This, it is submitted, is only proper. Whatever one makes of the final decision, it is difficult to argue that it does not fall within a zone of reasonableness. Indeed, the emerging focus on the decision-making process seems to underline the falling political temperature. Unexpectedly, others seem to have navigated themselves into hot water. One would assume, after the high pitch of his howls from the wilderness of the weekend, the august personage of Jack MacConnell might dust off his razor and wobble into Holyrood for yesterday’s statement. Not a bit of it, apparently. Pretty rum stuff.
Equally, I’m astounded by the number of commentators - blithely, bullishly - suggesting that ministers – both Scottish and British – should have taken any number of illegal expedients to prevent the release. In the European Court of Human Rights, the
3 Power to release prisoners on compassionate grounds
(1) The Secretary of State may at any time, if satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment, release him on licence.
(2) Before so releasing any long-term prisoner or any life prisoner, the Secretary of State shall consult the Parole Board unless the circumstances are such as to render consultation impracticable.
(3) The release of a person under subsection (1) above shall not constitute release for the purpose of a supervised release order.
Not a lot of law there, is there? That said, a few remarks. If opposition parties wish to do something “constructive” in response to the difficulties and procedural uncertainties surrounding what the decider in terms of compassionate release ought to do, they should consider reviewing the Act. Lack of parameters and the absence of a clear process is hard - both for the minister, and for interested parties. The oft repeated trope is that decisions under section 3 are “quasi-judicial”. I’m not a great fan of our politicians, metaphorically nabbing the wig, pulling on the scarlet robes and fumbling about for gavels. Equally, I believe that our judiciary is under politicised in certain crucial respects. A constructive response to this – perhaps most difficult of cases – is to follow through on the notion that having ministers make contestable decisions in terms of prisoner release may not be the most polite way of ordering the process. While it introduces a note of real responsibility to proceedings, given that the issues involved are actually relatively limited, relatively simple once you’ve set your mind to free the mortally ill, we should not be surprised Holyrood seems to have had little to say yesterday. It is in no position to interrogate the medical opinions. Does not seem to be objecting as such to the idea that those with an estimated three-month frontier to oblivion should be freed. All that is left is the process.
If this process has been so untidy, what might they do in response?
One obvious amending approach to the lessons of the Al-Megrahi decision is that the ‘quasi’ tag should be snipped off, and the power to order release relocated in one of
Alternatively, it may be that it is not possible to whittle down a sufficiently brisk court process. Given the relatively low number of releases, such a reform may seem unnecessary, ministerial judicial acting sufficient in the circumstances. But please, please – if you feel criticism is warranted, oh unhappy tribunes, be constructive for heavens sake! You'd have supporters, even the cosy surrounding architecture of a sound, principled basis for reform. Don’t just bore the hell out of everyone with your gloating critiques and the flattering supposition that all ills would be corrected, if only the august person of Richard Baker or Bill Aitken had been in the Justice Secretary’s office, or Iain Gray was tucked up in Bute House.
There is little point making the argument – nobody will believe you anyway.