[In today’s edition
of the Scottish Review two articles on Lockerbie and the Megrahi case are
published. The first is from the pen of
the journal’s editor, Kenneth Roy. It
reads in part:]
Here is a case of tragic loss. I mean – a real one.
A young woman, Flora Swire, is looking forward to spending
Christmas 1988 with her boyfriend in the United States. She boards Pan Am
flight 103 and very soon she is dead. Her father Jim has to make a fuss before
he is allowed to see her body. He then, over a period of many years, pursues
his own investigations, goes to Libya, prevails upon the colonel to do the
decent thing and hand over any suspects.
Two men appear before a panel of Scottish judges at Camp
Zeist. At the start of the trial, Dr Swire is convinced of Megrahi's guilt. By
the end of it he is equally convinced of his innocence. When the verdict is
declared, he faints. To the tragic loss has been added tragic irony.
Just before Christmas, Dr Swire returned to Libya. I had a
long chat with him about his visit. He was able to see Megrahi, whom he
considers a friend. What passed between them he will not disclose. When he left
Megrahi's house Dr Swire was visibly upset. He does not expect to see his
friend again.
Tragic loss; tragic irony – and now absolute farce.
The truth about the Lockerbie prosecution is contained within
a long report of the Scottish Criminal Cases Review Commission, whose own
painstaking inquiries after the trial pointed to the possibility, putting it no
higher, of a miscarriage of justice and the desirability of a further appeal
against conviction. This report has never been published.
The Scottish Government, in the face of sustained pressure to
have it published, introduced an enabling bill. A year ago, this magazine
warned that the bill was useless; that it would not achieve the desired
purpose. This was not a piece of journalistic fancy on our part. It was based
on a remarkably frank assessment given to the Scottish Review by no less an
authority than the Scottish Criminal Cases Review Commission itself. The
commission informed us that the bill would not remove one of the major
obstacles to publication: the pre-condition that all the parties concerned must
consent to its release.
As a public service, we gave heavy prominence to the
commission's statement. The Scottish press evinced not the slightest interest
in it. Nor, so far as we know, did anyone else in a position to do anything
about it. The disastrous bill went ahead.
It would be relatively simple to make an order removing the
consent requirement. Instead the Scottish Government has perversely chosen a
legislative strategy which will result in the continued non-publication of the
Lockerbie report.
Why?
What does Scotland owe Tony Gauci that we are prepared to go
on protecting this man? What does it owe any of the parties?
What do we have to fear from the publication of this report?
What is the real agenda?
We do ourselves no favours with this obstruction of justice.
We are fooling no-one – except possibly ourselves.
Let an order be placed before the Scottish Parliament
removing the consent requirement. Let the order be placed and let the report be
published. The reputation of Scotland demands no less.
At 10am on Tuesday the 7th of February 2012, the Justice for
Megrahi (JFM) Committee delegation met before the justice committee of the
Scottish Parliament to answer questions regarding their perspective on Part 2
of the Criminal Cases (Punishment and Review) (Scotland) Bill currently under
consideration at Holyrood. (...)
it is no secret that the Scottish Government claimed that
part 2 of the bill was principally framed with a view to freeing up the
Scottish Criminal Cases Review Commission's (SCCRC) statement of reasons for
his second appeal for publication.
In 2009, the Scottish Government made a statutory instrument
regulating the circumstances in which the material on which the commission
reached its conclusions could be published. The wording of the Scottish
Criminal Cases Review Commission (Permitted Disclosure of Information) Order
2009, was such that it rendered any chance of the statement of reasons and the
material on which it was based ever reaching the public domain impossible
without the express consent of those bodies and/or individuals who had provided
evidence, either directly or indirectly, to the commission when putting
together the document.
Having blocked publication of the statement of reasons for
the entire duration of its first term in office and this first part of its
second right up to the present day with this provision, the Scottish Government
announced in the run-up to last May's general election in Scotland that it
would remedy the situation by placing primary legislation before parliament to
finally facilitate publication of the SCCRC document. Primary legislation? Why
opt for primary legislation when all that is required is to utilise the simple,
relatively cheap, quick and effective expedient of an amending statutory instrument
to remove the consent requirement in the 2009 statutory instrument?
Following the government's confirmation of its intention to
resort to the cumbersome, time-consuming and expensive process of primary
legislation, on 4 August 2011, JFM wrote to the Scottish cabinet secretary for
justice, Kenny MacAskill, and put the above question directly to him. The
content of his reply was, to put it mildly, less than illuminating. He ended
his response by saying:
'... primary legislation is needed to provide the
flexibility required to ensure that an appropriate legislative framework is put
in place. The proposed legislation will facilitate the release of a statement
of reasons in circumstances where an appeal has been abandoned'. (Kenny
MacAskill, 24 August 2011). Throughout his letter, however, he signally and
studiously failed to address at any stage the question that was put to him.
Quite apart from the legislative process being employed by
the government, in the view of JFM and many others, Part 2 of this new bill
will be very hard pushed to do what the government claims it has been designed
to achieve. The bill under consideration here is so circumscribed by caveats
and provisos that it will simply maintain the status quo whereby, under certain
circumstances, providers of evidence to the SCCRC will still be in a position
to block the publication of the document whilst it contains information which
such persons have supplied to the SCCRC.
Indeed, the [Scottish Government] justice directorate
confirms this. (...)
In response to repeated questions from the members of the
justice committee on 7 February, the JFM delegation referred its questioners to
this statement. It is common in legal practice to talk in terms of 'finding the
law'. Here it would appear that JFM has indeed found the law. Whether or not
sufficient heed is being paid to the legislative references that JFM has made
is open to question since we have yet to hear from any MSP, cabinet minister
or, for that matter, any respondents to the bill, any specific and cogent argument
which establishes that JFM's interpretation of the law is in error. All that
seems to be being said is that there is a perceived issue with data protection;
however, this perception is not being supported by reference to any contrary
interpretation of the law. Under such circumstances, therefore, it is not
unreasonable to assume that JFM is right to say that such a conflict is a 'red
herring'.
This, of course, would not be the first time that JFM has
demonstrated that its understanding of the law is accurate in contrast to its
detractors within and without government. The public may recall that following
months of claims by the Scottish Government that it did not have the power or
remit to open an inquiry into Lockerbie/Zeist, the government had, finally and
reluctantly, to accept that its interpretation of the 2005 Inquiries Act was in
error and that JFM was correct.
Taking the above into account, it is the position of JFM that
there would be no significant obstacle to the publication of the SCCRC's
statement of reasons for Mr al-Megrahi's second appeal if the government simply
employed secondary legislation to modify the 2009 order in such a manner that
the consent requirements were disposed of and part 2 of the Criminal Cases
(Punishment and Review) (Scotland) Bill were dropped altogether. Surely, both
the precious parliamentary time and taxpayers’ money could be far better
utilised by directing them towards the health service, education policy,
transport infrastructure and other pressing matters of state rather than
wasting them on what is quite patently a bill which is both unnecessary and
unlikely to achieve what the government claims it is setting out to do.
None of this is the fault of the justice committee, whose
task it is to gather material from respondents, make assessments and present
recommendations to government. Nor can parliament as a whole be held
responsible. It is even questionable whether one can lay the blame entirely at
the feet of the government. The problem here, more likely than not, lies in the
unduly powerful influence that the Crown Office, the lord advocate and the
civil service have over policy and decision making as it affects this case and
other aspects of the law in Scotland today. It is time for both our executive
and our legislature to listen much more closely to the advice and opinions of
the wider legal profession in our country rather than the narrow self-interest
of vested interests closer to hand.
