MacAskill: still unfit to be Justice Secretary

I am not going to consider the release of Mr Megrahi today. We all knew it was coming, and adding further comment on a speech from Mr MacAskill that felt at times like one of those dull sermons for which prebyterian ministers are rightly famous seems superfluous. I only note that Mr MacAskill, unlike Cicero, will not be remembered for the quality of his oratory.

I should note though that having spoken to my relatives back home this evening we are all of the view that we would have released mr Megrahi on compassionate grounds given his serious ill health. This may be as a result of having recently lost a close family member to the same illness or may simply be indicative of the basic humanity that Mr MacAskill seemed to suggest was characteristic of only Scots but I thought it worth noting that I believe the correct decision was reached (although others I respect, particularly Almax, and Charon QC, take differing views).

Instead I wish to look at the issue I raised yesterday. I argued that Kenny MacAskill was not fit to be Justice Secretary. My argument was based on what i perceived to be a fundamental error in his handling of the case, that on deciding to visit the man convicted of the biggest mass murder in Scottish legal history he overstepped the line, and tainted his role in the quasi-judicial process. Some have referred to this post (see Slugger O’Toole; Caron; Andy Reeves; and Jeff). I have also ran this line in comments on other posts (including those of Jeff and Caron.  A commenter, Indy, responded to my suggestion.  As well as giving me a legal lesson (by the way what is it with certain nationalist commentators deciding to give legal lessons to lawyers? first Mr Cashley, now Indy. I wouldn’t mind if they were more qualified than me but there is no evidence to suggest that) she responded with a series of comments that can be read in these posts. I checked the press releases and press statements from the Scottish government today and can confirm that no fomral explanation for the visit to Megrahi was given. All we had awas a pre-announced visit, some media publicity, and a departure – and within 2 weeks a dropped appeal and release on comassionate grounds. It looks like fish. It smells like fish.

But the purported reasons conjured up by indy need not be considered because today Mr MacAskill addressed the reason why he visited Mr Megrahi. His explanation is as follows,

"Prior to ratification of the Prisoner Transfer Agreement, it was scrutinised by the Westminster Joint Committee on Human Rights, to which Jack Straw, UK Secretary of State for Justice, gave a commitment that in cases where applications were not submitted personally by the prisoner, the prisoner must be given the opportunity to make representations. Mr Al-Megrahi had the opportunity to make representations, and he chose to do so in person. Therefore I was duty bound to receive his representations. I accordingly met him."

The paragraph is interesting. mr MacAskill claimed before the world press that he was bound to meet Mr Megrahi, despite – at the time of the meeting – having two applications before him. He had an application based on the prisoner transfer treaty entered into between the UK and Libya; and one application based on release on compassionate grounds. Mr MacAskill was the minister charged with the decision in both cases. In the latter case as I argued yesterday it is clearly inappropriate to meet the prisoner. Mr MacAskill is arguing though that his meeting was only under the former grounds. Well, before beginning consideration of the obligations on Mr MacAskill I note that through deciding to deal with the two applications contemporaneously  he put himself in a difficult position. Even if obliged to meet Megrahi in relation to prisoner transfer such a meeting would naturally cause difficulty for a decision based on compassionate grounds.

But was MacAskill bound to meet Megrahi? He claims he has to under the Prisoner Transfer Agreement.

The Agreement is available on-line and there is no obligation there to meet the prisoner. Indeed, the only obligation relating to information to be provided to the prisoner is in Article 4 where it provides that "Any prisoner to whom this Treaty may apply shall be informed by the transferring State of the substance of this Treaty." Otherwise the Treaty relates to states while setting out a series of conditions which determine when transfer is possible (see Article 3 – among the conditions is one that all proceedings relating to the case must have come to an end before transfer is possible. Given that there was an appeal by the Crown against an unduly lenient sentence which remained in place as well as that dropped by megrahi – there could be no transfer under the treaty).

So, where does Mr MacAskill believe the obligation comes from. well, it’s not from the treaty it’s from Jack Straw. 

"Jack Straw, UK Secretary of State for Justice, gave a commitment that in cases where applications were not submitted personally by the prisoner, the prisoner must be given the opportunity to make representations. Mr Al-Megrahi had the opportunity to make representations, and he chose to do so in person. Therefore I was duty bound to receive his representations."
Again the Joint committee on human rights report relating to the Treaty is on-line.

What did Jack Straw actually say?

At page 12 of that report the terms of Mr Straw’s answer are given

"Under all existing prisoner transfer agreements to which the UK is party, applications for transfer are considered on a case-by-case basis. This principle will continue under the PTA with Libya, but in addition to the normal procedures where will also be an assessment of compatibility of transfer with Article 3 of the ECHR which will include seeking advice as to the current state of Libyan prisons. A prisoner would be advised of the Government’s intention to transfer and would be invited to make written representations. These representations would be taken into account when determining whether or not transfers should proceed. Any decision to proceed would have to be compatible with the Government’s obligations under the Human Rights Act and with ECHR and would be subject to judicial review."


So, what does Straw envisage? Certainly the prisoner could make representations – in order to ensure compliance with the European Convention on Human Rights – but there is no reference to representations in person. "A prisoner … would be invited to make written representations." And of course such written representations could e made by the highly paid and highly qualified legal team representing mr Megrahi. The statement by Mr Straw relied on by Mr MacAskill to justify his unprecedented jaunt to Greenock is not justification at all.  He had an obligation to receive representations. But he had no obligation to receive oral representations. And he – as the quasi-judge – had no obligation to attend the prison in person. He could have sent officials, explaining why they were present. And given that at the time the visit to Mr Megrahi was made Mr MacAskill was acting as the "quasi-judge" in both cases the problems from yesterday remain.

There was a meeting between the quasi-judge and the prisoner and within days the prisoner who had protested his innocence dropped his appeal (thereby admitting his guilt) and he was released (at which point the former prisoner promptly resumed protesting his innocence and complaining about the judicial process). It smacks of a squalid deal despite Mr MacAskill’s protestations to the contrary. And if there was no deal mr MacAskill put himself in an untenable position because while he was considering the biggest decision of his political career he allowed the impression to be given that a deal was arranged – by visiting, with no contemporaneous explanation, the man convicted of the biggest mass murder in Scottish legal history when he had no obligation to do so. To then compound that error by misleading the world media today that he had an obligation as a result of a statement of a UK government minister – when that statement demonstrably does not support his position – means that for me Mr MacAskill’s position is untenable.

He may have reached, for me and my family, the right decision. His manner of doing so demonstrates that he is wholly unfit for high office.

Kenny MacAskill should resign.

About loveandgarbage

I watch the telly and read when not doing law stuff and plugging my decade and a half old unwatched Edinburgh fringe show.
This entry was posted in lockerbie, scottish politics, Uncategorized. Bookmark the permalink.

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