Not enough separation in Scotland

Kenny MacAskill MSP - Scottish Cabinet Secretary for Justice

The recent decision by Scottish justice sectary Kenny MacAskill to free, on compassionate grounds, the Lockerbie bomber Abdelbaset Ali al-Megrahi has provoked a storm. American politicians are complaining, British politicians are complaining, and now Scottish politicians are complaining. An emergency debate was held in the Scottish Parliament to discuss the matter, with opposition politicians lining up to criticise the decision that was taken. (Read the statement by Kenny MacAskill here.) I am not sure they are behaving in the correct manner.

Members of the government in Westminster have been careful in public not to criticise or comment on the decision. It is a devolved matter, they say, and as such out of their hands. While they have no formal say in the matter, they might well have opinions (in fact, I am sure they do have opinions), but nevertheless they keep those opinions to themselves.

At Holyrood, though, things are more complicated. The decision, in law, is one for the justice secretary. Scottish law permits a prisoner to be released from jail early on compassionate grounds: this has been accepted as applying if s/he has less than three months to live, a judgement made on the strength of independent medical advice. But what kind of a decision is it?

Some MSPs are complaining that the decision has brought the Scottish political system into disrepute. It would have been possible for Mr MacAskill to have bowed to political pressure and insisted that Mr Megrahi should die in jail. But is that what political pressure should be used for?

Think of it this way. Instead of there being a parliamentary debate after the decision had been taken, imagine that there had been a debate beforehand: last Monday afternoon, say, while Mr Megrahi was still in Greenock prison. What would we make of that spectacle, elected politicians pronouncing on whether or not a particular prisoner should remain in jail? Should the individual cases that make up penal policy be decided on the basis of what is convenient for our allies? Or what happens to suit the leader writer in the Daily Mail? The idea of the separation of powers keeps the judicial branch of government away from the executive and the legislature. Asking elected politicians to take judicial decisions is very dangerous.

Now, anyone who was unwilling to express an opinion before the decision was taken has got no right to express an opinion now. It can’t be right for opposition politicians to hedge their bets, waiting to see how Mr MacAskill’s decision was perceived around the world before making it public whether or not they agreed with it. If MSPs think that this was the wrong decision, either they should point out how Mr MacAskill has not followed the law – and they can’t, because he has – or they should change the law so that this cannot be repeated. Which of them is willing to do this? The law on compassionate release was passed in 1993 and all four parties have been in government for at least some of the time since then and not one has moved to prevent it being used in this way. The argument in Mr MacAskill’s statement that compassion is a Scottish value appears to be correct.

The separation referred to in the title of this post is not between England and Scotland – I think that would be outside the scope of the blog – but between politicians and the judiciary. I am very uncomfortable with the idea that politicians should be sitting in judgement on individual cases like this. They should pass the law on how decisions should be taken and then leave it to an independent judiciary to take those actual decisions. The constitutional set-up in the United Kingdom suffers from a lack of logic and clarity on the separation of powers, and the political storm provoked in this case is the result. Some people sometimes dismiss the federalist interest in constitutional arrangements as being a distraction from real politics. This case is further evidence that the opposite is true.

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