Scott Inquiry into defence exports to Iraq: did the UK government mislead its legislature?

"On the 25th anniversary of the publication of Lord Scott’s report into the licensing of defence equipment from the UK to Iraq, the judge’s findings that the UK Government misled its Parliament are still relevant in 2021."

Context: Answers to questions in the UK Parliament, two Prime Ministers and Private Eye’s Not the Scott Report

  1. Twenty-five years ago, on 15 February 1996, Lord Scott’s [1] Inquiry reported to the UK Parliament[2] after a three-year investigation. The Inquiry was an independent public inquiry. It began as an investigation of a failure by the British Government to protect the interests of justice in a trial at the Old Bailey in London[3]. But its lasting significance concerned a complex, and often shadowy, trade off in government policy. On the one hand, the Government sought to protect the economic interest in sales of arms and defence -related equipment to other states and, on the other hand, the Government advocated the need for the UK, in support of the international rule of law, to restrict licences for defence exports to states which were engaged in war and which were known to have carried out serious human rights abuses[4].
  2. Prohibiting such exports to Iraq and Iran was a recognised foreign policy tool. The challenge for the British Government was, first, how to balance the respective policy considerations (see above) while, secondly, presenting the way in which the policy was actually operated to the UK Parliament in a transparent way which did not mislead.
  3. The Inquiry dealt with many complex questions. But its lasting importance was to show the way in which the UK Parliament was misled through a deliberate decision by the British Government to withhold key information about the licensing of exports of arms and defence-making equipment to Iraq in the period after the Iran/Iraq ceasefire in August 1988. Parliament and the public, said Lord Scott, “were designedly led to believe that a stricter policy towards non-lethal defence exports and dual use exports to Iraq was being applied than was in fact the case” [5].
  4. The UK enjoys a parliamentary democracy in which serving Government Ministers are answerable to Parliament for their policies and the actions of their ministries. If, said Scott, Ministers were to be accountable to Parliament for the actions of the Government, that necessarily required the provision of full and accurate information to enable Parliament to do so [6]. This was a cornerstone of democracy. Scott concluded that the Government had failed in their duty. This short article covers that aspect of the findings and recommendations which Scott made in his report.
  5. Two Prime Ministers gave evidence to the Scott Inquiry, as well as a succession of Cabinet Ministers and junior ministers. Apart from the 1750-page report itself, it led to a special Private Eye publication, Not the Scott Report. Three books were written about the Inquiry, as well as a play which was performed at the Tricycle Theatre in London [7]. Channel 4 broadcast a televised drama documentary about the Inquiry.
  6. The Scott Inquiry lasted from November 1992, when it was set up by John Major, the Prime Minister, until 15 February 1996.

The consequences in the UK Parliament

  1. In the event, the Government survived a vote of, in effect, censure in the House of Commons. It won by one vote since a few Conservative MPs rebelled against Mr Major’s Government.

Why was the Inquiry set up? Non-disclosure of relevant information which jeopardised a fair trial.

  1. The Inquiry resulted directly from the extraordinary collapse of the “Matrix Churchill “trial at the Old Bailey. Three businessmen who ran Matrix Churchill, a machine tool manufacturing company, were prosecuted for applying for export licences to export dual use, high specification equipment to Iraq, knowing that they would be used for the manufacture of arms in Iraq. The prosecution argued that they had deliberately misled the Department of Trade and Industry and the Customs.
  2. In fact the Managing Director of Matrix Churchill, one of the defendants, and another senior manager were SIS (MI6) agents and had told their SIS handlers that the equipment, dual use though it theoretically was, was destined for arms production in Iraq [8]. At their trial, the UK Government, based on an erroneous view of legal principle, refused to disclose information (a) about internal Ministerial deliberations in respect of exports of defence equipment to Iraq and (b) about the businessmen’s contacts with SIS, arguing that it would damage, respectively, the confidentiality of policy deliberations and that it would undermine national security to do so. Four senior Government ministers (including two Cabinet ministers) signed public interest immunity certificates (PII) refusing to allow disclosure in the public interest. At different times at the trial, the judge ordered disclosure of documents which were relevant to the defence falling into both classes of documents. The trial collapsed.
  3. Lord Scott criticised the use of these certificates heavily. But he exonerated from blame the four ministers who signed the certificates since they were following the legal advice which they had been given by the Attorney- General [9].

Did the Government comply with its own guidelines on exports of arms and defence related exports to Iraq?

  1. The draft terms of reference were soon widened from the use of PII certificates. They were additionally extended to cover the question whether UK Ministers had issued export licences in breach of their own policy.
  2. Hence the first question was: what was the UK Government’s policy on the export of arms and dual use equipment between 1984 and 1990? The second question was: having regard to the secret intelligence which was available to the UK authorities, did Ministers license exports in breach of that policy?
  3. In 1979, after years during which the Shah of Iran had been an ally of the West, he was deposed by an Islamic revolution. As a result, the Ayatollah Khomeini came to power. There was personal animosity between Khomeini and Saddam Hussein, the President of Iraq. But the proximate cause of the war was probably connected with control over the rich oil-producing border region of Khuzestan. The subsequent war lasted from 1980-1988. Iraq was supported by the USA, UK, France, the Soviet Union, Saudi Arabia and Kuwait. Iran, it should be remembered, had occupied the US Embassy in Teheran and seized hostages. It was supported by Libya and Syria. The casualties were staggering. The number of deaths was in the region of 500,000. Iraq used chemical weapons on its Kurdish minority; Iran used child soldiers in its infantry.
  4. Iraq began to develop the Supergun, a gun which had similarities with the German Big Bertha gun from the First World War. Supergun was intended to fire up to a range of 1000 kilometres. A British firm was involved in the supply of tubes which, in all probability, were intended for use as its gun barrels. The proposition was so unbelievable that an SIS ordnance expert said to the Inquiry that it was impossible to explain to a sceptical Whitehall audience. He was proven right. The question of Government knowledge of the Supergun project was a constant theme at the Inquiry. Lord Scott concluded that, by November 1989, there was a suspicion in government circles that an Iraqi long range artillery project (Project Babylon) with unusual features was in contemplation. He concluded that the UK Parliament could and should have been told this[10].
  5. Britain, France, the Soviet Union and the USA had a substantial stake in the arms manufacturing industry. But the question of the morality of supplying defence equipment to either side, each of which was engaged in horrifying slaughter, was recognised. Eventually, in December 1984, UK guidelines were drawn up on the licensing of arms exports and defence equipment. They were not, however, announced publicly until October 1985. The guidelines said: “ (i) we should maintain our consistent refusal to supply any lethal equipment to either side …(iii) we should not in future approve orders for any defence equipment which, in our view, would significantly enhance the capability of either side to prolong or exacerbate the conflict”.
  6. In 1988, after a ceasefire took place, the guidelines were changed. Self-evidently they had to reflect the ceasefire. But the guidelines were also relaxed. Yet the relaxation of the guidelines was never announced to the UK Parliament. That was a deliberate decision: as the office of the Minister of State at the Foreign and Commonwealth Office said: “ [the Minister] is content for us to implement a more liberal policy on defence sales, without any public announcement on the subject” [11]. To illustrate the difference, within days of the relaxation, the export of tactical military radar to Iraq, which had been refused an export licence under the previous rules on the ground that they would have exacerbated or prolonged the conflict, was approved.
  7. Then the position changed dramatically, A fatwa was declared by Iran against Salman Rushdie, the author of Satanic Verses. There were death threats and Rushdie went into hiding. It was decided that the guidelines should be relaxed for Iraq. But the original guidelines would be reinstated against licensing of exports to Iran[12].

In answer to questions in the UK Parliament, could “half a picture” of decision-making by Government Ministers be accurate?

  1. The decision not to announce the changes to the guidelines, as well as their flexible interpretation after the fatwa, to the UK Parliament meant that, whenever asked about the licensing of defence equipment to Iraq, the Government had to withhold information. Yet in the guidance to UK Ministers at the time, Questions of Procedure for Ministers, it was made quite clear that, in order to perform Parliament’s duty to hold the UK Government to account, Ministers had to “give Parliament …and the public as full information as possible about the policies, decisions and actions of the Government, and not to deceive or mislead Parliament and the public “[13].
  2. As noted above, the relaxation meant that more defence-related equipment was capable of being approved for export. Yet the Iraqi regime was a brutal regime, not least in its chemical attack on Kurdish civilians at Halabja and other human rights abuses. Almost certainly the reason for not announcing the relaxation was that the Government feared a public backlash from the British public if more defence equipment went to Iraq; and there would be a hostile reaction from the USA and the Gulf States if more defence equipment was licensed for export to Iran.
  3. At the Inquiry itself, Ministers and officials were left to defend the failure to inform Parliament. There was undoubtedly a discretion available to the Government under the original and the revised guidelines. The Minister, Alan Clark, consistently argued for defence exports to be approved and he took the view that the guidelines were wholly meaningless: “ The closer you approach the more does their similarity to the Cheshire Cat become apparent. They were an ideal Whitehall formula: imprecise, open to argument…. They were high-sounding, combining, it seemed, both moral and practical considerations, and yet imprecise enough to allow real policy considerations an override in exceptional circumstances”[14].
  4. The truth was that the guidelines had changed[15]. But if Ministers admitted it, they would have been open to the accusation that they had misled Parliament. Therefore, witnesses tried to justify to the Inquiry the truth of Ministerial answers to Parliamentary Questions which continued to assert (in 1989) that “the Government have not changed their policy on defence sales to Iraq or Iran…” [16]
  5. Here are important examples of what was said to Lord Scott in evidence:
    • The Cabinet Secretary at the time, Sir Robin (later Lord) Butler[17], asserted that it was permissible for Ministers not to tell Parliament the whole truth in exceptional circumstances: “You do not mislead. You give some information that you safely can. You do not give all the information that is available to you. By doing that it does not follow that you mislead people. You just do not give the full information”[18].
    • As Sir David Gore-Booth, previously head of the Middle East Directorate and by the time of the Inquiry UK High Commissioner to India said [in answer to “do you think that half the picture can be accurate?”] “of course, half a picture can be accurate”.

But as Lord Scott said in response to this evidence, “the problem with the “half a picture” approach is that those to whom the incomplete statement is addressed do not know, unless it is apparent from the terms of the statement itself, that an undisclosed half is being withheld from them”[19]

Lord Scott’s conclusions on misleading Parliament

  1. Scott’s conclusions were forthright: “The answers to Parliamentary Questions, in both Houses of Parliament, failed to inform Parliament of the current state of policy on non-lethal arms sales to Iraq. This failure was deliberate…I have come to the conclusion that the overriding and determinative reason was a fear of strong public opposition to the loosening of the restrictions on the supply of defence equipment to Iraq and a consequential fear that the pressure of the opposition might be detrimental to British trading interests.” [20]
  2. In his conclusions, he added: “A denial of information to the public denies the public the ability to make an informed judgment on the Government’s record. A failure by Ministers to meet the obligations of Ministerial accountability [to Parliament] by providing information about the activities of their departments undermines …the democratic process”[21].

Openness and truth in a parliamentary democracy

  1. Are the findings and recommendations of the Scott Inquiry still relevant today? No one pretends that the development and application of foreign policy are simple. On the contrary, international relationships are complex and often sensitive to handle. But, once policy is settled and (as with defence exports) is being applied in individual cases, in my view governments have a duty to be open with, and to tell the truth to, the legislature, subject to genuine limitations which can be objectively justified, for example, the need to protect operational secrets where national military forces are engaged in peacekeeping as part of a UN contingent.
  2. The guidance to Ministers has changed several times since the 1990s. In the latest version, there remains a strong signal that the Government’s relationship with Parliament should be based on truth and accuracy. Paragraph 1.3c of the current Ministerial Code[22] says that “it is of paramount importance that Ministers give accurate and truthful information to Parliament …” Paragraph 1.3d says: “ Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest, which should be decided in accordance with the relevant statutes and the Freedom of Information Act 2000. ” That formulation leaves the Government with considerable flexibility. Whether the obligation to be open has been gunacceptably watered down is a matter for Parliament.
  3. Integrity is a key consideration in governing the relations between the Government and the legislature. As Mahatma Gandhi said: “There are moments in your life when you must act, even though you cannot carry your best friends with you. The “still, small voice “within you must always be the final arbiter when there is a conflict of duty”.

Christopher Muttukumaru [23] CB DL

Chair, International Academic Council, FIDE Fundacion

Lord Scott and Christopher Muttukumaru in December 2018

[1] Lord Justice Scott, as he was in 1992, later became a Lord of Appeal in Ordinary and subsequently a justice of the UK Supreme Court

[2] The Inquiry reported to the President of the Board of Trade. But the report was published as a Return to an Address of the House of Commons.

[3] The Central Criminal Court in London is known as the Old Bailey. It is where most serious criminal cases in the London area are tried.

[4] Paragraph D8.16 of the Report

[5] Paragraph D8.16 of the Report is one of the relevant references

[6] Paragraph K8.1 of the Report is one of the relevant references

[7] “The Constitution after Scott”, Professor Adam Tomkins; “Truth is a difficult concept”: Richard Norton Taylor; “ Knee deep in dishonour”: Richard Norton Taylor, Mark Lloyd and Stephen Cook. The play was “Half the Picture” at the Tricycle Theatre.

[8] Paragraph D2.265 of the Report. See also Paragraph D8.12 (ibid).

[9] Paragraph G18.106 (ibid)

[10] Paragraph F4.80 (ibid)

[11] Paragraph D3.42 (ibid): Letter from the Foreign Office Minister’s Private Secretary dated 7 February 1989. The Minister subsequently sought to distance himself from the phrase “ a more liberal policy” (paragraph D3.46). Lord Scott’s views on the Minister’s explanation are set out in paragraph D3.47 (ibid).

[12] See, for example, paragraphs D3.66 – D3.91 (ibid); and in particular paragraph D3.83.

[13] Paragraph K8.1 (bid)

[14] Paragraph D2.22 (ibid)

[15] Paragraph D3.115 (ibid); D8.1 (ibid); and K8.1(iv) (ibid)

[16] Paragraphs D4.17-D4.42 (ibid)

[17] The Cabinet Secretary is the most senior civil servant in the public service

[18] Paragraphs D4.20; D4.53-56 (ibid).

[19] Paragraph D4.55 (ibid).

[20] Paragraph D4.42

[21] Paragraph K8.3

[22] The Ministerial Code was last promulgated in 2019.

[23] The author was the Secretary to the Scott Inquiry and subsequently General Counsel to the UK Department for Transport. He is a consultant to Eversheds-Sutherland (International) LLP and a Bencher of Gray’s Inn.

A similar version of this article has been published by Jesus College of Oxford University. You may find it here: The Scott Inquiry 25 years on – Did the Government mislead Parliament? An article by alumnus Christopher Muttukumaru

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