[This is the headline over the version of Ian Bell's article that is published in today's edition of The Herald. I would not normally reproduce the text of a piece that had appeared here earlier in a slightly different form. But this merits an exception to that rule. It reads as follows:]
One of my favourite pictures is Raeburn’s portrait of Henry Cockburn, Lord Cockburn, once judge within the Court of Session.
It’s there in a glance, cool as you like, direct from an age of reason. It says: here are my principles; convince me.
I once entertained a theory that most of Scotland’s high-end prose, Walter Scott’s most obviously, descended from Scots law. Years ago, I even tried to convince an audience that Robert Louis Stevenson could not have written nit-picking tales of moral difficulty without Hume and the Faculty of Advocates. They wondered what I was on about.
Scotland is soaked in the language of lawyers. After the churches and education, the law was the one inviolable (supposedly) thing we rescued from Union. We are a country of laws, of legal tradition, and of reasoned prose. Most of our politicians have been lawyers, and most of our hired legal hands have been political. They can’t help themselves.
Cockburn concludes his Memorials with the news that he’s getting on in the world. Thanks to the usual patronage, the boy from Edinburgh’s Hope Park is to be Solicitor-General. He writes: “I trust that we [Jeffrey had bagged Lord Advocate] shall do our duty. If we do, we cannot fail to do some good to Scotland. In the abuses of our representative and municipal systems alone, our predecessors have left us fields in which patriotism may exhaust itself”.
So, Cocky: what would you have made of Moussa Koussa?
Here we have an unresolved mass murder. Here we have a witness. Here we have (it is suggested) “abuses of our representative and municipal systems”. Here we have certain subservient protocols attendant to a treaty of Union. Still, one would wish to at least detain the witness, surely?
We get a legal letter to The Herald instead. The indefatigable Brian Fitzpatrick writes, in timely fashion, to the oldest daily newspaper in the English-speaking world with a note of support, it seems, for a public inquiry into the Lockerbie atrocity.
Or rather, one from the Faculty suggests, there might be “scope” – Cockburn would have flinched – “for laying to rest some of the more egregious claims of the tribe of Lockerbie conspiracy theorists – those who have made a life’s work of the now unravelling assertion that somehow Libya and its senior operatives, including Abdelbaset Ali Mohmed al Megrahi, were not to blame”.
Send lawyers, as the song used to go, guns and money.
The brief then goes on to lavish praise on pillars of our legal temples. He suggests that the Camp Zeist trial was terribly hard – unpaid? – work for those who allowed security spooks to infest the well of the court. He overlooks the Socratic wisdom that entertained the “bribing” ($3 million to a pair of those crucial Maltese witnesses) of participants by American “authorities”. He does not trouble himself with forensic difficulties.
But, first and foremost, this lawyer nowhere mentions the Scottish Criminal Cases Review Commission (SCCRC). It counts as a significant omission. It makes no odds to me whether “Gaddafi did it” or not. I just want to know what went wrong with Scots law, why the SCCRC found six reasons – after years of work and 800 pages – for doubting the conviction of Megrahi, and why the rest of us, we sometime citizens, are barred from knowledge granted as pub gossip to every lawyer in the land. And then told to forget about it.
“Conspiracy theorists” is neat. It suggests that anyone who might wonder about the habits of our legal-political establishment has problems – a ticklish inversion – with reality. It is meant to shut down argument. The conviction is as safe, it seems, as all those blasted, bloodied Lockerbie houses that no longer stand.
The real mistake was to believe that Colonel Gaddafi’s fall would give oxygen to the truth. Instead, in the blood and the mire, there’s a big carpet being unfurled, and a lot of sweeping going on. On this point, I am liable to sound repetitive: why isn’t Moussa Koussa under arrest?
More particularly: why has he not been taken into custody by officers from Dumfries and Galloway? Students of the Treaty of Union may take another view, but I thought – certainly in the case of Megrahi – that Scots law held sway. So why has our Crown Office been “negotiating” with the Foreign Office over this witness, of all witnesses?
Saif Gaddafi, heir to idiocy, says there are no secrets. Washington and London, he tells the BBC, know all there is to know about Lockerbie. Scotland’s lawyers, some of them, know exactly what he means. But Scotland’s people have been given no such advantages.
What was asked of Koussa? That’s not a complicated, nor legally compromised, question. Having won London’s sanction – ignoring questions of jurisdiction – what followed? Just state the question, or the area of inquiry: we have a right to know. Disclosure is in no sense prejudicial to a possible trial, far less to a public inquiry.
The obvious fact is this: “Gaddafi did it” is not the point. The safety of a conviction, and the apparent suborning of a legal system by security services is another, bigger, deal. Cockburn wouldn’t have sat still for it. Brian Fitzpatrick prefers a lesser prose.
You have to ask yourself: why does it still matter, and matter so much, to those who promenade around Parliament Hall? Why does it still, after all these years, infect every party? You might have thought that an SNP Government would be rushing to settle the Lockerbie business, if only to discomfit Labour placemen and Tory hacks. No chance.
Three hundred and odd strollers in the Faculty count for more, in Scottish public life, than any other constituency. Which is odd. Lockerbie wasn’t their doing. They did not infect the evidence. They didn’t nobble the politicians, or write the editorials, nor do a squalid deal in the desert. They were legal cabs for hire.
Henry Cockburn saw them coming. I don’t even know if Memorials of His Time is in print. Still, the good judge had witty things to say about small countries and the profession of principle. The reason we don’t know about Lockerbie is this: the lawyers don’t like it. And they respond to argument by any means necessary.
How come? What worries them so much? Why has there been no public inquiry? Who – pace Fitzpatrick – would be harmed? Why isn’t Koussa under close arrest? Why does the Government of Scotland, another party to the safety of an absurd conviction, fail to assert the rights of an independent legal code?
So: is Brian Fitzpatrick supporting a properly independent public inquiry into all that befell the Lockerbie prosecutions? He doesn’t quite say as much. Why not? Instead, he seems to believe that anyone in doubt over the independence of our legal system has fallen in with “a tribe”.
I’d be interested in a test case. What would one propose, tomorrow, as a paid defence – with an SCCRC judgment to hand – for Megrahi? And how would the betting go, up at the courts, around the dockets, or by the Shirra’s seat, for that one?
Cockburn said: “In the abuses of our representative and municipal systems alone, our predecessors have left us fields in which patriotism may exhaust itself”. Two hundred and seventy were murdered, and still we fail them.
[Coincidentally (?) the Lallands Peat Worrier blog today features a post on Cockburn, one of my Scottish legal heroes.]