THE Scottish Government was told three months ago that the publication of the highly controversial Lockerbie report was not necessarily held back by data protection legislation.
The revelation brings into question the repeated assurances from ministers that they were doing everything possible to get the report published.
After five years of secrecy the Sunday Herald published the report online last weekend as it believed it was in the public interest, and it had permission from Abdelbaset Ali Mohmed al-Megrahi, the man convicted of the Lockerbie bombing.
Last month, Justice Secretary Kenny MacAskill wrote to his Westminster counterpart asking for an exemption under the Data Protection Act. This followed a similar request in December. MacAskill did not have the report, but was trying to smooth the way for the Scottish Criminal Cases Review Commission (SCCRC) to publish it.
It has now emerged that the Ministry of Justice wrote to MacAskill on December 13 to say there was "no provision for a general exception" under the Act but equally that there was no blanket ban on publication of the report under data protection.
The Information Commissioner's Office (ICO), the regulator of the Data Protection Act in the UK, wrote to The Herald to deny claims that the report was held back by data-protection laws. It also said the ICO had told ministers that publication was not prohibited by the Data Protection Act.
A spokesman for the ICO said: "The ICO has always been clear that it was the restrictive nature of the legislation governing the operation of SCCRC and not the Data Protection Act that resulted in the release of this information, relating to Abdelbaset Ali Mohmed al-Megrahi, being blocked.
"We have consistently advised the Scottish Parliament and Government that the Act would not stand in the way of openness, providing the other legal requirements for disclosure could be satisfied."
Ministers have said since 2009 that they were doing everything in their power to get the full report into the public domain, but said it was still bound by data protection legislation.
The Data Protection Act has been criticised by a number of legal experts for being overly complex. Confusion over whether the report could or could not be published seems to substantiate such criticism.
The controversial report was completed in June 2007 but it would have been a criminal offence for the commission to have published at this time. The Scottish Government then passed a statutory instrument to slightly amend the legislation governing the commission.
In December 2011, the Scottish Government began a bill to ease the publication of the report, but ministers and the commission were still stating that publication was restricted by the Data Protection Act.
Last month, Gerard Sinclair, chief executive of the commission, told the Justice Committee that the decision on whether to publish or not should ultimately rest with politicians.
The commission had warned that publication could breach data-protection legislation. However, it was not until last Saturday – after the Sunday Herald had contacted the Crown Office and the Scottish Government to inform them of the
plan to publish – that ministers put out a statement to reveal that, contrary to previous statements, Westminster Justice Secretary Ken Clarke "would not regard the Data Protection Act as being a barrier to publication".
A Scottish Government spokesman said: "The publication of the report is entirely a matter for the SCCRC to consider and be satisfied that they can comply with any legislation. The SCCRC raised concerns over the data-protection issue during their recent evidence to the Justice Committee, which is why the Scottish Government attended a productive meeting between the UK government, the SCCRC and the Information Commissioner on March 7.
"Following these positive talks, a letter from Ken Clarke last week suggests the UK Government understands the SCCRC may be able to comply with data-protection requirements in publishing information, which is very much to be welcomed.
"The publication of the full report by the SCCRC remains a matter for them, but we have always been clear that we think it is in the public interest that the Statement of Reasons is formally published."
Until last Sunday, The Herald and the Sunday Herald were the only papers in the world to have seen the report. The Scottish Government welcomed its publication.
The SCCRC report rejected the majority of the submissions made by Megrahi's former legal team. However, it concluded the verdict could have been a miscarriage of justice, on six grounds. It also strongly criticised the Crown Office for delays in handing over documents to the commission.
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