Justice Secretary Kenny MacAskill
Lockerbie Debate - Opening Statement
Scottish Parliament
September 2, 2009
On 20 August I announced the decisions I had taken in relation to Mr Abdelbasit Ali Mohmed Al-Megrahi. I repeated the substance of that announcement for the benefit of Parliament and took questions on 24 August. I now offer further detail to the Chamber.
At the time of my statement, and given the public interest, I took the unprecedented step of publishing the medical advice on which my decision was based. Yesterday, I published a substantial package of information relating to the lead-up to the ratification of the Prisoner Transfer Agreement, the representations and other material that I took into account in reaching my decisions, and the advice that was given to me.
It has always been my position to offer as much information as we can. I have also published details of the contact between the Scottish Government and the Libyan Government. I am grateful to those who have given their approval for material to be released. Where third parties have requested that material be redacted, we have complied with that request. This is, of course, a sensitive matter and particularly where the families of victims are concerned, we want to ensure that we do nothing that causes them any further pain. I will publish further material as we secure agreement to do so.
Prisoner Transfer Agreement
Let me first deal with the issue of Prisoner Transfer. On 29 May 2007 Tony Blair signed a Memorandum of Understanding with the Libyan Government.
This Government consistently opposed the PTA. The First Minister made a statement on 7 June 2007. He expressed his concern that the Memorandum of Understanding could be interpreted as having implications for the due process of law. He emphasised that the Scottish Government was determined that decisions on any individual case would continue to be made following the due process of Scots law. The PTA was finalised and signed in November 2008, and it was ratified in April of this year.
The Libyan Government applied on 5 May 2009 for the transfer of Mr Al-Megrahi. Despite our previous opposition, I was duty bound to consider the application. And I did so according to due process.
I received numerous letters and representations, and recognised that a decision on transfer would be of personal significance to those whose lives have been affected. I received advice from my officials on 27 May proposing a process that would allow representations to be taken into consideration in a fair and appropriate fashion. Accordingly, I met with groups and individuals with a relevant interest.
I spoke to the United States Attorney General, Eric Holder, on 26 June. I met with the families of victims from the United Kingdom on 1 July; with a lady from Spain whose sister was a member of the cabin crew on 6 July; and I held a video conference with families from the United States on 9 July. I also spoke on 23 July with a family whose relatives died in Lockerbie. With the agreement of the families, I have published the notes of those meetings.
I met Minister Alobidi and his delegation from the Libyan Government on 6 July and again on 10 August.
As I explained on 20 August, I faced conflicting advice on the extent of any pre-trial agreements as to where any sentence should be served. My officials wrote to the Foreign and Commonwealth Office on 22 June trying to establish the true position. The FCO replied on 3 July. I then wrote to the Foreign Secretary on 16 July to seek further clarification. Ivan Lewis MP, Minister of State at the Foreign Office, replied on 3 August. He indicated that the assurances were political, not legal.
We did our very best to get to the bottom of this issue, but I still do not know the exact nature of the pre-trial discussions, nor what may have been agreed between Governments. I am certain of the clear understanding of the American families and the American Government. As I explained, those understandings were a critical factor in my consideration of the application, and it was on that basis that I rejected it.
Visit to Megrahi
Prior to ratification, the Prisoner Transfer Agreement was scrutinised by the Westminster Joint Committee on Human Rights. This was the first PTA that did not require the consent of the prisoner to be transferred. As a result 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.
In this process, all parties had been given the opportunity to make representations directly to me. Mr Al-Megrahi chose to make representations in person, in the same way that others did - the families of victims, and the US, UK and Libyan Governments all made their representations directly to me.
When Mr Al-Megrahi chose to make representations in person, clear advice was given to me that this could hardly be denied. His application for Prisoner Transfer was submitted by his National Government - not through his legal defence team.
As I have said, it would have been outwith the tenets of natural justice to refuse this request. I met Mr Al-Megrahi at Greenock Prison on 5 August. The note of that meeting, together with the text that he read out to me, has been published.
Compassionate Release
I now wish to deal with the question of compassionate release.
Section three of the Prisoners and Criminal Proceedings (Scotland) Act 1993 gives the Scottish Ministers the power to release prisoners on licence on compassionate grounds.
The Act requires that Ministers are satisfied that there are compassionate grounds justifying the release of a person serving a sentence of imprisonment. Although the Act does not specify what the grounds for compassionate release are, the principles we apply are set out in guidance from the Scottish Prison Service, which suggests that it may be considered where a prisoner is suffering from a terminal illness and death is likely to occur soon. There are no fixed time limits, but life expectancy of less than three months may be considered an appropriate period. The guidance makes it clear that all prisoners, irrespective of sentence length, are eligible to be considered for compassionate release. That guidance has also now been published.
I received an application from Mr Al-Megrahi for compassionate release on 24 July 2009. In accordance with the procedure laid down in the 1993 Act and the SPS guidance, the application was sent first to the Scottish Prison Service, so that I could be provided with reports and recommendations by the Governor of Greenock Prison, the doctors and prison social work staff.
The medical advice before me, consisted of a report from the Scottish Prison Service Director of Health and Care, Dr Andrew Fraser - a former Deputy Chief Medical Officer and one of Scotland's most eminent doctors.
Let me be clear. NHS consultants - including experts in palliative care - were consulted as part of Mr Al-Megrahi's care. Dr Fraser had access to ALL Mr Al Megrahi's medical records and conferred with NHS consultants as part of drafting his advice on compassionate release. This included the NHS cancer consultant who acted as an external reviewer. The suggestion that the SPS Director of Health and Social Care was not consulting relevant specialists is totally inaccurate. Taking all the expert views into account, Dr Fraser's report is clear. It states: "the clinical assessment is that a three month prognosis is now a reasonable estimate for this patient".
The Governor's report forms a further part of the procedure, and yet again it is equally clear. Once again, it recommended compassionate release.
As part of the established procedure in assessing an application for compassionate release, the case was referred to the Parole Board on 10 August, was considered by them on 11 August, and their recommendations were included in the advice I received on 14 August. They were also clear on the question of Mr Al-Megrahi's prognosis. Their report states: "there can be very little doubt as to the short life expectancy" of Mr Al-Megrahi, and they made a unanimous recommendation, stating he was "suitable for compassionate release".
Since 2000, the Scottish Ministers have considered 31 applications put forward by SPS for compassionate release on medical grounds. 7 have been refused and 24 granted. The 7 applications were refused because they did not at the time meet the criteria for compassionate release. There has been no case where the recommendations from the Scottish Prison Service and Parole Board were all positive, but where Ministers refused the application.
Release to Newton Mearns
Presiding Officer, it had been suggested that Mr Al-Megrahi could be released from prison to reside elsewhere in Scotland. Clear advice from the Deputy Chief Constable of Strathclyde Police on 14 August was that the security implications of such a move would be severe. A minimum of 48 officers would be required simply to allow Mr Al-Megrahi to live in Scotland. The option of such a large police presence in a residential area, and the need for additional resources to manage hospital visits, rendered it utterly inappropriate, and I ruled it out on that basis. It was not a question of cost or capability. Strathclyde Police, I know, would have risen to the challenge. The idea of an armed camp or international media circus in a residential area, or even worse, in a hospice for the dying, I found grotesque.
Accordingly, Mr Al-Megrahi having met the criteria, it was my responsibility to decide whether to release him. Based on the values, beliefs and common humanity that defines us as Scots, I allowed him to return home to die.
Conclusion
In conclusion, I invite the Parliament to note my decisions to reject the application by the Libyan Government to transfer Abdelbaset Ali Mohmed Al-Megrahi under the prisoner transfer agreement between the United Kingdom and Libya and to release Mr Al-Megrahi on compassionate grounds; to note that the decision on compassionate release is in accordance with the recommendations from the Scottish Prison Service and the Parole Board for Scotland, and to endorse the decision as being consistent with the principles of Scottish justice.