Current Petitions
The next item on the agenda is consideration of petitions that have already been through the committee. Members have the paper about the progress that has been made on individual petitions.
Petition PE22, from the Island of Cumbrae Tourist Association, concerned the fare structure of Caledonian MacBrayne ferries, and members will remember that Allan Wilson addressed this committee on that petition. We passed the petition to the Transport and the Environment Committee and asked it to pass a copy to the Executive. The Minister for Transport and the Environment, Sarah Boyack, has written back to the clerk, and her letter highlights problems with providing the detailed route-by-route financial information that was requested by the petitioners.
Difficulties arise because of the way certain grants are allocated and the way CalMac calculates operating costs. However, the minister has indicated that both Caledonian MacBrayne and the Scottish Executive recognise the need to make more information available about the company's operation and are committed to doing so.
As a first step, the Executive has invited CalMac to undertake a fares review, including an evaluation of its sea fares policies. The minister says that that exercise will be undertaken in collaboration with the Executive staff, and should go a long way towards establishing the base information that is necessary to calculate profitability on individual ferry routes.
A similar letter from Sarah Boyack has been passed to the Transport and the Environment Committee. It is for that committee to pass on that information to the petitioners, but I suggest that we pass a copy to Allan Wilson, because he came to this committee to support the petition.
That is a result, convener. It is at least going down the road of making route costings transparent, and beginning to address the issue of cherry-picking by route operators with regard to the routes that they wish to subsidise. It will be helpful to have that baseline information. That was a worthwhile piece of work.
The next item that I wish to report back on is petition PE30, which is from Almodell Terrace residents and is in relation to heavy traffic in Almondell Terrace in East Calder.
Do we have copies of this petition?
Yes, but you do not have copies of the response. We received a helpful response previously from Stirling Water Seafield Ltd. We have now received a further letter from West Lothian Council, which indicates that a traffic calming scheme has been prepared, and currently is the subject of consultation with the residents. It is hoped that the scheme will be implemented in the near future.
That is another positive response. I propose that the clerks copy the letter to the petitioners, and ask them to indicate if they are satisfied with the action that has been taken by the parties involved. If they are satisfied, we can formally close this petition. Is that agreed?
Yes.
We turn to petition PE32 from Mr Gavin Cleland, which asks for the Scottish Parliament to advise the Lord Advocate to initiate criminal proceedings against Occidental oil company for its part in the Piper Alpha disaster. We have received letters from Lord Hardie on this matter, and everyone should have copies. I am not sure whether members want a couple of minutes to read them, or whether I should read them into the record.
If members read the letter, and paragraphs 2 and 3 in particular, they will see that the
"decision to take no proceedings following upon the Piper Alpha Disaster was taken in July 1991 on the basis of an assessment by the then Lord Advocate—Lord Fraser of Carmyllie—of the available evidence"
that could have been used in a prosecution.
"That decision was intimated publicly. Applying the law as it stands, there cannot now be a prosecution at the instance of the Crown in this matter. Even if legislation was to be promoted to enable a Lord Advocate to depart from an unequivocal public pronouncement abandoning proceedings, it would not be possible to make such a law retrospective."
As the Lord Advocate understands matters,
"the circumstances surrounding the Piper Alpha Disaster were thoroughly investigated at the time"
and his office
"assisted with Lord Cullen's Inquiry and in the leading of evidence"
into the Piper Alpha disaster.
"After the publication of Lord Cullen's report the evidence was considered at length by Crown Counsel prior to the Lord Advocate announcing his decision in July 1991. While all energy issues including oil and gas are reserved, as is health and safety legislation, for which the Health and Safety Commission and Executive are responsible, any potential prosecutions arising in this area in Scotland or in Scottish waters are the responsibility of the Crown Office or the appropriate Procurator Fiscal."
In the final paragraph, the Lord Advocate says:
"While the Crown is not obliged to explain the reasons behind a decision to take no proceedings, it is worthwhile recalling that Lord Cullen applied the ordinary standard of proof in civil cases, namely, proof on a balance of probabilities, to his examination of the evidence. Lord Cullen noted that there was no direct evidence as to what happened and that accordingly proof was dependent upon inference from the evidence supported by expert testimony. Very little equipment or physical evidence could be recovered and a number of key personnel on duty at the time of the disaster tragically lost their lives."
The Lord Advocate is firmly turning his face against any consideration of criminal proceedings against Occidental. In fact, he says that it is not within his powers to order such an investigation. Perhaps members would like a few minutes to read this letter and the other one.
Could Pauline, who is studying law at the moment, advise me on this? Is it only the Lord Advocate who can take action in the courts, or can someone else, on behalf of the applicants who want to prosecute, take action?
It is the job of the Lord Advocate to decide whether to prosecute.
Could an organisation such as the Scottish Trades Union Congress, which has come out in support of Mr Cleland on behalf of all the families concerned, take up the case in court? Does it have to go through the Lord Advocate?
The criminal case would have to go through the Lord Advocate. In the Dekker case, for example, although the procurator fiscal might have been involved, ultimately the Lord Advocate would decide whether to bring a charge of careless driving.
In this letter, he seems to be saying that even when Lord Fraser applied the lower test standard of probability to decide whether there was enough evidence to prosecute, he could not find enough evidence. Piper Alpha was a huge explosion. It would be open to certain parties to bring a civil case; in fact, there were several cases of people who had seen the explosion and had suffered psychologically from nervous shock but who failed to get damages.
I have to declare an interest. My husband was a trade union official at the time. We all know of the trauma that everyone went through. We heard all the examples of companies that did not have procedures in place for dealing with all sorts of things that happened, and I have every sympathy with anyone who wants to prosecute those companies. But the question is, can it be done?
The only people who can prosecute are within the Crown Office in Scotland. But civil cases can be taken up by other parties with an interest.
Mr Cleland's petition asked the Scottish Parliament to request the Lord Advocate to undertake criminal proceedings. The Lord Advocate's second letter makes it clear that
"section 48(5) of the Scotland Act 1998 . . . requires the Lord Advocate to take decisions about prosecution independently of the Scottish Parliament and of the Scottish Executive. The Scottish Parliament has no powers as regards the initiation of criminal proceedings in Scotland. It would be not only constitutionally improper but also unlawful for a Lord Advocate to take a decision about criminal prosecution under direction or influence of another person or body, including the Scottish Parliament."
I understand that.
Mr Cleland has presented his petition to the Scottish Parliament. Having taken the advice of the Lord Advocate, however, it would seem that we will have to write back to Mr Cleland to show him copies of those letters and to explain that the Scottish Parliament cannot take any action as requested in the petition, as it is forbidden to do so by the laws of Scotland.
There is something in the second paragraph of the last page of the first letter that Pauline may be able to help us with as well.
"It is, of course, open to London Bridge Engineering and Others to appeal the Court of Session's decision to the House of Lords and it will be necessary for your Committee to enquire, either with the Court of Session of the House of Lords, whether this is being done."
Is that another avenue that Mr Cleland and others can go down?
That action has been taken by other people. It has nothing to do with Mr Cleland.
That is a civil action, which is what Helen was asking about. That is where the appeal comes in.
That is why I raised this point, because, unfortunately, it appears that if criminal damages are sought, nothing can be done.
A person taking civil action in the courts does so at their own risk.
So people would need to find the money to do that.
Criminal proceedings are under the Lord Advocate, and he is clearly telling the committee that not only can he not take action, but the Parliament cannot even ask him to take action.
I understand and accept that justice and politics have to be kept apart. This is one of those cases in which, like Mr Cleland and the STUC, I would like to see justice being done. However, this is not the way to do it. We will have to find another way to support the STUC and all the families who suffered.
I agree. Knowing Mr Cleland, I am sure that he will carry on fighting and will find another way to raise the issue. However, the avenue of the Public Petitions Committee has been ruled out by the Lord Advocate.
We will pass on the correspondence to Mr Cleland with a letter explaining the position of the committee.
I want to talk about petition 14 from the Carbeth hutters. Sylvia Jackson and I have become involved in the case and have written to Jim Wallace. We are lobbying hard to get him to legislate to protect the hutters. He is quite sympathetic, but there is a difficulty about whether the rent acts or property legislation would be affected.
That illustrates to the public that it is not only the formal procedures of this committee that are useful, but the behind-the-scenes networking as well.
I want to talk about petition 29, from Mr and Mrs Dekker. A copy of the Lord Advocate's response has been sent to them. Have we received a copy? I do not think that I have read it.
Do members want the response circulated?
I would like to see the answer
I will ensure that that happens.