7 February 2011

The saintly Augustine's Megrahi papers ...

The newswires are tingling with headlines from the Cabinet Secretary's release and review of previously unpublished UK Government documents pertaining to events surrounding Al Megrahi's release from prison. Predictably enough, the Conservative Party's shows every sign of regarding this as a splendid opportunity to stick it to their Labour opponents and are serve upon them indictments alleging implication, art and part guilt, opportunism, hypocrisy and so on.  The Cabinet Secretary's remit was clearly influenced by the antics of our old opportunistic chum, devolution expert and all round fair-minded inquisitor, American Democratic Party Senator Robert Menendez. As the paper explains....

The review has sought in particular to assess whether there is any new evidence that:

i. the UK Government directly or indirectly pressurised or lobbied the Scottish Government for the release of Mr Megrahi (either under the PTA or on compassionate grounds);

ii. pressure was placed on the Scottish Government by BP for the release of Mr Megrahi (under the Prisoner Transfer Agreement or on compassionate grounds);

iii. the Libyans were told there were linkages between BP‟s investment and the release of Mr Megrahi either under the Prisoner Transfer Agreement or on compassionate grounds.

As a substantial part of this release of documents, Sir Augustine "Gus" O'Donnell has published partially redacted correspondence from a number of figures from the defeated Labour administration. In line with past practice on this blog, I'll set down a portion of the text, for your scrutiny. O'Donnell's review and published correspondence runs to 142 pages in total. It can be consulted in full in .pdf form here, via the Cabinet Office website.

These documents include:

  • 25 July 2007; footnote 6; letter from PM to Col Qadhafi;
  • 19 September 2007; footnote 10; Ministry of Justice Submission
  • 26 September 2007; footnote 15; letter from PM to Col Qadhafi
  • 28 September 2007; footnote 11; Jack Straw to Gordon Brown PTA
  • 2 October 2007; footnote 12; note from HMA Tripoli to the FCO
  • 2 November 2007; footnote 18; record of phone call between Jack Straw and Kenny MacAskill
  • 7 November 2007; footnote 17; Ministry of Justice Submission on PTA
  • 19 November 2007; footnote 14; record of Simon McDonald meeting with BP
  • 7 – 19 December 2007; footnote 21; correspondence between Jack Straw and Des Browne;
  • 19 December 2007; footnote 22; record of phone call between Jack Straw and Kenny MacAskill;
  • 18 February 2008; footnote 25; letter from Gordon Brown to Col Qadhafi; 
  • 29 September 2008; footnote 26; Ministry of Justice Submission on PTA 
  • 10 October 2008; footnote 27; Ministry of Justice Submission – Call with First Minister
  • 13 October 2008; footnote 28; Ministry of Justice record Jack Straw call with First Minister 
  • 17 October 2008; footnote 29; letter from Bill Rammell to Abdulatti Obidi 
  • 21 October 2008; footnote 30; Cabinet Office Submission to Gordon Brown
  • 24 October 2008; footnote 32; record of phone call between Jack Straw and Alex Salmond
  • 3 November 2008; footnote 31; FCO Submission on handling Megrahi’s Health
  • 7 November 2008; footnote 34; record of phone call between Jack Straw and Alex Salmond 
  • 13 November 2008; footnote 35; FCO Submission on Judicial Agreements 
  • 9 December 2008; footnote 37 and 39; FCO Submission – Advice to the SG 
  • 15 December 2008; footnote 38; FCO letter to SG on foreign policy advice 
  • 22 January 2009; footnote 41; FCO Submission – Contingency Planning 
  • 25 February 2009; footnote 42; Cabinet Office record of Cross Whitehall meeting 
  • 20 April 2009; footnote 43; FCO Submission – Further Handling on Megrahi 
  • 21-23 April 2009; footnote 43; FCO Submission – Further Handling on Megrahi – PUS and Ministerial Responses
  • 20 April 2009; footnote 44; FCO Submission – Ratification of Treaties
  • 21 April 2009; footnote 44; FCO Submission – Ratification of Treaties – Ministerial Response
  • 22 April 2009; footnote 45 & 51; Ministry Of Justice Submission – Jack Straw call with First Minister
  • 29 April 2009; footnote 45; MoJ Record of Jack Straw call with First Minister
  • 24 June 2009; footnote 50; FCO email – Foreign Policy advice to the Scottish Government 
  • 29 June 2009; footnote 47; FCO Submission – Legal Advice to Scottish Government
  • 13 August 2009; footnote 57; FCO Submission to No10 – Impending Scottish Government Decisions
  • 20 August 2009; footnote 57; letter from PM to Col Qadhafi;

To give you an overall impression of the Cabinet's Secretary's review, here are his conclusions:

34. It is my conclusion that:

i. none of the materials that I have reviewed contradicts anything in the then Foreign Secretary's statement to the House Of Commons (12 October 2009) or the current Foreign Secretary's letter to Senator Kerry (23 July 2010), or statements made by the former Prime Minister on this matter;

ii. it is evident from the paperwork, including in documentation already released, that the Libyans made explicit links between progress on UK commercial interests in Libya and removal of any clause in the PTA whose effect would be to exclude Mr Megrahi from the PTA. It is also evident, including in documentation already released, that BP did lobby the former Government to make them aware that failure to agree the PTA could have an impact on UK commercial interests, including Libyan ratification of the BP exploratory agreement (EPSA) signed in May 2007. As is already in the public domain, these commercial considerations played a part in the former UK Government's decision to reverse its position and agree to the removal of this exclusion clause. And once the exclusion clause had been removed from the draft PTA, the former UK Government in turn held up final signature until progress on commercial deals had been achieved. The records show that Cabinet Office and FCO Ministers and officials were mindful of, and pressed Libyan interlocutors for progress on, the major BP deal (alongside other UK deals) in the context of agreeing the PTA. But:

a) while the PTA provided a framework to consider the transfer of prisoners, it did not permit transfer when an appeal was outstanding and, critically, in line with every other PTA, provided no automatic right to transfer;

b) any decision on an application for transfer of Mr Megrahi under the PTA was for Scottish Ministers alone to make. Scottish Ministers retained an absolute veto over any request for prisoner transfer in the case of Mr Megrahi, a veto they used in August 2009 by rejecting his application for transfer;

c) the PTA did not in any case form the basis for the release of Mr Megrahi;

d) there is no evidence that pressure was placed on the Scottish Government by BP for the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds);

e) there is nothing in the paperwork to indicate any pertinent contacts between BP and HMG after February 2008;

f) the Libyans were not told there were linkages between BP's exploratory agreement and the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds).

iii. it is clear from the paperwork that at all times the former Government was clear that any decision on Mr Megrahi's release or transfer under a PTA was one for the Scottish Government alone to take. The documentation considered by the review demonstrates that they were clear on this in their internal deliberations and, crucially, in their contacts and exchanges with the Libyans, including at the highest levels, and with the Scottish Government. In Gordon Brown's only meeting with Colonel Qadhafi, on 10 July 2009, he made clear that the decision was solely a matter for Scottish Ministers and HMG could not interfere.

iv. nonetheless, once Mr Megrahi had been diagnosed with terminal cancer in September 2008, HMG policy was based upon an assessment that UK interests would be damaged if Mr Megrahi were to die in a UK jail. The development of this view was prompted, following Mr Megrahi's diagnosis of terminal illness, by the extremely high priority attached to Mr Megrahi's return by the Libyans who had made clear that they would regard his death in Scottish custody as a death sentence and by actual and implicit threats made of severe ramifications for UK interests if Mr Megrahi were to die in prison in Scotland. The policy was primarily motivated by a desire to build on previous success in normalising relations with Libya and to safeguard the substantial gains made in recent years, and specifically to avoid harm to UK nationals, to British commercial interests and to cooperation on security issues. The desire to see such a result developed and intensified over time as Mr Megrahi's health declined and the imminence of his death appeared greater;

v. Policy was therefore progressively developed that HMG should do all it could, whilst respecting devolved competences, to facilitate an appeal by the Libyans to the Scottish Government for Mr Megrah's transfer under the PTA or release on compassionate grounds as the best outcome for managing the risks faced by the UK. This action amounted to: proceeding with ratification of the PTA; explaining to Libya in factual terms the process for application for transfer under a PTA or for compassionate release; and informing the Scottish Government that there was no legal barrier to transfer under the PTA;

vi. I have not seen any evidence that HMG pressured or lobbied the Scottish Government for the transfer or release of Mr Megrahi (either under the PTA or on compassionate grounds). Jack Straw stated clearly in his calls with Alex Salmond including on 13 and 24 October 2008 and his meeting on 28 April 2009 that this was a matter for the Scottish Government. Indeed, throughout this period, the former Government took great effort not to communicate to the Scottish Government its underlying desire to see Mr Megrahi released before he died. Moreover, it is clear that HMG considered that any attempts to pressurise or lobby the Scottish Government could be counter productive to achieving this outcome. Although it is likely that the Scottish Government was aware of this desire, there is no record that it was communicated or that UK interests played a part in Mr Megrahi's release by the Scottish Government on compassionate grounds. When the matter came to the then Prime Minister in August 2009, he did not seek to exercise any influence on the First Minister or the Scottish Government. Mr Megrahi's release on compassionate grounds was a decision that Scottish Ministers alone could – and did – make.

Source.

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