Our Flexible Friends

Conor Gearty

  • Scott Inquiry Report by Richard Scott
    HMSO, 2386 pp, £45.00, February 1996, ISBN 0 10 262796 7

The most remarkable aspect of the Scott Report is its simplicity. The famous length and the differing interpretations to which it has been subjected since its publication suggest a learned and complex treatise full of ambiguity and complex allusion, a sort of political bible with Sir Richard Scott in the role of the Yahweh/ Saviour and Robin Cook and Ian Lang fighting it out to play St Paul. In fact, the occasional double negative aside (these alone have been enough to drive our illiterate media into hysterical denunciations of prolixity), the Report is a model of clarity. Its narrative is compelling and its conclusions stark in their certainty. The only confusion and ambiguity in the text flows from Sir Richard’s occasional reporting of the Government’s manifestly untenable case.

The story starts with the Import, Export and Customs Powers (Defence) Act 1939, the casual misuse of which is characteristic of government conduct as evidenced throughout the Report. Before this Act, control of the export of goods out of Britain was governed by the royal prerogative and the common law. The Second World War made a more coherent framework essential and the emergency powers in this statute provided it. That they were then considered to be of a temporary nature was made clear by section 9(3), which provided that the Act was to ‘continue in force until such date as His Majesty may by Order in Council declare to be the date on which the emergency that was the occasion of the passing of this Act came to an end, and shall then expire’. The Act gave the executive wide powers to regulate exports without any Parliamentary oversight, and this made it so attractive to government that it became virtually unrepealable despite this explicit death wish. The problem posed by the cessation of hostilities with Germany and Japan in 1945 was met by a timely emphasis on the newly arrived Cold War ‘emergency’, and there matters stood in the decades that followed, with one bout of paranoia after another protecting the executive from recognising the case for repeal.

Successive governments grew used to regulating British trade without ever having to explain much about what they were doing. In the background, however, there was always the threat of – not to – democracy. Advising against new legislation in 1982, the Department of Trade and Industry considered that ‘new legislation would almost certainly give rise to contentious debate on philosophical aspects of trade policy and that the Department would almost certainly be tied with Parliamentary procedures which are now not necessary’. Contentious debate on trade policy? In Parliament? Out of the question! The inevitable DTI conclusion was that ‘from an administrative point of view new legislation should not be recommended.’ In 1990, the imminent Gulf War and some vague talk about the dangers of German unification were enough to intimidate the Labour opposition into agreeing to nod through fresh legislation designed to obviate a judicial challenge to the legislation in force. In a pre-emptive strike of magnificent effrontery, the new Act simply repealed Section 9(3): the temporary had been made permanently permanent, and the judges had been deprived of a basis for any future legal assault on the legislation.

It was to this 1939 Act that the Government turned when the Iran/Iraq War broke out in 1980. Trade was controlled under the Act by means of export control orders issued by government and policed by customs officers. It was quickly announced that no lethal weapons would be licensed for export to either side. Even in these early days, weaponry was thought more likely to be lethal in the hands of the Iranians than the Iraqis. In 1981, ministers agreed that ‘every opportunity should be taken to exploit Iraq’s potentialities as a promising market for the sale of defence equipment; and to this end “lethal items” should be interpreted in the narrowest possible sense, and the obligations of neutrality as flexibly as possible.’

In late 1984, a new approach was agreed, which was to govern the whole question of military exports to Iran and Iraq for the duration of the war. The ‘Howe Guidelines’ (after the Foreign Secretary) were as follows: 1. We should maintain our consistent refusal to supply any lethal equipment to either side. 2. Subject to that overriding consideration, we should attempt to fulfil existing contracts and obligations. 3. We should not in future sanction new orders for any defence equipment which in our view would significantly enhance the capability of either side to prolong or exacerbate the conflict. 4. In line with this policy we should continue to scrutinise rigorously all applications for export licences for the supply of defence equipment to Iran and Iraq. To the already ambiguous notion of ‘lethal equipment’ was now added the even more flexible idea of ‘defence equipment’ which ‘in our view’ would ‘significantly enhance’ the capacity of either side to wage war.

Within these broad parameters, it appears that the guidelines were broadly adhered to for the duration of the war – i.e. until August 1988. According to Scott, they were from the start ‘consistently represented’ to be government policy. In a letter written in December 1984, Michael Heseltine, who was then Defence Secretary, referred to the guidelines as ‘the new policy’. They were also referred to as such on different occasions by Sir Geoffrey Howe, by Margaret Thatcher and by various government spokespersons. When Parliament was eventually let in on them in October 1985, it was in answer to a request for a ‘statement on the policy of Her Majesty’s Government governing the exportation of armaments to Iraq’. In the course of his statement that October, Sir Geoffrey Howe referred to the guidelines as a reinforcement of the Government’s policy in this area. Two months later, an inter-departmental committee routinely referred to the guidelines as ‘the prime source of policy on defence sales to Iran and Iraq’.

The reason this terminological precision is important and not merely pedantic (though it is that as well) lies in a meeting that was held on 21 December 1988, four months after the end of the Gulf War. Present were three government ministers, William Waldegrave from the Foreign and Commonwealth Office, Alan Clark from the DTI and Lord Trefgarne from Defence. On the agenda was what to do about the export of arms and arms-related equipment to the Gulf region in light of the changed circumstances brought about by peace. To the extent that the Howe guidelines were predicated on a continuing war they were clearly out of date, particularly if the ceasefire held. As early as 31 August, a mere 11 days after the ceasefire had come into force. Sir Geoffrey Howe was already swooping in on the remains of the carnage like a cross between a vulture and a travelling salesman. In a paper to the Prime Minister, ‘The Economic Consequences of an End to the Iran/Iraq Conflict’, he had drawn attention to the fact that in ‘the early post-conflict era the opportunities for sales of defence equipment to Iran and Iraq [would] be considerable.’ The UK’s defence sales policy would therefore ‘need to be reviewed’. Taking him at his word, a Foreign Office official quickly prepared a paper on the subject. But it did not seem that Sir Geoffrey had a formal review in mind.

While appearing to agree that a more flexible approach to exports should be adopted, he was not anxious to embark on a process that might reach the world beyond Whitehall. In a note dated 22 September 1988, the Foreign Secretary declared himself ‘reluctant to put this paper forward and thereby to initiative [sic] a process whereby it will become known that our line on arms sales to Iraq has relaxed, while the Kurds/ CW question is still hanging over us’ and that ‘it could look very cynical if so soon after expressing outrage over the Iraqi treatment of the Kurds ... we were to adopt a more flexible approach on arms sales.’ (For ‘CW’ read ‘chemical warfare’.) In the aftermath of the ceasefire, therefore, the problem was not whether or not to relax the guidelines: the problem was that the public might learn about any such relaxation. They already knew, most inconveniently it would seem, about the large-scale massacre of Kurds on which the President of Iraq had by then embarked, or the ‘Kurds/CW question’ as the Foreign Secretary so delicately described it.

Even the sort of covertly flexible approach signalled by Sir Geoffrey Howe was not enough to prevent export licence applications stacking up in the months after the war. By late 1988 British firms had become increasingly restive in their wish to get in on the rearmament of Iran and Iraq. They had their hero in Alan Clark at Trade and their bogey-man in the French, who as all decent Brits know, will sell anything to absolutely anybody. At the meeting on 21 December, the three ministers agreed to relax the third guideline. Whereas it had previously said (my italics), ‘we should not in future sanction new orders for any defence equipment which in our view would significantly enhance the capability of either side to prolong or exacerbate the conflict,’ it now said: ‘we should not in future approve new orders for any defence equipment which, in our view, would be of direct and significant assistance to either country in the conduct of offensive operations in breach of the ceasefire.’ All present seem to have considered that they were involved in the alteration of policy. Telexes to British embassies referred ‘to a slight relaxation of our policy’. Against the background of the Foreign Secretary’s earlier clearly expressed view, it was not surprising that the DTI soon declared itself in favour of the ‘implementation of a more liberal policy without any public announcement’ and that Mr Waldegrave allowed himself to be described as ‘content ... to implement a more liberal policy on defence sales without any public announcement on the subject’. As Lord Howe was later to tell Scott, when justifying the approach taken by his junior colleagues, there was ‘nothing necessarily open to criticism in incompatibility between policy and presentation of policy’. The secretive approach that the Government had taken might have seemed cynical but what had to be borne in mind was ‘the extremely emotional way in which such debates are conducted in public’ which made ‘the scope for misunderstanding ... enormous’. Throughout the Scott Report, Lord Howe comes across as a jaded Metternich, exhausted by the silly and extraneous demands of democratic government.

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