by David Ross, reporter to The Herald.
The outcry last week over the Liberal Democrats' negotiated compromise with Labour over the "non-negotiable" issue of student tuition fees, has largely overshadowed the reaction to the LibDems abandoning their manifesto commitment to abolish the tolls on the Skye Bridge.
There has been deep dismay in the Highlands and Islands. It is not that many believed that the LibDems could immediately force Labour to buy out the tolls at a cost of anything between £25m and £35m. What has saddened many is the speed with which they decided that the best they could do was to freeze the tolls at the present levels, and that voters need not expect more in this Parliament.
This measure could save the islanders money by the end of the contract, which will be somewhere between 12 and 23 and a half years hence. But it does nothing to answer fundamental questions about the bridge which refuse to disappear. Ironically, the desk onto which these questions will soon land will be occupied by Mr Jim Wallace, Scotland's first Justice Minister and Liberal Democrat MSP.
Only last week, Mr Charles Kennedy, a front runner to succeed Mr Paddy Ashdown as national leader, was adhering to his long established line that only an independent public inquiry would suffice. His Holyrood counterpart, Mr John Farquhar Munro, also made clear he wanted abolition, but in the meantime an inquiry.
He is being supported by his parliamentary LibDem colleague Jamie Stone in Caithness, Sutherland and Easter Ross. The SNP will back them, while both the Highland Council and Comhairle nan Eilean Siar (the Western Isles Council) back an inquiry.
But within the last few weeks, the Government has ruled out an inquiry, declaring that the National Audit Office and the parliamentary Public Accounts Committee had both investigated. True, and both were stinging in their criticism of the Scottish Office's handling of the project, not least that officials and their then Tory Ministers had signally failed to protect the interest of Scotland's tax and toll payers, while bending over backwards to allow the private sector players to make a lot of money.
But neither the NAO or the PAC were authorised to consider the legal questions thrown up by campaigners over the past three and a half years. These could involve attempting to pervert the course of justice and misleading a public inquiry, Scotland's highest judge being compromised by a conflict of interest and the whole toll collection regime operating illegally.
This is not just campaigning hyperbole. Three professors of law and a Court of Session judge have supported different crucial sections of the protesters' arguments, yet, despite the gravity of these allegations, the Government's position is that there is to be no independent scrutiny. The only hope other than Mr Wallace lies in our courts, where there appears to be no rush.
For example, one of Robbie the Pict's many cases has been waiting for more than a year to come to trial. It centres on whether employees of a company called Miller Civil Engineering (MCE), who were collecting tolls, had ever been given proper written legal authority. The Secretary of State was supposed to have assigned his right to collect to the Skye Bridge company, but should also have specifically approved any further assignation or subcontracting to MCE.
The Scottish Office had insisted for months that it had, but was unable to provide the relevant document. That was until November 4, 1997, when the procurator-fiscal produced a document at Dingwall Sheriff Court, which became known as Crown Production 16. Campaigners, however, were sure they had identified the document as part of the contract which covered the building of the bridge and had nothing to do with tolls or the right to collect.
Professor Robert Black, of Edinburgh University, examined Crown Production 16 and declared: "I have absolutely no doubt this document does not constitute any form of consent by the Secretary of State . . ."
The Herald subsequently contacted the MCE solicitor who had drawn up the document and he confirmed that it had nothing to do with the right to collect tolls, describing it as a "very minor" and "peripheral" document.
Robbie the Pict sought, unsuccessfully, an interdict to stop MCE collecting the tolls because it had no proper legal authority. Ironically, earlier this year, Lord Eassie ruled that the papers the Scottish Office lodged in April 1998, in defence of the interdict action had given the proper written legal authority. But the implication was that there was no proper legal authority for collecting millions of pounds between October 16, 1995, when the bridge opened, and April 14, 1998, when the papers were lodged.
But Lord Eassie went further.
The only one of their lordships to examine Crown Production 16 (which he described as the memorandum), he was in no doubt that it had nothing to do with the right to collect tolls. "The purposes of the memorandum were completely unrelated to the particular issue of eliciting the Secretary of State's consent to the engagement of a sub-contractor for the operation of the Crossing. Accordingly ... I have come to the view that the execution of the memorandum does not constitute an expression in writing for the purposes of Clause 1.2.3 of the Concession Agreement."
Although a civil ruling, it suggests that campaigners had a reasonable excuse for not paying their tolls for two and a half years, that those collecting had no right to do so and indeed by doing so could very well be guilty of a criminal offence. But the Scottish Office still insists that everything was in order. This appears to be more than some administrative oversight. It submitted to a criminal court, as evidence of Government authority for collecting tolls, a document which was not.
Is this not, at best incompetence and at worst an attempt to pervert the course of justice?
That is the gravest allegation made by the campaigners and, as such, worth examining. The Scottish Office to date has made no attempt to answer it, apart from repeating the mantra that all proper procedures had been followed. But there are more questions. How can it be that the document, made public in November 1991, bears no signature and no date?
It does list the registered owners of the Skye Bridge company as being Miller Construction Ltd; Dykerhoff & Widmann Ag; and Bank of America International Finance Corporation, respectively 40%, 40% and 20%. In fact, a check in Companies House at the time would have revealed that Miller Construction Ltd, owned no shares, it was Miller Civil Engineering Ltd.
But that is by the way, because on January 23, 1992, the registered shareholding changed to the Bank of America International Ltd holding 997 of the 1000 shares, and the remaining three being held by Bank of America Nominees Ltd.
The Scottish Office insisted that this simply represented a mortgage agreement and did not constitute a change in the ownership of Skye Bridge Ltd. That was challenged by an independent legal authority which held that in law, Bank of America did now own the company. Whatever, the fact remains that the regulations required that the "identity of each member of the company who is a registered owner of at least ten per cent of the issued share capital . . ." be made known. It was the Bank of America which was the registered owner of the shares from January 23 onwards.
However, the information submitted to the public inquiry which opened just five days after that date made no mention of the new arrangement.
How could that be? How could it be that the law required the Government to tell the public who owned the shares in a company to which the public would pay millions of pounds over the best part of two decades, but would not require them to tell the public when the shares were owned by somebody else?
To date, the Scottish Office has not conceded that any of this might have been done better. The questions go on and on. What is at issue today is whether in an open participative democracy it can be acceptable that they all remain unanswered. That is something our new Scottish Minister for Justice, Mr Jim Wallace, might wish to ponder.
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Copyright © Ray Shields, 1999.
Most recent revision, 21 June 1999