Lockerbie & the Scotland Act

Monday, 21st September 2009

Could government ministers in London have stepped-in to prevent the release of Abdelbaset Ali al-Megrahi? A report in Scotland on Sunday yesterday says yes they could:

Scottish Secretary Jim Murphy could have overruled Scottish justice secretary Kenny MacAskill and stopped the release of Abdelbaset Ali Mohmed al-Megrahi if the case was deemed to have breached "international obligations".
Senior diplomats have insisted there was a "clear understanding" between the UK and the US that Megrahi would serve out his sentence in Scotland. The US Justice and State departments have also insisted they had been given assurances in the 1990s that Megrahi would remain imprisoned under Scottish jurisdiction.
[...]Andrew Mackinlay, a senior Labour MP, has now argued for the Scotland Act to be tightened to allow Westminster to override Scottish Government decisions if they have foreign policy implications for the whole of the UK. "Since there appears to be a provision in the Scotland Act, it should at least have been examined," he said.
[...]The key part of the Scotland Act says: "If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Executive would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken."

Consider me unpersuaded. In fact, consider me vexed by the confused logic of this piece. In the first place it's not difficult to appreciate that an "understanding" is not necessariy the same thing as an "obligation".

Secondly, releasing Megrahi on compassionate grounds does not break the understanding the Americans believed they had been given that Megrahi would serve his time in Scotland. That's for the very good reason that he has served all his time in Scotland. Now, had Kenny MacAskill accepted Libya's petition to transfer Megrahi to a Tripoli jail then that would have broken the assurances given to the United States. But releasing him on compassionate grounds - if also, therefore, on license - does not.

This may seem a technical distinction but it is, I think, still an important one.

Filed under: Libya (295 more articles) , Lockerbie (27 more articles) , Scotland (499 more articles) , SNP (218 more articles) , Terrorism (298 more articles)

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Ben

September 21st, 2009 4:27pm Report this comment

A lot of us had hoped that you'd finally shut up on this one Alex, having belatedly noticed that you're wrong...BUT..thank you for making this a comedy gem, in particular the utterly dreadful non-logic of "..the very good reason that he has served all his time in Scotland" Did he drop dead as he got on the plane? Your argument stinks and adds further insult and hurt to the victims of Lockerbie, as well as embarasses those of us who live in Scotland and disagree completely with this drivel. Which is 96.3% of the population.

Kittler

September 21st, 2009 5:02pm Report this comment

MacAskill the Scots Justice Secretary acting in a quasi judicial capacity and not a political one administered the law (1993 Tory legislation).
MacAskill played it by the book, Megrahi ticked all the boxes and was released.
The Scottish criminal justice system is not devolved, it is independent and Westminster Government ministers, after devolution and before devolution, have no part in the process.

beefeater

September 21st, 2009 8:33pm Report this comment

Scotland, still, and forever, the Bravely Compassionate.

Nicodemus34

September 22nd, 2009 10:27am Report this comment

Kittler, while it is true for you to stress the distinction between the judiciaries of England & Scotland, before devolution the Secretary of State for Scotland would have ruled on the matter, in conjunction with the Home Secrtary, rather than the Scottish Minister(s) of the Scottish Executive.

The rot began in the handling of this affair when it was agreed to hold the trial in the Netherlands in the first place. It should have been held at the High Court in Scotland. This would have afforded it its proper place in the justice system & not given it some kind of "special" status to begin with. Whatever happened to "we do not negotiate with terrorists"???

FJ

September 22nd, 2009 1:43pm Report this comment

Re: "an "understanding" is not necessariy the same thing as an "obligation"".

I think in this case, little can be read into the term "understanding" itself, there are a plethora of terms used to define international obligations, taking "treaties", e.g. see: http://untreaty.un.org/english/guide.asp#treaties.

The important thing is the intent of the State making the understanding: See the Eastern Greenland case PCIJ Rep...(1933); Nuclear Test Case (Australia v NZ) ICJ Rep...(1974); Frontier Dispute case (Burkina Faso v Mali) ICJ Rep (1985)..... all to the effect that oral statements can be binding if that is the intent of the State making the "undertaking"...

I see no reason why an "understanding" may not produce legal obligations for a State.

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