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October 26, 2009

Devolution and National Security: Brendan Simms considers the constitutional implications of the Megrahi case

Posted by Brendan Simms

The Megrahi case has huge constitutional implications, argues Prof. Brendan Simms.

Three hundred years ago, Scotland and England were "out of sync". As separate kingdoms, they had long pursued distinct foreign policies - the Scots prided themselves on the "Auld Alliance" with France to contain their southern neighbour. Even when the two crowns were combined, as they had been since 1603, Scotland had sometimes ploughed its own course, insisting on its own right to determine peace and war, or to regulate the succession as it related to Scotland, a thorny diplomatic issue for England since it raised the spectre of a Stuart restoration on her northern flank.

So in 1707, at the height of the war of Spanish Succession against Louis XIV, the English made an end of it. In return for substantial economic and political concessions, including the maintenance of a separate legal and education system, the two countries formed a Union: the United Kingdom. Henceforth, there would be only one foreign policy on both sides of the border.

Seven years later, on the other hand, Britain was dynastically linked to Hanover through George I in 1714, without however a full political union between the two territories taking place. The two polities separated again on the accession of Queen Victoria in 1837.

One could not help but be reminded of this in August when Ali Megrahi, the Libyan official convicted for the Lockerbie bombing in 1988, was released by the devolved Scottish executive, ostensibly on compassionate grounds. As it happens, the move suited the Prime Minister, who had long been under pressure from powerful business - primarily oil - interests to "normalise" relations with the regime of Colonel Ghaddafi.

Ivan Lewis, the Foreign Office minister with responsibility for Libya, seems to have set out the framework for such a "deal" in a leaked letter of 3 August 2009, and Oliver Miles, the former British ambassador to Libya refers to "some kind of a deal".

But what if Mr Brown had believed the British national interest to be opposed to the release? Prior to devolution, the decision would have fallen to the British Home Secretary in London (or today to the British Justice Secretary), both Westminster appointees in any case. Today, the decision is taken by the Scottish Justice Secretary, which is why the hapless Kenny MacAskill found himself in the international limelight. Mr Brown can indicate his views, and they may be listened to, but he actually has no way of enforcing his will.

In other words, it is now perfectly possible for Edinburgh to take decisions with powerful and possible deleterious foreign policy implications for Great Britain. There is effectively a Scottish foreign policy, as the profusion of Saltires at Megrahi's Libyan homecoming attests.

Leaving aside the merits of the Megrahi case, this development heralds two potential dangers for London. First, there is the problem of mixed messages. Anybody who knows the British constitution will be aware that certain decisions are supposed to be for Edinburgh, and not Westminster, but this may not be clear to others.

It certainly was not so to the Libyans, who made the linkage very specific in the negotiations. "You were on the table at every stage", Ghaddafi's son Saif famously stated. It was not clear to the Americans either. Popular opinion in the United States was outraged, with loose talk of a boycott, as well as stiff letter from FBI director Robert Mueller to Mr MacAskill accusing him of "giv[ing] comfort to terrorists around the world".

The ire was not just directed at Edinburgh: the former Foreign Office minister Mark Malloch Brown has just attributed some of the awkwardness between Mr Brown and the President to the Lockerbie controversy. Nor - perhaps surprisingly - was it obvious to British business and retired diplomats such as Oliver Miles. One is reminded of the confusion surrounding the relationship between Britain and Hanover in eighteenth century European diplomacy.

Secondly, the Lockerbie release highlights the general lack of policy coherence between Edinburgh and London on matters of grave national security. Scottish domestic policy and British foreign policy are once more out of synch. What if, for example, the Edinburgh executive, buoyed by anti-American public opinion, should signal its intention to bail out of the "War on Terror" and seek to buy immunity from terrorist attack by setting free Islamist prisoners in Scottish jails? The same problem, incidentally could arise in Northern Ireland if and when judicial matters are devolved to the Stormont Assembly, where a Sinn Fein executive might well take a more relaxed view of the al-Qaeda prisoners inmates in Ulster prisons than either London or Washington.

Perhaps all this was not foreseeable in the halcyon post-war days of the late 1990s, when devolution was the slogan of the day in Scotland and Northern Ireland. It is certainly not clear what the answer should be. One possibility would be to create a new category of "federal" crime for terrorist offences, which would be dealt with by courts within the jurisdiction of London. That is how the problem is dealt with in the US where the right of individual states is not permitted to interfere with the security of the Union as a whole. Or perhaps Scotsmen will come to accept that, just as their original constitutionalties were largely the product of external pressures, the security challenges of the twenty-fist century might be an argument for more unity, if not actual union.

Dr Brendan Simms is Professor in the History of International Relations at the Centre of International Studies at the University of Cambridge and co-President of the Henry Jackson Society.

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