Skat News July 1999
Editorial Rants:As many of you may be aware Skat has had its share of problems of late. The rift within the membership has unfortunately been impossible to mend, resulting in a small group splitting away from the constituted body and calling themselves Skat (legal pressure group). They insist that Skat is now an 'Articled Association' and are circulating letters to selected Skat members inviting them to join a group founded by Robbie the Pict, Drew Miller, and Sandy Coghill.
We would like to stress to the Skat membership, that the constituted body of Skat have never heard of these 'Articles', and has at no time been an 'Articled Association' and we publicly disassociate Skat from the above organisation.
In this issue I have enclosed the Skat constitution which was fully adopted at the Skat meeting on January 25th 1997, at which both Drew Miller and Robbie the Pict were present. (See extracts from the official minutes) This constitution supersedes any other form of agreement that had been adopted previously.
I hope that the points printed within these pages will clarify any questions about the split in our ranks. If anyone would like information regarding any Skat business please contact those listed below.
Vice Convener and Acting chairman:
Ron Shapland: 01471 833308
Myrna Scott Moncrieff: 01470 552212
E.G.M. For the purpose of confirming the constitution and
electing Office Bearers to replace any who no longer wish to work within a democratic
28th August 99 -; 6pm - Tigh na Sgire (Council Offices) Portree
This Special edition of SKAT News has been put together in order to inform members of the background to the dispute that led to the calling of the EGM. There are at present two groups both claiming to be the true SKAT, though neither can truly claim to speak for a majority of the total membership. We hope that an EGM will resolve this situation, since all other attempts have failed.
Those who do not regularly attend meetings (the vast majority) may not be aware of the positions adopted so I will attempt to explain them.
On the one hand we have our Convenor Drew Millar, Robbie the Pict and a group of between ten and twenty people. They maintain that we are an "articled association", do not have a proper constitution and are not financially accountable. They recognise the constitution, but only for the purposes of collecting money from the public. Control of SKAT according to this group is vested in a simple majority of "founding" members, nobody else has any right or say in how the organisation is run. They believe it is not only permissible, but desirable, that members can be expelled without giving them any opportunity to defend themselves. They also believe that it is acceptable to discriminate in selection of members.
This group maintains that SKAT is a "subversive" organisation that should under no circumstances give an accounting to the public of how money raised from the public has been spent. It is a two-tier structure with control immutably vested in the chosen few. By definition this group will probably ignore the results of the EGM since they do not recognise the principle of democratic accountability. They believe that SKAT should only use one method of trying to get rid of tolls - the route through the Scottish Courts.
On the other side we have myself, Andy Anderson, Myrna Scott Moncrieff, John Campbell and between thirty and forty others. This group rejects the suggestion that we are anything other than a properly constituted group who are at all times answerable to the majority of the membership. This group does not believe that "founder" members have any special status within the group, other that is than being deserving of our admiration for the stance they took.
This group maintains that it is not permissible to state in public that we are one thing, while being something quite different. They hold that the constitution is binding, to suggest that we do not adhere to it would in effect be to admit that we fraudulently raised money from the public.
This group does not recognise the authority of the Convener when acting without a democratic mandate, and believes that we should use all possible non-violent means to defeat the tolls. It is this group which is calling the EGM and will abide by the decision of the majority of the membership.
This group fully supports our treasurer in his aim of ensuring that SKAT is properly accountable when it comes to how it uses money raised from the public.
So that is basically the two positions, I would strongly urge you to attend the EGM to make your views known. The only way that the credibility of SKAT will be restored is if there is a large turnout and a clear decision about which side is in the right. Then we can get on with what both sides want - the abolition of the iniquitous toll.
The following is taken from a letter signed by our Convener Drew Millar dated 30th July 1999. It seems to summarise the position adopted by his group:
"To suspend meetings is simply to close them for the time being. They are likely to remain suspended at least until the SNP office bearers and any others who have made unauthorised and/or defamatory statements to the Press realise that they are not welcome.
SKAT knows perfectly well that all avenues must be employed but believes that a series of legal rulings in our favour will best force the hand of Parliament. However it is not going to be diverted from that path by self appointed auditors, signatories, spokes-persons or even self appointed conveners. It is certainly not going to be diverted by persons who have attempted to hijack SKAT using a "gambling permit" constitution. It was for one function only and can never be more than that. By invoking it for any other purpose you endanger the so-called 'missing money' lodged in the second account specifically for appeal court expenses.
The need for an authority-friendly 'constitution was seen by some as an opportunity to try to alter our stated aims, presumably by those with a political agenda. However it was not advertised or adopted unanimously at an AGM or EGM."
The following is from the so-called Articles of Association that in the absence of a constitution would presumably be applied:
"In exercise of these rights and duties SKAT may organise itself as it will, subject to a veto of the majority of the founders, but always respectful of the stated aim described in the Founding Article."
Any emergency sanctions, which shall include expulsion, shall be applied by way of declaration by a simple majority of the three founders."
The law according to John
Many people will be puzzled by the heated debate that has been going on within SKAT regarding the legality or otherwise of the toll collection regime. On the one side is Robbie the Pict claiming that Miller Civil Engineering must have written authority from the Secretary of State to collect the toll, on the other are people like me saying that they don't.
So how did I come to find myself apparently on the same side as our friends Hingston, Fraser and Roger? It's a long story but I will try and explain it as simply as I can. When considering any debating position, I believe in trying to think like your opponent, if you can understand their position you stand more chance of identifying any weakness in their case. When RtP first came up with the argument that authority had to be in writing I agreed with him, since that was apparently clear from the contract. However when I got my hands on a complete set of the documents it was clear to me that RtP had missed out on a crucial section. RtP based his argument on the following:
Wherever in this agreement provision is made for the giving or issuing of any notice, endorsement, consent, approval, certificate or determination by any person, unless otherwise specified, such notice endorsement, consent, approval, certificate or determination shall be in writing and the words endorsed, consent, approval, certify or determined shall be construed accordingly.
This one would think is clear, however like all things in the law it is not, there is a further clause in the contract that has equal validity and says:
Clause 1.3 (CA16/17) 1.3.3 If the Secretary of State fails to respond to any request for approval or consent, or confirmation that he is satisfied, of or to or with any matter hereunder by either granting or withholding approval or consent, or; confirmation of satisfaction in writing within 28 days of such a request being made, approval or consent, or confirmation that he is satisfied, of or shall be deemed to have been given, with no further recourse to the Disputes Resolution Procedure being available.
In the normal course of a criminal trial the fact that there were two conflicting arguments should constitute a "reasonable doubt", however as we know to our cost these rules do not apply to us. In my view to win a Skye Bridge Case we have to prove beyond any possible doubt that we are right. In the case of Irene McGugan their lordships actually re-wrote the legislation on the hoof in order to find against us. Why should this be? It is clear to me that all of the people from Michael Forsyth on, who have held the post of Secretary of State have approved of what was going on at the bridge. The system is simply acknowledging this fact and weighting its judgements accordingly. Is that right? Clearly it is not, however it is a fact of life and one that we will be unable to do anything about within our own system.
I kept my reservations on the authority question within the group until recently, what changed my mind and made me go public was the judgement by Lord Eassie in the interdict and the subsequent spin put on it by RtP. Despite what you may have read in the press, the judgement was a comprehensive defeat, Lord Eassie said for example:
"It was not asserted by counsel for the petitioner.... that at any time the Secretary of State was not agreeable to the engagement of MDJV as an agent of the concessionaire"
"Mr Upton accepted that there was no statutory requirement for the Secretary of State to include in that contract any provision stipulating for consent to be expressed in writing"
"it follows in my (Lord Eassie's) view that the Secretary of State could properly waive any contractual stipulation for the giving of consent by express waiver or by acquiescence, without giving any written expression to that consent"
"I accordingly consider that the petitioner (RtP) is not entitled to found on the contractual provision ... that the Secretary of State's consent should be expressed in writing.
Lord Eassie also expressed the view that in law nobody other than the parties to the contract could challenge its provisions. He further said that had written consent been required (which it was not) then the Secretary of State's defense of the action would constitute such permission.
This then brings us to the thorny issue of "Crown Production 16". This production purports to be written consent for MDJV to collect the tolls, it was entered in the case of Alex Smith very late in the trials at Dingwall. It is a measure of the confusion surrounding these proceedings that Mr Hingston thought it was necessary. Lord Eassie was clear that the document was not written consent, but this does not mean that collection or the previous convictions are illegal. There may be an argument for the people in whose cases CP16 was entered but not for the vast majority who were convicted without its assistance.
My view is that their Lordships will simply express the opinion that it was unfortunate that the Fiscal under the pressure of a heavy workload felt that the document was required. They will refer to the Eassie judgement and confirm that written consent is not needed. To suggest that they will overturn Eassie is, in my opinion, unrealistic.
In any future cases in Dingwall the Sheriff will be bound by the terms of the Eassie judgement, so I think that the Fiscal will withdraw CP16 as unnecessary. I do not believe therefore that we have any realistic hope of removing the tolls in the Scottish Courts.
This seems to be a very negative view, however I have not given up and nor do I think we should. The way the system has been operating is not right, but I think that the only way to change this is through the European Courts and to that end have already written two cases. I also believe that there have been errors in procedure in the prosecutions in Dingwall and have appeals to the High Court based on this. These will not take the toll off, but could, if they win, affect the convictions of all. I would strongly argue that we need to sit down and carefully assess our position, court work is expensive and should not be used simply to feed a one man publicity machine. We must be honest with our own supporters and the press, to keep insisting that "the tolls are off next week" simply destroys our credibility.
Is SKAT an "Articled Association ?
The answer to that is clearly we are not, legal advice tells us that the constitution would stand in any court, RtP claims that we are so it is only proper that we examine this claim. The law recognizes both "natural " and "artificial" persons, businesses are "artificial persons" and have an legal identity separate from the members. Artificial persons fall into several broad headings, but there is no category that I can find called an "Articled Association". The nearest thing that I can find is "Articles of Association", which combined with "Memorandum of Association" are required by law to set up a company. Broadly speaking the first deals with the internal workings of a company and the second with its external workings. SKAT is clearly not a company, and is not registered under the provisions of the Companies Acts, it does not have limited liability. Given that it is unclear what RtP is asking people to sign up to, I would strongly recommend that anybody considering this course of action should take legal advice before signing up.
Proposed at the first AGM of SKAT on 23rd November 1996. Hugh Mackenzie and Alisdair Maclean were tasked with looking into setting up a constitution for SKAT.
On the 4th of January 1997: Andy Anderson addressed the meeting on the pressing need for a constitution he submitted a draft that Drew Millar read to the meeting. It was proposed and accepted that the draft should be submitted to David Noble (Area Manager for Skye & Lochalsh District Council and a Lawyer) for comment.
On the 11th January 1997: Drew Millar read David Noble's comments to the meeting. The meeting discussed these and John Campbell was tasked with redrafting the constitution.
On the 18th of January 1997: Amended Constitution was read by Drew Millar in the chair and adopted by the meeting.
On 25th of January 1997: Kyleakin meeting was informed by John Campbell in the chair that the constitution had been adopted and was available.
All of the dates mentioned are extracts from the official minutes of SKAT meetings. The majority were chaired by Drew Millar and Robbie the Pict was present. The constitution was subsequently submitted to the Council to enable SKAT to run raffles etc. (Under Gaming Act regulations.)
To adopt a constitution with the sole purpose of using it for the gaming act would be deemed fraudulent. The whole constitution must be adopted and adhered to, in order to maintain legality.
For the record: The Highland Council have a copy of the constitution along with the original application both signed by Andrew Millar (Drew Millar our Convener)
SKAT would like to reaffirm that it stands by the constitution, which was adopted at the above meetings.
Because of the constitutional situation we have had to suspend all forms of fund raising that depended on us being properly constituted, this includes the 999 club.
Skye and Kyle Against Tolls - Constitution
Skye and Kyle Against Tolls (SKAT) is a single objective - non profit making organisation. It's sole aim will be to use all non violent means of protest in order to bring about the abolition of tolls on the Skye Bridge. SKAT will have three classifications of membership:
Up to 100 members in the affiliate organisation - £100.00
Up to 500 members in the affiliate organisation - £500.00
Up to 1000 members in the affiliate organisation - £1000.00
Affiliate organisations will be responsible for ensuring that their members adhere to the non violent principals of SKAT when participating in any protest in the campaign to remove tolls from the Skye Bridge.
Persons in possession of a SKAT support badge will be deemed to be already members in This category.
Persons in possession of a SKAT crew badge will be deemed to be already members in this category.
Any breach of the above shall be deemed incompatible with SKAT membership and appropriate action up to and including expulsion may be taken at the discretion of the membership. Where expulsion or censure is used by SKAT, the member concerned will be afforded the opportunity to put their case to a properly advertised meeting.
SKAT will hold an annual general meeting in January of each year of it's existences. Notice of this meeting shall be given to all members at least three weeks prior to it being held. At the AGM the following office bearers will be elected for the period of one year:
Chair Person - Whose duties will include responsibility for co-ordination of the activities of SKAT, chairing meetings, acting as the main spokesperson an ensuring that SKAT activities are consistent with it's stated aims.
Deputy Chair - Who will support the chair in the duties listed above and deputise where the Chair Person is unavailable.
General Secretary - Will be responsible for keeping a record of the minutes of SKAT meetings, and for the holding of a list of members of all categories.
Treasurer - Will be responsible with the Chair Person for keeping a record of all the financial dealing of SKAT and to produce an annual statement of accounts to the membership at the AGM. They will also be responsible for answering reasonable requests for such financial information about SKAT as the other office bearers may require. The treasurer will also be responsible to the membership for the safe keeping and proper use of such funds as SKAT will raise to pursue it's activities.
With the agreement of the membership the office bearers can appoint individuals and or sub committees to assist with the duties listed above. They may also undertake any other duties that are compatible with the stated aims of the organisation.
Office bearers will be eligible to serve for a period of up to three years if they so wish, subject to the membership re-electing them at the AGM.
General Meetings shall be advertised in the West Highland Free Press or any publication with similar circulation, and shall be considered quorate if at least twenty members including two of the office bearers are present. No change shall be made to the constitution unless at an AGM or similarly notified EGM.
Any member is free at any time to give the General Secretary notification in writing that they wish to cease to be a member of SKAT.
SKAT can be dissolved by a majority decision at any properly advertised AGM or EGM, if this course of action is followed any surplus balance held shall be distributed to charitable organisation(s) whose aim is to benefit communities in Skye and Lochalsh.
Letters to The Editor
Mac Goes To Europe
Was it a moment of insanity, a feeling of anger, of moral indignation, or just plain disgust? Whatever sent me to the Skye bridge on a wild night in October 1995 started a long journey in the search for honesty and justice, both of which I have since found to be in very short supply in visits to the law courts.
To be convicted honestly is one thing, but to be convicted by one-sided unsupported evidence as I was, is not justice, nor can it be seen to be fair and impartial. I believed the accused was innocent until proven guilty, not the other way round. However after many visits to the lovely town of Dingwall, attending court in front of a selection of sheriff's, I eventually ended up in front of Sheriff Booker-Millburn, and was found guilty on two counts of refusing to pay the toll. I was then invited to contribute the sum of £50 on each offence. I asked leave to appeal the case to the High Court, which was granted.
So in December 1998 I found myself in the wonderful old town of Edinburgh. On the bench in the High Court was the scourge of Skye bridge appeal cases, Lord Roger, who just happened to have been Lord Advocate in the early days of the campaign. The appeal was given short shift and refused. My long awaited visit to the seat of Scottish justice was over and I was sent home to think again as the song goes.
I have now placed my case in front of the European Court of Human Rights which I hope wil1 provide the justice that should be available to all. I hope that this court will restore my respect for the law.
I would like to state that without the help of my brother-in-law John Campbell, who has provided invaluable legal assistance at every stage of my fight, through all the setbacks and disappointments, I would never have reached the European Court.
H. McIntyre (member of SKAT)
SKAT Not Falling Apart
The difficulties within Skat have been slightly over-dramatised to satisfy news-hungry editors. We are talking, after all about a small group of 10 who walked out of a meeting because they were unwilling to recognise our established constitution and to address a few problems which simply would not go away by ignoring them
SKAT has fought against the toll (a) by lobbying politicians such as in our visit to Westminster and in many other instances. (b) By arguing the economic case that PFI costs more than a public-funded bridge and we are presently working on further arguments on that aspect;(c) by arguing cost to the local economy a small "political" victory here when Donald Dewar was persuaded to halve the price of a book of tickets;(d) by arguing the human rights issue as in Hugh McIntyre's case going to Europe as well as the battle through the Scottish Courts. Sadly, so far all legal avenues have turned out to be cul-de-sacs. This does not mean that we would disregard any further legal challenges that offered a realistic chance of success but we are not, and never have been pressing from the legal angle only.
On 18 January 1997, the final draft of our constitution was approved by our members at a fully convened meeting of SKAT chaired by Drew Millar. There is no reference anywhere in this document to a "legal pressure group" but it does state clearly that SKAT's "sole aim will be to use all non-violet means of protest in order to bring about the abolition of the tolls on the Skye Bridge."
Professional legal advice tells us that our constitution would not be in doubt in a court of law. We are not a "legal pressure group" but we are certainly a legitimate pressure group.
We continue to welcome all SKAT members to our Saturday meetings in Portree, the last of each month being in Kyleakin.
Amelia Simonini (member of SKAT)
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Copyright © Ray Shields, 1999.
Most recent revision, 27 August 1999