"Send Megrahi back to chokey!"

Here's a shock. You can't just lock folk up without a legal basis. Well, I tell a lie. If you are a sturdy soul with an ambusher's low animal cunning, a ream of duct tape and a spare and empty man-sized cupboard, you could take up antemortem body-snatching in your spare time, but I doubt it'd avail you much at all.  As for the state and its agents, quite rightly, their powers of arrest and detention are governed and limited by laws. Article 5 of the European Convention on Human Rights exemplies this logic:

"... no one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law".

So, whether or not they might wish it were otherwise, the polis can't just pounce on a fellow and toss them into an oubliette, there to rot away their days.  If you commit offences punished by a determinate jail term, and serve out your sentence, you cannot be swooped upon and returned to your cell.  If you are a life prisoner released on licence, there are processes of adjudication and deliberation on your condition.  For most, these are consoling thoughts. For Robert Halfon, the Tory MP for Harlow in Essex, however, it is otherwise. Says Halfron...

"The release of al-Megrahi marked the low point of Britain's appeasement of Gaddafi. We should make every effort to bring him back so he can spend the rest of his time in prison where he belongs. Or he should spend the rest of his life in a Libyan jail, or be extradited to the US. We should do everything in our power to make sure he is in jail, rather than living a life of luxury."

Our old friends, the American senators - joined by Republican would-be President, the ludicrous Mitt Romney - are hullabalooing for Megrahi's extradition to the United States. Says Mormon Mitt...

"It is my hope that Libya will now move toward a representative form of government that supports freedom, human rights, and the rule of law . As a first step, I call on this new government to arrest and extradite the mastermind behind the bombing of Pan Am 103, Abdelbaset Mohmed Ali al-Megrahi, so justice can finally be done..."

You'd think these American politicians had quite forgotten the Camp Zeist trial, which convicted Megrahi in early 2001 and the Fifth Amendment to the U.S. Constitution, which provides that "no person be subject for the same offense to be twice put in jeopardy of life or limb".  Ironically enough - not Mitt's strong suit, I suspect - the general prohibition on double jeopardy is recognised as a human right and and an important expression of the rule of law at work (albeit with creeping exceptions). Not only is it recognised in the American constitution, but is enshrined in key international human rights instruments. The International Covenant on Civil and Political Rights, for example, states that:

Article 14(7). No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

I don't know enough about U.S. law to take a decisive view of what the American Federal authorities can or cannot do, but the same considerations I outlined at the beginning apply.  If folk are to be imprisoned, the authorities require a basis in law to do so. Either that, or the government is forced to abandoned law, and turn kidnapper.  But what about the British prospects? Halfron seems to be labouring under the impression that all one has to do is present Megrahi at the portals of HMP Greenock, and the governor would immediately give the man his old bunk back and twist the key in the lock. Many folk have been discussed whether Megrahi should be returned to a Scottish jail. Few have asked the more basic question, can he be returned to prison anyway?

For an answer to that question, we have to dip into the Scots Law governing his release. Megrahi was released from jail under the Prisoners and Criminal Proceedings (Scotland) Act 1993, passed by the Tories at Westminster during John Major's premiership.  A few preliminary points of interpretation. Firstly, under the 1993 Act, a "short term sentence" is one less than four years, while a "long term sentence" is more than four years.  A conviction for a single murder nets you a mandatory life sentence. For obvious reasons, Megrahi's conviction for causing 270 deaths also subjected him to a life sentence.  Under section 3 of the 1993 Act, Scottish Ministers are empowered to release prisoners on licence "if satisfied that there are compassionate grounds justifying the release on a person serving a sentence of imprisonment". As we all know, Kenny MacAskill granted Megrahi's application in 2009, releasing him subject to these licence conditions.  For a life prisoner, the licence applies until their death [s11(2)], but the Minister can subsequently insert vary or even cancel conditions of licences.  But what if these conditions are breached by the released recidivist? What if Megrahi fled to some other address, or some other country, failing to have informed by contact in East Renfrewshire Council ahead of time? Under the 1993 Act, nothing necessarily. There is nothing immediate about licence breaches resulting in re-incarceration. Revocation of licences are governed by section 17 of the 1993 Act.  A superficial reading of 17(1)(b) in the context of the Megrahi case is liable to excite. Where...

"... a short-term prisoner has been so released, the Secretary of State may revoke his licence and recall him to prison if satisfied that his health or circumstances have so changed that were he in prison his release under section 3(1) of this Act would no longer be justified."

Here's where it pays to be pernickety. Remember, a short term prisoner is one sentenced to serve less than four years in prison. While Tommy Sheridan could be released from prison on compassionate grounds if he suffered from debilitating scrotal arthritis, and be recalled this section if his ailment cleared up, Megrahi cannot. Admittedly, this seems rather paradoxical, but there it is. So what about life prisoners? Their licences can be revoked under section 17(1)(a), which reads as follows. Where...

17 (a) a long-term or life prisoner has been released on licence under this Part of this Act, the Secretary of State may revoke that licence and recall him to prison— (i) if recommended to do so by the Parole Board; or (ii) if revocation and recall are, in the opinion of the Secretary of State, expedient in the public interest and it is not practicable to await such recommendation.

So the Parole Board might recommend to MacAskill that he recall Megrahi's licence. Absent such an intervention, it MacAskill could unilaterally invoke 17(a)(ii) citing the public interest to recall the licence, allowing Megrahi to be lawfully detained, returned to lock-up and considered "unlawfully at large" while roaming free. "Public interest" is clearly a broad and amorphous concept but notice that "and" in the middle of the provision. I cannot immediately envision the circumstances in which the speediness which justifies the minister o'erleaping the Parole Board would apply in Megrahi's case, but it could conceivably occur. What then? Unlike compassionate release, the Minister has rather less say about returning released prisoners to jail. Even if the Minister revoked his licence under this section, the parole board still gets the final say. The case is then referred to them, and the Minister is constrained to give effect to their direction. You could be a bitter, birching Tory Minister of Justice, minded to consign the prisoner to condign oblivion in your cells, but the final disposal is beyond your control. Where the Parole Board agree with the Minister, the recalled prisoner is returned to their cell. If not, they are re-released. 

What all this serves to demonstrate is that it isn't exactly straightforward to give effect to the desire to shove Megrahi back in prison. Even if Megrahi breached his conditions of licence in Libya, there is no automatic requirement that his licence be revoked. Human life is messy, after all. Even more so in a part of the world presently embroiled in turmoil and a political revolution. If Megrahi was arrested by Libyan forces and took up residence in a prison without telling his social worker in East Renfrewshire ahead of time, that would be in breach of his licence - but hardly a particularly just basis to revoke the liberty granted, is it?  Via Jonathan Miller QC's piece from 2009, I read with interest this Scottish Prison Service circular from 2005, on compassionate release...

"If a prisoner who has been granted compassionate release because of a terminal illness or other medical condition makes an unexpected recovery, consideration would be given to revocation of the licence and the prisoner's recall to custody."

However, not having perished is hardly a recovery, is it? The elementary fact is this, even if an unwilling Megrahi were hauled back to Scotland, you can't just deliver him back into jail like a letter popped through the letterbox.  There are process which, thankfully, are not subject to the whims and preferences of Robert Halfron or David Cameron. Whatever their demands, and the bilious burblings from across the Atlantic, it is perfectly plausible that Megrahi's more telling punishment would not be re-imprisonment, but being forced to live in Newton Mearns...

"I am desperate for the truth of the matter to come out..."

A few days ago, I drew your attention to the fact that Holyrood's Public Petitions Committee have decided to sustain the parliament's examination for the Justice for Megrahi public petition, by forwarding it to their colleagues in Holyrood's Justice Committee. The petition calls...

"...on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

I have only now been able to get sight of the official report of the Petitions Committee meeting on the 28th of June, in the course of which they came to this decision. Their discussion was brief and consensually adopted. Many members are new faces from the Nationalist benches. While the trenchant and unstinting Aberdonian, Kevin Smith, couldn't remember whether or not he'd signed the petition himself - clearly has an eye for detail, wur Kevin - it was a fellow Nationalist member, Bill Walker (above, right), who most vehemently contended for the parliament's continued examination of the circumstances surrounding the calamity over Lockerbie and the character of the criminal investigation and proceedings which followed..

Justice for Megrahi (PE1370)

The Convener (David Stewart) (Labour): PE1370 is on justice for Megrahi. I refer members to the clerks' paper and invite comments from the committee.

Nanette Milne (Tory): I find this to be a difficult petition to deal with. There is an option to get an update from the Scottish Government on its plans for legislation regarding the Scottish Criminal Cases Review Commission. Beyond that, however, I think that the committee has gone as far as it can with the petition. I know that I have been a bit reluctant to refer petitions to subject committees, but this is clearly one to refer to the Justice Committee.

Sandra White (SNP): It is an extremely important petition on a subject that people have various views on. It could be controversial, but I think that it is an honest petition that is seeking the truth. I was not a member of the previous session's committee, which deliberated on the petition. Would it be sufficient for the Public Petitions Committee to ask the Scottish Government to open an inquiry, or would it be better to send the petition to the Justice Committee with the recommendation that the Government pursue an inquiry? My problem is that I do not want it to get hidden in the Justice Committee stuff and not come back out again.

Kevin Stewart (SNP): I agree that the petition should go to the Justice Committee. As a new member of Parliament, I should probably declare an interest in that I may have signed the petition—I am not quite sure. If I did not, I probably did not see it, otherwise I would have signed it. It is a matter for the Justice Committee and we should allow that committee to have a clear look at it.

The Convener: I should have mentioned that Jim Swire and Robert Forrester are present. I thank them for the comprehensive work that they have done on the petition and for referring us to the interview with Gareth Peirce, "The Quiet Storm", which made fascinating reading.

Bill Walker (SNP): I am desperate for the truth of the matter to come out. It is fundamental that the truth come out, and we should do everything that we can to help it to come out. I agree with Kevin Stewart that the petition should go to the Justice Committee, although I was a bit concerned when Sandra White said that it might get buried in that committee's paperwork. The terrible events happened a long time ago so we must get to the truth sooner rather than later. Let us not let the Justice Committee bury it.

The Convener: I cannot make any predictions about other committees, but given Christine Grahame's interest in the matter, I would be extremely surprised if the petition did not have a high profile in the Justice Committee.

John Wilson (SNP): You said it, convener. The interest of the new convener of the Justice Committee in the matter will do the petition justice and ensure that the issues that have been raised are examined. The previous Public Petitions Committee tried to deal with the petition although it came to the committee late in the previous session. However, the responses that we have received and the further evidence that has been submitted by the petitioners indicate that the matter is for the Justice Committee to consider. The petition raises a number of concerns about who takes responsibility for what decisions in relation to the process of appeals within the Scottish criminal justice system, so I would be happy to see it passed on to the Justice Committee.

The Convener: If no member wishes to make any further comment, we will move on. It is agreed that we will refer the petition to the Justice Committee under rule 15.6.2?

Members indicated agreement.

Source.

Lockerbie Case in Holyrood II...

Delayed recognition, but I dare say that some of you might not have noticed interesting progress in Holyrood this week, on the Justice for Megrahi petition. I was waiting for the parliamentary authorities to upload the official report to get a read of what committee members actually said in the course of their deliberations - but it has not yet materialised. Ho hum. So I thought I'd crack on anyway, while the development is still remotely contemporary. By way of background, the petition was presented to the parliament's Public Petitions Committee in the last session by Dr Jim Swire, Robert Black QC and other and despite some technical hitches in the process, attracted some 1,646 signatures. The petition calls...

"...on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

After taking evidence from the petitioners, the Petitions Committee wrote to the Scottish Government, asking three discrete questions:

Will you open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988 as called for by the petitioner and for the reasons given in the petition?

If not, will you provide a detailed explanation why not, specifying whether there is any legislation which would prevent you from holding such an inquiry, what this legislation is and how it prevents?

Who would have the power to undertake an inquiry in the terms proposed in the petition?

The government's answer to all three questions was basically - no. Ministers responded in the following terms towards the end of January this year:

The Cabinet Secretary for Justice made clear in his response of 16 September to a Parliamentary Question (S3W-35844) from George Foulkes on this issue that the Government have no plans to initiate an inquiry on this issue.

The Government does not doubt the safety of the conviction of Mr Al-Megrahi. He was tried and convicted by a Scottish court before three judges and his appeal against conviction, heard by a panel of five judges, was unsuccessful. A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi. The conduct of his defence during his trial and the appeals, including his decision not to give evidence at trial and the decision to abandon the second appeal, was entirely a matter for Mr Al-Megrahi and his legal advisors.

The Government’s view is that the petition is inviting the Scottish Government to do something which falls properly to the criminal justice system i.e. inquire into whether a miscarriage of justice has taken place. The criminal justice system already provides a mechanism for that to happen. The fact that Mr Al-Megrahi chose to abandon his second appeal rather than pursue it is entirely a matter for him and it would not be appropriate for the Scottish Government to institute an inquiry as a result.

The Inquiries Act 2005 provides that, to the extent that the matters dealt with are devolved, and criminal justice is devolved, the Scottish Government would have the power to conduct an inquiry. However, the wide ranging and international nature of the issues involved (even if the inquiry is confined to the trial and does not concern itself with wider matters) means that there is every likelihood of issues arising which are not devolved, which would require either a joint inquiry with or a separate inquiry by the UK government.

Separately, the Scottish Government intends to bring forward legislation to allow the SCCRC to publish a statement of reasons in cases such as Mr Al-Megrahi's where an appeal is abandoned, subject of course to legal restrictions applying to the SCCRC such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities.

The Committee also received correspondence from such varied bodies as the Lord Advocate and the Scottish Criminal Cases Review Commission, asking the latter whether they can re-open an abandoned appeal before the Court of Criminal Appeal. On the 28th of June, the freshly constituted Public Petitions Committee agreed "to refer the petition to the Justice Committee under Rule 15.6.2 for further consideration".  Under the parliament's standing orders, the Committee could have responded in a number of ways. It might have unilaterally closed the petition [Rule 15.7]. Indeed, Holyrood's Justice Committee may decide to do so in due course. One significant aspect of this development is that the chair of the committee to which the petition has been referred, the SNP's Christine Grahame, has gone on record on several occasions, questioning Megrahi's guilt. Of course, by no means does the petition's continuing survival in Holyrood suggest that any independent public enquiry will be held into the case. What it does mean, however, is that questions about the evidence against Megrahi and his culpability for the atrocity over Lockerbie will continue to find voice the Scottish public sphere, in the months to come.

Labour hypocrisy? Gray sidelined? Or daring to disagree...

22nd January 2009; Foreign and Commonwealth Office Submission - Contingency Planning

"We now need to go further and work actively, but discreetly, to ensure that Megrahi is transferred back to Libya under the PTA or failing that released on compassionate grounds."

This sentence from the Megrahi correspondence, released by Sir Gus O'Donnell yesterday, has plainly left Scottish Labour in an awkward position. The Maximum Eck, always one with a lug for a telling phrase, styled it "Labour's organised hypocrisy". On Newsnicht yesterday, the BBC's Isabel Fraser presented Labour's improbable emissary, Richard Baker, with three options. Given their full-throated denunciation of Megrahi's release in 2009, and given the evidence that London Labour and Her Majesty's Government were all for it, was he a hypocrite? Alternatively, were Iain and the Shades of Gray consciously or casually sidelined by their party leadership? Finally, given this evidence - which by the by largely confirms suspicions entertained at the time - would Baker own up to disagreeing with the former Labour Government and turn his slurry-cannon of disparagement over them with the same vim and vigour he and his Gray foreman employed to soak MacAskill? Understandably enough, Mr Baker wasn't frightfully keen to accept any of these options and resorted to stammering, defensive circumlocution, as is traditional. 

So what is the answer? Some preliminaries which we ought to bear in mind. At the time, I expressed some doubts about the idea that all Labour Members (save for the supportive Malcolm Chisholm) wholeheartedly deplored the release. Similarly, I struggled and still struggle to believe that every SNP parliamentarian felt wholly supportive of MacAskill's decision. You will recall that the contemporaneous measures of public attitudes suggested sharp but close divisions of opinion. Wouldn't it be astonishingly improbable, a miraculous coincidence, to discover that those ambivalent public attitudes in the wider population aligned exactly with party political divisions in the parliament? It doesn't seem probable. This, it seems to me, is strongly indicative of the extent to which the subsequent furore was refracted through the prism of party political interest. As a consequence, I'm sure there were a fair few compromised consciences on both sides. Even bearing that in mind, Isabel Fraser's question is clearly pertinent. Here is my sense of things.  

Did Scottish Labour figures know what their government colleagues in Westminster were up to? 

Probably not. 

Was keeping them in the dark politically useful for the Labour Party?

Absolutely. While they may not have been informed about the machinations of the Foreign Office, it was clearly a politically productive ignorance. Baker's protestations that he hadn't the foggiest what his London Labour colleagues views were seems decidedly artificial, and their ignorance must have been an effort of will to maintain. While procedurally appropriate before the decision was made, I find it unconvincing that the Westminster Government maintained its conspicuous silence due to their pious observation of inter-governmental politesse. Qui tacet consentire viditur.

Did Scottish Labour know what their companions thought about it?

Probably not.

Should they have known and been able to deduce those views? 

Absolutely.

Was the failure to discover those views part of a conscious attempt to have it every which way, achieving foreign policy desires while allowing the Swine Purvuiant and the Snark to crucify Kenny MacAskill?

Wi' oot a doot. While the Scottish Labour leadership may have indulged in a species of mental reservation and substantive if not fully conscious hypocrisy, the muteness of their London Labour leaders has no such casuistic excuse. Taken at a party-wide level, the answer to Isabel Fraser's question is likely all three. At the level of Baker and Gray, the indictment is clear. They find the idea of releasing a sick man from prison on compassionate grounds appalling, but are happy to shrug and um and aw when they discover their fellows favoured release, purely for geo-political purposes. Spines suddenly extracted at the prospect of criticising their fellow Labour folk, their furious opprobrium is transformed into floppy diffidence. Colour me stunned. And the upshot? Firstly, this makes it decidedly unlikely that Scottish Labour will attempt make the release into an explicit Holyrood campaign issue, as I once wondered if they might. Secondly, I'm not terrifically convinced that this latest Lockerbie case reappearance will particularly assist the Nationalists, despite casting Gray and Baker and Labour in an unseemly light.  Most folk, I'd submit, are likely to be suspicious  about the idea that a Labour Justice Minister in Holyrood would have been immune to the views of their London colleagues, whether communicated through formal or informal channels. "If I was First Minister..." is an easy phrase to mouth, particularly when you aren't FM.

That said, my suspicion is that of those folk whose votes in May will be determined by the release - and it is difficult to say how many, if any, this might be - will nevertheless focus on the actual decision, which was made by Scottish Ministers. In that general context, remember this Ipsos-MORI poll from August 2010.  Respondents were asked:

Question: LOCKERBIE. Moving on, on Friday, it will be one year since the Scottish Justice Secretary, Kenny MacAskill, announced the release of the man convicted of the 1988 bombing of the Pan Am aeroplane over Lockerbie in which 270 people died. To what extent do you agree or disagree with the decision to release him? Do you..?

1. Strongly agree ~ Total 20%; Men 25%;  Women 16%
2. Tend to agree ~ Total 15%; Men 17%; Women 14%
3. Neither agree nor disagree ~ Total 8%; Men 6%; Women 9%
4. Tend to disagree ~ Total 9%; Men 8%; Women 10%
5. Strongly disagree ~ Total 45%; Men 42%; Women 47% 
6. Don't know ~ Total 3%; Men 1%; Women 4%

It is impossible on the basis of this data to say how attitudes towards the release might affect voting behaviour. A fuller exposition of these figures is to be found in my earlier post.

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.

SG: No Lockerbie Case inquiry...

Belated, but worth mentioning that the Scottish Government has finally replied to Holyrood's Public Petitions Committee on its attitude towards an independent inquiry into the Lockerbie Case. After their November session, taking oral evidence from Jim Swire and others on the Justice for Megrahi petition, the Committee posed three questions. The petition itself calls:

"...on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

Robert Black QC has described the following response as a "wafer-thin pretext for inaction". Judge for yourselves.

PUBLIC PETITIONS COMMITTEE: PE1370

Thank you for your letter of 12 November 2010 which asks the Government the following three questions in respect of this petition. I apologise for the delay in replying.

Will you open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988 as called for by the petitioner and for the reasons given in the petition?

If not, will you provide a detailed explanation why not, specifying whether there is any legislation which would prevent you from holding such an inquiry, what this legislation is and how it prevents?

Who would have the power to undertake an inquiry in the terms proposed in the petition?

The Government’s response to these questions is as follows:

The Cabinet Secretary for Justice made clear in his response of 16 September to a Parliamentary Question (S3W-35844) from George Foulkes on this issue that the Government have no plans to initiate an inquiry on this issue.

The Government does not doubt the safety of the conviction of Mr Al-Megrahi. He was tried and convicted by a Scottish court before three judges and his appeal against conviction, heard by a panel of five judges, was unsuccessful. A second appeal, following a referral from the Scottish Criminal Cases Review Commission, was abandoned by Mr Al-Megrahi. The conduct of his defence during his trial and the appeals, including his decision not to give evidence at trial and the decision to abandon the second appeal, was entirely a matter for Mr Al-Megrahi and his legal advisors.

The Government’s view is that the petition is inviting the Scottish Government to do something which falls properly to the criminal justice system i.e. inquire into whether a miscarriage of justice has taken place. The criminal justice system already provides a mechanism for that to happen. The fact that Mr Al-Megrahi chose to abandon his second appeal rather than pursue it is entirely a matter for him and it would not be appropriate for the Scottish Government to institute an inquiry as a result.

The Inquiries Act 2005 provides that, to the extent that the matters dealt with are devolved, and criminal justice is devolved, the Scottish Government would have the power to conduct an inquiry. However, the wide ranging and international nature of the issues involved (even if the inquiry is confined to the trial and does not concern itself with wider matters) means that there is every likelihood of issues arising which are not devolved, which would require either a joint inquiry with or a separate inquiry by the UK government.

Separately, the Scottish Government intends to bring forward legislation to allow the SCCRC to publish a statement of reasons in cases such as Mr Al-Megrahi's where an appeal is abandoned, subject of course to legal restrictions applying to the SCCRC such as data protection, the convention rights of individuals and international obligations attaching to information provided by foreign authorities.

Karen Rodger

Committee Liaison Officer

Source and further commentary.

Those Lockerbie case cables on Megrahi...

The Guardian is now publishing wikileaked U.S. cables relating to the Lockerbie Case, in particular the processes surrounding the compassionate release of Megrahi. It is late and I haven't had the time yet to examine, in detail, what these documents might reveal, what public truths they might avow or rebut - and who they might embarrass. More later no doubt. For now, here are the relevant cables touching on the period before and immediately following the release which have been published thus far:

From Friday, 24 October 2008 SUBJECT: PAN AM 103 BOMBER HAS INCURABLE CANCER; LIBYANS SEEK HIS RELEASE

From Wednesday, 28 January 2009 SUBJECT: PAN AM BOMBER AL-MEGRAHI: THE VIEW FROM TRIPOLI 

From Sunday, 23 August 2009 SUBJECT: QADHAFI PERSONALLY WELCOMES LOCKERBIE BOMBER 

From Monday, 24 August 2009 SUBJECT: SCOTTISH PARLIAMENT HOLDS EMERGENCY SESSION AS DEBATE OVER MEGRAHI DECISION REACHES FEVER PITCH

From Wednesday, 28 October 2009 MFA OFFICIAL: QATAR'S INVOLVEMENT IN AL-MEGRAHI RELEASE STEMMED FROM ARAB LEAGUE REQUEST TO QATAR AS ARAB LEAGUE PRESIDENT

Titania & Bottom...

Who says Americans want irony? Last night, I finally got around to reading a few of the secret and confidential U.S. diplomatic cables which have been released by Wikileaks thus far. This is no overwhelming gush of information - thus far, it seems very much dribs and drabs, only 281 of 251,287 at the time of writing. This presumably calculated to maximise the coverage successive revelations will receive. It is well worth reading the unexpurgated Cable No. 08BISHKEK1095 from October 29th 2008 in full. In it, U.S. Ambassador Titania Gfoeller recounts what transpired at a brunch meeting with a certain horse-faced Bottom. There was no post-equine come down, no cries of "My Oberon! What visions have I seen! Methought I was enamour'd of an ass."  By now, you will all have heard about Prince Andrew Windsor's reactionary, extraordinarily clichéd bore-for-Britain routine in the Kyrgyz Republic and Titania's incredulous assessment of his pontification and sub-pub-tedium. Our national bard Robert Burns identified the character type, many moons ago:

Ye see yon birkie, ca'd a lord,
Wha struts, an' stares, an' a' that;
Tho' hundreds worship at his word,
He's but a coof for a' that:
For a' that, an' a' that,
His ribband, star, an' a' that:
The man o' independent mind
He looks an' laughs at a' that.

What I found surprising about this cable - and others - is its gadfly, ironic tone, what might even be described as its literary style. I hadn't given much thought to what sort of values would inform the prose of (previously) sealed communities of diplomatic practice. I suppose I'd imagined a rather more bureaucratic, terse, lifeless form of composition.  Domestically speaking, Wikileaks have currently only published a couple of cables from the London Embassy but I imagine we can expect a political intelligence document or two, describing the state of Britain and thoughts on prominent political figures, past and present. Similar  assessments of the political fortunes and temperaments of Angela Merkel's German coalitions, Sarkozy's fate in France, Prime Minister Erdogan in Turkey  and others have already been published. For the narcissistic Scot, this raises the tantalising prospect that, given the potential geo-political significance of Scottish independence, we may yet read some sort of cable from 2007 or subsequently which touches on wurselves. Scottish legal magazine The Firm have confirmed that "sources close to the UK Government" have told them that the wiki-leaked data includes "significant Lockerbie material". It is exceedingly difficult to determine what this might mean, whether we are talking about the explosion, the trial - or discussion of Megrahi's subsequent compassionate release. Candid assessments, to be awaited with interest.

Lockerbie case in Holyrood...

There is one fascinating passage which I neglected to mention in my Sunday review of David Torrance's biography of Alex Salmond, Against the Odds. It is particularly worth highlighting today, as the Scottish Parliament's Public Petitions Committee sits this afternoon to consider the Justice for Megrahi petition, which calls:

"...on the Scottish Parliament to urge the Scottish Government to open an independent inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988."

The petition received 1646 signatures - including mine - and will be spoken to today by Jim Swire, whose daughter Flora perished in the tragedy; Robert Black QC, who many of you will undoubtedly have encountered on his Lockerbie Case blog; former police officer Iain McKie and co-founder of the campaign committee, Robert Forrester. Although the title of the petition suggests a particular view of the guilt of al-Megrahi, and its founder members are folk who believe him to have been wrongly convicted, the petition itself is ecumenical. If doubts are harboured, outstanding questions remain - that is a real issue for those people who believe he was properly convicted. There are others - including myself - who are cautious about taking a strong position on the question of Megrahi's guilt. Not having seen the evidence, one ought to be shy of certainties. That ought to include all certainties, including the idea that the judges of the High Court of Justiciary who tried him are exempt from human error, that all the relevant evidence was presented, that doubts were justly explored. Although not a figure I'd normally expect to borrow the words from my own mouth, Cardinal Keith O'Brien pretty faithfully articulates my own concerns and why, like him, I support the independent enquiry Holyrood is being petitioned to conduct today:

"Earlier this year, I described the murder of 243 innocent people on board Pan Am flight 103 over the town of Lockerbie on 21 December 1988 as an act of unbelievable horror and gratuitous barbarity. Many legal consequences flowed from that act culminating in the conviction of a Libyan citizen, Abdelbaset Ali Mohmed al-Megrahi for the bombing. From the moment that verdict was announced, voices have been raised in protest. Over the years the clamour has grown amongst, lawyers, politicians, academics and growing numbers of ordinary citizens that the verdict amounted to a miscarriage of justice.

I do not claim to have examined all the evidence in this case, far from it, but I do claim to be increasingly concerned about the reputation of the Scottish Justice system. I have defended publicly the system of justice in this country and have done so because it enjoys my support and confidence. Global accusations of wrongful conviction made against our system must be dealt with. Left unheeded they will weaken the administration of justice in Scotland by casting doubts on its probity and ability. I believe the best way to remedy this is for the Scottish Parliament to launch an independent inquiry into the 2001 conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103.

Regardless of the outcome I believe Scotland’s Justice System would be strengthened by such a process. Either a conviction will be upheld and the process vindicated or it will be struck down, demonstrating to the world that Scotland has the wisdom and compassion needed to rectify its mistakes. In either event I will willingly accept the outcome.”

But back to Salmond and Torrance. In some quarters, it is often assumed that Megrahi's compassionate release was predicated on an unavowed belief that the man was innocent. When he was released from prison, the most familiar argument I encountered was a confused one - but reduced to its bones it ran - if he was innocent he should go free, if he was guilty he should have stayed in prison. At the time, I suggested that this was to confuse justice with mercy, obliterating the particular features of the latter. Interestingly, Torrance presents evidence that Salmond himself seems to have made no such conflation, arguing that:

"... Salmond most likely believed that al-Megrahi was guilty as charged. Indeed, the BBC journalist James Cook recalled asking the First Minister about his own view shortly after the release. Salmond replied that one of his first actions on coming to office had been to request all the papers relating to Lockerbie which, having read them, led him to believe al-Megrahi's conviction was sound." (Torrance (2010) Salmond Against the Odds, p. 264.)

The first hour of the Committee's time was taken up with discussion of the petition today. The panel's evidence can be seen here:

US Senate hearing on Megrahi release...

The other day, I found myself wondering what those valiant seekers after truth, Senators Menendez, Lautenberg, Gillibrand and Schumer were up to these days. There was plenty of coverage of Scottish and Westminster Governments' refusals to be put to the question by the Foreign Affairs Committee of the American Senate on the compassionate release of Mr Megrahi. As regular readers will recall, while styling themselves humble servants of clarity, throughout these American politicians have behaved disgracefully, cooking up wild allegations, deliberately misunderstanding processes, impugning the integrity of people unable to respond on the same public terms, persisting in their innuendos once furnished with the correct facts - and generally showing the worst of bad faith. I certainly accept that folk have a right to ask questions, to dispute the justness of decisions, to make up their own minds. I'm no tyrant of the mind and accept that reasonable people can reasonably differ on the compassionate release. A fair-minded exploration of the facts and an attempt to understand what transpired has not been much in evidence here. Instead, Menendez and friends delivered an amateur dramatic troupe's rendition of Arthur Miller's The Crucible. That said, Scottish advocate Jonathan Mitchell QC also makes a series of vital points about the Scots law and policy on compassionate release, including the real possibility that if MacAskill had rejected Megrahi's application, the decision could be judicially reviewed - and reviewed successfully. Moreover, the looming pachyderm in the chamber is the more fundamental question - never raised in the U.S. Senate hearing - whether Megrahi was properly convicted or whether he was the victim of a miscarriage of public justice.

Alex Salmond rebuffed their innuendos and allegations in a series of stingingly clear letters, many of which I've replicated here before for your information. Rather less attention was paid to what actually transpired in Washington in the absence of Hague, Straw, Salmond or MacAskill. Helpfully, our American friends extensively cover and archive the operations of their legislature on C-SPAN, so finding the relevant footage was  rather straightforward. Menendez convened a small clutch of his fellows and took evidence on the 29th of September in the US Senate Foreign Affairs Committee. Needless to say, our friendly senators lived down to expectations...

Eck's latest letter to US senators...

Lest we forget, that fellowship of formidable certainty, that band of speculative doubters Senators Menendez, Gillibrand, Lautenberg and Schumer are still about their alchemical business of transforming tragedy into political stature. Alas, their fortunes do not prosper well. Earlier this week, Foreign Secretary William Hague denied their "investigative team" access to British officials, presumably those with some knowledge of what transpired in the Prisoner Transfer Agreement negotiation. "So much for British hospitality" pouts the New York Daily News. After all their pomp, it is notable that none of the four American politicians have condescended to cross the water themselves and press their cases and pursue their doubts - however eccentric or conspiratorial - in person. No doubt they are busy folk, given the American Congressional Election in November. 

Presumably as a consequence of their reluctance to substantiate their allegations in person, the Senators' questing creatures will not meet Scottish Ministers but instead will merely encounter officials. I imagine these may be staff associated with the Cabinet Secretary for Justice with some insight into the compassionate release process. No doubt to their significant illumination, the group will also meet Richard Baker, Labour's liveried Swine Pursuivant in Justice matters. Heaven knows what he hopes to tell them. Still, a cup of tea and a digestive biscuit is always welcome. Presaging these encounters, Alex Salmond sent the following letter to all four Senators late last week. In the spirit of public record, I copy the correspondence below. It is easily the most combative of Eck's epistles to this gang of four and for those of us who have looked with scorn on their demeaning speculations and stubborn  conspiracy-theorising clowneries, its politely direct but sternly and frankly rebuking terms make for quiet joy.

10 September 2010

Dear Senators Menendez, Gillibrand, Lautenberg and Schumer,

Thank you for your letters of 19 and 20 August 2010.

Your letter of 19 August attempts to suggest that there is circumstantial evidence that commercial interests played a role in the release of Al-Megrahi. This seems to be a considerable weakening of your original position, but is still totally wrong. There is no evidence, circumstantial or otherwise, that links decisions made by the Scottish Government to commercial interests. Indeed, the substantial evidence that does exist shows that the Scottish Government specifically rejected any attempt to bring commercial or business considerations into the decision-making process on compassionate release, and stated that decisions would be based on judicial grounds alone.

I am also concerned that, in your letter of 20 August, you once again quote from letters published by the Scottish Government setting out the representations that were made to us, without drawing attention to the responses which make clear that commercial considerations would play no part in the decision-making process. To then accuse the Scottish Government of selectively publishing correspondence, when it is you who are selectively quoting from material published proactively by the Scottish Government, significantly undermines your credibility.

The evidence of commercial influence that does exist relates to the Prisoner Transfer Agreement (PTA) that the UK Government signed with Libya. Indeed, you quote Saif Gaddaffi as publicly commenting that the commercial issues were related to the PTA.

As I highlighted in my letter of 2 August, it was the Scottish Government, on 7 June 2007, which first drew attention to the UK Government's negotiations with the Libyan Government, highlighting our strong opposition to them. I asked you, in my letter of 15 August, for copies of any public comments on this important issue which you may have made at the time, either individually or collectively. It appears that when the Scottish Government was using every means at its disposal to oppose the PTA between the UK and Libya, you were silent.

You refer to extensive correspondence between the Scottish and UK Governments regarding the PTA. Once again, however, you fail to mention that this shows the Scottish Government consistently opposing the signing of any PTA unless it specifically excluded AI-Megrahi. This, and the fact that the application for prisoner transfer was rejected, fatally undermines your line of argument.

You refer to comments that the Scottish Government would have to deal with the consequences of the UK's decision not to exclude AI-Megrahi from the PTA with Libya. This is a statement of fact. The UK Government had gone against our wishes and left the Scottish Government to deal with any application for prisoner transfer that was submitted, a situation that it is clear we were and are very unhappy with. You suggest that it is uncertain how the Scottish Government dealt with those consequences. This is simply not true. The consideration and rejection of the prisoner transfer application are matters of public record and to pretend otherwise, as you attempt to do, appears very contrived.

Your letter of 19 August goes on to conflate the process of application for prisoner transfer with the quite separate process of applying for compassionate release. I have explained these separate processes at some length in our previous correspondence. It is of great concern that, despite these explanations, you seem unable or unwilling to understand the nature of these separate legal processes.

On some of the points of detail you raise, I would note that the only redaction from the letter of 22 June to the UK Foreign and Commonwealth Office was the name of the UK Government official to whom it was addressed. Permission to publish this name has been refused by the UK Government and, in any event, has absolutely no bearing on the facts of the matter. In the 16 July 2009 letter from the Cabinet Secretary for Justice to the UK Foreign Secretary, the only passage that has been redacted is due to the US Government withholding permission to release material relating to it. Finally, the letter from the Qatari Minister which was attached to correspondence from the Qatari Embassy in London dated 31 July 2009 is available on the Scottish Government website. The letter from Khalid Bin Mohamed al-Attiyah, dated 17 July 2009, was also received direct and therefore appears twice in the correspondence on the website.

Given the consistent and compelling information I have now provided, I would ask you to confirm you accept that:

The Scottish Government had no contact with BP in relation to decisions made about AI-Megrahi; The Scottish Government consistently opposed the signing of a PTA between the UK and Libyan Governments unless AI-Megrahi was excluded; and The Scottish Government made the decision on compassionate release on judicial grounds alone and made this clear to those who made representations to us.

If you are not able to accept these irrefutable and well-evidenced facts, which I have set out clearly in our correspondence and are supported by extensive documentation, it calls into question your ability to conduct any credible and impartial investigation into these matters.

I am aware that staff from Senator Menendez's office have been in contact with my office to try to arrange meetings with Scottish Government Ministers and officials. As I have said previously, the Scottish Government has nothing to hide and nothing to fear from any properly constituted inquiry, but the Scottish Government is rightly accountable to the Scottish Parliament and not to the US Senate. Nevertheless, as a matter of courtesy, I would be willing to make appropriate officials available to meet staff from your offices should they decide to visit Scotland. The purpose of any such meeting would be to provide whatever further background information may be helpful to your understanding of these matters. Officials would not be giving evidence in any formal context.

There are other points of detail in your 19 August 2010 letter, but none of these raises any new issues of substance or challenge the view that the decisions the Scottish Government made in relation to AI-Megrahi were made with integrity and according to the due process of Scots Law.

I believe that the Scottish Government has given every assistance to you and to the Foreign Relations Committee on this matter and, as noted above, I am content to offer the courtesy of an official level meeting if staff from your offices visit Scotland. However, as your recent letters raise no new issues of substance, I am now drawing a line under this correspondence.

ALEX SALMOND

Any Questions? Crushingly fatuous answers...

I can understand pandering to an audience, up to a point. With all the room's attention fixed upon you, rapt attention turned to whatever idle toadstool thought you happen to have recently cultivated, it takes an honest spirit, fundamental decency, sincerity or practice not to assume drawlingly provocative airs, overheating the milder rhetoric of one's mind and generally turning into a confounded ninny. Alternatively, of course, if you are already a blustering gobjobber, full of egotism and demi-profound maunderings, the attention is likely to induce an excruciating concentration of your ordinary vices. So it seems on Friday's edition of Any Questions? on BBC Radio 4, excerpts of which have been inflaming corners of Scottish opinion since*. Two speakers in particular have quite properly invited a contemptuous analysis, Baroness Ruth Deech and Douglas Murray. The question concerned the release of Megrahi. Clearly the panellists didn't know much about the subject. Modest people, sensible people - might have decided to reserve judgement, with a nod to the complexity of the issues, perhaps lingering on one known element or another. There is no shame in a shrug. Unfortunately, a surfeit of modesty was not in evidence. In contrast, modest command of fact and inflammatory opinions were to be found in abundance. Sans informed opinion, both Murray and Deech took the opportunity to give free rein to their prejudices in the most depressing and personally discrediting fashion. For those gentle spirits, unwilling or unable to endure listening to the exchange themselves, here is a transcript of the panel's full remarks.

Eddie Mair: “Was the government sensible to release the Lockerbie bomber?”

Baroness Ruth Deech: “No it wasn't sensible and it was wrong. First of all because of the health issue and he wasn't properly checked up. Though I know that Ronnie Biggs is still alive, is he not? And we've been told I don't know how many times that he is at death's door and he was let out.”

Mair: “- Is continuing human life not something to celebrate.”

Deech: “Erm. I'm very glad that people live but if you start letting out a prisoner, everyone who has a dodgy medical history - well we'd save money wouldn't we but I'm not sure it is a very good reason. Secondly, there may be doubts about his innocence but Al Megrahi himself or his advisers dropped the appeal. If he was so sure he was innocent, he should have allowed that appeal to go ahead and then he could have walked out a free man with his head held high. And from what I've read there is a fair chance he would have won that appeal and the fact that he didn't pursue it seems to me very odd. But the final reason is I'm fed up with this Scottish waving of nationalism when it suits them. All right, they're devolved. I think they did this just to show the rest of us - oh! that we are independent, we make our own decisions. And it has been very embarrassing to the rest of us and it started me thinking along these lines. If Scotland wants to be independent - OK - be my guest - go ahead. Do what you want (*applause from the audience, cheers*) and please take back with you all the Scottish politicians (*laugher*) starting with Blair and Brown and Campbell. Take them all back and off you go on your own because actually we’re all subsidising them, I think, by way of benefits and all sorts of reasons and if they want to show how independent they are – okay, thank you and goodbye (*applause*)...”

I'll assume, being a generous sort, that the reference to Ronnie Biggs' compassionate release is not here being attributed to the Scottish Government, and is merely being included by Deech by way of thematic inclusion. Briefly, paradoxically, Deech also appears to believe simultaneously that Megrahi would probably have been released on appeal, and somehow, the dropping of his appeal indicates that he was - difficult to say - guilty? She introduces this as the second reason why the release was wrong. She may be proceeding on the mistaken assumption that compassionate release disallowed a further appeal. As we know, it did not. As it is, Alexandrian prowess would be needed to chop Deech's knotted mental fibres and tease out precisely what she is getting at. My guess is that she only had minimal consciousness herself. Her first two points are tepid. She only really reaches a boil, warming to her third theme. The Scots being referred to as "them" on the BBC presents an interesting dilemma for a Scottish nationalist. Deech does this three times explicitly in her rousing, dough-headed peroration, and makes sundry other references to an unexplained community - the we, the us and the our - which I can only assume primarily denotes our English and Welsh friends south of the Tweed. On the BBC's avowed purpose, the public them is a united British public, an encompassing we. The show was recorded in Sutton Coldfied, so we can reasonably calculate that the us in the room is primarily an English we. Radio expands that audience Britain-wide. Deech seems not to notice or not to care. She was rewarded with applause, no doubt sending a glad frisson tingling up her warm spot.  If Deech comes across as a bumptious nag, airing her vacuity in public, Douglas Murray more thoroughly discredits himself in his drawling outburst:

Douglas Murray: “I absolutely agree with that. Megrahi should have died in prison, no doubt about it. And er. The advice ... er ... of the alleged doctors is galling here. Because Kenny MacAskill, the so-called Scottish Justice Secretary – there’s not very much to do if you are the Scottish Justice Secretary in a devolved Scottish Assembly. You can at least read the one important bit of news that’s come across your desk the last five years. The problem that I think the most galling thing about this whole thing is this pretend, horrible, charade building in Edinburgh called the Scottish Parliament and the horrible charade politicians who inhabit it and who occasionally crawl out of the eh darkness and explain something to the to the rest of us as if, as if we we we’ve never thought of moral questions before. I mean Kenny MacAskill and Alex Salmond these horrible grandstanding, em, y’know Mickey Mouse politicians have been parading around talking about unique compassion of the Scottish people. We we are uniquely compassionate no one else feels compassion like me I’m feeling so compassionate at the moment I can hardly bare it (*laughter*) - I think this is appalling and the most appalling way to do politics and no good can come from this institution – the Scottish uh, uh, Parliament and whilst it’s there and the Union continues to fragment while mini-nationalists like Salmond and MacAskill are around – whilst this continues I say no good will come from it and this country will continue to be faced with these ridiculous figures making ridiculous pronouncements which embarrass us all (*more applause*)...”

I despair, truly despair. The remark is honestly too absurd, too excessive to spend too much time rebutting. No serious minded person would have made it in earnest. By making it, Murray foregoes any claim to be taken seriously. This is the self-importance, poseurish flippancy and exaggerated manners of a buffoon vaingloriously striving to coax a titter from his audience. Is he seriously suggesting that the various drafts of the Criminal Justice & Licensing and Sexual Offences Acts which have been on MacAskill's desk over the last years are not serious documents? Does he not find rape, knife crime, rates of incarceration, numbers of police officers and their use of taser technology or serious organised crime offences "important bits of news", as he puts it? How sad, that such a man has grown to find his own ignorance charming. The programme ended on a mirthful note, only slightly abashed by this baseless vitriol...

Maajid Nawaz: Just to say for our Scottish listeners, just to say that we do love you all , you know (*more audience laughter*) I love the Highlands -

Alex von Tunzelmann (chortlingly): They're not listening any more, they've all -

Murray (titteringly): - they've just turned off! -

Nawaz: I just wanted to add something. I think there does have to be a full inquiry into this and there needs to be an enquiry - 

Mair: Into this programme? (*laughter*)

Nawaz: Into the anti-Scottish rhetoric on this programme? No but into the decision made by the Scottish Government but also the involvement of generally of the UK in this, not just the Scots but everyone else as well.

One final thought. I wonder, in part, how Murray and Deech's respective half-Scottishness and riotous Unionist personas contributed to these high-handed, but tellingly implausible condescensions. They are, after all, fairly familiar if extreme examples of a genre fairly regularly appealed to by entrenched Scots Unionist characters like Fraser Nelson, making their way in London and in "British" institutions. I've certainly met folk with similar attitudes before, who feel terrifically urbane and are generally terrifically scornful if discussion turns to nationalist politics. What always strikes me is that in the name of generosity, open-mindedness, non-parochialism - they so often produce snarling diatribes similar in content if not extremity to Murray's comments above.

*My sincere thanks to Bugger (the Panda) for first alerting me to the programme..

Analysis: second poll on Megrahi release...

Yesterday, I suggested that detailed polling data might afford some fascinating insights into the knotty ethical and political conundrum of Megrahi's release and the Scottish public's current attitudes towards it. And hey presto! Today, Ipsos MORI published their poll, undertaken on STV's penny and conducted with over the telephone  with 1,013 respondents from the 16th to the 19th of this month.

The keynotes are pretty plain, with 36% of people continuing to agree with the release, to 54% who now express disagreement with it. Interestingly, in the light of recent discussions on this blog, there seems to be a significant gender differential in opinion ("significant" here, used in its ordinary sense, denoting no added statistical calculation on my part). 42% of men expressed support, while 50% are opposed. Only 30% of female respondents were supportive, with 57% offering critical opinions.  For those who are interested, it is worth delving into the detailed computer tables. While I'd echo Jeff's sentiments that these numbers tell us relatively little about how support or opposition to the release will inform voting in the Holyrood 2011 elections, intensity of opinion might be an important indicator. Here is the breakdown, again along gendered lines:

Question: LOCKERBIE. Moving on, on Friday, it will be one year since the Scottish Justice Secretary, Kenny MacAskill, announced the release of the man convicted of the 1988 bombing of the Pan Am aeroplane over Lockerbie in which 270 people died. To what extent do you agree or disagree with the decision to release him? Do you..?

1. Strongly agree ~ Total 20%; Men 25%;  Women 16%
2. Tend to agree ~ Total 15%; Men 17%; Women 14%
3. Neither agree nor disagree ~ Total 8%; Men 6%; Women 9%
4. Tend to disagree ~ Total 9%; Men 8%; Women 10%
5. Strongly disagree ~ Total 45%; Men 42%; Women 47% 
6. Don't know ~ Total 3%; Men 1%; Women 4%

Evidence, one might think, that the belief that women are the merciful sex is rather misplaced. Once again, I must say I'm surprised at the gendered balance of opinion that this poll seems to capture. Age also presents another interesting picture. The youngest group of respondents seems to have particularly negative attitudes towards the release. Compare 18 - 24 year olds expressed views with the total average:

1. Strongly agree ~ Total 20%; 18 - 24 year olds 5%
2. Tend to agree ~ Total 15%; 18 - 24 year olds 13%
3. Neither agree nor disagree ~ Total 8%; 18 - 24 year olds 11%
4. Tend to disagree ~ Total 9%; 18 - 24 year olds 11%
5. Strongly disagree ~ Total 45%; 18 - 24 year olds 58%
6. Don't know ~ Total 3%; 18 - 24 year olds 2%

Strong agreement with the release makes a sudden leap in the next age category, from the doldrums of 5% to 19% of 25 - 34 year olds, 22% of 35 - 54 year olds and 24% of over 55s respectively. Strong disagreement pitches by over 10% from the its 58% high among the youngest group to 37%, raising again to 46% among 35 - 54 year olds, dwindling somewhat to 42 % among the eldest cohort. On the last page of the tables, support is correlated against satisfaction and dissatisfaction with the Prime Minister and First Minister respectively. I'm no master statistician, but what follows seems to be the percentage of the two politicians satisfied/dissatisfies, according to the poll. I assume there are several "can't decides" left unrecorded in the middle of both extremes of opinion, so the totals combine properly.

1. David Cameron ~ Weighted satisfied ~ 336/1013 (33%)
2. Alex Salmond ~ Weighted satisfied ~ 532/1013 (53%)
3. David Cameron ~ Weighted dissatisfied ~ 482 /1013 (48%)
4. Alex Salmond ~ Weighted dissatisfied ~ 378/1013 (37%)

There is undoubtedly much more information which could be extracted from this data if one took more time over it. Do look for yourself here. Mine is very much a baldy-man's toothcomb sweep, highlighting the points which immediately occurred to me.