The release of Abdelbaset Ali Mohmed al-Megrahi

Another piece for Halsbury's Law Exchange

Scottish devolution gave rise to any number of issues, but it is probably fair to say not many foresaw one which has occupied many a column inch of late: the release of the Lockerbie bomber Abdelbaset Ali Mohmed al-Megrahi, who was convicted in 2001, two years after the Scottish Parliament was created. His release has generated heated and intractable public debate, the more so since three governments have different and rather entrenched views.

The Scottish Parliament in Edinburgh took the view that the release of a prisoner in their jurisdiction on compassionate grounds was an exclusive matter for them, applying Scottish law.

The United States' government in Washington, on the other hand, stated that it had previously been assured Mr al-Megrahi would not be released without its consent (2/3rds of the victims of the Lockerbie bombing were American, hence the strong views of the United States on the subject), and that consent was most certainly not forthcoming.

That assurance had been given by the United Kingdom government in Westminster, which suddenly found itself very unsure about everything. The "special relationship" with Washington was under strain, but Edinburgh wasn't budging and legally Westminster couldn't do anything about it even if it wished.

The story gave rise to many rumours. One was that the Scots feared al-Megrahi’s pending appeal would succeed, which might bring opprobrium on the Scottish legal process that had convicted him in the first place and denied previous appeals. Another was that Westminster had to ensure the release in order to secure lucrative commercial contracts with Libya, but could not do so because of its assurances given to America, and therefore had to find a way to ensure someone else (ie Edinburgh) took the blame.

Whatever the true political situation, two legal issues underlay the saga. The first was the comparatively straightforward issue of the legality of the release under Scottish law. The justice minister (Kenny MacAskill) has the power to release prisoners on compassionate grounds. In making that decision he is required among other things to take independent medical advice. This would exclude doctors not seen to be impartial, such as those in the pay of the Libyan state or oil companies hoping to do business with it (both were rumoured at different times in the press). Note also that release on compassionate grounds has nothing to do with the prisoner's innocence; any doubt about that is only to be resolved through the trial and appeal process.

Under the Prisoner Transfer Agreement between the UK and Libya law no transfer is permitted whilst an appeal is outstanding.*

In this case Mr al-Megrahi did have an appeal pending, which was withdrawn following a visit by Mr MacAskill. Days later his release was announced. Mr MacAskill insists no deal was struck, although the fact that a transfer was precluded whilst an appeal was pending had been pointed out to al-Megrahi and his legal advisers during the meeting.

Edinburgh was right on the face of it to assert that that process was a matter of Scots law and jurisdiction; indeed, the wishes of a foreign state would not ordinarily be a relevant consideration in deciding whether a particular prisoner should be released on compassionate grounds.

This, however, is not an ordinary case, and it highlights the second legal issue, which is an intractable problem with the devolution agreement. The agreement is clear that the Scottish parliament has certain domestic powers, but that foreign affairs remain exclusively the preserve of Westminster. Yet a decision which was bound to prompt a strong diplomatic reaction from the UK's principal ally could hardly be described as anything other than a foreign policy decision. Under no circumstances would Washington consider the release of al-Megrahi to be a routine matter of Scottish domestic criminal law.

Nor, for that matter, would Westminster, except Westminster is bound by UK constitutional law that would frankly not be of interest to American politicians acting on behalf of outraged families of the Lockerbie victims. Prior to Devolution, the decision would have been taken by the Secretary of State for Scotland, who, as a member of the cabinet, would have been very mindful of foreign policy implications, and would at least have sought the opinion of the Foreign Secretary.

Trying to word a constitutional provision reserving domestic matters to Edinburgh "save where on the exceptional facts of a particular case major foreign relations implications arise" would tax the most experienced legislative drafter. Which means, one suspects, that this case will not be the last to test the limits of the present constitutional settlement.

*The Scottish Ministers received an application from the Libyan Government requesting the transfer of Mr Al-Megrahi, under the terms of the Prisoner Transfer Agreement, on 5 May 2009.

Article 3 of the PTA sets out five conditions which are required to be met to allow transfer, these are:

(a) the prisoner is a national of the receiving State;
(b) the judgement is final and no other criminal proceedings relating to the offence or any other offence committed by the prisoner are pending in the transferring State;
(c) at the time of the receipt of the request for the transfer, the prisoner still has at least six months of the sentence to serve;
(d) the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of the receiving State or would constitute a criminal offence if committed on its territory; and
(e) the transferring and receiving States agree to the transfer.

As part of the consideration of the application, Mr MacAskill met or spoke with those that submitted relevant representations, this included: The US Attorney General (26 June), The US Secretary of State (13 August), The Libyan Government (6 July), UK families of victims (1 July), US families of victims (9 July), Families from Lockerbie (23 July) and Mr Al-Megrahi (5 August).

Note: I have received some correspondence from one Charles Norrie, who lists his occupation as "Lockerbie Researcher", about the correct spelling of Mr al-Megrahi's name. A google search reveals many variations, even amongst the papers of record such as the Times and the Telegraph, and the BBC - perhaps unsurprisingly since it isn't an English name and there is no single view about conventions such as the "al" prefix in surnames. I have gone with that which appears to be the most common amongst the reputable press, though there may be other acceptable versions. No offence to anyone is intended by the choice.

Thanks also to Michael Follon for the point re PTA v compassionate release, though the point about devolution still stands.