Interview: Kenny MacAskill on corroboration, Supreme Court stooshie and release of al-Megrahi

Kenny MacAskill has not only left the building, he’s left the country. Within 72 hours of his final FMQs, Scotland’s longest-serving justice secretary was scheduled to be on a flight as he started a seven-week whirlwind trip round Asia with his partner that will see him miss what is expected to be the SNP’s best Holyrood electoral performance by far.

Sitting in his parliamentary office in his second last week, the notice board now bare, it’s abundantly clear MacAskill is ready to go. “I’ve got an opportunity for a third chapter,” says the 57-year-old, who spent 19 years as a lawyer before coming in to parliament.

His second one – as an MSP for 17 years, of which seven-and-a-half were spent as justice secretary – continues to attract admirers and critics in equal measure. Corroboration, police reform, the release of Abdelbaset Ali Mohmed al-Megrahi – the only person convicted of the Lockerbie bombing – on compassionate grounds, there was no shortage of decisions that put MacAskill in the headlines. In many instances, it was the Edinburgh Eastern MSP’s bullish approach that kept him there.

RELATED CONTENT

Exclusive: Former Justice Secretary Kenny MacAskill says SNP should drop extra 1,000 police officers vow

Government's community justice reforms 'recipe for obfuscation, if not disaster', says former Justice Secretary

Book on Lockerbie bombing will show individuals outside of Scotland 'should hang their head in shame', claims Kenny MacAskill

His cabinet exit was all but guaranteed the moment Nicola Sturgeon replaced Alex Salmond – a close ally of MacAskill’s since their brief expulsion from the SNP as members of the infamous ’79 Group – in the weeks after the referendum defeat. MacAskill, who survived a no-confidence vote just weeks before Sturgeon’s confirmation, had presided over a slipshod attempt to scrap the requirement for corroboration in criminal trials earlier that year, putting the Criminal Justice Bill on hold for 12 months amid disquiet over safeguards.

As far as the former justice secretary is concerned, “we’re good to go” after Lord Bonomy’s safeguards review followed Lord Carloway’s initial work. However, a further delay of at least two years is likely while ministers wait for jury research to be carried out. “Juries are a mystery and I know we’ve always viewed them as sacrosanct,” says MacAskill.

“I think juries will remain a mystery. I have been involved in juries as a cabinet secretary, I have been involved with them as a defence agent, I have to say I am not sure what we will find out of this that will be of any great use.”

The centuries-old requirement – “an absurdity that denies justice to hundreds of thousands” – was controversial enough in and of itself; MacAskill’s handling of a previous debate in which he claimed the pro-union Better Together campaign “extends beyond the constitutional remit to other aspects” and that “Labour has sold its soul and is in danger of selling out the victims of crime”, simply added fuel to the fire. Two years on, he remains unapologetic.

“No not at all,” he responds when asked if he regrets comments branded “the most ill-judged and intemperate in the history of this parliament” by Scottish Conservative leader Ruth Davidson. “It was. There was a Labour party who had fought an election on a platform to remove corroboration, that had said, at least for rape and sexual offences, it should go, that had waxed lyrically about what had happened to victims, so it was shameless politicking on their part, absolutely.

"As for the Tories, they say these things [but] these are the same people that have… in terms of outrageous speeches, that is not in the league, I think, of some that have been made. Why did they oppose it when they knew in their heart of hearts that it was the right thing to do? It was because the referendum was coming.”

The same streak of defiance does not accompany reference to his rhetoric on UK Supreme Court judges in the spring of 2011. A decision that the police practice of interviewing a suspect for up to six hours without legal representation breached the European Convention of Human Rights prompted emergency legislation and the collapse of 867 cases three months on from the judgment. Their decision to then quash an original guilty verdict handed down by the High Court to Nat Fraser, for the murder of his estranged wife Arlene, had Salmond and MacAskill on the warpath.

“I regret that,” he says, upon mention of his suggestion that UK Supreme Court judges’ knowledge of Scotland only extended to visits to the Edinburgh Festival. “These are nice people, they are good people, and having met quite a few of them now at formal and informal events, I recant.” In fact, MacAskill admits to having developed a “soft spot” for judges on the court, even if he remains opposed to the institution’s involvement in the Scottish legal system.

Such outbursts as these will go down as footnotes, though. MacAskill’s decision to free Megrahi in 2009 – who had been jailed in 2001 over the UK’s worst terrorist atrocity which claimed 270 lives in 1988 – on compassionate grounds defined his time as justice secretary. “It was an Andy Warhol moment, I knew it was going to be big, I didn’t necessarily realise just how big, that it was going to go global,” he tells Holyrood.

MacAskill, who says he was “well insulated” by “remarkable staff” as he worked away on his final decision, is reluctant to go in to too much detail (he has a book on Lockerbie due out in May). “What I can say, without disclosing the full contents of the book, I knew we were a cog in a wheel, what I didn’t realise was how small a cog and how big a wheel. I think what comes out of this is that others should hang their head in shame and none of them are in Scotland.” 

Asked to recount his memories of meeting Megrahi at Greenock Prison in 2009, “very functional” is as far as he’ll venture. “I think I would rather leave that to come out in the book,” he adds. “I did it because I had to do it. The legislation that the British had brought in had said that an individual had to be able to put forward whether they wanted to be transferred because the Libyan prisoner transfer agreement entered into by the UK was the first one, I think, where a government could do it, it didn’t have to come from the individual.

"The individual had to be given his opportunity to put his say and there were options of bringing Megrahi to see me, which would have had an entourage along the M8 of proportions we have never seen in Scotland.”

In other words, a police escort rolling up to St Andrew’s House? “Well, if he is to be seen, that was one of the options. That was clearly preposterous – it would have been an OJ Simpson scenario. The easiest thing for security, given he was a prisoner, was simply to go to Greenock Prison.”

MacAskill has found himself accused of cashing in after signing the publishing deal, however. “It was never my intention to write a book on it,” he says. “I did keep a diary over a fair period of time because people had told me about it and there were issues that I didn’t know what might arise for myself or others, so I kept a diary.

"I have to say I think this is my opportunity to tell people [what happened], there are a lot of things out there that people want to know and I think I am entitled to do that. That’s how I see it, I think this is a matter more of setting the record straight.”

This week marks three years since Scotland’s single police service was launched. Police Scotland has not had its troubles to seek over that period, with this month’s Scottish Crime and Justice Survey findings leapt on as evidence that confidence has suffered under the new model. “I saw a paper trumpeting how there was a decline in faith in the police – it was three per cent, it’s still 58 [per cent],” insists MacAskill.

“Given that papers had actually front-page ‘police crisis’, that’s an amazing position. The fact of the matter is, out on the streets, most people continue to hold the police in high regard, rightly so, because actually when they need them, they get them.”

MacAskill acknowledges “tragedies” have occurred and that difficulties have arisen in control rooms and in the delivery of i6, a single national IT system that remains undelivered. “The focus in the media has been on the police, i6 and the difficulties we’ve faced in control rooms. I think those operating NHS 24 would probably think, ‘wow, if only our problems were as limited as that’. There we have something that is, frankly, not even up and running.”

This staunch defence – MacAskill claims controversies around the likes of stop and search and armed police were “contrived” amid a “frenzied period running into the referendum when nothing was off limits” – is typical of his time in government. Criticism that he and former chief constable Sir Stephen House were too close seemed “bizarre” as far as he was concerned.

“What sort of relationship would you like me to have?” asks MacAskill rhetorically. “I have been involved in institutions, major institutions, where the leader and the deputy would not speak to each other – I won’t need to name it, I can see you smiling, you can probably think which one – and the relationship between them was dysfunctional. Is that really what you want in our society?

"What we need is a relationship where you’re able to challenge, and I was able to challenge Steve where I felt it was appropriate, but we did so in a polite and appropriate way. I believe that I’ve had that relationship with almost everybody.” House endured “attacks” that were “personal and vindictive by many”, adds MacAskill, insisting that history will be kinder to him than press reports were over the course of his tenure.

Personalities aside, he acknowledges the SNP’s long-standing commitment to maintain police officer numbers 1,000 above 2007 levels, has run its course. “I think everybody recognises there has got to be a change,” he says. “Equally, I don’t think we can have a calamitous drop in numbers,” pointing to the fact Scotland’s population has risen significantly at a time the terror threat has increased and historic sexual abuse has placed additional demands on policing.

“The arbitrary figure of 17,234, everybody recognises was appropriate. But ultimately, it has to be a decision by the chief constable.” Why is discretion correct now but not this time three years ago? “It was a manifesto commitment, you have to stick with the manifesto commitment,” he says. “But I would be very doubtful if the SNP manifesto commitment will say 17,234, I would expect it to say that there will be no significant drop in numbers.”

MacAskill, typically, has not been a silent bystander in his final 18 months at Holyrood. Whether it was his characterisation of the government’s community justice reforms – which incidentally, he embarked upon in office – as a “recipe for obfuscation if not disaster” (another shake-up will follow at some stage, he believes) or his calls for a drug policy rethink, MacAskill has not shied away from expressing what he considers to be “constructive criticism”.

In the latter case, he has stressed the need for a “modern drugs policy” that is “predicated more on prevention rather than punishment”. Did he feel unable to kickstart such a shift during his time in government? “There’s obligations in government, there are wider political things, so no, it is a luxury that you get when you’re out,” he explains.

“But it’s appropriate to speak out, which is why I was prepared to do so, I can now say what others think because frankly, in the wider justice [sector] and in probably politics, it would be harsh to call it a conspiracy of silence but people just feel that they can’t say it. Do they think what we’re doing is right? No. Do they think what we’re doing is working? Although to be fair, the policy of the [Scottish] government has been the best it can be within the limited position.”

Such decisions, of course, will not be ones for MacAskill, who it seems does not miss the responsibility that comes with ministerial office. “I believe you can only do it for a period of time then you burn out,” he says. “I’ve done my bit and I’ve got my life back. I now do things that previously [I didn’t]. Going to the cinema regularly, all of these things, wow, I actually quite enjoy it.”