Libya

Debate between Lord Boyd of Duncansby and Lord Trefgarne

Friday 1st April 2011 Lords Chamber

[Lord Boyd of Duncansby]

My Lords, as Lord Advocate I prosecuted the Lockerbie trial. I mention that not to claim any great insight into the present situation in Libya. Nor do I claim that the focus of attention should be on that one horrific incident, although I can at least bear witness to the horror of one aspect of Gaddafi’s terrorism. The priority has to be the protecting of the civilian population, while ensuring a transition to a democratic state founded on the rule of law and respecting human rights. Thereafter, there are any number of criminal offences that should be addressed.

I mention Lockerbie because it has been central to our relations with Libya over the past two decades and more, and because the trial has some lessons for us in the pursuit of justice and the rule of law. Before I go any further, I say that I am speaking strictly for myself as it is four and a half years since I have been in the Crown Office and had any contact with any of the evidence. Megrahi was convicted of the murder of 270 people: 259 on Pan Am 103 and 11 on the ground in Lockerbie. Scottish terms of conviction and indictment also narrate certain factors which go along with the conviction. In this case, Megrahi was convicted while acting along with others, who were unnamed. Moussa Koussa’s defection to the United Kingdom and his connection to Lockerbie have been much commented on in the past 24 hours. From my knowledge, which I emphasise is elderly, he is a “person of interest”. I am pleased that the Prime Minister has acceded to the Crown Office’s request that prosecutors and police should have access to him. However, he is no more than that. No warrant has been issued for his arrest, and there are others who would also be of interest. That should be borne in mind, and I say no more on the matter.

The other aspect of the conviction was that Megrahi was acting in furtherance of the aims and objectives of the JSO, the Libyan intelligence services, so the court was satisfied of the culpability of the Libyan state for what happened, acting through the agency of its intelligence service. The conviction was important in bringing to justice one of the people who was responsible for that atrocity. The trial was innovative both in being in the Netherlands and in the adaptations that were made for that purpose. I pay particular tribute to the late, lamented Robin Cook, the Foreign Secretary who was particularly important to that, and to the Foreign Office, which set it up.

Thereafter, the road becomes somewhat trickier. I choose my words carefully: there were times, more than once, when I had the strong impression that Megrahi’s conviction was seen as an inconvenience and an impediment to developing relations with Libya.

I acknowledge that the rapprochement was significant and important because it led to the renunciation by Gaddafi of weapons of mass destruction. Other claims that were made for it, such as the provision of intelligence on al-Qaeda, I take with, frankly, a little more scepticism, particularly as Gaddafi is now claiming that virtually everyone who is involved in the rebellion is motivated by al-Qaeda. However, the negotiation of the prisoner transfer agreement, in the expectation—and, I suspect, the hope—that it would lead to the return of Megrahi to Libya, was an error of judgment. It was in the face of an agreement with the United States that, if convicted, he would remain in Scotland and serve his sentence there, and, importantly, of commitments that were given to American relatives—often through me, acting, as I believed at the time, on the advice of the Government of the day.

The announcement of the enhanced judicial co-operation, which included a commitment to the prisoner transfer agreement, at the same time—and I think in the same press release—as the contracts for BP, did nothing to dispel the impression that we were prepared to compromise on our principles of justice. This, along with the eventual return of Megrahi, undermined the confidence of the United States and of American relatives in our commitment to justice on this issue. One has only to have regard to the letter from Robert Mueller to the Justice Minister in Scotland, Kenny MacAskill, to understand the depth of anger that was provoked. I remind the House that if, and I stress “if”, there were to be any prospect of any new trial arising out of the Lockerbie incident, or possibly on other matters that need US co-operation, that co-operation has been put in difficulty as a result of what was done by the British and Scottish Governments. Relations between prosecutors remain good but between Governments they do not.

[Lord Trefgarne]

My Lords, might I ask the noble and learned Lord a question? He appears to have overlooked the view of the Scottish Criminal Cases Review Commission on this matter; it found the conviction unsafe.

[Lord Boyd of Duncansby]

It did not. It said that there may have been a miscarriage of justice and referred it back to the Appeal Court. Had the appeal gone forward, it would have been the Appeal Court that ruled on that. For myself, I think it was unfortunate that that appeal was withdrawn, since the matter was then not dealt with. However, there now seems to be at least an acceptance that Libya was responsible for the Lockerbie bombing.

At the end of the trial, Louis Freeh, the then director of the FBI, telephoned me. One of the messages that he wanted to give me was that it demonstrated to the world, particularly to the United States, that we can bring justice home to terrorists with patience and international co-operation, and that the US could learn that it did not need a military response. That lesson has been lost or obscured in the aftermath of 9/11, but it is even more relevant now.

We need to bring through a strong commitment to international justice. One of the most powerful of the speeches that I have listened to today was that of the noble Lord, Lord Alderdice, who outlined the reason for that. Through our present mission, we are promoting that international justice. I accept with limitations that we are doing the right thing and that it is legal, but we must go further.

What we have seen and witnessed in Libya is truly shocking: enforced disappearances, beatings, torture, horrific rapes and extrajudicial killings, as well as attacks on civilian populations. Holding people to account for these crimes is of vital importance, and part of that is ensuring that people are brought before the International Criminal Court or other courts as appropriate. It sends out a powerful message, not just to dictators and despots but also to those who chafe under such tyrannical regimes. If we are to build a world where human rights are universally respected, our commitment to those fundamental values must not be waived in the face of expediency.