This literature came to my mind this morning when I was reflecting on the controversial facework Kenny MacAskill engaged in with Al Megrahi. This approach to decision-making was explicitly denounced in Holyrood’s Justice Committee’s report on the process of the Cabinet Secretary’s decision on compassionate release, published today. Although we could return to many issues, I wanted to linger a bit on this one. Why is facework problematic? What is the basis for the judgement that humanising paper exchanges is inappropriate? As you may recall, MacAskill visited the prisoner in person. At the time, this stirred up some complaints and suggestions that it was an inappropriate venture. As perhaps was to be readily anticipated, the Committee don’t approve either. Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly (also known as the members of the committee who don’t happen to be SNP MSPs…) believe that the prison visit ‘was inappropriate’. Subsequently, it is listed among issues of process about which the Committee is ‘extremely concerned’ .
They give their further reasons in paragraph . All emphasis in subsequently quoted text is my own. What I’m aiming at here is the why and the wherefore. If the process if felt to be unacceptable or unjust, what arguments about the nature of procedural justice are made – which qualities of the process are relied upon to provide arguments for the acceptability of the decision? In short, what are the qualities of meeting Kenny MacAskill that makes his final decision (allegedly) problematic? Four basic points are made. What will become apparent, however, is that nowhere is facework itself impugned as a problem. Structural features are referenced, formalistic accounts of the decision-process are cited, but nowhere are the more difficult issues posed by interactions between applicant and ministerial decider dived into. The critique remains at an implicit level.
“These members are clear that Mr MacAskill was under no obligation in terms of the PTA process to offer a prisoner a face-to-face meeting, citing both the Cabinet Secretary’s own evidence on 1 December and Jack Straw’s evidence to the Joint Committee on Human Rights (that the obligation was only to offer an opportunity to make written representations).”
Obligation here denotes formalistic legal necessities. Why it is immediately a basis for criticism is concretised in the subsequent paragraph.
“They are unconvinced by Mr MacAskill’s own explanation that he felt obliged to meet Mr al-Megrahi for consistency with the meetings (face-to-face or by videoconference) that he had already held with US Government representatives and relatives, given that these latter meetings were also his choice and not a requirement of the process.”
Unstitch this. Not convinced? So what do they imagine he was about? Notice, the language of being convinced, to my mind, implies a different set of considerations than the ordinary sense of disagreeing with the Cabinet Secretary meeting Megrahi in person. MacAskill here was clearly making a mixed point. On one level, he was referencing the possibility of judicial review, and thus touches on the jurisprudence of lawfulness in administrative law, which he is bound to observe as a minister of state. On another, MacAskill was making a particular claim about the nature of procedural justice which is separable from the legal argument. He was saying, in brief, that this was about “giving the applicant a fair opportunity to fully participate in the process of adjudicating whether the right exists or is to be denied” (Halliday 2004, 119). Functionally, the method by which he gave effect to this goal of procedural fairness was by giving Megrahi the opportunity of access on the same terms.
The hostile members of the committee, however, do not engage with him at that level, nor do they make the argument that according to the broad goals of procedural fairness, MacAskill might have a point. Notice the subtle shift in terms of obligation being effected here. The committee is talking the letter of the law, MacAskill making reference to its broad, administrative spirit in the context of fair procedures, where one’s ability to contribute equally is substantively important. Rather, they ignore that altogether, insisting on formal legalistic standards, concrete obligations. For that reason, I read this denunciation as on the extremely weak end of plausible criticism of the visit. There is something very limp about saying we don’t believe your sense of obligation, you didn’t have to meet the American families of the victims of Lockerbie either. Particularly since there isn’t a breath of criticism of doing so in the main report, according to the majority’s formalistic standards of fair process.
“They argue that this approach has created an inappropriate precedent, which may be relied upon by other prisoners in the future.”
Relied upon to what purpose? And, presumably, relied upon somewhere. In court? Or perhaps in rhetorical appeal to the adjudicator’s sense of procedural balance? Again, notice that it is not being suggested, at the level of the decision itself, that an oral encounter is inherently problematic. That argument is never made. The theme is returned to in para , where "…the Committee takes the view that such an issue need never have arisen if the matter had been considered on the basis of written representations in the normal way." This strikes me as another, much weaker claim. Categorically not that the process employed is inherently inappropriate, that a visit ought to be out of the question, but that normality was infringed, that substantive fairness is of no significance, and thus Kenny was flying a procedural kite.
“They also point to a lack of balance between the meetings with relatives, at which they were told that their views were being considered only in relation to the PTA application, and the meeting with Mr al-Megrahi, which also encompassed the compassionate release application.”
In part, see argument two above. And notice that now the committee dips a toe in the substantive point about fair procedures. Needless to say, the toe is fairly rapidly removed. None of these positions, in my view, makes clear what is opaque – what sort of reasons problematise discussion in person, as opposed to sanctionable encounters merely conducted by papery exchanges. Much of this highlights for me the problems of attempting to reconstruct highly discretionary decisions, based on straightforward formulae. Dispositive, brightline rules are not engaged here. There is also another thread, woven through the arguments made above. It relates to a question left unasked – what sort of data might derive from a meeting in person which could not be captured on paper? Ordinary experience should tell us that a human, in the flesh, is transformed from the abstract categories of relations implied by textual exchanges.
The nagging doubts about the meeting, I’d suggest, relate to ambivalent positions in our public life about discretion as such. While, in the persons of street-level bureaucrats, discretion – with its capacity for human affectivity – are familiar and regular state activities, that does not correlate with a clear, unproblematic justification for decisions taken on that basis. Echoing my discussion on justice and mercy from the time of the compassionate release, begging for clearly expressed, categorical reasons is inviting to be deceived. Choices don’t work like that – particularly choices predicated on a loose, affective notion like compassion or mercy. Post hoc rationalisations can invariably be couched in a language of compliance with mandatory edicts and formulae.
The rest of the parliament's Justice Committee report on the release of Al Megrahi can be read here.