by Joan McAlpine
All the documents relating to Megrahi’s release were made public today. As expected they vindicate the Scottish government and are highly embarrassing for Scottish Labour which continued to publicly oppose the 2009 release while they knew their ministers in London supported it and had done for a year. (Will Iain Gray and Richard Baker now admit defeat?)
However the new papers also show that the ludicrous American suggestion that the UK government successfully put pressure on Scotland simply is not supported by the facts. In the new papers the cabinet secretary Gus O’Donnell says “Moreover it is clear that Her Majesty’s Government (HMG) considered that any attempts to pressurise or lobby the Scottish government could be counterproductive to achieving this outcome.” eg Megrahi’s release.
This weekend saw another red herring in the Mail on Sunday – based on a false Vanity Fair piece and picked up by Guido. Paragraph 14 of the cabinet office document and subsequent letters between Jack Straw and Des Browne discuss a UK government “understanding” that Kenny MacAskill was prepared to discuss the terms of the Prisoner Transfer Agreement in 2007 in return for certain concessions on compensation for prisoners taking slopping out cases and devolution of firearms law. This was their “misunderstanding”, no doubt based on wishful thinking – they were desperate to conclude a PTA, in terms acceptable to Libya. The SNP wanted a specific exclusion of Megrahi from the deal (a position they maintained). So there was no deal or trade off. The UK Government reneged on seeking such an exclusion because Libyans wouldn’t accept it (or they wouldn’t progress energy/BP deal). In 2007, the issue was not about his release – it was about his non-release. Remember Megrahi did not have cancer at that point, the PTA was the only discussion and it was rejected by Scotland. So all the UK speculation about what MacAskill might want was just that – speculation.
The Scottish government rejected the dodgy Prisoner Transfer Agreement cooked by Tony Blair in return for oil deals. In 2008 the UK government was firmly in favour of release. But how much more evidence do we need of Labour hypocrisy? All the Scottish Government documents can be viewed here. The Scottish government’s detailed response to today’s new information is here. But the most damning assessment of Labour’s role comes from the Cabinet Secretary Gus O’Donnell whose assessment I will reprint in full:
SIR GUS O’DONNELL’S CONCLUSIONS
i. none of the materials that I have 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;
ii. it is evident from the paperwork, including in documentation already released, that the Libyans made explicit links between progress on UK commercial interests in Libya and removal of any clause in the PTA whose effect would be to exclude Mr Megrahi from the PTA. It is also evident, including in documentation already released, that BP did lobby the former Government to make them aware that failure to agree the PTA could have an impact on UK commercial interests, including Libyan ratification of the BP exploratory agreement (EPSA) signed in May 2007. As is already in the public domain, these commercial considerations played a part in the former UK Government‟s decision to reverse its position and agree to the removal of this exclusion clause. And once the exclusion clause had been removed from the draft PTA, the former UK Government in turn held up final signature until progress on commercial deals had been achieved. The records show that Cabinet Office and FCO Ministers and officials were mindful of, and pressed Libyan interlocutors for progress on, the major BP deal (alongside other UK deals) in the context of agreeing the PTA. But:
a) while the PTA provided a framework to consider the transfer of prisoners, it did not permit transfer when an appeal was outstanding and, critically, in line with every other PTA, provided no automatic right to
b) any decision on an application for transfer of Mr Megrahi under the PTA was for Scottish Ministers alone to make. Scottish Ministers retained an absolute veto over any request for prisoner transfer in the case of Mr Megrahi, a veto they used in August 2009 by rejecting his application for
c) the PTA did not in any case form the basis for the release of Mr Megrahi; 14
d) there is no evidence that pressure was placed on the Scottish Government by BP for the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds);
e) there is nothing in the paperwork to indicate any pertinent contacts between BP and HMG after February 2008;
f) the Libyans were not told there were linkages between BP‟s exploratory agreement and the transfer or release of Mr Megrahi (either under the Prisoner Transfer Agreement or on compassionate grounds).
iii. it is clear from the paperwork that at all times the former Government was clear that any decision on Mr Megrahi‟s release or transfer under a PTA was one for the Scottish Government alone to take. The documentation considered by the review demonstrates that they were clear on this in their internal deliberations and, crucially, in their contacts and exchanges with the Libyans, including at the highest levels, and with the Scottish Government. In Gordon Brown‟s only meeting with Colonel Qadhafi, on 10 July 2009, he made clear that the decision was solely a matter for Scottish Ministers and HMG could not interfere.
iv. nonetheless, once Mr Megrahi had been diagnosed with terminal cancer in September 2008, HMG policy was based upon an assessment that UK interests would be damaged if Mr Megrahi were to die in a UK jail. The development of this view was prompted, following Mr Megrahi‟s diagnosis of terminal illness, by the extremely high priority attached to Mr Megrahi‟s return by the Libyans who had made clear that they would regard his death in Scottish custody as a death sentence and by actual and implicit threats made of severe ramifications for UK interests if Mr Megrahi were to die in prison in Scotland. The policy was primarily motivated by a desire to build on previous success in normalising relations with Libya and to safeguard the substantial gains made in recent years, and specifically to avoid harm to UK nationals, to British commercial interests and to cooperation on security issues. The desire to see such a result developed and intensified over time as Mr Megrahi‟s health declined and the imminence of his death appeared greater; 15
v. Policy was therefore progressively developed that HMG should do all it could, whilst respecting devolved competences, to facilitate an appeal by the Libyans to the Scottish Government for Mr Megrahi‟s transfer under the PTA or release on compassionate grounds as the best outcome for managing the risks faced by the UK. This action amounted to: proceeding with ratification of the PTA; explaining to Libya in factual terms the process for application for transfer under a PTA or for compassionate release; and informing the Scottish Government that there was no legal barrier to transfer under the PTA;
vi. I have not seen any evidence that HMG pressured or lobbied the Scottish Government for the transfer or release of Mr Megrahi (either under the PTA or on compassionate grounds). Jack Straw stated clearly in his calls with Alex Salmond including on 13 and 24 October 2008 and his meeting on 28 April 2009 that this was a matter for the Scottish Government. Indeed, throughout this period, the former Government took great effort not to communicate to the Scottish Government its underlying desire to see Mr Megrahi released before he died. Moreover, it is clear that HMG considered that any attempts to pressurise or lobby the Scottish Government could be counter productive to achieving this outcome. Although it is likely that the Scottish Government was aware of this desire, there is no record that it was communicated or that UK interests played a part in Mr Megrahi‟s release by the Scottish Government on compassionate grounds. When the matter came to the then Prime Minister in August 2009, he did not seek to exercise any influence on the First Minister or the Scottish Government. Mr Megrahi‟s release on compassionate grounds was a decision that Scottish Ministers alone could – and did – make