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What If Megrahi Didn't Have Cancer?

There's still plenty, I'm afraid, that needs to be said about the decision to send the Lockerie bomber back to Libya. But, since many people think that there was a determination, come what may and regardless of circumstances, to free him let's begin by asking how matters might have unfolded if Abdelbaset Ali al-Megrahi had not contracted terminal prostate cancer. Would he now be in Scotland or in Libya?

Granted, this is a hypothetical but it may not be unreasonable to hazard that it might have gone like this:

1. The UK government and Libya would still have negotiated a Prisoner Transfer Agreement.

2. The Scottish government would still have sought to exclude Megrahi, or, specifically, anyone connected to the Lockerbie bombing from that agreement.

3. The wider interests of the UK-Libyan (and US-Libyan) relationship would have remained the same. Yes, there are some business concerns. More importantly, persuading Libya to abandon its WMD programme and become, however much we might find the notion grisly, a "partner" in anti-terrorism efforts, would have remained a) a considerable foreign policy success and B) remained a matter of some pressing interest.

4. No matter how much Downing Street or the FCO might have wanted to do Libya a favour, the decision on whether to accept the Libyan application for Megrahi's transfer would still have been taken in Edinburgh, not London.

5. The United States would have remained opposed, publicly at least, to any transfer.

6. So would the Scottish government.

7. Megrahi would not have dropped his appeal.

8. Even if he had, the Crown would not have dropped its own appeal.

9. That would have precluded his transfer under the PTA.

10. He would still be in Greenock Prison, pending the eventual - distant - outcome of that appeal.

11. Even if both appeals had been dropped he'd still be in Greenock jail.

Why? Well, this is what Kenny MacAskill said in his statement last week:

It was clear that both the United States Government and the American families objected to a prisoner transfer. They did so on the basis of agreements they said had been made, prior to trial, regarding the place of imprisonment of anyone convicted. The United States Attorney General, Eric Holder, was in fact deputy Attorney General to Janet Reno at the time of the pre-trial negotiations. He was adamant that assurances had been given to the United States Government that any person convicted would serve his sentence in Scotland. Many of the American families spoke of the comfort that they placed upon these assurances over the past ten years. That clear understanding was reiterated to me, by the US Secretary of State Hillary Clinton.

I sought the views of the United Kingdom Government. I offered them the right to make representations or provide information. They declined to do so. They simply informed me that they saw no legal barrier to transfer and that they gave no assurances to the US Government at the time. They have declined to offer a full explanation as to what was discussed during this time, or to provide any information to substantiate their view. I find that highly regrettable.

I therefore do not know what the exact nature of those discussions was, nor what may have been agreed between Governments. However, I am certain of the clear understanding of the American families and the American Government.

Therefore it appears to me that the American families and Government either had an expectation, or were led to believe, that there would be no prisoner transfer and the sentence would be served in Scotland.

It is for that reason that the Libyan Government's application for prisoner transfer for Abdelbasit Ali Mohmed Al-Megrahi I accordingly reject.

indeed, far from the act of an upstart ministry hellbent upon flexing its muscles on the international stage, the impression one gets from the released documents is of an SNP administration that desperately wants to take - and, in the end, be seen to be taking - this decision in a sober, rational fashion. That's as you might expect: the Nats may be provincial, strictly speaking, but they're not hicks. So it went something like this: All parties are invited to make their representations; Edinburgh is desperately keen to discover what assurances were given to the Americans; the Americans themselves - both relatives and the administration - are consulted on at least half a dozen occasion. So too, naturally, are the Libyans. In the end, it does suit everyone that he go home - for reasons of realpolitik and, perhaps - here one can only speculate - because he might, had his appeal continued, have been freed.

Alas there's been an awful lot of confusing reporting on this. Matters weren't helped by a startlingly ignorant report from Nick Robinson on the BBC last night. Apart from anything else Robinson appeared to be under the misapprehension that the PTA had something to do with Megrahi's release. Not so. The PTA is about arrangements, subject to all parties agreeing, for transferring a prisoner to a jail in his home country. This ought not to be a difficult point to grasp. So even if the FCO was of the view that they'd prefer Megrahi to die somewhere other than Greenock prison, this does not mean that even the FCO necessarily wanted him released.

Robinson concluded his report by frothing that:

One thing we have learned from looking through these papers, is that at no stage did government ministers ever seriously consider saying no.

But this too is simplistic. The UK government eventually acceded to Libya's demand that Megrahi not be specifically excluded from the PTA. That's all. That does not mean that Megrahi was bound to be transferred to Libya, far less released on compassionate grounds. There were, however and no mater how distasteful you find it, perfectly good reasons for wanting to bring Libya back into the international fold. (Something the Americans also wanted.) The terms of a PTA - and by terms, I mean actually making the UK-Libyan PTA the same as those we have with 98 other countries - are a pretty tiny price to pay for that. And, as observed above, Robinson's report is factually inaccurate too since, of course, Edinburgh did say "no" to transferring Megrahi to Libya. There's absolutely no reason to suppose they'd have said "yes" if circumstances had been different and if Megrahi did not have terminal cancer.

So it's not terribly helpful for Iain Dale to write stuff like this:

In some ways it does not surprise me that the SNP Justice Minister Kenny MacAskill acceded to the constant arguments coming from London. He could hide behind the cloak of so-called 'compassion' and hope for the best.

This, I'm afraid, is palpable tripe. Apart from anything else it misjudges the psychology of the individuals concerned. The notion that an SNP ministry would roll over and accept London interference in a matter reserved to Edinburgh is absurd. The idea that any Scottish government would accept London meddling in matters of Scots Law is only marginally less ridiculous than imagining that they would accept such meddling and say nothing about it publicly. Believe me, if London had been lobbying for Megrahi to go home, Alex Salmond would have told us.That would have been gold for the SNP. Standing up for Scotland! There's nothing they like more than that, no matter how flimsy the excuse for their flag-waving may often be. In this instance, of course, it would have been a sturdy, justified case for wrapping themselves in the Saltire and defending the independence of the Scots system.

Bizarrely, Dale asks "why were there so many letters?" But that's because Edinburgh kept asking for clarification on the PTA and on the nature of any assurances that might have been given to the Americans. The letters, those that have been released anyway, are responses to Edinburgh, not correspondence that began in London.

Then Iain says:

The UK government has been caught tacitly encouraging the release of a convicted terrorist - not any old terrorist, but the one who was convicted of the worst terrorist atrocity in our history.

But this isn't true either. The most one can say, on the evidence in the public domain, at this point is that the FCO and, perhaps, Downing Street would have been quite happy for Megrahi to have been transferred to a Libyan prison. There's a difference between that, however, and releasing him. As I say, absent his cancer there's every reason for supposing that Megrahi would still be in a Scottish prison, no matter what Labour ministers in London would have liked.

And, despite what David Cameron says, I doubt that a Conservative government would have acted very differently.

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