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This transcript has been typed at speed, and therefore may contain mistakes. Newsnight accepts no responsibility for these. However, we will be happy to correct serious errors.

A Newsnight investigation into arms sales 8/3/01

This is the story of how the British Government agreed to an arms sale which they thought could breach the European Code of Conduct, the cornerstone of their policy. To justify the deal, they claimed the UN had given its permission, a claim the UN denies. In the process, Parliament has been misled and one of Africa's forgotten conflicts is centre-stage. It's been called Africa's last colonial war. When Spain pulled out of Western Sahara 25 years ago, the Moroccans moved in, insisting this was their territory. But they faced a furious attack from the Polisario, the forces of the local Saharawi people. The fighting ended ten years ago when both sides agreed to a UN peace plan, a winner-takes-all referendum to decide what the local people wanted. A UN mission, Minurso, was sent out to organise that referendum, but it still hasn't taken place. There's growing frustration in the refugee camps in Algeria where many of the Saharawi people have fled. The cease-fire is looking increasingly precarious. But now the British Government stands accused of betraying these refugees and siding with the Moroccan so-called colonisers.

They are destructive guns. The Saharawis have been in Morocco for 25 years. We think the effect is a very destructive effect they will have in the Western Sahara.

The story centres on a secret deal involving guns like these.

The Royal Ordinance 105mm light gun is a remarkable weapon. In its two variants, it offers zero risk options with unparallel speed of deployment, simplicity in use, fire power and reliability.

105mm light field guns, easily transportable, with a 13-mile range. Britain supplied 30 such guns to Morocco back in 1977-78, made by Royal Ordinance at a time when the company was still owned by the Government. The Moroccans used them in the fighting and have now deployed them as their main weapon alongside the 900-mile sand wall, the "Berm" - that they constructed as a barrier between Western Sahara and the Saharawi camps in Algeria. Officially, at least, Britain has provided no more military help to Morocco for use in Western Sahara. The Government's position was spelled out in 1998 by then Foreign Office Minister Derek Fatchett.:
"As you know, we support the UN in their efforts to achieve a resolution of the dispute through a free and fair referendum. We would not be able to reconcile this objective with supporting one side or the other, be it via the export of arms or through some other channel."
Britain was also committed to adhere to the EU Code Of Conduct on Arms Exports, signed in June 1998. It sets out Britain's obligations in clear terms. According to Criterion Four:
"Member states will not issue an export licence if there is a clear risk that the intended recipient would use the proposed export aggressively against another country or to assert by force a territorial claim."
All that was thrown into confusion six weeks ago, on January 30th. The Foreign Secretary, Robin Cook, was giving evidence to a select committee on strategic export controls. The committee was about to go into private session when the Labour MP Tessa Kingham asked Cook about an arms deal with Morocco, involving those 105mm guns in Western Sahara.

I would like to speak about the granting of 3.5 million worth of licences to arms sales for Morocco.

And Robin Cook, apparently unaware that he was being recorded, revealed that Britain was "refurbishing" those guns provided to Morocco before the ceasefire. The Foreign Secretary gave the impression that the deal was OK, despite the EU Code of Conduct, because the UN had said so.

This was a licence which was originally refused and there was then an appeal submitted. In between our refusal and the hearing of the appeal, the United Nations in Western Sahara and in New York confirmed the refurbishment was within the terms of the cease-fire agreement and they were willing to supervise the refurbishment. They assessed the project as force neutral. On that basis, with the full agreement of the United Nations, we proceeded to grant the appeal.

Tessa Kingham was furious. She's a Labour MP with a lengthy record of fighting for the rights of the Saharawi people.

It matters because the Government is supposed to have ethical guidelines for where we sell arms and whose hands they fall into. These guidelines clearly state we should not be allowing the sale of guns or equipment or refurbishment if there's a doubt that it could be used to enforce a territorial claim. There's absolutely no doubt in this case because these guns are not just going to Morocco, which is party to a conflict in the past about a territory, they're actually going into the middle of the disputed territory on the front line, on the large wall that the Moroccans have built across this disputed area. So it's on the front line and it's in breach of ethical guidelines.

The story starts back in January 1998, when Royal Ordinance, now part of BAe Systems, applied for an export licence to refurbish the 30 Moroccan guns in Western Sahara and also, according to a confidential document we have seen, supply six new guns. That summer the applications were turned down, not surprisingly. Ministers decided such a deal could breach Criterion Four of the EU Code on Arms Exports. But BAe appealed and argued that refurbishment, at least, would be allowed by the UN. And at this stage the British began their discussions with the UN, discussions that, according to the British Government, would lead in June 1999 to the UN confirming that refurbishment was permitted, and that Minurso was actually willing to supervise the process. Only last month, the Competition and Consumer Affairs Minister Kim Howells underlined that the UN had given permission.

I know very well about the process that resulted in refurbishment of some guns in Morocco and I understand that it had permission from the UN in New York.

So what went on? We came to the UN headquarters in New York to try to learn exactly who gave this permission for the gun refurbishment, and what form it took. Britain is one of the five permanent members of the Security Council, and has always insisted it has acted correctly over issues like Western Sahara, not selling weapons to either side for use in the conflict. Now it's accused of breaking its own rules and hiding behind the UN in justifying its actions. It seems that the British team went to considerable lengths to obtain the agreement they sought. According to the Foreign Office, there were seven meetings here between 1st February 1999 and June 21st 1999, when the British team finally sent a telex back to the Foreign Office on an agreement they said they'd reached with the UN Department of Peace Keeping Operations - DPKO - and with Minurso, the UN mission in Western Sahara. It read:
"UN Secretariat confirm refurbishment of guns would not violate the cease-fire agreement. The DPKO finally confirmed on 21 June that Minurso would be allowed to supervise the withdrawal and replacement of Moroccan 105mm guns along the Berm." Yet the DPKO the UN Peace-Keeping Department say there's no paper work to back this up, and that discussions only took place at desk officer level. They say refurbishment does not contravene cease-fire agreements, but the UN did not grant permission.

It's not a question of us giving permission or approval, it's not something we can do. We can simply tell them that yes it violates or no it doesn't violate the agreement. That was the extent of the information we passed on.

But the implication from the telex they sent was that they checked with you and it was all okay, it was very much they had to check with you and get permission and then that was all right with them?

Well that's an interpretation, they certainly checked with us, but...

But to say they got permission was a wrong way of putting it?

There was no question of permission being sought or given.

There are other sections of the telex that are disputed by the UN:
"The legal department advised that there would be no violation of the cease-fire for the refurbishment or replacement of the same type of weapons or equipment as long as Minurso's agreement was sought." Hans Correll, the head of the UN's legal department, told Newsnight his department was never consulted.

According to the British telex, your legal department advised there'd be no violation of the cease-fire. Do you know who in the legal department gave that advice?

No I don't, nor do we have any recollection of that sort of formal request being made.

So when it says your legal department, you have no actual record of your legal department being consulted on this at all?

No not the office of the legal advisor no.

It's all very vague isn't it? There's another line here that DPKO confirms that Minurso would be allowed to supervise the withdrawal and replacement of the guns. Yes?

Er, I wouldn't use the word supervise. That's not our function or role. Our role would be to observe or monitor activities within the zones to which we have access.

And there's further confusion. According to the Foreign Office they'd already reached a preliminary view that refurbishment was not a violation of the cease-fire in Western Sahara in 1998, after contacts with the UN mission Minurso "in the region". But that's news to Ambassador Charles Dunbar, the UN special representative in charge of Minurso.

I had no knowledge of that until I read about it in the Press recently that there was a storm had broken over it.

So no-one ever approached you from the British side or the UN saying what do you think of this?

No, never.

And if they had done, would you have agreed that refurbishment was within Minurso's remit?

I would have definitely asked New York for an opinion. I of course would have consulted with the force Commander because these kinds of issues simply didn't happen to come up when I was there, that sort of issue with the military.

The UN force commander at time said he was never consulted on the deal by either the UN or the British. But there was one request on refurbishment, from the Moroccans. Despite its professed neutrality, and despite its commitments under the EU Code of Conduct, Britain granted licences for the guns' refurbishment, but not for new gun sales. The Government defended its actions in Parliament by claiming that the UN gave them "permission" to license the deal - a claim the UN now disputes. In a statement to Newsnight today, the Foreign Office says:
"This export licence was at all stages considered against the criteria of the EU Code Of Conduct." It's the fact that the Government thought the deal contravened the code first time round, but not the second, when nothing had changed, that worries some.

I don't see how this could fit comfortably with the EU code of conduct on arms sales. This is an embarrassment to Government. I'm deeply disturbed and ashamed that my Government has taken part in this.

What do you think is behind all this?

It's more convenient for people to keep Morocco happy and not have the referendum go ahead than it is for them to support, to do their moral duty and allow this referendum to take place. For the last colony in Africa.

And as for the Polisario, they warn that this refurbishment deal comes at a dangerous time. With no referendum after a decade, there's frustration among the Saharawi and talk of war.

The war can resume at any time. We don't like it. We are a small people and we now want peace for the Saharawis, we are for a peaceful solution. If it doesn't come, the Saharawis have to fight for their rights.

So the guns, refurbished by Britain, could be back in action, against the Saharawi. Their supporters here are already seeking a possible judicial review on the Government's actions. In Parliament, the Select Committee on Strategic Export Controls is to report on the issue. The Government's "ethical foreign policy" is again under question.

We asked the Foreign Office for an interview responding to all these points, but they were unable to provide one. They did, however, issue a statement in which they said, among other things, that the UN did confirm the Government's preliminary view that "refurbishment of the guns would not be in breach of existing military arrangements" that is, the cease-fire, and it goes on to say that the UN in the area "would be in a position to monitor the refurbishment". It also points out that there is no arms embargo against Morocco.

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