Tim Luckhurst: Scotland's mess over Lockerbie

For conspiracy theorists, the legal and diplomatic convolutions that have climaxed with the release of the Lockerbie bomber, Abdelbaset al-Megrahi, are reducible to sneering simple mindedness. It is all about oil. Libya has it and British companies are determined to sell the expertise to extract it.

According to this version the evidence is stark. Only a quarter of Libya's huge territory has been tapped for hydrocarbons and it has the most bountiful reserves in Africa. Proven deposits amount to 42 million barrels of crude and 1.3 trillion cubic metres of gas. Add to that evidence that Colonel Gaddafi ordered the 1986 La Belle disco bombing in Berlin in which two US servicemen died and the case is made.

But if it was already hard to imagine why a Scottish nationalist government should volunteer a decision designed to promote British business and enrage Capitol Hill, Scottish Justice Secretary Kenny MacAskill's statement in Edinburgh yesterday conceded nothing to the UK national interest.

Mr MacAskill denied any surrender to Whitehall urgings. True, Gordon Brown rushed through a prisoner transfer agreement with Libya to make the release of Megrahi possible. But the SNP man said he did not tumble into the prime minister's trap. The Scottish Government opposed that agreement. It was anathema to the families of American victims of the Lockerbie bombing and to their government.

Underlining his independence from London, he hinted with little subtlety that the British Government has breached secret agreements with Washington that Mr Megrahi will serve his full sentence in Scotland. In the MacAskill version Albion has been perfidious again but Caledonia is blameless. Scotland was not party to any such promise and Scots law allows prisoner release on compassionate grounds alone.

So, Megrahi is free, US opinion is incensed and London is embarrassed, but according to the SNP version it is not Mr MacAskill's fault. Blame lies exclusively in Whitehall. MacAskill claims he has simply done his duty, and with regret because he believes Mr Megrahi was properly prosecuted and convicted. This stretches credulity.

Scotland's Justice Minister is a politician not a judge. So, it is reasonable to concede that, although he resisted urgings by his UK Labour opponents, his decision was not made solely according to a balance of justice and compassion. As with all aspects of the bombing, the truth is more complicated.

The trial at which Megrahi was convicted was blighted from the beginning by Scottish legal pomposity. Proud denizens of Edinburgh's legal hierarchy ached to see their distinctive judicial apparatus strut its stuff on the international scene. The outcome, a televised trial at a newly designated postage stamp of Scottish territory in the Netherlands, suited London and Washington. It suited Scottish lawyers even better.

Not since their eighteenth century predecessors' principles informed the work of America's founding fathers had they felt so smug. It was easy to overlook anomalies such as the absence of a jury and the presence beside prosecution lawyers of an official from the United States Justice Department. In Morningside affluent advocates murmured that it might look a little scrappy, but the men accused of the world's most deplorable terrorist atrocity were being tried under Scots Law, not the inferior English version.

The verdict, which convicted Megrahi, but not his co-accused Al Amin Khalifa Fhima, never made complete sense. Broader questions of who ordered the bombing, how it was financed and whether states other than Libya were also involved were brushed aside. It is not conspiratorial to believe that Scottish Justice wanted to avoid the second appeal against conviction which Megrahi has now abandoned. It is noteworthy that his release required him to stop fighting his conviction.

The Scottish Government has let Mr Megrahi go partly in order to save face, but there is another reason, one that exposes the damaged state of Britain's constitution under New Labour's asymmetrical system of devolution.

The legislation under which the SNP administers Scotland explicitly denies Holyrood responsibility for foreign affairs. Diplomacy is a reserved power. The legislation's author, Donald Dewar, was careful to avoid giving nationalism the capacity to embarrass Britain abroad.

This week it has become plain how utterly he failed. By ignoring the foreign policy implications of legal issues such as prisoner exchanges Dewar left the SNP an open door. Granted, Kenny MacAskill could have chosen a better issue than Lockerbie. If England imagines a special relationship with the US then Scotland has one. It started with the founding fathers and, in good times, it fills hotels, golf courses and monuments from Lesmahagow to Lerwick.

But infuriating the Americans to embarrass the English is the sort of mischief that appeals to nationalists of the type whose company Mr MacAskill enjoyed when he was arrested before the England versus Scotland football match in 2000. The SNP has not released Mr Megrahi simply to undermine Whitehall in Washington, but it has caused embarrassment, it relishes doing so and it can do so again.

Britain cherishes its relationship with Washington and the Megrahi case handed the Scottish National Party the chance to disrupt it. Kenny MacAskill's response to Hilary Clinton's shrill demands that Megrahi be kept behind barsgave a nod towards Scotland's need for heritage-tourism dollars. But it was designed to blame Downing Street and the Foreign Office for betraying America by abandoning a pledge that may not exist.

This was not the behaviour of a grown up government. Devolved legislation conceived in haste has, yet again, created consequences diametrically opposed to those its creators intended. On this occasion, the SNP's ambition to shield Scottish justice from what looked set to be humiliating scrutiny at Megrahi's appeal coincides with UK commercial interests. But SNP and UK interests are not always aligned and Holyrood should not have the power to choose between them.

Tim Luckhurst is Professor of Journalism at the University of Kent and a former Editor of the Scotsman