On Thursday 20 August 2009, Justice Secretary Kenny MacAskill announced that Abdelbaset Ali Mohmed Al-Megrahi, convicted of the 1988 Lockerbie bombing, was to be released from Greenock Prison on compassionate grounds after medical reports showed that he has terminal cancer. Here Professor Alan Miller, Chair of the Scottish Human Rights Commission, reflects on the questions still surrounding the Lockerbie case and the decision to release Mr Megrahi. You can read the full transcript of Mr MacAskills announcement and watch video at the Scottish Government website. You can also listen to Professor Miller speaking to the BBC News Channel.

Professor Alan Miller, Chair, Scottish Human Rights Commission

"EACH day that passes since Abdelbaset Ali Mohmed Al-Megrahi was released brings more questions than answers into the public arena. However there are three critical questions where there are answers to be considered.

Firstly, was it right for the Justice Secretary to give compassionate release to Megrahi? Yes, he made the right call for the right reasons. But it should not have been in his gift to do so. Allowing a politician to be the final decision maker over the liberty or detention of any individual is a serious weakness in the system. It unnecessarily and unhelpfully politicises the decision and the decision making process. In fact, political influence relating to the detention of prisoners has been largely been removed over the past decade, but the events of the past few days have illuminated that the pockets of political discretion which remain are an unhealthy anomaly. A different politician may have made a different decision over compassionate release for Megrahi. An independent and impartial tribunal or court would be far better placed to consider the evidence and make a transparent ruling, and removed the volume of unhelpful political and media speculation in the run-up to the announcement on Thursday. To his credit MacAskill appears to have taken the views of everyone into account when reaching his views, but the system should not support this level of political involvement.

Secondly, have the human rights of the victims, their families and Megrahi been recognised and respected over the past two decades? No. The relatives of the 270 people who lost their lives are entitled to an independent and effective investigation into the circumstances of the tragedy – the state has a duty to investigate the circumstances and prosecute alleged perpetrators. Here is where the unfulfilled rights of the families meet the unfilled rights of Megrahi. Compassionate release wasn’t recognition of his ‘human rights’; it was due process under Scottish law. His human right was to a fair trial, including his second appeal. But the UK Government has denied both the families of the victims and Megrahi those rights, by its non disclosure of documentation, an order imposed by the Foreign Secretary. By preventing the release of key documents the UK Government has caused unnecessary delay in allowing the appeal to proceed. The length of time taken to attempt to resolve the issue has contributed to the situation we have now reached where Megrahi’s deteriorating health has regrettably brought the appeal process to an end. The UK Government has denied both the relatives of the victims and Megrahi their rights with these actions, and the public interest requires that all material documents are now released.

What also emerged during the pursuit of these documents is that Scotland didn’t have a system of dealing with the public interest immunity certificates. The Scottish Criminal Cases Review Commission also raised questions about the workings of our criminal justice system, and consideration needs to be given to what changes may need to be made. The Scottish criminal justice system is not perfect.

Lastly, the idea of an inquiry has been raised. An inquiry would only fulfil the rights of the families and Megrahi if it is independent and impartial from the UK government and has sufficient scope and powers – but any public or judicial inquiry constructed by the Scottish or UK Governments or Parliaments would face the same problem as the Appeal Court about document disclosure. So unless the inquiry could overcome this hurdle there would be continued frustration, and to date the UK Government does not give us confidence that they recognise the human rights of the victim’s families in this case.

There seems to be a mood now of ‘nothing can be done’, but there are things within our own house which can and should be remedied. At the very least the concerns highlighted by the Scottish Criminal Cases Review Commission should be revisited – we cannot say that the Scottish criminal justice system was perfect in dealing with Lockerbie and changes could be made. Political influence over decisions on detentions should also be scrutinised, and the UK Government opposition to releasing crucial documents should be dropped. The key lesson from the Lockerbie case is that the human rights of all parties need to be at the centre of the legal process and decision making if the public interest is to be served, and if justice is to be done and be seen to be done."