LEGAL WEAPONS

Should the illegal arms be handed over? The Northern Ireland Secretary, Sir Patrick Mayhew, was, understandably, very anxious about the answer to that question. And he’s probably even more anxious now as he awaits publication of the report of the Scott Inquiry into arms-related sales to Iraq.

Sir Patrick has been prowling the high moral ground recently, arching his aristo eyebrows and tilting his noble head just so, as he pronounces in orotund tones on the necessity for the IRA to hand over its weapons before their Sinn Fein associates can be fully accepted into the “democratic process”. Can’t have fellows toting guns and such like outside the law and then ambling into the conference room pretending to be proper politicians . . .

Then again: if the illegal use of arms was an impediment to inclusion in the “democratic process”, would Sir Patrick himself be let in? Not that he has ever lain in wait in a ditch with an AK47 at the ready for a Para to pass by. Nothing as trivial. Here’s the tale.

Sir Patrick was Attorney General under Mrs. Thatcher in June 1990 when her Government was shaken by news that customs officials had descended on the Department of Trade and Industry (DTI), with what the department’s head of export control described at the time as a “whopping great pile of blueprints”. The customs officials claimed that the blueprints suggested that a Midlands firm, Matrix Churchill, had been illegally exporting machine tools to the Iraqi regime of Saddam Hussein for use in the manufacture of munitions.

The purpose of the customs team’s visit was to alert the DTI to the fact that they intended to raid the offices of Matrix Churchill with a warrant for the seizure of documents, and to ask for any relevant papers about exports to Iraq which the department itself might hold. This was a key moment in the sequence of events which led to the establishment of the Scott Inquiry and which may yet see the end of a number of British Ministerial careers.

The inquiry under Lord Justice Scott has been a mammoth affair. It was set up in November 1992, held public hearings from May 1993 to July 1994, and is expected to produce its report in the spring of next year. Small, delicate beads of sweat may well form on Sir Patrick’s stiffly elegant upper lip when his thoughts turn, as they occasionally must, to that certain eventuality.

When DTI officials called up files in 1990 on exports to Iraq they discovered to their consternation not only that Matrix Churchill had indeed been flouting export controls on Iraq, but that their own Minister, Nicholas Ridley, and quite possibly other Ministers, had known all about it all along and had done nothing to stop or discourage it. This was all the more devastating given that the department was already in difficulties trying to explain its role in the “supergun” affair: the DTI had also known about the export to Iraq of huge tubes ostensibly for use as chemical pipelines but in fact components in the construction of the biggest gun in all history.

To make matters worse, it was only a few months since British public opinion had been outraged at the execution by the Iraqis of Observer journalist Farzad Bazoft, convicted of spying after being arrested in Baghdad while investigating a story to do with Saddam’s military build-up.

If prosecutions went ahead against the directors of Matrix Churchill, or of Walter Somers, the main firm involved in the supergun affair, the defendants might well argue that they had had government approval for what they’d done. Faced with these unfortunate circumstances, the DTI swallowed hard and then passed on all the relevant information to the customs team and wished them well in their doughty efforts to unmask the merchants of death who had been supplying the monster Hussein with the means of murdering millions. You might think.

But as a matter of fact what they actually did was to hightail it round to the office of the Attorney General and to ask Sir Patrick if he could think of a wheeze to get them out of this one. And no better man.

After intense hugger-mugger discussions between high officials of the DTI, the Ministry of Defence and the AG’s office, a confrontation took place on November 9th, 1990 between Sir Patrick and a number of his officials on the one hand, and a team of customs investigators on the other. By this stage the issue had become even more explosive: on August 1st Saddam had inconveniently ordered his army into Kuwait and was now effectively at war with the West.

In the face of angry and bitter opposition from the customs investigators, Sir Patrick argued that the evidence in respect of the supergun affair was inconclusive, and “advised” that intended prosecutions be dropped. He didn’t reveal anything of Ministers’ complicity in the matter, but did indicate that if the case were to come to trial, the line the defence was likely to take could give rise to embarrassing suspicions which the country didn’t need at this time of national trial. He reminded the customs team that even if they insisted on pressing ahead he, Sir Patrick, would have authority to enter a nolle prosequi when the case opened – i.e. to instruct prosecuting counsel to offer no evidence.

And so it was that on November 15th, 1990, at Sheffield Magistrates’ Court, the supergun case was abandoned without any evidence being called and two defendants walked free. A number of Labour MPs and papers like the Guardian tried to stir up concern about the murkiness of the business. But since the defendants, naturally, weren’t complaining, and there was no evidence on the record to be parsed and analysed, it was hard to take the story any further.

The customs officials, outraged and frustrated in equal measure, were now more determined than ever at least to pin Matrix Churchill. Their chief, Sir Brian Unwin, wrote to the Cabinet in February 1991 warning that three directors of the firm, Paul Henderson, Trevor Abraham and Peter Allen, were imminently to be charged.

The Government was in a tricky position. The Gulf War was now in full spate, with allied ’planes pounding Iraq and ministers and the media hammering out the message that Saddam was the “new Hitler” who had to be stopped at all costs. Men who had broken the law to help arm the “new Hitler” could expect little sympathy from the public or leniency from the courts. This time, the customs team looked forward to a successful and popular prosecution.

On the other hand, Ministers knew what the customs men didn’t: that the defendants had been told by nods and winks – and even discreet handy hints about how to disguise destinations on consignment documents – that everything they were doing was hunky dory by the government. The customs investigators had, of course, looked into this claim – it was the basis of the defence case – but had been assured, and had accepted, that there wasn’t an iota of truth in the bizarre allegation. The case opened in October 1992.

Sure enough, the three men in the dock pleaded that they had had government approval for the illegal exports and demanded that documents from a number of departments, which they said would prove their claim, be produced. For a time it seemed very unlikely that this would be done. The prosecution argued that there was no evidence that any such documents existed and that a futile trawl through government papers touching on such sensitive issues would be contrary to “the national interest”.

However, the leading defence barrister, a suave fellow called Geoffrey Robertson, refused to let go of the issue, successively demanding the production of lists of exports, records of meetings at the DTI or between DTI officials and diplomats dealing with the Middle East, minutes of meeting of MoD officials, reports to the cabinet office, special branch reports etc. etc. But it all seemed a wasted effort. No fewer than six government ministers signed “Public Interest Immunity Certificates” (PIICs) testifying that it would be contrary to “the national interest” to release the classes of documents Robertson was asking to see.

And then something very strange happened. The judge, Mr. Justice Smedley, called for the documents Robertson had cited so as to determine for himself whether their release would in fact damage the “national interest”. He eventually concluded that a sizeable proportion of the documents did support the defendants’ story, and either didn’t compromise the “national interest” at all, or didn’t to an extent which would justify their being withheld at the risk of denying the defendants’ a fair trial. In effect, he ruled that the references to the “national interest” had been no more than a ploy. The Matrix Churchill case, too, instantly collapsed.

Over the following days, even the most rabid of Tory newspapers expressed editorial anger that ministers had tried to withhold vital defence evidence from people charged with offences which, it was now clear, the same ministers had actually sanctioned. It was to still this furore that the Scott Inquiry was established.

There had been a government reshuffle during the period we have been considering. Two Attorneys General were involved at various stages in offering legal advice to the ministers concerned. One was Sir Nicholas Lyall, the other the current resident of Stormont Castle, Sir Patrick.

All of this information has emerged at the public sessions of the Scott Inquiry and has been assiduously collated and published, most notably by Richard Norton-Taylor in The Guardian and Paul Foot and Tim Laxton in Private Eye (a compilation of whose reports, Not The Scott Report is currently on sale and comes highly recommended).

What the information shows beyond a glimmer of doubt is that British ministers secretly conspired to facilitate the export of lethal equipment to a vicious dictatorship, breaking their own laws, regulations and policy commitments in the process; that they desisted only when the regime in question attacked another dictatorship deemed more important to British interests; and that they then conspired to withhold information from the courts in an effort to ensure that people down the line took the rap.

Sir Patrick Mayhew, the government’s highest legal officer in the land, the Harry Whelehan, if you like, of his time and place, was up to his neck in this filthy business.

How Lord Justice Scott estimates his role remains to be seen. We have learned from as far back as Widgery on Bloody Sunday, to the May report on the Guildford Four and Maguire cases, to Hamilton at the Beef Tribunal, that the most compelling evidence, publicly given, of serious wrong-doing by senior politicians, does not necessarily lead eminent judges to the obvious conclusions. That said, Scott has conducted his inquiry so far with a rigour which the regime which appointed him will certainly not have anticipated. We must wait and see.

In the meantime, would Sir Patrick not be wise to observe a discreet silence on other politicians’ alleged knowledge of or complicity in the illegal use of arms?