There are many small gems to be polished from these discourses, including the observations (from my memory - any mistakes are mine) that "MacAskill's practice used to do fine with the judicial review work" - Kenny was a court lawyer for a couple of decades and was a partner in Erskine MacAskill when he got elected in 1999, and Erskine MacAskill used to be top-ranked in administrative law - leading to much agreement and the putting forward of the angle that this would have meant that he would have considered the possibility of judicial review before taking the steps he took, especially considering that Tony Kelly, Mr Megrahi's solicitor, is a victor of a number of recent landmark cases.
It was also noted that Kenny is a product of Edinburgh University's law school and taught by Neil MacCormick, carrying forward the fine tradition of thinking about law rather than just making a few bob from it. The law school will, of course, be delighted that one of their own has nudged the law forward once again.
One area which I found most fascinating, though, was the debate over Kenny's meeting with Megrahi. It appears that there are some partisan lawyers arguing that he shouldn't have gone to Greenock because it somehow cut across his responsibility to decide on the case. It was opined that there was a base misunderstanding in many of these cases in that the lawyers did the Bob Beamon towards a conclusion instead of waiting for the facts. Ironically, it was put, these are the ones who are always certain that they are correct and who will sneeringly tell people that they know best 'because I am better qualified than you' and inevitably are found not to know best at all. They assumed that MacAskill made the visit as part of the compassionate release process rather than as part of the prisoner transfer process. They also, it appears, confuse themselves over "quasi-judicial" - a phrase they take to mean that the person acting in such a capacity becomes a judge for the purposes of that decision rather than the actualite which is that it is not a judge who takes the decision but that the decision should be taken judicially.
When that confusion is cleared up you are left with the question about whether he should have met Megrahi over the prisoner transfer agreement, and this is where it gets hot. Audi alteram partem - both sides should be heard - leads into a substantial discussion and references to Clyde and Edwards on Judicial Review. Lord Fraser of Tullybelton is quoted therein as ruling that
"One of the principles of natural justice is that a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him, so that he, or someone acting on his behalf, may make representations, if any, as he sees fit. That is the rule of audi alteram partem which applies to all judicial proceedings, unless its application to a particular class of proceedings has been excluded by Parliament expressly or by necessary implication."
This leads you into the examination of whether there was a judicial order to be pronounced in a prisoner transfer hearing. Given that the prisoner would be moved across international borders should the PTA be implemented, it is surely incontestable that this is a judicial order being considered?
That moves us onto what Kenny MacAskill said were the reasons for his visit:
Prior to being ratified, the prisoner transfer agreement was scrutinised by the Westminster Joint Committee on Human Rights. It was the first PTA that did not require the consent of the prisoner. As a result, Jack Straw, the United Kingdom Secretary of State for Justice, gave a commitment that in cases in which applications were not submitted personally by the prisoner, the prisoner must be given the opportunity to make representations. Mr al-Megrahi had the opportunity to make representations and he chose to do so in person. That was his decision. It would have been outwith the tenets of natural justice to refuse that request; therefore, I was duty bound to meet him.
He is saying that Megrahi had the right to make his representations in person. Jack Straw's pledge was that prisoners who were subject to a transfer request which was made by a third party would have the opportunity to make representations. His letter indicated that those representations would be in writing. Mr Megrahi had wanted to make his representations in person. What Kenny did, I assume in order to fulfil his duties in his judicial decision, was visit him in order to gather all available information and make a decision in full possession of the available facts.
If we can turn again to Clyde and Edwards on Judicial Review, it says:
It is not fair for one party to be allowed to lead evidence and for the other party to be denied the opportunity of doing so.
and
Where there is no statutory requirement for any hearing it has to be a matter of circumstances whether any obligation lies on the decision maker to hear the parties, whether orally or in any other form. The guiding principle is that of fairness.
and
A right to be heard may arise by express statutory provision. ... Alternatively, the right may arise by virtue of a legitimate expectation.
In the interests of natural justice, the Cabinet Secretary for Justice was obliged to meet Mr Megrahi. Jack Straw had indicated that representations were possible so Mr Megrahi had a legitimate expectation of a hearing. Mr Megrahi wanted to make those representations in person, the guiding principle of fairness suggests that that should be allowed. Others had had the chance to make representations, Kenny had consulted relatives by videoconference and governments of three countries and it would not be fair for those parties to have been allowed to make representations when Mr Megrahi was not.
I agree with the general consensus of the legal types with whom I conversed (academics as well as those actually gainfully employed) that MacAskill was right to meet Megrahi.
On a couple of wee side issues, Alan Cochrane's piece is well worth reading, the medical director of CancerPartnersUK examined Megrahi on behalf of the Libyan Government and said he had "only a very short period of time to live", and I've been pointed to a site I'm told is good and seems no bad.
Mind how you go!
