A Scottish Government motion that the Justice Secretary's decision to release convicted Lockerbie bomber Abdelbaset al-Megrahi was taken in accordance with the Scottish legal system was defeated in the Scottish Parliament on 2 September 2009, with 73 MSPs in favour of various opposition amendments, 50 government supporters and one abstention.
The debate was of a much higher standard than the dreadful questions session the week before, with most speakers displaying a degree of reflective thought on the subject and, in some cases (notably Elaine Murray), genuine passion and anger against the Justice Secretary's decision. It was however disappointing to see the votes go limply down party lines, with the honourable exceptions of Labour's Malcolm Chisholm, who spoke and voted in support of the government, and the Conservative Ted Brocklebank, who abstained. The opposition parties' major objective, it seemed, was to inflict a bloody nose on the government; but, despite claiming the support of the majority of the Scottish people, they lacked the political courage to make the vote one of confidence that would have enabled them to test the claim electorally.
What has been shown by the debate and the public discussion in the run-up to it?
First, the Justice Minister's decision was undoubtedly political; but not, we think, for the reasons usually suggested by his critics in the political and media worlds. There was certainly no deal with the UK Government (although it has become clear, if it was not so already, that the UK Government did indeed want Megrahi released). But the SNP Government has consistently opposed the UK-Libya prisoner transfer agreement (PTA), and was clearly no more minded than usual to bend to the will of Whitehall on this matter. On the other hand, for Megrahi to die in a Scottish prison might have many bad consequences for Scotland, whether in exposing the country to possibilities of "revenge" terrorist attacks (whether from within or without Scotland), or, possibly more likely, creating significant difficulties for Scottish businesses in economic relationships across the Middle East and perhaps further afield.
Further, the decisions to be made were, as shown in the blog of Jonathan Mitchell QC, open to the possibility of judicial review. To refuse the application for compassionate release certainly invited that. A decison to refuse release under the PTA might also be challenged by Megrahi, while going the other way might lead to challenges from the USA, where there was probably a "legitimate expectation" that Megrahi would serve his sentence in Scotland. This explains the elaborate processes of hearing, not only the US victims' families, but Megrahi himself. The visit to Megrahi at Greenock prison looks most like an effort to proof against judicial review any decision to refuse either the PTA or the compassionate release application, rather than an attempt to do a deal with him to drop his appeal in return for release. The record of that interview cannot be read as evidence that such a deal was even implicit in the meeting, and to suggest that the record had been tampered with to protect Mr MacAskill is to impugn the professional integrity of the civil servant who wrote it. In any event, as suggested above, the Justice Minister had no interest in implementing the PTA in Megrahi's case. With compassionate release, on the other hand, Megrahi could (at least theoretically) be recalled to his Scottish prison if circumstances justified that step, and the US legitimate expectations were not necessarily completely frustrated.
The decision to grant compassionate release was clearly one the Justice Minister was entitled to make under the Prisoners and Criminal Proceedings Act 1993 section 3. In the parliamentary debate most speakers acknowledged this fact and the difficulty of the decision to be made, suggesting that in no sense was it an open and shut matter, with the atrocity of which Megrahi stands convicted being of such a nature that compassionate release could not even be contemplated. Was the release too early, in the sense that the medical reports were not categorical about the likelihood of Megrahi's demise within three months (the period mentioned in the Scottish Government's policy on compassionate release (para 4.1)? However the same policy is also clear that there are no fixed time limits for the prisoner's life expectancy; it also imposes no requirement whatever to take account of the nature of the offence that brought him to the prison in the first place. The consistency of the other professional advice given to the Justice Secretary under the policy – by the prison governor, prison social workers and the Parole Board – is also impressive support for the decision to release unless we see them as also engaged in a conspiracy to deny justice to the victims and their families. The policy, it should finally be noted, was drawn up in 2005 under the SNP Government's predecessors in office.
Might the release have been to some secure place in Scotland? Matters were complicated for the Justice Secretary in the run-up to the debate by Strathclyde Police claims that they could have handled the operation if necessary. But inability was not the ground for rejecting the option; rather the basis of the decision was a judgement about whether the scale of use of resources was justifiable against the alternatives and about the impact upon healthcare facilities and their other patients and staff if Megrahi was to be kept and given treatment in Scotland. Jonathan Mitchell argues that the terms of the Scottish Government policy anyway precluded the possibility, inasmuch as they require arrangements to be in place for the prisoner's supervision, care and treatment. Scots Law News is not quite sure about this, since presumably such arrangements could have been put in place. But we think that the Justice Secretary's actual decision to release to Libya was not irrational or unjustifiable.
Was it misjudgement or naivete for the Justice Secretary not to have anticipated the scenes of welcome for Megrahi at Tripoli airport, with Saltires waving prominently at the foot of the aircraft steps? Scots Law News has already expressed its doubts about the actual scale of the welcome, and there were no repeats during the festivities in Libya shortly afterwards with which Colonel Gaddafi's 40 years in power were celebrated, apart apparently from the briefest glimpse of Megrahi in a film running through the highlights of Gaddafi's rule. There is film of Gaddafi meeting Megrahi, but it does not seem to have been at the airport or otherwise in public. Critics were most worried about the negative impact upon Scotland's image in the USA; but no-one reflected on the possible positives for Scotland in other parts of the world, or indeed for some otherwise possibly disaffected parts of our own population.
Finally, the Justice Secretary made clear throughout his acceptance of the judicial process and Megrahi's conviction. In no sense can his decision to release be seen as even covert recognition that Megrahi was not guilty; and since it was not the result of a deal with Megrahi or anyone else, it is also clear that the decision was not made to protect the Scottish legal system from embarrassment through continuing appeal processes on Megrahi's behalf. One suspects that the Justice Secretary was as surprised as anyone else by Megrahi's decision to drop his appeal. That decision by Megrahi is the least satisfactory aspect of the whole affair, and Alastair Bonnington's suspicion, that it was made under instruction from a Libyan Government thinking that this was the only way to get Megrahi home under the PTA, still strikes Scots Law News as the most likely of the possible explanations so far.
But we were fascinated to learn from a source close to the Scottish Criminal Cases Review Commission that while the Criminal Procedure (Scotland) Act 1995 makes it an offence to disclose the Commission's 'Statement of Reasons' to anyone but the applicant, Crown and and High Court, section 194(1)f of the Act enables the Justice Secretary to permit publication of the report (apparently 800 pages plus 16 ring binders of appendices). There are some indications that Mr MacAskill may do this, provided various clearances can be obtained. Presumably that won't be forthcoming in its entirety, given the UK Government's public interest immunity arguments when the appeal was in court. But even partial publication might have the effect of prompting some further process of inquiry, whether originating in Scotland or somewhere else such as the United Nations. Otherwise we face the prospect of eternal uncertainty about the worst terrorist atrocity ever committed in Britain and about whether justice was really done, whether for the victims, their families or Abdelbaset Megrahi.