Members present:

Donald Anderson, in the Chair
Mr David Chidgey
Mr Eric Illsley
Andrew Mackinlay
Mr Bill Olner
Mr Greg Pope
Sir John Stanley


DR DENIS MACSHANE, a Member of the House, Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, examined.


  1. Minister, may I welcome you on behalf of the Committee to what is your first meeting with our Foreign Affairs Committee. We are looking at the Green Paper which was published on 12 February. In his foreword to that Green Paper, the Secretary of State accurately and generously stated that it originated in a request from our predecessor committee in our report on Sierra Leone, what he referred to as both a timely and useful suggestion and called for a wide debate and it is really on that I would like to begin with you, Minister, the wide debate. Can you indicate now the number and quality of the submissions which have thus far been received before the end date of 12 August.
  2. (Dr MacShane) We have had three submissions from companies, we have had one from the NGO International Alert; we have had two from members of the public plus some MPs' letters and we have had four submissions from academic institutions with interests in this matter.

  3. With respect, it does not sound very much. Perhaps people are waiting until the deadline before putting forward their submissions.
  4. (Dr MacShane) I myself, I am afraid, am a deadline paper produce; without the whiplash of a deadline I often leave these things to stack up. As the Foreign Secretary said in his introduction and you quoted it, a wide debate on the options is needed. I suspect that those directly interested are also looking forward to the 24 June conference in Birmingham, to which a large number of the people interested in this issue have been invited and will attend, and I would like to extend an invitation to any Member of the Foreign Affairs Committee or any Member of this House who would like to attend that conference to do so because we do need the widest possible debate.

  5. This conference is a Government initiative which will bring together both companies and non-Government organisations.
  6. (Dr MacShane) A large number of NGOs ranging from Oxfam to International Alert and professors of peace studies from our academic institutions; so, it is very much a conference which covers all the possible ranges of opinion on this matter.

  7. Is it intended to publish both the submissions received by the Government and the statements before this Birmingham conference?
  8. (Dr MacShane) All the submissions that the Government receive are available for public consultation unless the person or organisation so submitting asks for them to be kept confidential.

  9. Could you give the Committee some indication of the way forward. Presumably, if the Government were to opt for some form of licensing scheme, there would have then to be a White Paper and then it would depend on the priorities of Government as to whether this would be included in the Bill to be put before Parliament.
  10. (Dr MacShane) I think, Mr Chairman, you are slightly ahead of me in the process. We need to await the outcome of the consultation period based on the Green Paper. I myself would welcome an adjournment debate on this, perhaps when the House comes back in the autumn, to test the feeling of the House in a formal debate and then see whether legislation is indeed needed. If the collective answer and the Government's mind remains open that legislation is needed, then the process you describe is obviously the way that I would imagine we would take things forward.

  11. Can you give an assurance to the Committee that the Government's mind is not closed in any way and does not currently favour any of the options which are set out in the Green Paper?
  12. (Dr MacShane) Absolutely.

  13. Starting more substantively in respect of the Green Paper, clearly an initial problem which is mentioned is that of definition, which is the definition of the private military company and this of course has bedevilled the debate of the adherence to the UN Convention in this area. Are you convinced that the Government will be able to find a workable definition of private military companies which distinguishes the current phenomenon from the unsavoury individuals and groups that one learnt about in the immediate post-colonial period?
  14. (Dr MacShane) This indeed has been a problem for the Government ever since the 1870 Enlistment of Foreign Powers Act under which no successful prosecution has been brought because it does become very difficult to identify a citizen committing a crime in this area. Indeed, the European Union countries, save Italy, have found it impossible to adhere to the UN Convention because there are six conditions, all of which have to be satisfied, not just one or two of them, before somebody is identified as a "mercenary" and all the European Union countries and a number of other countries around the world have not been able to translate this into enforceable domestic law. I can pursue this matter because I have thought about it and I think that the question of definition is going to be a major stumbling block if you want to write a law that is enforceable in the courts of this land.

  15. What is the current thinking of the Government? Is it possible to circumvent this obstacle of definition or are the Government working towards a particular proposal for a definition?
  16. (Dr MacShane) Clearly there are activities that are illegal either in this country or in most other countries of the world and may indeed now be illegal under the statutes of the International Criminal Court. The problem of course arises well before we get to that stage. Many of these companies are involved in issues like advice, logistical support, training, personnel for monitoring, anti-piracy of fisheries operations in the high seas, de-mining and transport logistics, and it is sometimes difficult to say that these are logistical operations and this is entering directly into combat activities that can result in death.

    Mr Illsley

  17. Do we have any information or figures as to how many private military companies operate in the UK?
  18. (Dr MacShane) The ones we know about are actually quite few in number. Most of them have been invited to participate in the conference in Birmingham and the British Armed Forces, like armed forces in other countries like the United Nations, now rely on private companies to provide training, logistics and security support. One British company, for example, was involved in providing Princess Diana's security for the landmine campaign that she was running in Angola. One advantage is that if we can find a regime that makes all of these activities fully transparent, it is precisely how one would actually get to know in detail who is doing what, where, when and with what people.

  19. I think this is one of the difficulties that we have here. In terms of definition - and I mentioned this the other day - we were right with the situation from the recommendation announced in the Sierra Leone report which arose under private military companies threatening to breach a UN powers embargo and all that that entailed, and we have gone from that to a private company providing security for Princess Diana which perhaps nobody would criticise. In the Green Paper, there is a suggestion that this demand for private military companies is likely to grow and you have just outlined one or two instances there in terms of logistics and training. What are the circumstances in which this demand is likely to increase? Is it likely to be peace-keeping or just other logistical support that you have just mentioned?
  20. (Dr MacShane) Principally I think that, with the end of the Cold War, one no longer has the giant stasis, if I may use that word, around the world in which the two armed blocks directly or indirectly ensured stability or absence of violent activity in their respective spheres of influence. There are a number of countries whose governments in particular want to restore the state monopoly of violence and I think we would all agree that it is selected democratic states who have a preference that they should have the exclusive monopoly on the use of violence, but there are regions in the world where states, democratic states - and Sierra Leone, which you mentioned, was an example - face very serious armed opposition and if there is not the willingness from other states or from the United Nations or from regional organisations to lend effective timely assistance, then those states have the right to appeal for professional help to train up their own soldiers to provide the logistical and some other support to ensure that the state itself can exercise law and order and an absence of violence over its territory.

  21. Do you envisage NATO or the United Nations employing private individuals to carry out actions on behalf of those organisations?
  22. (Dr MacShane) Both the UN and NATO member states use private military companies for training purposes, for some logistical purposes and for security purposes. The Secretary General of the United Nations did say that, when facing the crisis in Rwanda some years ago, he considered calling on a private military company to restore order very rapidly but, as he correctly said, the UN was not ready at that stage to engage private military companies and there may be an argument that says waiting to assemble an international force - and if you recall the Rwandan experience, that really was not on offer - meant that many thousands of people suffered because-


  23. Many millions of people: 800,000 killed, it was claimed
  24. (Dr MacShane) I am not saying that there is direct causal effect but, had one been able to stop the violence suddenly effectively, then perhaps many more people who are now dead would be alive.

    Mr Illsley

  25. Could I turn to the economics of private military companies. There is a reference in the Green Paper to mineral concessions being used as a way of payment for private military companies and yet Colonel Spicer said in his memorandum to the Committee that a mineral concession is worthless to a PMC despite the fact that, in Sierra Leone, it appeared that that is how they were likely to be paid for their activities there. Do you consider payment by means of mineral concessions or other similar concessions to be an acceptable format of payment?
  26. (Dr MacShane) I would say it is an illogical format of payment because you have to pay your men and other staff day by day on a cashflow and to get a mineral concession of any sort means that you will start to make money in years to come if you successfully extract whatever the mineral in question is. What I would say - and we have seen this over the conflict diamonds question - is that some minerals, diamonds in particular, can fuel conflict, but a legitimate security company providing logistical training support for an army overseas wants to be paid there and then, not a pledge against getting some mineral in the future which may of course lose its value as commodity prices fluctuate.

  27. Does the UK derive any benefit from private military companies? That is an awkward question. First of all, do we use private military companies? Do we employ them or----
  28. (Dr MacShane) We employ them, as I said, for training. Both the Navy and the Army use private companies for training purposes just as indeed the Police Force uses private companies for training and examination preparation purposes, usually staffed of course by former policemen in the latter case and former officers and men in the former case.

  29. Would we consider employing any other company on a combat basis?
  30. (Dr MacShane) I would find that very hard to envisage. I gather that no minister should ever say "never", but I think the state should control the monopoly of violence. Where there is some advantage to Britain is that we have a robust, successful and professional defence sector. That depends on a lot of support from an arms industry, a trainings industry and contacts around the world. I would be reluctant to see either our defence industry whittle away and disappear or security in these private military companies be driven off-shore, which is why the Green Paper does discuss options for, as it were, making them transparent and making sure that anything they do is wholly accountable and visible to the public.

  31. I have one question on the basic economics which is, who would pay for any licensing regime that we impose in the future? Would that be a cost imposed on the companies themselves or would this Government stand the cost of that?
  32. (Dr MacShane) There is the famous RIA, the Regulatory Impact Assessment, that is obligatory in all legislation and you are taking me far beyond where I think we are now in discussing how it should be paid for. I myself tend to think that industries themselves should accept the cost of ensuring that they have the status to do what they want to do.

    Sir John Stanley

  33. Minister, like you, I do not have the benefit of a transcript of Tuesday's session, but I want to put to you, as best I can in the same terms, the two questions which I put to Colonel Spicer, formerly of Sandline. The first question is this: at the time of our predecessor committee's extensive inquiries into arms to Sierra Leone, Foreign Office Ministers, including the former Foreign Secretary, came in front of this Committee - and indeed there was much debate, as you will remember, on the floor of the House - and they spoke of private military companies in terms that were at best extremely dismissive of the role of such organisations and in many cases they spoke of them in highly critical, indeed on some occasions almost vitriolic, terms. Today, four years later, we have the Government's Green Paper which, as our Chairman says, our Committee has pressed for, in which the Government, in a very, in my view, balanced and fair way, have set out certainly the disadvantages of using private military companies but, in paragraph after paragraph, have referred to circumstances and conditions in which private military companies behaving respectably may be of value to the prosecution of the Government's foreign policy and security interests. The question that I would grateful if you would answer is, what is it over the last four years which has produced a really striking sea-change in the terms in which Ministers refer to the private military companies and what has really produced a very, very different Government perspective as to the potential use of such companies providing, in the Government's own terms, they are respectable?
  34. (Dr MacShane) I do not think there has been a sea-change. I have the Foreign Affairs Committee's Second Report from 1999 and, in the main evidence which was actually given by the then Permanent Under-Secretary, but of course he was reflecting the view of the Ministers, it says that he seemed more positive about the possibility of establishing a regulatory structure and the Committee accepted that there were a number of new questions which would need careful work. The careful work has taken place and has produced this and the discussions we are having now and the Committee's recommendation talked about the need for the Government to outline legislative options for the control of private military companies and some of those options and alternatives are discussed there. I think that what has happened is spurred very much by the Sierra Leone report; the Government have thought about this, have taken counsel, have examined what is happening in other countries and have perhaps seen that what at the time was a very open and shut case is more complicated. We do not feel that we can legislate to shut down companies that provide training logistics advice, fisheries help and the rest of it. So, that is why we have launched the discussion in which we are taking part today which will be followed up by the 24 June conference and, as I said, I look forward, perhaps spurred by some publicity from the hearings this week, to many more members of the public writing in with their views.

  35. I think what you are saying to us is that these four years have been a period of mature and considered reflection because I and the Members of the present Committee who were also Members of the previous Committee, will most certainly remember Ministers and indeed the former Foreign Secretary coming in front of us and expressing grave doubts about the integrity, honesty and truthfulness of some of those associated with private military companies. Certainly it would seem to me that there has been a striking change in tenor, but I take what you have said and that the Government have reflected long and hard and certainly my view is that the Government are now following a very, very different tenor in terms of their approach to private military companies.
  36. (Dr MacShane) I did not attend every discussion by previous Ministers on this issue but my view is that the Foreign and Commonwealth Office should take what the Foreign Affairs Select Committee recommends very seriously and read out of that recommendation the request for a paper outlining possible legislative alternatives. I think we have satisfied that demand in a responsible way and the debate now is open and I very much welcome it because, as I say again, I have no fixed view on this and I want to listen to the debate and read all the evidence and positions. I will be attending the meeting on 24 June myself and we will continue these discussions thereafter.

  37. My second question, which again I put to Colonel Spicer and again I will put to you, is that, somewhat to my surprise, there is no direct reference and only I think the most oblique of references in the Green Paper to one factor which to me is a compelling factor when one is considering trying to protect the Government against human rights abuses by the use of members of the Armed Forces rather than those employed by private military companies and that is the fact that all the members of our Armed Forces, as, Minister, you will be totally familiar, are subject to the Armed Forces Act passed by Parliament and subject to the discipline and provisions of that legislation. Would you agree or not that, if there is going to be a choice between using members of our own Armed Forces compared to those who are employees of a private company, there is always going to be a substantially greater human rights abuse risk of employing people who are civilians employed under the terms of a contract compared to using members of our own Armed Forces who are subject to the provisions of the Armed Forces Act?
  38. (Dr MacShane) What I would say is that I think it would be preferable if states or inter-governmental organisations such as the United Nations or regional associations took responsibility for the use of force that ultimate ends in a classic military conflict and then we know exactly who is responsible and one hopes that the soldiers are trained and professionally led, though one also has to note that most of the most egregious human rights violations that have occurred in recent years have occurred by state forces led by, at least nominally, professionally trained and accountable officers. So, you are inviting me to leap straight, as it were, to combat activity at which point human rights violations do sometimes occur. The issue that this Green Paper has to address is the wide range of security and military related activities that happen well before one gets to combat activity. You are also assuming, if I may say so, that one would approve of companies doing that which they want to do once they had some kind of a tick from the Government, but one of the proposals is a licensing regime which would license specific contracts and it may well be - and here we are really very hypothetical - that contracts or licences would not be awarded for activity that in any way could place the company concerned in a position of being likely to commit human rights violations. There is a final point on that - and it is a very important issue - and that is that of course any firm of any sort that was accused of committing human rights violations, if those allegations were shown to be true, would never receive any future contract of any sort. So, it would be signing its own business death warrant.


  39. Or indeed the specific licence could be withdrawn.
  40. (Dr MacShane) Indeed.

    Sir John Stanley

  41. My question was not posed most emphatically solely in a combat situation, I was posing it in the generality because, as you will be aware, Minister, the Armed Forces Act would be relevant for any member of the Armed Forces who was engaged in any form of personal intimidation or unnecessary personal violence which might arise on a guardian security role; it is a protection against corruption et cetera. I would like to ask you directly - and we are only talking about British service personally - whether you would agree or not agree that there will always be a greater degree of risk of misbehaviour for the Government to be employing members of private military companies, even though licensed and registered, who are not subject to the Armed Forces Act compared with using our own service personnel subject to the Armed Forces legislation.
  42. (Dr MacShane) You use the term "Government employing" as if the Government, again hypothetically, envisage using companies to carry out activity currently carried out by the British Army. I do not see that as being a likely development. What is under examination in the Green Paper are states far away from Britain that do not have an adequately trained, professionally led and equipped military force who face the need to restore law and order in their own country turning to some outside body. If the outside body cannot be provided by friendly governments or by the UN, should they be allowed to use a private military company and under what terms and that is part of this debate. I think the point you are making about the legislation that governs what soldiers can do would later down this process be criteria that I imagine would bear heavily on the shaping of any legislation and licensing regime and so forth because it could be of no advantage to the UK or any other country to have any security or military operation which is operated from within these shores facing allegations of any kind of improper behaviour.

    Mr Olner

  43. Private military company is a rather nice sanitised term; it is a long way from what used to be called mercenaries who, quite frankly, have been open to abusing human rights. Can you comment on whether it is sufficient to rely on commercial companies who tend to abuse human rights?
  44. (Dr MacShane) Under the UN definition, the Gurkhas would fall foul of the UN definition, so would the Swiss Guard in the Vatican and so would people who had fought in the Spanish Civil War. I completely agree with you, Mr Olner, and my preference would be that it would be states that would organise the necessary lending of support to countries that faced violent assaults on their democratic systems or on law and order. The problem simply arises when states are unwilling or unable and the UN are unwilling and unable to provide that help. It seems to me that there is in any case well before we reach that point a role for non-state organisations and private companies, if you like, to provide training and logistics.. We accept that in this country. If you train to become one of Her Majesty's officers in the services, you will go off and have part of your training carried out by private companies.

  45. I do not think there is any real difficulty in people accepting that, but surely it is the excesses that this Green Paper is wanting to address as a result of what the predecessor to this Committee said in the first instance.
  46. (Dr MacShane) Quite and that is why there are proposals, different licensing regimes are suggested. It seems to me that the problem arises when these companies operate overseas and a problem then arises when a company moves from logistic training, transport and providing security for personalities into a role, to put it crudely, when they start shooting at other people and it is how one legislates, if that is the final decision as a result of this process, to ensure that the use of violence is constrained and is accountable. I stress again, the main point is that it is democratic governments of other countries who are likely to use private military companies, private security companies because they do not have the wherewithal within their own nation state boundaries to provide the necessary level of security or guarantees of law and order.

  47. Using the same scenario to which you just referred, would you then say that the official who licenses the private military company would be deemed to be responsible for any human rights violations that that company may well commit at a later stage?
  48. (Dr MacShane) I think that we are getting into seriously hypothetical waters. I think that the company itself or the individuals within the company would accept responsibility. In this country, we do not follow the doctrine of, 'we were only obeying orders.' People who do bad things have to accept responsibility at whatever level decisions are made for having done bad things.

  49. Can you possibly envisage the British Armed Forces being deployed to rescue a British based PMC when everything has gone horribly wrong and when they have been overtaken by events?
  50. (Dr MacShane) That is a tough question upon which I would like to reflect. It is hypothetical - just as the NHS so often has to save botched up operations of private hospitals and we have had some grave scandals recently. As I say, my own preference remains that legitimately accountable states, either individually or coalitions that are willing or through the UN or through regional organisations, take responsibility for these kind of operations. In order to get, in some regions of the world, the required level of training, logistical supplies, transport and leadership development, I can see that private military companies could actually have a beneficial role.

    Mr Pope

  51. Like you, I am a great admirer of the free market but it seems to me that you are placing an awful lot of faith on the free market being the primary constraint on the private military company to not engage in human rights abuses. If the argument is that a PMC would not commit an abuse because it knows that its contract, say with the United Nations peace-keeping, would not be renewed, it seems to me that we are placing a great deal of faith in that market philosopy and should there not be other mechanisms in place which will hold the companies to account in terms of abuse of human rights?
  52. (Dr MacShane) Yes, I very much agree with you. I am a great believe in government but there are many human rights violations around the world carried out by the agents and troops of legitimate, even often democratic governments. I think you are right to say that, if we go down the road, after the consultation Green Paper period, of seeking to produce legislation, then the issue of ensuring that companies do not behave in an internationally unacceptable or illegal way has to be considered, but that is of course one advantage of making the whole process transparent, accountable, having criteria, having inspections, if you like, in order that what in the past was carried out under conditions of secrecy - and I draw a distinction between confidentiality and secrecy - and was not available to the public gaze is now transparent and accountable.

  53. I think it is a difficult area because, when we look at the constraint to which I have just referred, we are looking at a constraint that is in place prior to the abuse taking place, 'I would not contemplate taking part in an abuse because this could happen to me.' What happens after an abuse has taken place? What redress does the international community have against a private military company which has carried out an abuse of human rights?
  54. (Dr MacShane) The law of the land in which the abuse has taken place and there have been examples mentioned in the Green Paper of soldiers being taken away and executed because of the abuses of human rights; the law of the land in which the private military company is based, in this case we are talking about Britain; and there is international law and the creation of the International Criminal Court would, I think, be a contribution in that regard.

  55. Could you envisage circumstances in which Her Majesty's Government would issue a licence to a private military company to engage in an activity which was contrary to the UK's Government foreign policy?
  56. (Dr MacShane) It certainly would not be one that I would sign off on. I cannot commit future ministers.

  57. I am interested because does that not mean therefore that there is a responsibility resting on the Government if things go wrong, which is Mr Olner's point? If you, as a minister, are prepared to license a private military company to engage in an activity in furtherance of UK foreign policy, surely there is a residual responsibility with the UK Government to look after that company if things go wrong.
  58. (Dr MacShane) I think the Government in anything they undertake overseas have to have account for their obligations under UK domestic law and there is something that in some ways is often as if not more powerful and that is public opinion but, as with the licensing regime for our defence industry, there is always at the back of one's mind as one approves or not approves a submission, the thought that, in five or ten years' time, what could the particular piece of kit then be used for or, when you refuse a submission, are you actually stopping the chance of reinforcing stability and peace in a core of the world because you do not actually want to become involved in the necessary military aspects of the process of guaranteeing law and order in a country?

  59. Are you not opening yourself up to the scariest of all charges, that you are perhaps going to be courageous as a politician but there will come a point, which I am sure will be in the not too distant future, when your Foreign Secretary will stand at the Dispatch Box of the House of Commons to defend the activities of a private military company which you yourself have licensed? Is that not the risk, essentially? You will be responsible for the activities of a company which you do not run but which you have licensed.
  60. (Dr MacShane) This is akin to England winning the World Cup, which I would rather not contemplate. Chairman, Mr Pope is quite right that you have accept the consequences of your decisions, but I would rather - and here I may be giving a preference but I am waiting for this consultation period to be over - see transparency and accountability and some kind of regime, so that everybody knew where we stood with these new organisations.

    Mr Chidgey

  61. I would like to ask you a series of questions relating to the underlying problems of stability and proxies of governance and accountability. I would like to start by putting to you the fact that some critics of PMCs argue that using PMCs only has an impact on the conditions that create conflict and that therefore deploying them is always a short-term solution at best. I wonder whether you would like to comment on this in terms of whether you can make any generalisations about the long-term impact of importing private military expertise into unstable countries. Are there any examples of PMCs bringing lasting stability to an unstable country?
  62. (Dr MacShane) I think that is a very important question and there you would have to get into the debate of not just being tough on violence and instability but tough on the causes of violence and instability: the poverty, the socio-economic factors, the ethnic religious nationalist rivalries that lead people to use violence against their government. I think that, as the world moves increasingly to democratic governments---- In the last 20 years, we have seen certainly in Latin America and Africa, just to take those two regions, the replacement often of military authoritarian governments by states that have been democratically constituted and they have the right to ensure that first duty of a state which is the monopoly of violence within its borders, which is why we have an army and why we have police forces. Where that monopoly is violated by organisations, rebel groups, terrorist outfits, guerrilla outfits and paramilitary outfits and the state is unable because of the lack of investment in an adequate military or domestic security infrastructure to ensure stability, what does it do? It appeals to its friends and Britain has been more generous than most - you can look at Sierra Leone, East Timor, Afghanistan and the Balkans to name just four regions - in aiding that quest for security by sending our own highly trained and professional armed forces. However, we cannot be everywhere and we certainly should not be everywhere. We should look to the UN but the UN, as we saw in Rwanda and other places, can be very slow. What ultimately I would like to see is much swifter responses by trained professional peace-keepers/peace-makers on a regional basis acting under the UN or under regional associations but, ad interim, do we deny the right of states to appeal for help from these professional bodies? I think it is a question which this consultation process will have to answer but I would be very reluctant to say that because we cannot send the British Army or a properly equipped UN Army, then we just allow a country to bleed to death because of internal violence. It is illegal.

  63. That is very helpful because it leads on to the concept of looking at weak states which I think you referred to at some stage, or certainly the Foreign Secretary has referred to the problems you have just addressed being often the problems of a weak state which does not have the resources to adequately recruit and train the sort of civil or military forces needed to preserve and protect stability in the country. However, it is the case, certainly in Africa, that many of the weak states are also the poor states which begs the question, if they are weak and poor, they are not able to afford to pay for the expertise and professionalism of PMCs to restore and keep order. It does lead, does it not, quite directly to a change of emphasis perhaps and more pressure by this Government being put on the UN to meet the obligations that we charge the UN for carrying out on our behalf in terms of international peace-keeping, rather than expect weak poor states to fend for themselves and become a hostage to fortune of whatever commercial dealings might be going on behind the scenes to attract PMCs.
  64. (Dr MacShane) I am in total agreement with the honourable Member, Chairman. He states Government policy better than I could!

  65. My career is in shreds! I ask this question just to reinforce one of your earlier answers about use of British Forces. Just to reinforce this, can you cite an example in which the employment of a PMC instead of British Forces deployed overseas could reduce our overstretch without compromising our foreign defence policies?
  66. (Dr MacShane) I am reluctant to get into the substitution discussion. There are examples in the past; one is cited in the Green Paper. I stress that I am not an academic or historical expert on the issue of the Sierra Leone regime being stabilised to the point of it being then able to move forward to hold elections, which of course resulted in the election of President Kabbah, but then unfortunately he was driven out by the rebel forces, which led to the sequence of events which gave rise to the Green Paper we are discussing here. So, where there is a direct British interest at stake, I would assume, within the limits of what the Ministry of Defence can deliver - and I think it is delivering an extraordinary amount of men on the ground for its budget - would be the government agency that would carry out this work. As I say - and I sorry to keep repeating this but it is important - what we should be seeking around the world is trained professional defence capability able to assist and intervene to ensure stability. That is a discussion which we are having with many of our partners and I think there has been a welcome sea-change, to use that metaphor, particularly in the last year about the need for all the democracies to accept their responsibilities in this sphere of operations.

  67. The Green Paper counters moral objections to using PMCs by suggesting that, "It may be cheaper and will certainly be quicker than attempting to train national forces." Is the use of PMCs so lacking in moral justification that it has to be justified by these practical advantages?
  68. (Dr MacShane) I think there is always a legitimate question that can be asked. It has been asked throughout military history of how you get the maximum effect for the money you spend while wholly remaining within the realm of law, accountability and democratic government policy and clearly already, as I say, armed forces around the world accept that they no longer should provide all the training by actual members of the armed forces and instead ask private companies to have a role in that. It should be a spur - and I have read the same figures that you have - to the United Nations to sharpen up/quicken up its operations to show that the UN and other regional bodies can intervene in a timely manner so that the actual, as it were, combat end of private military company activities is not necessary.

  69. In amassing evidence as part of the consultation process, have the Government, yourself or your Department found any evidence to show that PMCs are more or less prone to destructive or abusive or unprofessional behaviour than, for example, national armies as we would recognise them in the West?
  70. (Dr MacShane) I think if you just consider Rwanda and the Balkans, and let me stop there, the behaviour of national armed forces does not need any extra comment from me.

  71. That is very helpful because it brings me onto my last question which in fact you have touched on in earlier exchanges with my colleagues and that is the whole question of accountability. We have examined already the concept of the contractual relationship between companies and the client being argued by some as sufficient accountability in the licensing regime and so on. While I can accept that as far as the company is concerned, commercial relations that they have with their clients is in fact a means of enforcing accountability, we are talking here in extreme cases of combat and individual soldiers/personnel in extreme conditions of danger not part of the established routine of trained, disciplined armed forces and I would suggest three words here: discipline, deterrence and accountability. That weighs heavy on a fighting person in an extreme situation and their actions in that situation and what happens to them as a result of their actions. Can you not see and do you not agree with Lieutenant-Colonel Spicer because, when I put this question to him, he accepted that a PMC did not and could not reduce the risk of violation, extreme action and human rights abuse that a properly trained, disciplined and legislated national armed forces could do. He accepted that. Would you agree with that?
  72. (Dr MacShane) I think one has to bow to superior military knowledge and the superb professionalism of the British Armed Forces is second to none in the world but, in my lifetime, we have seen activities from the Algerian War to My Lai to more recent examples of the armed forces of democratic states behaving in a way that is wholly unacceptable. I would not for a second dream of suggesting that were we to proceed with some of the suggestions outlined in the Green Paper following the consultation, that this guarantees that there would never be any egregious violation of what we would consider to be acceptable behaviour. What I would say is that making it accountable, putting it within a legislative framework, may be better than seeing these activities driven off-shore or being undertaken on a sub-rosa basis where nobody actually knows who is doing what until suddenly there is a story on the front page of the excellent Sunday Times.

  73. Do you therefore suggest that that would reduce the risk of a privately recruited trained fighter performing human rights abuses in comparison to the risk with a professional soldier under the discipline, the deterrence, the liability and the accountability through the system of his employment in the national army?
  74. (Dr MacShane) Again, this is very hypothetical but I assume - and I think the evidence suggests - that most of the people involved in these activities now are former highly trained professional soldiers who know that their chances of continuing in work are pretty slim if they behave in an unacceptable way. Again, if I may say so, you are taking me into quite a hypothetical realm, an important one but that is exactly what I hope we can tease out, particularly at the 24 June conference and discussions that will continue, I hope, in this House.

    Mr Chidgey: In the process of teasing out these issues, can I leave you with one thought to contemplate and that is that there is an awfully large difference between somebody losing their pay as a privately employed soldier because of an abuse and spending five years in Colchester Military Prison for the same abuse, which he might well do under the terms of army regulations. I leave you with that thought.

    Andrew Mackinlay

  75. I wonder if I could begin by clearing up one or two things in the Green Paper. First, you said in reply to my colleague, Mr Chidgey, that there was reference in the Green Paper and this was an example where we had supported the employment of a PMC. Where does that come?
  76. (Dr MacShane) No, I did not. I think I was asked by Mr Chidgey if I knew of an example of a private military company being used and producing, as it were, a positive result. What I cited was the one example that struck me - it was nothing to do with the British Government - of the Sierra Leone government then hiring a company that managed to defeat or push back the RUF sufficient to allow elections to take place, but thereafter the RUF came back with a bang. There is a very good list at the back of the Green Paper which I am just looking at, it is about 1994/95, and, when one looks through this, there are a number of case studies that all seem to involve Sierra Leone or one particular company, Executive Operations from South Africa, which was I think related to the post-apartheid regime when the frontline states found themselves with all sorts of very unusual gentlemen operating within their borders.

  77. Perhaps you would like to come back to us on that example. I take your point; I misunderstood you. Can I ask you to look at page 34.
  78. (Dr MacShane) Yes, 1995, page 34, Sierra Leone, "EO, assistance from South African Army soldiers and Russian aircraft pilots" against the RUF. "Rebels split up and driven back to Liberian border." That then led to the possibility of elections being held in Sierra Leone. Nothing to do with Britain.

  79. While we are on page 34, can we go down a little further where we have, "J&S Franklin (Gurkha Security Guards Ltd)" recruited by the Sierra Leone Government. "Military training and support for Republic of Sierra Leone ..." and the outcome was, "Terminated a few weeks later following rebels killing the leader." Some training that was! The guy gets killed! However, I am very grateful for that example. On page 35, the second one done, "Sierra Leone 1996 Sandline International (Executive Operations) UK", recruited by the government for military training. Which government was that because elsewhere it mentions the Sierra Leone Government? Which government is that?
  80. (Dr MacShane) This chart, Chairman, is not a Government drawn-up chart; it is taken from an independent study and I am happy to write to the honourable gentlemen with an answer to that

    specific point.

  81. If you could, I would be grateful, but presumably, for this morning's purposes, we can be assured that it is most definitely not Her Majesty's Government.
  82. (Dr MacShane) Mr Mackinlay asks a question which I confess to the Committee I do not have an answer to.


  83. I think the point is that ----
  84. (Dr MacShane) It is a very fair point.

    Andrew Mackinlay: So you will write to us.


  85. You will clarify that.
  86. (Dr MacShane) Of course we will.

    Andrew Mackinlay

  87. Than you have got a series of Sierra Leones where it does not indicated "recruited by", so if you are able to amplify on those I would be grateful. Then on page 37 it seemed to me worth bouncing off you comments on this. Country Zaire, 1996, 2,000 mercenaries. They were recruited by the Zairean Government and included British Nationals. The purpose was military support against rebels. Mobutu was defeated. This is an interesting illustration because they were recruited by both sides, it would seem. You had 2,000 mercenaries for the Zairean Government and they were 300 mercenaries recruited for the so-called White Legion for Mobutu. That is the way I understand it. They were recruited by both sides. In fairness there were no United Kingdom fingerprints on this but nevertheless British Nationals. The White Legion disappeared into Congo-Brazzaville. They literally disappeared, that is what the report says. Is this not going to be the problem throughout, that whereas people who are signed up to the Sultan's army are sworn to the Sultan of Oman, our own Gurkhas are sworn to Her Majesty the Queen, the Swiss Guard to the Holy Father, etc., to use a flip example, these people can just disappear off the face of the earth. They have committed atrocities, we do not know what has happened to them, we do not know who they are, we do not know who the company is. They disappeared into Congo-Brazzaville. Is this not going to be a problem for you and for us once we go down the road----
  88. (Dr MacShane) Mr Mackinlay puts his finger on a very important point. I do stress again that this is a chart taken from a study and the studies are listed at the back. I am sure the House of Commons Library can find the academic books from which this material has been taken and make it available to Members. That then could be an argument, I would put it to the Committee, for saying that having a transparent licensing regime would ensure that you did not send unknown people into the heart of darkness, to quote Conrad, for them thence to disappear. If anything, the argument might be in the direction of supporting some of the suggestions about a licensing regime.

  89. Colonel Spicer two days ago said "I am very professional, I have explored the top quality people, their military records, etc." and no doubt he does, he has got a good reservoir of very professional soldiers. He said "I also check criminal records". In fairness to him I think he was using "criminal records" in a loose sense but he cannot do that, can he, because he will not have access to criminal records? He can check out from his own resources but there is no mechanism. What is your view about checking out criminality? We check out people in terms of care situations and domestic situations, access to the Police National Computer, etc., but by definition, and I think rightly at this moment in time, lawfully there is no access to such records, is there?
  90. (Dr MacShane) Mr Mackinlay raises again an important issue and I hesitate to duck it by saying it is more a matter for a Home Office Minister. The question of access to records of people employed in security companies is a sensitive one that has been discussed in this House. The issue of the nature of any licensing regime might indeed have to take that into account.

  91. Would you see any regime which you contemplate, Minister, finding some mechanism whereby companies cannot dissolve themselves after each operation, successful or aborted, because a higher number of them are aborted? It is like sand going through your fingers, companies dissolve, ownership is vague and the soldiers themselves are not known or named. Again, is this not a problem? What do you think of that?
  92. (Dr MacShane) They are very protean, they are like amoeba, they come and go. If at the end of this whole process it is the collective wisdom of Parliament, the Government and the community involved that legislative proposals are not really workable, and the Diplock Report on this in 1976 was never translated into legislation, then we will remain with exactly the problem that Mr Mackinlay rightly outlines.

    Chairman: Mr Mackinlay, you will recall, I think, in the discussions with the previous Committee in respect of Sandline, Colonel Spicer when he appeared before the Committee was surprisingly ignorant about the affiliates of his own company.

    Andrew Mackinlay

  93. Indeed, and the colour drained from his face two days ago when I asked who owned his current company. You can see it on colour television.
  94. (Dr MacShane) My colour drained from my face, Chairman, when I sat in this seat so I have no blood left to give.

  95. I am on a roll. The other issue which I think we need to address is whether or not we regulate, whether or not we take action, the problem still remains of the potential for embarrassment for the United Kingdom. We do know that one of the companies that Colonel Spicer was associated with embarked upon an expedition to Papua New Guinea. It was embarrassing to the United Kingdom, it certainly aggravated our friends in the region, Australia, New Zealand and other countries. Whatever else we may or may not do, should we not have some way of saying we are not tolerating this, we are not going to have you embarrassing the United Kingdom or working against our interests or that of our allies?
  96. (Dr MacShane) I agree, again, Chairman, many things embarrass the United Kingdom and I can assure you as a PPS in the Foreign Office the Sandline Sierra Leone affair was something that was not only embarrassing but I would say quite damaging to the Government at the time. The issue is whether we do nothing and this resurfaces every so often or we examine forms of making the behaviour of these companies and what they do more transparent and bring in a licensing regime. We may end up with embarrassment but at least we will have collectively as a Parliament and as a Government accepted some greater responsibility.

  97. Could I ask if you have been able to examine the United States' legislation? Would that be a model for us? Could you amplify on that?
  98. (Dr MacShane) The American legislation which covers arms exports as well as the activity of private military companies is, I understand, a licensing system that both covers companies and individual contracts, so the Americans have commissioned private military companies, for example, in some logistical and other activity in the Balkans. It seems to have worked out successfully. As always in America there is a great deal of transparency, congressional inquiries, press inquiries. I would rather in Britain that we moved all of this, if we are to go down this road, into the open, transparent sphere. It is not a world in which angels operate but I would rather that they were accountable and known to the public so that if anything that should not be done is done it is brought to public and parliamentary attention as soon as possible.

  99. Can you help me on one thing. What is the status of people who are, as we know them, mercenaries? I am not talking about the Gurkhas, the Swiss Guard or people who sign up to the Sultan of Oman's army and the soldiers in this army who are under the command and control structure. Are they covered by the Geneva Convention or could they be under this newly discovered category "unlawful combatant"?
  100. (Dr MacShane) Again, a very good question. I am sorry, the Committee will have to forgive me, I do not have the Geneva Convention in my head. Unless you are directly enrolled by and for a state then I think you may not be covered by it.


  101. It would be helpful in response to Mr Mackinlay's question if we could have a note on the relevance of the Geneva Convention to the sort of activity we are now describing.
  102. (Dr MacShane) That is a very important point, Chairman.

    Andrew Mackinlay

  103. Do our laws sufficiently have extra-territorial effect with regards to the conduct of people operating from the United Kingdom? I realise there are now international laws, thank goodness, so if there are crimes against humanity there is albeit a very fragile mechanism now with people being brought to court. Is there on our statute book laws which we really ought to be extending to Brits who are operating elsewhere around the world or people whose companies are working from here? That has to be looked at.
  104. (Dr MacShane) From memory I can think of recent legislation referring particularly to paedophile activity overseas that then can be successfully prosecuted in domestic courts. Generally the presumption is if you commit a crime in a state then it is that state that arrests and puts you on trial. Again, this really is much further down the road, Chairman. If we move into a legislative and licensing regime I think all of these issues, and they are important ones, would have to be considered and Mr Mackinlay's very important point will be taken seriously by officials. That is a lot further down the road way beyond this Green Paper stage.

  105. My very final point, and I do not put it in any provocative way at all, in fact let me preface my remarks by saying I acknowledge that you are very much the architect of this paper and also what you have said this morning indicates on your part some enthusiasm for at least containing the problem, a personal one. I would like on the record an assurance that the emergence of this Green Paper is not one of these things that does happen where the mood was we have to come up with something but we have no intention of bringing forward legislation? I cannot help feeling that is what is going to happen because the common denominator amongst ourselves, and I think your testimony, is the fact that there clearly is a need for some regulation although we will have differences as to what it should be. Can I have an assurance that this Government will not stall on bringing forward legislation making the assumption that nobody is going to opt for what I would call almost the anarchical situation of just letting things drift, bearing in mind there are also international considerations, there is a dormant draft Treaty lying around and we have been informed that world leaders will show the way, etc. Can you give us some assurance that this is just not a fobbing off of the Foreign Affairs Select Committee?
  106. (Dr MacShane) I could hide behind what I have to state, that it is not for me to commit Her Majesty as to what she will announce in her Queen's Speeches over the next two or three years, but irrespective of that the hon. Member is wrong in that this Green Paper originated from a long process in the Foreign Office before I became a Minister, particularly the Minister responsible for this part of the FCO's work. I have been genuinely interested in the moral, political, legal, international policy, intellectual conundrums that have been brought up by the Green Paper. I am looking forward to this 24 June conference where you really will have the practitioners because what you will not do is wish away the wholly legitimate and proper companies that are operating in this field providing logistics training, transport, fishery protection advice, security and the rest of it. What we are concerned about is moving to the final sharp end of using combat and military violence. I hope we can collectively, me as a Minister and you as the Foreign Affairs Committee, or through the mechanism of an Adjournment Debate in the House in the autumn or later look at where we are once the consultation period is over. Still, I repeat my inclination would be I would rather these things were in the tent, as it were, where we could see in which direction they were aiming rather than outside the tent when we have not got the faintest idea what they are up to until we are splattered with very unpleasant after-effects.

    Mr Olner

  107. Just on this issue. I think Mr Mackinlay has a very good point. Whatever, this is going to be a lengthy process but at this point in time are you encouraging self-regulation of some of these companies to make them even more transparent than they are now?
  108. (Dr MacShane) Again, that is one of the options discussed in the Green Paper. Effective and transparent self-regulation has to be one of the possibilities that we will have to examine once the consultation period is over.


  109. If only on an interim basis.
  110. (Dr MacShane) On an interim basis. As always self-regulation is one possibility until such time as it is shown to break down. I will be interested in the debate. Believe me, there are people and organisations with very keen perspectives coming together in Birmingham in two weeks' time and I will be interested to hear the contributions from the NGOs concerned about this and the companies themselves on the best way forward. I keep stressing, difficult as it may be for even myself to believe my own words, I have an open mind.


  111. Minister, in paragraph 57 of the Green Paper you quote the UN Secretary General as saying that in the confusion of the Rwanda situation he even considered employing private military companies in the Goma camp and particularly the overspill from Rwanda into the camps within both Tanzania and the Democratic Republic of the Congo. Is it your view that if the issue were now to be raised again within the United Nations that those same constraints might not apply because opinion within the United Nations has moved on in respect of private military companies?
  112. (Dr MacShane) I think that would be going a bit further than my impression, though I have not myself, and the Government has not, consulted widely with all 189, soon to be 191, member states of the United Nations. What I would say is that the last ten years has been a very sharp learning curve for all governments, looking particularly in our own corner of the world in Europe, in the Balkans, in Rwanda, about how the failure to understand the need to intervene militarily leads to the most awful deaths and ethnic cleansing and in the case of Rwanda I think certainly the use of the word genocide.

  113. You will recall that in the case of Rwanda there was a Carnegie Study which did a simulation exercise in West Point that had 5,000 trained military people intervened in 1994 at the start of the conflict it might have prevented the genocide which killed up to 800,000 people.
  114. (Dr MacShane) President Bush the First sent in 1992 1,000 US soldiers to Macedonia as a tripwire and effectively, although we have had some trouble in Macedonia in the last 12 months, kept that corner of the Balkans free of what Bosnia, Croatia and Kosovo went through. Yes, I am very pleased that this Government is extremely robust in understanding that if you want the end of peace then you must will the means and that may require a strong military presence of men who know how to use weapons rather than just carrying them on the ground.

    Mr Pope

  115. Can I just return to this issue of accountability through the international legal system. You are going to write to the Committee about whether or not the Geneva Convention applies to PMCs, although I think we can proceed on the basis that it is quite likely that it does not given the case that the people being held at Guantánamo Bay are not covered by the Geneva Convention. Earlier on you told the Committee that if a breach of human rights took place there would be redress through the law of the country in which the breach took place. It seems to me that this is not very satisfactory. By the very nature of some of these countries the rule of law has broken down completely. We are already proceeding on the basis that the Geneva Convention does not apply, so what redress does the international community have against a breach of human rights by a PMC?
  116. (Dr MacShane) I think this is a fundamental question. The issue of how we bring about redress for breaches of human rights is increasingly on the international agenda and is one that has to be examined by the Commission for Human Rights in Geneva itself. A company that in any way authorised its employees to undertake activities which clearly were seen to be ultra vires and in particular were seen to constitute a breach of human rights would, I would have thought, be open to legal action in the country where that company was based. In this case, again theoretically, we would be talking about the UK and that is why, as I say, if we can get to some kind of licensing regime it may ensure that the companies operating out of the UK are very seriously constrained and ensure that their men and their employees do not carry out any act that could be considered to be a human rights violation.

  117. Does that not lead us on to the follow-on problem that by their very nature these companies are highly mobile. If I was running a private military company and the UK Government established a tough regulatory framework to hold me and my company to account probably the first thing I would do would be to move that company to another island state. Whilst I think the Green Paper is to be welcomed and it is a really good step forward, would we not be better off putting the emphasis of our policy on reaching an international agreement to prevent that kind of state hopping by companies to avoid a regulatory framework so there is not a hiding place for rogue companies?
  118. (Dr MacShane) Indeed, in theory, yes, but, as we have seen on a number of issues, trying to get every country to sign up to a particular policy, whether it is support for the International Criminal Court or whatever, is quite difficult. I am nervous of making the best the enemy of the good. If as a result of this consultation process the FAC recommends and other partners recommend, stakeholders recommend, we actively consider a licensing regime then I would rather have the companies operating out of the UK accountable and transparent for what they do. The rogues who go off and establish themselves, and I am not going to name any other country in the world, and operate from there perhaps will not have anything like the legitimacy as they search for business that a proper company that is accountable and licensed, or its activities are licensed case by case, in the UK might have.

  119. I take that point and I accept what you are saying. Clearly if we cannot do everything that is not an argument for doing nothing and if we can establish a framework here that is a good thing and we can be confident then that companies operating from this country will sign up to a Code of Conduct or whatever. I do think this issue of international co-operation is a very important one and I would be interested to know what efforts have we made so far at the United Nations to try and seek a wider agreement with other nations? I accept your example of the ICC is a very good one and getting the United States to sign it is difficult but surely we must have a great many allies at the United Nations who could see that it would be a worthwhile project to regulate in an international way the PMCs.
  120. (Dr MacShane) We have the United Nations procedures already in hand, the draft Protocol on the Convention regarding mercenaries has been up and running since 1977, but alas it was drafted in my judgment, and you can see that in the language that is contained in the Green Paper, very much as a political declaration and in legal terms where all six of its qualifications for becoming describable as a mercenary have to be met I find it deeply unrealistic. There is an OAU one which condemns the activity of any kind of mercenary involvement against any national liberation movement. We are now in the territory where one is beginning to realise that calling yourself a freedom fighter does not give you the right to undertake terrorist activity. Perhaps the OAU definition now is slightly out of date because the great issues of Southern Africa have been resolved. There is a European dimension on this, there is certainly a UN dimension on this. As I say, Britain would like to see not so much a correct definition of what is and is not a private military company and what it can and cannot do, the Government would like to see the UN and its member states accepting full responsibility at the sharp end of this and, if nothing else, if this consultation paper increases British public opinion, international public opinion and awareness of the fact that in the modern world security is important and security has at times to be delivered by military forces and the best way of doing that is on an international basis by professional armies accountable to their states and the regional UN organisations that have asked them to undertake this activity, ----


  121. I am proposing to raise with you a point which was made to the Committee by Sir John Stanley relating to the flexibility which is allowed to national governments which may be less possible for private security companies. The example cited is that of Uganda at the end of the Obote regime in 1985. The British military forces were training those of the then President Obote, there was then the civil war and the assumption of power by President Museveni who virtually immediately in January/February 1986 asked for the support of the British forces again. Clearly if they were a private military company contracted to an earlier regime it would be very difficult indeed for that company to alter the terms of its contract, as it were. Do you see this as a problem in respect of the employment of private military companies?
  122. (Dr MacShane) You are taking me on to the terrain of case by case hypothetical issues but---

  123. This is an actual issue.
  124. (Dr MacShane) ---- in this case an actual example. My memory needs to be refreshed. As Sir John, of course, was a Minister in this period, were there private military companies operating?

    Sir John Stanley

  125. We had an official British Government training team that was training Obote's forces on the basis that they were being trained to be disciplined and responsible. That was the basis on which we had a training team in place at the point when the rebels who were Museveni's people came out of the bush, overthrew the Obote regime and within a very short space of time, it was liberally in a matter of weeks, we received an invitation from the new incoming President Museveni that the official British Government training team made up of regular serving officers and men, having trained the people against whom they had been fighting for several years, should come and train his forces, which was a tremendous tribute to the professionalism and indeed the integrity of the training team.
  126. (Dr MacShane) The adaptability of British foreign policy with regime changes has never ever failed to surprise me studying over 500 years of state craft. I do recall those events, at least from television, and it seemed pretty clear that Mr Museveni's men commanded the massive and overwhelming support of the population, so he was in every sense representing Uganda at the time and it was quite right, I would have thought, for the British Government to swiftly recognise the new government there and do its best to make sure that its armed forces were behaving properly.


  127. Would you accept that a private military company would find it more difficult to alter the terms of a contract?
  128. (Dr MacShane) Again, you really are inviting me to speculate and it reinforces - I feel I am repeating myself - my view that I am glad there were British Army officers and men down there carrying that work out. Believe me, I wish collectively the democracies of the world accepted their security and military responsibilities around the world in the way that certainly this Government and country has irrespective of the party who controls the Government.

  129. I would like to raise the point of monitoring the activities of private military companies. Colonel Spicer, for example, has suggested that there should be personnel accompanying the operations of private military companies monitoring their activities, advising on correct behaviour and so on, and certainly in one of his pamphlets or books he talked even of the UK military attachés where they are resident undertaking that role. What thought has been given by the Government in respect of the monitoring of the activities of those companies who may be operating under licence?
  130. (Dr MacShane) I read that suggestion in the memorandum that Colonel Spicer sent to the Government following the publication of the Green Paper and it is an interesting one. I am not sure that it is a role that defence attachés could or should carry out. Whether or not there could be monitors attached, particularly with regard to ensuring that there were no improper or human rights violations, and this was raised earlier in our discussion, is an interesting thought. Whether they could come from some body other than HMG is also an interesting thought and one, as I say, I hope will be discussed in depth at the 24 June conference.

    Andrew Mackinlay

  131. There was this firm which used the word "Gurkhas" but should we not be able to have some regulation so that a force does not have any mirror image or matching of any of our armed forces units either by inference or by style? I cannot put my finger on it but I have seen where people have referred to the "Gurkhas" being there, which for everyone here means a properly disciplined part of our proud Armed Forces with a great track record when, in fact, they might have been ex members of the Gurkha Regiment but they were a private military company, mercenaries, call them what you like. I imagine it will not apply just to Gurkhas but it is one I have seen. I think we ought to look at that. I have even seen the word "LifeGuard" mentioned. It might have a different context.
  132. (Dr MacShane) I thought that was a deodorant, Chairman.

  133. As I say, it is a relatively small point but I hope that might be taken on board. I suspect that some of this legislation might not necessarily be one Bill. I would have hoped that the Minister would have thought that after this consultation period there may be some aspects for when amending opportunities come to existing legislation and that might be something you could take on board.
  134. (Dr MacShane) Again, a perfectly fair point, what is in a name. I was surprised to see a company that was using the name "Gurkha" which is very specific, certainly to my way of thinking. Again, in terms of legislation, if we get that far, there may be a case for a broad enabling act and then each individual contract is examined in very specific detail which would cover the point that Mr Mackinlay is making.

    Sir John Stanley

  135. The Green paper, very rightly and reasonably in my view, says that the list of six options in the Green Paper is not exhaustive. I would like to put a further option to you, which is an option to be added to other forms of regulation that might apply. Minister, as you will be aware, there are often situations in which the British Government feels that it would be desirable to have a responsible military presence, particularly a British military presence, in a particular situation whether on humanitarian grounds, security grounds, trying to stabilise the emergence of democratic government, but the British Government simply does not have the resources in terms of the stretch on the Armed Forces. You will be aware that under your Government such a situation nearly arose in Sierra Leone and the present Government took the view notwithstanding the stretch on the Armed Forces to make the deployment to Sierra Leone, and, although it faced some criticism on my side of the House from some quarters whether that was justified, I personally believe that was absolutely the right decision and certainly that deployment was totally vindicated in practice and the Armed Forces personnel did an outstanding job there and I congratulate the Armed Forces, no other country could have carried out so successfully what has been carried out Sierra Leone. There will be circumstances in which it is not possible to make a deployment of existing regular Armed Forces personnel and it is the case that in any year there will be some several thousands of members of the Armed Forces who retire. Many of those will be relatively youthful. Even somebody who has done their full 21 years will probably just be in their late thirties and others will retire before their 21 years is up. I would like to ask you whether in the preparation for this Green Paper you had any discussions with your colleagues in the Ministry of Defence as to whether it might be possible to produce a cadre of former service personnel who will be wholly familiar with British service discipline, fully familiar with working under the Armed Forces Acts, and who will be extremely well trained and capable and who might be willing to fulfil the sort of roles that we have been talking here which have been mostly non-combatant roles, training, logistics, security, those sorts of roles, and would be doing this under the auspices of Government and by virtue of the fact they are all former services personnel, even though they may be retired currently from the Armed Forces, they would provide a pool of people that would not be in a company structure, in a profit making structure, they would come under a regulated system laid by the Government I would have thought that such personnel would provide a far higher guarantee of responsible behaviour and discipline than might always be forthcoming from a private company that may be recruiting personnel from all over the world and from very different backgrounds. I just wonder whether what I might call the former armed services personnel option had been given any careful consideration within Government before the Green Paper was produced and, if not, whether that is a possibility that Ministers might wish to give their consideration to?
  136. (Dr MacShane) I am happy to examine it. By definition, most of the men who work in these companies tend to be ex-service personnel of one sort or another. I am not quite sure if one can create on the Government payroll - I do not think Sir John was suggesting that - a kind of overseas reserve, as it were, an overseas group of men who could serve because de facto that would just be extending the role of the present Armed Forces.

  137. Just for clarification, that is precisely what I am suggesting and it is wholly precedented now and, for example, inside the Ministry of Defence today there are significant numbers of service personnel who are re-employed back, usually as civilians, on the Government payroll to fulfill tasks within the Ministry of Defence organisation. I am putting it to you on the basis that if the Government thinks it is desirable to make such a deployment in the interests of Government policy it might be better for the Government to finance this through having people on its own payroll rather than entering into a contract with a private military company. There are going to be costs either way.
  138. (Dr MacShane) The question, of course, then becomes one rather more for the Treasury than the Foreign Office. My understanding is what we are talking about is states or organisations outside the United Kingdom hiring the professional expertise in all the areas we have discussed, training and so forth, possibly including and up to combat capability. The issue is whether we legislate the companies that offer their services to be paid for abroad but are based in the United Kingdom. In a perfect world one would want perhaps a UN force of experienced soldiers who might be able to intervene but we are a long way from that. Certainly what I would say to Sir John, and I think he has identified an important point, is if we move to forms of legislation of whatever sort then I think the discussions with the MoD would have to take place to get their guidance and advice on this issue.

  139. Thank you, Minister. You are absolutely right, the main thrust of the Green Paper is regulating companies who are performing tasks for probably overseas governments in which there is no direct British policy interest but I am raising this other area which does arise regularly in my experience where the British Government takes the view that it would be desirable and helpful for a British foreign defence policy interest to have British involvement but there are not the available service personnel within the Armed Forces and it would give us a further policy option to prosecute British foreign defence policy interests by using former service personnel. I suggest that would be more preferable than using private military companies to carry out the same tasks.
  140. (Dr MacShane) Again, I am not sure I can agree that one extends de facto the range and size of the British Army, or other British Armed Forces, by having a new division of semi-retired warrant officers, men and officers in their forties who otherwise would have left the Army when the end of their contract or commission had run out. That in effect is inviting me to say that we extend the numbers of men directly on the Government payroll who work in the Armed Forces.


  141. On a voluntary basis.
  142. (Dr MacShane) It is a debate for other departments. The Chairman says on a voluntary basis but usually men want to be paid to suddenly drop their jobs and go off and do some fighting. I think that is taking us way beyond the options of the Green Paper. It has an attraction as an idea. As I say, what I believe is right is that the UN and regional bodies of states, NATO, the African regional organisations and European regional organisations should be capable of putting military force in the field where it is necessary, preferably before we get to the development of tragic situations with awful dimensions in terms of human cost. All of these proposals will be examined seriously by the Government. The team that has put together this Green Paper will look carefully not just at the conclusions of this Foreign Affairs Select Committee session but the evidence and arguments adduced.

  143. Obviously looking at the suggestion made by Sir John.
  144. (Dr MacShane) Very much looking at the suggestion by Sir John. I have an absolutely open mind on this. I just want to do my best to ensure we get it right.

    Mr Olner

  145. Minister, could you perhaps give the Committee any idea about how a new licensing system would work and what criteria would be applied so that the mercenaries who are disgraced and who did a lot of human rights abuses in the past do not gain these licences? How are you going to filter these people out?
  146. (Dr MacShane) There are two broad avenues that one can go down. One is to license a company and then it gets on with its business. The other is to license a contract, so if a British firm is approached by an overseas state and invited to tender to deliver services in the military sphere, whether from training or towards a sharper end, there would have to be permission granted for that particular licence. It is roughly analogous to the arms exports licensing system. Naturally there would be the drawing up of different criteria, the monitoring and the examination that would seek to address the issues which have been raised by hon. Members in this session this morning.

  147. Having granted a licence, how would you monitor it to ensure that everything is being done correctly as it was said it was going to be done?
  148. (Dr MacShane) This was the point raised earlier about monitoring and oversight. I would imagine, depending slightly, if we get that far, which regime was chosen, the licensing of the company or the licensing of the activity, the contract, we would have a reporting end use or direct in situ monitoring arrangement. Other hon. Members have talked about the possibility of a self-regulatory scheme. The core ambition of Government policy is to bring transparency and accountability to this whole process.

  149. The reality is that atrocities would have been committed before that is picked up.
  150. (Dr MacShane) Again, this is hypothetical and, as I say, most, if not all, of the major atrocities that we think about in recent years have been committed by state forces. That will straight away lead to criminal proceedings, well beyond the capability of a licensing regime, if something truly evil happens. One works on the basis if one goes down this road that these activities are legitimate, that British based firms can supply them, that to upgrade the training, the logistics, the capability of patrolling fishing waters, of interdicting drug runners on the high seas, all of this requires training and these are acceptable state activities and British companies could play a part in them.

    Andrew Mackinlay

  151. Just on Bill's point, if I may. I do not know if the Minister has had the opportunity of seeing the evidence of Colonel Spicer, the oral evidence?
  152. (Dr MacShane) No.

  153. But his view was - I think I am repeating it faithfully - it would not work commercially, you would not be able to get the clients if you had to clear each operation through a licensing system. He wanted what I think he called a general licence so it would be subject to scrutiny, as it were, but it would operate for a certain duration like an MOT. I think he actually used the word "MOT". Listening to you, I think you are not favourably disposed to that, are you?
  154. (Dr MacShane) The options are laid out in the Green Paper. I am anxious to hear the points of view of different people. You have put to me one gentleman's point of view with some experience in the field, not always of the highest success, and we will have to take his point of view into account. My object is to try and get it right.

    Mr Chidgey

  155. Minister, you mentioned a moment ago in answering Mr Olner's queries that one of the tasks that such companies could carry out would be the interdicting of drug traffickers. That is all well and good but you will be aware of a recent case with similar parallels where privately employed militia personnel were engaged to try and interdict on the trafficking of young women from the Balkans and Eastern Europe into prostitution and they would found after some months to be engaged in the very operation themselves. That is a classic example, not hypothetical. The point behind my question is does this not draw out the very real distinction between somebody doing a job for payment and somebody doing a job as a matter of duty? Duty comes with the national framework of military personnel, the payment comes from "that is another job done, I do not have any real responsibility other than fulfilling the job to get paid". Is this not the crux of the matter?
  156. (Dr MacShane) Mr Chidgey, there have been reports, and I have only read the newspaper reports, of child sex abuse carried out by UN officials in Sierra Leone. I do not think that, as it were, invalidates the need to have UN officials carrying out their tasks to help rebuild that country. There have been very substantial reports of contingents within the UN from state armies, and democratic state armies, selling petrol, selling their weapons. I wish I could believe that any armed forces or military personnel sent by a state behaved perfectly and never sold their equipment or their fuel or whatever and that anything undertaken by a private company was always at the bad end of behaviour.

  157. Yes, Minister, we do not live in a perfect world, I think we all know that, we are in this place for a start. The real issue is, of course, reducing the risk of transgressions of behaviour which are unacceptable. That is the point, is it not, that you increase the risk by privatising these areas of operation, that is the worry?
  158. (Dr MacShane) I do not think we are talking about privatising this area at all. We have got around the world a modest demand for activities that, as I say, start at the soft end of security: logistics, supplies, medical personnel, medical training. With an absolute ban, for example, on all private security military companies helping in any military operations overseas that could mean that you could not technically send medical help because it would be defined as lending support to one side or another. It seems to me the crucial issue is either we bring this area of activity under the spotlight of legislative and parliamentary and public accountability and scrutiny or we leave it operating as it is today. My impression from the report of the Foreign Affairs Committee arising out of Sierra Leone was that it felt strongly that a Green Paper should be produced. That is what the Government has done, that is what we are debating this morning and that is what will require a lot more thought and attention paid to it. As I say, this debate for me is only just beginning and it is up to hon. Members to table Adjournment Debates in due course. After we have gone through all of this process and come to the end of the demand for submissions in the middle of August I hope that the Commons returns to this at some stage in the future.


  159. I would like to end on a point of parliamentary scrutiny. Paragraph 77 of the Green Paper refers to the analogy between the export of arms and the export of military services. What thought has been given by Parliament in respect of any form of parliamentary scrutiny?
  160. (Dr MacShane) I think the existing parliamentary scrutiny works well. There are reports, the details are published. Some matters that are confidential, of course, are made known to the appropriate committee chairmen. Again, we are a long way from that but I think the system of parliamentary scrutiny that we have for arms exports would be an obvious model that one would have to examine for this area of work as well.

    Sir John Stanley

  161. Minister, how do you answer the line of argument that the whole process of regulation is really of nugatory value because the companies that provide private military services, private military companies, can with the utmost ease if they do not like the regulatory regime which Government decides, Parliament approves and sets up, simply go offshore? They are in the business of hiring people around the world and that is an offshore activity. It is involving bringing together weapons at particular collection points and, as indeed was shown during the Sandline arms operations during Sierra Leone, they can source their weapons from third countries and move them to the area of conflict. I would like your answer to that particular line of argument. Is the whole regulatory exercise nugatory simply because of the ease with which these companies, which have no manufacturing operations or anything like that, can go offshore?
  162. (Dr MacShane) I think there is a huge difference between a company that would be registered, whose activities were licensed, that would be able to show that it had delivered proper training, logistical, transport and other support services relevant to military action in various parts of the world and that company was based in the UK, was recruiting principally UK personnel, and some little hole in the wall operation functioning by mobile phone and e-mails out of some airport lounge. That is a big difference. The alternative is that all of these activities do get transferred far away from where the spotlight of Parliament, public and legal authority can be put upon them. That is the whole point of this Green Paper, this process, for us collectively as a Government, as a Parliament, to decide what is the best way forward. As I repeat again, my own inclination would be to keep these companies inside the tent doing their things in a way that we can see what they are up to rather than outside the tent when we have not got the faintest idea of what they are undertaking or what activities they are performing.


  163. Minister, two final points. First, I would ask Committee colleagues to wait behind for a very brief private session. Secondly, in the foreword to the Green Paper the Secretary of State said in terms that he believes that a wide debate on the options is needed. The Committee is seeking to do that and this morning's session has contributed to it. Certainly, the Foreign Affairs Committee would hope to produce a report well before the deadline in August for consideration by the Government. Thank you very much indeed for your helpful contributions to the Committee this morning.

(Dr MacShane) I look forward to reading it, Chairman.