by David Ross
The Lord Advocate, Colin Boyd, has acknowledged that the document which transferred the Secretary of State's rights to collect the tolls on the Skye bridge to the Skye Bridge Company was neither dated nor signed - but has said it does not matter.
The MP to whom the acknowledgement was made, Liberal Democrat leader Charles Kennedy, said last night he was "horrified" by the Lord Advocate's conclusion.
Meanwhile, there is growing speculation that next month the European Court will rule that the Government must impose VAT on all bridge tolls and pay back six years worth of unpaid VAT, thereby forcing a rethink on the Skye Bridge tolls.
In June, at the request of campaigners, Professor Robert Black of Edinburgh University studied the documentation and the legal arguments pursued by the protesters since the bridge opened in October 1995 and their non-payment campaign began.
He found that the legislation had given the then Secretary of State the right to charge and collect tolls on the bridge, but because he would not be exercising these rights himself he had to publish an Assignation Statement saying exactly to whom these rights would be assigned.
The document produced was just seven pages of type which carried no date, no signature, and no seal.
Professor Black concluded: "This is the most informal official document I have ever seen ... This is not a probative document, it isn't even an authenticated document."
As a result, the people who had been collecting the tolls since 1995 did not appear to have proper authority and could be committing a criminal offence specifically created by the same legislation.
Professor Black studied the terms of an appeal court ruling from Lord Sutherland at the end of last year. Campaigner Robbie the Pict had raised the issue of there being no date or signature on the Assignation Statement. Lord Sutherland acknowledged that the point had been raised but made no further comment on it. According to Professor Black that meant "the court has not decided. I find this somewhat surprising as it is crucial to the whole scheme".
When Mr Kennedy, the Ross, Skye and Inverness West MP, first wrote to the Lord Advocate after Professor Black's review, the reply he received referred him to Lord Sutherland's ruling.
Mr Kennedy wrote back, pointing out that Lord Sutherland had not ruled on the matter. He heard nothing back until yesterday, when the Lord Advocate adopted the same approach. He quoted Lord Sutherland's ruling at length, and concluded: "In these circumstances while it is correct to say that the statement is not signed or dated the High Court of Justiciary has taken the view that the Assignation Statement was made in accordance with statute and is valid.
"Consequently whether or not it is 'a probative document' is not a necessary consideration."
Mr Kennedy said last night: "How can a flawed legal document be the basis for the widespread criminal prosecution of my constituents? The Assignation Statement transferred power from a Government Minister to a private company and gave it permission to charge large tolls; it must have a sound basis in law.
"I believe that this answer from the Lord Advocate sets a dangerous legal precedent and ignores the very real concerns of my constituents, some of whom have criminal records as a result of this suspect document. I will continue to press for a satisfactory answer to this, all those who use the Skye Bridge deserve nothing less."
Robbie the Pict pointed out the recent successful appeal in an alleged counterfeiting case over a typing error in a search warrant, yet in the Skye Bridge cases 128 people were convicted of a criminal offence despite an official document not passing the most basic of legal tests.
He said: "Of course the only career at stake in that case was that of a procurator fiscal's clerk. In the Skye bridge cases almost the whole of the Scottish Justiciary and Scottish Executive fall suspect. Colin Boyd is attempting to hide behind a ruling that Lord Sutherland simply did not make."
Another campaigner, Portree councillor Drew Millar, said: "Of course it may be that the Government knows privately accepts that next month the European Court will force the VAT issue leaving them to decide whether to pay millions of pounds to the European Commission or take the tolls off once and for all."
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Copyright © Ray Shields, 2000.
Most recent revision, 28 August 2000