by DAVID ROSS Highland Correspondent and DONALD WILSON
SKAT's latest attempt to prove that the present system of toll collection is illegal has real substance in law, according to one of Scotland's most respected legal authorities.
Tomorrow Parliament may get the opportunity to debate the highly critical Public Accounts Committee report into the Skye Bridge, and SKAT are determined to maintain the pressure on the Scottish Office.
Professor Robert Black of Edinburgh University's Department of Scots Law has now studied papers sent to him by Robbie the Pict, who has been scrutinising every sentence in the bridge legislation for the past three years. The Court of Session is considering a petition for interdict from Robbie to prevent employees of Miller Civil Engineering(MCE) from collecting the tolls because Skye Bridge Ltd (SBL) never properly assigned its right to collect tolls to MCE.
The New Roads and Streetworks Act 1991 gave the Secretary of State the right to collect tolls. He was supposed to have assigned that right to SBL in 1992, but SKAT are now arguing that, not only did MCE not have the right to collect assigned to it, neither did SBL. In effect the only party with a legal right to collect tolls is Scottish Secretary Donald Dewar.
At issue is whether the Scottish Office made available at the proper time an assignation statement which revealed the identity of those parties which were registered owners of more than 10% of the shares in SBL. This was required by law to be made available for inspection with a copy of the Toll Order, the statutory instrument which allowed rights to be assigned.
An assignation statement was made available in November 1991, but only with the draft Toll Order. The statement stated that those parties which held more than 10% of the SBL shares were: Miller Construction Ltd; Dyckerhoff & Widmann AG; and Bank of America International Finance Corporation.
However SBL held an extraordinary general meeting in January 1992 which agreed that Bank of America International should hold 997 of SBL's 1000 registered shares and the remaining three be held by Bank of America Nominees Ltd.
This information was not made available to the public inquiry which began six days later, nor to the National Audit Office. The Scottish Office has always insisted that the new share arrangement covered a mortgage agreement and therefore did not affect the ownership of the shares.
Last February, Professor Lorne Crerar, professor of Business Law at Glasgow University, told The Herald that regardless of who controlled the company, SBL in law was owned by Bank of America because it held title to the registered shares.
Yesterday, Professor Black also pointed to weaknesses in the Scottish Office position: "I think Robbie has a point in law, a good point, particularly that the Assignation Statement having to be actually with the Toll Order and not simply with the draft toll order. I really think that is a very, very good point. By the time the actual Toll Order came out in June 1992, the contents of the Assignation Statement were inaccurate because the various 10% holdings had changed. "
"Admittedly the Assignation Statement was accurate when it was made in November 1991, but it was not accurate at the relevant time, which is when the Toll Order was made. At that time the Assignation Statement was no longer accurate. I think that is a pretty strong point. After all what was the point in requiring an assignation statement by a secretary of state, if it was not to give accurate information, to let people know at the relevant time what the accurate state of play was. That statement simply does not do that."
"The Scottish Office attitude seems to be that this is all a game, that it has no purpose. The only purpose it can have is that people are accurately informed. It is a vital right for the public."
A Scottish Office spokesman, however, insisted that all the proper procedures had been carried out according to legal requirements.
Meanwhile, Robbie the Pict is preparing a second interdict to take to the Court of Session challenging collection of tolls.The move emerged on the eve of a Commons debate on the controversial bridge toll issue.
In December, Robbie applied for an interdict before Lord Eassie at the Court of Session against Miller Civil Engineering's right to collect the tolls. Lord Eassie's findings are still awaited. Now he is preparing a separate challenge against Skye Bridge Co. which is owned by the Bank of America.
He claims that the Scottish Secretary has failed to fulfil the requirements of statute in terms of properly identifying the company as the concessionaire. Last night Mr Pict said: "The substance for this new interdict came to light after the record was closed in March last year on the first interdict. This means I was not permitted to present this argument to the Court of Session on December 10."
"Before anyone can collect tolls you need a toll order that says you can assign it to a concessionaire. In the course of researching the interdict against Miller Civil Engineering, certain papers were flushed out which indicated the assignation statement was not valid."
Robbie unsuccessfully tried to raise the issue during criminal proceedings for non-payment of the toll before Sheriff James Fraser at Dingwall on December 3.
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Copyright © Ray Shields, 1999.
Most recent revision, 13 January 1999