commercial in confidence.
I actually rather agree with you, Mr Wilshire, I would find it
very good if we could obtain this paper but it will require the
unanimous agreement of the Sanctions Committee for one of their
papers to be released. So we will have to go through a procedure;
and I think we should do it.
Chairman
251. You are prepared to go through that
procedure as speedily as possible to obtain for this Committee
a copy of the relevant legal opinion?
(Sir John Kerr) Yes, we are prepared to go through
that procedure.
252. Because on the face of it——
(Sir John Kerr) But, as I say, it is open to any
member of the committee to object.
253. But you will do that?
(Sir John Kerr) We will do that.
Mr Wilshire
254. I find that a strange answer because
the Financial Times on both 23rd May and 27th May referred
to it, so clearly the press have got it and if it proves difficult
to get I am rather puzzled. When we do get it, when you do supply
it, could you also supply a further legal view from within the
Foreign Office as to whether or not it is correct or whether your
original advice was correct, whichever view is taken?
(Sir John Kerr) I can do that now, Mr Chairman.
It is that our legal advice, as given by me to the Committee and
now on paper on 14th May, is correct. We do not agree with the
UN ASG.
255. Could we have a copy of what the legal
opinion is as to why you do not agree as well?
(Sir John Kerr) You have it, Sir.
Chairman
256. You are saying that the Foreign Office
legal adviser maintains his original opinion that any supply in
those terms would be in breach of the relevant Order in Council?
(Sir John Kerr) Correct.
Mr Wilshire
257. But he must take a view of the inaccuracy
of the legal view of the UN, and it is that view that he takes
of the UN advice that I would like to see.
(Sir John Kerr) Could I explain why we have replaced
1132 with the new Security Council Resolution, 1171? We have replaced
it not because of this legal disagreement, though we were by no
means alone in not accepting the view of the UN legal counsel,
we have replaced it because the conditions set out in Security
Council Resolution 1132 for the lifting of the various embargoes
on Sierra Leone had been met. The democratically elected government
was back, constitutional order was restored, however given the
continuing resistance of the rebel forces and their atrocities
we, and the Security Council unanimously on 5th June, thought
it important to maintain the embargo on them until such time as
the Government of Sierra Leone re-established control.
Chairman
258. We understand the circumstances. The
essence of the UN legal opinion is that the Security Council Resolution
1132 must be read in the light of the wish to supplant the illegal
regime by the legal, and therefore all proper methods must be
seen in that context. Is that correct?
(Sir John Kerr) It is not absolutely correct,
Chairman. What lay behind the UN man's legal opinion, which we
do not accept, was that ECOMOG were given a particular role, a
policing of the embargo role, and he deduced or implied from that
there must be an implicit partial exception from the embargo for
ECOMOG for these defined purposes. If I can add three points to
that. We do not buy that ruling but, supposing we did buy that
ruling, it would still have said nothing about supply of arms
to President Kabbah, it would have been specific to ECOMOG, this
implied partial exemption. Point two: so we would still have needed
in our Order in Council to impose a licensing requirement even
in respect of supply to ECOMOG, so we would have been able to
test whether it matched an implied partial exemption, which actually
we did not recognise. The third point is the licensing authority,
the DTI, were never approached for a licence, and that seems to
be a rather important point.
Mr Heath
259. Will the discrepancy in legal advice
on this matter be part of the substance of the Legg Inquiry?
(Sir John Kerr) It is bound to be relevant to
his inquiry. I am not sure how relevant, but he is well aware
of the point. It has been drawn to his attention.
