The emergency legislation introduced after the Cadder case which prompted the Carloway Review contained an unexpected provision, which limited the scope of cases that could be heard by the Scottish Criminal Cases Review Commission. The provision had not been floated by any political party, subject to any debate, proposed by any MP or commission and seemed to have no obvious imperative.

It was swiftly interpreted as being targeted at the ongoing Pan Am 103 debacle, designed to prevent the case being further heard by the Appeal court in the event of the death of Abdelbaset Al Megrahi.

The Chair of the SCCRC also expressed concern, prompting Justice Minister Kenny MacAskill to pledge that Lord Carloway's review would rectify the position. Overall, the manner of the introduction of the act was described as an affront to the democratic process, and an example of civil service law. It was criticised by justice groups and the Scottish Human Rights Commission.

Professor Black described it as a "con trick". Megrahi's own solicitor Tony Kelly said s7 pulled up the drawbridge on the appeals process.

Today, Professor Black has examined the provisions in Lord Carloway's review, and gives his assessment on how it deals with s7, and the "gatekeeping" role of the High Court in filtering SCCRC referrals.

"The principal concern that I had about the emergency legislation related to the "need for finality and certainty" restriction which section 7 imposed upon the Scottish Criminal Cases Review Commission before a reference could be made to the High Court of Justiciary of a prima facie miscarriage of justice; and, more importantly, the gatekeeping power that it conferred on the High Court to refuse, on the basis of the "need for finality and certainty", to hear a case so referred.

"Lord Carloway has recommended that the restriction imposed on the SCCRC should be retained; but that the High Court gatekeeping power should be repealed. He has, however, proposed that the test to be applied in determining, after hearing a case referred by the SCCRC, whether the appeal should be allowed should be that (a) there has been a miscarriage of justice; and (b) it is in the interests of justice that the appeal be allowed.

"I may say that I personally find it difficult to envisage circumstances in which a court of justice worthy of the name could find that there has been a miscarriage of justice, but that it is not in the interests of justice to rectify it."

A petition calling for an inquiry into the Pan Am 103 case was also continued this month, pending the completion of Lord Carloway's review.

At that time, Justice Committee Convener Christine Grahe said: "We have Lord Carloway reviewing the Criminal Procedure (Legal Assistance, Detention and Appeals) (Scotland) Act 2010.

"Those of us who were there the day that we passed the emergency bill—that would be all of us—will recall that I tried to get a section deleted that took away powers from the Scottish Criminal Cases Review Commission and from the High Court. Prior to that, if the SCCRC decided that there had been a possible miscarriage of justice, it would refer the case to the High Court and the High Court had to accept it.

"That has changed. Under the 2010 act, it became the case that there was a second test at the SCCRC: not only that there may have been a miscarriage of justice, but that it was in the interest of finality and certainty that it was then referred.

"Even if the case—not just the case that we are considering, but any case—passed that test and was referred to the High Court, the High Court would not have to hear it. The High Court had a further test: is it in the interest of finality and certainty that the case be heard?

"I was very concerned that something had slipped in through emergency legislation that required to be fully tested.

"There is legislation coming to this committee that will allow SCCRC reports to be published, in abandoned cases, subject to data protection considerations. Data protection is a matter for the Westminster Government, so negotiations will have to take place between the cabinet secretary and the Home Secretary on the data protection issues in that legislation. Those are important issues relating to the role of the SCCRC.

"Finally, I should note that the submission from the SCCRC says that an appeal can be proceeded with, in cases of abandonment, in very specific circumstances.

"My suggestion is that we keep the petition open until all the parts of the jigsaw come together.

"The courts might or might not be the route forward. That is a matter for another time, once the other parts have been dealt with and once we can see, when the report has eventually been published, what happens with the SCCRC’s referrals—whether they go back to how they were or whether the second test, which would lie with the High Court, is kept. "