Salmond squares up to Blair over deal with Libya

The "Memorandum of Understanding (MoU) on the pursuit of agreements on judicial co-operation" was signed by the British and Libyan governments on Tuesday of last week when Mr Blair was visiting Colonel Gaddafi.

It specifically refers to "extradition and prisoner transfer" and commits the two sides to reaching a final agreement within a year.

No mention is made of any prisoner by name but the memorandum states: "The UK government will seek to obtain the agreement of all three jurisdictions within the UK in each of these cases."

Mr Salmond told MSPs: "I have today written to the Prime Minister expressing my concern that it was felt appropriate for the UK government to sign such a memorandum on matters clearly devolved to Scotland without any opportunity for this government and indeed for this parliament to contribute.

"The Lord Advocate is aware of, and supports, my decision to write to the Prime Minister on this matter."

Mr Salmond said: "The question of prisoner transfer is particularly important, not least in relation to the case of Megrahi, the Libyan convicted in a Scottish court of the Lockerbie bombing which remains the most serious terrorist atrocity committed in the UK.

"At that time Scottish law officers and others, including the secretary general of the United Nations, gave assurances that any sentence imposed would be served in Scotland."

He pointed out that Megrahi's case was being review and could go back to the High Court in Edinburgh on appeal.

"This government is determined that decision on any individual case will continue to be made following the due process of Scots law. The integrity of that remains paramount."

Jack McConnell, Labour former First Minister, said: "If the new Scottish government was not informed in advance then that is extremely regrettable."

Conservative leader Annabel Goldie said: "Tony Blair has ridden roughshod over devolution and treated with contempt Scotland's distinct and independent legal system.

"This is unacceptable arrogance towards the Scottish government and Scotland's law officers.

"I am deeply alarmed by the actions of the Prime Minister. which on a practical, political and legal basis are shoddy and shabby conduct."

Alluding to the fact that the Prime Minister had failed to contact the First Minister on being elected, Liberal Democrat leader Nicol Stephen said: "To fail to phone on a matter of courtesy is one thing.

"To fail to phone on a matter on which both governments have a responsibility is a far more serious issue when so many people across the world still remember the horror of Lockerbie."

The Prime Minister's spokesman said: "There is a legal process currently under way in Scotland reviewing this case which is not expected to conclude until later this summer.

"Given that, it is totally wrong to suggest we have reached any agreement with the Libyan government in this case. The memorandum of understanding agreed with the Libyan government last week does not cover this case."

Shadow Scottish Secretary David Mundell, whose Dumfriesshire, Clydesdale and Tweeddale constituency includes Lockerbie, said last night: "I am looking for clarification on the issue because my constituents would not like Mr Magrahi to be dealt with in any other way but the due legal process."

A Scotland Office source said last night: "No prisoner will leave Scotland without the Scottish judicial system or ministers being involved in the decision and that's specifically in the MoU too. The SNP is being awful partial with this. This is what we predicted they would do. We said they would manufacture fights - that's what they're doing."

But Mr Salmond's aides insisted that the memo in no way ruled out Megrahi from any future prisoner transfer, and said the whole point of the protocols between Westminster and Holyrood was that consultation had to come before action, not after.

But Tam Dalyell, former MP and father of the House of Commons, said: "My sympathies are with Mr Salmond. I had 17 Commons adjournment debates on Lockerbie. They were inhibited by being told that so many matters were for the Crown Office.

"It seems it is a matter for the Crown Office when it suits them not to answer awkward questions and a matter for Westminister when they see there is an advantage."

"I spent an hour and 10 minutes with Megrahi yesterday. He said of course he wants to go back, but he wants to go home as an innocent man, not one who has been branded a mass murderer.

"He said he does not want to go through the rest of his life with responsibility for something he did not do. The only way he can go back is through due legal process."

He added that if Downing Street were saying this development had nothing to do with Megrahi, it was "cant".

Tony Kelly, Megrahi's solicitor, said: "For us, this does not really make any difference. We continue to work towards a referral in order to argue our case before the court.

"Mr Salmond has called for the due legal process to be followed and was, quite rightly, jealously guarding Scots law. We are currently pursuing the due legal process. The memorandum of understanding does not change anything for us."

Transcript of the letter

Dear Prime Minister

Memorandum of Understanding - Libya

It is perhaps unfortunate that our first contact since the Scottish Parliamentary Elections is not on a more positive note. However, I am sure you will understand the importance of the issues raised in this letter.

My understanding is that the UK Government has recently signed a Memorandum of Understanding to commence negotiations in relation to judicial co-operation with Libya. That co-operation is apparently to extend to criminal, civil and commercial law and to include matters of extradition and prisoner transfer. As will be immediately obvious, all of those matters other than extradition are matters within the devolved competence of the Scottish Government. Even in relation to extradition, however, you will be aware that requests for extradition are made to the Lord Advocate in Scotland.

My concerns will be obvious.

First, despite it being known that Libya was seeking such an agreement, at no stage of which I am aware was there any consultation on such an agreement with the Scottish Government, with the Justice Department, or with me as First Minister, prior to the signing of the memorandum. Even if it is to be the position of the UK Government that there is no strict legal requirement for that consultation, it is surely a matter not just of courtesy but of good government that such consultation should have taken place.

Secondly, and leaving aside the other matters in the memorandum, the question of prisoner transfer is complex and sensitive. As I understand it, there are a number of Libyan nationals in UK custody. However our responsibility reflects particularly on Abdelbaset Ali Mohmed Al Megrahi who was convicted in a Scottish Court in 2001 of the Lockerbie bombing which remains the most serious terrorist atrocity carried out in the UK. I want to make you aware of the complexities of that case.

You will be aware that firm undertakings were given by the UK Government, by the Scottish Law Officers and indeed by the Secretary General of the United Nations that any sentence would be served in Scotland. To learn that the general issue of prisoner transfers with Libya might be under unilateral review without the opportunity to make a contribution to those deliberations is remarkable given the responsibilities devolved under the Scotland Act 1998. Moreover, it may have been brought to your attention that Abdelbaset Ali Mohmed Al Megrahi currently has a case before the Scottish Criminal Cases Review Commission which may result in his case being sent back on appeal to the High Court in Edinburgh for review. I am sure you would agree that the prosecution of the Lockerbie case was an endorsement of the substance and rigour of the Scottish legal system on an international stage. You have to be aware that it is thought that there is a danger that some could argue that this Memorandum impacts on due process.

Obviously, given the absence of any meaningful contact from your officials, there may be aspects of this of which I am unaware. I have seen the Memorandum and note the reference to the other jurisdictions within the UK and the need to obtain agreement in order to progress. That said, having identified the need for those discussions I confess to being slightly at a loss to understand why they did not take place in advance of any Memorandum being signed.

None of these concerns should obscure our shared interest in expediting matters and indeed the important work in seeking closer co-operation with Libya. I am happy to reiterate that commitment. However, any such change of approach must be carried through by dialogue and discussion, and with total regard for due process of law.

That said, it does appear obvious that almost no thought has been given to the role of the Scottish Government and the provisions of the Scotland Act before this Memorandum has been signed. I regret that and would ask that an early meeting be arranged - presumably between the Foreign Secretary and the Cabinet Secretary for Justice in the Scottish Government.

Moreover, the breakdown in communication on this matter does point to a need for more careful thought on issues in which the Scottish Government has responsibility and how that guidance can be usefully communicated to the UK Government in order to ensure that there is no repeat of this unfortunate process.

As ever, I remain more than willing to discuss these matters directly if you felt that would be helpful.
Alex Salmond MSP
St Andrew's House
Regent Road,
Edinburgh