Sunday, 2 January 2011

The justification of abuse

This is the headline over the latest article by Robert Forrester, secretary of Justice for Megrahi, on the website of Scottish lawyers' magazine The Firm. The article addresses the concerns that were expressed in the Scottish Parliament's Public Petitions Committee about the constitutional propriety (separation of powers and all that) of asking the Scottish Government to set up an inquiry into the circumstances of, and justification for, a conviction handed down by a Scottish court. A similar concern was expressed in a comment on this blog in response to an earlier article by Mr Forrester.


  1. I recall the earlier debates on this point. What I don't get is the idea that even if a government sees an obvious injustice it has a duty not to interfere. I feel such an approach is morally wrong.

    When the injustice is as clear as this one is, when there has been very clear political interference previously, up to and including the blocking of evidence being released in relation to a prisoner's appeal it is simply not acceptable to stand back.

    For any government to say, "Oh we can't organise an Inquiry, it isn't our place." is simply not acceptable. Megrahi had legal rights associated with his appeal and they were denied him by the Scottish Judiciary. That is a fact which even the UN supports and remains deeply unhappy about.

    This issue, the Lockerbie atrocity, is one which had far-reaching consequences and any Scottish Government should want the absolute truth. That wish should be shared by the UK government. It is not a wish based on emotion either but one rooted firmly in the desire for justice and ultimately a fair justice system. There is no argument on constitutional grounds, there just isn't.

    If we look back over history we will find that those who seek to find an "constitutional" reason to avoid doing something usually have a great deal to hide. The object of the exercise is also usually about delaying a decision for another 25 years, or more if possible.

  2. Dear Jo G,

    I wholeheartedly, and unsurprisingly, agree with you. Although the constitutional question, vis-à-vis the separation of powers, has been put to JFM on a number of occasions, far more times, in fact, than the three I could recall when writing the piece posted by The Firm, it is simply another example of the multitude of blinds that have been employed by those who just want us to go away.

    The principle behind the separation of powers is, of course, an entirely worthy one insofar as it is, in one respect at least, an attempt to reduce a potential slide into dictatorships and the like. However, throughout my own lifetime, I have never heard so much as a whisper of complaint at the fact that we are willing to tolerate quite blatant contradictions within the British Constitution (whatever that is). As mentioned in the article, we have judges with voting rights in the legislature, additionally, we seem perfectly comfortable in having members of the executive in the same position in the Commons. To most folk, talk of this stuff is all a bit exotic since we seem comfortable in lulling ourselves into believing that we live in a moderately benign political state.


  3. Nevertheless, the fundamental flaw in using the separation of powers argument as a reason for inaction is that we stumble into a political stalemate: trapped in a corner with no recourse to address and remedy the problem at hand. This is not what this principle exists to do. It is, and rightfully ought to be, perfectly possible for an executive to authorise independent inquiries into perceived failings in all three branches of the powers of state. In fact, it essential for an executive to have such a tool if we are to avoid becoming politically atrophied. The government knows full well that it has this power. As yet, JFM has not received a response to the letter sent by the SPPPC, and in one respect this could be a good sign. Hopefully, the government will demonstrate the courage to grant an inquiry. But there again, despite all the shenanigans that we constantly endure at JFM, I am ever the optimist.


  4. Thank you for that response Robert.

    As I said earlier, my issue with those who point to constitutional problems here is that they can be so blind to the hypocrisy of such a position.

    An independent body within the Judicial Establishment, the SCCRC, raised six grounds to support the hearing of the second appeal. The findings of the SCCRC were ignored. This was a major failure on the part of the Scottish Judiciary and in the process a prisoners human and legal rights were ignored and denied him. Who cracks the whip over the judiciary in such a situation? To whom are they accountable? Or are some really saying they are accountable to no one? They should think very carefully about that question.

  5. Quincey Riddle:
    An admirable and erudite contribution, without reservation, and it is unfortunate that it will not be read, nor reviewed, by a wider audience than the (presumably) narrow readership associated with that publication.
    As I said in the original (Devil’s Advocate) comment, I am neither an expert in constitutional nor legal matters. So, it required some effort to digest some of the points you make – and it was only later, subsequent to the action of peristalsis (continuing my wholly inappropriate alimentary analogy) that I understood it…I think.
    It has often intrigued me how things, like a review or a higher level appeal, get triggered in the extra-judicial process, especially when it is neither a defendant nor a prosecutor doing the obvious prompting. When the government get involved in this process, it can seem arbitrary – at least, to the outsider or non-expert – and this leads to confusion, I believe, in the motivation behind the decision. And when this motivation is not clear or not explained believably, the default take away is usually, it is a spurious a.k.a. political reason. Well, the same reasoning goes, I believe, when an appeal is not forthcoming…the government’s motivation (or non-motivation in this case) is interpreted as political, and not judicial, to their detriment.