UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 256-iHouse of COMMONSMINUTES OF EVIDENCETAKEN BEFORESCOTTISH AFFAIRS COMMITTEE
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Transcribed by the Official Shorthand Writers to the Houses of Parliament: W B Gurney & Sons LLP, Hope House, Telephone Number: 020 7233 1935
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Oral Evidence
Taken before the Scottish Affairs Committee
on
Members present
Mr Mohammad Sarwar, in the Chair
Mr Alistair Carmichael
Ms Katy Clark
Mr Ian Davidson
Mr Jim McGovern
David Mundell
Lindsay Roy
Mr Ben Wallace
Pete Wishart
________________
Memorandum submitted by the Scottish Government
Examination of Witnesses
Witnesses: Mr Alex Salmond MP, First Minister of Scotland, and Sir John Elvidge KCB, Permanent Secretary to the Scottish Executive, gave evidence.
Q1 Chairman: Good morning, First Minister and Sir
John. Thank you for travelling from
Mr Salmond: Only, Chairman, that I am delighted to be
here. I doubt very much if this session
is going to excite as much interest as another evidence session taking place in
the precincts of
Q2 Chairman: Sir John, would you like to say anything?
Sir John Elvidge: No, thank you.
Q3 Chairman: We would like to start with some updates on the formal mechanisms for cooperation between Scottish and UK Governments. Firstly, could you update us on the current formal status of the Joint Ministerial Committee: is it back up and running in a sufficiently meaningful way after the four or five year hiatus?
Mr Salmond: As your question suggests, Chairman, there was
a hiatus in some of the JMC plenary, as they are called, which I think lasted
from October 2002; so when we took office there had been a five-year gap; I
thought that was undesirable. I thought
it was important to make an early initiative to resume these meetings. My mind was concentrated by another subject
that you may be discussing - the question of the Memorandum of Understanding
with
Q4 Chairman: Alan Trench has said that the Memorandum of Understanding
between the UK and devolved governments is not "fit for purpose"; and the
Scottish Executive's memorandum says that "Revisions to the Memorandum of
Understanding are being considered by all the four administrations that are
party to it". The Scotland Office refers
to the Memorandum of Understanding between the
Mr Salmond: Changes have been agreed with all four administrations. That is not quite right. Changes have been proposed. It would be fair to say the changes do not go as far as we were suggesting; but the particular changes that have been proposed are some changes to the JMC (Europe) on improvements in the concordat on European issues; and secondly, and I think crucially, the addition of dispute resolution aspects which explicitly extend to financial issues. That is, to me, a very important improvement and change. We had a number of other suggestions but these are the ones which have been put forward. They were to go to the JMC (Domestic) next week. Although I believe the Northern Irish administration are in favour of these changes, there have been some delays for other reasons I believe in terms of signing them off, in terms of the working of the Northern Irish administration. The difficulty I think we have now, Chairman, is that it was hoped that these changes would be agreed by the JMC (Domestic) next week. As I say, although the meeting is still on as I speak, that would have to be I think in some doubt at the present moment, as to whether the meeting will take place next week. I hope, if it does not take place next week, it will take place soon; and the changes, particularly in dispute resolution, will be agreed.
Q5 Chairman: First Minister, do you believe that the relationship between the Scottish Government and the British Government is satisfactory in terms of channels of communication, cooperation, working together for the greater good of the people? What are you doing to improve these relations if there is any needed improvement? What concrete steps you are taking to improve relations between the two governments?
Mr Salmond: I suppose my main step was to write to the
incoming Prime Minister in August 2007, suggesting that we resume the JMC
process. To understand why I think this
is important - clearly we are now in a totally different situation than
previously under devolution, in the sense that we now have different political
complexions across the islands. We have
an SNP Government in
Q6 David
Mundell: Could I say, I very much welcome
your presence at the Committee today and, as I think you indicated, I hope it
will be the first of a series of appearances before committees here, because I
think it is a fundamental part of the relationship between Holyrood and
Mr Salmond: I think probably the most positive evidence
has been that I looked for the re-instigation of a process of dispute
resolution of communication of joint working between ministers, which had been
in abeyance for at least five years before the Government in
Q7 David
Mundell: You have to concede surely,
given your comments there about parity of esteem, that some comments you have
made in your capacity as First Minister of Scotland, and not in the
capacity of Leader of the Scottish National Party, have not been reflective of
a parity of esteem from your perspective?
Whilst your memorandum indicates that UK Government has not accepted a
change in relations over the period of devolution, leading to a lack of respect
for
Mr Salmond: If you are going to give me evidence, David, I
think you had better cite it. With
parity of esteem the difficulty has been the assumptions which are still held
in many areas of
Q8 David Mundell: But those other administrations have taken a different approach to setting out their case. They have not used the media to the extent that you have. I think you would have to concede that.
Mr Salmond: Am I conceding that I use the media? Yes, occasionally I do! David, I think you use the media occasionally, do you not?
Q9 David Mundell: But not in the context of the conduct of the dialogue between the Scottish Government and the First Minister of Scotland, and the Prime Minister and the UK Government. I think one thing that surprised many people, myself included, Mr Salmond, was that in the period of the recession nearly a year went by without you having any dialogue at all with Gordon Brown. What is the reason for that lack of dialogue? In this Committee today - and we will come on to discussing Mr al-Megrahi - there are going to be a lot of discussions around structures, and the structures of relationships; but most people looking from outside would think that it would be possible to resolve a lot of discussions in a quick phone call or in some form of dialogue; yet there appears to be none between you and the Prime Minister?
Mr Salmond: If we take the Prime Minister's predecessor
first, the first prime minister I dealt with, the Prime Minister's predecessor
would not speak to me at all from day one of the SNP Government. That was nothing to do with me; I was perfectly
happy to speak to the prime minister, but I think that then prime minister was
upset with the Election result. I am
delighted to speak to the Prime Minister at any time and would love to do so on
much more regular occasions. I accept of
course that the Prime Minister has many, many competing demands, but the wish
for communication from the Scottish administration - and I suspect the Welsh
and Northern Irish administration - is very great. That is why we have been so keen to
re-establish structures which at least would set in train that process. There have actually been two meetings about
the recession with the Prime Minister and leaders of the devolved administrations. One took place last spring and the other was
at the September JMC meeting where the issues of the economy and the recession
were discussed in some detail. Would it
be my wish that there had been more?
Yes, it would, although it should be pointed out that these are not the
only intergovernmental meetings. For
example, the financial quadlaterals take place on a fairly regular basis. I think meetings like that are extremely
useful. Hence the meeting and summit on
jobs that was held in Easterhouse yesterday with myself and the Secretary of
State for
Q10 David Mundell: Could I just ask Sir John a short question. In relation to relationships, Sir John, would you say that the centre of gravity in relationships between the two governments lies in ministers or in civil servants in terms of making relations work?
Sir John Elvidge: In volume terms inevitably the bulk of contact takes place at official level. There is a huge amount of day-to-day business that goes on between the two administrations; but in terms of issues of major significance then I think the centre of gravity lies at ministerial level.
Q11 Mr
McGovern: In an earlier answer the
First Minister, if I understood him correctly, seemed to suggest that
Mr Salmond: I am not suggesting they should be isolated,
or indeed separated. The point I was
making is that among some people in some departments in
Q12 Mr
Carmichael: My experience here as an MP
for the last five years has been the opposite.
Rather than thinking of Scotland as an extension of Westminster, it is
next to impossible to get civil servants here to think about the Scottish
aspects of United Kingdom responsibilities, because they see the word
"Scotland" and something switches inside their brains and they say, "Oh, well
that must be devolved". You can go
through a whole series of different legislative difficulties that have arisen
as a result of that attitude. On this
point about the need for more formalised structures, does it come down to
this: that you need to have the formalised
structures because the personal working relationships between
Mr Salmond: No, I think it was always envisaged to have
structures which would take account of the new relationships. I cited a couple of celebrated disputes
between the previous Scottish Executive and
Q13 Mr Carmichael: Are you content with the nature and level of personal relations between yourself and your ministers and ministers here?
Mr Salmond: I am certainly content with the nature of personal relationships between myself and my ministers. They may be better than the relationship between some ministers in the UK Government and their ministers! There are two things that strike me: where there are points of difficulty and crisis - and I cited a number of what might be termed "national emergencies" - I think the working position has been extremely good. People's minds are concentrated on a major issue. Secondly, I would say that in these JMC structures by and large, certainly the plenary meetings, the relationship in terms of the formalised meetings has been excellent. I think you will always get a situation where politics will crowd in to certain aspects of things, although I think that would be inevitable and, to a great extent, legitimate. I think the task is to make sure that political differences genuinely held do not impede your practical working to do good things for our communities. My intention and concern has been to establish that; to get on with the practicalities and make sure things are done; to have the political debate certainly but to try and separate the two.
Q14 Lindsay Roy: You mentioned the structures and operational processes and I agree entirely that they are vital to joint working; so also though is goodwill and a willingness to cooperate. Are you seeing a positive change in that regard in the working relationships?
Mr Salmond: I believe if we are successful, if not next week then in the near future, of having within the Memorandums of Understanding some form of dispute resolution, then that would greatly enhance the working relationships. If people know there is a referee because there are still debates, which are quite legitimate debates, over issues which are years' old, which stretch back into the previous administration, it would be really good if there was a form of dispute resolution which would get over these things and decide one way or another. I think that would help enormously.
Q15 Lindsay
Roy: That is comforting to hear, because I think
people in
Mr Salmond: Yes, I agree with that. I hope that that dispute resolution procedure
can be in place before the Election, and before the General Election overtakes
the
Q16 Lindsay Roy: There are positive messages coming from the partners that they want to move forward together?
Mr Salmond: Yes, and have such a procedure. I think there would still be some doubts from the Treasury as to whether there should be any dispute resolution mechanism that impedes the Treasury's position. There was a lot of agreement at the last JMC plenary that such a thing should be done, and it was remitted to the JMC (Domestic) on the basis of finding agreement.
Q17 Pete Wishart: Good morning, First Minister and Sir John. Could I stay on the theme of structures and relationship-building and mention one operation in Whitehall we have not discussed yet, and that is the Scotland Office and just ask you, First Minister, what added value you feel the Scotland Office brings to the relationship-building, and what you possibly see as a role for the Scotland Office down here now?
Mr Salmond: I am on the record a number of times, as I
think some other people are or some members of the Committee are, that I think
the role of the Scotland Office has been overtaken by devolution. I think it would be better with departmental
contact that the Scottish Government and its officials contact directly the
relevant department. I do not think an
intermediary is particularly helpful on many occasions. I think that would be more effective. That would be my basis. We had a meeting yesterday which was I think
a very good meeting in terms of the job summit at Easterhouse, and I will
continue to have these meetings.
Meetings equally have been held with the DWP Minister in terms of the
responsibilities. The responsibilities
for Jobcentre Pluses are the Department of Work and Pensions' responsibilities. My view would be: better dealing directly with the relevant
Q18 Pete
Wishart: We know that the Scotland
Office and the Secretary of State have often said that the role for the
Scottish Government to be represented is through the
Mr Salmond: If I remember correctly it was my
predecessor's slogan which had
Q19 Mr McGovern: The First Minister said in answer to an earlier question, I think it was to Mr Mundell, that he should cite evidence. When the First Minister says that members of this Committee share his view that there should not be a Scottish Office could he cite which members he is referring to?
Mr Salmond: I was referring to the one that just put his hand up - Alistair.
Q20 Mr McGovern: That is singular.
Mr Salmond: Obviously Pete.
Q21 Mr McGovern: That is two!
Mr Salmond: I live in hope, Jim! I was thinking of Alistair when I said it because I remember sitting behind him, if I am correct, in the Chamber where he made a particularly vigorous case in that direction. I have not heard you speak on the issue, Jim, but I am sure with Alistair's eloquence you will be persuaded to the sense of that position.
Mr McGovern: Let us not get carried away!
Q22 Lindsay Roy: Sir John, in your evidence to the Justice Committee you stated there were cobwebs in some of the structures of inter-government relations. Have most or all of these cobwebs been dusted down, and are things operational as far as you are concerned?
Sir John Elvidge: Yes, I think there have been two sets of changes. The first is the set of changes that the First Minister has described; because my remark about cobwebs was specifically about the fact that substantial parts of the JMC machinery have fallen into prolonged disuse and clearly that has changed. It is also the case that I think we have been able to establish some better working arrangements at official level since 2007. I do not want to make too much of my own position, but it is a significant change that I am able to engage with my Whitehall colleagues most weeks of the year; whereas that had not been the practice for several years up to 2007 for purely practical reasons.
Q23 Lindsay Roy: That is something you have done personally?
Sir John Elvidge: Yes.
Q24 Lindsay
Roy: Is
Sir John Elvidge: I think my colleagues in
Q25 Lindsay Roy: Would you say now that civil servants in both governments are prompting each other to cooperate, that there are much more open channels of communication and much more cooperation and collaboration?
Sir John Elvidge: Once one has got to the point of civil servants talking to each other about a particular issue there is rarely a problem. The problem if it is going to occur is when no dialogue takes place when it should take place, because someone has not perceived the need for the dialogue.
Q26 Lindsay Roy: So the glass is more than half full than half empty; but are there still areas where there are difficulties?
Sir John Elvidge: Yes. As I said in my evidence to the Justice Committee, this is not purely a post-devolution phenomenon; colleagues in London forgetting about the Scottish dimension was a fairly frequent occurrence before devolution; it is just that then there were different mechanisms for combating that, because the sharing of papers acted as a corrective. Now that papers are no longer routinely shared then clearly one needs different mechanisms. I would be surprised if a month went by without somebody somewhere missing the need to think about the devolved dimension of something that they were doing.
Q27 Lindsay Roy: In the interests of taking this forward, can you reveal where there have been the greatest difficulties in establishing that cooperative climate?
Sir John Elvidge: Yes, I think there is a functional answer to that. The greatest difficulties are in the areas where people have the least regular need to interact with their colleagues in the devolved administrations. One can map this in a fairly predictable way.
Q28 Mr Davidson: Could I just follow that up. To what extent is it different or on a different scale, this lack of dialogue between Westminster and Scottish Government civil servants, as compared to the extent to which some Westminster departments tend to be in silos and do not discuss it with anybody else? My understanding is that there are occasions when Holyrood departments, for example, have not had the dialogue with other Holyrood departments that perhaps they should have. To what extent is this almost inherent in the silo mentality that many civil servants have - quite understandably because of the way in which they work in departments - as distinct from being something that is, in a sense, almost deliberate?
Sir John Elvidge: It is very rarely deliberate. There is very rarely a conscious decision not to communicate. Yes, in all complex organisations one faces challenges of communication. There is a level of issue when things get beyond the person first working on them, when they may be working in a compartment, as it progresses towards wider decision-making when Whitehall departments would normally be consulting each other; and it is at that point that, in these instances where they are not used to engaging with the devolved dimension, they are likely to miss the devolved administrations out of that phase of the development.
Q29 Mr Davidson: I sit on the Public Accounts Committee and you have an equivalent in Holyrood. We constantly find that departments do not actually consult with other people that they should; and I am sure you find the same. I am not suggesting you are paranoid, but to what extent do you take offence at this because it is a new situation, the devolved administrations, as distinct from just general sloppiness by some civil servants in a department who should know better but do not?
Sir John Elvidge: I do not take offence at it; I regard it as an inherent problem of complex systems to be solved. I take it for granted that it will need constant effort and constant leadership emphasis to move it to the right place.
Q30 Mr Carmichael: Just to tidy off the points about the Scotland Office, first. I was struck, First Minister, that you described the meeting yesterday as "good and positive". The press release that came from the Scotland Office said that this was the sort of thing you should be looking at instead of wasting your time with independence referendums. Is that the sort of added value that we get from the Scotland Office to the political communication?
Mr Salmond: I am responsible for many things but thankfully not the press releases of the Scotland Office. It would be of course logical if there was not a Scotland Office there would not be such press releases.
Q31 Mr Carmichael: To go to the question of interaction between Edinburgh and Europe, the picture that you paint in your memorandum to the Committee is one which describes Scotland very much as being a subordinate province in the UK, and the formal consultation mechanisms then subsume the Scottish interest into the wider UK interest, if I can put it like that. Does it come to this: a lot of the representation at EU level in the current constitutional arrangements comes down again to relationships between individuals and goodwill?
Mr Salmond: I am not certain of that. For example, there has been more attendance this last year at European Council meetings under this administration than has been in the first year of devolution; so there is certainly more engagement. I think there are three types of issue: firstly, other things that could be done within the current structures, which would avoid daft things like, for example, a civil servant from a London department taking the lead chair when there is a Scottish minister there and things like that. The Calman Commission actually suggested that there could be improvements there and I agree. I think there should be a code of conduct which avoids daft things like that. Secondly, there is a more interesting issue where there is a genuine policy difference - and there are a number of occasions, agriculture would be an example, where there is more than a difference of emphasis, there is a difference of policy; fishing would be another example. A change which certainly I think would be useful is to try and identify, as other countries have done, issues where the Scottish Minister or the Scottish view should be the lead minister, the lead view. It is not difficult to isolate what these issues could be. Fishing, which is predominately a Scottish interest, two-thirds in terms of landings but in terms of ownership of the industry, what, 80 or 90% now; forestry; internal ferries I think would be another issue, where the vast majority of internal ferries are Scottish. So you could identify issues where the lead department properly would be the Scottish minister.
Q32 Mr Carmichael: In practice does that not often happen? To take the fishing example, is it not normally the Scottish minister that takes the lead in the bilaterals?
Mr Salmond: No, certainly not at the Council meetings.
Q33 Mr Carmichael: No, in the bilaterals?
Mr Salmond: I am open to correction here but in terms of
the Scottish minister taking a lead at the Council, it would be very rare
indeed and that would be a rarity. I am
not saying it has never happened, but it has happened so rarely I can actually
remember pre-devolution a major statement from Malcolm Rifkind where he
actually led the Scottish Secretary at a Council, but it was so rare that it
was a significant publicity occasion. It
happens very rarely both pre- and post-devolution. The third issue I was going to mention was
that it has to be accepted - and I am not arguing that if there is an agreed
Q34 Mr Carmichael: The particular focus of the question was about individual relations and goodwill. I am struck by the fact that Richard Lochhead was complaining quite recently about being virtually excluded - I cannot remember the exact form of words; but certainly he felt that he had not been able to get a Scottish position across on agricultural matters?
Mr Salmond: I think I am right - I am not sure of the occasion you are referring to - but there was an occasion where a UK official took the lead chair at a Council meeting when I think I am right in saying Richard was there as a minister, which I think was the reason for that particular difference. I think a protocol should be established whereby that does not happen and should not happen.
Q35 Mr Carmichael: So that was a matter of form rather than substance?
Mr Salmond: If it was only form rather than substance then
we would have officials representing the
Q36 Pete
Wishart: I would like to get your view
on this: what we have heard this morning
is a real attempt to try and ensure that where difficulties present themselves
they are challenged effectively and we put in place structures that are
necessary to deal with these sorts of things.
I think that goes a long way to how the relationship between the Scottish
Government and
Mr Salmond: By definition cooperation is less of a story
than an argument. That is just the way
of the world. As I was saying earlier,
the best examples of full cooperation are where a challenge has presented -
whether it be a Glasgow Airport attack or the current difficult situation with
the severe weather conditions and examples like that; these have been very good
examples. There have been good examples
of joint working initiatives; there are examples of matters falling down
perhaps not necessarily deliberately.
There are one or two examples which are a bit more difficult to
understand, where apparently there has been some sort of blockage on Scottish progress. For example, the location of the headquarters
of the British-Irish Council where there was an overwhelming vote across these
islands for
Q37 Pete
Wishart: You mentioned a couple of issues
that you say perhaps need to be looked at and present a bit of difficulty in
terms of cooperation between
Mr Salmond: On the issue of the Barnett consequentials and
disagreements about the funding, I am hopeful that at some point we can get
some form of adjudication on Treasury decisions, as well as other reforms of
dispute resolution. That would be great
progress. In other words, if you agree a
funding formula, whatever that funding formula would be, most people would say
that funding formula must be applied properly.
The Olympic regeneration issue is one which, to be fair, I suppose its
main champion is Rhodri Morgan, who was the first to seize the importance of
that issue and to see the importance of that issue. It predates this administration, but
nonetheless I suppose most fair-minded people would say that any adjudication
of that would find that the regeneration expenditure should have Barnet
consequentials; not the Olympic's expenditure and the Games itself, but the
regeneration expenditure. Therefore it
would be one, whether it was
Q38 Mr Davidson: Could I follow-up Pete's point although not in quite as confrontational a fashion as Pete is adopting! There clearly has been a great deal of cooperation in terms of things like Sewel motions. My understanding is that there are now more Sewel motions being agreed with yourselves than there were under the previous regime. There is more legislation passed under Sewel motions here than legislation going through Holyrood. Clearly, the system is actually working quite well in a number of regards; but in terms of your point about parity of esteem and recognising the proper roles of each establishment, I am not clear - particularly in relation to your responses to Calman - how you square the question of clarity of esteem with the constant debates that take place in the Scottish Parliament on issues that are reserved. My understanding is that in government time you have got a debate - is it tomorrow - on Attendance Allowance. I understand that you might want to have a view on that, but in terms of your response again to Calman that does tend to blur the lines of responsibility and accountability. If we are to have parity of esteem - and we have always tended to hang back from commenting on what we think you are doing wrong even though politically we might disagree - you do not seem to have the same reservations. Can you just clarify why that is?
Mr Salmond: I am fascinated by this concept, Ian, of you
holding back. If a hanging back
Ian Davidson is a new phenomenon you must be moderating in your old age! It is a distinct mellowing of the
position. On the question of what is
called "Sewel motions" I have never had any difficulty with this. Normally they happen, as you are well aware,
when there is a small addition to a piece of legislation which has Scottish
implications. Rather than having primary
legislation in the Scottish Parliament, it is better and it is convenient and
it is to everybody's utility. I think I
am right in saying there has been some disquiet expressed by other parties in
the Scottish Parliament saying there were too many of them; but to me it seems
obvious that if there is a non-controversial agreed piece of legislation then
you should just get on with it. Given
there were aspects of the Calman proposals which apparently everybody or just about
everybody agreed on - air gun licensing, drink-driving limits, speeding limits,
issues such as that, which actually could be followed by Orders from Council by
resolution of the Westminster Parliament and the Scottish Parliament as other
things have been done in terms of transfer of powers like the railways, for
example - I was rather hopeful that these issues could be dealt with before the
Election. Indeed, the Scottish
Parliament passed a resolution to that effect by a majority but still passed a
resolution. That would just require a
resolution of the Scottish Parliament in two weeks' time and I think the
Westminster Parliament in about a week's time to get to the Privy Council
meeting in March to effect these transfer of powers, which apparently are agreed
between all the parties. That would
leave then the financial issues and the broader constitutional debate which is
not agreed between the parties to be discussed at that stage. In the same way, Ian, that I have been very
happy to see Sewel motions passed when there is agreement, and for me they were
non-controversial - with the Parliament's approval, of course, because they
could only be passed with the Parliament's approval - then I held out the hope
that everyone could see the utility of making progress on these specific Calman
recommendations, which I believed had general assent. Unfortunately, I got a letter from the
Secretary of State for
Q39 Mr Davidson: I understand that and I think it is welcome giving you the opportunity to repeat your views on Calman. Could I just clarify the point I made about Attendance Allowance and parity of esteem and the debating of reserve issues?
Mr Salmond: I am sure you will remember this because you and I both took part in these debates, but of course the essence of the Scottish Parliament's ability to discuss whatever issue it chose in discussion, debate and resolution was not just part of the devolution proposal but also was seen at the time to be an essential right of a national Parliament. Even where it did not have legislative competence, its ability to discuss these things was hugely important. On the issue of Attendance Allowance in particular, then as you will remember, if I am right about the resolution that is coming forward, this was an issue which was first raised as a major public issue by Henry McLeish as First Minister, and one that he pursued very avidly and one, of course, which has accumulated as an issue over the years; because each passing year has seen that sum of Attendance Allowance, which under different arrangements would have been coming into Scotland's Social Services, accumulating as an issue. Also, with the pressure on public services, no doubt many members of the Scottish Parliament think it is an issue which should be ventilated - if I interpret the motion properly.
Q40 Mr
Wallace: Welcome, First Minister. As I am sure you may know from the inquiry,
the inquiry is also looking at how these arrangements function during the
negotiations on the Prisoner Transfer Agreement and Lockerbie. I would just like to take you back to some of
your earlier points. It seems in your
submission to the Committee, or the Scottish Government, that where issues are
non-controversial or not very sexy it does not really matter, but where there
are issues such as climate change, international treaty negotiations the
UK Government has failed to involve you.
The examples you gave were:
Mr Salmond: As far as the climate change position was
concerned, that was obviously not an oversight, because it was a
well-ventilated position over a period of time where both the Scottish
Government and indeed the third sector organisations in Scotland had lobbied
very hard for a Scottish Minister to be at Copenhagen as part of the UK
delegation; as indeed other ministers from other devolved administrations were
at Copenhagen. As to the decision for
them not to have that happen as part of the UK delegation, it was the case that
the Scottish legislation passed was more ambitious than the UK legislation;
but, equally, it is also the case that the UK were arguing for more ambitious
targets. It may be that the
Q41 Mr
Wallace: The defence deployed by Lord
Faulkner in his letters to you, and somewhat by the Justice Secretary Jack
Straw, was that they seemed to say when mechanisms touch on Scottish devolution
then you should be involved, but when the subject being discussed is more
general then they do not need to consult you.
That is what seemed to come with Lord Faulkner. His reading of the MoU was, "The PTA is a
mechanism and when that is being discussed of course we will discuss it with
the Scottish Government, how it would work and who would be involved; but when
we just talk about justice or prisoner transfer as a general issue we don't
need to". Is that your reading of the
MoU; or do you think the MoU should deal not just with mechanisms but also the
sector policies? If we are talking about
agriculture in
Mr Salmond: I think any reasonable person reading the
phrase "to the extent that negotiations touch on devolved matters" would find
it impossible to conceive that signing a Memorandum of Understanding on a
prisoner transfer for Libya could not touch on the status of Mr al-Megrahi, who
was not just the most famous but I think the only Libyan prisoner under
Scottish jurisdiction. Significantly, of
course, Lord Faulkner's position when he wrote to me was not quite that, was
it? When he wrote to me towards the end
of June 2007 he actually argued at that stage that the Libyans had already been
told. He said, "We have reminded them
[that is the Libyans] of this and made clear in diplomatic channels for this
reason any Prisoner Transfer Agreement with
Q42 Mr Wallace: On the assurances that you received from Jack Straw initially that any PTA negotiated would not include al-Megrahi, it seems he gave you those assurances and then had two phone calls from Sir Mark Allen who was working for BP at the time and very quickly after those two phone calls suddenly a letter arrived in your office saying "We find it unable to exclude Mr al-Megrahi from the PTA negotiations, and therefore there is an overwhelming national interest". I have never seen any detailed response of what "overwhelming national interest" is. Were you aware of any representations from BP at the time of the prisoner transfer negotiations or did it come to you as a surprise that suddenly Jack Straw had done a U-turn on it?
Mr Salmond: It was not sudden; can I put
that to you. This took place over a
period of time from 13 July when Jack Straw in
Q43 Mr Wallace: But during the time of this debate, I suppose, on the prisoner transfer arrangement, was the Scottish Government lobbied by companies such as BP or governments such as Qatar to include Mr al-Megrahi? Did you have any approach from any of your ministers?
Mr Salmond: We had no lobbying from
BP. There was a meeting with the Qatari
government, which is on the record, where the Qatari government raised the
issue and were told what the formal process was as well. By that time, of course, we were in a formal
process where people had the right to make representations to their view, but
that was much later; that was in 2009.
What you are asking me about is what I thought was in the minds of the
United Kingdom Government in 2007, and what I am pointing to is that the
statement from the Foreign Secretary was a fairly open acknowledgement that
there was a range of interests and the overwhelming interests of the United
Kingdom included not just security matters but there seemed to be a range of
business matters as well. It is also
true that one of the reasons that the Scottish Government was so suspicious and
opposed to the prisoner transfer mechanism was that we thought its genesis was,
to say the least, open to question in terms of its motivation. Remember that the PTA was signed at the same time
as major commercial deals were being signed and other matters, so that was one
of the reasons, only one of the reasons, why the Scottish Government was so
suspicious of the PTA. Can I just point
out that I revealed to the world that the PTA had been signed. I think I am right in saying that the
statement I made to the Scottish Parliament on
Q44 Mr Wallace: That is the last question I wanted to ask on that. It does seem that when it suited the British Government to go and do a deal on whatever it conveniently left the Scottish Government out at the time. The assurances that the UK and US gave at the UN that Mr al-Megrahi would serve his sentence in Scotland were conveniently dropped and no consultation with you took place when it suited them in the deal in the desert on the MOU of that time, and therefore you were not required because you may have actually objected at the time. Is that your reading of the British Government's behaviour?
Mr Salmond: I am trying to remember which
inquiry said that there was a tendency for sofa government. It was the
Q45 Chairman: First Minister, would you have time to answer a few more questions?
Mr Salmond: Yes. I think you are taking evidence from Mr MacAskill, who obviously was the responsible Minister.
Chairman: Yes, he is supposed to be giving evidence at 11.30. In five minutes probably we will finish our questions.
Q46 Pete Wishart: You have dealt with the PTA arrangements. I just wondered, in terms of a compassionate release, whether you have received any correspondence subsequently from the UK Government and if you have got any understanding of what the view of the UK Government is about compassionate release. The Foreign Secretary said something about not wanting to see Mr al-Megrahi die in prison and we know very much that the strong views of the opposition parties in the Scottish Parliament about this, but have you any understanding of what the view of the UK Government is about the compassionate release of Mr al-Megrahi?
Mr Salmond: I think the Foreign
Secretary's statement is the clearest exhibition of the --- I have it
here. This is his statement to the
Parliament on 12 October 2009: "We assess that, although the decision was not
one for the UK Government, British interests, including those of UK nationals,
British business and possibly security co-operation, would be damaged, perhaps
badly, if Megrahi were to die in a Scottish prison rather than in Libya". That is the Foreign Secretary's statement of
Q47 David Mundell: Did you have any direct discussions with the Prime Minister at the time of the release?
Mr Salmond: Did I have discussions at the time of the release? No, because the question of adjudication, which has rightly been described as a quasi-judicial role, was one for the Justice Secretary, and, of course, as you know and it is on the record, we gave the United Kingdom Government prior notification of the decision, as they had requested, as indeed we did the American government, and that that was, as we understood it, to effect assurances from the Libyan government in terms of the reception that Mr al-Megrahi was to receive in Libya. Obviously, these assurances were not kept but that was one of the reasons for the prior information that was given to the UK Government. Mr MacAskill, and you can question him on it, would have liked to have more information from the UK Government on the precise nature of the understandings and commitments that had been given to the American government and relatives. If you remember, the Lord Falconer's letter which I cited to you gave that as one of the reasons why Mr al-Megrahi would not be included in any subsequent PTA and that it had been made clear to the Libyans. The information that came in to Mr MacAskill last year from the UK Government was of a different nature altogether. They said instead that there was no legal bar, if I remember, either to a prisoner transfer agreement including Mr al-Megrahi or to a compassionate release. There was again an evolution of the United Kingdom Government's position over the period. Before the period in which Mr MacAskill was adjudicating in that quasi-official role, first, the application for a prisoner transfer from the Libyan government, and, secondly, Mr al-Megrahi's own application for compassionate release, I had many exchanges of correspondence with the responsible Minister in the UK Government, who was Jack Straw, all of which are on the record in terms of being formal, and there were also many phone calls about the issue. I do not think anyone could be in any doubt of what my position as far as the prisoner transfer agreement was.
Q48 David Mundell: Yes, but, as First Minister of Scotland, Scotland's reputation is surely one of your concerns and you must have been aware, given the publicity and the build-up to the final decision, that this decision would have enormous repercussions, that it would be highlighted in the media across the globe, that there were also ramifications for the United Kingdom, and therefore was this not a situation in which Scotland and the devolved responsibilities in the United Kingdom and the reserved responsibilities should have been working as closely as possible together to ensure that both Scotland's and the UK's reputations were not damaged, that the decision-making process was understood, instead of what appeared to those looking on into the media, that there was a buck-passing exercise between the two governments?
Mr Salmond: Can I just draw your
attention to what has to be done when there is a formal application for
prisoner transfer or, for that matter, an application for compassionate
release? It has to be considered by the
responsible Minister, or alternatively by the First Minister, but by the
responsible Minister in this case, in the way that Mr MacAskill
adjudicated. He is in a quasi-judicial
role. You are severely limited; in fact,
I suspect - and I am not a lawyer - you would be opening yourself to all sorts
of issues if you were seen to be moving outside the range of representations
that are properly laid out in that process.
As you know, Mr MacAskill would have preferred to have more information
from the UK Government on this specific matter.
There was no doubt in our minds what the UK Government's view on the
matter was, but we would have preferred to have more information specifically
on the nature of the international agreements that had been offered at the time
to particularly the American government and American relatives. That was precisely the point, that we did not
have the information. We believed these
agreements were in place. We had
evidence from the American government, Mr MacAskill had, and the American
relatives. We had indications from
previous law officers from
Q49 David Mundell: You are focusing in your answer, Alex, on the decision and not the repercussions of the decision. Surely, knowing the impact it would have in the United States, in Libya, even on many people here in the United Kingdom, that was a matter of such significance that both you, with the interests of Scotland at heart, and the United Kingdom Government with its wider interests, should have been working together to manage rather than doing it, as I alluded to before, through the media.
Mr Salmond: I think you are quite wrong about that. Information, insofar as it could be provided from the terms of the quasi-judicial process, was supplied to the United Kingdom Government. The requests for that information were acceded to. Every effort was being made, and I can ask the Permanent Secretary to elaborate on that because you will find that we gave the UK Government as much warning, as much notice and as much information as it was proper to do, given the quasi-judicial nature of the judgment that Mr MacAskill had to make.
Sir John Elvidge: It may be helpful if I say that I am in no doubt that those parts of the UK Government that needed to be aware of the timescale for the decision and the potential implications of the decision, irrespective of which way the decision went, were fully informed and fully prepared. We did everything we could to ensure that the UK Government had every opportunity to prepare for the moment of decision, but I think the First Minister is right: there was an absolute distinction between bringing them inside the boundary of the decision, which would have been improper in process terms, --- but on your concern about the repercussions I can reassure you that we were very active at senior levels in making sure that there was -----
Q50 David Mundell: An objective person would not have thought, in the aftermath of the decision, that the First Minister and the Prime Minister were singing off the same hymn sheet, would they?
Mr Salmond: I think the Foreign
Secretary's statement that I read out was a reasonable --- that was certainly
my understanding, admittedly phrased in parliamentary language, of the UK
Government's position. I had never been
in any doubt that that was the UK Government's position and, given that the
Foreign Secretary had state: "We assess that, although the decision was not one
for the UK Government, British interests, including those of UK nationals,
British business and possibly security co-operation, would be damaged, perhaps
badly, if Mr al-Megrahi were to die in a Scottish prison rather than in
Libya". That is a fair summary of the
position that was communicated on many occasions. What the Prime Minister said between Mr
al-Megrahi's release and the Foreign Secretary's statement was a matter for the
Prime Minister, but that statement seems pretty clear. As you know, David, consistently in all the
correspondence we have never wavered from our view in this matter. Our view in this matter, for a number of
reasons, was that the prisoner transfer agreement, negotiated through the
Memorandum of Understanding first signed in late May 2007, was a mistake. It was a mistake because it raised an
expectation by the Libyan government that Mr al-Megrahi would be included in
such a prisoner transfer. It was a
mistake because it cut across the due process of Scots law, because one of the
provisions of prisoner transfer is that legal proceedings would have to come to
an end. It was a mistake because it cut
across what we believed to be prior agreements with the
Q51 Chairman: First Minister, I have a last question and we might put a few questions in writing and can you please give us an answer in writing as it has taken longer than we expected and I think we should have known better, that when you are giving evidence it is going to take longer. Can you make it absolutely clear here that the prisoner transfer agreement between the UK Government and Libya had no bearing whatsoever on the release of Mr al-Megrahi on compassionate grounds, that it was not binding on the Scottish Government to release Mr al-Megrahi under this PTA?
Mr Salmond: It is certainly true that the two applications were different and were decided on different criteria. It is also true that the PTA was turned down by Mr MacAskill on the grounds that he stated. I do not believe, however, that the Scottish Government's powers in the matter were absolute or unfettered. One of the reasons we resisted the PTA was that we believed it did not give us absolute discretion over what the decision was to be.
Q52 Chairman: But you -----
Mr Salmond: I am coming to that, Chairman, if I may, because the advice was that the PTA had certain criteria which had to be adhered to, and if you did not grant an application then you had to have cause and reason. Without cause and reason you would extremely vulnerable to a judicial review. What were our causes and reasons? The two principal ones were outstanding legal proceedings. You will see that cited by Lord Falconer in that letter that I think it is highly significant for the Committee to have a look at. Outstanding legal proceedings were always within the discretion of Mr al-Megrahi and his advisers themselves, but that certainly would have stopped a PTA being granted because that is in the face of the prisoner transfer agreement. The other cause and reason for not granting a PTA in this case was to cite prior commitments that had been given to the American government and relatives. You will notice in Mr MacAskill's statement when he announced his decision that he regretted the fact that the information from the UK Government had not been forthcoming to dispute the claim by the American government and the American relatives about the nature of these understandings. In fact, the UK Government said, if I remember the phrase correctly, that they were political rather than legal. That was the second basis on which you could have refused the PTA. The PTA was refused. I suspect it will not be challenged by judicial review because, of course, the effect of compassionate release, which you are quite right to say was decided on quite different criteria, nonetheless is to make any challenge to the refusal of prisoner transfer redundant.
Q53 Chairman: Thank you, First Minister, and Sir John for giving us evidence this morning. Before I declare the meeting closed, you will know that the Calman Commission has recommended that the First Minister should be invited to appear before the Scottish Affairs Committee to outline how Scottish Government legislation interacts with reserved models. Would you be happy to give evidence if you are invited on this basis?
Mr Salmond: A regular slot, I would have
hoped, Chairman. Of course, I will give
evidence wherever possible, and I am sure that that will be reciprocated, that
the Prime Minister and the Chancellor of the Exchequer and other
Q54 Mr Davidson: I think that is very helpful because one of the Calman proposals was that there should be this exchange of ministers, and the Scottish Government, I think, said the First Minister does not have to justify the Scottish Government's programme at Westminster. I do not think I have ever had such an enjoyable meeting with yourself - I did qualify it - and in that spirit going forward, and having Jim Murphy or the appropriate minister speaking to the Scottish Parliament about our programme and you coming here to outline yours would be an enormous step forward in dialogue.
Mr Salmond: Yes. The fact that I am here and speaking to you in an enjoyable fashion, Ian, is a tribute to both of ourselves, but, of course, it rather testifies to the fact that I am perfectly happy and willing to do it, time permitting. It is the case, and it would apply to the Prime Minister and the Chancellor of the Exchequer or any government minister, that obviously their prime accountability is to their parliament. It is the Parliament which disposes as to whether the Minister is the Prime Minister; it is the Scottish Parliament that disposes whether the First Minister is the First Minister, so the line of accountability is to your Parliament, but I see absolutely no reason why, time permitting, I should not make myself available to committees of this parliament. I see no reason why the Prime Minister, time permitting, should not make himself available or the Chancellor available to committees of the Scottish Parliament. I know that the committees in both parliaments will, in that normal responsible way, rationally request to make the maximum number of acceptances possible.
Chairman: Thank you once again, first Minister and Sir John, for giving evidence.
Witnesses: Mr Kenny MacAskill, MSP, Scottish Cabinet Secretary for Justice,
and
Mr Robert Gordon, Director General,
Justice and Communities, gave evidence.
Q55 Chairman: Good afternoon, Justice Secretary and Mr Gordon. Thank you for coming to give evidence to the Committee today. Before we ask detailed questions would you like to say anything in your opening remarks?
Mr MacAskill: I have no formal statement to make, Chairman. I just thank you for the invite here. I did make it quite clear that it was my decision, and my decision alone, that I would accept the responsibility and face the consequences and, equally, I am happy to account for my decision because in making my decision with regard to Mr al-Megrahi I followed the rules and guidance and, I believe, adhered to the values possessed by the people of Scotland. Equally, we are conscious as a government that there is still a great deal of concern amongst many about Lockerbie, the fact that there has only been one person brought to account and convicted, and that is disputed by some. We have always said that we are happy to be open and that we are happy to co-operate with any inquiry anywhere that would have the appropriate jurisdiction so that those who have doubts, those who seek closure, can be given the support and the entitlement that we believe they deserve because of the atrocity that was perpetrated against not simply people from the United States but people in a small town in Scotland.
Q56 Chairman:
Your
memorandum states that the Scottish Executive was not consulted at all on the
original Memorandum of Understanding with
Mr MacAskill: No. In the main the discussions and the
relationship between the Justice Department in
Q57 Mr Davidson: Could I just follow up this question of the arrangements being good and sound. I was on the Bill that dealt with the proceeds of crime legislation and I know that you have expressed some views saying that that needs to be updated and so on. What is the mechanism and what have you actually done to pursue that particular case, so that we can understand how you follow things through and how we respond at this end?
Mr MacAskill: There is a variety of ways in terms of serious and organised crime. Obviously, we have written to the Home Secretary indicating that we think there should be a further tightening, and indeed I have invited him to the next meeting of the Serious and Organised Crime Task Force that I established, upon which not simply myself and representatives of the police, but indeed of UK organisations sit, if I can put it that way, such as the Serious and Organised Crime Agency and indeed HMRC, so in these instances we seek to communicate with the UK authorities to ask them to make the requisite changes. Indeed, as the First Minister has referred to and as Calman has commented on, I have also written previously, regrettably without success, and, indeed, met with previous Home Secretaries, not with Mr Johnson, to raise the issue of taking action to license airguns that remain a scourge in our community.
Q58 Mr Davidson: Sorry, I wanted just to focus on this one because it was one I was particularly interested in. The way in which you proceeded with this was simply to write to the Justice Secretary? There is no other forum? The first I saw about this was when it appeared in the press. There have been a number of occasions, like the question of consultancy and so on, where these sorts of issues seem to appear in the press as a means of communicating rather than any other channels, and I want to clear whether or not there are other channels apart from the press.
Mr MacAskill: It was not the press; it was a formal letter to the Home Secretary and, indeed, discussions were going on between officials because, obviously, in respect of serious and organised crime, the proceeds of crime, some matters are reserved; some matters are devolved; some matters can be dealt with; and some matters require co-operation. It is a matter where we have recognised, as I say, that it is a problem that affects not simply the jurisdiction of Scotland, indeed not simply the UK, but serious and organised crime is a global phenomenon now, which is why ---
Q59 Mr Davidson: I understand. Sorry, I am just trying to be clear: a letter was sent and officials are discussing it?
Mr MacAskill: And, as I say, there are ---
Q60 Mr Davidson: And there is no joint meeting? We heard earlier on about joint ministerial meetings and so on. There is no forum in which, as the Justice Minister, you can raise this with your colleagues to try and get UK-wide agreement?
Mr MacAskill: I have invited the Home Secretary but he has declined, but I understand that he is sending officials to the next task force that, as I say, meets on a regular, if not quarterly, basis. As I say, these discussions are ongoing. I previously met with Jacqui Smith to discuss matters, in particular, as I say, weapons, but also other matters of relevance across the border, such as tackling alcohol abuse and, as I say, serious and organised crime.
Q61 Lindsay
Roy: In your memorandum you state that relations
between governments on the subject of PTAs has been historically very
good. What was different in the case of
the PTA with
Mr MacAskill: As the First Minister said,
we only had one Libyan prisoner. I think
we now have no Libyan prisoners. I
practised law in the capital city, and indeed in
Q62 Lindsay Roy: Had you been specifically consulted about foreign nationals from other countries who were in Scottish prisons as part of the previous PTA discussions?
Mr MacAskill: Not in the main. We see PTA as a relatively good thing. There are foreign nationals, as indeed I have discussed with the High Commissioner of Jamaica, where we have prisoners in Cornton Vale Prison who have been drug couriers where they cause difficulties for the Scottish Prison Service and, as a government, we will have no difficulties in seeking to assist if they are required to return there, because in fact every prisoner transfer application that has been made that has met the appropriate criteria, I understand, has been granted by either myself or, more importantly, by my predecessors. In the main PTAs are sensible things. As a government, we would like to be able to be engaged with them because these matters, as I say, tend to have been entered into without us being kept in the loop, but the concept of PTAs is something that we support.
Q63 Mr
Carmichael: In terms of this business about the motivation
for the exclusion of al-Megrahi from the PTA, the suggestion has always been
that the
Mr MacAskill: I do not think it has ever
been suggested that I passed the buck,
Mr Carmichael. I made it quite clear
that I would take responsibility for the decisions and should do so ---
Q64 Mr Carmichael: I am not talking about the decision itself; I am talking about the PTA.
Mr MacAskill: The PTA, I think, probably goes back to this question phrased by Mr Roy. When this occurred in June 2007 we were talking about only one Libyan national. That person had been convicted of the Lockerbie bombing. The point was approaching when the reference from the SCCRC, the Scottish Criminal Case Review Commission, was about to be made to the Scottish courts and it certainly seemed to us that what was going on was circumventing the due process of law in Scotland, so, as I say, there was a variety of matters in which what was occurring without our cognisance, our acceptance, and indeed our views being taken into account, was going to potentially have significant consequences not just for the Government of Scotland but particularly for the law of Scotland.
Q65 Mr Carmichael: But this business about circumventing that presupposes, of course, that al-Megrahi would have abandoned all his appeals, for example.
Mr MacAskill: Yes, but equally the argument
put to me by Mr Tony Kelly, the lawyer on behalf of Mr al-Megrahi, and I think
it is accepted that it was possible to consider the matter on the basis that it
could be homologated - and you will know what I mean by that,
Mr Carmichael - and that I could have made a decision subject to Mr al-Megrahi
abandoning his appeal. That was
certainly the position put forward by Tony Kelly, the lawyer on behalf of Mr
al-Megrahi. Whether or not that was the
position of the Labour Party, I do not know.
It is the brother of the deputy Labour Justice spokesman in Holyrood,
but whether they speak off the same script, I do not know.
Q66 Mr Carmichael: The concept of homologation in criminal procedure would be a fairly novel one, I think.
Mr MacAskill: Certainly our understanding is it could have been judicially reviewed had we refused it on that, if they indicated that it was their intention to abandon the appeal.
Q67 Mr Carmichael: Why were you so reluctant to consider the application under the PTA?
Mr MacAskill: Because I took evidence. As I say, as the First Minister said, an application came in once the PTA had been signed. That was within the competence and followed the rules. It was my obligation to deal with that. We could not refuse to consider the application for a prisoner transfer application. It was appropriately made by the Libyan Government on behalf of Mr al-Megrahi. It was decided that I would be the responsible minister and that was made clear to the presiding officer and to Parliament by the First Minister. Therefore, I went into a quasi-judicial position where I would consider matters in terms of interviewing and listening to witnesses. I interviewed and spoke to Eric Holder, the United States Attorney General. Mr Holder advised me that it was the clear understanding of the American Government that when the agreement had been entered into for Mr al-Megrahi to be returned to face trial at a Scottish court, albeit located in The Netherlands, he would serve any sentence that was imposed, as indeed would his co-accused, had he been convicted, at a Scottish prison. That was the clear position of the United States Attorney General. Mr Holder also advised me that he not only was the current United States Attorney General but, indeed, he had been the Deputy United States Attorney General to Janet Reno when these discussions took place. That seemed to me to make him a very credible witness. Not only was he speaking for the American Government but he had been an active participant and he was adamant that there had been a clear understanding given to the United States Government. I spoke to the relatives of the American families and they too indicated that they believed that they had been given undertakings. It was for that reason, as the First Minister referred to earlier, that I asked the United Kingdom Government to come and give evidence or to provide me with representations as to their view. They declined to do so and, as I said in my statement and I say again, I think that is a matter of regret.
Q68 Mr Carmichael: You are saying basically that the United Kingdom Government entered into two separate bilateral agreements with two foreign powers which were mutually inconsistent?
Mr MacAskill: I know what was entered into
in terms of the prisoner transfer agreement.
What was entered into round about the decade before between Janet Reno
and whoever was the
Q69 Mr Carmichael: Do you feel you were being used to get the UK Government out of a hole?
Mr MacAskill: I think people ran for
cover. Beyond that, as I say, I accepted
what went with the turf. As I said in my
statement, it is a privilege to be the Justice Secretary in
Q70 Mr Carmichael: On the PTA issue.
Mr MacAskill: I think on the PTA issue, as
a government, we felt there had been disrespectful matters earlier on in terms
of the PTA. In terms of providing the
information, I do think it a matter of regret that Janet Reno, Hilary Clinton,
John Brennan and others were all happy to advise of the
Q71 Mr Wallace: It is good to see you after many years in the Scottish Parliament, Justice Secretary. Could I just ask about this on the prisoner transfer agreement. Was it a reasonable ground, once an application was made under the PTA, to refuse it based on the fact that assurances had been given elsewhere? Was that not unacceptable?
Mr MacAskill: My understanding is that no application from a prisoner transfer agreement that has met all the relevant criteria has been refused either by myself or, indeed, any previous Justice Secretary. If the criteria are met, then transfers take place.
Q72 Mr Wallace: The criteria do not include objection from victims, et cetera. It is not one of the criteria.
Mr MacAskill: There is no reference to that at all, nor is there any reference to the nature of the offence.
Q73 Mr
Wallace: Was it your understanding that the reason a
PTA, including al-Megrahi, was inappropriate was that perhaps you took the same
reasons that the American victims and the American Attorney General did, that
the letter in 1998 between the UK and the US to the UN, which stated quite
clearly that they expected the prisoner to serve his full sentence in Scotland
- I think that was the wording used - was enough of a commitment to say, "That
is the assurance. That was the letter
that was done back in 1998 to the UN.
That was a commitment", and therefore your understanding was that the
Mr MacAskill: No; I think there are two separate matters. One was when the PTA was entered into and the other was when the PTA application was made to me. I did not seek to pre-judge the decision I would have to make because I sat in a quasi-judicial capacity and it would have been wrong and that could have been challenged had I made a formal decision on the PTA application once received, but on the principle of the prisoner transfer application, then, obviously, as the First Minister has said, this was undermining due process that was taking place in Scotland. A reference was about to come in from the Scottish Criminal Case Review Commission. Equally, we are conscious as a government that we can be judicially reviewed, whether by individuals, whether by foreign governments, whether on behalf of insurance companies or whether on behalf of aggrieved prisoners. We face that difficulty and do not have the same protection as has resulted in recent matters and negotiations with the UK Government to get that. As I say, it was certainly the position that had we refused a prisoner transfer application by Mr al-Megrahi outright without any clear basis in fact, then we would have left ourselves open to judicial review. Indeed, I think it could be argued that, given every other application that met the appropriate criteria was always granted, there would be something perverse if you were not prepared to consider him, so we would have left our back exposed, so we opposed the principle of the PTA unless there could be exclusion for Mr al-Megrahi. Once that was signed it thereafter became inappropriate for me to make any formal comment because I would have to look at matters in a quasi-judicial capacity and, accordingly, I could not and would not pre-judge the position until I got the evidence.
Q74 Mr
Wallace: How much anger was there? The position of the Scottish Government was
that they accepted that assurance had been given in May, the objectives of the
PTA, the PTA was then negotiated and done, the Justice Secretary under Jack
Straw did a u-turn and suddenly al-Megrahi was included, due process started in
Mr MacAskill: I do not think "anger" is the word. We did feel aggrieved and that was why the issue was raised in Parliament and we sought to get (and did) cross-party parliamentary support but, as I say, thereafter this was not a matter of a lingering or running sore. I had to make sure that when I considered matters in terms of the PTA I did so fairly and, as we made quite clear, it would be on the basis of looking at matters according to the rules, guidance and the laws of Scotland, not on the basis of any diplomatic, political or, indeed, economic considerations.
Q75 Mr Wallace: The First Minister said in his evidence before you came on that there had been a long suspicion that Mr al-Megrahi was always subject to some of these discussions. When did your suspicions first start?
Mr MacAskill: I think it became quite clear. Our suspicions first started when it became quite clear that we had only one Libyan prisoner and when I spoke to the Scottish Prison Service, and, indeed, having been a lawyer in Scotland for 20 years prior to my election to Parliament, knowing that the Scottish jurisdiction is not awash with Libyan nationals perpetrating crimes in Scotland, it was self-evident that Mr al-Megrahi was that individual. As I say, my understanding at the present moment, and I am open to correction by the Scottish Prison Service, is that we have had no prior Libyan national and we currently have no Libyan national. As I say, therefore, it was quite clear that unless Mr al-Megrahi was excluded, which was the request of the Scottish Government, then he was going to be the individual that was in the frame, so to speak. I also understand that south of the border the number of Libyan nationals within the English and Welsh Prison Service is quite limited. We are only talking about a couple, not even a handful.
Q76 Pete Wishart: Good afternoon, Kenny. It is nice to see you down here at our Select Committee. What was made of your visit to prison to speak to Mr al-Megrahi? There was a lot of confusion about why that was. Could you just clarify why you visited Mr al-Megrahi and was it to do with the conditions and the obligations set out in the prisoner transfer agreement? Why did you do it?
Mr MacAskill: There were two reasons. First, this was the first prisoner transfer
agreement that was entered into whereby an application could be made by the
national government, not by the individual, and the application that came
before me for prisoner transfer, not for compassionate release, came not in the
name of Mr al-Megrahi but in the name of the Libyan Government. It had been made quite clear by Jack Straw
that in these situations it would be appropriate, and indeed I think it is
self-evident, that you should take the view of the individual. There could be an instance - it was not in
this situation - where an individual did not wish to be transferred back, so
accordingly it is self-evident that if a government makes an application, you
should at least ask the person who is to be subject to transfer whether or not
that is what they wish. That was the
first reason that Jack Straw went and said that it was appropriate that we
should take his views. Secondly, we are
subject to judicial review. We had been,
as I say, meeting and listening to others: telephone conversations with the US
Attorney General, video links with American relatives in New York and
Washington, meetings in Glasgow with Lockerbie families from the town, meetings
in St Andrew's House both with the Libyan Government and with victims from
Spain and, indeed, victims and representatives of the relatives of the UK
families. It seemed to me, and indeed it
was legal advice, that we would be subject to judicial review if we saw
everyone apart from the individual concerned.
Thereafter the question was, do I go and see him or do I have him
brought to see me? As has been said in
the Scottish Justice Committee, simply to transfer
Mr al-Megrahi from the prison in Greenock to Glasgow airport, which you know is
a relatively short distance, would have resulted in armed response, us having
to bring in a vehicle that was capable of withstanding explosive devices that
we do not normally possess within the Scottish Prison Service, having to have
him and, indeed, others wearing bullet-proof vests, and it appeared perfectly
appropriate that it would be better for me to go to the security of Greenock
Prison where he was detained than to have him brought the length of the M8 to
my office in St Andrew's House or anywhere else with all the palaver that would
go with it.
Q77 Pete
Wishart: Just to clarify your understanding of the
visit to see Mr al-Megrahi was at the instigation of, or at least under what
you felt was an obligation to, the Minister of Justice, Jack Straw? You felt obliged therefore because of what
you perceived to be the views of government departments and
Mr MacAskill: There are two things. One, because it was the first ever prisoner transfer application that was by the government, not by the individual, I followed Jack Straw's advice, which I think was correct, that you have to take the views of the prisoner into account. Mr al-Megrahi asked to make representations himself and that then certainly posed the question: do I then refuse to have representations from Mr al-Megrahi himself? Clearly, my view and legal advice were that I would leave myself open to judicial review, that I had seen everybody else and been courteous to them but the individual concerned I was not prepared to listen to so, accordingly, I went to see him in Greenock Prison where he was accompanied and represented also by his solicitor, Mr Tony Kelly.
Mr McGovern: Chairman, can I raise a point of order, please? In the previous evidence session we ran out of time to ask questions because of the time that was given to the First Minister to answer the questions, and I believe that we are now going through the same scenario that the person answering the questions is saying, "The longer I speak the fewer questions I will have to answer". Could we keep the answers brief, please?
Q78 Mr Carmichael: Can I be just be very clear here, Kenny? Your evidence to the Committee is that it is a term of the prisoner transfer agreement that you have to take representations in person from the subject of the application?
Mr MacAskill: No. It was made clear by Jack Straw giving evidence to the Westminster Committee on Human Rights, as I understand it, that where the application is made by a nation state or national government it is appropriate - and I accept that view; I think he is correct there - and indeed correct that you should take the views of the prisoner into account.
Q79 Mr Carmichael: But there is a quantum leap, is there not, between taking the views of the prisoner into account and going to see him in prison in person?
Mr MacAskill: That then takes you into the logical follow-on.
Q80 Mr Carmichael: Can you just bear with me a second - to take representations from somebody who had some of the best paid and the best qualified representatives that the firmament of the Scottish legal profession could provide? Surely there were other means by which it could be done.
Mr MacAskill: No. I think I come back to the causal link. The application was by the national government. Jack Straw says that when it is a national government the individual has to be consulted. I wrote to the individual. He wrote back saying he wished to make the representation. I do not think it would be correct for me to say, "I am not listening to you but I will listen to your lawyers". I do not appoint his lawyers. He chose not to make the representation through his lawyers; he chose to make the representation himself.
Q81 Mr Carmichael: Moving forward in the future, if anybody else is in the same situation that Mr al-Megrahi is in, are you or any future Scottish Justice Minister going to have to jump in the car and head off to Barlinnie or Greenock or wherever it is?
Mr MacAskill: That would depend whether the application was made by the national government or by the individual. If the application, as I say, is made by the individual then I think you are not necessarily duty-bound to do so. When the application is made by the national government -----
Q82 Mr Carmichael: You have to go and see them in person?
Mr MacAskill: Mr Carmichael, we all hope that we will never be in such a situation again. We have not faced a situation such as Mr al-Megrahi before and we are hopefully unlikely to again.
Chairman: Can we move on? This is a matter for the Scottish Executive to decide.
Q83 Ms Clark: I was going to pick up on some of the points that Alistair was making. I think there is a lot of surprise about the way it was handled and I think a lot of people are not clear why you went personally. Do you know whether Jack Straw has ever dealt with any of these applications and do you know whether he has ever met any prisoners personally, and has the Scottish Executive ever dealt with a prisoner transfer agreement case before and has any other Justice Minister ever met with a prisoner personally?
Mr MacAskill: I cannot comment on the position of Jack Straw, nor can I comment on the position of any predecessors. What I can say is that this is the only application I have ever had by a national government. I think this was the first PTA where an application could be made by a national government, so I think logic dictates that I have been the first person that has had to face this. As for whether we have to face it again, hopefully that will not be the situation in future years, but this was an unusual PTA because it was the first one where the application could be and was made by the government, not by the individual.
Q84 Chairman: Can you tell us what are the shortfalls in the devolution Memorandum of Understanding which meant Mr al-Megrahi became an issue?
Mr MacAskill: I think that the shortfalls in the Memorandum of Understanding were simply that the PTA was entered into without taking account of the Scottish Government's position. Had the Scottish Government's position been accepted, had the initial position of Lord Falconer, and indeed Jack Straw, been adhered to, then the PTA position would not have been before me. That said, I would still in all likelihood have had to face the application for compassionate release which was Mr al-Megrahi's right.
Q85 Chairman:
But
let us say the PTA agreement was not signed between
Mr MacAskill: No. If an application for compassionate release is made by any prisoner, and indeed there have been some 25 if my memory serves me well since devolution and many before then, they follow the guidance and advice that relates to compassionate release. As I said, early application for prisoner transfer application which met the criteria has been granted by me and by my predecessors. Equally, all 25 applications for compassionate release that met the appropriate criteria have been granted by myself and by my predecessors.
Q86 David Mundell: Mr MacAskill, I am not challenging the decision because, as you have said repeatedly, it was for you and you alone, and although I do not agree with it I do respect that. However, setting that aside, do you have any regrets at all about the way in which this whole matter was handled?
Mr MacAskill: No. I have regrets in terms of the difficulties that we got into because of the PTA or whatever, but I think I was well served by the staff who worked with me and who supported me. We followed, as I say, the rules and guidance. We believe that we came to the right decision for the right reasons.
Q87 David
Mundell: You do not think the matter could have been
better handled? You did not regret the
fact that it was leaked or in the press a week or so before you made the
decision? You do not regret the scenes
that we saw in
Mr MacAskill: Can I say first of all there
is a variety of matters that you have raised there. Clearly, in terms of the scenes of welcome to
Mr al-Megrahi, that is a matter that we publicly stated was a matter of
regret. We had been given assurances by
the government of
Q88 David
Mundell: Mr MacAskill, nobody knows more than my
constituents that there is a media industry around Mr al-Megrahi and the way in
which the matter was handled did not help them in coming to terms with that
decision. That is just for the record. Do you not yourself believe that you could
have worked more closely with the United Kingdom Government once the decision
was made in terms of managing the repercussions of that decision because it was
inevitably going to impact both on
Mr MacAskill: That is not true. As the First Minister said, we did co-operate
fully and closely with the Foreign & Commonwealth Office. There had to be contingency plans. Had the decision gone the other way then, as
I say, there would have been an impact potentially upon the interests of the
Q89 David Mundell: But, again, like Mr Salmond, Mr MacAskill, you are seeking to muddy the waters in respect of the decision and the repercussions of the decision. I do not think anybody at this Committee has suggested to you that there should have been interference with your decision but once the decision was made it had repercussions both for Scotland, your Government and the United Kingdom and its Government, and therefore surely you should have been working together to manage those repercussions rather than allow them simply to unfold and to see, which I think any objective bystander would see, what was an attempt to pass the buck between the respective administrations as to who really took the decision.
Mr MacAskill: I am mindful of the point made by Mr McGovern, but I think I have already answered it and said that I had to make the decision because otherwise it would have been open to judicial review. We co-operated with the FCO because of the interests that could go either way and there were contingency plans appropriately, and thereafter I would be more than happy and delighted to engage on a more international stage, Mr Mundell, but you would be the first to criticise me and my colleagues of the Scottish Government if we sought to usurp our powers that are restricted to the devolved administration area.
David Mundell: It was shorter but it was not an answer.
Q90 Chairman:
Mr
MacAskill, who was involved in communications with the
Mr MacAskill: The communications with the UK Government came through officials and official channels. I do not know if Robert Gordon wants to add anything.
Mr Gordon: Chairman, my colleague,
George Burgess, was in touch with colleagues in the Foreign & Commonwealth
Office. I spoke to HM ambassador in
Q91 Mr
Wallace: The First Minister said, and Sir John Elvidge
also said, that the Scottish Government did all it could to inform Her
Majesty's Government in
Mr MacAskill: I am not medically qualified, which is why I followed the guidance given by the Director of Health and Social Care in the Scottish Prison Service, but additionally his diagnosis of prostate cancer was resulting in him being given treatment. It was only later on that it became quite clear that the treatment was not going to work and that his illness was terminal, and indeed at the time that he put in his prisoner transfer application, as I recall it in May 2009, he still did not meet the criteria. The application was only, as I say, eligible according to the guidance and rules when it was viewed as being within a likely three months' termination if he remained in a Scottish prison.
Q92 Mr Wallace: I understand that. I am asking when did you inform the UK Government that he was diagnosed with cancer or that the cancer had become terminal, and then what was the response from the UK Government at that stage?
Mr Gordon: We had contact with the UK Government and the Libyan government, because obviously the Libyan government had been informed by Mr al-Megrahi that he had this condition, so we had, and the minutes of the various meetings have been put in the public domain, a series of meetings with the Libyan authorities where we discussed four things: his condition and the treatment he was receiving in Greenock Prison; his application for interim liberation which was before the courts, where we stressed that that was a matter for the courts, not for the Scottish Government; the progress of the negotiation of the prisoner transfer agreement, which again was a matter for the UK Government; and the possibility of, at some stage, an application for compassionate release being made. We had a series of discussions every six months or so with the Libyan authorities, and the Foreign & Commonwealth Office was kept in touch with those discussions.
Q93 Mr Wallace: It is fascinating about the Libyan government but the question remains, given the First Minister's evidence, when did the Scottish Government inform the British Government that Mr al-Megrahi was suffering from a condition such as cancer and when it got more serious or when it was not responding to treatment, or was the first the British Government knew that he was suffering from such condition when he applied for compassionate release, which was back in July 2009? Was that the first they knew about it or were they informed? That is the question.
Mr Gordon: Mr al-Megrahi's lawyers announced publicly in October 2008 that he was suffering from terminal prostate cancer, so that was known by everybody at that stage.
Q94 Mr
Wallace: There was no formal process? What you are saying is that the Scotland
Office or the Foreign Office had to rely on reading it in the paper to know as
opposed to you writing a letter, given the fact that my colleague, Mr Mundell,
pointed out that the release of Mr al-Megrahi, whether compassionate or a
Mr MacAskill: It was always part of his prisoner transfer application that we could put it back in the margins. The reason he wanted to go home was that he was terminally ill. That was one of the positions being put forward by his agents, both in the public domain and indeed elsewhere. There was ongoing correspondence that we have put out except where parties have refused to allow that. It is quite clear that the information relating to his health is there. As I say, it was a fluid situation. His health is ongoing in terms of his demise, but, as I say and as I have answered within the Scottish Parliament, we are not in the business of giving a running commentary on his private health matters.
Q95 Mr Wallace: I am sorry, but the First Minister gave evidence to this Committee just before you to say that at every stage and every opportunity he kept the British Government informed of the status and issues surrounding Mr al-Megrahi. The PTA, if I am not mistaken and I am not a lawyer, is a separate application from a compassionate grounds application. Is that correct?
Mr MacAskill: Yes.
Q96 Mr Wallace: So you cannot put it in the margins; it is a separate application. Mr al-Megrahi gets terminal cancer and no-one in the Scottish Government thinks it is relevant to inform the UK Government, given that it could be a major ground for release under a separate application that does actually happen 12 months later?
Mr MacAskill: The UK Government were aware, and I will let Robert give more precise details, because there had to be various scenario planning entered into with the FCO as to what may happen or may not happen, as I say. That was the position. Robert, I do not know if you want to expand upon that.
Mr Gordon: I am sorry if I misled you in
my previous answer, but we, the Scottish Government, were in touch with the
Foreign & Commonwealth Office and with the UK Embassy in
Q97 Mr Wallace: And they never made a response in the sense that they just said, "It is up to you"? So when you did your scenario planning - and if you can inform the Committee of the date that you informed them that would be helpful - did they have any response other than to just say, "That is up to you"?
Mr Gordon: As Mr MacAskill and the First Minister have made clear, the UK authorities were obviously interested in the implications of any decision for UK residents in Libya, so when it came to the final scenario planning at the point before Mr MacAskill reached his decision on the prisoner transfer application and on the compassionate release application, there was scenario planning with the various parties, but always on the basis that the decisions could go either way.
Q98 Mr Wallace: And when was that final scenario planning? Can you remember the date?
Mr Gordon: The final scenario planning was a matter of days before the decision. It was ten days before.
Q99 Pete Wishart: Can I also explore the scenario implications because we were very confused as to what the UK Government response to the compassionate release was? The closest we have got to a UK response was that a statement was read out by the First Minister from the Foreign Secretary saying that he would prefer that Mr al-Megrahi did not die in a Scottish jail, but for ages we did not know what the UK position was, and this was really confounding. We knew what the positions of the Conservatives and the Liberals were because they opposed the compassionate release of Mr al-Megrahi, but for such a long time on such an important decision we did not know what the position of the UK Government was. For a while it seemed like the opposition in the Scottish Parliament were almost spokespeople for the UK Government in their opposition. Until we got that clarifying statement from the Foreign Secretary it was all very confused, but even after that there was again Cabinet Secretaries going on the media saying we opposed this. Have you got an opinion about what the known view of the UK Government is, and have they made any contact with you to say what they feel about this decision and your position?
Mr MacAskill: No. I can only reiterate what the First Minister
has said in terms of the parliamentary response. As I say, I made the decision in a quasi-judicial
capacity and therefore I was very circumspect as to how I dealt with
individuals, whether my own Cabinet colleagues or indeed any Cabinet
representatives in the
Q100 Chairman: Do you believe that it was right for the British Government not to interfere in your area of devolved issues?
Mr MacAskill: Oh, yes, it would have been entirely inappropriate for them to have interfered.
Q101 Mr Davidson: Would it also have been inappropriate for them to have commented and to have expressed a view?
Mr MacAskill: No. I think many people expressed a view. Some people did not express a view but then expressed their outrage afterwards. There is a variety of things, as with those who have predicted his death, those who said I was going to release him and those who said I was not going to release him. There are those who said he should be released, those who said he should not, those who said something before and some did not after.
Q102 Mr Davidson: You are losing me. Can I just clarify though whether or not you are saying that in your view the British Government should have expressed a view?
Mr MacAskill: Sorry?
Mr Davidson: Are you saying that in your view the British Government should have expressed an opinion?
Q103 Chairman: Before you made a decision.
Mr MacAskill: That is a matter for the British Government.
Q104 Mr Davidson: Yes, indeed.
Mr MacAskill: To be fair, I think Jack Straw accepted that it was my decision and therefore left me alone to make that decision.
Q105 Mr Davidson: That is right, and therefore it was inappropriate to criticise him for not expressing a comment.
Mr MacAskill: I am not making any comment either way.
Mr Davidson: Fine, thank you. That is helpful.
Q106 David Mundell: Can I ask you, Mr Gordon, to clarify in relation to this scenario planning, did any of that involve managing the repercussions of the decision, whether there would be any media activity jointly by the Scottish Government, the UK Government, whether statements would be released, whether representations would be made from ambassadors? Did it involve any proactive activity by either the Scottish Government or the UK Government post the decision?
Mr Gordon: The main emphasis was on looking at the mechanics of different decisions and what different parties would have to do in the event of particular decisions. It included making arrangements for the statement which the Cabinet Secretary was going to be making to be broadcast and to be made available to victim families, their representatives and a whole lot of planning about how the decision would be communicated to everybody who had an interest in that at the appropriate time.
Q107 David
Mundell: But there was no speculation on likely
responses and how those responses should be managed to protect or preserve the
Mr Gordon: I think the terms of the Cabinet Secretary's statement, and he can answer on this, his statement, over which he spent a great deal of time, was to set out as completely and fully as he could the rationale for the decision and all the factors that had been taken into account and the reason for coming to that decision. It seems to me that that was the key element, that whatever decisions were taken some people would be dissatisfied, and it seemed to me at the end of the day that the key thing was that he should have a statement with which he was content which would stand the test of scrutiny by the various interests, and I believe that is what has happened.
Q108 David Mundell: Once that statement was made the view from both the Scottish Government and the UK Government was that there was no need for any further proactive activity?
Mr Gordon: Obviously, I cannot speak for the UK Government.
Q109 David Mundell: But you were in these scenario plannings.
Mr Gordon: But the issue for us was that the Cabinet Secretary, as he and the First Minister have explained, was following due process and reaching a decision taking the appropriate factors into account on both applications that were before him and then making a statement which set out the basis for that and then standing by that statement.
Chairman: I am afraid Mr MacAskill has to leave in a few minutes' time. Jim, very briefly, and we expect a brief answer as well.
Q110 Mr
McGovern: You can keep asking the Committee Members to
be brief but you do not seem to be asking the witnesses to be brief. I was on holiday in the
Mr MacAskill: I said at the outset, and I
say it again: it was my decision and I stand by it. I have never sought to criticise anybody for
disagreeing with it. I do have some
views about some people who seem to have had no view until such time as I had
taken a position, but, as I say, I took the decision I did. With regard to the
Q111 Mr McGovern: That is the British Army.
Mr MacAskill: I have met with the Consul
General, I have met with congressmen since the decision and, as I say, I think
the relationship between
Q112 Mr McGovern: What is the significance of that?
Mr MacAskill: I have to say I was delighted
in
Q113 Chairman: Can I thank the witnesses for their attendance this afternoon. Before I declare the meeting closed would you like to say anything in conclusion that you feel we have not covered during our questions?
Mr MacAskill: As I say, this Government and myself in particular are more than happy to fully co-operate in any jurisdiction, whether it is here or elsewhere, so that we try to assuage the fears and the pain that still exists from those who have suffered as a result of the Lockerbie tragedy. As I say, we are open to fully co-operating. What matters we can we make public and, as I say, when asked we attend.
Chairman: Thank you for your attendance.