APPENDIX 10
Supplementary memorandum submitted by
the Foreign and Commonwealth Office on Moroccan Guns
On 30 January 2001, I gave evidence to the Quadripartite
Committee about the FCO's recommendation to approve an export
licence application (ELA) for the refurbishment of Moroccan guns
in Western Sahara.
In making his decision to recommend refusal
of the export licence application (ELA) in August 1998, Derek
Fatchett, then Minister of State with responsibility for the Middle
East and North Africa, judged the application against the UK's
export licensing criteria and the EU Code of Conduct. He judged
that on balance the application for the supply of six new guns
and for the refurbishment of 30 existing guns did not meet Criterion
4 of the EU Code of Conduct. He was concerned that there was a
clear risk that the equipment could be used to assert by force
a territorial claim. As a result, the FCO recommended to the DTI
that the ELA be refused. The DTI accepted this recommendation
and subsequently informed the company of HMG's refusal of the
ELA on 28 August 1998.
The company appealed against this refusal in
September 1998. The appeals process allows HMG to review the case
for and against issuing an ELA, and consider whether there are
grounds for changing its decision. The DTI passed the papers to
the FCO and MOD for consideration. In its letter of appeal of
8 September 1998, the company asserted that the contract for refurbishment
of the existing guns "would not add to the number of artillery
pieces deployed in the forward areas particularly given the controls
that have been put in place by MINURSO. Moreover, and with specific
regard to refurbishment as distinct to new supply, MINURSO already
has procedures in place which cater for the repair and refurbishment
of existing equipments [sic] deployed in the area". The company
wrote to the FCO in October 1998 and explained it believed that
refurbishment would not breach the cease-fire and MINURSO would
monitor any refurbishment work.
Communication between the company and HMG officials—representing
the FCO and MOD—continued in London and through the British
Embassy in Rabat. FCO officials were also in communication with
United Nations officials. In light of those discussions, FCO officials
came to the preliminary view in late 1998 that, if the Moroccan
guns were refurbished, this would not violate the terms of the
UN-sponsored cease-fire between Morocco and the Polisario Front
which had been in place since 1991. FCO officials also believed
that the Military Agreement signed between MINURSO and the two
parties, would allow MINURSO to play a role in monitoring the
process of refurbishing the guns.
In October 1998, FCO officials consulted Derek
Fatchett on the appeal. He maintained the view that the ELA should
be refused. The company continued to pursue its appeal. In December
1998, Derek Fatchett accepted the view that Morocco was permitted,
by the UN, to refurbish their arms in Western Sahara; that if
the Force Commander of MINURSO gave his approval Morocco would
be allowed to withdraw items, refurbish them and return them to
their original positions; and that such refurbishment would be
carried out under the monitoring of MINURSO. Nevertheless, he
maintained his opinion that the application should be refused.
In February 1999, Derek Fatchett agreed to reconsider the position
if new information became available. He also agreed that the UN
in New York should be consulted. The FCO did not therefore at
this stage transmit to the DTI its formal recommedation to uphold
the refusal.
Subsequently, the UN told us that refurbishment
of the guns could be considered as neutral. In June 1999, the
United Nations Department of Peace Keeping Operations in New York
confirmed that refurbishment of the guns would not be in breach
of the existing military arrangements between MINURSO and the
two parties; and that, in accordance with these arrangements,
MINURSO would be in a position to monitor the procedure of the
refurbishment of the Moroccan guns on the ground. (This is set
out in the Military Agreement of 1997 between MINURSO and the
two parties.)
In view of the confirmation from the UN, FCO
officials consulted the relevant Minister, then Geoff Hoon, about
the company's on-going appeal against the refusal. Geoff Hoon
decided to recommend to the DTI that an ELA be issued for the
refurbishment of the guns only. He upheld the recommendation that
the part of the ELA referring to the proposed sale of six new
guns to Morocco be refused. This recommendation was agreed by
the MOD and accepted by the DTI. DTI informed the company of the
decision on 12 July 1999.
Both Derek Fatchett and Geoff Hoon judged the
application against the EU Code of Conduct. However, Geoff Hoon
considered the sale of six new guns and the refurbishment of the
existing guns could be considered separately. He decided that
refurbishment of the existing guns did not contravene Criterion
4 of the EU Code of Conduct, and that recommendation was passed
to the DTI. He maintained Mr Fatchett's view that the application
for new guns should be refushed.
The Government takes very seriously its responsibilities
for exercising effective export controls. Ministers carefully
weigh up all the relevant considerations, in the light of the
circumstances at the time, in judging whether an application or
an appeal should be refused or approved.
The appeals procedure was put in place precisely
to allow appellant companies to ask the Government to review its
decision to refuse an export licence application. This is a procedure
which I know the Quadripartite Committee supports. The Committee
recommended in its report, published in July 2000, that the Government
ensure appellant companies were able to participate in the appeal
procedure and given more detailed information on the reasons for
the original refusal and the decision on an appeal. It would be
difficult to have a meaningful appeals process if the Government
refuses to take account of the arguments put forward at appeal;
or refuses to review carefully its original decision.
1 March 2001
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