Lockerbie
The next item of business is a statement by Kenny MacAskill on Lockerbie. The cabinet secretary will take questions at the end of his statement, so there should be no interruptions or interventions.
14:35
I once again put on record my sympathy for the relatives of all those who were lost in the Lockerbie atrocity—whether they were Americans or people of many other nationalities murdered in the air, or Scots lost on the ground. The anguish remains with them constantly.
I have been asked by the Opposition to make a statement to Parliament on the matter once again, and I am willing to do so. The Government and I have always sought to be as open and transparent as we can be on all matters that relate to Lockerbie.
The need for the statement relates to claims that were made in a book that was written by a former researcher with Mr al-Megrahi’s legal team. Those claims are wrong. Minutes of meetings that related to Mr al-Megrahi were made at the time and have been published, except where permission was not given by other Governments. A minute of my meeting with Libyan representatives is one of them. Unlike the claims of recent days, those minutes are not hearsay, but are an accurate record that was made at the time. That minute has been in the public domain since September 2009. It is quite clear, and it refutes the assertions that have been made. Those records are made by impartial civil servants to ensure that there is a proper historical record of important discussions.
In addition to the minute that was kept, let me be quite clear that Scottish Government officials were present throughout my meeting with Mr al-Obeidi, and at no time did I or any other member of the Scottish Government suggest to Mr al-Obeidi, to anyone connected with the Libyan Government, or indeed to Mr al-Megrahi himself that abandoning his appeal against conviction would in any way aid or affect his application for compassionate release.
Let us remember what the two different processes were. One process was an application under the prisoner transfer agreement, made by the Gaddafi regime. That 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 that was negotiated by the then United Kingdom Government with the Gaddafi regime, not least because it represented interference in the Scottish legal process. Between June 2007 and September 2008, we wrote to the UK Government no fewer than eight times setting out our position. I considered but rejected the application for prisoner transfer that was made in respect of Mr al-Megrahi, and I granted a request for compassionate release that he submitted, as I believed that it adhered to the laws and values that we hold in Scotland. I did so on the evidence that was before me from the Parole Board for Scotland, the prison governor and the 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, and 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. However, one thing that is now clear from the new book is that, as detailed on page 352, Mr al-Megrahi signed a provisional undertaking to abandon his appeal on 23 March 2009. It is therefore clear that he was considering dropping his appeal several months before either of the two applications was 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 the prisoner transfer agreement. However, he knew that a prisoner transfer application would have been refused had there been any on-going legal proceedings.
The author of the book, John Ashton, accepted on BBC radio yesterday that the claim in the book is hearsay. The Government has shown consistently that 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 introduced the Criminal Cases (Punishment and Review) (Scotland) Bill to aid publication of the statement of reasons. An assertion by the author is that we, the Scottish Government, do not want the statement of reasons to be published. Nothing could be further from the truth.
The bill, introduced by this Scottish Government, will enable the Scottish Criminal Cases Review Commission to decide whether it is appropriate to disclose information in cases that it has investigated when a subsequent appeal has been abandoned. The bill helps to leave the commission as the decision maker with regard to whether it publishes its report on the al-Megrahi case. Under the bill, the commission must decide whether, in the whole circumstances, it is appropriate to disclose its statement of reasons. The commission will want to consider a range of factors when deciding whether it is appropriate to disclose information.
One key factor is likely to be how much of the statement of reasons is already in the public domain. With the publication of the book and the broadcast of television documentaries containing what apparently may well be significant material from the statement of reasons, that could be an important factor that the commission may want to consider when it decides whether it is appropriate to disclose information that it holds.
As members know, we are limited within the powers of the 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 to Kenneth Clarke on this issue back in September 2010. Since our bill was introduced, I have already written to him on the issue three times.
We are now faced with publication of material that is apparently from the statement of reasons. That means that the case for an exception to be made to data protection rules is now overwhelming, but that 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 makes a decision for an exception to be made to the normal statutory data protection rules for this unique case. That will help to ensure that the wider public interest can be served and that 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 we are doing all that we can, within the powers of this Parliament, for that to happen.
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 that 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.
Members will want to know whether there is a mechanism for an appeal still to be heard, even posthumously, and I confirm to the Parliament that there is. It would involve an application being made for a further reference by the SCCRC, the commission deciding to make such a reference and the High Court accepting it. Those, of course, are not matters for me as Cabinet Secretary for Justice to decide upon. They are decisions for others to make, but it is important that the Parliament is aware of the position.
As I sought neither the abandonment nor the continuation of Mr al-Megrahi’s appeal, it is not for me to seek or oppose a potential appeal, posthumous or otherwise. It is, correctly, a matter for others, and I would have every confidence in the Scottish criminal justice system were there to be another appeal. I would be entirely comfortable with that.
We want the commission’s report to be in the public domain to help to ensure that public confidence in our justice system is retained. The Government is doing all that it can to bring about disclosure of the statement of reasons and I urge all members to support those efforts by supporting our bill and our efforts to get the UK Government to make an exception to data protection rules.
The cabinet secretary will take questions on the issues that were raised in his statement. I intend to allow around 20 minutes for questions, after which we will move on to the next item of business.
I thank the cabinet secretary for an advance copy of his statement and welcome his decision to come to the chamber and make a statement on the matter today.
We are here because of the connections between decisions that were made in August 2009 first by Abdelbaset al-Megrahi and then by the cabinet secretary. Mr al-Megrahi’s decision was to withdraw his appeal against his conviction for the worst mass murder in Scottish legal history. Mr MacAskill’s decision was to let that man go on the grounds that he had only a few months to live.
We are here today because the man whom Mr MacAskill released on those grounds has now asserted, two and a half years later, that he dropped his appeal because the cabinet secretary used a third party to encourage him to do so. The cabinet secretary confirmed that he met that third party—Mr al-Obeidi, a minister in Colonel Gaddafi’s Government—and has drawn our attention to the minutes of the meeting and those of the meeting that he had with Mr Megrahi in Greenock prison.
Those minutes make interesting reading because, at both meetings, time and again, Mr MacAskill and his officials stressed that release under the prisoner transfer agreement could proceed only if Mr Megrahi dropped his appeal. It appears from the minutes that Mr MacAskill did not, at any time, make the point that he made today and has made repeatedly over the past two years, namely that his decision to release Mr Megrahi had nothing to do with the prisoner transfer agreement—or that compassionate release would not require Mr Megrahi to drop his appeal. [Interruption.]
Those are the words of the minutes of the meetings. When Mr Salmond suggests from a sedentary position that that is a misrepresentation, is he telling us that the minutes are not a full and accurate record of the meetings that were held? If they are a full and accurate record, I would like to hear the cabinet secretary’s comments. Does he now accept that his conversations with Mr al-Megrahi and Mr al-Obeidi left both men with the very clear impression that withdrawing the appeal was the prudent thing to do? Does he now regret either of those meetings or the way in which he handled them?
No. Mr Macdonald is quite right that there were two separate meetings. There was a meeting with Mr al-Megrahi in Greenock, at which he was supported and represented by his lawyer, a member of the legal profession who is probably better known to some of Mr Macdonald’s colleagues than to me. He was present throughout. At that stage, no application for compassionate release had been submitted; the discussion was simply on the issue of the prisoner transfer agreement.
At the meeting with Mr al-Obeidi, both matters were touched on, but I make it quite clear that it was never suggested to Mr al-Megrahi directly or to a third party that the appeal required to be dropped. It was simply made clear that under the terms of the prisoner transfer agreement, which was entered into by a Labour Government south of the border with Colonel Gaddafi’s regime, a prisoner transfer could not be considered while any proceedings were on-going. That was a matter of legal fact, which was put to him.
Mr MacAskill was absolutely right to begin his statement by saying that we should remember the victims of Lockerbie, but we should also reflect on the fact that the man who was convicted of their murder by a Scottish court has enjoyed 923 days of freedom, courtesy of the Scottish National Party, which is a remarkable period of survival for someone who, apparently, had only around 90 days to live.
The key allegation that is made in the book is that some kind of deal was made between the Libyans and the Scottish Government whereby Megrahi would be released on compassionate grounds if he dropped his appeal. Interestingly, that allegation is the same allegation that was previously made by Christine Grahame MSP, who said that she had been told that very thing by a whistleblower in the Scottish Executive. To that extent, one allegation corroborates the other. [Interruption.] Ms Cunningham may be contemptuous of her colleague, but Ms Grahame may have something to say later.
Is it Mr MacAskill’s position that both those parties are in error and that their allegations are figments of excitable imaginations, which do not contain a shred of truth?
Furthermore, the suspicion that Mr MacAskill took an unduly favourable view of the medical evidence to facilitate a deal would, of course, be allayed if all the medical reports on which the three-months-to-live assessment was made were released. The Scottish Government has consistently and conspicuously failed to do that. Does Mr MacAskill not recognise that the public interest and the questions surrounding the integrity of the decision-making process now demand that that evidence be released and made available for public scrutiny?
There are two aspects here. One is whether any factor was involved in the release of Mr al-Megrahi other than the criteria for compassionate release, on which my decision was based. It is clearly the position that no other factor was involved. As I made clear in 2009, we did not consider any other matters, whether economic, political or diplomatic, despite the criticism that we received. It is clear that the United Kingdom Labour Government was openly conniving while Labour representatives were openly criticising me.
The same applied to the Conservatives. I make it clear to Mr McLetchie that we refused the suggestions from various Tory members. I remind him that Daniel Kawczynski, a Tory member, wrote to me on 14 August 2009 to suggest that Mr al-Megrahi should be used as a bargaining chip in negotiations. I refused that suggestion. On 17 July 2009, the Tory peer and former Tory minister Lord Trefgarne wrote to me to say that speed was of the essence in returning Mr al-Megrahi to Libya for reasons of business interests. I made it quite clear that we would not broker economic, political or diplomatic matters, and that the decisions that we made were subject to the laws of Scotland and the values of its people.
Where is your higher power now?
Mr McLetchie—enough.
Let me deal with the question about medical reports. First, the only medical report on which I based my decision was that from Dr Fraser, the director of health and social care in the SPS. That report has been made available, and doubtless Mr McLetchie has read it. It is already in the public domain and has been so since September 2009. Members will be aware that medical records are subject to the common-law duty of confidentiality, and we are bound by that as we are bound by other legislation.
First, I declare that I am a member of the Justice for Megrahi campaign.
I turn to the exact words of Abdelbaset al-Megrahi, on page 352 of the book to which the cabinet secretary referred in his statement. With regard to the prisoner transfer agreement, Mr al-Megrahi says:
“For my family’s sake I decided I must choose the latter”
—that is, the prisoner transfer—
“and on 23 March 2009 I signed a provisional undertaking to abandon the appeal.”
That considerably predates any memos, and anything that has been said in hearsay. Those are the direct words of Abdelbaset al-Megrahi.
It seems that, instead of going on this wild goose chase now, we should be looking at having a full inquiry—
Do you have a question, Ms Grahame?
Is it not the case that we should have a full inquiry into all aspects of the Lockerbie atrocity, for the sake not only of Abdelbaset al-Megrahi and his family, but—more importantly—for the people of Lockerbie and the victims’ families, who still need answers?
I would like to ask the cabinet secretary a supplementary—
No, you cannot. Cabinet secretary—
Has he had any indication of an inquiry from Westminster?
Cabinet secretary.
I have always made clear that I stand by the decision that was made by the Scottish court and upheld by the Scottish appeal court. It is for others to decide whether they wish to pursue matters through an appeal, as has been detailed, or to request a further inquiry.
We have made it clear as a Government that the restrictions on our jurisdiction mean that any appeal or inquiry in Scotland would be limited. We would be dealing with reserved matters, so they would have to be dealt with either through more than one inquiry or in conjunction with the United Kingdom.
We have said that we will happily co-operate with any inquiry, but it would be for others to pursue that. I return to my statement, in which I made it clear that it is not for me—and it never was—to decide whether proceedings are carried out. I simply abide by the laws of Scotland.
It is clear that as much as possible of the information surrounding the case needs to be in the public domain. The Scottish Government has expressed a commitment to transparency through the Criminal Cases (Punishment and Review) (Scotland) Bill, and the cabinet secretary has stated today that data protection is a key obstacle to the disclosure of the statement of reasons under the bill.
However, in evidence to the Justice Committee on 7 February, the assistant commissioner for Scotland and Northern Ireland said that the Data Protection Act 1998 did not prevent disclosure, and that the Parliament has the power to define the conditions for processing by passing an act that allows the Scottish Criminal Cases Review Commission to disclose.
Last week, the cabinet secretary told the committee that the assistant commissioner had changed his mind. Will the cabinet secretary tell us the most recent opinion of the assistant commissioner on data protection and disclosure? Will he publish the correspondence between his office and the assistant commissioner between 7 and 21 February in the interests of transparency?
We are always happy to publish whatever is necessary in the interests of transparency, and we do so. I can hypothesise on the current position of the assistant commissioner, but the thoughts of others—whatever they are or were—with regard to the abandonment or lodging of further appeals are not under my control.
We have made it clear that we do not accept the assistant commissioner’s statement that, simply by making a change to a piece of subordinate legislation, we can change matters through primary legislation. We must be cognisant of the restrictions on us even more so in subordinate legislation than in primary legislation.
I pointed out in my exchange with Ms Marra in committee that, if it was so easy to change such matters through subordinate legislation, I—and no doubt others in the Scottish Government—would have made it clear that we were not going to enter into illegal wars, impoverish the poor and a whole variety of other things. If only life were so simple.
Does the cabinet secretary agree that there is an element of hypocrisy among Opposition members, who are calling for an inquiry when their colleagues down south have failed to disclose the UK Government’s position?
It is for other Governments to explain their actions throughout. There has been a great deal of hypocrisy, particularly with regard to Mr McLetchie.
However, it would be unfair and remiss of me not to remind Lewis Macdonald and others on the Labour benches that they sat there and berated my decision to release Mr al-Megrahi on compassionate grounds when the UK Labour Government was conniving and conspiring to have Mr al-Megrahi returned to Libya whether on compassionate grounds or under a prisoner transfer agreement. I cannot decide the actions of other Governments; I can comment only on my actions and the actions of the Scottish Government, and on this decision we have been quite clear.
Will the cabinet secretary outline to Parliament his specific reasons for meeting al-Megrahi at Greenock prison? Does he now recognise that, in the minds of some people, his handling of that process lends credence to the current controversy over the deal in respect of the subsequent withdrawal of al-Megrahi’s then imminent appeal? Will he publish all briefing papers leading up to that prison visit? I understand that, prior to the decision to liberate al-Megrahi on compassionate grounds, negotiations and contacts were maintained between the Scottish Executive’s civil servants and representatives of the then Libyan Government regarding al-Megrahi’s release. Was there any conflict of interests, given the other roles and responsibilities of civil servants, and will he publish the papers?
We have sought to publish everything that we can, except where that has been precluded either by medical confidentiality or by the clearly expressed wishes of other Governments.
Mr Pearson asks why I went to see Mr al-Megrahi in Greenock prison. Let me make it quite clear: I went to see him at his request. Why? I had to see him on both the prisoner transfer agreement and his application for release on compassionate grounds. The primary matter was that he had submitted an application under the prisoner transfer agreement. As I pointed out, this Government consistently opposed that but it was driven through by a Labour Government down at Westminster. The agreement applied only to the only prisoner of Libyan nationality that we have ever had in Scotland, and it was clear when the UK Government entered into the prisoner transfer agreement that it related to Mr al-Megrahi. Our request to have him specifically taken out of the agreement was refused by the UK Government.
The prisoner transfer agreement was different in that an application could be submitted not just by the individual, but by the Government concerned. The Government concerned had submitted an application—the Libyans submitted the application—and I was required to ensure that the prisoner had an opportunity to be heard, because there could be scenarios in which an application for a transfer was made by a Government but the individual did not wish that to happen. I offered Mr al-Megrahi the opportunity to make representations and to be heard; he requested the right to make those representations. He wished to make them formally to me so, accordingly, I went to see him in Greenock prison. I did so because the legislation that had been introduced by the UK Government required me to take into account his views on an application on his transfer back to Libya. More important, had I refused to go, the likelihood is that I would have faced being judicially reviewed by his legal team.
We have very little time to conclude the questions on the statement. [Interruption.] I ask Mr McLetchie to keep quiet, please. I remind members that they should ask one question without a preamble. In that way, I may be able to get in as many members as have requested to speak.
Would Mr al-Megrahi have been granted compassionate release if he had continued his appeal?
Yes. The prisoner transfer agreement required an end to the appeal before transfer, but there was no such requirement for release on compassionate grounds. The criteria for release on compassionate grounds were the evidence that was put before me by the Parole Board, the prison governor and the director of health and social care. Release on compassionate grounds would have been granted.
Can the cabinet secretary tell me whether the present Lord Advocate has personally assessed the allegations that have been made against the Crown Office of obstruction, in covering up evidence, which are reported in the book? If so, has that assessment been shared with the Cabinet?
Matters in respect of the Crown Office are for the Lord Advocate. I have had discussions, because I am aware that the Lord Advocate has made it clear that this is an on-going inquiry. No one has ever suggested that Mr al-Megrahi acted alone. For that reason, matters are on-going, with inquiries through the Crown Office and by Scottish police. It would not be appropriate or correct for me to comment on other matters, other than to say that I have the utmost faith in the Lord Advocate.
Can the Scottish Government require the SCCRC to publish a statement of reasons in circumstances in which an appeal has been abandoned?
We cannot require the statement of reasons to be published; what we can do is provide a framework in which the commission can put forward the statement of reasons. We tried that initially through the subordinate legislation route. Consent was not forthcoming from a variety of parties, and the commission requested additional powers. For that reason, we introduced the Criminal Cases (Punishment and Review) (Scotland) Bill, which will give the commission a framework in which to consider a variety of matters, such as the Official Secrets Act 1989 and human rights considerations. As I said, all the actions of the Government are predicated on enabling the commission to be in a position to publish.
On behalf of my constituents in Lockerbie and all the friends and relatives of the people who died on the ground and in the air, I ask the cabinet secretary to give his assurance and his word that neither he nor anyone connected with the Scottish Government or the Scottish Court Service at any time put pressure on Mr al-Megrahi, his legal team or the Libyan delegation with regard to the withdrawal of his second appeal.
I absolutely give that assurance.
As the cabinet secretary said, the Criminal Cases (Punishment and Review) (Scotland) Bill will add transparency to the issue. Can the cabinet secretary say whether Mr al-Megrahi has consented to release of the statement of reasons?
My understanding is that Mr al-Megrahi has not consented to release of the statement, which is one of the reasons why we require to proceed with the bill.
Is the cabinet secretary suggesting that the UK Government has a veto on the publication of any report from the commission, because of the reservation of data protection?
It is not for me to be responsible for what the commission publishes, but it is clear that data protection is likely to be a significant impediment. For that reason I entered into discussions with Kenneth Clarke and—as I have said on other occasions in the Parliament—I have been grateful to him for the spirit in which he has considered matters.
However, over recent days, with books appearing and documentaries forthcoming, it is important that we have a balanced position out there. It is therefore important that the statement of reasons be published. All that I can do is provide a framework that I hope will enable the commission to be in a position to publish, but it is for the commission to make the decision, when it has considered all the criteria that are set out in the bill.