Prisoner Transfer Agreement (Libya)

Damian Collins Excerpts

Tuesday 11th January 2011 Westminster Hall

[Damian Collins (Folkestone and Hythe) (Con)]

Today I want to ask questions relating to the negotiation of the prisoner transfer agreement with Libya, whether its conclusion made the release of the Lockerbie bomber, al-Megrahi, more likely, and whether, despite assurances that the decision to release him was one for the Scottish Executive to make alone, the UK Government set the stage for the release and could have intervened to stop it had they wished to do so. I am grateful that the Minister is here to respond to the debate, because his Department played a pivotal role in negotiating the agreement and advising Government Departments and the Scottish Executive on its consequences.

In December 2010, members of the United States Senate published their report on the release of Megrahi. Their conclusions are not much different from the views expressed by many other individuals who have followed the affair. They conclude that the UK Government were prepared to agree in principle to the release of al-Megrahi in return for the protection of British commercial interests in Libya, particularly those in the energy industries, and that they made it clear to the Scottish Executive that they wanted Megrahi to be released and did nothing to stop that happening. Many people find it hard to believe that the UK Government were powerless because the release was entirely a matter for Scotland and that they rightly chose to apply no pressure to Scottish Ministers on that. However, Parliament has not had the opportunity to explore the matter properly.

Like many other Members, I believe that the release of Megrahi was wrong, and like the authors of the US Senate report, I believe that there should be an inquiry to establish exactly how and why the release came about. I would rather see such inquiries and reports produced by Parliament or the UK Government. I also urge the Cabinet Secretary to conclude his review of the unpublished Government papers relating to the negotiation of the prisoner transfer agreement and the release of Megrahi. He was asked by the Prime Minister to conduct that review last summer, and we are eager for its results.

The purpose of the debate is not to bring forward any criticism of the Libyan Government, who have been clear about their intentions in the negotiation of the PTA and always intended that successful negotiations should lead to Megrahi’s release. One might wonder at the significance of the agreement for them otherwise, as only 20 of the 13,429 foreign prisoners in the UK are Libyan, compared with 188 from neighbouring Algeria.

The former Foreign Secretary, the right hon. Member for South Shields (David Miliband), stated in an interview that to link the prisoner transfer agreement with Libya to British commercial interests in that country was

“a slur both on myself and the Government”.

He said in the House of Commons during a statement following the release of Megrahi that

“there was no deal for the release of Megrahi in respect of trade, and that is absolutely right.”—[Official Report, 12 October 2009; Vol. 497, c. 35.]

However, we know from the records already released by the UK Government that that link was expressly made in the negotiations for the agreement.

The key period of the negotiations came in late 2007. On 23 September that year, the then Lord Chancellor, the right hon. Member for Blackburn (Mr Straw), offered an unequivocal assurance to the Scottish Government that

“My officials will make clear to the Libyan authorities that without this addition”—

of a clause excluding Megrahi from the agreement—

“it will not be possible to conclude a prisoner transfer agreement”.

However, on 17 December a Ministry of Justice internal briefing note to the PTA negotiations confirmed that the Libyan Government had threatened to halt commercial contracts unless the PTA was agreed. It stated:

“Despite a consistent negotiating line that the case of the Lockerbie bomber would not be covered by the PTA, the Libyans have continued to press for a general agreement and linked the fate of some commercial contracts to its successful conclusion.”

The British objection to the inclusion of Megrahi within the terms of the PTA was then dropped.

Why did the Government drop their insistence on a clause excluding Megrahi from the PTA, and what advice did officials give to Ministers on their decision to drop the clause? They must have known that that would lead to an application from the Libyan Government for his release. Was the Ministry of Justice satisfied with that? Had the then Lord Chancellor been successfully lobbied by representatives of British commercial interest—the US Senate report states that he was lobbied by BP on three separate occasions—or was he lobbied by his colleagues in Government and convinced that it was not a fight worth having? The picture remains unclear. Former Ministers have acknowledged that it is perfectly proper for a Government to consider the importance of commercial relations as part of improving relations between Britain and Libya, but they were reluctant to make the link publically in that instance.

Ministers seemed at pains, once the agreement had been made on the PTA, to stress its relevance to the Libyan Government’s long-standing desire to see Megrahi released. The former Europe Minister, Bill Rammell, wrote to the Libyan Government following the negotiations to explain

“the processes that would apply as regards any consideration of transfer or compassionate release on licence of Mr Megrahi”

and noted how the PTA was “relevant” to this. Mr Rammell also confirmed to the Libyans in a meeting in Libya that the Government did not want to see Megrahi die in prison. Once agreed, the PTA, although offering no guarantees, was clearly a mechanism designed to support that wish. The former Lord Chancellor, the right hon. Member for Blackburn, also advised that a decision on the transfer of a prisoner under the terms of the PTA

“may be subject to judicial review”.

Therefore, even if a Scottish Minister had refused release, the decision could have been reviewed by the courts. Is that still the view of the Ministry of Justice on how the PTA could work in practice?

Despite the often repeated line from Ministers that the final decision to release Megrahi was one for Scottish Ministers, the sensitive nature of his release, its consequences for international relations and the fact that his imprisonment was the result of his conviction for an international terrorism offence, meant that the UK Government could and should have intervened. That was certainly the view of many people around the world who were so aggrieved by his release, particularly in the United States. It is an issue that the US Senate report also explored. Does the Ministry of Justice believe that the UK Government could have intervened in such a way had they wished to do so? The principle seems to have been conceded by the former Foreign Secretary in his statement to the House of Commons in October 2009, when he said:

“Notwithstanding that any decision on release was for Scottish Ministers and the Scottish judicial system, the UK Government had a responsibility to consider the consequences of any Scottish decision… British interests… would be damaged—perhaps badly—if Megrahi were to die in a Scottish prison.”—[Official Report, 12 October 2009; Vol. 497, c. 35.]

In that case, the previous Government seemed to give greater consideration to the impact of feelings between Britain and Libya than with the USA if he was released. It is clear from the right hon. Gentleman’s remarks that there was a foreign policy dimension to the decision, and this was a matter for the UK Government to consider.

I do not wish to go into the question of the diagnosis of Megrahi’s cancer or his life expectancy. Others can draw their conclusions from the fact that a man who was given three months to live more than 18 months ago is still with us. That may say something about the quality of his diagnosis in Scotland, or the quality of health care and treatment in Libya. When the moment for Megrahi’s release came, the Scottish Government decided that they could not accept it under the PTA as that would compromise an understanding that had been made between the UK and the USA, and so they released him on compassionate grounds as a free man, rather than transferring him as a prisoner. Whatever path they had taken, once the PTA had been agreed, only one outcome looked likely.

The memorandum of understanding between the UK and Libyan Governments that led to the negotiation of the PTA was agreed in the same month that BP signed its agreement with Libya. The relationship between UK commercial interests and the fate of Megrahi has been a constant thread throughout the proceedings. Their conclusion angered many people around the world, particularly the families of the Lockerbie bombing victims. I ask that we have either a full disclosure from the Government of the decision-making process that led to that, or an inquiry to establish why that happened.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

I would like to follow the usual courtesies and congratulate my hon. Friend the Member for Folkestone and Hythe (Damian Collins) on securing this debate. The prisoner transfer agreement with Libya has attracted significant parliamentary and media attention since the negotiations began in 2007, and I know that since his arrival in the House, he has sought information relating to those negotiations and the subsequent release by the Scottish Executive of Abdelbaset al-Megrahi. I hope during the course of my remarks to address a number of the points that he made, and I hope that I will have some satisfactory news about the Scottish Cabinet Secretary at their conclusion.

Let us be clear: Abdelbaset al-Megrahi was convicted of causing the largest peacetime loss of life on British territory. His actions and those of his backers resulted in the death of 190 Americans, 43 Britons and 19 people of other nationalities. Shortly before Christmas, families and friends of the innocent victims commemorated the 22nd anniversary of their murder. I am sure that their pain is still great, and that the memory of what happened that night will live with them always. The release of al-Megrahi on compassionate grounds can only have added to that pain. In that sense, I echo the comments of my hon. Friend the Member for Harlow (Robert Halfon) at the conclusion of his remarks.

Al-Megrahi’s release from custody was a decision made solely by Scottish Ministers in accordance with Scots law. My hon. Friend the Member for Folkestone and Hythe will be aware that the Scottish First Minister and the Scottish Minister for Justice responsible for the decision have made that clear in their public statements, and that the Scottish Minister for Justice has also set out publicly the reasons for reaching that decision. Many hon. Members disagreed with it. At the time, my right hon. Friends the Prime Minister and the Foreign Secretary both condemned the decision to release al-Megrahi on compassionate grounds, and described it as wrong and misguided. Nevertheless, it is important to recognise that the decision to release al-Megrahi was a legitimate decision for the Scottish Executive to make.

I now turn to the negotiation of the prisoner transfer agreement, but I should first make it clear, as my hon. Friends the Members for Harlow and for Folkestone and Hythe did, that it was not the means used to facilitate the release of al-Megrahi. Indeed, his request for a transfer to a Libyan prison was refused by Scottish Ministers, in line with the terms of the agreement.

Hon. Members will be aware that in May 2007, the then Prime Minister, Tony Blair, visited Libya for discussions with the President, Muammar al-Gaddafi, and that during the course of that visit a memorandum of understanding was signed between the United Kingdom and Libya which provided for the negotiation of four agreements in the field of judicial co-operation. The agreements related to extradition, criminal and civil law, mutual legal assistance and prisoner transfers. They were intended, in part, to mark the return of Libya to the international community following its renunciation of support for international terrorism and its pursuit of weapons of mass destruction. That was an important policy objective of the UK Government and their European partners at the time.

Responsibility for the negotiation of prisoner transfer agreements on behalf of the UK rests with the Ministry of Justice. Since 1985, the UK has negotiated 23 bilateral prisoner transfer agreements, including the one with Libya. In addition, it is a signatory to two multi-party prisoner transfer agreements. In all, the UK has prisoner transfer agreements with more than 100 countries and territories, so the essence of the fact that there are only 20 Libyans in our prisons is not necessarily unique in terms of the arrangements that we have with other countries. There are not that many Rwandans in our prisons either; again, we have a prisoner transfer agreement with Rwanda.

Negotiation of the prisoner transfer agreement with Libya was conducted over several months by a small team of officials from the National Offender Management Service with the assistance of the Foreign and Commonwealth Office, which is normal practice. The right hon. Member for Blackburn (Mr Straw), then the Secretary of State for Justice, was the Minister responsible for the negotiations. The officials responsible for negotiating the prisoner transfer agreement did so on the basis of a negotiating mandate agreed at each stage with Ministers. At the outset, it included a remit to exclude from the prisoner transfer agreement al-Megrahi and anyone connected with the Lockerbie bombing.

I am sure that my hon. Friend the Member for Folkestone and Hythe will understand that I am bound by convention in what I can say about the actions of a previous Administration. That is particularly the case in describing the motives of the previous Government in seeking to conclude a prisoner transfer agreement with Libya, and their subsequent decision not to insist on a clause that would exclude al-Megrahi from it. In that sense, I am unable to endorse the comments of my hon. Friend the Member for Harlow about its being a secret deal, with devolution being a fig leaf.

The right hon. Member for South Shields (David Miliband), then the Foreign Secretary, made a statement to the House on 12 October 2009 in which he stated:

“In May 2007, Prime Minister Tony Blair made his second visit to Libya. His summit with Colonel Gaddafi at Sirte covered the full range of our interests with Libya. Mr. Blair signed a defence accord and witnessed the public signature of a major BP exploration contract. Also agreed was a memorandum of understanding on negotiations for a judicial co-operation package, including a prisoner transfer agreement and agreements on mutual legal assistance, extradition, and civil and commercial law.

The UK had a model agreement, based on Council of Europe arrangements, that was the starting point for negotiation on our prisoner transfer agreements with any country and that provided the starting point for negotiations with the Libyans. Four points are relevant. First, a PTA provides for prisoner transfer, not prisoner release. Secondly, it provides a framework for transfer, not a right to transfer. Thirdly, a PTA cannot be used when appeals, including by the prosecuting authority, are outstanding, as in this case. Fourthly, Ministers in the sentencing jurisdiction—in this case Scotland—have an absolute right to veto any transfer.

This standard draft had no provision for any carve-out for any named prisoner. However, the Scottish Executive made strong representations for us to seek to alter the standard PTA so as specifically to exclude Mr. Megrahi. The UK negotiation team, led by the Ministry of Justice, sought in good faith to achieve this goal.

The Libyans insisted that the only PTA that they would sign was a PTA without any exclusions. So the Government had a clear choice. We could agree to a standard PTA with no exclusions, retaining for Scottish Ministers an absolute veto over any request for prisoner transfer in the case of Megrahi—a veto which they used in August this year”—

August 2009—

“or we could have ended the negotiations to prevent an application for prisoner transfer. This would have set back our wider national and commercial interests that flowed from normalised relations, as the Justice Secretary has made clear.”

I note the comments of my hon. Friend the Member for Folkestone and Hythe that some of his disappointment with the actions of the previous Administration is caused by the fact that they were not prepared to be clear about the interests at stake. The then Foreign Secretary continued:

“Since the PTA involved no prejudice to the rights of the Scottish Executive, nor pressure on the Scottish Executive, the Government decided it was right to go ahead. The PTA finally took effect in April 2009.”—[Official Report, 12 October 2009; Vol. 497, c. 30-31.]

On whether that decision was correct, I do not think I can add anything to the description of the negotiating process.

There has been speculation surrounding the role that commercial interests—primarily those of BP—played in the decision not to seek the exclusion of al-Megrahi from the terms of the PTA. In July 2010, my right hon. Friend the Foreign Secretary wrote to Senator Kerry, chairman of Senate Foreign Relations Committee, setting out the extent of BP’s involvement. During the several months of discussion in 2007 about Libyan opposition to the possible exclusion in the PTA, there were a number of conversations between BP and the then UK Government. Specifically, there were three discussions between BP and the right hon. Member for Blackburn, or his office, between October and November 2007; at least two contacts in the same period between BP and the then Prime Minister’s foreign policy adviser; and contacts with Her Majesty’s ambassador in Tripoli. During those discussions, the progress of negotiations on the UK-Libya transfer agreement and the likely timing of the agreement being signed were discussed. As BP made clear in its statement on 15 July 2010, it had been made aware by the Libyans that failure to agree the PTA could have an impact on UK commercial interests, including Libyan ratification of the BP exploration agreement signed in May 2007, and it wished to bring that fact to the attention of the UK Government.

[Damian Collins]

For the record, I want to make it clear that the contact of Sir Mark Allen of BP with the right hon. Member for Blackburn coincided with the change in the British negotiating position on the PTA and the decision to withdraw the exclusion of al-Megrahi.

[Mr Blunt]

I confess that I have insufficient detail on the times and dates of all the contacts between BP and the various parts of the Government to be able to agree with my hon. Friend, but I imagine that what he says is probably broadly correct and probably not a matter of dispute. As my right hon. Friend the Foreign Secretary made clear to Senator Kerry, it was perfectly normal and legitimate practice for a British company to draw to the attention of the UK Government the interests at stake.

A significant amount of information relating to the negotiation of the PTA, including correspondence between the then Justice Secretary and Scottish Ministers, has already been made public, and I have drawn upon it in my remarks this afternoon. However, to ensure the fullest possible explanation of the circumstances surrounding the decision, the Prime Minister has instructed the Cabinet Secretary to review the papers to see if more needs to be published about the background to the decision. I know that my hon. Friends eagerly anticipate that report. I can tell them, in civil service language, that it will be published “very shortly”, so I hope that they will not have to wait very long for more information to be placed at their disposal and to see whether it brings new matters to our attention.

I am limited by convention on what can be said about a previous Administration. My hon. Friends have properly drawn the matter to the attention of the House.

[Damian Collins]

The report of the US Senate suggested that the UK Government had legal authority to intervene in the matter. In my remarks, I asked whether that was the view of the Ministry of Justice.

[Mr Blunt]

I am grateful for that intervention; I meant to pick up on my hon. Friend’s point. I am advised that, no, it is not a matter on which the UK Government would be in a position to intervene. It is properly a matter for the sentencing authority—in this case, that is Scottish Ministers—to make the decision. They cannot be second-guessed by the UK Government exercising a different authority under the agreement.

My hon. Friend also asked about judicial review of the Scottish decision. The truth is that any prisoner could seek judicial review, and the outcome would be up to the judge who heard the review, but I am advised that it is very difficult to see how a review in those circumstances would meet the test for judicial review or for a decision to be overturned.

Following the request from the Prime Minister, we can look forward to more information from the Cabinet Secretary in a short time. I note that my hon. Friends have urged that the review be brought to a rapid conclusion, and I am confident that their request will be noted and accepted.