Who frees the Lockerbie bomber?

Kenny MacAskill MSP, Justice Secretary in the Scottish government

Daily Mail editorials aren’t the first place this blog would look for insightful and relevant comment, but today an interesting question is raised regarding the fate of the Lockerbie bomber Abdelbaset Ali al-Megrahi. Mr Megrahi, a Libyan citizen, was convicted of murder for the deaths of 270 people after an explosion aboard Pan Am flight 103 from London to New York on 21 December 1988, and has been in jail ever since.

Because the plane crashed near Lockerbie, a small town in the south of Scotland, the crime was tried under Scottish law. The actual trial itself took place at a military base in the Netherlands, an unusual arrangement but one which was negotiated by the Libyan government as part of the condition under which Mr Megrahi was extradited from Libya for trial. Upon conviction, Mr Megrahi has been serving his sentence in a Scottish prison. He is now reported to be gravely ill, and there is apparent consideration being given to his release on compassionate grounds or to his return to Libya to serve out the rest of his sentence there.

The possible release of Mr Megrahi is extremely controversial in America. As this blog has observed in the case of Gary McKinnon, the Americans have a different attitude to crime and punishment. Long and brutal sentences trouble them less, and several states indeed still practise the death penalty. To treat Mr Megrahi differently to the way in which the Americans recommend could be taken by them as an affront. An issue of criminal justice becomes a matter of foreign policy.

And this is where the Daily Mail makes an interesting point. Under the UK’s devolution arrangements, criminal justice is a devolved matter but foreign policy is not. Responsibility for deciding the fate of Mr Megrahi lies with Kenny MacAskill, justice secretary in the Scottish government. (The Daily Mail still refers to that institution using its official, but old-fashioned title, of Scottish Executive, which reveals a lot, I may say.)

Scotland has always had its own system of criminal law, even in the days before devolution. The difference that devolution has made is that ministerial decisions in relation to Scottish criminal law are taken by Scottish minister accountable to the Scottish Parliament, rather than by UK ministers (who might not be Scottish) accountable to the Westminster parliament (which is overwhelmingly English). The mismatch with foreign policy notwithstanding, that surely is preferable. These international cases are very rare.

And they are not even peculiar to the United Kingdom. Any political system where criminal matters are devolved might have to deal with such a division of responsibility. During the debates about the extradition treaty with the United States, it was repeatedly noted that reaching any kind of extradition treaty with America is hard because there are 51 different criminal jurisdictions there, one for each state and one for the federal level. Do we, in the name of satisfying the Daily Mail, propose to centralise the American system of justice?

No, the right conclusion from this mismatch is not that we should revise our view of criminal justice but that we should revise our view of foreign policy. It is wrong to treat foreign policy as though it were a unitary, indivisible whole. Instead, we should think of foreign policy as being made up of many different aspects of the way our country relates to the rest of the world. Some of these are under the direct control of the national government, but many of them are not. The decision shortly to be taken by Mr MacAskill is part of the UK’s overall foreign policy, even if it is outside the remit of the foreign secretary David Miliband.

If we can come to terms with the idea that foreign policy is not a centralised tool of government action in the way that sentencing policy or road-building policy is, then we can think more effectively about how we want that foreign policy to be made and expressed. All the different factors and influences can then be taken into account, and not only those in the grand buildings on King Charles Street. Above all, we can be a bit less fearful about the idea of a European foreign policy, when we realise that it can exist alongside and not instead of the policy that might be made in Britain.

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