Bus Services (Regulation) (PE420)
The first current petition, from Councillor Sam Campbell, calls on the Parliament to take the necessary steps to reregulate the bus service in Scotland, to enable rural communities that depend on it to have an adequate bus service.
Do we know what stage Kenny MacAskill's bill has reached? Does it have any chance of being passed?
The bill has been lodged, but it has not made much progress.
It looks like wee rural places are suffering.
It looks like they are suffering very badly. Midlothian Council says that quality partnerships and quality contracts do not work in a rural environment.
European law enshrines the right to public transport.
Do we agree to write to the Executive, enclosing Midlothian Council's response to the petition and asking it to respond to the points that the council makes?
The petition raises an important issue for Scotland as a whole.
Tolls (Trunk Roads) (PE445)
The next current petition relates to Skye bridge. Members will recall that the petition calls on the Parliament to examine the discrepancies between the terms of a toll order and those of the assignation statement that relates to the scheme for the Skye road bridge. The petitioners argue that the Government of the day did not follow the proper procedures before the Skye bridge opened in 1995. We considered the petition and agreed to seek the views of the Executive and the Lord Advocate, whose responses we have now received. Those responses are far too lengthy for me to go through them in detail. We will deal first with the question of the validity of the documents.
My recollection, based on my two sojourns in the House of Commons, is that statutory instruments had to be laid, however unsatisfactory the method of laying them was. They might be laid on a Friday when no one was there or laid in terms that were meaningless—for example, when 5,000 miles of Scotland's fishing waters were stolen, no one who read the instrument would have known that that is what it was going to do. I doubt that the requirement for them to be laid has changed.
That issue is key, as this matter is hugely complicated. The Statutory Instruments Reference Committee ruled that the instruments did not need to be laid before Parliament or printed and published as they were correctly classified as local instruments. The Government of the day was required only to make them available for public inspection. I would like to know how many people asked to see the orders.
Hardly anybody. Is the Statutory Instruments Reference Committee above the law?
It classifies instruments and decides which have to go before Parliament and which do not. The reason that the instrument did not go before the Joint Committee on Statutory Instruments is because the Statutory Instruments Reference Committee said that it was a local statutory instrument.
It was legal but immoral and untransparent.
Well, it was certainly untransparent.
Each of the arguments that has been presented on this issue has fallen on stony ground. However, it is interesting to note that subsequent orders for similar schemes in the country were printed and published before the schemes were approved. If the legislation applies to certain contracts, why does it not apply to the Skye bridge contract?
That is the question that needs to be asked. Why was a different legal method used in relation to the Skye bridge?
Could John Farquhar Munro give us an example of a similar contract?
You will recall that, recently, tolls on the Erskine bridge were suspended because the documentation had not been signed.
So the Executive has learned from the mistake in relation to the Skye bridge.
Are we agreed to seek further information from the Executive as to why the Skye bridge instrument was handled differently from all other orders and was not printed, published and laid before Parliament?
We do not know that all other orders have been printed, published and laid before Parliament.
We will ask whether its treatment was unique. It was certainly dealt with differently to other similar orders. We can also ask the Executive to explain in detail why, given the controversial nature of the project, the instrument was not printed, published and laid before Parliament.
Could we ask whether any subsequent instruments have been dealt with in the way that the Skye bridge instrument was?
Yes. I should point out that Robbie the Pict has made available further briefing material on this question. It came in far too late—the clerks have not even had a chance to read it—but it will be circulated to members for information.
The next issue that the Executive responded to relates to the argument about whether the assignation statement was invalid because it was not signed or dated. That matter has been ruled on by the courts and the Executive is of the view that
Before you leave the previous issue, I want to raise a point about the quote that is at the foot of the second page—there are no page numbers—of the Scottish Executive's response. The response quotes Lord Sutherland as saying:
We can challenge that by asking for the basis of his argument.
It means that the judge has made up a new law.
Is that what it means?
It is not the law. In our law, a probative document is needed for any serious matter. The judge has simply ruled that a probative document is no longer necessary in the case of the Skye bridge. It is quite incredible. For the simplest of ordinary dealings in trade and commerce, the documents must be probative for any serious matter.
In our letter to the Executive, shall we ask it to clarify whether its reference to the assignation statement being
We shall ask the Executive to confirm that.
That is quite incredible. I have the correspondence dating back to that time, when I was involved because, as MEP for the Highlands and Islands, I had wanted the bridge to be financed in a different way in the first place—possibly with European help. I have the file, which shows that the project had already been awarded to Miller while the public inquiry was being conducted in Kyle of Lochalsh.
The project had already started at that time.
Yes. The project had already started. Now, the Executive has given an interesting legal argument that I have never heard put before. The Executive does not dispute—it cannot because I have the file—that the project had already been started prior to the public inquiry. That fact has been admitted by the Executive.
That is not disputed.
No, but it would have been if I had not kept the file.
The response refers to the fact that if the public inquiry had opposed the project, the contract would not have been completed. The element of conditionality in the contract would have meant that the project would have stopped and that the Government would have paid full compensation.
That would have been our taxpayers' money.
However, it is not clear from the reply what is meant by full compensation.
Exactly. It is a most amazing puzzle. It means that public inquiries about any such matter are valueless because the Government can go ahead on the basis that if the public inquiry dares to oppose the scheme, the company will be paid by the taxpayers' money.
It is worth our while asking the Executive for an explanation of what was meant by full compensation in those circumstances. Would the company have been compensated with the actual cost of physically building the bridge or with the profits that they might reasonably have garnered over the 14 to 18 years if the bridge had gone ahead? We need that to be clarified.
Full compensation might simply have been the refunding of expenditure that the company had incurred in preparing plans.
As you know, such expenditure could be dolled up to any amount.
Not if a contract is properly specified—and we can see the consequences of that in the disaster down the road from here.
We could ask the Executive to clarify what is meant by full compensation. Is that agreed?
Let us move to the other points, starting with the financial arrangements. There is a question whether excessive profits were made from the contract by the Bank of America. Members will note that a formula in the concession agreement determines the length of the concession period for the company. That formula was based on the fact that the company was able to recover the costs of building the bridge, which are put at £23.64 million, based on 1990 prices. The concession period was estimated at 14 to 18 years, which allowed an agreed margin of profit to be made.
Towards the end of the letter from Mark Rae, there is a reference to the toll revenues. They are not given, but they are in the public domain and we can apparently find them out from Companies House. The letter says:
If it is publicly available, it can easily be had.
But the amount of that revenue is relevant to the argument.
Absolutely. We should still ask the Executive what the agreed margin of profit over the 14-to-18-year period of the contract will be. Although we can find out from Companies House what revenue the company has taken so far, we do not know what it is due to get in future.
You will find it very difficult to get any response from the Executive. I have asked the question, and the figure has not been made available. The ironic thing is that the cost of the bridge was originally about £23.6 million. I understand that almost £10 million was allocated to the contract by the then Scottish Office, which made the fiscal cost of the bridge something in the region of £15 million—which we might call the shore-to-shore cost.
I still think that it is worth the committee asking for that information. I realise that you have done that as an individual, John, but there is no reason why the committee cannot ask for it.
I find the tone of the long and detailed letter from Mark Rae objectionable in parts. It obscures facts that could easily have been released, especially the situation with the Bank of America. It says, for example, that
We are agreeing that we will seek all that information now. So is it agreed—
But time is going by while people are giving us these fudgy answers. We are all sick of them, convener.
John Farquhar Munro mentioned a period of 27 years. I thought that the concession period was between 14 and 18 years.
I understand that the concession period is 14 to 18 years. The Executive referred to that period of time.
That is the minimum.
It is an estimate.
The maximum is 27 years.
Do members want clarification on that point?
We move on to consider the response from the Lord Advocate. Members will note the Lord Advocate's ruling that the decisions of judges are not for him to question; he uses the phrase:
One thing strikes me about the point that the Lord Advocate makes. If we look at the end of the Executive's letter, which Dorothy-Grace Elder called a fudge, the section that deals with the court's scrutiny of the assignation statement states that:
I am advised that the Lord Advocate's ruling is the one that matters. The Executive was wrong, as the decision is for the Lord Advocate and not for the Executive.
The Executive was wrong to state that the Lord Advocate would address the matters.
I have been told that the matters have been addressed, in the sense that the Lord Advocate has said that he will not address them.
Come on—that is adding insult to injury.
It is civil service speak—by the Lord Advocate not addressing something, it has been addressed.
The letter is insulting. It insults the intelligence of the committee and everybody.
Okay. We have gone through PE445 in detail. We have sought responses from the Executive and the Lord Advocate. I sense that the committee is not of the opinion that all avenues have been exhausted and that no further action could be taken. That is the action that was suggested to us. I sense that the committee wants to write to the Executive again to put the detailed questions that have been raised this morning. We want to seek further clarification on all those questions.
When does the Freedom of Information (Scotland) Bill come into effect?
We do not know. We will have to check that.
Perhaps there is a need for such an act after all.
Phil Gallie is changing his mind.
I have another point to make in respect of PE445. I suspect that the argument with the Executive will go on for a long time. However, it is clear that the Scottish Executive could do something about the matter tomorrow, if it so desired, although the solution would be expensive. The issue is political. Perhaps all the parties who will fight the next election in 2003 should consider the matter; that would ensure that the matter would be in—or out of—their manifestos. People will be asked to vote on such issues. We should remind the petitioners of that fact.
You can remind the petitioners of that. Although the matter is not one for the Public Petitions Committee to rule on, the point is well worth making.
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