Could the UK Government have stopped repatriation?

Gordon Brown's government could have used its powers under the Scotland Act to challenge the decision to release the Lockerbie bomber, it has emerged.

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. (...)

The key part of the Scotland Act [section 58(1)] 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."

[The above are extracts from an article by Gerry Peev in tomorrow's edition of Scotland on Sunday.

The contention that this provision of Scotland Act 1998 could have been used by the UK Government to block Abdelbaset Megrahi's repatriation is quite false. There may have been (indeed, there was) an undertaking by the UK (in a letter to the Secretary General of the United Nations) that anyone convicted in the Zeist trial would serve his sentence in Britain. But that is not what the Act means by an international obligation. What it does mean is a treaty obligation or an obligation directly imposed by a binding UN Security Council Resolution.

Moreover, while transfer of Mr Megrahi to serve the remainder of his sentence in Libya under the UK-Libya prisoner transfer agreement would have constituted a breach of this undertaking (which, as I have said, is not an "international obligation" within the meaning of the Act), this is not what Kenny MacAskill did. He rejected prisoner transfer precisely because he thought that this might breach an understanding legitimately held by the United States. What he did instead was to release Mr Megrahi from his sentence on compassionate grounds. The whole of the sentence that the law of Scotland required Mr Megrahi to serve was served in Scotland; and he was then released. There was accordingly no breach of the undertaking that the sentence would be served in Britain.]