Megrahi: Cameron misses the hippo in the drawing-room
The prime minister’s statement in parliament on 7 February about the report by the Cabinet Secretary (pdf) on the newly released documents in the Megrahi case inexplicably ignored the major unresolved issue revealed by the documents, and focused instead on two fundamentally misconceived accusations against the Labour government and the Scottish Executive respectively. The missed opportunity was the obvious incompatibility between (1) Labour’s championing of the Prisoner Transfer Agreement with Libya, under which Labour ministers claimed that Megrahi could be transferred from Scotland to Libya to serve the rest of his sentence in a Libyan prison, and (2) the terms of the original ‘initiative’ of the US and UK governments, formally approved by a mandatory resolution of the UN Security Council, under which Megrahi was to serve his sentence in the UK.
I discussed this rarely ventilated issue in an earlier post on this blog in July 2010 (see the sources cited there and also the important and authoritative comments appended to it by others). I also raised it in a letter to the Guardian published on 26 July 2010, whose text is reproduced in my earlier blog post. Apart from a baffling and highly unconvincing attempt to resolve this incompatibility in an obscure and heavily redacted page of the FCO website, and discussed in a comment on my blog post of last July here, there had been no official explanation of the discrepancy until the Cabinet Secretary published a mass of documents alongside his report earlier this week. Many of them (none originally intended for publication) reveal agonised arguments with the Americans and terse exchanges with the Scottish Executive on precisely this problem: the original arrangement agreed with the US government and approved by the UN Security Council provided for the sentence of any Lockerbie suspect convicted of the crime to be served in the UK (i.e. in Scotland, as the whole process was to be under Scottish law): whereas the Prisoner Transfer Agreement provided for the prisoner, i.e. Megrahi, to serve the rest of his sentence in Libya.
The newly published documents show that this difficulty was never satisfactorily resolved between London and Washington, although the disagreement was deliberately concealed from the Scottish Executive. It emerges that the US and UK governments’ lawyers managed to construct some kind of argument — the details blacked out in the published documents — that despite the terms of the US-UK initiative and the UN resolution, there was no legal obstacle to using the Prisoner Transfer Agreement to get Megrahi back to Libya to serve out the rest of his sentence in a Libyan jail; but the Americans argued that as HMG had given them (the Americans) a political “assurance” that Megrahi would serve his sentence in the UK, he could not be released under the PTA without the prior agreement of the US government. The then UK government admitted that they had given such an “assurance” to the Americans but went on to argue, incredibly in my view, that that political assurance could not have been ‘absolute’ since (a) no government could bind its successor, and (b) there might be a change in UK-Libyan relations that would somehow nullify the assurance. The UK rejected the American claim that Megrahi could not be transferred to Libya under the PTA without prior American agreement.
Both these positions seem extraordinarily short on credibility. The document providing for any sentence to be served in the UK was formally endorsed by Security Council resolution 1192 of 1998. The resolution was explicitly passed under Chapter VII of the UN Charter, meaning that its provisions are binding on all UN member states in international law; and in it, among other solemn statements of approval of the document setting out the US-UK initiative, the Security Council “Calls upon the … Government of the United Kingdom to take such steps as are necessary to implement the initiative”, and “Decides that all States shall cooperate to this end” — in both cases deliberately using mandatory Chapter VII language. In these circumstances, it’s surely extraordinary for the US and UK government lawyers to argue that there was no legal obstacle to the UK contravening a key provision of the initiative by setting up an arrangement for Megrahi to serve part of his sentence in Libya. No wonder the basis for this highly counter-intuitive legal position seems to have been carefully redacted in the documents as released.
The position of the then UK government on the so-called “political assurances” given to the Americans (and, even more importantly, to the Security Council) that Megrahi’s sentence would be served in the UK is equally if not more unconvincing. It introduces the remarkable doctrine, surely new and significant, that there are two kinds of “assurance” given by one government to another: an absolute assurance and, presumably, a relative assurance: and that the latter can be varied or withdrawn at will by the assuring government without the agreement of the other party. Almost everything is wrong with this proposition. In the first place, the provision for the sentence to be served in the UK was not an assurance: it was a key feature of a formal document agreed between the US and UK governments setting out the arrangements for the trial and, in the event of a conviction, the punishment of the Lockerbie suspects. Nor was it simply something promised by one government to another: it was part of a proposal submitted for formal approval by the highest body of the United Nations, the Security Council, so in approving it and calling for the UK government to implement it in a binding resolution, the whole of the UN became as much a party to it as either the UK or the US government. Under the resolution the UN appointed observers to monitor its implementation and decided to “remain seized of the matter” — meaning that it remains formally on the Council’s agenda. To argue, as the then UK government did, that it was free unilaterally to vary the terms of the arrangement without the prior agreement of either its partner in the initiative or of the Security Council requires a certain chutzpah. The argument that a government commitment given to another government can’t be ‘absolute’ because no government can bind its successor is similarly unconvincing: all international agreements between governments remain binding, regardless of changes of government in the contracting states, unless the agreement expressly provides otherwise — which this one did not, and anyway could not have done once it was enshrined in a mandatory resolution of the Security Council.
Again on the Prisoner Transfer Agreement: the then British government knew that, rightly or wrongly, in the eyes of the Libyan government and population Megrahi was and is an innocent man, wrongly convicted in a massive miscarriage of justice. (They are incidentally not by any means alone in this view.) The idea that the Libyans would have agreed to keep Megrahi in a Libyan prison for years, or until he died of cancer, after his transfer from Scotland under the PTA is obviously pure fantasy. The day after Megrahi had been admitted to a Libyan prison under the Prisoner Transfer Agreement (if he had been transferred under its terms), his lawyers would have been in the Libyan courts arguing that his incarceration in Libya was plainly unlawful since it contravened arrangements which all UN member states were obliged to implement under a mandatory resolution of the Security Council. Since a mandatory UNSC resolution supersedes a bilateral Agreement such as the PTA, Megrahi would have had to be released, and would have emerged half an hour later into the arms of his family, his doctors and cheering crowds of Libyans. No wonder both the Americans and the Scottish Executive took such strong objection to the Prisoner Transfer Agreement and to any idea that Megrahi should be transferred to Libya under it. Messrs Blair and Straw, who were chiefly responsible for negotiating the PTA with the Libyans, trying to include a provision in it excluding Megrahi from it, and then yielding to Libyan pressure to withdraw the exclusion, still have a lot of explaining to do. (It would be unkind to point out that the same two politicians adopted a similarly cavalier attitude to international law and the sanctity of government commitments when, as prime minister and foreign secretary respectively, they took Britain into an illegal war with Iraq in 2003 — having similarly persuaded their lawyers to dream up a far-fetched legal justification for doing so.)
So much for the credibility of the then British government’s case for claiming that there was no incompatibility between the terms of the original initiative approved by the UN, and the possibility of transferring Megrahi to Libya under the Prisoner Transfer Agreement. Anyway, it enabled HMG to tell the Scottish First Minister, Alex Salmond, and the Justice Secretary, Kenny MacAskill, who had asked the question, that both the US and UK governments agreed that there was no legal impediment arising from the original agreement and the UN resolution to using the PTA to send Megrahi to serve out his sentence in Libya. It was decided to withhold from the Scots any knowledge of the US-UK disagreement over the implications of the political assurance that both sides acknowledged had been given. (In the words of the old Scottish anecdote: weel, they ken noo!)
The prime minister’s statement on 7 February not only failed, mysteriously, to make any mention of the former government’s shaky position on the conflict between the mandatory Security Council resolution and the Prisoner Transfer Agreement: the points he did make contributed considerably more heat than light, and MPs’ questions after it were not much better. Mr Cameron acknowledged that (in Sir Gus O’Donnell’s words) nothing in the voluminous documents he had reviewed “contradicts anything in the then Foreign Secretary’s statement to the House Of Commons (12 October 2009) or the current Foreign Secretary’s letter to Senator Kerry (23 July 2010), or statements made by the former Prime Minister on this matter”: there was no evidence of a conspiracy, either between the Libyans and the British government or between the British government and the Scottish Executive which alone, as everyone agreed, had the responsibility of deciding whether Megrahi should be released from his Scottish prison, and if so, whether he should be sent back to Libya to serve out the rest of his sentence in a Libyan prison under the UK-Libya Prisoner Transfer Agreement (PTA), the preferred option of the British government, or released on compassionate grounds, these being that he was dying of cancer and that the independent medical advice to Kenny MacAskill, the Scottish Justice Secretary, was that he would probably die within three months if he remained in prison.
David Cameron however complained passionately and repeatedly on two different scores: first, that the Scottish Executive’s decision to release Megrahi on compassionate grounds was in his (Cameron’s) view utterly wrong, in view of the gravity of the crime of which he had been convicted — he should have been kept in jail until he died, according to the prime minister; and, secondly, that although there had been no secret about the view of the previous British (Labour) government that Megrahi’s release would be in Britain’s best commercial, diplomatic and other material interests, that government had failed to disclose to parliament the fact that they were assisting Libya with information about the procedures for applying to the Scottish Executive for Megrahi’s release, either under the Prisoner Transfer Agreement or on compassionate grounds, regardless of whether this help was being given in (legitimate) response to Libya’s (legitimate) request for the information, or whether on their own (legitimate) initiative — legitimate because of their declared view that Megrahi’s release would be in the best interests of Britain.
Neither complaint seems to hold water. Whether the Scottish Justice Secretary’s decision to release Megrahi on compassionate grounds was right or wrong can only be a matter of subjective opinion. No-one has suggested that the decision was not taken after due process and in good faith; it was undoubtedly in full accordance with Scottish law and precedent; it was based on humanitarian considerations in preference to the demands of revenge and retribution. The Lockerbie victims’ relatives’ opinions were sought and provided, and taken into account: in any case, they were by no means unanimous. Mr Cameron’s opinion on the matter, leaning towards harshness rather than compassion, is really of little material interest. The decision was not his, nor even one for his Labour predecessor. There exists no objective standard by which to judge Mr MacAskill’s decision. Personally I think it was right and that it ought to be supported, or at least respected, by the UK prime minister as the legitimate decision of a component government of what is now the semi-federation of the UK.
Nor is there anything in David Cameron’s second complaint. In helping the Libyans with factual information about the procedures for an application for a prisoner’s release under Scottish law, the Labour government was acting in accordance with its publicly declared assessment of the national interest; and the information it gave the Libyans was all in the public domain, freely available for the asking. Had the government disclosed in parliament or elsewhere the details of these exchanges with the Libyans, it would have been vulnerable to the accusation that this amounted to pressure on the Scottish Executive to decide in favour of Megrahi’s release, and such pressure would have been regarded, not least by the Scots, as wholly improper — a point that none of the opposition MPs who spoke in the mini-debate on 7 February saw fit to make.
It’s strange, on the face of it, that the prime minister and his Conservative party supporters in parliament should have wasted their ammunition on two invalid targets while ignoring the one outstanding issue, nakedly exposed in a string of documents now released by the Cabinet Secretary, about which members of the Labour government at the time still have a good deal of explaining to do. In the words of the song: Well, maybe next year.
Brian
Brian, I can’t quarrel with a word – you’ve exactly described and analysed the complexities of the case. I am sure Mr Cameron has worked himself up into a sufficiently fine lather for consumption across the Atlantic and likely on his own backbenches, although I’m not sure he can altogether satisfy the strangely pompous self righteousness of Sir Malcolm Rifkind who must have seen enough horrors in his political life not to be too shocked by the Al Megrahi manoeuverings. He has operated in Scottish politics for heaven’s sake.
Life being what it is, I hope Mr Cameron’s strident words do not rebound on him when, at some time in the future, he is confronted by the need to balance the reality of life against his loudly proclaimed principles.
Brian writes: Thank you for this, Richard. I too was struck by the extraordinary performance by Malcolm Rifkind in the mini-debate after Cameron’s statement on Megrahi. Unfortunately vindictiveness and the desire to punish generally seem to generate more passion than the gentler humanitarian instinct for compassion.
Presumably if someone is going to serve time in a Scottish prison it has to be under Scottish prison law, with food, water, exercise, visits and the right to be considered for compassionate leave or release. HMG has no right that I know of to bang someone up and simply throw away the key. The decision to grant compassionate release, like the old prerogative of mercy in hanging days, is surrounded by uncertainties, best left to one man’s honest hudgment and not questioned. I ignore of course the need to placate the Americans and perhaps the victims’ families, thinking them too demanding.
Brian writes: Thank you for this, Ronnie. I’m sure you’re right. One of the concerns raised in the documents now released by the Cabinet Secretary is that if the Scots had decided not to release Megrahi on compassionate grounds once he had been diagnosed with terminal cancer, he might have been granted leave to appeal for judicial review of the decision and if this had been granted and compassionate release ordered, all concerned (except Megrahi and the Libyans) would have got the worst of all possible worlds — retaliation against UK interests for the initial refusal to release, but Megrahi released anyway.
I think it’s regrettable that Cameron and the Tories, and the Scottish Labour opposition at Edinburgh, have been so vehemently hostile to MacAskill’s decision to grant compassionate release. He seems to have observed due process and the precedents and to have acted correctly at every stage, in accordance with Scottish law. Even those who disagree with it ought surely to have respected it.
MacAskill did invite (and receive) representations from relatives of the Lockerbie victims — he may even have met some of them — but I think, without being sure, that I have read somewhere that he decided that he should not be influenced by their views in reaching his decision. Personally I think that would have been right. The views and wishes of the relatives weren’t unanimous, so which should have weighed with him? — and anyway, as in the Oresteia, the point of the state assuming responsibility for administering justice is to eliminate any element of revenge and break the cycle of violence implied in vendetta by applying objective and impartial criteria. It seems to me that the modern emphasis on the “rights” of victims in the administration of the criminal law is essentially sentimental and retrograde.
Am I right in thinking that Megrahi’s lawyers were on the point of appealing against the original verdict, which many people think was unsound, and that the compassionate release was a device to forestall the appeal because of what might have been revealed? Or is this too conspiratorial?
Brian writes: Thank you for this, Tim. My understanding from the documents is that abandoning his appeal was not a condition of Megrahi’s release on compassionate grounds, but it would have been a condition of his transfer to a Libyan prison under the Prisoner Transfer Agreement (which, as explained in my post, would anyway in my view have been inconsistent with the terms of the arrangements embodied in a mandatory resolution of the UN Security Council). It seems that Megrahi did abandon his appeal when he thought (or his lawyers thought) he was likelier to be sent home under the PTA than released on compassionate grounds — perhaps before his diagnosis of terminal cancer. In the event he need not have done so.
Being of a suspicious disposition, I suspect that inducing him to drop the appeal was an important (but so far as we know unstated) objective of UK and Scottish Executive policy, since if the appeal had been heard — and especially if it had succeeded — a lot of highly embarrassing information about major flaws in Megrahi’s original trial might have come out. But it’s strange that Megrahi’s lawyers or other Libyans have not so far published that kind of information in order to clear Megrahi’s name and expose what really happened in the trial.
I am fairly certain, having talked to some of those involved, that when Tony Blair first set about negotiating the prisoner transfer agreement with the Libyans he was simply unaware of the commitment that Megrahi should serve (not “serve out”) his prison sentence in the United Kingdom. If true, this is a shocking lapse by the FCO. It’s bizarre to think that the Libyans too ought to have been aware of this, because they were a party to the original agreement about the transfer of Megrahi and indeed it was on their insistence that the commitment was given (because they feared Megrahi would otherwise be handed over to the Americans and executed). Perhaps they cunningly didn’t mention it, but the truth is almost certainly that their staff work was as bad as ours.
There are a couple of interesting points about the appeal(s). A Ministry of Justice document of October 2008 published this week contained the following which was new to me: “Currently the draft PTA states that no prisoner can be transferred unless or until all appeal proceedings have been concluded. This would not necessarily result in an end to proceedings as other individuals with sufficient title and interest could take this case up, after another reference by the SCCRC” (my emphasis). It is likely that an interested party either in Libya or in Britain will apply to the Scottish Criminal Cases Review Commission to renew the appeal, probably after Megrahi dies.
Secondly, the sentence of the court (against which the Crown had appealed but this was also abandoned) was life imprisonment with the possibility of release on probation after 27 years. It was therefore perhaps out of order for the Prime Minister to say in Parliament that he should have died in jail.
Brian writes: Many thanks, Oliver. These are indeed fascinating points. Your explanation of the enthusiasm of Tony Blair and the Libyans for a Prisoner Transfer Agreement, presumably as a way of getting Megrahi back to Libya (what other purpose could it have had?) when it would have been contrary to the original UK-US initiative document approved by the Security Council appears very plausible — namely that Blair was unaware of the relevant provision of the initiative, incredible though that seems. Yet that prompts another question: why did the UK side initially press for a provision in the PTA excluding from its scope anyone convicted in connection with Lockerbie? Answer: because the Scottish Executive was pressing for this exclusion. But how could the UK government side have accepted the Scottish proposal for an exclusion when the whole point of the PTA was to transfer Megrahi under it? Predictably, the Libyans (who presumably assumed that the UK demand for a Megrahi exclusion clause was simply a negotiating ploy of some serpentine kind) refused to accept the exclusion clause, whereupon the UK dropped its demand, pointing out that it was up to the party to the PTA holding the prisoner to decide whether to accede to an application for his transfer, so an explicit exclusion was unnecessary. The whole UK position throughout the negotiation of the PTA seems bizarre. One merit of your hypothesis about Blair’s ignorance of the requirement of the initiative that Megrahi must serve his sentence in the UK is that it explains the embarrassing feebleness of the grounds for the FCO’s subsequent assertion that there was no obstacle to transferring Megrahi under the PTA arising out of the terms of the initiative and the UN resolution in which it was enshrined. Once Blair and Straw had negotiated the PTA with the Libyans and the way had thereby been cleared for the signing of the contracts with BP and other British companies, the FCO — indeed, the government — was in the awkward position of finding that the whole PTA enterprise was incompatible with the instruments under which Megrahi was in prison. The nonsense about the “assurance” not having been “absolute” was, I suppose, the best the FCO lawyers and officials could come up with to square this obstinate circle. What scandalous incompetence!
I also remain puzzled by two other things: why haven’t the Scottish Executive exposed the clear conflict between the PTA and the initiative’s provision regarding the serving of the sentence in the UK? (Perhaps because they would have a hard job explaining why they had taken part in detailed exchanges with the UK government about the PTA, the exclusion clause and the decision to drop it, etc., without themselves pointing out at the time that the whole thing was irrelevant because Megrahi had to serve his sentence in the UK?)
And secondly, the point on which you touch: why, once Megrahi was safely home in Libya, haven’t his lawyers or the Libyan government or even a group of Libyan private citizens launched a campaign to clear his name, using the material that Megrahi had planned to deploy in support of his second appeal — and the material in the report of the Scottish Criminal Cases Review Commission? They wouldn’t apparently have been able to revive the appeal once it was formally abandoned by Megrahi (in the mistaken belief that this would enable him to be sent home under the PTA) without a fresh reference by the SCCRC, which might be difficult or impossible to arrange. But they could surely raise yet more serious doubts internationally about whether Megrahi’s conviction had been safe or whether there has indeed been a huge miscarriage of justice. Why have they not done so? One possibility is that they know that Megrahi was in fact guilty as charged. But that would not necessarily prevent them from raising major questions over whether he had a fair trial and was convicted on impregnable evidence, which many observers believe he did not, even if he was in fact guilty. You suggest that they may be waiting to do this until Megrahi has died, but why would they do that, when it would seem so obviously desirable to “clear his name” — or at any rate establish that he had been wrongly convicted — while he is still alive? Mysteries wrapped in enigmas!
Brian, a PS if it’s OK having read the comments and your further observations. It is in my mind that when sitting in Gaddaffi’s tent, Blair nodded and winked that Al Megrahi’s return to Libya was a formality but he had forgotten/ did not know that this was outwith the scope of the UK Government so whatever was in the PTA, he could not deliver it unless the SNP Government in Edinburgh was willing. This would be unlikely on two counts – politically as the SNP would not oblige Labour but also because of the need to maintain the independence of Scots Law. I suspect therefore that the coat trailing from Edinburgh about slopping out and changes in jurisdiction about guns was precisely that.
The other point about why there has so far been no appeal is interesting. Noises quite regularly surface about its imminency but so far nothing. On a purely speculative basis, is there a reluctance to proceed on the part of the Libyan Government because it would inevitably drop another (presumably friendly) Middle Eastern government in it?
Brian writes: Thank you again for this. I think your suggested scenario is very convincing, given what we know about Tony Blair’s unshakeable confidence in his own persuasiveness and in his consequent ability to dig himself out of any hole, using his charm as a spade. He follows his instincts and then leaves it to others to clear up the resulting mess. Your theory about the absence so far of an appeal (or a less formal campaign to clear Megrahi’s name) is also persuasive. Even if Libya was the only government involved in the Lockerbie plot — leaving aside whether Megrahi personally had any role in it and if so what it was — Gaddafi might well be reluctant to reopen the Lockerbie can of worms just in an attempt to secure Megrahi’s exoneration, for fear that his own role in the affair might come under more detailed scrutiny, and that this might upset his restoration of good relations with the west. This reluctance would have been sharply increased by the recent events in Tunisia and Egypt. As you say, there might be similar inhibiting factors if some other Arab or Muslim dictator or régime was in fact responsible or involved. Fingers have been pointed, rightly or wrongly, at the Syrians and the Palestinians. Meanwhile those anxious to protect the high reputation of the Scottish legal system would have their own reasons for sharply discouraging any reopening of the whole Lockerbie affair, involving a re-examination of what happened at Megrahi’s trial. There are many powerful forces with a vested interest in letting this particular sleeping dog lie.
My guess, incidentally, is that the alleged attempts at “deal-making” over slopping out and devolving responsibility for airguns was all part of the ritual manoeuvring for position over the PTA and what if anything it should say about Megrahi, and nothing to do with a future decision on Megrahi’s release or transfer: see (e.g.) http://j.mp/fylqfI.