This morning's Scotsman is making great play on what it's portraying as a volte-face by Kenny MacAskill on the release of the Lockerbie bomber on compassionate grounds. Eddie Barnes' story contrasts the justice secretary's portrayal of the original decision as one entirely at his own discretion - "these are my decisions and my decisions alone" - with yesterday's claim by Mr MacAskill that it was not a "judgement call", saying he was simply "exercising my duty" as the minister undertaking an act bound by "rules and regulations".
The newspaper's front page headlines "Wriggling MacAskill tries to get off the hook", thus alluding to the current political pressure emanating from the United States, not to mention the fact that Abdelbaset Ali Mohmed al-Megrahi is still alive eleven months after it was claimed he had only three months left to live.
Interestingly, Mr MacAskill's change in stance in one way represents the reverse of what happened during a political crisis which affected one of his cabinet colleagues earlier this year. It should be recalled that Nicola Sturgeon claimed that she had a duty to represent convicted fraudster Abdul Rauf because he was a constituent of the health secretary and had asked for her assistance when facing a jail sentence. Ms Sturgeon's subsequent mea culpa and acknowledgement that she had no absolute duty or obligation to represent a constituent gained the plaudits and was generally viewed as a skillful piece of political maneuvering.
On the other hand, Mr MacAskill is now trying to portray his original discretion as a duty in order to extricate himself from the political difficulty but, unlike Ms Sturgeon, seems to be providing opponents with even more ammunition.
Moreover, Ms Sturgeon's reversal effectively righted a wrong and confirmed that she in fact had a mere discretion rather than a duty to act for constituents. Mr MacAskill, however, seems to in effect be misrepresenting the legal position. Indeed, the Scotsman quotes a Scottish Government spokesman as saying: "As justice secretary, he does have the discretion to look at the advice and he could have decided, 'I am going to ignore that'."
Thus Ms Sturgeon admitted that she was wrong on the legal position and had a discretion rather than a duty, and consequently dug herself out of a political hole. Mr MacAskill seems to be wrong in now saying that he had a duty rather than discretion and seems to have grabbed hold of a shovel to dig himself further into his hole, as well as providing a stick for his opponents to beat him with.
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The only flaw in the Scotsman's story is that it is rubbish. Kenny MacAskill has not changed his stance in any way - which perhaps explains why I can't see any other newspaper carrying the same story.
"...not to mention the fact that Abdelbaset Ali Mohmed al-Megrahi is still alive eleven months after it was claimed he had only three months left to live."
Who claimed that? Because Kenny MacAskill never. Maybe some tabloid papers have taken the wahatw as seen as a reasonable prognosis of life scale and made out that it would be so.
And "portrayed" is a good word to decsribe this article. It's simply rubbish. The worst type of journalism makes claims that have never been made.
For example: "Freeing the bomber was, he added, "a decision that I had to take"."
No MacAskill was saying that THE DECISION on whether to free the bomber was a decision he had to take.
The clue to how rubbish it is is that only Richard Baker is eager to be quoted.
And "growing confusion over the case"?
But no explanation what that confusion is.
I've expected better from you Stuart. You have been fairly reasonable to date. But this....
I have to agree with Indy. The Scotsman story following that headline is a disgrace. It barely even counts as tabloid sensationalism given how off beam it is.
I don't know how many times I've heard Kenny MacAskill play a straight bat explaining clearly and precisely the law and his reasoning for making the decision he came to.
On the other hand, I've yet to read a single sensible uttering from Richard Baker on anything... and would be grateful if someone could explain to me how he came to be Labour's justice spokesman... beyond the £520 he slipped Ian Gray.
Indy
The Scotsman may have sensationalised and overegged the pudding a bit, but at the very least there's definitely a change in emphasis in what KMcA is saying, and thus worth highlighting in my opinion.
KMcA would hardly be the first politician to do this and the Scotsman would hardly be the first newspaper to draw attention to such a matter, even if the change is merely one of nuance, but I think it's a bit more than that.
Anon
Indeed, you can perhaps take issue with precisely what the prognosis was on al-Megrahi, but the purpose of the post wasn't to get bogged down on that, but I take your point.
For example: "Freeing the bomber was, he added, "a decision that I had to take"."
No MacAskill was saying that THE DECISION on whether to free the bomber was a decision he had to take.
If so then he should have said it was the DECISION rather than FREEING THE BOMBER.
The decision he had to take was WHETHER OR NOT to free the bomber, whereas the quote makes it sound like he had no discretion in the matter.
And did you read the whole article? You say that only RB was eager to be quoted, but Cathy Jamieson was as well, and clearly she's an objedtive source ;0)
Jim
"I don't know how many times I've heard Kenny MacAskill play a straight bat explaining clearly and precisely the law and his reasoning for making the decision he came to."
But perhaps that's the point - he's not playing quite such a straight bat now?
"But perhaps that's the point - he's not playing quite such a straight bat now?"
The point is that he is playing the same straight bat, but Eddie Barnes would like to portray it as otherwise. Quite why the Scotsman and the opposition parties seem so beholden to the senate of a foreign state and desperate to do their dirty work in smearing our country and it's institutions is beyond me.
There is absolutely no change in emphasis in what Kenny MacAskill has said and continues to say.
That is, frankly, why it is all becoming a bit boring. I could write the script myself I've heard it so often.
That's why I can state categorically that at no point, ever, in any universe, has Kenny MacAskill ever referred to himself as "freeing the bomber".
That is a journalistic phrase. It is not a phrase that Kenny MacAskill would use.
He may have referred to himself as being duty bound to make a decision on the application, as indeed he was, but if he started babbling about freeing the bomber I would take it as a sign of incipient madness rather than a change of nuance!
Hi Stuart
The Scotsman story is merely the fringes of the real story. This is about BP and the US. Any new angle on 'the decision' should be read in that context.
I was open at the time about disagreeing with the release, and still do. But I respected the fact that this decision was for our Justice Secretary to make. If it had been Richard Baker making that decision, or another, I would have still respected the process.
The real indemnity here is that the US thinks that it is the UN, calling ad hoc witnesses at short notice in a truly questionable process. And then David Cameron abuses the Scottish Judicial system on the world stage. Wanton disrespect.
What I really want to know is if Blair intended al-Megrahi's prisoner transfer so that BP could have Libyan drilling rights, and secondly, who really was guilty in the Pan Am disaster. I suspect I'm not alone in wanting these answers, but The Scotsman's partisan, parochial and sensationalist piece suggests they couldn't give a damn.
Jim said:
"The point is that he is playing the same straight bat, but Eddie Barnes would like to portray it as otherwise. Quite why the Scotsman and the opposition parties seem so beholden to the senate of a foreign state and desperate to do their dirty work in smearing our country and it's institutions is beyond me."
Well I can't answer for Eddie Barnes, but Ithink there's a difference between being "beholden to a foreign state" and holding Mr MacAskill to account. Personally I'm not really interested in the USA's take on this, but I am interested in K MacA's flip-flopping!
As for "smearing our country", I thought an essential point of Scottish Nationalism was smearing another state, namely the UK!!
But coming back to the essential point, it seems to me that from the evidence cited in the article - see below - K MacA is defo being very defensive about his decision, and perhaps even trying to shft the blame away from himself.
-----------------------
The justice secretary referred to reports he had received from three separate bodies - the Prison Service director of health, the governor of Greenock prison and the parole board - which showed Megrahi met the criteria for release.
With those reports in his hand, Mr MacAskill claimed he had little option to take. "I don't think I had a great deal of discretion at all," he said.
Backing that up, he said, was the fact that no former justice minister had ever gone against such advice. "Every application for compassionate release that has met the criteria has been granted by me and by my predecessors," he said.
"That is the correct position in Scotland. It is not for the justice secretary to look behind the information that comes."
Pressed on whether the eventual decision was still a "judgment call" on his behalf, he replied: "No. It's a matter of me exercising my duty as cabinet secretary for justice. The rules are laid down in statue. They are the rules for all prisoners.
"Every application for compassionate release irrespective of the crime has been granted by every cabinet secretary for justice irrespective of political affiliation."
He went on: "We do require to follow the rules and regulations."
Indy, indeed "freeing the bomber" was clearly Eddie Barnes' own paraphrasing of the justice secretary's words, but I don't think that detracts from the essential change in emphasis, and indeed I think your drawing attention to this is another example of trying to detract from the substantive issues ;0)
As for the "duty" aspect, surely the point is that Kenny MacAskill is now trying to portray his decision as involving less discretion than he actually had?
The point about him having a 'duty' to make a decision is a non-issue - no one is disputing that.
What matters is the balance of duty/discretion vis-a-vis releasing al-Megrahi.
Hi Andrew
Yes, I would agree that there are wider qustions that need to be answered, but I think the MacAskill question is particularly pertinent from the domestic perspective, so I think it's perfectly legitimate to raise it.
As regards the other issues, I think indeed the Scotsman made the point in a leader that the US Congressmen are wrong to conflate the MacAskill and BP issues.
As for Cameron's "wanton disrespect" of the Scottish judicial system, I hardly think that's confined to any particular party or strand of opinion, and as I said earlier there seems to be plenty of "wanton disrespect" in Scottish Nationalist thinking when it comes to the UK, which is perfectly legitimate, but surely it has to work both ways?
Indeed, there seems to be plenty of Scottish Nationalist criticism of the Scottish judicial system, and in fact your own post seems to cast doubt upon the efficacy of the Megrahi verdict?
No Stuart there is really and truly no change in emphasis. It may be that the Scotsman/BBC has just cottoned on to the fact that compassionate release is a judicial process in which there are rules and regulations but Kenny MacAskill was always very clear about that.
Read his statement when he announced that he had agreed to the application:
"This crime precedes both the election of our Government and even the restoration of a Parliament in Scotland. I now find myself having to make these decisions. However, the applications have been lawfully made, and I am obliged to address them. Final advice from my officials was given late on Friday 14 August 2009. I have now had an opportunity to reflect upon this.
Let me be absolutely clear. As Cabinet Secretary for Justice in Scotland it is my responsibility to decide upon these two applications. These are my decisions and my decisions alone.
In considering these applications I have strictly followed due process, including the procedures laid down in the Prisoner Transfer Agreement and in the Scottish Prison Service guidance on compassionate release."
When he discusses the compassionate release application he says:
"In order to consider the application for compassionate release, I was provided with reports and recommendations by the Governor of Greenock Prison, the doctors and prison social work staff. Also, as laid out in statute, I have consulted the Parole Board. This is the normal process for consideration of an application for compassionate release and my decision is in accordance with all the advice given to me."
What he did not say was that, had he refused the application on essentially political grounds, that would almost certainly have been successfully challenged by judicial review according to most lawyers.
I do not think it would have been appropriate for him to say that at that time but nevertheless it is true. He only had discretion to act within the law.
I can only conclude by observing that no other paper, journalist or commentator has accused Kenny of "flip-flopping" or observed any change in his position. That either means that Eddie Barns is the most observant journalist in the world or it means he got it wrong.
I suggest that the latter is the most likely explanation.
Well your point about Eddie Barnes is a fair one, Indy, but I don't think that necessarily means that others don't agree with his perspecitve.
However, the point about the stuff you quote is that if Kenny MacAskill was effectively bound by established precedent on the compassionate release of dyring prisoners, then the whole rigmarole last August was basically a sham.
Whether this was the justice secretary's fault or that of the wider political/judicial process is a moot point, but I think we were led up the garden path in thinking that he had some sort of discretion in the matter, whereas now it's being claimed that he was bound by precedent.
If he'd said then what he's saying now then the whole thing might have been put to bed ages ago, assuming it ever became a prominent issue in the first place.
Of course he had some discretion in the matter. He could have ignored the reports given to him that supported compassionate release and said no.
His decision would very probably then have been taken to a judicial review. In that case the court would decide. But that would have been a wee bit evasive, don't you think, possibly even laying him open to accusations of cowardice.
And politically, if the court had found against a no (as most lawyers seem to think it would) and effectively over-turned the refusal that would have opened up a whole different can of worms and we would all be arguing about whether courts should be able to over-rule government ministers.
But what you're saying is that legal precedent and the courts had effectively decided the case before the justice secretary had as much as considered it, thus he effectively had no discretion.
Your point about the potential political can of worms if the courts had imposed a 'yes' is clearly a valid one, but it's not really any less valid if MacAskill had merely released Megrahi to avoid a court battle: the court would have still in effect overruled him - to use your words - the only difference being that he would have complied with the courts' wishes because he knew the end result would have been the same.
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