Response to MacAskill statement

Below is the statement made by Kenny MacAskill to the Scottish Parliament this afternoon. My comments are in regular typeface at the end of each section.

Presiding Officer, can I once again put on record my sympathy for the relatives of all those lost in the Lockerbie atrocity. Whether it is American and the many other nationalities murdered in the air or Scots lost on the ground, the anguish remains with them constantly.  However, I have been asked by the opposition to make a statement to Parliament on this matter once again and am willing to do so. Both myself and this Government have always sought to be as open and transparent as we can be on all matters relating to Lockerbie. The need for this statement relates to claims made in a book written by a former researcher with Mr Al‑ Megrahi’s legal team.  

Presiding Officer, these claims are wrong. Minutes of meetings relating to Mr Al‑Megrahi were made at the time and have, except where permission was not given by other Governments, been published. A minute of my meeting with Libyan representatives is one of them.  Unlike the claims of recent days, these minutes are not hearsay but an accurate record made at the time.  The minute of the relevant meeting, which took place on 10 August 2009, runs to just 1 page, at least a third of which is taken up by the list of attendees, and contains only five points. It cannot possibly be described as a full minute. You can view it here. The minister should state who produced the minute and whether they did so contemporaneously.

This minute has been in the public domain since September 2009.   It is quite clear and refutes the assertions made. The minute quite clearly refutes nothing. The alleged conversation in question would almost certainly not have been minuted

These records are made by impartial civil servants to ensure there is a proper historic record of important discussions.  See first comment above.

In addition to the minute kept, Presiding Officer, let me be quite clear. Scottish Government officials were present throughout my meeting with Mr Al-Obeidi.  This does not preclude Mr MacAskill telling Mr Obedi that it would be easier for him to grant compassionate release if Abdelbaset dropped his appeal.

At no time did I or any other member of the Scottish government suggest to Mr Obeidi, to anyone connected with the Libyan government, or indeed to Mr Megrahi himself, that abandoning his appeal against conviction would in any way aid or affect his application for compassionate release. This is close to an absolute  denial of Obedi’s claim. However, according to Abdelbaset, Obedi said that MacAskill told him dropping the appeal would make it easier for him to grant compassionate release, not that it would aid or effect the application. This is a subtle difference, which may or may not be significant.

 Let us remember what the two different processes were:  One process was an application under the Prisoner Transfer Agreement, made by the Gaddafi regime.  This required an end to any appeal proceedings before a transfer could happen. The second process was an application for compassionate release made by Mr Al-Megrahi himself, to which no such condition applied. We vigorously opposed the Prisoner Transfer Agreement, negotiated by the then UK Government with the Gaddafi regime, not least because it represented interference in the Scottish legal process. We wrote to the UK Government no fewer than eight times, between June 2007 and September 2008 setting out our opposition. I considered but rejected the application for Prisoner Transfer made in respect of him. And I granted a request for compassionate release submitted by him as I believed it adhered to the laws and values we hold in Scotland. I did so on the evidence before me from the Parole Board, the Prison Governor and Director of Health and Care in the Scottish Prison Service. The Scottish Government had no interest whatsoever in Mr Al-Megrahi’s appeal being abandoned .  Really? Even though it would have dragged the reputation of the Crown Office through the mud?

I had no involvement in Mr Al-Megrahi’s decision to drop his appeal against conviction – that was entirely a matter for him and his legal team. It was, in fact, a matter for Abdelbaset alone.

 However Presiding Officer, one thing that is now clear from this new book as detailed on page 352, is that Mr Al‑Megrahi signed a provisional undertaking to abandon his appeal on March 23 2009. It is clear therefore he was considering dropping his appeal several months before either the two applications were put before me. At the time Mr Al-Megrahi had no way of knowing what my decision would be, either on compassionate release or on PTA.  However, he did know that a prisoner transfer application would have been refused had there been any ongoing legal proceedings. So what? Abdelbaset was desperate and was willing to do whatever it took to get home.

The author of the book John Ashton has himself accepted on BBC radio yesterday that the claim in the book is “hearsay”.     This gives the misleading impression that my radio interview constituted a climbdown. In fact what I said in that interview is entirely consistent with the book, which makes clear that the claim was hearsay.

 This Government has shown consistently we want to be as open and transparent as we can be on all aspects surrounding the Al-Megrahi case.  That is why we have brought forward the Criminal Cases (Punishment and Review) Bill to aid publication of the Statement of Reasons. As assertion by the author is that we, the Scottish Government, do not want the Statement of Reasons published.  Presiding Officer, nothing could be further from the truth.  This legislation, introduced by this Scottish Government, will enable the Scottish Criminal Cases Review Commission to decide whether it is appropriate to disclose information in cases they have investigated where a subsequent appeal has been abandoned. The legislation helps leave the Commission as the decision maker as to whether they publish their report on the Al-Megrahi case. Under the legislation, the Commission have to decide whether, in the whole circumstances, it is appropriate to disclose their Statement of Reasons.  There will be a range of factors the Commission will want to consider when deciding whether it is appropriate to disclose information. One key factor is likely to be how much of the Statement of the Reasons is already in the public domain.  With the publication of the book and television documentaries containing what apparently may well be significant material from the Statement of Reasons, this could be an important factor which the Commission may want to consider when they decide whether it is appropriate to disclose information they hold. As members know, we are limited within the powers of this Parliament as to how far our legislation can go in freeing up the Commission to disclose information. Data protection, which is a reserved matter, is a key obstacle to disclosure. I first spoke with Kenneth Clarke back in September 2010 on this issue.  And since our Bill was introduced, I have already written to him on three occasions on this issue. We are now faced with publication of material that is apparently from the Statement of Reasons. This means that the case for an exception to data protection rules is now overwhelming, but this is for the UK Government to act upon. That is why I have today written again to Kenneth Clarke urging that the UK Government now make a decision for an exception to be made to the normal statutory data protection rules for this unique case.  This will help ensure the wider public interest can be served and the road to publishing the Statement of Reasons is further cleared. Let no one be in any doubt. We want the Statement of Reasons published and are doing all that we can, within the powers of this Parliament, for this to happen.  I am not qualified to comment in depth on the legal issues raised here, however, a number of better qualified commentators have observed that the government, despite what it claims, has littered the road to publication with more obstacles than are necessary.  It seems as if – much like Abdelbaset’s appeal – the whole process has been complicated in the hope that the delay will draw some of the sting from publication.

 Mr Al-Megrahi was convicted in a court and that is the only place where his guilt or innocence should be determined. We recognise that some have concerns regarding the wider issues relating to the atrocity.  The wide-ranging and international nature of the issues involved 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. We remain ready to co-operate on an inquiry. Why not hold an inquiry into the devolved issue of the Crown Office’s handling of the case?

Members will want to know whether there is a mechanism for an appeal still to be heard, even posthumously. Presiding Officer, I can confirm to the Chamber that there is.  It would involve an application being made for a further reference by the SCCRC, the Commission deciding to make a reference and for the High Court to accept such a reference.  These, of course, are not matters for me as Justice Secretary to decide upon. These are decisions for others to make, but I think it is important that we as a Parliament are aware of the position.  Presiding Officer, as I neither sought the abandonment nor continuation of Mr Al Megrahi’s appeal, it is not for me to either seek or oppose a potential appeal, posthumous or otherwise. That is correctly a matter for others,  and I would have every confidence in the Scottish criminal justice system were there to be another appeal.   That is a matter I would be entirely comfortable with. I doubt that the Crown Office would be so comfortable with a new appeal given that it would be accountable to the High Court for its failure to disclose exculpatory evidence to Abdelbaset’s original defence team.

We want the Commission’s report to be in the public domain to help ensure public confidence is retained in our justice system. This Government is doing all that we can to bring disclosure of the Statement of Reasons. I urge all members to support these efforts by supporting our Bill; and supporting our efforts to get the UK Government to make an exception to data protection rules.