A Lockerbie transfer? MacAskill's dilemma...

The press are calling it a “prisoner transfer agreement”. In the brass-voiced, trumpeting rhetoric of international diplomacy, however, it is the Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Great Socialist People’s Libyan Arab Jamahiriya on the Transfer of Prisoners.

I kid ye not. Such backhand agreements are the common stuff of international cooperation. Why does this particular treaty matter? The answer is simple, and is represented in sum by the solitary, sickly figure of Abdelbaset Ali Mohmed Al Megrahi, sitting as I write and you read in the confines of Greenock Prison.

The implication of the Treaty? The human consequence is on one level simple. The Cabinet Secretary for Justice, Kenny MacAskill must decide whether or not to transfer Megrahi to Libya to serve out the rest of his sentence. Firstly, however, lets look at what the treaty itself says. Amongst other qualifications, Article 3(c) requires that the judgement under which the prisoner is incarcerated is ‘final’. As a result, in order to fall within the ambit of the agreement, the ongoing appeal in the Lockerbie case would have to be dropped. A request for the transfer of Megrahi has now been lodged, the application being received on May 5^th 2009. Article 5(2) of the Treaty provides that the decision should “normally” be reached with 90 days of the request. By my reckoning, this gives the Cabinet Secretary till the beginning of August to reach his decision. Alternatively, he could take more time if he required it. Given the monumental pressures involved, he may feel the need of it. But time is a’wasting.

The Scottish Government news release states that

“The application is now being determined on its merits in line with the Agreement and relevant legislation by the Cabinet Secretary for Justice who will take all relevant considerations into account.”

The Treaty agreement is noticeably thin on what the indicated criteria are which might govern Mr MacAskill’s decision. Reference is made to being “prepared in principle” to transfer prisoners, but what the informing norms and ideas are which might constitute that principle are not accounted for. Not, of course, that the Cabinet Secretary will be in wont of candidates for inclusion in his judgement. I do not envy his position.

What sort of principles should we apply? Should Mr MacAskill ponder the evidentiary doubts around the conviction? Alternatively, should the reported cancer of Megrahi’s prostate influence his decision? Or on the conviction itself, should family feeling play some determining role? Or should the particular ghastliness of the crime he was convicted for weigh with the Justice Secretary? What might a philosophical answer to this be? What the determining principles?

It is all too easy for such difficult decisions to become a mush of incoherence. Much of this depends on how – perhaps implicitly, impressionistically – MacAskill defines relevant considerations. In the shadowy corners, off the record, I expect that international éminances grise are vying to apply effective pressure on him. At past FMQs, Alex Salmond insisted that political or economic considerations would not come into it - referring to the “judicial grounds” which would resolve the decision. I don’t much care for politicians playing at being judges, pulling long faces and affecting sonorous manners. Given the exposed position the Government finds itself in however, I can forgive them a little play acting, and the comfort of a costume. Expect to hear metaphors of balance, as if Kenny could simply resolve his mind using easy, objective scales of judgement. Unfortunately for him, there aren’t any. While the press coverage has been relatively low key – and the blogging reflection on this important issue nigh non-existent – all of that can change in an instant.

While he may feign judicial insouciance, denying political considerations, they are there. Arguably, they ought to be there. One doesn’t need to be a feminist to realise that the personal is political, and that a vast quantity of our public life is colonised by political, contestable, debateable ideas. As it very much should be. Being judicious cannot lend anyone objective gravity or simply guarantee that they’re doing the right thing. Beauteous reason is disposed to be less categorical than some folk tend to desire.

That being so, I’d be honestly surprised if MacAskill assented to the transfer of Mr Megrahi. The Herald this morning suggests that “Mr MacAskill is expected to allow Megrahi to return to Tripoli”. I’m not so sure. What is to be gained? Libyan good will? I’m sure we could survive without it. Would it improve Mr Megrahi’s life? Arguably, what should that matter to him? Kenny will, presumably, start from the premise that the prisoner is guilty. Whatever doubters might say or however persuasive they find their reasoning. Those are the judicial grounds. Why alleviate the pains of a guilty man? I could give you many good reasons. However, how weighty will these be - a great act of charity to one man – when arranged alongside the resonant voices of those who have lost family members and friends, who insist on his continued incarceration in Scotland? The media have musical ears. Which notes do you suppose they will find easier to identify with? Which melodies will move them more profoundly?

I wouldn’t generally credit MacAskill as a man with the Wisdom of Solomon. Yet I suspect he will detect that he has far more to lose by transferring Megrahi than to gain by it. For those doubters I mentioned, including Robert Black, this must be a difficult situation to judge. In particular, if vindicating the truth means anything, surely the appeal should proceed. Since there is no all-seeing goddess who notes all slights and remembers all wrongs, our poor vision of justice is all we have. Even the creeping imminence of death should not be permitted to draw an exculpatory veil over our failures, our errors, or our injustices. Christian’s talk of witnessing. Given the evidentiary basis for Megrahi’s conviction, this may be a touchy metaphor. Nevertheless, in a godless world, we are under an obligation to bear witness to human justice, frankly, sceptically. We simply must.