ABDELBASET ALI MOHMED AL-MEGRAHI (DECISION)

Speech delivered on Wed 2nd Sep 2009

Few of us in the chamber today and few people throughout Scotland doubt the difficult nature of the decision that the Cabinet Secretary for Justice took about the release of Mr al-Megrahi, who was convicted of what Mr MacAskill rightly described as the "heinous" murder of 270 people all those years ago. Let me say immediately that the decision was the justice secretary's to make and that it is rightly not subject to review by the Scottish Parliament or anyone else, a "higher power" or otherwise. However, the minister is accountable to Parliament and, more important, to the public, for the decision and particularly for the manner of it.

The matter, of course, has attracted enormous international attention and focus on Scotland. Much of that attention has been hostile or unfavourable, whether from the American relatives or resulting from the invidious sight of the saltires waving in Tripoli during that triumphal return-although even that could be tolerated if the decision was right and seen to be right. It is Parliament's job today to examine whether that was the case.

Kenny MacAskill's decision was a quasi-judicial one that was required to be made in terms of the relevant law-in this case, the Prisoners and Criminal Proceedings (Scotland) Act 1993 and, more particularly, by updated circular 21A/05, which was issued by the Scottish Prison Service in June 2005.

Margo MacDonald: Will the member give way?

Robert Brown: I will not give way at the moment, if the member does not mind.

The justice secretary told us of the medical evidence, of the predictions of Mr Megrahi's life expectancy, and of the three-months rule, which is not binding but which, in effect, he purports to have applied in this case. It is now clear, as others have said, that there was considerable doubt as to whether Mr Megrahi fulfilled the criteria of the three-months rule. However, in neither the cabinet secretary's address to the world, nor in his statement to Parliament last week, did he identify clearly the full criteria that required to be considered in considering an application for compassionate release. They are contained in annex 1 to the guidance, which states that specific factors must always be considered in such cases.

They include the

"type of offence and prisoner's supervision level",

and

"The length of the sentence outstanding, the effect on the overall sentence if early release is granted and any comments that the trial judge made on sentencing which may have a bearing on the question of early release".

In other words, compassion-worthy as it is-is not an unrestricted reason for compassionate release. There is a balancing operation to be made. It is, if the man who has been convicted of the Lockerbie bombing gets out after serving only a fortnight for each victim's life, extremely difficult to see how any future cabinet secretary could refuse any valid application for compassionate release, however heinous the crime and however short the time served. It is noteworthy that none of that is in the official advice-none of the specific factors that have to be considered. Did Mr MacAskill ask to see the actual text of the guidance, and if not, why not, on such a vital issue?

Margo MacDonald: Although I fully appreciate Robert Brown's description of the legal niceties, would he have disregarded the realpolitik that swirled around the al-Megrahi case and made it a unique decision?

Robert Brown: The question is not whether I would have disregarded it; the point is that the cabinet secretary is required to disregard it. These things are important, but the decision has to be made on legal grounds. That is why I and others are stressing the point. My submission to Parliament on the point is that Mr MacAskill and his officials misdirected themselves as to the basis of the decision by not giving proper legal consideration to the guidance and the balance of considerations in it.

Mr MacAskill was required to act in a quasi-judicial fashion-literally, in an even-handed way, like a judge. However, I have to say that, in my years of legal practice, I never heard of a judge whose decision was leaked to the world's press before he issued it, nor can I say that I have heard of a judge who visited the accused or convicted person in anything like these circumstances in his prison cell. Let me illustrate why that needs to be so, by dwelling for a moment on the justice secretary's visit to Mr Megrahi in Greenock prison.

We have prised the note of the meeting out of the Scottish Government, which issued it so reluctantly and belatedly yesterday. Mr MacAskill stressed that the meeting was part of his consideration of the prisoner transfer agreement, but said that he was considering the matter in parallel with the compassionate release application, which he had received by that time. The minute of the meeting states:

"Mr MacAskill stated it was necessary to highlight that when he makes his decision on prisoner transfer, he can only grant a transfer if there are no court proceedings ongoing. Mr MacAskill stressed that this was a decision for Mr Al-Megrahi and his legal team alone."

What was the purpose of that statement? Megrahi had a highly skilled legal team and was accompanied by his solicitor; those people, the Libyan Government and, indeed, Mr Megrahi himself knew the condition with regard to the PTA.

Kenny MacAskill: I remind Mr Brown that the application was made by the Libyan Government, not through Mr Megrahi's team, which was involved in the High Court appeal. Mr Megrahi was accompanied by his solicitor. However, as I have said, that related to the PTA and was a request from Mr Megrahi. Those matters are entirely separate from concurrent events in the court of appeal.

Robert Brown: The fact remains that in the unprecedented and inappropriate personal discussion that took place with Mr Megrahi in his prison cell, stress was placed on the condition in the PTA of the abandonment of the appeal. By instigating such a personal meeting and raising this issue himself, Mr MacAskill was, at the very least, laying himself open to the suggestion that he appeared to want the appeal to be dropped and that the appeal was a precondition in every other matter.

Furthermore, the Libyan Government's prisoner transfer application said that Mr Megrahi

"has submitted a written undertaking to the Libyan side stating that he is willing to abandon his appeal if the other party"-

that is, the Scottish Government-

"approved his transfer to his home country".

In other words, al-Megrahi was seeking to bargain with the Scottish Government over the dropping of the appeal. As I said at the beginning of my speech, the cabinet secretary must deliver justice and be seen to deliver justice in a proper process according to law.

It is also clear from-I believe-seven meetings between Scottish Government officials and senior Libyan Government officials since at least October 2008, that the ground was being prepared for a release on compassionate grounds rather than on the basis of a prisoner transfer-which, I have to say, would have been granted over Mr Salmond's dead body, given the background to the matter.

The truth is that there were two parallel tracks that sometimes overlapped. First, there was the UK Government's pursuit of the prisoner transfer agreement, perhaps with the laudable, if ambiguous, objective of better relationships with Libya. The Scottish Government wanted no truck with such a move-it was blighted by association with UK Labour ministers and had been damned by the First Minister-and was instead intent on the course of compassionate release. However, both Governments clearly wanted Mr Megrahi out, perhaps, as Margo MacDonald has suggested, for wider political reasons.

One further question that troubles me is why Mr al-Megrahi abandoned his appeal after Mr MacAskill met him in prison. It seems to me that it is in the Scottish Government's power to find some way of examining and testing the issues that would have been raised at that appeal and any new evidence associated with it-which is what we have lost as a result of the appeal's being abandoned.

No matter whether it was right or wrong, or whether it was timely or premature, the decision has been made. One thing that Parliament can do is press the cause of those who still grieve. That is worth while and, indeed, is a matter on which the SNP Government has fallen short. After all, the enlightenment had its following in our country, and Scotland should be known as a place where justice and the rule of law are precious, not just the compassion that we all share

Robert Brown: I move amendment S3M-4748.1.2, to insert after second "Libya":

", in particular the opportunities for compassionate release within Scotland; believes that the announcement should have been made to the Parliament rather than to a press conference; considers that justice and compassion for the victims' families have not been served by this process;"

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ABDELBASET ALI MOHMED AL-MEGRAHI (DECISION).