For all the fulminations of Foreign Secretary David Milliband, that any suggestion of a deal would be offensive, it seems that his predecessors, when Tony Blair was Prime Minister, did discuss a possible prisoner exchange with Libya. Blair has always denied that Megrahi could have been part of any such deal. If he means what he says, then he was very badly briefed. I understand that Megrahi was the only Libyan national held in any British jail at the time.
For all that, though, the suggestion that Megrahi’s release was the culmination of Blair’s talks about a deal, falls at the first hurdle of analysis. The idea of some grand conspiracy embracing Blair, Brown, Ghadafi, and Scottish First Minister, Alex Salmond, is preposterous. Sadly, I do not say this because I think that either the Labour government in Westminster or the SNP administration in Edinburgh is morally above getting into bed with a rogue regime such as Libya’s. The reasoning is purely partisan. I can believe that Brown or Salmond would make a deal with Ghadafi. I cannot believe they would make a deal with each other.
So, we can conclude, that somewhere along the lines Blair’s proposed deal with Ghadafi fell apart. There may have been some moral qualms in Westminster. I do not rule this possibility out. There may have been pressure from Washington, or a concern that, politically, a deal would be unsellable at home. Most likely it fell on constitutional questions. It is unclear that a UK administration has the power to release a prisoner held in a Scottish jail. Probably, acting under the Royal Prerogative, it does. But if the British and Scottish governments are divided over the use of the Royal Prerogative with regard to a prisoner held in Scotland, it could provoke a constitutional crisis. Until 2007, there was a tame Labour administration in Scotland, which would have been pliant, but with the SNP winning the 2007 elections a deal would have become too controversial and difficult.
It is possible, therefore, that Ghadafi turned his attention to negotiating with Edinburgh because his proposed deal with London fell apart. Formally speaking, the Scottish government cannot enter into any such deal. It has no role in foreign policy or in foreign trade negotiations. But deals such as this are typically informal. They comprise nods and winks. And any commercial opening up of Libya’s oil industry to British interests would disproportionately benefit Scotland, where much of the oil industry, and its attendant technical expertise is based.
Any such agreement with Edinburgh would, necessarily, have excluded Westminster. There is a by-election (special election) due in Glasgow, at which the SNP is expected to be the main challenger to Labour. (The psephology is complicated by the fact that the seat was previously held by the non-partisan Speaker of the House. Labour [the Speaker’s former party], the Conservatives and the Liberal Democrats did not contest the seat against the Speaker. The last time there was a partisan election in that constituency there were different boundaries). Labour has held four of the eight by-elections it has defended in this Parliament, but lost three of the last four, including a Glasgow seat to the SNP. There will be a general election within the next year. While the Conservatives will make major gains in England, and probably Wales, the SNP seems well-placed to take seats from Labour in Scotland. It is even possible, if the Liberal Democrats do badly, and Labour does better than I currently expect, that the SNP could hold the balance of power in Westminster.
In current circumstances, therefore, a deal between the SNP and Labour is extraordinarily unlikely.
How credible is the notion that the Scottish government made a deal – albeit an informal one – with Libya? To determine that we need to consider the other possibilities. Could it simply be that to thumb Scotland’s collective nose at America was thought to be a vote-winner? If so, it was an ill-conceived idea, even apart from the moral implications. The majority of the victims of Pan Am 103 were Americans, but there were more than 50 British citizens killed, including 11 on the ground in the small town of Lockerbie. The reaction of the families is a key part of media coverage in stories such as this and is, inherently, unpredictable. There must be safer ways of irritating America, with fewer risks of a political backlash at home.
Some are suggesting that doubts about Megrahi’s guilt may have influenced the decision. I haven’t reviewed the evidence and cannot pronounce on that. Certainly the trial was a unique affair, conducted in Holland according to Scottish law. It was necessarily limited to the evidence available, and there may have been – and probably was – additional evidence retained by the Libyans. Almost certainly there were others involved in the plot, though if Megrahi was one of several conspirators, it does not dilute his guilt. But such an argument does not stand up. There is, in Scottish law, an appeals process, which Megrahi was using. He dropped his appeal only because he was being released. The Justice Secretary, Kenny Macaskill, could have released Megrahi on the grounds that he found the conviction to be unsafe, but he was very explicit in saying that Megrahi was guilty and that he was releasing him on compassionate grounds. If further evidence were to cast doubt on Megrahi’s conviction, it would put the release into a different light. But the decision to release him was made wholly on other grounds, and would be unaffected by any such considerations.
Is it possible that Macaskill was simply being sincere when he claimed the decision was made on compassionate grounds? That seems unlikely. The “compassion” involved seems restricted to a man dying of cancer, a not uncommon scenario, and ignoring the feelings of more than 200 still-grieving families. Even Macaskill’s statement, which seems to vacillate back and forth, almost deliberately keeping us in suspense as to his final decision, seems to have been constructed with cruelty to the families in mind. Remember, the sheer numbers involved mean it would have been impossible to warn the families in advance that this announcement was coming. Many of them would have learnt the news from the media and from Macaskill’s own words. Judge for yourselves, but, to me, this is not a man of compassion, it is a man trying to spin a decision of which he is justly ashamed.
My conclusion is that there most likely was a deal made, and for purely commercial reasons. Gordon Brown is not in a position to order an investigation, much as he would like to embarrass the SNP, because Labour would probably have made the deal two years ago if it had had the power to deliver what Ghadafi wanted.
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