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Ms Bridget Prentice (Lewisham, East): I beg to ask leave to withdraw the motion.
Motion, by leave, withdrawn.
Ordered,
That Mr. Paul Tyler be discharged from the Select Committee on Procedure and Mr. Edward Davey be added to the Committee.--[Ms Bridget Prentice.]
7 Nov 1997 : Column 543
Lockerbie
Motion made, and Question proposed, That this House do now adjourn.--[Ms Bridget Prentice.]
1.49 pm
Mr. Tam Dalyell (Linlithgow): For the past 30 years, Nelson Mandela has been something of an icon for the left. His prestige for what he has done is absolutely unquestioned; therefore, surely, it behoves us to listen to what he says on what might be an awkward subject.
The connection goes back to the time when Nelson Mandela wrote what I think was his only letter to the right hon. Member for Huntingdon (Mr. Major) as Prime Minister, which was about Lockerbie. I do not hide from anyone the fact that I was given a copy by Tiny Rowland. When there was a change of Government, the first meeting Mr. Mandela had with my right hon. Friend the Prime Minister lasted an hour and, at Mr. Mandela's insistence, 40 minutes of it was taken up with Lockerbie.
Mr. Mandela then came to the Commonwealth Heads of Government conference in Edinburgh and made a much publicised statement saying that in his considered judgment no country should be claimant, prosecutor and judge in the same case and in a situation such as Lockerbie. That was his view and I do not think that I distort it. It was his opinion--tactfully expressed--that we should take seriously the idea of a trial in a third, neutral country. Indeed, that has been the view of South Africa, to whose personnel I have spoken, and of many other countries for a long time.
The purpose of this debate is to go through--I hope without distortion--the objections to such a course of action and then to try to refute them. I believe in being totally candid with the House of Commons: I am not a lawyer, so I have taken advice. That advice comes predominantly from Professor Robert Black QC, professor of Scots law in the university of Edinburgh. One of the tasks to which the Minister of State, Foreign and Commonwealth Office, my hon. Friend the Member for Manchester, Central (Mr. Lloyd), must address himself is to say why the Government lawyers believe that their opinion is superior to that of the Queen's Counsel who is professor of Scots law in the university of Edinburgh.
There should be a serious reply to Professor Black's points. As soon as I knew that this debate was to take place, I submitted those points to the Foreign Office because it would be unacceptable suddenly to come to the Floor of the House of Commons, produce legal arguments and expect my hon. Friend the Minister to answer off the top of his head. I confess that the first part of my speech will be a little--but only a little--longer because of the good fortune of the previous debate having ended early, but I do not expect my hon. Friend to reply to the questions in the second part other than in writing and after he has had time to consider them.
In October 1993, the legal advisers to the two Libyans accused of the Lockerbie bombing announced that their clients were not prepared to surrender themselves for trial either in Scotland or in the United States. In an attempt to resolve this impasse, Professor Black formulated in January 1994 a detailed proposal for the setting up of a court operating under the law and procedure of Scotland, but sitting in a neutral venue such as The Hague. The proposal was accepted in writing by the head of the
Libyans' defence team and by the Deputy Foreign Minister of Libya on behalf of his Government. Before coming to the debate, I have checked again that the Libyan Government would accept such a proposition.
If implemented, the proposal would secure six objectives: first, a trial in which the governing law and procedure will be the law and procedure of Scotland; secondly, a trial in which the prosecution will be conducted by the Scottish public prosecutor, the Lord Advocate, or his authorised representative; thirdly, a trial in which the defence of the accused will be in the hands of independent Scottish solicitors and counsel appointed by the accused; fourthly, a trial in which the jury will be replaced by a panel of judges presided over and chaired by a judge of the Scottish High Court of Justiciary with responsibility for directing the panel on Scottish law and procedure; fifthly, a trial in which, if the accused are convicted, they will serve any sentence of imprisonment in a prison in Scotland; and sixthly, a trial from which any appeals will be heard and determined in Scotland by the High Court of Justiciary in its capacity as the Scottish court of criminal appeal.
Successive Lord Advocates and Foreign Secretaries have refused to countenance such a proposal. Do the British Government really believe that the principle of having a trial within the borders of Scotland--that is the issue--is of such overriding and transcendent importance that if it cannot be achieved there should be no trial at all, even one that satisfies the six conditions that Professor Black and I have set out? Are the Government saying that the location of the trial in Scotland is more important than that there should be a trial? If so, they have a woefully distorted set of priorities. That is also the view not only of Professor Black, but of many members of the solid and careful legal establishment in the city of Edinburgh.
Over the years, Government sources have put forward six objections to the proposal. I shall set those out, along with what we believe to be the answers to them. The first objection is that the proposal to set up a non-jury court applying Scottish criminal law and procedure, but sitting outside Scotland, implies that a fair trial could not be obtained in Scotland and thus casts an unwarranted slur on the Scottish system of criminal justice.
The response of Professor Black and myself is that the only feature of the Scottish criminal justice system that those representing the Libyan accused find unacceptable is the role played in it by the jury. Each and every other facet of Scottish solemn criminal procedure is acceptable to them. They contend that, in a case that has already received unprecedented publicity in the media, including widespread dissemination of photographs of the accused, and which would undoubtedly generate further publicity once the accused surrendered themselves for trial, it would be impossible to find a jury of 15 people who could bring to the task of assessing the evidence against the accused minds that were unaffected or uninfluenced by pre-trial publicity.
I say in passing to my hon. Friend the Minister that on one occasion I had to telephone BBC Scotland and ask whether it was right before any trial to refer to the two men as "the bombers". BBC Scotland admitted that it was a terrible mistake--and so it was. That is part of the background to the situation that I am discussing.
To hold, to express and to act on such a view involves no slur on the Scottish system of criminal justice but is simply a recognition of the liability of human beings to
be influenced consciously or unconsciously by the deluge of information and speculation that has for years accompanied this case.
The recent conviction of Louise Woodward by a jury in Massachusetts has given rise to concern, among other things, about the ability of that jury to return a just verdict, solely on the evidence led in the courtroom, in a case that had been the subject of so much pre-trial publicity. Similar concerns are surely not self-evidently baseless in the case of those accused of the Lockerbie bombing, especially in view of the fact that Scottish criminal procedure, unlike that of the United States, prohibits the questioning of potential jurors with a view to excluding from service any who might have been influenced by what they had seen, heard or read in the media before the trial.
I appreciate that the Scottish court system is different from that of England. However, when travelling in the Arab world I have heard people ask, "What about the Birmingham Six and the Guildford Four? What will happen to the Libyan Two?" That may be unfair, but that is the perception in countries with which we have no extradition treaty. I should also say in parentheses that I have been careful not to go to Libya since the charges were laid.
The second objection is that there are formidable difficulties in implementing the proposal to set up a non-jury court applying Scottish criminal law and procedure but sitting outside Scotland in a place such as The Hague.
The response of Professor Black and myself is to ask: do the Government contend that it is beyond the capabilities and expertise of the Scottish parliamentary draftsmen in the Lord Advocate's Department, in consultation with the Crown Office and the Scottish Office Home Department's criminal justice division, to draft legislation setting up such a court and providing that it shall apply all the rules of evidence and procedure applicable to High Court trials in Scotland, save only those relating to the presence and functions of the jury?
We also ask: do the Government contend that such legislation, if promoted by the Government, would be defeated in either House of Parliament? That is unthinkable.
Do the Government contend that if such a court were constituted and the Libyan accused surrendered themselves for trial before it neither the Government of Holland nor the United Nations would be willing to assume responsibility for the custody of the accused in The Hague pending and during the trial? I have no doubt that the Dutch Government would be co-operative.
Now we come to the third objection--that the fact that the proposal for a "neutral venue" Scottish court provides that the court shall operate without a jury renders it unacceptable.
The response of Professor Black and myself is that two questions arise. First, as the jury in criminal proceedings is conceived of as a safeguard for the interests and civil liberties of the accused, what overriding or compelling interest has the prosecution to insist on jury trial where the accused and their legal advisers have, as in this case, waived their right thereto?
Secondly, if the Government believe that the presence of a jury in serious criminal cases is always and without exception essential, why were non-jury courts--the Diplock courts--set up for the trial of terrorism offences in Northern Ireland?
The fourth objection is that the US Government would or might refuse to make essential evidence available to a "neutral venue" Scottish court. My response and that of Professor Black is that section 3 of the Criminal Justice (International Co-operation) Act 1990 provides a mechanism for evidence not already in the prosecutor's possession, including documents and articles, to be obtained by invoking, through the letter of request procedure, the aid of a court with jurisdiction in the country in which the evidence is located.
Section 273 of the Criminal Procedure (Scotland) Act 1995--as you chaired that Committee, Mr. Deputy Speaker, you will remember it well--provides for the evidence to be given by witnesses outside the United Kingdom through a live television link. The procedure involves invoking, again by means of a letter of request, the aid of a court with jurisdiction in the country in which the witness is resident.
Do the Government really suggest, first, that a court in the United States would not respond to such a letter of request from the Lord Advocate or a judge in the High Court of Justiciary appointed to preside over a "neutral venue" court or, secondly, that the US Government have either the constitutional authority or the desire to impede the US courts in responding to such a letter of request?
The fifth objection is short. It is simply that accused persons should not be allowed to choose or have a say in where they are tried. Professor Black and I believe that that supposed principle has already been breached by Security Council resolutions 731 and 748, which impose on the Libyan Government an obligation to hand over the accused for trial in either the United Kingdom or the United States. The choice between those venues rests with the Libyans. What principle is therefore infringed by a third choice, which the Libyans have said in writing that they would accept--namely, that the trial be held before a court applying Scottish law and procedure, presided over by a Scottish judge, but sitting outside Scotland?
The final objection is that there is no guarantee that if a "neutral venue" Scottish court were set up the two Libyan accused would surrender themselves for trial before it.
In a letter to Professor Black dated 12 January 1994, and reiterated since, Dr. Ibrahim Legwell, the head of the legal team representing the accused, states that they would surrender themselves for trial before such a court. In a letter of the same date, the Libyan Deputy Foreign Minister states that the Libyan Government would place no obstacle in the path of such surrender. Within the past fortnight, Colonel Gaddafi confirmed that to President Nelson Mandela. We must make a judgment: is it likely that Colonel Gaddafi would renege on a commitment, publicly made, to President Mandela? In any event, what on earth could be lost by putting him to the test?
I ask the Government yet again to consider the exceptional circumstances of nine long years of argument, nine long years that have been harrowing for the relatives and extremely detrimental to our relations not only with the Arab world, but with the Organisation of African Unity, and to British industry. As I have often said in the House, the decision makers in Libya were mostly educated not in the universities of the United States, as in the case of some other Arab countries, but in Britain, and would be well disposed towards Britain and inclined to place orders, thereby creating jobs in Britain.
It is strangely poignant and appropriate that we should consider the matter of the Lockerbie disaster at this time. It was on 6 November 1991 that James T. MacDougall, procurator fiscal in Dumfries, petitioned for the issuance of arrest warrants in the names of Abdelbaset Ali Mohmed Al Megrahi and Al Amin Khalifa Fhimah, the two Libyans so far accused of the murder of 270 souls from 21 nations.
The right hon. Lord Fraser of Carmyllie, the then Lord Advocate, read the warrants before the world's media in Edinburgh on 14 November 1991, and declined any form of detailed comment, other than to state that
Contrast that proper stance with the handling of the matter in the United States. As the Attorney General was reading a grand jury indictment in Washington, the Department of State was issuing two documents that have been described as the "most contemptuous" seen in the whole long Lockerbie story. The first is a rationale as to how the original suspects--Iran and the Popular Front for the Liberation of Palestine, General Command--could not have carried out the bombing. The second, entitled "Additional information on the bombing of PanAm flight 103", makes various untested claims about who, how, where and why the bombing was carried out, and gives a detailed command structure of those allegedly responsible.
Those are curious documents, when hon. Members remember American assurances in the wake of the bombing of La Belle discotheque in Germany and the retaliatory bombing of civilian targets in Libya, that the Government of the United States would produce what they claimed to be incontrovertible evidence of Libyan involvement--evidence which, 11 years later, has still to be produced.
I add in parentheses that the Minister of State knows from the records that I visited Scotland Yard in September and that I have an answer, after my long, long interview with Assistant Commissioner David Veness, that an inquiry is going on into the dreadful case of WPC Yvonne Fletcher. The Home Office has not yet reported on that.
The attack on La Belle discotheque and stark threats by senior American figures after the issue of the warrants "to hand those guys over--or else" effectively guaranteed a negative response from the Libyan Government.
Over the six years, serious objective doubts have repeatedly surfaced about the case. No one doubts the honesty, integrity and professionalism of the hundreds of men and women of the Scottish police forces, led by the Dumfries and Galloway police, but many, including some highly qualified professional, legal and diplomatic figures, have posed serious questions about the involvement of US and intelligence services, which remain unanswered.
For the clarification and information of the House, I should like to put on record some important questions of which I have not given notice because I thought that the debate would begin at 2.30 pm. Nevertheless, I should like to put them on record so that, at their convenience, the Foreign and Commonwealth Office and the Crown Office can address them.
First, why have the authorities denied the existence of an unmarked white helicopter despite numerous reported sightings of it over the first several hours and days after Lockerbie with armed crew members warning even search and rescue personnel to leave certain areas? Not only do I know of that from various sources, but I should inform my hon. Friend the Minister that my intent interest in Lockerbie began on new year's eve 1988. The Lothian and Strathclyde police--the police who serve my constituency and particularly the Strathclyde police in your constituency, Mr. Deputy Speaker, and the city of Glasgow--had the traumatic job of clearing up the wreckage and retrieving the bodies from that great airliner.
Secondly, why was no action taken in respect of American officers removing a case from the wreckage, without the knowledge or consent of Dumfries and Galloway police, and then returning it empty?
Thirdly, why were officers of the Federal Bureau of Investigation allowed to travel to Jordan and interview Marwhan Kreesat, a known bomb maker, who was arrested and then mysteriously released in Germany in October or November 1988, without either German or Scottish officers being present?
Fourthly, why did the Foreign Secretary say that there is no way in which a case could be heard outside Scotland under Scots law and why does he rely exclusively on the Lord Advocate's office?
It may be within recollection of the House that during the most recent Adjournment debate on Lockerbie--I fear that this is the 13th such debate--I was told by the Minister of State, Scottish Office, that it would be quite impossible to open the evidence to sundry third parties. The sundry third parties were a reference to my request that the evidence should be examined either by Judge David Edward QC, the distinguished Scottish judge at The Hague, or by one of the Lords of Appeal in Ordinary--Lord Hope and Lord Clyde. I do not fancy that either Lord Hope or Lord Clyde would be enchanted at being referred to as "sundry third parties". One would like someone to look at the evidence that the Crown Office claims to have.
Fifthly, why does the Prime Minister dismiss as irrelevant a question that I asked regarding supervisory special agent James T. Thurman, discredited head of the FBI explosives laboratory? There is a general opinion that Thurman was crucial to the American side of the Lockerbie investigation; if he was not, it should be spelt out because, certainly in the public print, Thurman was greatly relied on.
Sixthly, why did my right hon. Friend the Foreign Secretary state in reply to my question:
Why, despite a categorical undertaking to the UK relatives by the former leader of the Labour party, Neil Kinnock, that a Labour Government would hold an independent inquiry into the Lockerbie bombing, has my right hon. Friend the Prime Minister not instructed the holding of just such an inquiry? That is a matter of
undertaking. In opposition, Neil Kinnock made it absolutely crystal clear that, come a Labour Government, there would be a public inquiry. We ought to be told at some stage why that is now not possible.
Why has the Secretary of State for Scotland not extended the courtesy of a reply to a written communication from the United Kingdom relatives in respect of alleged remarks made during a lobby dinner? I do not want to go into the details of what was or was not said, but it should be clarified for the sake of the relatives. I ask that the Foreign Office should communicate with the Scottish Office and that the Secretary of State for Scotland should reply to the relatives.
Why, given a new Government, do we appear to be subservient to American control of the investigation, evidence and any possible trial? I fear that that is the impression being given.
Why, in his reply to my question last month, did the Prime Minister state:
I pay tribute to several people who have been greatly helpful. In this whole saga, the hon. Member for Rochford and Southend, East (Sir T. Taylor), with whom I disagree profoundly on Europe and many other matters, has crossed a political divide in the realisation that the horror and scale of the matter must not be affected by party political position.
I pay tribute to the UK relatives' spokesman, Dr. Jim Swire, who, along with the secretary, Pamela Dix, Rev. John Mosey, Martin Cadman and many others, has pursued day in and day out the inalienable demands of truth and justice. I pay tribute to the memory of the late Alan Frankovitch, who did so much through film and writing to expose the truth, and to the work of his close colleague, David Ben-Areah, who continued the work started by Alan Frankovitch.
I commend both the Foreign Secretary and the Prime Minister for their decisions to meet the UK relatives--especially my right hon. Friend the Prime Minister. It seems inexplicable that neither of the two previous holders of that high office saw fit to extend such an invitation.
I respectfully repeat a comment recently made by one of the relatives:
"warrants have been issued, the two accused should surrender themselves for trial".
Since then, Lord Fraser and his successors, Lord Rodger and Lord Hardie, have on the whole, like Lord Mackay of Drumadoon, declined any form of comment.
"It would not be possible . . . to mount a prosecution without the co-operation of the US authorities, who hold part of the evidence."?--[Official Report, 28 October 1997; Vol. 299, c. 701.]
From that follows another question: why do the US authorities hold that so-called vital evidence? Has it been made available to the Scottish police, and why do they not hold it?
"but it is important that nothing is done which undermines the perception and the fact of the integrity of the Scottish judicial process. That will be felt very strongly by people in Scotland"?--[Official Report, 28 October 1997; Vol. 299, c. 713.]
Is the Prime Minister aware of a telephone poll conducted by Teletext in the Scottish Television area last weekend, in which the replies agreed with both President Mandela and the UK relatives that the two suspects should be tried in a neutral country? Is the Prime Minister aware of a deep sense of frustration in many sectors of Scottish society that the impasse continues and that compromise seems to be an unknown word?
"there are none so blind as they who will not see--none so deaf as those who will not hear".
If we do not hear the demands of the relatives and if we do not act to break the frustrating impasse, we betray their trust, the trust of the people of Scotland and, most important, the memories and souls of those who died. I hope that there will be a sympathetic reply to the debate. I thank the Minister, whose schedule has probably been disturbed yet again, for answering a debate on this sad, complex, difficult and immensely important subject.
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