UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 256-ii

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

SCOTTISH AFFAIRS COMMITTEE

 

 

SCOTLAND AND THE UK:

COOPERATION AND COMMUNICATION BETWEEN GOVERNMENTS

 

 

Wednesday 27 January 2010

RT HON JACK STRAW MP, RT HON JIM MURPHY MP and DR JIM GALLAGHER

Evidence heard in Public Questions 114 - 186

 

 

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Scottish Affairs Committee

on Wednesday 27 January 2010

Members present

Mr Mohammad Sarwar, in the Chair

Mr Ian Davidson

Lindsay Roy

Mr Charles Walker

Mr Ben Wallace

Pete Wishart

________________

Memorandum submitted by The Scotland Office

 

Examination of Witnesses

Witnesses: Rt Hon Jack Straw MP, Secretary of State for Justice, Rt Hon Jim Murphy MP, Secretary of State for Scotland, and Dr Jim Gallagher, Director General, Devolution, Ministry of Justice, gave evidence.

Q114 Chairman: Good afternoon, Secretaries of State and Dr Gallagher. I would like to welcome you all to today's evidence session. Perhaps, Dr Gallagher, you could introduce yourself for the record.

Dr Gallagher: My name is Jim Gallagher. I am the Director General for Devolution and I work principally in the Ministry of Justice.

Q115 Chairman: Before we start asking detailed questions, would you like to make any opening remarks?

Mr Straw: I do not think so is the answer, thank you.

Mr Murphy: Hello. It is good to be here, again.

Q116 Chairman: It is nice to see you the second time.

Mr Straw: In my case for the first time.

Q117 Chairman: Alan Trench from the Constitution Unit has said that the Memorandum of Understanding between the UK and devolved government is not fit for purpose and Sir John Elvidge, Permanent Secretary to the Scottish Executive, told the Committee that there are "cobwebs" on some of the structures for intergovernmental relations. Would you agree with that assessment?

Mr Murphy: I think it has been important that the Memorandum of Understanding, in government parlance, is refreshed, taking account of recent changes, changes in government departments at Whitehall, and also updating some of the terminology. I think one of the important changes would be about being clear about who could instigate a disputes process, if necessary. So far, of course, no one in the process has found that necessary, but it is important that there is clarity about that. I think this is an improvement, but again all of this is an evolution. So this is another substantial shot at it to get it right, and I think it is an improvement.

Q118 Chairman: Could you update us on the current status of the Memorandum of Understanding and the timetable for publication of the revised version?

Mr Murphy: Chairman, it is certainly my understanding - and if I have got it wrong Jack can correct me - that individually each of the administrations involved agree with the content and substance, but it is something that we need a multilateral agreement on and the current hiatus in Northern Ireland, which we are not here to speculate on, makes that more difficult at the moment, but there will be a genuine hope that once that has settled signing could take place.

Mr Straw: That is the situation, when it is settled, and just reflecting what Jim has said, you asked specifically whether we accepted the strictures of the Constitution Unit. The direct answer to that is, no, because, as Jim said, we are in an evolving situation here. We began from a standing start in 1998 and if you look at the creation of devolved institutions in any other jurisdiction in the world these take a long time and often have far more birth pangs and early childhood pangs, as it were, than have the relationships between the devolved administrations in the United Kingdom. Everybody's interest is to make these things work, and on the whole I think we do, but as Jim has said, they are certainly capable of improvement and we have been earnestly seeking that improvement as well.

Q119 Chairman: The First Minister told us that he would like to see a mechanism for dispute resolution included in the MoU. Is there a role for a "referee" in the working relationships between the devolved administrations and the UK Government?

Mr Murphy: Chairman, I think the principle behind this is firstly accountability. It is a way in which politicians who are elected by different mandates, different geographies, are accountable for what happens through the process. So it is about accountability and it is also about trying to drive consensus, and I think the creation of an external arbiter or referee who is potentially unaccountable would undermine the drive towards consensus because I think if people in all of the administrations and all the ministers, all the complexity of all the politics of all the devolutions that we have across the United Kingdom, if they know the kind of ethos is to try and find consensus then I think that is what would drive them and that would be the dynamic in the conversations. I think if everyone knew we just have to start a dispute here and the chances are an external referee may find in my favour, that would alter the nature of the process. So I think at the moment we are not convinced by the need for an external referee outside the bounds of accountability, which would reduce, I think, the chances of driving consensus.

Q120 Chairman: If a dispute arises between the devolved administration and the UK Government, what mechanism then do you believe should be used to resolve that?

Mr Murphy: Chairman, so far, by goodwill on all sides, there has not been a formal dispute process instigated. That is my understanding, and that is with all the complexities of all the different politics across the United Kingdom. So I think with continuing goodwill that precedent, which is now established, can continue. As I alluded to, Chairman, in one of my earlier answers, what we are looking to do, however, in the revised Memorandum of Understanding is to be clear that if someone did wish to instigate a dispute it is clear as to how that would happen, but it has never happened thus far.

Mr Straw: Chairman, as Jim said, ultimately these disputes, differences of view - and there has certainly been a number of those, but they have been resolved - have to be settled politically because otherwise, in my submission, it is anti-democratic to refer these to some sort of arbitral court. Jim said, "To whom would the arbiter be accountable?" Even where you have disputes between independent, wholly separate states, most disputes are resolved through direct bilateral negotiation, but within a single sovereign nation, the United Kingdom, with different jurisdictions for certain purposes, you have to be able to resolve these politically. Bear in mind that, as I say, one of the features of the political structure we have in this country is that there are elected representatives from the same pieces of ground, as it were, the same communities, sitting both in the devolved assemblies and in the Westminster Parliament and in the devolved assemblies and the Scottish Parliament, quite rightly, the executives are responsible to their elected representatives and here the same electors who elect, in this case, for example, Members of Parliament from Scotland, from all parties, hold ministers accountable here. I can see why someone suggested some kind of referee, but my view is that it would end in tears. The other point to make, however, is that in the structure of the Scotland Act there is provision for the most high level of arbitration if there is a dispute about relative powers because the matter will now go to the Supreme Court in, as it were, the shoes of the Judicial Committee of the Privy Council.

Q121 Mr Davidson: Can I just follow up that point, Jim? Surely you have been a trifle over-optimistic in assuming that these disagreements will always be between, as it were, men and women of goodwill who have an interest in reaching a consensus. It is possible to imagine a situation where some people motivated by the politics of grievance would seek to identify and pursue grievances in order to demonstrate that a resolution cannot be found. What then happens in these circumstances if, for their own political reasons, people perhaps in the run-up to an election did not want to reach a consensus?

Mr Murphy: I think it is a fair question, but it has not yet been born from experience but it is important. You cannot inoculate a process and a structure wholly from those kind of malevolent motivations, of course, certainly in the build up to an election, but I think as trust is established and the process does become more embedded there will be little public reward for people to behave in that kind of shrill manner. As well as listening to Jack, of course, I was scribbling while he was speaking and I think I am right in saying that across the current four administrations that we are talking about there are six different political parties involved. That is a complicated set of arrangements and devolution politics is more complicated across the United Kingdom, not deliberately but just as a consequence of how we have established these things, different electoral systems, different administrations, different names for different bodies. So I think it is more complicated, not by design but as a consequence of decisions we have taken. I think, Ian, your point is a fair one. It does rely on some goodwill and, of course, those things come in peaks and troughs. I think it is an invert kind of cycle to the electoral cycle often.

Mr Straw: Say you had a referee and he or she came to a view, which would have to be down on one side or the other, there would then come the question, how is the referee's decision enforced? Do you have to go to the High Court here, to the Court of Session in Edinburgh, to get an order to require the relative administration, whether it is the Whitehall administration or the Scottish Executive, to enforce it? If they then say, "We are very sorry, we can't do this because," for example, "it requires legislation and we can't get this through", what do you do then, or, "It requires money and we haven't got the money", or it requires us to stand on our head politically? What do we do then? Do we then say we are going to make it a criminal offence to ignore the order? Do you send the Tipstaff round? We have had some experience in different contexts of trying to enforce such matters in this way and, as Jim says, and I want very strongly and powerfully to underline the point he is making - it is a powerful point he is making, whether mine is powerful is another matter - that you have to resolve these in a political way and that is the way these things are ventilated.

Q122 Chairman: Can we move on to another issue. The First Minister in giving his evidence to the Committee also told us that the Scottish Executive preferred to deal directly with the relevant department in Whitehall. Why is it necessary for communications to be channelled through the Scotland Office?

Mr Murphy: There is no compulsion about going through the Scotland Office and there is no compulsion from Whitehall to go through the Scotland Office as it communicates with the Scottish Government. It is simply an issue of whether the Scottish Government thinks it would be helpful to have that communication, whether it would be helpful for the Scotland Office to be working with the Scottish Government as part of a conversation, as part of detailed policy development, as in the Justice and Coroners Bill, and there are many other examples of that. There is no compulsion about it, of course, but I think it is a matter of good and effective government and it would pick up on the GMC process about our working together, which I think is important.

Q123 Mr Davidson: I think that working together does imply a desire to work together and I think we were pretty surprised in a previous hearing to hear that the Scotland Office was not as a matter of course even informed as a courtesy that the Scottish Executive was contacting Whitehall or Westminster departments. What can be done to resolve that and introduce a better working relationship? I cannot see why anybody from the Scottish Executive would not want, as a matter of courtesy, simply to inform the Scotland Office unless they were deliberately trying to undermine it.

Mr Murphy: To put this point gently, Chairman, the people who currently run the Edinburgh Government - and I am not casting aspersions, a more general aspersion, it is just simply that as a political philosophy they do not believe in the existence of the Scotland Office. I suspect they think it saves them money not to send a letter with a stamp on it to an organisation whose existence they do not support. My argument would be that while the Scotland Office continues to exist - and my argument also is that Scotland is no less important than Wales or Northern Ireland around the Cabinet table and, therefore, a full-time Secretary of State repairs the damage and the mistake of having a part-time Secretary of State for Scotland - and while there are people willing to work for Scotland, exclusively for Scotland, around the Cabinet table within Whitehall it makes sense for them to be copied into this correspondence.

Q124 Mr Davidson: Do we have the same difficulty in Wales with the Wales Office and the Northern Ireland Office about the devolved administrations declining to keep them in the loop?

Mr Murphy: I am happy, Chairman, to provide details in writing on that, unless Mr Gallagher wishes to comment?

Dr Gallagher: As it happens, Chairman, I was asked a very similar question by the Welsh Affairs Select Committee last week and there are certainly some people in Wales who take the view that the Wales Office does not add sufficient value to the process, but there are others who agree that there is a role that has to be discharged. On any view, the UK Government will have things to do for and about Scotland, and for and about Wales, and will have to have some arrangement, whether it is called the Scotland Office or the Wales Office, and whether it is a full-time or part-time Secretary of State is a political judgment, but there are functions which have to be discharged and will continue to have to be discharged over the long run. So the question which was put to me last week was, will the Wales Office weather the line? Well, the job it does will not, and I think the same argument applies in relation to the Scotland Office.

Q125 Mr Davidson: It seems a bit petty then, does it not, for somebody not to be copied into correspondence in these circumstances?

Mr Murphy: It may just be an efficiency thing, why duplicate the paperwork? I think it would be more helpful if, as a matter of course, this sort of thing did happen. Perhaps that is something the Committee will wish to reflect on.

Mr Straw: If I may say so, Chairman, it would also serve no purpose because say my office gets a letter from the Scottish Minister of Justice - there is quite a lot of traffic this way - we copy it in to the Scotland Office because ensuring, as Mr Gallagher says, that there is coordination within Whitehall is very important.

Q126 Pete Wishart: Just on that point, Secretary of State, you think it would be more helpful if it came directly to you if there was a concern by Scottish ministers? I know you have been involved in a number of issues recently with some Scottish ministers. Would you prefer to have that correspondence received directly or would you think there is a use for it to be channelled through the Scotland Office before it came to you?

Mr Straw: I have got no particular view about this, to be perfectly honest. As I say, what is crucial and I have said, as you know, as a matter of record, if there is a continuing issue between the Scottish Executive and matters relating to my Department then the correspondence may well be direct and certainly the focus will be, but my own view as the Secretary of State is that it makes better sense for everybody to be knitted up regardless of the top addressee on the letter or email.

Q127 Pete Wishart: I am just trying to get at what added value the Scotland Office does give as a middleman between Scottish ministers and your Department because there has been a number of really meaty issues that they have been dealing with.

Mr Straw: Can I just say from my perspective, representing an English constituency and in this job and my position as Home Secretary having day-to-day responsibilities principally for England and Wales, and some reserved ones, but also when I was the Foreign Secretary for the whole of the UK, having a voice in Cabinet for Scotland makes, in my view, a big difference to the representation of Scottish interests. I do not, Mr Wishart, see this as some sort of competition with the system of Scottish governance, which after all we established and we are proud of, but it is complementary to that and I genuinely think that if there was not that representation both for Wales and Scotland - which have different histories and their provenance as members of the United Kingdom is different, and in Scotland very markedly different institutions in many fields - they would be the losers from that.

Q128 Mr Walker: I have no strong views about Scotland's future. I am sure if it decides to become fully independent the world will go on, but it does strike me that even if Scotland does follow the independence route having a Scotland Office is a good idea. It probably would not have a minister, but bearing in mind this country sits right on our border and has five and a half, six million people in it and that it would be our nearest trading partner, we must have a Scotland Office, surely?

Mr Murphy: Firstly on this question, and the previous one, no one is arguing, Chairman, that all correspondence has to come through the Scotland Office or the Wales Office. That is not a sensible way and the Scotland Office is not a mail redirection system which kind of channels mail from north to south and south to north. That is not the function and job creation that I think any holder of this post would wish. Rather than saying it is either/or, it is the issue of just doing it simultaneously so that the Secretary of State for Scotland is aware of some of the issues relating to the UK Government and the government in Edinburgh. On Charles's point about not having clear ---

Q129 Mr Walker: Personally, I do not have a strong view but I can see the need for a Scotland Office.

Mr Murphy: Of course. Under your scenario whereby if Scotland was ever to become independent, of course there would still be an office in London but it would be called an embassy! It would be an embassy rather than a department.

Mr Straw: It may be a High Commission.

Mr Murphy: Are you applying for the job?

Mr Straw: Certainly not!

Q130 Mr Walker: Would I be right in thinking that in the role of the Scotland Office you do have Scotland's interests at heart at the end of the day? You are not trying to compete with the Scottish Parliament or the First Minister, you are trying to promote Scotland's interests?

Mr Murphy: Of course. That is right. The primary purpose of the Scotland Office is the guardian of the devolution settlement. That is the primary function of the Scotland Office and it is the core purpose of the Scotland Office in the same way, I suspect - I cannot speak for Wales - it is a similar core function for the Wales Office.

Q131 Mr Walker: Since I have got the floor, I will be very brief. The idea that we would get some sort of referee to adjudicate on disputes is just totally ridiculous. Just for the record, that is ridiculous. This is why we elect politicians, to grapple with difficult issues and come to a compromise and a view, and I just hope you really do not give this any more thought whatsoever because otherwise we could halve the number of MPs in the House of Commons, if not reduce it to a quarter of the current level, and just farm it all out to referees.

Mr Murphy: Mr Walker has made his point his own way. I would perhaps put it a little more delicately. Just finally on this, Chairman, I think the knowledge of the existence of an external arbiter or referee would drive friction within the process, knowing that all someone had to do was to kind of blow the whistle and take it out of the system, that would not avoid conflict, it would create it.

Chairman: We move on to the Joint Ministerial Committee. Lindsay Roy.

Q132 Lindsay Roy: Gentlemen, in your view why was the Joint Ministerial Committee allowed to fall into abeyance for four or five years? How fully has it been re-established and how well is it working at the present time?

Mr Murphy: As to why it was not exactly as it should have been, I think after 2007 in the St Andrews Agreement in Northern Ireland there was a sense that devolution in Northern Ireland is becoming much more established. The process of continued bilateralism was not sufficient, but it is important. Bilateralism will still happen, of course, between different administrations but it is important to get all of the administrations together in one room from time to time. I volunteered to answer this question first because Jack, as former Foreign Secretary, did make sure that the European Union Joint Ministerial Committee did meet, I think, four times a year in advance of the European Councils. It is the domestic JMC which met much less regularly.

Q133 Lindsay Roy: Was it felt that things had been working well in terms of the devolution settlement? Was that part of the reason? That is what I am trying to get to.

Mr Murphy: Part of it would be that things were being handled in a bilateral sense, so the UK Government, the Scottish Government, the Welsh Assembly Government, but when it became an established fourth player in the process, when it became much more embedded, then it became more difficult and there was a sense of, "Let's try and get this show on the road again." Chairman, I do not want the Committee to conclude that because these meetings were not taking place there was not an almost daily flow of information and communication.

Mr Straw: The area where it had the most sort of practical implications, Mr Roy, was relations with Europe where you are dealing with reserved matters and devolved matters all the time. As Jim says, the JMC Europe process was kept going very actively and I think everybody has acknowledged that it worked quite well - well, very well, I think, on the whole.

Q134 Lindsay Roy: Can I pick up on the latter point? How fully has it been re-established and how well is it operating now?

Mr Murphy: It met twice last year, so the JMC Europe, I think, would have met four times in advance of European Councils and the JMC domestic met twice. I think welfare reform and migration were two of the substantial issues that were discussed, and there was also the JMC plenary session, which met twice as well.

Q135 Lindsay Roy: There was good functional operation?

Mr Straw: Yes. You will have to ask others what they thought of the chairman of the JMC Domestic because I was the chairman, but I think we had a full agenda. Part of the reason why we were not having more frequent meetings - this is not a lame excuse, it is a reason - is that trying to find dates which suit everybody can be quite difficult.

Q136 Mr Davidson: Were there any requests by any devolved administrations for meetings of any of the JMCs which were refused?

Mr Straw: I think whilst the JMC D was not meeting there were requests for it. You need to check the record.

Q137 Mr Davidson: You say the JMC D. Which one was that?

Mr Straw: D, the domestic one. Obviously people were content with the JMC Europe process meetings. It is fair to say that I think there were suggestions that the overall JMC machinery should be proceeding, and that in fact has now happened.

Dr Gallagher: It is may be worth explaining, Chairman, that when we talk about the JMC we mean the plenary meeting, which is everybody, and we have now a system in which we have effectively established two sub-committees, one which was always working, which is the JMC Europe, and a new JMC Domestic, which substitutes for ones that did not work, which were early on in 1999 and 2000 where we had a JMC on health and a JMC on poverty and economic issues, and they did not quite engage. As far as we can see, the JMC Domestic seems to have the scope, a wide enough agenda to meet regularly and do something useful.

Q138 Mr Davidson: I just want to be clear, though, that we have not had a long list of requests from devolved administrations for meetings of the Domestic Committee which then were not met. These requests for meetings have always been met, maybe not in the exact timetable but there should not be a manufactured grievance there about not having meetings?

Dr Gallagher: I think it is fair to say that in about 2007 the Scottish administration did say they would like the JMC to meet, and it did meet.

Mr Murphy: Chairman, it may be helpful on the basis that Mr Davidson has asked for us, to provide specific information about when such requests happened.

Chairman: That would be helpful.

Q139 Lindsay Roy: The Scottish Executive has suggested that the UK Government has a lack of respect for Scotland's status, especially in the context of international affairs. They cited one or two examples about Libya and Copenhagen. Do you agree with that view?

Mr Murphy: No. I am sorry for being so abrupt, Mr Roy, in my answer, but for the benefit of being direct my answer would be no, I do not agree with that. In international relations, of course, Scotland is pretty proud to be part of the United Kingdom it is a member state of these international institutions, that negotiate treaties, they attend international fora, but that is not in any way belittling the role that Scottish Government Ministers can play. I think they attended 112 different European Union meetings, ministerial meetings, on occasion being the lead minister, sitting in the chair on behalf of the United Kingdom on occasion, I understand. It has attended 112 of these meetings. In terms of Copenhagen, the fact is that they were trying to come to an international agreement, a binding agreement between all those nations, which was pretty complicated, as we discovered. Ed Miliband did a pretty heroic job in getting to where we did get to. Ed made sure that the UK in its entirety was pretty well represented at the Copenhagen Summit. I do not agree with the point. Of course Scotland, if it was independent - and I think that is the sentiment behind the assertion of others - could attend all of these meetings, but it is whether it believes its international clout would be enhanced or diminished by virtue of doing so.

Q140 Lindsay Roy: So it is to do with, in your view, a structural status rather than the development of good working relationships and ongoing goodwill?

Mr Murphy: It is clear, Mr Roy - and I am putting this as neutrally as I think is appropriate, pretty neutrally - people who want to see Scotland remove itself from the United Kingdom make an argument that Scotland would be better off if it regularly attended these things. Against that judgment is, is Scotland more powerful being part of the fifth largest economy and a permanent member of the UN Security Council through the United Kingdom? That is a decision that the people of Scotland reflect on. It is a sentiment and they weigh up the balance of this argument every time they go to the ballot box, and I think the people of Scotland are pretty sensible in seeing what is in Scotland's interest.

Q141 Mr Davidson: You said that there have been Scottish representatives in attendance on a whole number of occasions. I think it would be helpful if we had later a submission just to say how many occasions that actually was. If I quote you correctly, you also said that there were occasions when a Scottish representative had spoken in the absence of a UK minister. Is that correct?

Mr Murphy: Chairman, it has happened and what might be helpful, again at Mr Davidson's behest, is that I think the figure is 112 occasions that the Scottish Government (or as they used to be called the Scottish Executive, but for the purpose of this answer the Scottish Government) has attended EU Council meetings, the sectoral Council meetings, whether it is fisheries or agriculture. I think the figure is 112, but of course we can get the details of that to the Committee. In respect of whether it was a Scot from the previous Labour, Lib Dem or the current SNP administration, certainly Scottish Government Ministers have sat in that UK delegation chair and led and spoke on behalf of ---

Q142 Mr Davidson: I find it surprising to hear that because when the First Minister was giving us evidence recently he said, "In other councils, when no UK Minister is present the UK gives preference to their own senior officials speaking rather than an elected minister from a devolved administration."

Mr Straw: Mr Davidson, can I just say that to my certain knowledge, since I issued the invitation, a minister from the Scottish Executive has spoken on behalf of the UK in Justice and Home Affairs Councils. I will try and remember what the issue was, but in my experience and the experience of my colleagues, but certainly speaking personally, far from being exclusionary they are sought to be inclusionary, so ministers of the Scottish Executive come to the briefing sessions which are held, a sequence of meetings that I undertake in the British Permanent Representative's residence for breakfast. We go through matters. Some of the issues, as I say, relating only to the UK, entirely reserved, are quite sensitive but I work on the basis of trust, and there you go. As I say, I am afraid I cannot recall the exact subject, but what I can recall is that the issue was a devolved issue but the interests of the Scottish Government and the interests of the UK Government were similar. To be blunt, the Scottish Minister knew rather more about it than did I! So I said, "Why don't you do it?", so she said, "Yes."

Q143 Mr Davidson: I do not find what you say incomprehensible, but what you are saying directly contradicts the evidence which the First Minister gave us and I am wondering if you are suggesting, therefore, that he is fallible?

Mr Straw: Well, the issue of fallibility is between him and his maker and not for me, but if you are asking me for the record, I am your witness as to what has happened. Self-evidently, Mr Davidson, when I was Foreign Secretary, when we were in the General Affairs Council and Jim was Minister of State for Europe, you do not have a member of the Scottish Executive or the Welsh Assembly, or the Northern Ireland Assembly, because that is about representing effectively reserved matters, but on Justice and Home Affairs most are devolved, some are reserved, it is quite a mixture.

Q144 Mr Davidson: We were also told by the First Minister that the former Prime Minister, Tony Blair, would not speak to him. So this evidence calls into question whether or not that is correct either, does it not? Have you any evidence that the Prime Minister refused to speak to the First Minister? I mean, it must be true if Alex said it!

Mr Straw: I am sorry, as I said in quite a different context last week, you will have to ask Mr Blair that!

Q145 Pete Wishart: Getting back to the issue at hand, I think there is absolutely no question whatsoever that as long as Scotland is part of the UK of course it is UK ministers who should lead on any multilateral discussions, that is taken for granted, but surely devolved administrations have a real key interest, particularly when it comes to things like fishing. Scotland has the vast majority of UK fisheries. Surely it should be expected that Scottish Ministers should have a role in these negotiations? Again, when it comes to something like climate change, you obviously will be aware, Mr Straw, that Scotland has particularly challenging climate change legislation?

Mr Straw: Even I know that.

Q146 Pete Wishart: For goodness sake, surely it would be the simplest thing in the world to agree and say, "Of course a Minister from the Scottish Government would be helpful and consensual to come along as part of the UK delegation to put that very progressive, challenging discussion".

Mr Straw: Can I just say this: within the European Union, as I say, we seek to be very inclusionary, and Jim has referred to the long list which proves that point. I do not know any Minister who is seeking to be exclusionary. What would the point be, because we are there to represent all parts of the United Kingdom, either directly or indirectly? Sometimes - and I have signed letters to Kenny MacAskill to this effect - the size of the delegation we are allowed means that it is not possible to take a Minister from any of the devolved administrations and that is routinely the case in respect of the Justice and Home Affairs informal meetings, where I think I was unable to go but Lord Bach went on my behalf, we had altogether I think two places. On the issue of negotiations, any negotiation in international negotiations - and this can include a formal negotiation for a new legal instrument within the European Union - these are interstate negotiations because the European Union at its basis is a treaty-based organisation, an international institution, and the state party to the EU Treaty is the United Kingdom. That is just the fact, so it is fundamental that at that sort of point of negotiation the lead has to be taken by the United Kingdom. As I say, it is day by day inclusionary and day by day sometimes Scottish Ministers in practice are speaking on behalf of the United Kingdom, and in a sense why not?

Mr Murphy: Chairman, I agree with what Jack has said and picking up on Mr Wishart's question - I am not going to get into the infallibility point, not of the First Minister or anyone else, my priest would get me into bother, if no one else - this point about inclusionary rather then exclusionary, when I became Minister for Europe I tried to instigate what I hoped would be regular meetings with the Scottish Government's Minister for external affairs, and I think from memory it was Fiona Hylsop who was doing the job, and again I was a little bit surprised that that was not in place and I tried to make that happen. As Jack has alluded to, in the build up for these European Council meetings, there is nothing to be gained by excluding people from the conversations so that gathering of JMC Europe chaired by the Foreign Secretary with all the devolved administrations and Minister for Europe is a really important forum. In terms of this thing about the 112, someone - not myself or Jack - who has done their homework had this list and of course, Chairman, I could read it into the record but I do not think you or anyone else would thank me for doing so. We will clear up all the scribbles on it and make sure there is a copy, but just for the record from what I can see the last Scottish Government Minister to speak at one of these grand gatherings was in Brussels, the Education Youth and Culture Council on 12 May of last year, Mr Michael Russell, to give him his Sunday name.

Q147 Mr Davidson: Can I ask about the work of Whitehall departments because in evidence to this hearing and also, I understand, in the Wales equivalent there has been some evidence about some Whitehall departments not having the awareness of devolution that they ought? Can I just clarify whether or not in your view this is an unwillingness to take account of devolution by these departments or whether it is just an example of particular departments being, as it were, in silos and not being aware of anybody else outside themselves, never mind the devolved administrations?

Mr Murphy: I think you partially answer your own question in your own way. I am just surprised you are not asking about your aircraft carriers!

Q148 Mr Davidson: I will come on to that in a moment because I am leaving at half past three for the aircraft carrier!

Mr Murphy: Of course there is a tendency in departments, a tendency in many organisations to think within the confines of the immediacy in which you work, and that is true in government organisations in the same way as it is elsewhere in life. Part of this answer is something I alluded to earlier, that the government's architecture on politics in the United Kingdom has become more complicated over the past ten years. If you are a civil servant sitting in London or somewhere else in the United Kingdom, it is not your core function to be trained in the specific detail of the balance of devolution across the different administrations, but it is really very important that each of those departments and organisations do have the capacity and expertise within those departments to understand devolution. That work is carried out by MoJ and the Scotland Office with civil servants and with ministers. The only other thing I would say is that in recent years the Queen's Speech has had a large proportion of the Bills directly relevant to Scotland, in fact most of the Bills have been directly relevant to Scotland, so that in itself has created the opportunity within Whitehall departments to have a better understanding in a policy term about the nature of devolution across the United Kingdom, not just the UK and Scotland, because a new set of policy officials develop an understanding. I think that is a legacy of these Bills, that you have got to maintain that legacy inside these departments.

Q149 Mr Davidson: Thank you. Just moving on from that, do you as the Scotland Office have a particular role in increasing awareness of devolution? How can we measure how successful you are?

Mr Murphy: We do have a role. The Ministry of Justice, the Scotland Office, the Cabinet Office all have a role in having seminars, producing publications, and when it comes to crafting a Bill and making sure that it is devolution proof, making sure there is an understanding of whether a legislative consent motion has been necessary or would be necessary, all of those - education is the wrong word but it is the only one I can think of - is an educational process through the system in Whitehall. I do say again - and this comment is offered impartially - I think there will be a similar process necessary inside all of the devolved administrations across the UK in understanding Whitehall because that is another way in which you could minimise unintended friction. In terms of whether you are successful or not, I hope we get it right more often than we get it wrong. It is a continual learning process.

Q150 Mr Davidson: Presumably the only measurement of success is the extent to which the number of grievances reduces, because I am generally in favour of reducing the paranoia that is obviously felt by some in the Scottish Executive, making them feel that they are being done down all the time, and all the rest of it. We have tried to explain to them that this is not deliberate, it is just accidental and it has to do with the culture of Whitehall. So presumably if it diminishes then things will get better?

Dr Gallagher: Chairman, I think Mr Davidson's question has, as the Secretary of State says, the seeds of its own answer and that is that things do occasionally go wrong as pieces of UK Government policy get developed and it is not wholly surprising that this does sometimes happen. When you think of a piece of policy work inside a government department which is not commonly dealing with devolution, or perhaps in an arm's length body of government which does not normally interact with the devolved system, they are under a lot of pressure to do something, it may be political pressure, it may be time pressure, and devolution is only one of many things they are going to have to get right. Mostly, in fact, of course it is got right. As the Secretary of State says, particularly in relation to the legislative process, that actually works quite well - not perfectly, but pretty well. What we have been doing over recent months is a bit like painting the Forth Bridge because at official level we have run a process under which departments have been assessing their own capability to see where they get it right and where they get it wrong and what structures they can put in place to improve their chances of getting it right. What we know and what we see is those departments which have a senior champion at official level for this are those which are more likely to be successful, and where we see risks are inevitably - not in individual departments so much as in bits of departments which have not had to deal with this issue before, which might be a purely England and Wales department, it might be a purely England department and, as the Secretary of State put it, it is not their core business to be involved in the constitutional architecture. These problems will never go away but they can be reduced by doing that kind of thing.

Q151 Mr Davidson: I think we are really just seeking reassurance that there is not some sort of grand conspiracy, as has been suggested?

Dr Gallagher: We are not as well organised as that!

Q152 Mr Davidson: That is what I thought, actually. That was my view.

Mr Murphy: To continue the theme of infallibility, it is more often a sin of omission than a sin of commission!

Mr Straw: If I may just add, to underline the point Dr Gallagher was making on legislation, the Sewel Convention was established and it has never been breached. There have been over 100 legislative consent motions, civil motions, since then. Sometimes where there is a request for a change in law which has to go into UK Government legislation, for example following the Law Lords' decision in Somerville, it is quite complicated across Government because every government department had an interest and wanted to have a say in this matter, but in the end we got there and provision to deal with the difficulty created by the Somerville decision is now in the Constitutional Reform of Governance Bill and that is something the Scottish Executive wanted. Jim and I understood the case they made. It took quite a lot of work to broker it around Whitehall. Anyway, it is happening, but there are other areas, for example the Bribery Bill, which is before the House of Lords at the moment and parts of that will apply to Scotland because it suits the Scottish Executive that it should. There are provisions in both major pieces of legislation we have had in the last two years, the Criminal Justice and Immigration Act 2008 and the Coroners and Justice Act 2009, which have got Sewel motions applying to them because it suits everybody to do it.

Q153 Pete Wishart: We will maybe move on to, I suppose, the subject which sparked this investigation and that is the release of Mr Abdul Baset al-Megrahi, particularly to do with the prisoner transfer arrangements in the Memorandum of Understanding that was signed between the UK Government and Libya in 2007. This is where, quite clearly, the devolved and reserved powers come into close contact and I think we have been very interested in the way this has all worked. In terms of the PTA, you are obviously aware that this did impact upon the powers and jurisdiction of the Scottish Government. Why were Scottish Government Ministers not informed about the MoU with Libya when the only real Libyan prisoner of any significance, I think the only Libyan prisoner who was actually in incarceration in the UK, was the Lockerbie bomber?

Mr Straw: Mr Wishart, the fact that we were seeking to improve relations with Libya was a matter of public knowledge following an agreement which was announced on 19 December 2003 between Libya and the United Kingdom, and also the United States, under which Libya agreed to have the International Atomic Energy Authority come in to inspect its previously wholly covert and actually very large nuclear weapons programme. In return there would be a programme which would provide a pathway for Libya essentially to become a normally operating member of the international community. That then led to further progress over a period and then, as you will recall, in the late spring, early summer of 2007 this speeded up with meetings between the then Prime Minister, Tony Blair, and Colonel Gaddafi, and there was a great deal of bilateral contact between officials. It is at this point worth remembering that we are a single nation. I am not making a debating point here, but as long as we are we are represented at any kind of international forum by Her Majesty's Government and by the Prime Minister and the Foreign Secretary principally. Everybody knew that a Prisoner Transfer Agreement covering the United Kingdom would have to involve discussions with the Scottish Executive without question. There was no argument about that, Scotland had a separate criminal justice jurisdiction, so that was that. As soon as there was anything significant to discuss other than the fact that there was an aspiration by the Libyans for a PTA there were indeed discussions with the Scottish Executive.

Q154 Pete Wishart: Did you think there would be any value at all in informing the Scottish Government in advance of any MoU being signed, given that the al-Megrahi situation was going to be such a massive issue in any Memorandum of Understanding, and also the fact that you were starting to walk down the particular path of the prisoner transfer arrangement? The Scottish Government, for example, in its memorandum says that at no stage were the Scottish Government aware of the content of the memorandum prior to its signing and therefore no opportunity was given to contribute or to raise concerns against the potential application. It would perhaps have been helpful just to have a conversation with the Scottish Government about what was being intended by it.

Mr Straw: Mr Wishart, I was not Foreign Secretary at the time, nor was I Justice Minister at the time this was going on because at that particular time I was Leader of the House, so I was not directly involved with the case, so what I am about to say is to offer an interpretation about the sort of circumstances that can arise, and Dr Gallagher may want to add to this. Where you are involved in complicated negotiations with a country like Libya they sometimes have to be handled with great confidentiality. I think you are aware from everything the Secretary of State and I have said that we have no interest whatever in keeping the Scottish Executive gratuitously in the dark about things. Why on earth should we? What purpose would this serve? We knew - everybody knew - that to be operational any Prisoner Transfer Agreement would be operated by the Scottish Executive and we sought earnestly as well, although did not succeed, to meet the Scottish Executive's negotiating wishes. As I say, that is the background. If Dr Gallagher has any further details he can offer them

Dr Gallagher: The only further detail I would want to add, Chairman, is that one has to distinguish quite carefully between the MoU, which is an international agreement, which essentially committed the UK and Libyan Governments to work on a number of possible areas of cooperation, of which judicial cooperation was one, amongst which the PTA did in the event form part.

Mr Straw: As at 14 June 2009, that was two years after these negotiations but I do not think it had changed that much, there were 16 Libyan nationals held in prisons in England and Wales, but we were negotiating on behalf of the whole of the United Kingdom, Mr Wishart.

Q155 Pete Wishart: I totally accept that, and thanks for a full response, but the trouble I have got is, was not any sort of trouble foreseen by the Foreign Office or the Department for Justice that there would be toes tread on, that it would have some sort of reaction and response in Scotland given that this was going to be a very clear devolved responsibility? Did nobody sort of think, "Hold on a minute. I think we might have a bit of an issue and a problem given that it was very clear from the UK Government they wanted the Lockerbie bomber included in this and he was in a jail in Scotland?"

Mr Straw: Everybody was aware of the circumstances of Mr Megrahi's conviction and of the Lockerbie bombing which preceded it, and how could one be unaware of that? My predecessor, Robin Cook, had been very actively involved in the negotiations which led to Mr Megrahi's trial under Scottish law but in The Hague, those arrangements, and I think Megrahi was only convicted at the end of January 2001 shortly before Robin ceased as Foreign Secretary and I took over. Of course we were aware of that, but what you are discussing in terms of an MoU is the broad outlines of the aspirations you wish to achieve and then you get down to the detail. If I may say so, I think rather too much can be made of that and, as the record shows, there was then a lot of active discussion with the Scottish Executive. I visited Edinburgh on 7 July 2007. That was a visit which I was going to make as Leader of the House, but I kept it in the diary as Secretary of State for Justice and saw both the First Minister and the Justice Minister and Libya was on the agenda, I think, at both those meetings.

Q156 Pete Wishart: Is there not an obligation under a Memorandum of Understanding that if it does cut across devolved powers devolved government should be involved of any issues in any MoU that might come across their jurisdiction and the scope of their responsibilities? Is there not an obligation?

Mr Straw: There is certainly an obligation post the signing of an MoU. I think it depends entirely on the circumstances in which an MoU is signed. As I say, I was very, very actively involved for five years in first of all trying to restore the beginnings of relations with Libya and then that continuation. One of the Ministers in the Foreign Office, Mike O'Brien, was even more active on the Prime Minister's behalf and mine. Then when I left the Foreign Office in May 2006 obviously I dropped out of the story directly, but it is also just worth reminding the Committee, Chairman, that Prisoner Transfer Agreements involve no right to transfer, no right on our part whatsoever, and no right on the receiving state or requesting state if the sentencing state decides to exercise a veto, and the best proof of that in the Megrahi case is that although Megrahi made an application for a transfer under the agreement, the Scottish Executive exercised their absolute right to refuse the transfer and for that application that was the end of the matter.

Q157 Mr Wallace: I am just reminded they refused the transfer on the day they agreed to release him on compassionate grounds. It was not like, "We have assessed the PTA and he is not going," and then he came back with a compassionate request. He was going out the door because he had been compassionately released, so it was no big deal, he was on his way home to Libya.

Mr Straw: Mr Wallace, the decision to refuse him was still made and that was a matter for the Scottish Executive. I am sorry, I do not quite follow your point.

Q158 Mr Wallace: I think you are trying to say that the devolved institution exercised its right unilaterally and refused the PTA, therefore we were never negotiating the right for him to be released. They only refused the PTA because they made a decision on compassionate grounds.

Mr Straw: Okay, but you are making my point, not yours. Even if there had not been a PTA at all with Libya, not an MoU, not a word said between leaders, not a suggestion of a PTA, Mr Megrahi could have been released on compassionate grounds and I assume that in the same circumstances that applied he would have made application for release on compassionate grounds.

Q159 Chairman: Mr Straw, it is absolutely clear then that if an agreement, PTA, was not signed between the UK Government and Libya and the Libyan government or anybody else applied for, on compassionate grounds, the release of Megrahi, they would have released him anyway?

Mr Straw: That is not a matter of international law, that is a matter of domestic Scottish law and practice.

Q160 Mr Wallace: But you would have known under the devolution settlement you could never have used compassionate grounds as a basis for negotiations with Libya. You could use a PTA as part of discussions with Libya about coming in from the cold. You could say in your negotiations in the WMD in 2003, for example, when the Libyans raised al-Megrahi, which they did - and I think what is interesting is that it must have surely then occurred to the government four years later when the Libyans start talking about a prisoner transfer deal that we were talking about al-Megrahi, a mass murderer in a Scottish jail - it would have been beyond the wit of man to think, "Well, therefore we don't have to inform Scotland"?

Mr Straw: Scotland were informed. We debated briefly the timing and I made a suggestion as to why there was not exactly contemporaneously information, although what Scotland could have done about the information I am not entirely clear at that stage. The fact that the Libyan government had particular views about Megrahi was on the record. It did not require negotiation, public or private, you can go on Google and find that out. What the Libyan government were repeatedly told, and they acknowledged they understood all the way through, was that a PTA gave the Libyan government and any Libyan prisoner concerned no right to transfer. It gave them a right to make application, but the decision would be made, if it were in respect of a prisoner in a Scottish jail, by the Scottish Executive.

Q161 Mr Wallace: Nevertheless, the Libyans made PTA and the inclusion of al-Megrahi a critical part of the negotiations. In the letter you wrote to Kenny MacAskill on 19 December 2007 you said: "The wider negotiations with the Libyans are reaching a critical stage and in view of the overwhelming interests of the UK, I have agreed that in this instance the PTA should be of the standard form and not mention any individual." That is after a letter you wrote to him in September, where you said: "My officials will make it clear to the Libyan authorities that without this addition," e.g. the exemption, "the PTA will not be able to be concluded." So they realised it was an important part of the negotiations.

Mr Straw: The sequence here was that we had these discussions. I took over the discussions from Lord Falconer.

Q162 Mr Wallace: So you had been part of the 2003 dealings?

Mr Straw: Yes, of course, and my role there was very private. It has been completely private for many, many months, many years, and then on 19 December, at about ten o'clock at night - and the reason I remember this is because it ended up having to be coordinated from my study in Blackburn after a rather heavy Friday's pre-Christmas engagement. I do not mean "heavy" in a Scottish way but heavy in terms of work. I also remember all the background to this very acutely, so there was never any dubiety about this. It is not the case that Mr Megrahi was the only Libyan prisoner who was in a jail in the United Kingdom, that is quite wrong. What happened over the summer was that I went to see the First Minister and the Justice Minister in Edinburgh and they said they would like to see an exclusion in respect of Mr Megrahi. We then went through hoops to work out how that could he achieved and various suggestions were put forward. I then wrote to Kenny MacAskill on 28 September 2007 saying, "I have noted your preference for an exclusion clause to apply not just to Mr al-Megrahi but to anyone convicted of involvement in the Lockerbie bombing. I agree with your proposal." The proposal was for a preference. "My officials will therefore seek to amend the draft agreement as follows..." So we were involved in a negotiation and if you are involved in a negotiation it is not a good idea to disclose your bottom line to anybody. Those negotiations went on. My officials and our officials did their very best on this. This process began and it became clear round about the beginning of November that we might face a choice where if we insisted on an exclusion which, whether by name or by wording, specifically covered Mr Megrahi we would not be able to get an overall agreement with Libya at that stage, as I spelt out to Mr MacAskill following various telephone calls with him, that we had to make an overall judgment. I told him that we had not been able to secure a explicit exclusion and went on to say that it therefore would be a standard form. I mean, all of these are slightly bespoke but broadly in the standard form. I reiterated the point which, as I say, the Libyans absolutely understood always, that there was a discretion in respect of any PTA applications that would rest with the Scottish Executive, as indeed was and is the case. That is the background there.

Q163 Mr Wallace: Mr Straw, the issue about this is, what were Libya going to do? They had already allowed the International Atomic Energy Agency in to see the WMD. They had already taken quite large steps in the last four years and if we were not going to give them al-Megrahi within the PTA, a potential, they were going to do what? The thing that sort of riles me and I find difficult is that you wrote a letter on 23 September, I believe, and another one really underlining, "We'll tell them we don't think we can give an exemption", you took two phone calls from a man called Sir Mark Allen, who was a consultant for BP at that time, paid for by the private sector, not by the government, he was not a civil servant any more, and then after that you changed your position on it. Now, I can understand that if you would then release the information, the correspondence with Sir Mark Allen on that subject which you are blocking to me from the Ministry of Justice. It is odd. a man from BP rings you up, the position has changed, an oil deal is signed, and nowhere in this process is the victim included. You may say the justification was about trade at the end of the day, but the reality is that if it was trade it did not consult the Scottish Executive, clearly. When the Libyans were asking for al-Megrahi it was clear from the very outset they were talking about one man, probably Britain's biggest mass murderer in a jail who was a Libyan. I think we should know to what extent commitments HM Government gave in exchange for trade and whether that included al-Megrahi and it does not really matter about what Scotland's jurisdiction is on it.

Mr Straw: At no stage was any undertaking promised, hinted, given to the Libyans that in return for an overall bilateral arrangement Mr Megrahi would be released and, what is more, the proof of that, Mr Wallace, is in what then happened because he was not released under any arrangement which followed from these negotiations, full stop. I want to underline the point: even had there been no negotiations, had this been in the period before 19 December 2003, and even then before that period, so when Libya was out in the cold, if Mr Megrahi's condition had deteriorated to the extent he claimed it had and the medical evidence suggested that it had, he could, and I presume would have made an application for compassionate release and at that stage the Scottish Justice Minister would have considered it on the longstanding legal and practice basis of the Scottish jurisdiction. So it is literally separate from these negotiations. I know the point you are trying to make but, with great respect to you, it is incorrect. There has been no secret about the fact that I took two telephone calls from Sir Mark Allen. I take telephone calls from all sorts of people and Sir Mark Allen was somebody I knew from my time at the Foreign Office. He actually had a very extensive knowledge of Libya and the Middle East and in the role of the Foreign Office had been very much involved with these negotiations and I thought he was worth listening to. That was what I did.

Q164 Mr Wallace: You could release the notes of the conversations. Not the transcripts, there are none, but the notes?

Mr Straw: Well, that is another matter.

Q165 Mr Wallace: Will you?

Mr Straw: I am sorry, decisions about the release of material under FOI are dealt with separately. Under that fine measure, Chairman, Mr Wallace will be aware that what can follow is a decision by the Commissioner and an appeal to the tribunal and other processes.

Mr Walker: I just have a couple of questions. Do you believe that the conviction of al-Megrahi was unsafe? Do you believe it was a fair conviction? Did you have any concerns about the conviction?

Q166 Chairman: Mr Straw, if you do not want to answer this question you can just say, "I think this is not within the remit of the Committee."

Mr Straw: Thank you for that, Chairman. Mr Walker, it is not my role to come to judgments about the decisions of courts, and this applies to courts in England and Wales as well as, in this case, a court held under Scottish law. That was a matter for that court and for any process of review that followed it. I would not dream one way or another in the course of evidence before a Select Committee to say that decision was right, that decision was wrong.

Q167 Mr Walker: It is just the idea of releasing people under compassionate grounds. I am a very compassionate person but, as my colleague pointed out the enormity of the crime, he was convicted of killing over 230 people. I think the only person who may have killed 230 people might have been Harold Shipman and the idea that he would have ever been released on compassionate grounds is just simply something I could not countenance. How far do we take the notion of compassion? I believe al-Megrahi is still alive. It is just that this man killed so many people.

Mr Straw: Mr Walker, I understand exactly the point you are making. Let us be clear, this decision was made by the Scottish Justice Minister under Scottish law in a separate jurisdiction. I can discuss in the abstract the criteria that he used in England and Wales for the release of prisoners, but it happens to be different for the Scottish system and it would serve no purpose whatever before this Select Committee.

Q168 Chairman: So it is for the devolved administration to make the decisions?

Mr Straw: Yes.

Q169 Chairman: And you did not have any influence or any pressure put on the Scottish Government?

Mr Straw: Absolutely not, and Mr MacAskill ---

Q170 Chairman: He accepted what was recommended?

Mr Straw: There was no involvement by me and I did not know anything about this until I was on holiday. Every day I used to call up the BBC website to discover in the area where we were staying whether anything had happened and I noted what had happened. Mr Wishart, this was a matter for the Scottish Justice Minister. That is my view about it.

Q171 Pete Wishart: Of course, you are absolutely correct, it was a decision for the Scottish Justice Minister, it was his decision alone, but everybody has offered a view about this. We have had the views of the Americans, we had the views on Scottish Government policy practically daily from the Scottish Secretary. What was the view of the UK Government about this? I know, we have heard that again, it was right and proper that it was exclusively made by them, but what do you feel about it? Are you happy with the decision?

Mr Straw: Mr Wishart, I have not offered a view about this except to say consistently that this was a decision for the ---

Q172 Pete Wishart: We know that.

Mr Straw: Well, okay, and that is my view and I would not dream of offering any further view.

Q173 Pete Wishart: We have come close to getting a view of the UK Government because the Foreign Secretary in a statement said that he did not want to see Megrahi die in a British prison. He said that, but then other Secretaries of State had different views. I think Ed Balls had said something about being unhappy about the decision. If every Secretary of State is offering a view or position on this, how can we get a sense of the collective UK Government view if there are individual members of the Cabinet who are saying one thing and others saying another thing.

Mr Straw: Mr Wishart, you asked me my opinion about this. As I say, my opinion about this is that this was legitimately, lawfully a matter and exclusively a matter for the Scottish Justice Minister and that is my view about it.

Q174 Mr Walker: Secretary of State, we all suffer from a terminal condition and we will all die eventually. Al-Megrahi is still alive. If he is still alive in two or three years, would your view be that perhaps we had released him a little too quickly?

Mr Straw: Mr Walker, let us be clear about this. The "we" does not apply. Part of the devolution settlement was that it is the Executive's responsibility for the justice system which has been in practice always wholly separate and that was part of the settlement, the Act of the Union in 1707, so that rests with the Scottish Executive. That is the position. I am afraid I am in no position whatever to speculate about the longevity or otherwise of Mr Megrahi, nor indeed of anybody else here, except to note your dismal observation that we are all born with a terminal condition and the only question is when it arises.

Q175 Mr Walker: In your case, I hope later rather than sooner!

Mr Straw: That is very kind of you. Thank you very much. I will tell my constituents!

Mr Murphy: I take that personally, Chairman!

Q176 Chairman: Secretary of State, the Scottish Executive told us that it kept the UK Government informed in advance of the timescale and the result of its decisions to ensure that everyone was fully prepared. To the outside world the communication between governments on the announcement of the decision appeared muddled and unclear. In hindsight, could the UK Government's reactions have been better handled?

Dr Gallagher: On the question of information, Chairman, it is entirely fair to say that while the Scottish Executive at both official and ministerial level made it plain, very properly, that this was a decision for them, they did very professionally and courteously tell the UK Government at both official and ministerial level, although Mr Straw was on holiday at the time, how their consideration was progressing, when a decision might be made and very shortly before it what the decision actually was.

Q177 Chairman: But, Dr Gallagher, the Secretary of State is saying that he heard the news of the compassionate release via the BBC website, so there were no problems of communication.

Dr Gallagher: Yes. He is allowed to be on holiday. He was on holiday.

Mr Straw: The fact of the event was on the website. Can I just say that much though I am very fond of my private office and anybody who has ever worked for me, I have a rule when I am on holiday which is that if they want to get in touch with me they should first judge whether I need to make a decision about it. If it is simply to inform me of something, then I can find out about it from a local newspaper or these days find it on the website. That is why I think, to the extent they were aware of this at a late date, they correctly followed this, as it were, protocol that I have, pact that I have with them. I had no decision whatsoever to make, so they would leave me and, more importantly, my wife be on holiday.

Q178 Mr Wallace: Can I just move on, Secretary of State, to issues about the United States? Obviously when Mr Megrahi was released there was real anger from certain elements of the United States Government. Mr Mueller wrote the very explicit letter, the Director of the FBI, the then Deputy Attorney General at the time, the current Attorney General, made it quite clear that he thought the UK Government had given assurances that al-Megrahi would in no way be released from jail but serve his sentence in jail. Since those statements, the UK Government has admitted that they said, "We didn't want to see him die in jail", that is on the record, and the Scottish Government has said that the UK did give those assurances. What is the Government's position? Did you give assurances to the United States or not that Mr Megrahi would see his days out in jail?

Mr Straw: The Foreign Secretary said what he said and that is on the record. For the reasons I have explained, which is I was not doing the job any more, I cannot give you chapter and verse about the traffic that was taking place between us and the United States. It is not in my knowledge, Mr Wallace, one way or another. Of course, almost as soon as I became Foreign Secretary in 2001 I met the representatives of the families of those who were killed in Lockerbie and had a lot to do with them at that stage, and that continued from time to time over that period. Of course I was aware of their concern and their intense anger and the huge concern in the United States. We were aware of that and it was raised in very strong terms by various members of the United States administration. However, our relations with the US administration and with individual office holders like Eric Holder (no pun intended), the Attorney General, remain very good and they are close.

Q179 Mr Wallace: In 2003 you were Foreign Secretary when the UK and the US wrote the letter to the UN giving a commitment as part of the whole issue towards sanctions on Libya and the handing over of the accused. You used the phrase, "If found guilty, the two accused will serve their sentence in the United Kingdom."

Mr Straw: I have not got the reference in front of me. He was actually sentenced in January 2001, so I think that letter related to some time earlier. I think your quotation is accurate, but I think the letter ---

Q180 Mr Wallace: Do you think that was what the Americans took as the assurance?

Mr Straw: Well, you would have to ask the Americans that. What we said at the time was on the record. What was not anticipated at that time was that Libya would cease to be a pariah state, that there would be this negotiation with Libya, in which I may say the United States was fully and completely involved, absolutely involved. The operation with respect to the Libyans' very extensive nuclear weapons programme was a US/UK operation and was covert for a long, long time, but the US were completely involved in the arrangements with led to the public announcement between the US, ourselves and the Libyans on 19 December.

Chairman: Mr Straw has to leave at four o'clock, so I request that colleagues ask brief questions and I request the witnesses to give brief answers, please.

Q181 Mr Wallace: It is the last one from me. Just on this, Mr MacAskill said that he had asked the UK Government to be provided with the information he requested on assurances the UK had given to the US and he says that the UK Government will not release it to them.

Mr Straw: When did he make that request?

Q182 Mr Wallace: 24 August. "I sought the views of the United Kingdom Government. I offered them the right to make representations or provide information. They declined to do so. They simply informed me that they saw no legal barrier to transfer and that they gave no assurances to the US Government at the time. They declined to offer a full explanation. I found that highly regrettable."

Mr Straw: My understanding is that this request went to the Foreign Office, it did not go to my Department, and my understanding in any event is that the Foreign Office answered every question put to it by the Scottish Government in accordance with the laws governing devolution of power between the UK Government and Scottish Ministers in Edinburgh, and Scottish Ministers had all the information needed to make a decision under the Prisoner Transfer Agreement.

Q183 Chairman: Secretary of State, why did you not provide Mr MacAskill with the information he requested on the assurances the UK had made to the US Government? Was it because of security reasons?

Mr Straw: As I say, it was a request for information which was answered by the Foreign Office and not by my Department or by me, but my understanding is that in fact the Foreign Office did answer every question that was asked of it, and I think the record makes that clear as well.

Q184 Chairman: Finally, the First Minister told us that he was willing to appear before our Committee, at which he appeared this month. Mr Straw, would you be willing to give evidence before a Scottish Parliament Committee?

Mr Straw: I have not yet been invited to give evidence. On the whole, I require little invitation to offer my views in any forum. By the way, I would consult the Scottish Secretary of State in order to ensure we had a coordinated response!

Mr Murphy: That is a very good answer.

Q185 Chairman: Mr Murphy, do you have a view on it?

Mr Murphy: I have offered my views to this Committee before that I would love to participate in the democracy of the Scottish Parliament, but the Scottish Government continues to say that is not something they would like to see happen. I would love to address the Scottish Parliament after the Queen's Speech to explain the legislative programme of the UK Government, in a similar way to which the Secretary of State for Wales addresses the Welsh Assembly. I think if it is good enough for Wales, it is good enough for Scotland.

Q186 Chairman: Could I thank the witnesses for their attendance. Before I declare the meeting closed, would you like to say anything in conclusion, perhaps on any issue that we have not covered during our questions?

Mr Straw: It has been a pleasure.

Chairman: Thank you very much.