MacAskill followed the letter of the law

Megrahi's release is controversial. But no one can dispute the central defence for Kenny MacAskill's decision

It was a grim, dogged, desperate defence by the justice minister, Kenny MacAskill, of his decision to release the Lockerbie bomber, Adelbaset al-Megrahi, in order to let him die in Libya with his family. It was one of the most uncomfortable ministerial statements I have ever witnessed. The anguish of this decision, and its aftermath, were etched on MacAskill's face as he restated the legal grounds for what was, arguably, the most controversial decision ever taken by a Scottish minister. At the end, he was still standing – if only just.

As the questioning dragged on, MacAskill's replies became shorter and shorter as his energy flagged and his patience wore out. Only briefly did he revive when the former Labour minister, Malcolm Chisholm, rose to defend him for his "courageous" decision, which he said was "entirely consistent with both the principles of Scots Law and Christian morality, as evidenced by the widespread support of churches across Scotland". Chisholm thus disowned the argument of his own leader, Iain Gray, that MacAskill had made "the wrong decision, in the wrong way with the wrong consequences". He would have let Megrahi rot in Greenock jail until he'd breathed his last. (...)

Compassion may not be the first thing people associate with Scots law which, in times past, had a reputation for austere and unforgiving justice. But MacAskill's defence is that he acted in accordance with the laws and values of Scotland – as indeed has been accepted now by No 10 in its statement today. The Scottish justice minister is a lawyer and something of a stickler for "due process" – for following the accepted rules for coming to a legal decision. Prisoners in Scotland, no matter their crime, are eligible for release on compassionate grounds if they have a terminal illness which will likely kill them within three months. When application has been made, and provided the medical evidence is sound, the justice minister is required to consult key authorities, including the Parole Board, the prison governor and the social work agencies. This he did. All these bodies recommended that Megrahi should be released on compassionate grounds.

Of course, in the end, the decision is for the justice minister alone to take, and – as the Labour leader Iain Gray insisted – Kenny MacAskill could have exercised his discretion and refused to release Megrahi, claiming that the severity of his crime meant that it was not in the public interest, here or in America, that a terrorist should be seen to be given clemency. But MacAskill would have had to make a proper argument for this. It would not have been acceptable, for example, to say that for political reasons – to save the Scottish government from embarrassment – Megrahi should be denied compassion. Expediency is not due process.

So MacAskill took the toughest decision of his life and allowed a convicted mass murderer to be released so that he could return in triumph to Tripoli, with saltires flying on the tarmac, and be embraced by Muammar Gaddafi as a national hero. Tough call. I would not have liked to be in his shoes.

Being a lawyer made this a particularly difficult decision for MacAskill to defend, since he resorted to abstract legalistic concepts which seemed remote from the reality of what has happened, and did not connect with the emotional turmoil of the Lockerbie victims' families. He seemed insensitive, robotic, mechanical even as he was professing compassion. But that is rather the style of Scottish law, where levity is frowned upon and emotion avoided.

The argument is the whole of the law. MacAskill has been criticised for failing to keep parliament informed, for unwisely visiting Megrahi in jail, and for not exploring the possibility of the Lockerbie bomber being removed to a hospice in Scotland. But no one successfully challenged MacAskill's central defence that he had acted in accordance with the law.

Will the government fall? No. There may be a vote after parliament resumes next week, but there is no indication that the opposition parties are ready to bring down this minority administration and force an election. They could do this at any time since they have a clear majority of seats, but have no programme and no alternative first minister. Will Kenny MacAskill survive? He has the support of the first minister, his party, and of course Scots law. His decision has been endorsed by some influential voices in Scotland such as the Liberal Democrat Lord Steel, the former presiding officer, who said that the decision was correct under Scots law, and by the former Labour First Minister, Henry McLeish. Indeed, it would be perverse for MacAskill to fall as a result of following the letter of the law. No one has suggested he has acted wrongly or outside his powers, or that there could be any legal challenge to what he has done.

The UK government has not challenged MacAskill's decision – whatever the Scottish Labour leader may say – and nor has Gordon Brown personally disowned it. No 10 says that it did not "boost terrorism", rejecting the charge made by the head of the FBI, Robert Mueller, yesterday. And it has to be remembered that the process that led to the repatriation of Megrahi was initiated by the British government after the "deal in the desert" in 2007 between Tony Blair and Gadaffi. (...)

The real charge against Kenny MacAskill is that his communication skills are not up to explaining – in terms ordinary people can relate to – exactly why Megrahi has been released. The answer is of course that he is dying, and you cannot punish a dead man. Nor does the Scottish legal system support the principle of the death watch, under which prisoners are incarcerated under observation until legally dead. Others may disagree, and of course many in America believe that Megrahi should have been executed for his crimes. But that is simply the way things are done here. Kenny MacAskill has done his duty, though at immense personal and political cost.

[The above are excerpts from an article on The Guardian Comment is free website by the Scottish political commentator Iain Macwhirter.]