Abdelbaset Ali Mohmed al-Megrahi (Decision)

– in the Scottish Parliament at 9:34 am on 2nd September 2009.

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Photo of Alex Fergusson Alex Fergusson None 9:34 am, 2nd September 2009

The next item of business is a debate on motion S3M-4748, in the name of Kenny MacAskill, on the decision on Abdelbaset Ali Mohmed al-Megrahi.

Photo of Alex Salmond Alex Salmond First Minister of Scotland, Leader, Scottish National Party

On a point of order, Presiding Officer. As I understand it, the motion and amendments for today's debate were lodged at 5 o'clock yesterday evening, which is necessary under our procedures. Since then, there have been some dramatic developments overnight: namely, a claim by the Libyan foreign minister that the Prime Minister and the Foreign Secretary did not want Mr al-Megrahi to die in a Scottish prison. Although that claim was initially disputed by Scottish Labour, it has now been confirmed by Mr Bill Rammell—who was the minister involved—and, in the past few minutes this morning, by the Foreign Secretary. [ Interruption. ]

Photo of Alex Salmond Alex Salmond First Minister of Scotland, Leader, Scottish National Party

As the Parliament's credibility depends to some extent on the credibility of the main Opposition party, is it in order under our procedures to allow the Labour Party to submit a drafting amendment, given that its current position looks totally and absolutely ridiculous?

Photo of Alex Fergusson Alex Fergusson None

That is entirely a matter for the Labour Party, from which I have received no request to lodge such an amendment.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

On a point of order, Presiding Officer. Today's debate is for all members to ask questions of and address issues to the minister who was responsible for making the decision. In his statement last week, the Cabinet Secretary for Justice told the Parliament on several occasions that the decision was his and his alone. When calling members to speak, will you protect the interests of all members of the Parliament by calling to sum up the debate the minister who was responsible for making the decisions so that he can address the points that members raise?

Photo of Alex Fergusson Alex Fergusson None

Just as the previous point of order was a matter for the Labour Party, that point is a matter for the Government party. It is up to that party who it chooses to sum up the debate. I cannot order that to happen.

Photo of Margo MacDonald Margo MacDonald Independent

On a point of order, Presiding Officer. The First Minister asked whether it is in order for Labour to submit a drafting amendment at this stage. With the greatest of respect, I think that that is in order.

Photo of Alex Fergusson Alex Fergusson None

You are correct that that would be in order, but I have received no such request.

The debate is heavily subscribed and we have already eaten considerably into the time that is available for it. I must insist that members stick rigidly to the time that is allocated to them. I call Kenny MacAskill to speak to and move the motion in his name.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party 9:37 am, 2nd September 2009

On 20 August, I announced the decisions that I had taken in relation to Mr Abdelbaset Ali Mohmed al-Megrahi. On 24 August, I repeated the substance of that announcement for the benefit of Parliament and took questions. I will now offer further detail to the Parliament.

At the time of my statement, given the public interest, I took the unprecedented step of publishing the medical advice on which my decision was based. Yesterday, I published a substantial package of information relating to the lead-up to the ratification of the prisoner transfer agreement, the representations and other material that I took into account in reaching my decisions and the advice that was given to me. It has always been my position to offer as much information as we can. I have also published details of the contact between the Scottish Government and the Libyan Government.

I am grateful to those who have given their approval for material to be released. When third parties have requested that material be redacted, we have complied with that request. This is a sensitive matter, particularly where the families of victims are concerned, so we want to ensure that we do nothing that causes them any further pain. I will publish further material as we secure agreement to do so.

Let me first deal with the issue of prisoner transfer. On 29 May 2007, Tony Blair signed a memorandum of understanding with the Libyan Government. The Scottish Government consistently opposed the PTA, and on 7 June the First Minister made a statement to the Parliament. He expressed his concern that the memorandum of understanding could be interpreted as having implications for the due process of law, and he emphasised that the Scottish Government was determined that decisions on any individual case would continue to be made following the due process of Scots law. The PTA was finalised and signed in November 2008, and it was ratified in April this year. The Libyan Government applied for the transfer of Mr al-Megrahi on 5 May 2009. Despite our previous opposition, I was duty bound to consider the application, and I did so according to due process.

Photo of Richard Baker Richard Baker Labour

Is the reality of the situation not that the transfer request from the Libyan Government could not be agreed to while the Crown appeal against the leniency of Megrahi's sentence was outstanding? Did the cabinet secretary at any point have any indication that that appeal would be dropped?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

No, it was not the case that it was automatically ruled out. It was possible for it to be homologated and for the appeal to be dropped. As Mr Baker is now aware, a note was lodged by the Libyan Government that indicated that it would be prepared to drop matters. Indeed, I received representations from Mr al-Megrahi's lawyers that their interpretation of how the situation could be dealt with was different. However, our view was that the application was properly submitted. The criteria would have to be met, but I was duty bound to consider the application.

I received numerous letters and representations, and I recognised that a decision on transfer would be of personal significance to those whose lives had been affected. On 27 May, I received advice from my officials that proposed a process that would allow representations to be taken into consideration in a fair and appropriate fashion. Accordingly, I met groups and individuals with a relevant interest.

I spoke to the United States Attorney General, Eric Holder, on 26 June. On 1 July, I met the families of victims from the United Kingdom; on 6 July, I met a lady from Spain whose sister was a member of the cabin crew; and on 9 July, I held a videoconference with families from the United States. In addition, on 23 July, I spoke with a family whose relatives died in Lockerbie. With the agreement of the families, I have published the notes of those meetings.

I met Minister Alobidi and the delegation from the Libyan Government on 6 July and again on 10 August.

Photo of Robert Brown Robert Brown Liberal Democrat

The cabinet secretary mentions the dealings with the Libyan Government. When Mr Salmond wrote to Jack Straw back in June 2007, he indicated that his officials would not be drawn into any engagement with the Libyan authorities that could be seen to compromise the on-going judicial process. How many meetings did Mr MacAskill's officials have with Libyan officials? When did they start? What was their purpose?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

There were a considerable number of meetings with Libyan officials to discuss all relevant factors. The notes of those meetings have been published. I cannot give the member a precise number off the top of my head, but if he cannot tally it from the information that is available on the internet I will be more than happy to provide it to him. We have provided full details of the relevant information.

As I explained on 20 August, I faced conflicting advice on the extent of any pre-trial agreements about where any sentence should be served. In an effort to establish the true position, my officials wrote to the Foreign and Commonwealth Office on 22 June, and the FCO replied on 3 July. I wrote to the Foreign Secretary on 16 July to seek further clarification. Ivan Lewis, Minister of State at the FCO, replied on 3 August. He indicated that the assurances that had been given to the Libyans were political, not legal.

We did our very best to get to the bottom of the issue, but I still do not know the exact nature of the pre-trial discussions, nor what may have been agreed between the UK and Libyan Governments, or any other Government. However, I am certain of the clear understanding of the American families and the American Government. As I explained, that understanding was a critical factor in my consideration of the application for Mr al-Megrahi to be transferred, and it was on that basis that I rejected it.

Prior to ratification, the prisoner transfer agreement was scrutinised by the Westminster Joint Committee on Human Rights. It was the first PTA that did not require the consent of the prisoner. As a result, Jack Straw gave a commitment that, in cases in which applications are not submitted by the prisoner, the prisoner must be given the opportunity to make representations.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Last week, the minister told Parliament that no deal was done with Mr Megrahi about the dropping of his appeal, but papers that he released yesterday show that at his meeting with Mr Megrahi he emphasised that the dropping of the appeal was a necessary precursor to any release. That is what the papers say. Mr Salmond denied that the minister even discussed the matter. Is that not an implied deal?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

No. The representations that I made to Mr al-Megrahi are the same as those that I made to every party—I said that, for a prisoner transfer application to be considered, criteria had to be met. That is what I stated to Mr al-Megrahi in the presence of his solicitor, Mr Tony Kelly. I think that Mr Kelly was quoted as saying on television that it was a factual discussion that some would interpret in the manner that Mr Rumbles has but that most others would see it as reasonable to point out that the criteria of the PTA required there to be no outstanding appeal. Under the PTA, it was my obligation to make that clear to the party.

Photo of Margo MacDonald Margo MacDonald Independent

The minister was obviously keen that justice should be seen to be done, and he informed Mr al-Megrahi of his rights. Did he also inform him that, under a compassionate release, he would not have to drop his appeal?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I cannot remember the precise details, but I have published the note of the meeting. I went to see Mr al-Megrahi about the prisoner transfer application. On compassionate release, as with other matters, I indicated that I would consider matters together because I did not see the point in going round all the parties again. As is recorded in the notes taken by civil servants, I stated to Mr al-Megrahi the criteria that had to be met—in particular, article 3(b) of the prisoner transfer agreement. Beyond that, I listened to his submissions and received a written note of them, which I have published. No further matters beyond that were discussed. He had the benefit of having his solicitor present. The discussions were on the PTA.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I must make some progress.

During the process, all parties were given the opportunity to make representations directly to me. Mr al-Megrahi chose to make representations in person, just as other parties did. The families of victims and the US, UK and Libyan Governments all made their representations directly to me. When Mr al-Megrahi chose to make representations in person, clear advice was given to me that that request could hardly be denied. The application for prisoner transfer had been submitted by his national Government, not through his legal defence team in the High Court. As I have said, it would have been outwith the tenets of natural justice to refuse his request, and I met Mr al-Megrahi at Greenock prison on 6 August. The note of that meeting, together with the text that he read out to me, has been published.

I now turn to compassionate release. Section 3 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 gives the Scottish ministers the power to release prisoners on licence on compassionate grounds. The act requires ministers to be satisfied that there are compassionate grounds that justify the release of a person who is serving a sentence of imprisonment. Although it does not specify the grounds for compassionate release, the principles are set out in guidance from the Scottish Prison Service, which suggests that compassionate release may be considered when a prisoner is suffering from a terminal illness and death is likely to occur soon. There are no fixed time limits, but a life expectancy of less than three months may be considered an appropriate period. The guidance makes it clear that all prisoners, irrespective of sentence length, are eligible to be considered for compassionate release. That guidance has also now been published.

I received an application for compassionate release from Mr al-Megrahi on 24 July 2009. In accordance with the procedure that is laid down in the 1993 act and the SPS guidance, the application was sent first to the SPS so that I could be provided with reports and recommendations by the governor of Greenock prison, the doctors and prison social work staff. The medical advice before me consisted of a report from the SPS director of health and social care, Dr Andrew Fraser, who is a former deputy chief medical officer for Scotland and one of the country's most eminent doctors.

Let me be clear: national health service consultants, including experts in palliative care, were consulted as part of Mr al-Megrahi's care. Dr Fraser had access to all Mr al-Megrahi's medical records and conferred with NHS consultants as part of the process of drafting his advice on compassionate release. The people with whom he conferred included the NHS cancer consultant who acted as an external reviewer—the suggestion that the SPS director of health and social care did not consult relevant specialists is totally inaccurate. Dr Fraser's report took all the expert views into account and is clear. It states:

"the clinical assessment is that a three month prognosis is now a reasonable estimate for this patient".

The governor's report forms a further part of the procedure. It is equally clear and it, too, recommended compassionate release.

As part of the established procedure in assessing an application for compassionate release, the case was referred to the Parole Board for Scotland on 10 August. It was considered by the board on 11 August, and the board's recommendations were included in the advice that I received on 14 August. The board was also clear on the question of Mr al-Megrahi's prognosis. Its report states that

"there can be very little doubt as to the short life expectancy" of Mr al-Megrahi, and it made a unanimous recommendation, stating he was "suitable for compassionate release".

Since 2000, the Scottish ministers have considered 31 applications put forward by the Scottish Prison Service for compassionate release on medical grounds. Seven have been refused and 24 granted. The seven applications were refused because they did not at the time meet the criteria for compassionate release. There has been no case in which the recommendations from the Scottish Prison Service and the Parole Board were all positive but ministers refused the application.

It has been suggested that Mr al-Megrahi could have been released from prison to reside elsewhere in Scotland. Clear advice from the deputy chief constable of Strathclyde Police on 14 August was that the security implications of such a move would be severe.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

If the advice had been contrary to that, and the police had said that there was not a security consideration, are there any grounds on which the cabinet secretary would have refused the application?

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I say to Mr Purvis that I do not in this instance or in any instance breach the constitutional rules that we have in this Parliament and in this country that state that I do not interfere in operational matters for the police. I follow the advice that is given.

I was advised that a minimum of 48 officers would be required simply to allow Mr al-Megrahi to live in Scotland. The option of having such a large police presence in a residential area and the need for additional resources to manage hospital visits rendered it utterly inappropriate, and I ruled it out on that basis.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

On a point of order, Presiding Officer. Do you realise that Mr MacAskill might have inadvertently misled Parliament when he said that he would never interfere in the operational direction of any police authority? It is on record that the special adviser to the Scottish Government did precisely that.

Photo of Alex Fergusson Alex Fergusson None

That is a matter for the minister to respond to as he sees appropriate.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

It was not a question of cost or capability—I know that Strathclyde Police would have risen to the challenge—but I found grotesque the idea of an armed camp or international media circus in a residential area, or even worse, in a hospice for the dying.

Accordingly, as Mr al-Megrahi met the criteria, it was my responsibility to decide whether to release him. Based on the values, beliefs and common humanity that define us as Scots, I allowed him to return home to die.

I move,

That the Parliament notes the decisions by the Cabinet Secretary for Justice to reject the application by the Libyan Government to transfer Abdelbaset Ali Mohmed Al Megrahi under the prisoner transfer agreement between the United Kingdom and Libya and to release Mr Al Megrahi on compassionate grounds; notes that the decision on compassionate release is in accordance with the recommendations from the Scottish Prison Service and the Parole Board for Scotland, and endorses the decision as being consistent with the principles of Scottish justice.

Photo of Richard Baker Richard Baker Labour 9:53 am, 2nd September 2009

It is impossible for us in this chamber to comprehend the terror and suffering of those who died in the Lockerbie bombing, and it is difficult for us to imagine the extent of the trauma and grief of the families who were left behind. However, what we do know is that the decision that was faced by the cabinet secretary was a difficult one that could not be more important. That means that it was crucial that it was made using due process, that it was handled with sensitivity, and that it was informed not only by the important quality of compassion, but by the other words that are inscribed on the mace of our Parliament: "integrity", "wisdom" and "justice". The sad reality for us today is that, too often, those elements were missing from a chaotic decision-making process that was badly mishandled by the cabinet secretary, and which has reflected badly on Scotland. I believe that we should make clear the fact that there were fundamental errors in the management of this process and state that, therefore, the decision to release Mr al-Megrahi on compassionate grounds to Libya is one with which we cannot agree.

We lodged our amendment with confidence. The First Minister might not like it, but his Government will be held to account for the decision that he and his ministers have made.

Photo of Alex Salmond Alex Salmond First Minister of Scotland, Leader, Scottish National Party

When Mr Baker lodged his amendment yesterday, was he aware of the position, as reported to the Libyan authorities, of the then Foreign Secretary and the Prime Minister?

Photo of Richard Baker Richard Baker Labour

That is irrelevant, because the decision was for the First Minister and the cabinet secretary. Mr Rammell and everyone else have made it clear that the decision was for the First Minister and the cabinet secretary. They must be held accountable for it, which is what we will do today. They might want to deflect attention from themselves, but that only shows their lack of confidence in their decision.

Photo of Richard Baker Richard Baker Labour

I will not. We are dealing with a serious issue and we are trying to claw back some of our reputation, so I hope that members on the Government party's benches will raise their game and treat the debate with some dignity.

Yesterday, some of the documents that informed key aspects of the process were released. They raised more questions than they provided answers. Perhaps we will receive some answers from the cabinet secretary today.

It becomes ever clearer that, well before he made the formal announcement of his decision, the cabinet secretary had already come to the conclusion that he would free al-Megrahi to go back to Libya, and that he then marshalled the evidence as best he could to justify that decision. That flies in the face of due process and is something that this Parliament should not accept.

I wish to highlight a number of areas in which I believe that due process was not followed. A crucial example is the cabinet secretary's decision to meet al-Megrahi personally in Greenock prison. Did he not realise when he was driven into Greenock prison, past television cameras from around the world, to meet Mr al-Megrahi, that it would cause widespread misgivings about his management of this crucial process? He must have known that it was unprecedented for someone in his position to meet directly a person who had been convicted of such heinous crimes, not only while he was considering his application for compassionate release, but while his appeal was on-going.

Photo of Ian McKee Ian McKee Scottish National Party

If the member feels that it is a "heinous" crime to visit a mass murderer in his prison cell, what does he think about a head of state visiting the person who commissioned that mass murder in his tent in Libya?

Photo of Richard Baker Richard Baker Labour

The meeting between the cabinet secretary and Mr al-Megrahi took place while Mr al-Megrahi's appeal was on-going and was entirely unnecessary. That is quite a different situation from the one that Ian McKee describes.

The cabinet secretary has said that he had to meet Mr al-Megrahi because of natural justice, but originally he said that he had to do so because Jack Straw implied that he should, although he had to withdraw that statement because it was clearly misleading to Parliament.

The justice department letter of 7 July shows that, incredibly, the meeting was not the initiative of Mr al-Megrahi but was first suggested by the cabinet secretary. I find that incredible. Did no warning bells sound before that approach was made about how inappropriate it was?

Photo of Richard Baker Richard Baker Labour

I must make progress.

At first, Mr MacAskill said that he had to have the meeting because he was following advice from Jack Straw, but that has been shown to be totally incorrect. Now we find from the minute of the meeting that it was the cabinet secretary who raised the issue of al-Megrahi's appeal—as Mr Rumbles pointed out—and said that it would have to be dropped in order for the transfer request to go ahead. Of course, only a few days later, that appeal was dropped. That is quite a different account from the one that we had from Mr MacAskill in the chamber last week.

I want to turn to a number of other flaws in the process on which questions remain. Mr MacAskill has referred to the view of the Parole Board, which said that al-Megrahi was a suitable candidate for release, largely on medical evidence that I shall deal with later. However, it is clear that that was simply advice to ministers and that the final decision lay with them. The board also noted that no victim representations had been presented for consideration. Surely that is an opportunity that should have been given to the families of those who died.

I have said that I believe that the cabinet secretary had made his mind up a long time before he announced his decision: the papers show that, on 22 July, his officials discussed with Libyan officials the potential and timescale for compassionate release to Libya for al-Megrahi. However, it was only on 14 August that a meeting took place with Strathclyde Police to discuss the security implications of his being released on compassionate grounds but remaining in Scotland, where conditions on his license could obviously be more rigorously enforced. However, on that same date, officials advised that they had already prepared for the contingency that Megrahi would be supervised in Libya by East Renfrewshire Council. It seems that far more effort has gone into that than into considering alternatives in Scotland.

Strathclyde Police—at least prior to the wholly inappropriate intervention in police matters by the First Minister's spokesman—stated:

"If a decision had been made to release Mr al-Megrahi in Scotland, we would have provided whatever security was required."

The cabinet secretary had a duty to examine all the options, but he simply was not interested in them. I am sure that other members will return to that point.

There are other questions of process. Why was Mr Megrahi sending his belongings home weeks before the decision was apparently made, and who knew about that? In addition, important elements of the guidance on compassionate release do not appear to have been given much consideration. Crucially, the guidance states that the type of offence and the length of sentence that is outstanding form part of the criteria. Mr Megrahi had 19 years left to serve of a sentence that the Crown was appealing against as being unduly lenient. Did the cabinet secretary really give that full consideration?

I turn to the medical advice that the cabinet secretary received—or, as appears to be the case, did not receive—in relation to Mr al-Megrahi's health. The cabinet secretary received the views of five doctors: one general practitioner and four cancer specialists. How can we have any confidence in the decision that the cabinet secretary reached when four specialists were not willing—as Dr Fraser highlighted in his report—to say that Mr Megrahi had less than three months to live? A number of experts, including Professor Roger Kirby, the chairman of Prostate UK, have cast severe doubt on that assessment. Why was the caution that was expressed by four cancer specialists disregarded?

Photo of Richard Baker Richard Baker Labour

I ask the members to choose between themselves.

Photo of Sandra White Sandra White Scottish National Party

Will Richard Baker tell me in all sincerity—with his hand on his heart, and bearing in mind that the word "integrity" appears on the mace—whether the amendments that the Labour Party and the other Opposition parties have lodged are political posturing of the worst kind, rather than anything to do with Megrahi or even the Lockerbie victims?

Photo of Richard Baker Richard Baker Labour

That question is not pertinent to the medical evidence to which I was referring. Frankly, it is a load of nonsense.

Why was further medical opinion on such a crucial issue not sought? Why did the cabinet secretary choose to base his decision on the solitary opinion of a single GP? We cannot be certain of how long Megrahi has left to live, but there is huge doubt about the three-month prognosis to which the cabinet secretary and the guidance on the decision have referred.

Photo of Richard Baker Richard Baker Labour

After hearing the previous intervention, I would rather make some progress.

Shortly after the meeting in Greenock prison, the BBC announced that Megrahi would be released back to Libya, in exactly the way in which events transpired a week later. It was not this Parliament that was told first, nor—more important—was it the families of those who died, but a broadcaster. That meant that, for a week, there was speculation and counterspeculation—often from the Scottish Government—about the decision. Naturally, there were urgent representations and views on the matter from the United States and Libya.

If the cabinet secretary is confident that he and his advisers were not responsible for that appalling breach of protocol, he should have no misgivings about calling a leak inquiry to examine the matter—but he has yet to do so. I urge the cabinet secretary to do so today, because that breach can only have made this a more difficult time for the families of the victims. It made the anger of the many people at home and abroad who opposed the decision all the more acute when the leaks were finally confirmed and we saw Mr Megrahi, who was convicted of 270 counts of murder by the Scottish courts, returning to Libya amid saltires flying at Tripoli airport.

Photo of Margo MacDonald Margo MacDonald Independent

Will Richard Baker sign the motion that I lodged three weeks ago and which demands an independent inquiry?

Photo of Richard Baker Richard Baker Labour

It is inevitable that the decision will be subject to further parliamentary scrutiny, and I take on board Margo MacDonald's point.

I turn to Mr MacAskill's statements on the prisoner transfer agreement, to which he has given ample weight. In fact, the prisoner transfer agreement could never have been agreed anyway, because the Crown appeal against the leniency of Mr Megrahi's sentence was outstanding. The cabinet secretary's response earlier today did not make sense. It may suit the Scottish Government to focus attention on that agreement, but it does a disservice to proper scrutiny by Parliament. Whatever decision was made, it was always for Scottish Ministers to make. The decision was made for release on compassionate grounds. That was an issue for Scottish ministers alone.

It would have been much better if the application for compassionate release had simply been treated like any other: if the medical evidence, written representations and advice from the Scottish Prison Service had simply been gathered and a decision made on the basis of that information, without fanfare and pre-announcement. However, by the time the cabinet secretary made his announcement, it was inevitable that there would be huge questions about his reasoning in making the decision. It was inevitable, given the leaks and speculation that characterised the weeks leading up to the decision, that the response from those who disagreed with his decision would be all the more anguished. That was regrettable, avoidable and damaging for our country.

However, it was not simply the way in which the decision was made that hurt our international reputation—

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

Is Richard Baker suggesting that I should not have considered the prisoner transfer application at all, despite representations from the Foreign and Commonwealth Office that it was appropriate that it proceed?

Photo of Richard Baker Richard Baker Labour

I am saying that it is academic, because the Crown appeal was on-going.

It was not simply the way in which the decision was made that hurt our international reputation, but the way in which it was announced. Many of us here are Christians: in Scotland, we have people of many faiths and none. However, Mr MacAskill's suggestion that the only compassionate action to take was to grant Mr Megrahi compassionate release to Libya was wrong. His suggestion that the decision should be taken in the context that, as a cancer sufferer, Mr Megrahi was being judged by a higher authority was bizarre and actually quite offensive, and his suggestion that his characterisation of our justice system and his view of our national understanding of compassion was the only possible view was quite wrong.

It is clear that there are in Scotland different views of this difficult decision, and I respect those who hold a different view from mine, but it is also clear that the majority of Scots believe that Mr MacAskill made the wrong decision. It shows arrogance that is typical of the current Administration that the cabinet secretary presumed that he could speak for all Scots on the matter, when clearly he could not. He has failed to justify the decision that he has made, and to account for the shambolic way in which he went about making it.

Today we will record that Parliament cannot endorse a decision that was meant to be arrived at through due process, but which instead came about through manipulation and mishandling. I believe that Scotland's Parliament will act today to restore the reputation that Scotland's justice secretary has done so much to damage.

He has spoken for his Government and for his party, but he has not spoken for this Parliament or for this country.

I move amendment S3M-4748.1, to leave out from second "notes" to end and insert:

"believes that the process of making this crucial decision was mishandled by the Cabinet Secretary for Justice; believes that it was wrong for the Cabinet Secretary for Justice to meet Abdelbaset Ali Mohmed Al Megrahi in prison while considering his application for compassionate release to Libya and that this potentially sets an inappropriate precedent; also believes that it was unacceptable that the media was made aware of the decision a week before it was formally announced; does not accept that the Cabinet Secretary for Justice received or sought sufficient medical advice to make his judgement on Megrahi's prognosis; further believes that the Cabinet Secretary for Justice did not sufficiently explore options to take account of Megrahi's illness other than compassionate release to Libya; recognises that Scotland's international reputation has been damaged not simply by the decision to release Megrahi on compassionate grounds to Libya but also because of the way that taking the decision was mishandled, and, given the mishandling of this process by the Cabinet Secretary for Justice, does not agree with his decision to return Megrahi to Libya on compassionate release."

Photo of Bill Aitken Bill Aitken Conservative 10:06 am, 2nd September 2009

Today, we debate a decision that was fundamentally wrong, and a decision process that was deeply flawed. The decision to release Mr Megrahi back to Libya was a mistake of international proportions. If the Salmond Government was so adamant that the Lockerbie bomber had to be released on compassionate grounds, why—despite what has been said this morning—could he not have been kept in Scotland? The failure to investigate properly whether Mr Megrahi could have been released into secure care in Scotland has proved to be a catastrophic error of judgement. All the evidence shows that the Salmond Government did not take that option seriously. Why not? It is becoming abundantly clear that the Salmond Government decided to release Mr Megrahi to Libya and has been scrambling around ever since to find the evidence to justify that decision.

From the evidence that has emerged overnight, I believe the Brown Government thought that Mr Megrahi would and should be released, and was giving nudges and winks to the Libyans that that would be the case. The plot thickens—deals were clearly being done.

The meeting on 22 July between the Libyan Government and senior Scottish Government officials clearly indicates that a decision to release Mr Megrahi to Libya had been taken three weeks before the police were consulted on keeping him in Scotland. The justice secretary stated last week that police advice strengthened his view that Megrahi should be released to Libya. However, the police evidence in that respect is ambivalent: the police were not asked specifically whether Mr Megrahi could be kept securely or not.

Photo of Bill Aitken Bill Aitken Conservative

I will not give way just now.

The question remains. If the Glasgow airport bomber could be held securely for more than a month in a Scottish hospital, why did the justice secretary feel that the police were unable to hold the Lockerbie bomber in secure care? Mr MacAskill has so far failed to provide an adequate answer to that question.

If the Scottish police can secure the G8 summit, including President George W Bush, cannot they safely secure one sick man and his family—a family which, I remind members, had lived in Scotland for some time without incident?

Photo of Bill Aitken Bill Aitken Conservative

No.

There are too many unanswered questions, and the evidence that was released yesterday has served only to deepen the suspicions that deals have been done. It has emerged that Prime Minister Gordon Brown told the Libyans that he did not want Mr Megrahi to die in jail. Is not it remarkable that Mr Brown can make his feelings known before the decision was made, but not afterwards?

The Salmond Government in Scotland has also not done enough to prove that its decision to release a mass murderer was based on sound evidence and solid advice. Where is all the medical evidence? Where is the evidence and advice that Mr MacAskill was given that led to his decision not to keep the Lockerbie bomber in secure care in Scotland? Why was the Salmond Government so adamant that Mr Megrahi could not be released under a prisoner transfer agreement, but then said that he could be released on compassionate grounds? How can the Government justify not releasing Megrahi to a Libyan prison but releasing him to his Libyan home? It just does not make sense.

The law is clear that the Scottish Government alone should have made the decision. I just wish that it had been made in a less amateurish manner. I am not arguing about whether it was a difficult decision to take—it was a very difficult decision. I just wish that the Salmond Government had made the decision in a less cack-handed manner. Perhaps the First Minister, Mr Salmond, should have stepped up to the mark when the decision was made, and not left his justice secretary to be hung out to dry. The decision was the biggest one that the Salmond Government has had to take, and the First Minister left it to Mr MacAskill. Typical.

I also find it incredible, and in some ways abhorrent, that a justice minister should visit a mass murderer in prison. Mr MacAskill is correct to say that an applicant for release in such circumstances has the right to put forward his case personally, but that does not mean directly to the minister. The matter could have been dealt with by officials. Mr MacAskill's decision to go personally to Greenock jail shows almost breathtaking naivety and sent out completely the wrong message.

Why does a Scottish National Party back bencher insist that pressure was put on Megrahi by senior Scottish officials to drop his appeal? That is denied by the First Minister and it was denied by Mr MacAskill in a letter to me yesterday, but if they are so confident that the papers do not exist, why will he not ask the back bencher to put up or shut up? I seldom agree with the member concerned, but I have always found her to be totally honest. Do the e-mails really exist? If so, we should know.

I turn to the medical justification for the decision. Again, the evidence is there, but it is simply not adequate. Mr MacAskill is not qualified to make a medical decision—nor, in fairness, would he claim to be so—but is it not absolutely astonishing that, in effect, he was prepared to predicate a decision of such gravity on the advice of one clinician and on that of others who had not personally examined Mr Megrahi? There appears to have been no categorical advice that Megrahi had only three months to live. It is absolutely astounding that, on a decision of such importance, Mr MacAskill refuses to publish independent expert advice to back up his case.

Mr MacAskill's decision to see Megrahi, the fact that the decision was leaked, his failure to obtain thorough and corroborated medical evidence and the fact that no options were considered other than return to Libya can only persuade any dispassionate observer that the decision to repatriate Megrahi was taken weeks ago and that, thereafter, the evidence had to be sought to justify that decision.

Photo of Bill Aitken Bill Aitken Conservative

No.

According to the justice secretary, the decision was taken on compassionate grounds, but has there ever been a less deserving case? Mr al-Megrahi murdered 270 people. He showed no compassion for his victims. He has admitted his guilt by dropping his appeal. Mr MacAskill has made it clear that he believes that Megrahi is guilty, yet he has been allowed to return to Libya to a hero's welcome. That was fundamentally wrong.

The SNP also seems to think that Scotland has a monopoly on compassion. That is nonsense, and quite frankly I was astonished that the SNP sought to make nationalist capital out of this serious international issue. The episode has proved not only that the SNP is inexperienced and unable to cope on the international stage but that it is pretty small-minded and petty into the bargain.

We need to know the facts. We need an inquiry at Westminster but also an inquiry here. Too much suspicion remains. Many people in Scotland must feel today that the Scottish people have been let down by two Governments—Alex Salmond's at Holyrood and Gordon Brown's at Westminster.

I move amendment S3M-4748.1.1, to insert after second "Libya":

"; recognises the ability of both the Scottish police and the NHS in Scotland on the basis of past performance to have supported the release of Mr Al Megrahi to an appropriate location and regrets that this was not adequately explored".

Photo of Robert Brown Robert Brown Liberal Democrat 10:15 am, 2nd September 2009

Few of us in the chamber today and few people throughout Scotland doubt the difficult nature of the decision that the Cabinet Secretary for Justice took about the release of Mr al-Megrahi, who was convicted of what Mr MacAskill rightly described as the "heinous" murder of 270 people all those years ago. Let me say immediately that the decision was the justice secretary's to make and that it is rightly not subject to review by the Scottish Parliament or anyone else, a "higher power" or otherwise. However, the minister is accountable to Parliament and, more important, to the public, for the decision and particularly for the manner of it.

The matter, of course, has attracted enormous international attention and focus on Scotland. Much of that attention has been hostile or unfavourable, whether from the American relatives or resulting from the invidious sight of the saltires waving in Tripoli during that triumphal return—although even that could be tolerated if the decision was right and seen to be right. It is Parliament's job today to examine whether that was the case.

Kenny MacAskill's decision was a quasi-judicial one that was required to be made in terms of the relevant law—in this case, the Prisoners and Criminal Proceedings (Scotland) Act 1993 and, more particularly, by updated circular 21A/05, which was issued by the Scottish Prison Service in June 2005.

Photo of Robert Brown Robert Brown Liberal Democrat

I will not give way at the moment, if the member does not mind.

The justice secretary told us of the medical evidence, of the predictions of Mr Megrahi's life expectancy, and of the three-months rule, which is not binding but which, in effect, he purports to have applied in this case. It is now clear, as others have said, that there was considerable doubt as to whether Mr Megrahi fulfilled the criteria of the three-months rule. However, in neither the cabinet secretary's address to the world, nor in his statement to Parliament last week, did he identify clearly the full criteria that required to be considered in considering an application for compassionate release. They are contained in annex 1 to the guidance, which states that specific factors must always be considered in such cases.

They include the

"type of offence and prisoner's supervision level", and

"The length of the sentence outstanding, the effect on the overall sentence if early release is granted and any comments that the trial judge made on sentencing which may have a bearing on the question of early release".

In other words, compassion—worthy as it is—is not an unrestricted reason for compassionate release. There is a balancing operation to be made. It is, if the man who has been convicted of the Lockerbie bombing gets out after serving only a fortnight for each victim's life, extremely difficult to see how any future cabinet secretary could refuse any valid application for compassionate release, however heinous the crime and however short the time served. It is noteworthy that none of that is in the official advice—none of the specific factors that have to be considered. Did Mr MacAskill ask to see the actual text of the guidance, and if not, why not, on such a vital issue?

Photo of Margo MacDonald Margo MacDonald Independent

Although I fully appreciate Robert Brown's description of the legal niceties, would he have disregarded the realpolitik that swirled around the al-Megrahi case and made it a unique decision?

Photo of Robert Brown Robert Brown Liberal Democrat

The question is not whether I would have disregarded it; the point is that the cabinet secretary is required to disregard it. These things are important, but the decision has to be made on legal grounds. That is why I and others are stressing the point. My submission to Parliament on the point is that Mr MacAskill and his officials misdirected themselves as to the basis of the decision by not giving proper legal consideration to the guidance and the balance of considerations in it.

Mr MacAskill was required to act in a quasi-judicial fashion—literally, in an even-handed way, like a judge. However, I have to say that, in my years of legal practice, I never heard of a judge whose decision was leaked to the world's press before he issued it, nor can I say that I have heard of a judge who visited the accused or convicted person in anything like these circumstances in his prison cell. Let me illustrate why that needs to be so, by dwelling for a moment on the justice secretary's visit to Mr Megrahi in Greenock prison.

We have prised the note of the meeting out of the Scottish Government, which issued it so reluctantly and belatedly yesterday. Mr MacAskill stressed that the meeting was part of his consideration of the prisoner transfer agreement, but said that he was considering the matter in parallel with the compassionate release application, which he had received by that time. The minute of the meeting states:

"Mr MacAskill stated it was necessary to highlight that when he makes his decision on prisoner transfer, he can only grant a transfer if there are no court proceedings ongoing. Mr MacAskill stressed that this was a decision for Mr Al-Megrahi and his legal team alone."

What was the purpose of that statement? Megrahi had a highly skilled legal team and was accompanied by his solicitor; those people, the Libyan Government and, indeed, Mr Megrahi himself knew the condition with regard to the PTA.

Photo of Kenny MacAskill Kenny MacAskill Scottish National Party

I remind Mr Brown that the application was made by the Libyan Government, not through Mr Megrahi's team, which was involved in the High Court appeal. Mr Megrahi was accompanied by his solicitor. However, as I have said, that related to the PTA and was a request from Mr Megrahi. Those matters are entirely separate from concurrent events in the court of appeal.

Photo of Robert Brown Robert Brown Liberal Democrat

The fact remains that in the unprecedented and inappropriate personal discussion that took place with Mr Megrahi in his prison cell, stress was placed on the condition in the PTA of the abandonment of the appeal. By instigating such a personal meeting and raising this issue himself, Mr MacAskill was, at the very least, laying himself open to the suggestion that he appeared to want the appeal to be dropped and that the appeal was a precondition in every other matter.

Furthermore, the Libyan Government's prisoner transfer application said that Mr Megrahi

"has submitted a written undertaking to the Libyan side stating that he is willing to abandon his appeal if the other party"— that is, the Scottish Government—

"approved his transfer to his home country".

In other words, al-Megrahi was seeking to bargain with the Scottish Government over the dropping of the appeal. As I said at the beginning of my speech, the cabinet secretary must deliver justice and be seen to deliver justice in a proper process according to law.

It is also clear from—I believe—seven meetings between Scottish Government officials and senior Libyan Government officials since at least October 2008, that the ground was being prepared for a release on compassionate grounds rather than on the basis of a prisoner transfer—which, I have to say, would have been granted over Mr Salmond's dead body, given the background to the matter.

The truth is that there were two parallel tracks that sometimes overlapped. First, there was the UK Government's pursuit of the prisoner transfer agreement, perhaps with the laudable, if ambiguous, objective of better relationships with Libya. The Scottish Government wanted no truck with such a move—it was blighted by association with UK Labour ministers and had been damned by the First Minister—and was instead intent on the course of compassionate release. However, both Governments clearly wanted Mr Megrahi out, perhaps, as Margo MacDonald has suggested, for wider political reasons.

One further question that troubles me is why Mr al-Megrahi abandoned his appeal after Mr MacAskill met him in prison. It seems to me that it is in the Scottish Government's power to find some way of examining and testing the issues that would have been raised at that appeal and any new evidence associated with it—which is what we have lost as a result of the appeal's being abandoned.

No matter whether it was right or wrong, or whether it was timely or premature, the decision has been made. One thing that Parliament can do is press the cause of those who still grieve. That is worth while and, indeed, is a matter on which the SNP Government has fallen short. After all, the enlightenment had its following in our country, and Scotland should be known as a place where justice and the rule of law are precious, not just the compassion that we all share

Photo of Alex Fergusson Alex Fergusson None

No. The member is just finishing.

Photo of Robert Brown Robert Brown Liberal Democrat

I move amendment S3M-4748.1.2, to insert after second "Libya":

", in particular the opportunities for compassionate release within Scotland; believes that the announcement should have been made to the Parliament rather than to a press conference; considers that justice and compassion for the victims' families have not been served by this process;"

Photo of Alex Fergusson Alex Fergusson None

We come to the open debate. Members will have got the picture that time is extremely tight, so I warn those who will speak later that they might get foreshortened.

Photo of Michael Matheson Michael Matheson Scottish National Party 10:24 am, 2nd September 2009

Like many people, I recognise that the decision that the cabinet secretary had to reach has probably been one of the most difficult made by any minister in the short life of this Parliament. I have spoken to many constituents and friends about the decision; although some supported it and others opposed it, all said that they were very glad not to have been in the position of having to make such an extremely difficult decision.

I believe that the cabinet secretary took the right decision for the right reasons. Indeed, the documents that have been released in the past 24 hours demonstrate that he conducted the whole matter in accordance with the law in Scotland.

One element that has been particularly challenged is the cabinet secretary's decision to visit Mr al-Megrahi in Greenock prison. Recently, there has been confusion about whether the visit was about the compassionate release request or the prisoner transfer agreement. As the documents that were published yesterday show and as the cabinet secretary himself has stated on a number of occasions, the visit was purely about the prisoner transfer application. I concede that—

Photo of Michael Matheson Michael Matheson Scottish National Party

No—I want to make some progress.

It is fair to say that the visit to the prison was unprecedented. However, it is worth keeping in mind the fact that the prisoner transfer agreement under which the application had been made was also unprecedented. The agreement was the first to have been signed by the UK Government that did not require the prisoner's consent to repatriation. Jack Straw made it very clear to the Joint Committee on Human Rights that, where a prisoner has not made an application, they should be given the opportunity to make representations to the decision maker.

Of course, written representations could have been made and, under normal circumstances, that might have been appropriate. However, we need to consider the facts of the case. Every other party involved had been given the opportunity to discuss the matter directly with the cabinet secretary either in person or by videolink. Would it not have been rather strange to refuse the very person who was the subject of the application the same opportunity? It could well be argued that, had the cabinet secretary spoken to all other parties but refused to speak to Mr al-Megrahi and had then turned down both applications, such a decision, because of its quasi-judicial nature, could have been open to judicial review. Given the importance of the decision, I think, on balance, that the cabinet secretary's prudent approach in ensuring that all parties had the opportunity to make direct representations to him was the right one.

Photo of Robert Brown Robert Brown Liberal Democrat

Is the truth of the matter not the other way round? Mr al-Megrahi was allowed to make representations about compassionate release and the prisoner transfer application while the UK relatives and others were expressly refused any opportunity to make representations about compassionate release, which, as we now know, was the main thrust of the Scottish Government's approach.

Photo of Michael Matheson Michael Matheson Scottish National Party

Unfortunately, Mr Brown is trying to rewrite what happened. The note of the meeting makes it quite clear that it was about the prisoner transfer agreement.

I want to move on to another important issue: the compassionate release system in Scotland. I believe that, despite what some have said in recent days, the compassionate release procedure is a strength of our justice system rather than a weakness. In recent weeks, the Opposition parties have all tried to state that, in some way, the compassionate release procedure has not been applied correctly in this case and that, given the horrific nature of Mr al-Megrahi's crime, he should not have been entitled to such consideration. Although such a position might, on the surface, seem attractive, what it does not make clear is how we can have a compassionate release system that is determined by an individual's crime. Should we have a list of crimes for which individuals should not be entitled to compassionate release? In effect, such a move would turn a quasi-judicial system into a political system.

Photo of Margo MacDonald Margo MacDonald Independent

Is the member saying that compassion has no limits, that it is an absolute and that, once such a decision is made, it must be applied?

Photo of Michael Matheson Michael Matheson Scottish National Party

We must ensure that we have a consistent approach to dealing with these matters. The cabinet secretary took the same approach to this case that he took with the other 25 cases in which compassionate release was granted.

As the documents published by the Scottish Government clearly demonstrate, the cabinet secretary followed due process in reaching his position. I am sad to say, however, that the attacks by Opposition parties on their own legal system with regard to the compassionate release procedure serve only to further their narrow political advantage. They do not recognise the damage that they might cause to our justice process. While Iain Gray is saying that he would not have released Mr al-Megrahi at all, his masters in London have been telling the Libyans something entirely different. While the Tories here have been saying that Mr al-Megrahi should have been allowed to go to a hospice or some kind of hospital somewhere else, David Cameron has been saying that he should never have been released in the first place. Then we have the Lib Dems, whose leaders of the past have stated that the decision was clearly the right one.

When it comes to standing up for the principles of humanity and decency, I would rather be standing alongside towering individuals such as Nelson Mandela than so-called political leaders in the Parliament with their small-minded, double-standard politics.

Photo of Elaine Murray Elaine Murray Labour 10:30 am, 2nd September 2009

The Government motion concludes by stating that the decision to release Mr al-Megrahi on compassionate grounds was

"consistent with the principles of Scottish justice."

On 15 January, the First Minister stated on the topic of possible release:

"On the questions of conditional or compassionate release ... on every occasion I have emphasised the critical importance of upholding the integrity of the Scottish judicial system".—[Official Report, 15 January 2009; c 14061.]

That is the point of the debate. Did the decision and the process by which it was taken uphold the integrity of the Scottish judicial system? Was it consistent with the principles of Scottish justice? Was releasing Mr al-Megrahi to Libya, to be fêted on his return to his homeland, the correct decision? Was it compassionate to all those affected by the atrocity that took place in the skies over Lockerbie on 21 December 1988?

I turn first to the cabinet secretary's meeting with Mr al-Megrahi on 6 August in Greenock prison. From earlier statements that Mr MacAskill made, I received the impression that the prisoner had approached him with a request for a meeting. The acceptance of such a meeting would, in itself, be highly unusual, although the case was exceptional. However, I was astonished when the documents that were published yesterday revealed that the deputy director of the criminal justice directorate, Mr George Burgess, wrote to Mr al-Megrahi on 7 July 2009—ironically, on notepaper with the slogan "Homecoming Scotland 2009"—stating that, as part of the process of consideration of prisoner transfer release, Mr al-Megrahi had

"the opportunity to put forward" his

"own representations either in writing or personally to Mr MacAskill."

Mr Burgess then requested that Mr al-Megrahi let him know whether he wished to meet Mr MacAskill. So, in fact, the cabinet secretary offered to meet Mr al-Megrahi, initially, apparently, to discuss prisoner transfer, despite that not being possible at the time because of the two outstanding appeals against his sentence.

The offer was made on the basis that Mr MacAskill had received direct representations from other parties. Therefore, on 6 August, the cabinet secretary met a terminally ill man—a man who was missing his family and desperate to return to his homeland in time for Islam's most important festival, and probably his last opportunity to celebrate Ramadan. We know that the possibility of Mr al-Megrahi dropping his appeal was referred to at the meeting. The application for compassionate release had already been lodged, on 24 July, and Mr al-Megrahi made several references to his terminal illness and his desire to see his family, as well as protestations of innocence. Prisoner transfer and compassionate release appear to have been conflated.

In contrast, the videoconference with members of the families of only nine of the 180 American victims discussed their views only on prisoner transfer. The same is true of the face-to-face meetings with relatives of three of the British victims, the one Spanish victim and one Lockerbie family. The views of the Libyan Government were sought. Was any consideration given to trying to ascertain the range of views of the community of Lockerbie or the victims' families on compassionate release to Libya? Let us remember that, prior to the night of 21 December 1988, the relatives of 270 people had been looking forward to celebrating an important religious and cultural festival with them, and those people were wiped off the face of the earth.

Mr MacAskill has said that some wounds will never heal, but did he not realise that the sight of a convicted terrorist being fêted on his return to the country that had admitted responsibility for organising the atrocity would reopen those wounds? It was not only those people who lost their loved ones who were affected, although of course their loss was the greatest. The people of Lockerbie who witnessed the descent of Pan Am flight 103 and subsequently looked after the remains and comforted relatives demonstrated compassion in the greatest degree. The events also affected members of the emergency and rescue services and the police officers who searched meticulously for evidence. Incidentally, all but one of the investigating officers who have contacted me are firmly convinced of Mr al-Megrahi's guilt. All those people were affected and suffered to varying extents.

One lady described in a recent letter to me her experience that night of hiding under a table with her three-month-old baby, seeing the light from the unexplained explosion and the fire and breathing the fumes, convinced that they were going to die. She did not express a view on the decision, but she wanted to tell me how it felt then and afterwards, as she struggled to cope with the psychological aftermath. Even today, the town struggles under the yoke of being associated solely with the bombing.

Photo of Elaine Murray Elaine Murray Labour

No, I will not.

Has the decision upheld the principles of Scottish justice? Has that justice been extended proportionately to the relatives of the victims and the residents of Lockerbie as well as to Mr al-Megrahi? Was real consideration given to the alternative of releasing al-Megrahi to secure accommodation in Scotland where his family could be with him in his final days? Although the Libyan Government knew on 10 August that compassionate release was under consideration, Strathclyde Police was not asked for an assessment of the security issues of release to a Scottish address for another four days.

Photo of Elaine Murray Elaine Murray Labour

No.

The prison social work department was not asked to assess that possibility. Make no mistake: Strathclyde Police would have stepped up to the mark, whatever it was asked to do, as the police always do. Much has been made of Bill Rammell's statement that the Prime Minister and the Foreign Secretary did not want al-Megrahi to die in jail. That is not the same as wanting him to return to Libya. There were alternatives to releasing him to Libya. The documents that were released yesterday do not convince me that those alternatives were investigated properly before being ruled out.

Photo of Trish Godman Trish Godman Labour

Sorry, but the member is finishing.

Photo of Elaine Murray Elaine Murray Labour

I cannot agree that the decision was consistent with the principles of Scottish justice. I therefore support all three amendments.

Photo of Ian McKee Ian McKee Scottish National Party 10:36 am, 2nd September 2009

When politics and clinical medicine come together, as is happening today, we former doctors sniff the air like old warhorses hearing the sounds of distant battle. The temptation to pontificate is enormous and, let us be honest, some of us give into it. Some Opposition members even try to twist medical facts to suit narrow party-political aims, yet that temptation must be resisted. There is no need for us to delve deep into semi-forgotten clinical areas, any more than there is a need for the non-medical Mr MacAskill to look up the word "prostate" in his well-thumbed "Encyclopedia of Family Health", for there is a due process to be followed in obtaining medical opinion. That process has been followed scrupulously in the case of Mr Megrahi.

When Mr Megrahi was in Greenock prison, he was under the medical care of the Scottish Prison Service. When he became seriously ill with prostate cancer, reports were compiled by the director of health and care of that service. He is not a vested-interest politician like Dr Simpson or me but an experienced and impartial civil servant. To help him to compile his reports, the director involved a variety of specialists, both from this country and overseas. On 10 August this year, he reported to the justice secretary that there was sound evidence that the grounds for compassionate release under Scots law had been satisfied, as far as the medical situation was concerned. I repeat: the evidence and the conclusion were passed to the justice secretary by a senior and impartial civil servant.

Some Opposition members argue that the justice secretary should have challenged that conclusion and sought more evidence. They say that the civil service ignored the advice of a range of specialists and instead chose to take the opinion of a single doctor who, it is inferred, reached a conclusion that was more to the Government's fancy. Setting aside the point that that is a grave slur on the impartiality of one who cannot defend himself, that explanation simply does not fit with the facts. In June and July this year, a comprehensive range of specialists agreed unanimously that hormone treatment for the cancer had been unsuccessful and that the prognosis had shifted from a former assessment of many months, to one of months. However, the specialists were not willing to say whether that was more or less than three months, which is the time span that is mentioned in the Scottish Prison Service guidelines on compassionate release.

Then, between 27 July and 3 August, Mr Megrahi's condition deteriorated dramatically. At that stage, the primary care physician who had been caring for him since the early stages of his disease, after consulting an experienced consultant oncologist who also knew the case, sent an assessment to the director of health and care, which led to his recommendation that the medical grounds for compassionate release had been met.

Let us correct the misleading statements that have been made. It is not surprising that the consultants who were involved in the case in June and July were reluctant to give a prognosis of precisely three months or less. In my career as a general practitioner, I was sometimes asked for such a prognosis—perhaps a relative wanted to return from far away to be present at the end—but situations vary greatly. If the spreading cancer affects a vital organ, death might come quickly. If not, it will be a longer, drawn-out affair. The constitution of the patient must also be taken into account. Although precise estimates are impossible, the consultants agreed that Mr Megrahi had only a few months left to live. The final recommendation did not contradict that evidence, as Labour has alleged, but built on it. When a terminal condition deteriorates, life expectancy shortens—it is not rocket science. It was only after that further deterioration that the justice secretary got the information to make his decision.

Should more expert opinion have been sought at that stage, as the Opposition claims? I find it strange and slightly insulting that Opposition members have so little confidence in the primary care physician who cared for Mr Megrahi throughout his terminal illness and who was party to all previous specialist opinions, including those given a matter of weeks before. He is a doctor with no political axe to grind who consulted an informed oncologist before passing on his assessment to his experienced medical director, who fully supported it. Although it might surprise some members, primary care doctors have the experience of caring for dying patients on a daily basis and are often more able to make such difficult assessments accurately than a distant specialist, however eminent.

I do not know whether Mr Megrahi will last one, two or four months—no one does. However, I know that the only way to guarantee that someone will be dead within three months is to wait until they are virtually on their deathbed. How compassionate is that?

The Opposition will win the vote tonight because narrow party-political interest has come to the fore but, when history judges the issue, it will be the Opposition's shallow opportunism that will be seen to have let Scotland down, not the principled decision by the justice secretary.

Photo of Rt Hon Jack McConnell Rt Hon Jack McConnell Labour 10:42 am, 2nd September 2009

In June 2007, I backed my successor against the Labour Government when the new First Minister rightly objected to the negotiations over prisoner transfer taking place without Scottish Government engagement. I said then that I would back SNP ministers when they got it right and oppose them when they got it wrong, so I hope members from all parties will accept that today I speak with genuine conviction and not with party politics in mind.

Many who have an interest in today's debate cannot be here and it is for them that I ask to speak: 270 men, women and children who died as a result of the Lockerbie bombing on 21 December 1988; over 400 parents who lost a son or a daughter, including 46 parents who lost their only child; 65 women who were widowed and 11 men who lost their wives; over 140 children and adults who lost a parent; and seven children who were orphaned. As the Lord Advocate said after the unanimous guilty verdict on 31 January 2001,

"they together with the other friends and relatives left behind are also victims of the Lockerbie bombing."

Absent today are Peter Fraser, Andrew Hardie and Colin Boyd, who each, as Lord Advocate of Scotland, gave guarantees to the families of the dead. The late Robin Cook secured United Nations resolution 1192 in 1998, based on a written guarantee that any sentence would be served in Scotland. The late Donald Dewar authorised the arrangements for the special court, a Scottish court, which unanimously found Mr al-Megrahi guilty and subsequently rejected his appeal.

For all of them I feel compelled to speak out, not because I believe that the Scottish Government showed too much compassion, but because I believe that the exercise of compassion has been imbalanced and that, on behalf of Scotland, the Scottish Government has broken our word.

I accept the Scottish Government's insistence that the decision was its judgment and its decision alone. It must answer for that judgment here, and we must judge it on the facts as outlined so far.

I was First Minister of Scotland when the appeal was determined in 2002 and Mr al-Megrahi was transferred to a Scottish jail. Then and since, he has been treated with all the humanity and compassion that we would expect from the Scottish justice system, so I reject the suggestion that to oppose his freedom to return to Libya is to lack compassion. Scotland has shown compassion from day one.

My first concern is with the decision. On 27 August 1998, the UN Security Council demanded that Libya give up Mr al-Megrahi for trial. It was backed by the Organisation of African Unity, the Organisation of the Islamic Conference, the Non-Aligned Movement and the League of Arab States. They did so on a written promise from the UK and the United States that any sentence would be served in full in the UK and there would be no return to Libya if guilty.

That agreement—that solemn undertaking and reassurance for the families of the dead—has been disregarded by the justice secretary and others and our words will never mean the same again. We Scots have been trusted the world over and our justice system has been admired for centuries but, in one decision, that reputation has been damaged and tarnished for years to come.

My second concern is with the handling. All Governments mishandle matters from time to time but, in this case, the mistakes and the misjudgments have been systematic and significant in every respect. In particular, the justice secretary and the Scottish Government should have met the families face to face. The videoconference was insulting. It did not even cover adequately the possibility of compassionate release and correspondence afterwards from the families apparently received no reply.

The justice secretary should not have met the convicted prisoner—a Libyan secret service agent trained to manipulate and mislead. He has set a dangerous precedent and, in doing so, he has made our system look like a joke.

Those who disregard the families of the dead so eagerly should think for just a moment how we might feel if the murder had happened in another way. Let us imagine 270 Scots burned to death and blown out of the sky from a plane above France. The French authorities, with international assistance, bring accused persons to court in France. They are tried under French law. The French Government promises the Scottish Government in a letter to the United Nations that, if convicted, the accused will spend their entire sentence in France and will not be returned to Libya. One is found guilty. He appeals. His appeal is heard again under French law, but it fails. He serves eight years of a 27-year sentence. Then the Government of France changes. A new justice minister agrees to meet the convicted mass murderer but does not meet face to face with the Scottish families of the dead. Then the terrorist is freed to return to Tripoli, met with French flags and hailed as a hero. How would we feel in those circumstances?

It is now too late to change the decision made by the current Scottish Government, but it is not too late for the voice of the people to be heard through this Parliament. We owe it to the victims, their families and our country to make it clear that this mistake does not have the support of the nation as a whole.

Photo of Patrick Harvie Patrick Harvie Green 10:47 am, 2nd September 2009

Last week's session was less confrontational and aggressive than I feared it would be, so I was going to begin my contribution by expressing some disappointment in the tone of the debate, but Elaine Murray and Jack McConnell have done something to improve the tone. I hope that the rest of the debate on both sides follows their example.

I am disappointed that it looks likely that we will divide along party lines. I suspect that everybody in the room knows that there are members in all political parties who support the decision that has been made and members in all political parties who oppose it. I will say something about the decision and then comment on my concerns that our debate still has the wrong focus.

It has been acknowledged that the decision has been difficult. Last night on television, even when saying that the decision shamed Scotland, Richard Baker acknowledged that it was a difficult one. I disagree with his view, but I am concerned that he is a little unclear about his feelings. It is hard to accept that the decision can be simultaneously finely balanced and difficult, and a cut-and-dried one that is a matter of shame.

My reason for supporting the decision is respect for the principle that compassion is not simply an optional extra; it is a necessary part of justice. Punishment is not the same as retribution. When a man is facing death in a matter of months in a foreign prison, which ours are to Mr al-Megrahi, further punishment becomes a meaningless concept.

Photo of Robert Brown Robert Brown Liberal Democrat

Is Mr Harvie aware of the requirements for the legal consideration of compassionate leave applications, not least that the type of offence and other matters be taken into the balance? Does he not think that that is one of the aspects that have been singularly missing from some of the discussion about this matter? Is compassion absolutely unlimited?

Photo of Patrick Harvie Patrick Harvie Green

I do not say that compassion is absolutely unlimited; I say that it is the most meaningful act of compassion when it is the hardest to express.

I also disagreed with Iain Gray's comment last week that compassion is marked in our system by the existence of parole, appeals or the lack of executions. Those are not markers of compassion; they are the bare minimum for a justice system to be worthy of the name.

I respect sincerely the force of Elaine Murray's contribution in asking us to empathise with the feelings of the victims' relatives. I cannot imagine how they feel, nor can I imagine how it feels to be facing death in a foreign jail still protesting one's innocence—none of us can imagine that. Justice for none of those parties will be served by mere retribution. Justice is not served by double standards in our differing treatment of one dying man and the Government that he served, which is currently being rehabilitated by the UK and other Governments.

Photo of Margo MacDonald Margo MacDonald Independent

I also respect the comments made by Elaine Murray and Jack McConnell. However, does Patrick Harvie agree that there is more than a legal dimension to the decision that was taken and that the needs of the global population now, compared to the interests of 20 years ago, have also to be weighed in the balance?

Photo of Patrick Harvie Patrick Harvie Green

I certainly agree that the global and political implications cannot be separated from this. However, I would not argue that the Cabinet Secretary for Justice should have made a decision in one direction on the other on the basis of the likely reaction of America, Libya or the wider world. The decision had to be made on its own terms.

However, there is a far bigger issue to consider. The location of Mr al-Megrahi's death will soon become a footnote of history—a fact of history. If we choose to close the chapter there, without ever examining the doubts that exist, which are widely held, about the safety of the original conviction—as distinct from the man's guilt or innocence—we will effectively bury the truth. The UK Government seems happy to do just that. Such an act can never serve justice—the abandonment of truth can never serve justice or the perception of justice. Doubt about the conviction is not the ground on which the decision for release was made, nor should it have been—I understand that.

Jack McConnell asked members to consider an alternative scenario and I will do the same. I ask members to consider a scenario in which one of their constituents was being held in a foreign jail, in Iran or Syria. If their conviction had been so caught up in international politics and diplomacy, if their conviction had been secured on the basis of such circumstantial evidence, if it later appeared that at least some of that evidence was from a key witness who had been paid millions of dollars by a foreign Government with an interest in the case, is there a single member of this Parliament who would not strain every sinew to secure the release of their constituent on whatever grounds they found possible?

If Parliament today fails to recognise either the shades of grey in this case or the information that still remains in shadow, shame on us.

Photo of Christine Grahame Christine Grahame Scottish National Party 10:53 am, 2nd September 2009

I add my support for the Cabinet Secretary for Justice in his decision to release Abdelbaset Ali al-Megrahi on compassionate grounds. As many have said, it was a tough decision and, as a former lawyer, the cabinet secretary is well aware that it will be scrutinised with subsequent applications for compassionate release. That is why it had to be scrupulous. In my view, it is one of the few scrupulous actions in the entire Lockerbie tragedy. I believe that the decision was made with integrity, in contrast to the murky international deals that go right back to the night of 21 December 1988 and which continue to this day. Megrahi was, and in my view remains, a geopolitical pawn.

For me, compassionate release was the way forward not only because the criteria would be met but because it would have preserved that crucial appeal process. Mr Megrahi's priority was to be with his family, including his elderly mother, but he was also determined to clear his name not just for himself and his family but for those victims' relatives who believed that they had seen justice done but who had been deceived all those years. The closure that they sought had been bought at the cost of truth. I say to Bill Aitken that I stand by my e-mails, but I note that Mr Megrahi himself has said that he was not pressurised. I can say no more.

Remember that the appeal process had not been exhausted. With the abandonment of Mr Megrahi's appeal, the first-stage findings will not now be published—findings relating only to evidence previously led, not the evidence that was unheard and untested, nor the grounds by which the Scottish Criminal Cases Review Commission came to the view that there may have been a miscarriage of justice. The SCCRC report, which was produced two years ago, found that Megrahi was not in Malta at the time that the prosecution averred and he could not be connected to the purchase of the clothing that camouflaged the timer device. It found that the identification by Gauci the shopkeeper in a line-up was also challengeable, given that, just four days previously, he had seen a magazine photograph of Megrahi with a caption that linked him to the Lockerbie bombing.

Neither of those two crucial facts was in the hands of the defence and, therefore, they had never been tested in court. The key evidence of identification, if led, would surely have cast more than a reasonable doubt on the conviction. Incidentally, why, on a recent edition of "Newsnight", did Lord Fraser—the Lord Advocate at the time—call Gauci the shopkeeper "an entirely reliable witness" when, in 2005, he described the same man as

"not quite the full shilling"?

What of the contents of the US intelligence cables dated September 1989, which were confirmed in recent statements by the Central Intelligence Agency's former case officer Robert Baer, which stated that the bombing of the Pan Am flight was conceived, authorised and financed by the former Iranian minister of the interior and that the execution of the operation was contracted to Ahmed Jibril of the Popular Front for the Liberation of Palestine-General Command for a sum of $1 million?

I understand Elaine Murray's angst. Some relatives of the 270 whose lives were ended so brutally—many but not all of them are in the USA—cannot live with Megrahi's release, which I understand. However, compassionate release is not predicated on innocence. Indeed, by its very nature, it must be predicated on guilt. However, it is my contention that with a full public inquiry, comprising, say, an international panel, the truth would out. Perhaps then for grieving families the release of Megrahi would be more palatable.

What questions would we put to such an international panel? If Megrahi was not the purchaser of the clothing and was wrongly identified as part of the plot, who were the real perpetrators? Why were there no criminal prosecutions following the shooting down of the Iranian Airbus by the USS Vincennes in 1988—five months before Pan Am flight 103 exploded over Lockerbie? Was there a contract issued by the Iranian authorities to the PFLP-GC to take revenge for the death of 290 Iranian pilgrims, 60 of whom were children, by bringing down an American plane bringing its pilgrims home for Christmas?

Why have the US authorities not queried the true identity of Basel Bushnaq alias Abu Elias, a senior figure in the PFLP-GC at the time of the bombing and nephew of Ahmed Jibril, former head of that terrorist organisation? Basel Bushnaq currently resides in Washington DC and is in the employ of the schools division.

Did the fragment of circuit board, which was crucial to the Libyan connection, leave Scotland in the temporary custody of US authorities? Lord Peter Fraser has said that he did not know about that.

Why was the break-in at Heathrow next to the Pan Am luggage station on the morning of that flight never examined in court?

It is my hope that some of those grieving, angry relatives, who are grieving for lost lives and futures and who are understandably bitter and angry at the compassionate release of a man they believe committed a heinous crime, will take those questions and pursue answers that so many have sought to conceal for so long.

Photo of Michael McMahon Michael McMahon Labour 10:59 am, 2nd September 2009

It has been pointed out, this morning and in other places, that the writing on the Scottish Parliament's mace includes the word "compassion", reflecting one of the principles that should guide our deliberations as MSPs. However, in a timely reminder, the Rev David Cameron said this morning that the words "wisdom", "justice" and "integrity" are also engraved on the mace, indicating the range of qualities to which we, as elected representatives, should aspire. However vital it is, compassion cannot be and is not enough. Given all the values that are written on the mace, Mr MacAskill has no right to claim that he had to release Mr al-Megrahi to return to Libya. In his misguided desire to show that the SNP treats the values of Scotland as its personal property—rather than to show that we are a compassionate country—he abjectly failed to follow due process and ignored the fact that alternative options were available if the Scottish Government had only had the wisdom, the sense of justice and the integrity to pursue them.

Photo of Alasdair Allan Alasdair Allan Scottish National Party

Talking of wisdom, Nelson Mandela said recently that he sincerely appreciates the decision that Kenny MacAskill made—a view that, we now learn, appears to be not dissimilar to the view of the UK Government. Does the member believe that Mr Mandela is mistaken?

Photo of Michael McMahon Michael McMahon Labour

Yes, I do.

Instead, what we had from Mr MacAskill was an entirely predictable situation. The Government created the circumstances that allowed the Libyan regime to embarrass our country as it jubilantly welcomed home a convicted bomber with Scottish flags. There is no point in Christine Grahame or Patrick Harvie trying to retry the case this morning—that is totally irrelevant to the fact that Mr al-Megrahi was released as a convicted bomber. The sight of saltires being waved on the tarmac at the airport in Tripoli has shamed Scotland, and it will take years for us to recover from the harm that has been done. We should make no mistake that the Scottish Government's decision has damaged Scotland. The fact that that outcome was abundantly foreseeable indicates that Mr MacAskill was lacking in wisdom.

There was a clear case for providing Mr al-Megrahi with compassion, but allowing him to be welcomed back to Libya as a free man should not have been the option that was chosen. Palliative care standards in Scotland are of the highest anywhere, and such care can be delivered in a variety of settings. Hospice care does not have to be provided solely within the confines of a hospice building. If Greenock prison was found not to be a suitable location in which to deliver the care that was required, a suitable secure location should and would have been found elsewhere in Scotland had the matter been properly considered.

We are required to ensure that justice is served against those who harm others—not retribution, nor vengeance, but fair punishment for the crime that has been committed. I firmly believe that Mr al-Megrahi was entitled to have the best care possible in his illness but, given the fact that he served only 11 days in jail for every victim of the Lockerbie bomb, I do not believe that Mr al-Megrahi was yet entitled to clemency.

Equally important was the need for integrity in deciding whether compassionate release was warranted. Unfortunately, the entire handling of Mr al-Megrahi's release has been typified by media briefing, leaking and spin from the Scottish Government. Honesty and truth have been lost in the decision-making process in this case. As has been pointed out, the Scottish Government has, among other things, misrepresented the medical evidence. Even more serious, it has manipulated the opinion of Strathclyde Police to create the impression that keeping Mr al-Megrahi in Scotland but outwith prison was not a viable option.

There is also the matter of Mr MacAskill's bizarre reference to the involvement of "a higher power", by which we must presume he means God. The Cabinet Secretary for Justice claimed that his decision to show compassion was made on the basis that God had intervened to inflict a terminal illness on Mr al-Megrahi. I hope that I would never be so arrogant as to claim to have more compassion than anyone else. I would certainly never claim to have more compassion than God. It is offensive to suggest that a person who develops cancer has had it inflicted upon them by God for some crime. It is also unworthy of a Scottish Government minister to make that suggestion merely in order to send an ill-judged message to a stereotypical demographic across the Atlantic. I do not know what "higher power" Mr MacAskill believes in, but I am confident that my God is not such a callous one.

It is important to me that Mr al-Megrahi was seen to be treated with humanity, and it is absolutely right that he should be allowed to see out his days with the dignity that was not afforded to the 270 people who died when Pan Am flight 103 was brought down. Mr MacAskill may argue that his decision was based on compassion, but it should also have been a wise, just and honest one—it was not. The Scottish Parliament must now try to repair the damage that has been done, and MSPs must do all that they can to make it clear that the decision was not made by the people of Scotland and that it certainly does not have their endorsement.

Photo of David McLetchie David McLetchie Conservative 11:05 am, 2nd September 2009

My remarks will follow on from some of the comments and observations that were made by Michael McMahon in his fine speech.

When Tony Blair was Prime Minister, he was asked by a journalist what part his faith played in the decisions that he reached. Before he could answer, his spin doctor, Alastair Campbell, intervened and famously said, "We don't do God." It is and was well known that Tony Blair is a sincere and devout Christian—a fact that has been borne out in his actions subsequent to standing down as Prime Minister, including his conversion to Catholicism and the establishment of his faith foundation. Mr Blair is a man who takes his faith very seriously, for which he deserves our respect. The purpose of Alastair Campbell's riposte was to make it clear that, when it came to the business of government, however, decisions were made on a strictly secular basis. Both Tony Blair and Alastair Campbell were acutely aware of the dangers of mixing religion and politics.

I had thought that such a strictly secular approach to government had been generally adopted by all major political parties. That had certainly been my experience in 10 years of the Scottish Parliament. Therefore, imagine my surprise—like that of Michael McMahon—when Mr MacAskill called in aid the existence of "a higher power" to justify his decision to release al-Megrahi. Until that moment, I was wholly unaware that belief in the existence of such a higher power was an integral part of the Scottish justice system. I was particularly surprised that Mr MacAskill should invoke that higher power because only four years ago, in an interview that was published on the Scottish Churches Parliamentary Office website, he stated that he did not have any personal faith.

Be that as it may, let us look at the characteristics of Mr MacAskill's "higher power". Here is what he told Parliament:

"Mr al-Megrahi now faces a sentence that has been imposed by a higher power. It is one that no court in any jurisdiction, in any land, could revoke or overrule. It is terminal, final and irrevocable. He is going to die."—[Official Report, 24 August 2009; c 18996.]

Mr MacAskill's "higher power" is not the God of love, mercy and compassion about whom we can read in the Bible, the Qur'an or the Torah. On the contrary, as Mr McMahon pointed out, Mr MacAskill's "higher power" is a God of vengeance who visits disease and affliction on sinners here, on earth. That strikes me as a very harsh doctrine that is straight out of the Glen Hoddle school of theology. Members may wonder why Mr MacAskill invokes a higher power of that nature in the context of the al-Megrahi decision. I suggest that it is because he wants to contrast vengeance from on high with his compassion here, on earth—an attitude that many would regard as a presumptuous heresy.

I do not regard Mr MacAskill as having a monopoly of compassion in the matter. His responsibility is to marry compassion with justice; to respect the judgment of the Scottish courts that found the man guilty of the murder of 270 people; and to respect the memory of al-Megrahi's victims and the promises that were made to their families.

Photo of David McLetchie David McLetchie Conservative

No, thank you.

The cabinet secretary claims that the Government regrets the reception that was received by Mr al-Megrahi on his return to Libya. It was a matter over which the Government says that it had no control. Well, it did—it did not have to let Mr al-Megrahi go in the first place.

Since the decision was made, the basis for it has been undermined day by day, as further information has come to light. Some people have questioned the medical evidence, which raises the prospect of a rather ghoulish and distasteful death watch over Mr al-Megrahi for the next three months or perhaps longer. Others have asked why, if he were to be released from prison in his final days, as happens in the case of other terminally ill prisoners, he could not be cared for here, in Scotland. It is clear that that aspect was never considered properly by Mr MacAskill. The idea that Strathclyde Police could not spare 48 police officers to provide an appropriate level of security is a nonsense. As Bill Aitken said, this is the same police force that provided security at Glasgow royal infirmary for 34 days for the Glasgow airport bomber before he died from his injuries.

Moreover, as Mr al-Megrahi's Libyan lawyer said, his client could have been cared for in Scotland. He said that the standards of palliative care in Libya are lower than those in Scotland, and that terminally ill Libyans come to this country for treatment and care—how ironic.

We could have had a judgment that blended mercy and justice. We could have had a judgment of Solomon; instead, we got a judgment of MacAskill. That judgment is a miscarriage of justice that shames Scotland.

Photo of Jim Hume Jim Hume Liberal Democrat 11:11 am, 2nd September 2009

In terms of this case, we have heard much about compassion over the past month and, of course, today. I believe that there was never any doubt that we as a nation have compassion. As I have said previously, and as the Rev David Cameron and other members said earlier, at the core of the Parliament are the words in the inscription on the mace: "wisdom", "justice", "compassion" and "integrity".

Like others, my main compassion at the moment goes to the families of the victims and people of Lockerbie who have long made it clear that they want to move on from that awful night nearly 21 years ago, but who are again reminded of their nightmare. My premier thoughts are with them. Like Elaine Murray, I agree that Mr MacAskill should have thought to visit the people of Lockerbie to seek their views.

The Lockerbie incident is the most horrific to have happened in Scotland, with 270 innocent lives unjustly taken just a few days before Christmas. We have to be clear: the debate is not about Mr al-Megrahi's innocence—Miss Grahame was mistaken in pursuing that argument—but about the events that led to the Cabinet Secretary for Justice's decision. The affair raises several concerns about that process, including Mr al-Megrahi's decision to choose to meet the Cabinet Secretary for Justice. The cabinet secretary met him—indeed, he said that he was "duty bound" to do so—but what precedent has he set in making the visit? Can all prisoners now claim their right to be visited in prison by the Cabinet Secretary for Justice? If so, he will be a busy man indeed, not least in replying to the mail that will be involved in such requests. How many such requests have been submitted thus far, cabinet secretary?

Like others, my concern extends to why the press were so well informed, not only about the visit but about the release date. Mr MacAskill has stated clearly that he was acting in a quasi-judicial manner. Like Robert Brown, I have never heard of a judge or jury—never mind a justice minister—meeting a convicted prisoner before they make a judicial decision and, having done so, briefing the press.

On 24 August, in response to a question from Brian Adam, Mr MacAskill said in this chamber:

"Costs are not a factor that we take into account in the implementation of our justice system."

Earlier that day, he said in his statement that the advice from the deputy chief constable of Strathclyde Police was that

"a minimum of 48 officers would have been required simply to allow Mr al-Megrahi to live in Scotland. I therefore ruled that out as an option."—[Official Report, 24 August 2009; c 19010, 18995.]

However, the same police force stated subsequently:

"If a decision had been made to release Mr al-Megrahi in Scotland, we would have provided whatever security was required."

The cabinet secretary has said that that any suggestion that he did not consider seriously release into Scotland is "ludicrous". However, Strathclyde Police's statement raises doubts in that regard. Is it not ludicrous for 1,000 police officers to be deployed for one old firm game? After all, security for Mr al-Megrahi was required for only an estimated three months. A release into a Scottish hospice could have been imposed. Mr al-Megrahi's family could easily have visited him there and his release conditions could have been monitored. That decision would have shown true compassion and justice could have been monitored. How can Mr al-Megrahi's release condition of a monthly videoconference be controlled now that he is far out of the reach of our jurisdiction?

I turn to the medical advice, on which subject only time will tell. In pictures of Mr al-Megrahi, we see him being treated. I wish no ill on anyone. Equally, no one should lose the most precious gift of life. As I said, time will tell; perhaps time will also judge.

It is regrettable that the appeal process was halted. Many questions could have been answered, including questions on Mr al-Megrahi's innocence and the matter of justice for victims if he was so found. In the Government summing up, I ask for a full assurance that the dropping of the appeal was no bargaining chip for release.

The decision that we are debating was for the Cabinet Secretary for Justice to make. That said, he is responsible to the Parliament. The Liberal Democrat request for a recall of Parliament to debate the issue in advance of this unprecedented decision should have been granted. It was a mistake for that recall not to be made. On 24 August, I pressed Mr MacAskill to say whether he had supported our call for a debate.

Flurries of papers are now being published in an attempt to dam the flood of criticism. If the cabinet secretary had made the announcement on release to Parliament and answered questions, the Government would have avoided much of the criticism. I regret that the process of release has raised so many questions. As I said, yesterday saw the hurried publication of papers and letters. According to the interview that the First Minister gave to the BBC, all documents have been published, but we have not yet had sight of transcripts of the discussions between the Governments. I remain to be convinced that all the options on Mr al-Megrahi were fully explored. If that had been the case, we would be certain that, as our Parliament mace says, we had seen the use of wisdom, justice, compassion and integrity.

Photo of Tricia Marwick Tricia Marwick Scottish National Party 11:16 am, 2nd September 2009

I start with the premise that Mr al-Megrahi is guilty. I do so because a Scottish court returned that verdict. Until, and if, the verdict is set aside, he will die in Libya a guilty man.

Like others, I have been wrestling with the concepts of justice, mercy and vengeance. I have struggled to understand why our friends in the United States are angry and hurt that our Cabinet Secretary for Justice agreed compassionate release for Mr al-Megrahi. They fail to understand Scotland's legal system.

As I pondered what to say today, I came across a speech by Martin Luther King. In life, Martin Luther King was not the icon that he became in death. He opposed the Vietnam war at a time when it was not popular in the United States to do that, and was vilified for doing so. A few days before his assassination, in reflecting on the choices that he had made, he said:

"Cowardice asks the question, 'Is it safe?' Expediency asks the question, 'Is it politic?' Vanity asks the question, 'Is it popular?' But conscience asks the question, 'Is it right?' There comes a time when we must take a position that is neither safe nor politic nor popular, but because our conscience tells us that it is right."

Expressions of humanity and justice towards our fellow human beings do not always make easy and popular decisions. Where an individual or group has wronged us, it is often easy to deny their humanity instead of conceding that they are—as we are—human and mortal. Mercy is in the hands of those who give it. It is an expression of our values and humanity, regardless of the actions of those who receive it. Compassion is about being better people and not about the goodness or wickedness of the person who is on the receiving end of the mercy.

There is nothing that any of us can do to ease the pain of those who mourn those who died at Lockerbie. Mr al-Megrahi's death, whether in a prison in Scotland or at home in Tripoli, will not lessen the pain, which will endure always. Our legal system demands justice, not vengeance. If Mr al-Megrahi were to die in a Scottish prison, that would be vengeance, not justice.

Some have claimed that the release means that Mr al-Megrahi served only 11 days for every person who was murdered at Lockerbie. However, even if he had served the remainder of his life in Greenock prison, only a quarter of a day would have been added for every person who died. Mr al-Megrahi is dying. His body is ravaged by cancer. He will die, and he will die soon.

Kenny MacAskill freed Mr al-Megrahi on compassionate grounds, despite the grave crime for which Mr al-Megrahi was convicted. That was done not to minimise the suffering of victims' families, here and in other countries. The decision to release a dying man had at its heart justice and mercy—two intertwined principles that are woven into the fabric of the Scottish legal system. Those principles are the foundation of our society, and those who would scoff and sneer at those values do all of us in Scotland a disservice.

Without the option of mercy and compassion, there can be no true justice. It is vital that the distinction between justice and mercy is uppermost in our minds, because vengeance is rarely just, it is never merciful and it breeds only further resentment and hate.

When the Cabinet Secretary for Justice took the decision to release Mr al-Megrahi to die at home, it was not cowardice that asked the question. It was not expediency that asked the question. It was not vanity that asked the question. It was conscience that asked the question, and the answer was that it was right.

Photo of Richard Simpson Richard Simpson Labour 11:20 am, 2nd September 2009

All members who have spoken have made one common point, which is that the decision whether to release Mr al-Megrahi was a difficult one. Indeed, most public comments have made the same point. I object to the fact that some Scottish National Party members have consistently indicated that anyone who criticises any part of the decision or the process that led to it is lacking in compassion. I find that offensive. Those members have no particular cloak of compassion.

I want to concentrate on two areas in which I feel that, in the process of reaching his decision, the cabinet secretary was misguided and failed in his duty to the Parliament, to the people of Scotland and, most important, to the victims of the Lockerbie atrocity.

From time to time, it falls to ministers to make very difficult decisions. The visit to Greenock for a face-to-face interview, and the way in which that was brought about, was completely misguided. Civil servants give advice and spell out options as far as they can, but, at the end of the day, the consequences are for the justice minister to determine. We now know from the correspondence that has been published that it was not Mr al-Megrahi who sought that face-to-face meeting but the justice secretary and his department, who wrote to Mr al-Megrahi offering him a face-to-face interview.

When I was a justice minister, I received a request to meet Paddy Hill, one of the Birmingham six, who had just set up the Miscarriages of Justice Organisation. My civil servants advised me that such a meeting was not a clever move and that I should not meet Mr Hill—a man whose appeal had been upheld and who had been found not guilty. I chose to disregard the civil servants' advice. However, they gave me some helpful additional advice, which was that I should ensure that the agenda for the discussion was clear and did not include cases that were pending, and that I should check who Mr Hill was bringing with him. I followed that advice, and found out that Mr Hill was going to bring with him a Mr TC Campbell, whose appeal was pending. I did not need the further advice of the civil servants to tell me that meeting someone whose appeal was pending was inappropriate for a justice minister. I have seen nothing in the correspondence to dissuade me that Mr MacAskill failed in that regard. No face-to-face interview was held with the victims' families, so claims of natural justice are unacceptable.

I turn to the medical evidence. Ian McKee talked about old warhorses—which probably describes me and him—sniffing the air. The issue is not about what will happen to Mr al-Megrahi. I wish him no ill. I hope that the consequence of his release to Libya, misguided as it was, will be the extension of his life. According to the published reports, it is likely that that will happen. The psychological aspect of his condition was referred to again and again in the summary provided to the justice minister by Dr Andrew Fraser.

I hope that Mr al-Megrahi, who I understand is embarking on further chemotherapy, will live for some considerable time. However, whether Mr al-Megrahi lives or dies within the three months is not relevant here. What is important is whether the justice secretary, acting on behalf of the Scottish people and the Scottish justice system, sought the medical evidence that allowed Mr al-Megrahi to meet the conditions of release, which were that it was likely that he would not survive more than three months.

In September 2008, the experts' general view when pressed—they had to be pressed—was of a mid-estimate survival time of around 18 to 24 months, although they could not be certain. In June and July, when Mr al-Megrahi's condition was discovered to be hormone resistant, the experts were asked again for their opinion. That opinion was that Mr al-Megrahi's expected survival time was at the lower end of their estimate. If we do the mathematics, that means eight months. In other words, the experts gave advice in June and July, on the basis of all the evidence presented to them—which may or may not have included face-to-face examination—that Mr al-Megrahi was likely to survive for eight months. However, within a week of his application for release on compassionate grounds, a single medical officer indicated to the prison medical adviser that Mr al-Megrahi's condition had deteriorated. I am not surprised that it had deteriorated. Considering the meetings with the cabinet secretary and the issue of having to give up the appeal that he desperately wanted to continue with in order to deal with his guilt, Mr al-Megrahi must have been under enormous pressure. His deterioration was to be expected.

If I had been the justice secretary, that is the point at which I would have said, "I want independent corroborative evidence that the conditions have been met." I would have wanted the experts to have a face-to-face review of all the evidence. On the basis of three independent reviews, from a cancer specialist, a palliative care specialist and Dr Fraser—whose evidence and report I do not question, having been given to the cabinet secretary in good faith—the expertise would have been available and the cabinet secretary could have said in front of members, "I have taken advice from a sufficient weight of medical expertise to allow me to say that this man has met the conditions for compassionate release." I do not believe that the cabinet secretary did that. Therefore, on the basis of those two grounds in particular, his decision was wrong.

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party 11:27 am, 2nd September 2009

The cabinet secretary Kenny MacAskill made the decision to release al-Megrahi for the right reasons, following due process—he met the criteria for compassionate release, which is a well-established principle of the justice system in Scotland. The timetable is clear. The evidence is clear. The reasons are clear. Agree with it or not, this was a quasi-judicial decision and one in which economic, political and diplomatic arguments have, quite rightly, played no part.

There has undeniably been anger at the decision, not least from some in the United States. The angry, emotional reaction is understandable given the horrific crime for which al-Megrahi was imprisoned. I, too, was deeply upset by the scenes of welcome on his return to Libya.

Photo of Hugh O'Donnell Hugh O'Donnell Liberal Democrat

My view of the release is a matter of public record. However, does the member agree that it was naive in the extreme for the cabinet secretary, given the culture that pertains throughout many of the eastern Mediterranean countries, to expect that the receipt of al-Megrahi back to Libya would be greeted any other way than it was?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

What would have been naive—and incorrect—would have been for a justice secretary to take anything like that into account. The decision was quasi-judicial and was not one based on public relations exercises.

While much of the focus of attention has been on the negative reactions in the US to the decision, there has always been support for the justice secretary internationally. I quote from the Irish Examiner:

"al-Megrahi ... has blood on his hands but it is difficult to understand what is to be gained—other than revenge—by keeping a dying man behind bars. Equally, it would be unwise for anyone, American or Libyan, to confuse mercy with weakness."

The Times of India said:

"While the condemnation, particularly from those who lost family members, is understandable, the decision is a difficult but correct one ... Justice is not the same as revenge or retribution."

According to the Frankfurter Allgemeine Zeitung:

"To reprieve a seriously ill prisoner is an act of humanity".

There have been a number of personal statements from international figures—one of the most recent was from Nelson Mandela—and contributions from retired senior diplomats, such as the former United Kingdom ambassador to Libya Sir Richard Dalton, who called the decision "difficult" but "right".

The release of al-Megrahi on compassionate grounds to die in Libya has caused hurt to many Americans who have been affected by the atrocity for which he was imprisoned. Arguably, it has placed our relationship with the US under strain. However, the ties that bind Scotland and America will endure. The foundations of our friendship have been built over the centuries, and they will not be destroyed by a single decision, even one as painful to some as this one. It is in the nature of friendship to respect each other's right to make their own decisions, even ones that we strongly disagree with.

Photo of Margo MacDonald Margo MacDonald Independent

If the decision that the cabinet secretary took was outwith the realms of political, economic and diplomatic interests, can the member explain why the head of the Federal Bureau of Investigation should pass comment on the legal decisions that the cabinet secretary took? Are the two things not intertwined?

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I think that he was wrong to make such judgments on the Scottish legal system. One of the few comments that we have had from the Prime Minister—or at least his spokesperson—was that this is a matter for the Scottish justice system. The FBI director's comments were far from appropriate.

US tourism is important to Scotland. I was therefore pleased when VisitScotland's regional director for Edinburgh and east central Scotland confirmed to me on Monday that

"we work with well over 4000 travel agents in the US, all of them selling Scotland. There is no evidence of widespread cancellations and we continue to receive bookings from US visitors."

Photo of Shirley-Anne Somerville Shirley-Anne Somerville Scottish National Party

I have to make some progress.

Concerns have been expressed about future bookings from the US, but we should not allow that to become a self-fulfilling prophecy. Now is the time for politicians to stop prolonging the pain of the decision for political gain. Although it is perfectly valid to disagree with the justice secretary's final ruling, or to question the process in Parliament, as we are doing today, some contributions from Opposition members over the past few weeks have been far less valid—they have been reactionary and opportunist, and they have been based more on personal attacks than on principled parliamentary scrutiny. In their regrettable rush to damage the SNP, a disservice has been done to the Scottish criminal justice system that ultimately will be far more damaging to Scotland in the long term.

Even if I were to accept that Scotland's reputation has been tarnished by the decision—which I do not—we should be clear about where the Opposition's argument takes us: to a judicial system that is sullied by political interference, where we administer justice by focus group and where we announce decisions not after following due process but after a quick phone round our trading partners. We have seen a glimpse of such a system south of the border, where only last year the High Court described the Serious Fraud Office's decision to drop a corruption inquiry into a billion-pound Saudi arms deal as "an outrage", stating that the SFO and Westminster Government had given in to "blatant threats" from trading partners. That is not an example that I would like our country to follow.

By standing our ground and staying true to our values we enhance, rather than damage, the international reputation of our country. For my part, I am pleased to have this opportunity to reaffirm my support for the justice secretary, someone who does what he believes to be right and is prepared to bear the consequences, who does not base judicial decisions on a potential economic or political backlash, and who does not change his mind when the going gets tough.

Photo of Alasdair Morgan Alasdair Morgan Scottish National Party

As we are running late due to various factors, and as no end time for the debate was specified in the business motion that the Parliament agreed to, I will not conclude the debate at 12.30; I will run it on somewhat. However, that is not an invitation to any member to exceed their allocated speaking time.

Photo of Frank McAveety Frank McAveety Labour 11:34 am, 2nd September 2009

I hope that that was not directed at me, DPO—it may well have been.

The question today is not about the crude brutality of everyday politics; it is about how we, as a Parliament that is representative of the people of Scotland, feel about the judgment that was made by the minister and the Scottish Government on the release of al-Megrahi. Many arguments will be deployed, here and beyond the chamber, about the background information, the release of information and the interpretation of that information. What concerns me, however, is not just the judgment that the minister made but the way in which he made it and presented his statement last week. He conflated Scottish values of justice and humanity, yet he did not address the fact that a justice system is measured not by its clemency, but by the justice that it administers.

The starting point for me is not one of party-political advantage—I am just offended by the justice minister's decision. Many people in my constituency have expressed the same opinion. Individuals have also expressed the contrary opinion, as we have heard in the chamber today. The starting point for me has already been eloquently described by other members: it is the scale of the act that was carried out, the nature of that act and the responsibilities that we have towards its victims.

As members, we solemnly made an agreement on behalf of Scottish justice that while mercy should be displayed to the individual responsible, he needed to serve his sentence.

The minister said that he could not consider releasing Mr al-Megrahi to a prison in Libya, but in the same sentence he concluded that it would be okay to release Mr al-Megrahi to his family in Libya. We come to the essential tone of the debate. Am I lacking compassion if I say that I do not agree with that? I recognise that he may well have been released in any event, but following a considered process, and then being protected here in Scotland with his family having the right to deal with him.

We have a hierarchy of compassion. I disagree with Michael Matheson on the question of considering the level of the crime before deciding about questions of compassion. We do not have that, but we need to arrive at some measure to reach conclusions on compassion.

This is not a game of equivalence, where we say, "I met you, so I must therefore meet him in similar circumstances." I do not think that Mr al-Megrahi has the right to demand that, because of the scale of the offence that he carried out. That is my fundamental difference with Mr MacAskill. I believe that the families should be of paramount importance.

References have been made to some theological positions. It was not me who introduced that to the debate but the minister, with the allusions in his statement to the media about compassion, mercy, humanity and the ways in which we judge people. We have a conflation of the values of the Old Testament and the New Testament—of the essential proclamation of compassion and love. That is a tough question. Many of us who have been brought up in a Christian tradition or in other faiths have to deal with that in our everyday lives. However, they are not the same models. The reading of the New Testament is utterly different from that of the Old Testament, and we need to reconcile the two in the debate.

Photo of Patrick Harvie Patrick Harvie Green

Those of us who do not come from a religious perspective have to grapple with those issues, too. For clarity, I do not condemn as compassionless anyone who disagrees with the decision. It is understandable that, on a finely balanced and difficult decision, we will reach different judgments. Does Mr McAveety not agree, however, that the way in which such decisions are reached should be codified in law? In the law, there is no explicit rejection of specific types or scales of offence in respect of the decision that justice ministers make—

Photo of Frank McAveety Frank McAveety Labour

I believe that I argued that very point in my opening comments.

Where I am trying to find equivalence is in our responsibility as a Parliament to the victims and their families. They have not had the same rights of representation as other people involved in the deliberations. In this tragedy, the individual who was convicted by Scots law was given more consideration and more personal time by our minister of justice, in our name, to maximise the chance of his release—it is understandable that the individual sought that.

I ask the simple question: if this decision is the most important that has ever been taken by a Scottish minister since the Parliament was established in 1999—and I think that it is—it would have been given more resonance and value if the cabinet secretary had taken more time to meet the families of the victims directly, face to face, and particularly those from the United States. It would take no less than 24 hours to travel there and back. It would take one day to carry out genuine, face-to-face engagement with the families.

We then arrive at the essential issue as I understand it from what the minister said: the concept of compassion. I accept that people who are not religious might not accept all of what I am about to say, but we can only ever have compassion when the quality of mercy that can be savoured is a measure of the repentance of the individual. That is what I understand to be the meaning of compassion. We make a judgment based on that.

I do not think that the families have been treated at all fairly, and the minister has not acted in my name or in the name of the people of Scotland.

Photo of John Lamont John Lamont Conservative 11:40 am, 2nd September 2009

As members have said, it is important that we do not forget the horror that unfolded on the night of Wednesday 21 December 1988. I will certainly not forget being told by my father, as he collected me and my brothers from the school Christmas disco, that a plane had come down in the small Borders town of Lockerbie. When we arrived home, the television news showed the flames licking around the homes on Sherwood Crescent.

As a 12-year-old, I could not have imagined the horror of what happened to those poor souls as they fell from the sky. Although the passengers would have lost consciousness through lack of oxygen, forensic examiners believe that some of them might have regained consciousness as they fell to lower altitudes. One forensic scientist told Scottish police that he believed that the flight crew, some of the flight attendants and 147 other passengers survived the bomb blast and might have been alive on impact. None of those people showed signs of injury from the explosion itself or from the decompression and disintegration of the aircraft. For many days, Lockerbie residents lived with the sight of bodies in their gardens and streets as forensic workers photographed and tagged the location of each body, to help to determine the exact position and force of the on-board explosion.

Mr al-Megrahi was convicted of that horrific crime on 31 January 2001 and was sentenced to life imprisonment. We should not forget that fact.

The Scottish Government and others, most notably in the BBC, have stated that most of the Scottish families affected were in favour of Mr al-Megrahi's release on compassionate grounds. While it is correct to say that the small number of family members who have chosen to speak out are indeed in favour, it is important to record that most people in Lockerbie would prefer to keep their counsel and say nothing. It is therefore wrong to misrepresent the views of those who were so horrifically affected by the events of 1988. Saying nothing is not the same as agreeing with the release of Mr al-Megrahi.

The debate has been useful in that it has allowed members to explore ideas in depth. That was not possible during the questions that followed the ministerial statement last week. More questions have been raised since the statement was made, particularly in light of information in the documents that were released yesterday. I hope that the First Minister will use his closing remarks to answer some of the many key points that remain unanswered. For example, why did Mr MacAskill reject the option of keeping Mr al-Megrahi in Scotland, when the police had indicated that they would deal with him if required to do so, and given that Mr MacAskill said that cost was not a consideration? Did the Scottish Government know that a UK Government minister had suggested that the Prime Minister did not want Mr al-Megrahi to die in prison? Did the cabinet secretary or his officials leak to the Sunday Post or the BBC the story that Mr al-Megrahi was to be released several days before the official announcements?

I find it bizarre that Prime Minister Gordon Brown has been unable to say what he thinks about the ruling on Mr al-Megrahi, when so many people in other countries have commented on the Scottish Government's decision. He can find time to write a glowing eulogy for an American senator, he can comment on the death of reality TV celebrity Jade Goody and he can take time out to appear on "American Idol", but he cannot find time to comment on the release of the only man to be convicted of the worst terrorist attack on British soil. The decision has international ramifications and Gordon Brown should be more forthright and honest about what he thinks.

The cabinet secretary has made much of the fact that it was for him to decide whether to allow Mr al-Megrahi to go free. He has said on numerous occasions during the past two weeks that the decision was his alone. Of course it was legally the decision of the cabinet secretary; I do not dispute that he was the man who was permitted in law to make the decision. However, we need to know more about the motivation behind Mr MacAskill's final decision. I think that most members think that the decision was wrong and that Mr al-Megrahi should not have been released. For that reason, the Salmond Government has not done enough to prove that its decision to release that mass murderer was based on sound evidence and advice.

Photo of Malcolm Chisholm Malcolm Chisholm Labour 11:44 am, 2nd September 2009

I acknowledge the strongly held and sincere views on both sides of the debate and I believe that genuine respect should determine the tone of our proceedings today.

This is unlike any other debate in the past 10 years, not least because we are dealing with a quasi-judicial decision by the Cabinet Secretary for Justice rather than with a Government decision. As such, it was a decision that should not have been influenced by political considerations or indeed by what might or might not happen to al-Megrahi when he returned to Tripoli.

People have speculated on the cabinet secretary's motivation and we have heard a lot of nonsense about the UK Government influencing the decision. For my part, I take the cabinet secretary at his word and can see no other credible explanation for his decision, which was entirely consistent with sound Scottish legal principles and with compassion, which is a fundamental part of the Scottish legal system.

Some people have been shocked by my praise of the cabinet secretary last week. However, I think that 99 per cent of the public and more would be shocked and bewildered by a political culture that ruled out such praise. I am certainly not ashamed of holding the same views as Nelson Mandela on this or any other matter.

Whatever anyone thinks about the cabinet secretary's motivation, his decision was certainly not based on populism, given that widespread opposition could be anticipated. What has taken me aback and surprised many others is the strength of support for the decision, as I have seen for myself in scores of e-mails, letters and comments from constituents and others during the past week. Opinion is far more evenly divided on the issue than some people think is the case. It is divided internationally and it is even divided among the victims' families.

Photo of Ted Brocklebank Ted Brocklebank Conservative

Does Malcolm Chisholm agree that even for those who are convinced of Mr al-Megrahi's guilt, it might be preferable in certain circumstances to release a guilty man to spend his last three months with his family than to risk the possibility of an innocent man being left to die in a foreign prison, for a crime he might well not have committed?

Photo of Malcolm Chisholm Malcolm Chisholm Labour

I hope that Mr Brocklebank will have the opportunity to develop in a speech that point, which bears out my point about divided opinion among all sections of the population: at home, abroad and among the victims' families. As members said—Elaine Murray most eloquently—we all feel sympathy with the victims' families, but we must acknowledge that there is division even among the families. We all know the sincerely held and eloquently expressed views of Jim Swire on the matter.

In the decision-making process today, we ought to recognise that there is division among all the groups that I mentioned and among political parties. There have been many polls, of which the most recent said that 39 per cent of Labour voters approve of the decision. I know for a fact that many ordinary members of the Labour Party support the cabinet secretary's decision, and some of my party members have communicated directly with the cabinet secretary, without any intervention from me, to make that clear.

In recognising that the decision was different from other Government decisions, and indeed was not a Government decision at all, it is entirely appropriate that there should be a free vote today, but irrespective of whether there is a free vote, I will be voting with the Government.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat 11:48 am, 2nd September 2009

Many members have said that the decision was a highly difficult one. That is only the case if the difficulty arises when we struggle to balance competing calls on judgment and conscience. Judgment is the taking into consideration of the wider public interest, the views of victims and the possible consequences—political or personal—of a Government decision.

The decision is not difficult if, from the outset, we hold the moral position that no one should die in a prison cell in Scotland. I understand the argument that Tricia Marwick and other members made, but if it is to hold it must be an absolute principle. If that were the case, the situation would have been straightforward as soon as the application was made: the decision would have been taken shortly after the application was received and the Scottish Government would not have countenanced a negative decision.

Perhaps a more difficult issue is how we in the United Kingdom or in Scotland alone normalise our relations with a former pariah state while maintaining the solemn undertakings that Jack McConnell eloquently outlined. The British Government has been struggling with that for the past decade. I doubt very much whether the Scottish Government has a different policy from it and would not seek normalised relations with Libya.

For the past five years, I have pressed the Parliament to debate end-of-life issues and what is meant by compassion. We are asked for compassion in that context when a person who is coming towards the end of their life wishes to have greater power over their life. I have been told repeatedly by ministers of different parties and by the churches that compassion is not an absolute, that we cannot simply accede to someone's wishes because they are dying and that we must set aside what we think may be a compassionate response because of a potential for greater harm to society. For five years, I have been told that the individual does not define compassion themselves.

I understand the argument that has been put, even though I do not hold to it. However, in regard to the case, the prisoner and the Government decision that we are debating, many speakers who disagree with my view that the Government made the wrong decision say that I lack compassion or that the argument on compassion must be absolute. I understand the Martin Luther King quotation absolutely but, in my view, it has not been applied equally, consistently or fairly in other debates about end-of-life issues.

Photo of Tricia Marwick Tricia Marwick Scottish National Party

The criteria on compassionate release have been applied absolutely and fairly to every person who has met them. If they have been applied fairly and consistently by justice ministers present and past, it would be wholly wrong to make an exception for al-Megrahi, because that would be a political decision.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

The member misses the moral point. She talks about the criteria; is the criterion that someone who is dying is asking to go home to die? That would be any prisoner who was coming to the end of a terminal illness, so it would be an absolute position. The point is that, in the law that applies to Scotland, when we prosecute, we do so in the public interest. It is not a matter of an individual making an individual decision of conscience to prosecute; the Lord Advocate prosecutes in the public interest. The decision on compassionate release is made by a minister in the public interest.

Photo of Margo MacDonald Margo MacDonald Independent

Can we divide the public interest in the legal sense from the public interest in the social, political, diplomatic and economic sense?

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

My point is that we cannot. That is why, at the outset, I said that it is not simply about the difficult decision on the individual release, but about the difficult decision that we all have to face, in a mature way, on our relations with former pariah states.

I hope that Tricia Marwick will engage in similar debates on end-of-life issues and hold the same view on consistently acceding to the views of dying people in Scotland.

Photo of Jeremy Purvis Jeremy Purvis Liberal Democrat

I do not have time to give way to her, although I would have liked to.

I respect the views of people who differ passionately from me, but I prefer not be lectured on the compassionate view that I need to hold simply because it is stated Government policy. If that is the policy, I wish compassion and mercy to be applied equally when it comes to the other difficult choices that the Parliament should face. A month ago, I wrote to the Lord Advocate asking what the position in Scotland would be if a terminally ill person sought permission to go to Switzerland to die or, indeed, if someone helped such a person to do so. I have not received a reply to that letter.

If the Parliament is debating the morals and ethics of Mr al-Megrahi's case, let us be consistent in our approach to compassion, mercy and how we deal with our citizens in all other end-of-life issues.

Photo of Angela Constance Angela Constance Scottish National Party 11:55 am, 2nd September 2009

Like many members, I have my own barometers to test public opinion, whether my mailbag, my inbox or the people I speak to at my surgeries and at meetings with local groups and organisations. Many teachers in my constituency have advised me of the debates that have been held within their classrooms. People have spoken to me at the shops in Livingston shopping centre and I must be candid and say that visiting some of my relatives is akin to attending a public meeting.

Although there are clearly opposing views about whether Mr al-Megrahi should have been sent home to die, contrary to what is reported in the media and by the political classes, I have found there to be calmness in the community. There has been close interest in, and scrutiny of, Mr MacAskill's decision, but calmness nonetheless.

By inclination, I prefer to speak to people rather than refer to opinion polls, but a trend in recent polls has struck a chord with what my constituents have told me over the past few weeks. Before Mr MacAskill made his decision, The Sunday Times published a poll that found that 11 per cent of respondents supported compassionate release. However, since the decision, further polls have shown that 32 per cent and 40 per cent support compassionate release and, of course, there is the poll that shows that 56 per cent of Scots do not think that the Cabinet Secretary for Justice should quit. That reflects my experience of a growing understanding among people on the street of why the justice secretary released Mr al-Megrahi home to die.

The television images of saltires being flown in Libya turned many folk against compassionate release. Conversely, the interjections by the United States increased support for the justice secretary. I have also found that there is an informed understanding and critique of UK and US foreign policy as a result of the aftermath of the war in Iraq and the mass opposition to that war. It has not escaped the notice of many that Hillary Clinton recently welcomed a member of the Gaddafi family—the national security adviser for Libya—to Washington saying that she valued the relationship between the US and Libya and the opportunities to broaden and deepen that relationship. The duplicity of doing one thing and saying another is not lost on the general public.

Although we all must accept that we exist in a global geopolitical environment—that is the point that Margo MacDonald has been making—the justice secretary took his decision purely on the law and policy on compassionate release. The decision to send Mr al-Megrahi home to die was taken by the book. The procedures were followed, Mr MacAskill received advice and he considered it accordingly. He made his decision on the grounds of justice, not politics.

It is significant that the justice secretary received unanimous recommendations from the Parole Board, the medical report, prison social workers and the Scottish Prison Service. Members should believe me that that is not always the case. The grounds for compassionate release were clear—the prisoner had a terminal illness, death was likely to occur soon and the prisoner was incapacitated—but the criterion that interests me the most is the statement that compassionate release would be considered where continued imprisonment

"would, in the light of the conditions in which" the prisoner

"is being held, endanger or shorten his/her life expectancy."

Photo of Johann Lamont Johann Lamont Labour

I am sure that Angela Constance appreciates that many compassionate people do not agree with the decision, although they may acknowledge that it was a difficult one. Does she accept that, if the minister had tested the options for compassionate release within Scotland seriously, those people might have been better able to accept his decision? The problem is that—she can correct me if I am wrong—the compassionate release criteria did not compel the minister to release Mr al-Megrahi to his family abroad; he could have been released to his family within Scotland.

Photo of Angela Constance Angela Constance Scottish National Party

That rather neatly brings me on to some of the so-called alternatives that have been put forward by the Labour Party and the Conservatives. While standards of health care in prisons are much improved, issues of security and environment mean that prisons are not and cannot ever be a hospice. The suggestion that Mr al-Megrahi could have gone to a hospice is rather disingenuous and offensive because of the adverse impact that that would have had on innocent dying people.

We then go to the Newton Mearns option. We have already heard that that would have required a minimum of 48 police officers, at a cost of £100,000 a week. I know that the Cabinet Secretary for Justice said that costs and financial implications were not part of his decision. However, I also know, from speaking to members of the public in my constituency, that it would not have been well received that, in a tight financial climate, we were spending hundreds of thousands of pounds to protect a convicted criminal.

Photo of Angela Constance Angela Constance Scottish National Party

I will indeed.

I would have had more respect for Opposition leaders if they had declared their decision on compassionate release prior to that decision being made, as opposed to waiting to see which way the wind blew.

Photo of Paul Martin Paul Martin Labour 12:01 pm, 2nd September 2009

I recall watching, as a young man, the events of Lockerbie unfold on 21 December 1988. Like many others in the chamber, I felt genuinely touched by the grief displayed by so many families who were so cruelly affected by the Lockerbie bombing. However, I also remember the dignity that was shown by the victims' families and by those from the Lockerbie community, despite the tragic loss of their loved ones. I also recall the feeling of disbelief at the magnitude of the crime. Many people posed the question why such a peace-loving country would be the victim of such a terrible atrocity.

Political leaders from all over the UK displayed a united front during that period, as we can see when we examine the Hansard report of the meeting of the UK Parliament that followed the disaster. It shows that a number of powerful contributions were made. One thing that united all the parties was an appetite for the perpetrators to be brought to justice. Our justice system showed its fairness and compassion by going to considerable lengths to ensure that a fair trial was held. After lengthy negotiations, many of which were led by Nelson Mandela, we finally arrived at a trial in the Netherlands. After 84 days and £75 million in costs, Mr Megrahi was found guilty.

The reason for this preamble is to set out the fair and compassionate approach that was taken by our Scottish justice system when Mr Megrahi was being dealt with.

Photo of Paul Martin Paul Martin Labour

I am afraid that I do not have time. I would like to make another point.

When we are satisfied that we have delivered justice, we should take responsibility for the perpetrator being punished and required to see out his sentence. The Scottish Government has failed the justice system by allowing Mr Megrahi to be released and transported as a free man to a hero's welcome in Tripoli.

Kenny MacAskill has failed to answer a number of simple, straightforward questions today. Why could not Mr Megrahi serve his sentence in a facility that was managed by the SPS? Let us put it on the record that Labour members would not have expected him to arrive at the Marie Curie hospice in Springburn, but we believe that other options were not given due consideration. The Cabinet Secretary for Justice has failed to demonstrate how he interrogated the options that were before him. The police estimates that Mr MacAskill presented to the chamber have no status or proper scrutiny attached to them. In Mr MacAskill's words, Mr Megrahi is a "dying man". Suggesting that a dying man requires 48 police officers to guard him clearly requires further investigation. I was concerned about the option-appraisal process that was carried out via a telephone call to the assistant chief constable. That was a sloppy manner in which to carry out an appraisal. Did the Government, which is concerned about potential costs, take into account the costs of the hundreds of police officers who were required to police the Faslane 365 protest, which its party took part in? No, it did not.

The evidence that victims were a true part of Mr MacAskill's decision is also open to question. Some 189 of the victims on the Pan Am flight were Americans. Given the grief of their families and the fact that such robust concerns were raised by the US Government, like Jack McConnell and many others I am disappointed that Mr MacAskill sought to engage with the families of the American victims via videoconference. I genuinely do not wish to make a cheap point—this is a serious issue—but, given that ministers are only too happy to cross the Atlantic for events such as tartan week and the homecoming event, why did the cabinet secretary not make that same journey to consult with the American political representatives and the families who have been so affected by Lockerbie? To meet Mr Megrahi personally, but the American victims only via videoconference, is to get one's priorities very wrong. Even worse, when we examine the documents that have been made available for the public record, we see that the meeting was at the request of Mr MacAskill.

Many of us were disgusted at the VIP reception that Mr Megrahi received on his arrival in Tripoli. The scenes of a convicted Libyan bomber being welcomed in Tripoli should have been avoided. Although I accept that we cannot control the outbursts of jubilation from the Libyan people, we should have considered how conditions could have been attached to Mr Megrahi's release to ensure that public grandstanding was prevented. We should have considered including provisions dealing with Mr Megrahi's behaviour, given that he is still on licence and is still required to report to East Renfrewshire Council. Surely that message should have been sent out. I ask once again that the Cabinet Secretary for Justice put on record and make available for public viewing the representations that he made to the Libyan Government calling on it to keep its particular homecoming event at a low key.

Photo of Paul Martin Paul Martin Labour

They were not published yesterday, so perhaps Mr Salmond can clarify the matter in his concluding remarks.

In conclusion, the Scottish Government has been responsible for a flawed process whereby it has released Mr Megrahi on compassionate grounds. The Government has let the people of Scotland down. I call on the Parliament to support the amendment in the name of Richard Baker.

Photo of Tavish Scott Tavish Scott Liberal Democrat 12:07 pm, 2nd September 2009

This has been a strong debate, with passionate contributions from across the floor of the chamber: from David McLetchie—although his was more a comic turn for the sketch writers—and from Tricia Marwick, who spoke about values, from Jeremy Purvis, who spoke about morals and, perhaps above all, from Elaine Murray, who was a passionate advocate of the town that she represents.

Nothing that we can do now will bring back those 270 lives. Mr MacAskill has made his decision to release a mass murderer. He made it clear that he absolutely believes in the conviction of al-Megrahi for causing the deaths of 270 men, women and children. Nothing we can do—no vote that we can take, however overwhelming—can bring al-Megrahi back to this country. Mr MacAskill has made his decision. I respect the fact that the decision was extremely difficult. I acknowledge any minister who makes a tough call and I acknowledge Mr MacAskill's courage in making the decision, but we must ensure that all our efforts in the matter serve justice.

People have come to different views on what they think they might have done if the decision was theirs, but none of those opinions—and, certainly, no weight of opinion polls—can turn that decision around. What we can do, and what Parliament surely must do, is hold ministers to account. When they exercise quasi-judicial powers, they exert enormous power over individuals. It is right that ministers are challenged to explain their decisions. That is not party politics but accountable Government. No Government should be frightened of that.

My colleagues have highlighted today, as we did last week and the week before, that the powers used in the decision were judicial but were exercised poorly and in a way that no judge would have entertained. No judge would have briefed the media in advance, as the SNP did. No judge would have briefed television cameras to follow him to Greenock jail, provided a running commentary on the decision itself and then heightened tension to unbearable levels before making the announcement.

Some may wish to reflect on the feelings of the families of the lost during that time. No Government should have made such a momentous announcement to the basement of St Andrew's house rather than to this Parliament. That was very wrong. We know that the SNP made no effort to contact the Presiding Officer or the other parties to ask for Parliament to be recalled. Had it made such a request, we would have accepted it gladly. In its handling of the issue, its spin and manipulation, the Government put publicity before responsibility.

It is unfortunate that Mr MacAskill will not close the debate, which means that he will not be able to answer, as he should, the detailed questions that members have asked. His place is to be taken by the First Minister, who is the political head of the Government. Many are surprised that the First Minister will close the debate, not least Mr Michael Russell, who usually gets such slots. Up until now, the First Minister has observed that the decision to release al-Megrahi and the decision to visit him in jail were Kenny MacAskill's decisions alone. Will the First Minister tell us whether he discussed with Kenny MacAskill whether his jail visit was appropriate?

Other questions remain, as many members have said. Why was the UK justice secretary blamed for the visit to Greenock? On Newsnight on 20 August, Mr MacAskill was asked why he had gone to prison to visit al-Megrahi. He said that he had had to, because Jack Straw had made it clear that representations should be heard from the prisoner. That was repeated by our First Minister on the BBC news the very next day. However, what was said turns out not to be the case. The policy was made specifically to allow written submissions, so why did ministers allow the media to be told the wrong information? Why did they change their story—as they did—when the written records of the House of Commons showed otherwise?

When he was questioned on his statement last week, why did the justice secretary give the impression to Margo MacDonald and Pauline McNeill that he did not discuss al-Megrahi's appeal on his visit to Greenock prison, when the official note of that meeting shows that he volunteered information about the implication of continuing the appeal? Denying that the appeal was ever mentioned simply casts further doubt on the basis on which al-Megrahi decided to drop his appeal, which many wanted—and still want—to be heard. In response to Margo MacDonald earlier, the minister said that he considered the PTA and compassionate release together, which again leaves room for doubt. Does not all of that simply confirm that the meeting in jail between a convicted murderer and a justice minister while legal proceedings were live was plain wrong?

It was particularly wrong, given that a similar audience was not accorded to the families. Why did the justice secretary hear representations on compassionate release from al-Megrahi and from the Libyans at eight intergovernmental meetings, when on 1 July he told the relatives of the UK victims that he was not prepared to hear from them on that issue? It does not seem to be due process to deny the families of UK victims the right to make clear to the justice secretary their views on compassionate release.

There are legitimate questions for the UK Government to answer, not least whether the Libyans were told that the Prime Minister and the Foreign Secretary favoured al-Megrahi's release. I do not see what the Prime Minister has to hide. Why does not he speak? If Andy Murray wins the US open, he will certainly speak about that—

Photo of Tavish Scott Tavish Scott Liberal Democrat

Many have found the cabinet secretary's decision difficult to understand. We must find ways of coming together as a Parliament to respond to it. The amendments to the motion provide a way of doing so.

Photo of Annabel Goldie Annabel Goldie Conservative 12:14 pm, 2nd September 2009

The debate has been instructive. We should never forget the genesis of the issue, which Elaine Murray so eloquently described. Members have been offered an opportunity to assert the position of the Parliament, as distinct from the position of the Scottish Government.

I am intrigued by the fact that the First Minister is to close the debate for the Scottish Government because so far he has made it quite clear that the issue is the exclusive responsibility of his justice minister, and that the decision to release Mr Megrahi was Mr MacAskill's decision and Mr MacAskill's decision alone. I find it less than impressive that when it becomes clear that the Labour Party is embarrassed and in trouble, none other than the First Minister is ready to leap to centre stage and return to the fray.

Of course, the SNP is feeling a little less bruised this morning because the Labour Party is now getting it in the neck on this issue. The emergence of the evidence that Gordon Brown told the Libyans that he did not want Mr Megrahi to die in jail is damaging for the Prime Minister, and his situation is made worse by his stubborn silence since the release decision was made.

However, let us not get distracted. This debate is about Opposition parties calling this Government to account for the decision that it made. In my view, the Salmond Government made a bad decision, and made that decision badly.

For example, it is clear to me that Mr MacAskill gets so upset about the idea of keeping Mr Megrahi in Scotland in secure care because he did not consider that idea as a serious option. Today, he has again failed to answer the question why Scotland's police officers and NHS staff were able to hold the Glasgow airport bombers securely in a Scottish hospital for more than a month but—according to Mr MacAskill—would not be able to do the same for the Lockerbie bomber in his last few days.

Photo of Annabel Goldie Annabel Goldie Conservative

I am sorry, but I am short of time and have a lot to cover.

I can conclude only that Mr MacAskill had set his mind on releasing Mr Megrahi back to Libya—an impression that is reinforced by the presumption that was clearly established at the meeting with the Libyan Government on 22 July 2009 that, if compassionate release were granted, release would be to Libya.

On the question of process, we must raise the remarkable incident of the meeting between Mr MacAskill and Mr Megrahi. At first, the SNP claimed that the minister had to meet the Lockerbie bomber because Jack Straw's rules required him to do that. Then, the SNP said that they met because Mr Megrahi asked for a meeting. However, we now learn that Kenny MacAskill instigated the meeting, although under no obligation to do so. In my view, that personal engagement was acutely misjudged and profoundly naive. Again, the suspicion lingers of nods and winks and deals.

Despite his claims, Mr MacAskill has not published all the medical advice. It is quite clear that, as Dr Ian McKee indicated this morning, the SNP was given expert advice. If Mr MacAskill is in possession of that expert advice, it must be published. Further, on the BBC's radio programme "Good Morning Scotland" today, Nicola Sturgeon said that all the medical evidence that Mr MacAskill saw has been published. Where is it?

The medical officer's report to Mr MacAskill says:

"we attach relevant medical reports in a sealed envelope".

Where are those reports? Where is that expert advice? Why has it not been published? Dr Richard Simpson was absolutely right to raise those issues. They are germane to this matter and, so far, there is a huge silence surrounding the import of that medical advice.

Alternatively, is it the case that, as the medical officer also says, no expert is willing to give a prognosis of three months? Once again, the suspicion lingers that this was not a decision that was based on facts, but that facts were found to fit the decision that had already been taken and had already been signalled to the Libyans.

I think that Gordon Brown and Alex Salmond have been engaged in nudge-and-wink diplomacy and that the SNP Government made the wrong decision. It is important that the Scottish Parliament has an opportunity today to express the Parliament's view. As I said last week when I responded to Mr MacAskill's statement, I do not consider that the decision that he made was a decision in the name of Scotland or this Parliament, and it was not a decision that was in my name. That is why my party will today support the Labour and Liberal Democrat amendments. In turn, I ask members to support the amendment in the name of my colleague Mr Aitken.

Photo of Iain Gray Iain Gray Labour 12:19 pm, 2nd September 2009

Today's debate has—apart from a bad start—been wide ranging and often eloquent. The tone has properly been serious, as we are dealing with a serious issue and a serious decision.

Many have commented on the various issues that surround Mr al-Megrahi's release, but it is important in closing the debate that we return to the issue at its heart. It is now almost two weeks since the justice secretary announced his decision to release Mr al-Megrahi and return him to Libya. I said then that I believed that that was the wrong decision, and that it was reached by a flawed process. Nothing that we have heard during the past fortnight or this morning has convinced me otherwise. I know that others take a different view, and I respect that, but I disagree with them.

Photo of Joe FitzPatrick Joe FitzPatrick Scottish National Party

Will the member explain why he was not prepared to give his views on compassionate release prior to Kenny MacAskill making his decision? When the member was specifically asked, he said that he did not have the medical information and he was therefore not prepared to make his views known.

Photo of Iain Gray Iain Gray Labour

That is quite an important question, to which there are two answers. First, I took a view when the medical evidence had been published, so that I was able to—[ Interruption. ] No—it was in response to the statement. It is also the case, however, that I thought through the decision seriously in exactly the same way that I believe the justice secretary did, and I came to a different conclusion. All the members who have spoken today have acknowledged that the decision was difficult, but that means that the process by which it was reached had to be unimpeachable.

New flaws in the process are emerging every day. The justice secretary took two decisions on the same day: he also rejected the application from Libya under the PTA. I agreed with that decision, and Jack McConnell has made it clear that Labour in Scotland had concerns about the PTA as it was discussed and developed.

However, the consideration of the PTA application was dragged out beyond the recommended 90-day period. There was no reason for that, because the application could not have been granted while not one but two appeals—one by al-Megrahi against his conviction and another by the Crown Office against the sentence—were outstanding.

Photo of Alex Salmond Alex Salmond First Minister of Scotland, Leader, Scottish National Party

Iain Gray talks about his concerns over the PTA process. Did he ever make those clear to the Prime Minister?

Photo of Iain Gray Iain Gray Labour

Jack McConnell was clear: those concerns were raised by him as former First Minister and as the leader of Labour in the Scottish Parliament. I have not discussed the issue directly with the Prime Minister. Those concerns were raised properly here in the Scottish Parliament.

The issue was compounded by Mr MacAskill's decision to make an unprecedented visit to a convicted murderer in Greenock prison. His justification—that Jack Straw had said that representations must be heard from the prisoner—has proven to be simply false, and a different explanation has appeared every day. However, the documents that were published yesterday made it clear that it was the cabinet secretary who offered to visit the prison and hear representations, as many members, such as Elaine Murray, have quoted chapter and verse to show.

The note of that meeting, which has now been released, reveals no argument that could not have been made in writing to the justice secretary, but it clearly shows that the visit compromised the separate but parallel application for compassionate release and the then on-going appeals. Indeed, when Mr MacAskill was talking about that visit today, he clearly stated that he told Mr al-Megrahi that he was considering the two applications together because that was the most efficient way of undertaking the process. The note reveals that Mr MacAskill raised with Mr al-Megrahi the point that his PTA application could not be granted while his appeal continued. It is impossible to avoid the conclusion that that ill-advised visit compromised the whole process.

The prisoner transfer application was turned down because Mr MacAskill accepted that the American families of victims believed that they had been promised that al-Megrahi would serve out his sentence in Scotland. I accept that reasoning, and Jack McConnell has explained why, in his view, it is indeed correct.

However, Mr MacAskill has never explained why, if that ruled out transfer to incarceration in Libya, it did not similarly disallow release on licence to freedom in Tripoli. Mr al-Megrahi is still a lifer and is still technically liable to recall. His sentence has not been quashed and he has not been pardoned. There is a glaring logical inconsistency between the two decisions, and it is a cruel inconsistency for those American families in whose name the prisoner transfer application was refused. It could have been resolved by compassionate release in Scotland, but it is clear that Mr MacAskill dismissed that option. It is also clear that Strathclyde Police simply indicated how it would provide security for that option and at no time said that it could, or would, not do so. The option should have been considered.

As many speakers have said, compassion is woven into the fabric of our justice system just as it is inscribed on the mace. That is why we have no death penalty, why we have the right of appeal and then further review, why we have parole, and why we have the right of application for compassionate release. However, David McLetchie was right when he said that compassion is tempered by justice, just as compassion and justice are intertwined on the mace. That is why due process requires consideration of the sentence served and any views of the court on that sentence as well as the medical evidence.

As Robert Brown and other speakers made clear, we have never heard from the justice secretary that he considered any of those factors, nor have we had any indication of how he balanced them alongside the medical evidence. We can only conclude that he failed to give them due consideration. As for the medical evidence, we know that, at best, it is far less clear-cut than we had been led to believe.

The decision was entirely one for Scottish ministers to make. Every document that was released yesterday—even the account of the Libyan minister's statement regarding the Prime Minister and the Foreign Secretary that has Mr Salmond so excited today—made it clear that UK ministers respected the fact that the decision was one for Scotland to make.

I have made my judgment on the decision and the process and I stand by it. I said that the visit to Greenock was unnecessary and I believe I was right. I said that compassion for al-Megrahi had to be balanced against the length of the sentence remaining and I believe I was right. I said that compassion had to be balanced against the enormity of the crime, and the guidance says that I was right. I must admit that I assumed initially that the medical evidence must be incontrovertible and unambiguous, but as it turns out I was wrong about that. On none of those matters has Mr MacAskill convinced the Parliament. The First Minister must address them now. He can use this chance to make the case for his minister's decision or he can use it to make political capital. If he does the latter, it will be because he has lost the argument.

Photo of Alex Salmond Alex Salmond First Minister of Scotland, Leader, Scottish National Party 12:28 pm, 2nd September 2009

When people in Opposition parties who have clearly been engaged in trying to make political capital out of a quasi-judicial decision appeal to the First Minister not to reply to those points, it betrays a certain degree of nervousness in the argument. For the Parliament, and for Iain Gray in particular, I will try, first, to answer the political arguments that have been made by the Opposition parties. Then let us see if we can get on to the heart of the principle against which the decision should actually be judged.

On the political arguments, I say to Iain Gray that it is not just myself who is excited by the revelations that we heard last evening. He must accept that there is a general excitement throughout the press corps this morning. The argument is not, incidentally, that the Foreign Secretary and the Prime Minister did anything wrong by revealing to the Libyan Government, through the foreign minister, that they did not want Mr Megrahi to die in a Scottish prison. There was nothing wrong with that. What is wrong is that Labour in Scotland, either knowing or not knowing about that, lodged an amendment attacking the justice secretary.

In order to identify that point, we have to know whether Iain Gray, the Labour Party or their spokesmen knew about the views of the Prime Minister and the Foreign Secretary when the amendment was lodged. When I asked Richard Baker about that, I got no answer whatever. However, because of newspaper deadlines, there was an answer in this morning's Scotsman. Before Bill Rammell and then the Foreign Secretary clarified the position, a spokesman for Iain Gray said:

"This is a third-hand claim made by people who told the world the Queen and Prince Andrew were dancing in delight over the release of Megrahi."

In other words, a spokesman for Iain Gray rubbished the claim. We now know that the claim was true and, in that light, we have to ask at what stage the Labour Party will accept that by pursuing an attack on the Cabinet Secretary for Justice it is guilty of monumental double standards on this issue.

Tavish Scott raised a number of questions. Like most people, he accepted that the decision was difficult for the cabinet secretary. I believe that there is a range of views across the political parties on this issue, and I have noted the comments of Lord Steel of Aikwood, Charles Kennedy and David Owen, who have been associated with very prominent positions of responsibility in the Liberal Democrat Party.

Photo of Alex Salmond Alex Salmond First Minister of Scotland, Leader, Scottish National Party

I apologise to the Liberal Democrats for mentioning David Owen—I realise that I have gone into forbidden territory. Nonetheless, we should accept the point that people of substance agree, on balance, that Kenny MacAskill made the right decision.

Tavish Scott also raised the visit to Greenock prison. Let us talk about the issue directly. This was a unique circumstance. For the first time, a prisoner transfer agreement was to be examined without the explicit consent of the person concerned. That is why representations had to be made. Those representations could either be in written form or made directly; it was Mr Megrahi who elected to make them directly. The cabinet secretary accepted that point on advice because he had met directly everyone else concerned with the application, and not to meet Mr Megrahi directly would have put the cabinet secretary at risk under the rules of natural justice and therefore at risk of judicial review. The point is clear, whether people agree with it or not.

Photo of Cathie Craigie Cathie Craigie Labour

I have a very simple question. Why did the First Minister's Government ministers mislead Parliament into thinking that this had all been legally set down in agreements between Libya and the UK? Why did they not inform Parliament that the meeting was arranged as a result of an invitation and a letter from the cabinet secretary's department?

Photo of Alex Salmond Alex Salmond First Minister of Scotland, Leader, Scottish National Party

Megrahi was offered the choice of making his representations directly or in writing, and chose to make them directly.

Events on this story are moving quickly. I should tell the chamber that the Prime Minister has spoken on the issue and has said:

"I respect the right of Scottish ministers to make the decision."

That is a direct quote from the Prime Minister. I hope that we will now start to see respect from across the chamber.

Photo of Alex Salmond Alex Salmond First Minister of Scotland, Leader, Scottish National Party

I am just about to come to Annabel Goldie.

Last night, I watched a spokesperson on television who had been asked about the position of Peter Fraser describe him as a lone voice in the Conservative party. He might be a lone voice—or indeed a lonely voice—but he is not actually alone. Incidentally, I point out that he was Lord Advocate during the Lockerbie proceedings, so perhaps he should be called to attention.

Peter Fraser is not a lone voice in the Conservatives; he is supported by John Corrie, who knows a great deal about the Lockerbie case. Moreover, other Tory interventions in the case—for example, representations made to Mr MacAskill by a Tory MP who said that Mr Megrahi should be used as a bargaining chip and comments by Lord Trefgarne, a former Conservative minister, who said that the issue should be part of a commercial and political process—were not helpful to a judicial decision. Throughout the process, Kenny MacAskill quite rightly maintained that the matter had to be decided in the justice system and under the laws of Scotland.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Will the First Minister explain why he announced to the world that, at the infamous meeting with Mr Megrahi, Mr MacAskill never discussed the appeal dismissal? It now appears from the documents released yesterday that he not only discussed it, but emphasised the point.

Photo of Alex Salmond Alex Salmond First Minister of Scotland, Leader, Scottish National Party

As a statement of a fact, I say to Mike Rumbles that, if he looks at article 3(b) of the prisoner transfer agreement, he will see the conditionality—that legal proceedings have to be ended before a decision can be made. The prisoner transfer agreement was opposed consistently, openly and publicly by the Scottish National Party right through the process of the past two years.

Apart from that conditionality, what was wrong with the prisoner transfer agreement? Because of the context in which it was first negotiated, whatever the truth of the matter, people would always say that the agreement was linked to trade and oil, security or getting Libya back into the international community and that it was not based on the processes of justice. That is what was wrong with the prisoner transfer agreement. It would also have breached undertakings that were given, which Jack McConnell spoke about. To uphold the principles of Scottish justice, what really mattered was to go through the due process. The justice secretary had to take account of the medical advice and the advice of the Parole Board and the Prison Service, and make a difficult and challenging but brave decision, consistent with the legal processes of Scotland.

I come to the international reaction and the reaction in Scotland. I agree with Malcolm Chisholm on two grounds. First, he is absolutely right that, above all, members throughout the Parliament should vote on the motion in a free vote. Secondly, opinion is divided, but I am proud and happy to have the support within Scotland of the Church of Scotland and Archbishop Mario Conti of the Catholic Church; I am even prouder to have the support of Nelson Mandela, which Malcolm Chisholm mentioned, and which indicates the respect across the planet for a Scottish judicial decision.

Meeting suspended until 14:00.

On resuming—