Public Petitions Committee

Meeting date: Tuesday, May 28, 2013

Official Report 471KB pdf

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New Petitions

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A90 Dualling Project (PE1478)

Agenda item 3 is consideration of two new petitions. The committee previously agreed to invite the petitioners to speak to both petitions.

The first new petition is PE1478, by Murray Cooper, on the A90 Balmedie to Tipperty dualling project. Members have paper 3, which is a note by the clerk, the Scottish Parliament information centre briefing, and the petition.

I welcome the petitioner, Murray Cooper. Thank you for coming to the meeting. I ask you to make a short statement of around five minutes, after which my colleagues and I will ask questions before we decide on a course of action.

11:00

Good morning, everybody. I am not here today to argue the case for the upgrading of the 11km section of the A90 or to say that it is urgently required because those are facts that are universally agreed and accepted. That is why the Scottish Government has already consulted on, planned and designed the project, and why it had matters in hand for the work to be started in 2009 and completed in 2013.

Transport Scotland’s website says:

“These improvements will provide continuous dual carriageway between Aberdeen and Ellon, which will remove the bottleneck caused by the existing single carriageway”.

The website also notes that the situation has caused much distress to the local community, which has been pressing for the upgrade for a number of years.

The case is clear. The improvements are required. They have been designed and approved and are on track—at least, they were in 2009. Unfortunately—that might be the wrong word—in 2011, somebody decided to merge the project with the Aberdeen western peripheral route. Based on the potential cost savings to be gained from combining the two projects, it was probably a good idea at the time. However, “was” is the key word in that sentence. At the time, Road Sense had not begun its relentless legal challenges, the commencement of which caused both projects to be delayed. Despite the fact that we have asked local MSPs and Scottish ministers to explain why the two projects should remain combined, we have never been given any reasonable explanation for that.

As members will be aware, the legal challenges eventually came to an end. Since then, the Government has developed a timeline for the development of both the AWPR and the Balmedie to Tipperty section of the A90. The projects are out to tender and contracts will be awarded in autumn 2014, with work to be completed in 2018. Within that timeline, there is no clarity about when the Balmedie to Tipperty section will be completed. Based on the information that is available to the public, it seems unlikely to be completed before 2016, and its completion could be as late as 2018.

From the petition, you will be aware of some of the questions that I have asked various MSPs and the Government. I did not really get many answers to those questions.

The A90 north of Aberdeen is the only transport route for people in the north-east of Scotland. We do not have a rail link and we do not have an alternative A-class road. This road is it. Peterhead, Fraserburgh and Ellon are the largest, second-largest and sixth-largest towns in Aberdeenshire, and it is estimated that the road supports around 80,000 people commuting into the Aberdeen area.

As you are aware, Peterhead is a major oil and gas services port, and it and Fraserburgh account for 45 per cent of all fish landings in the UK. All that produce has to travel along the road, as does all the produce from the local farming communities and other industries. The main hospital for the area is the Aberdeen royal infirmary. Anyone who has had an emergency or is suffering from a long-term illness has to travel along the same route.

A large population base uses the A90 to commute from those towns and the surrounding areas to Aberdeen every day to work. They have no option, as public transport also uses the same section of road. The local park-and-ride facility opens on to that section of road, as well.

I have a list of questions for you guys to consider, but the key point is that unless there is a clear commitment to deliver the upgrade to the road in line with the original promise, the long-suffering and hard-working people of the north-east of Scotland will remain stuck in daily traffic jams to get to their place of employment, the markets for their goods, their health services and their education services for many years to come. The view seems to be that we should be happy to wait until 2018 to see any improvements to what is clearly some of the poorest infrastructure in Scotland just because somebody somewhere has decided—without reasonable explanation—that that is right. Surely that is not acceptable to the Scottish Parliament.

You make a strong and compelling case. I understand the frustration that you and people in communities in your area must feel day in, day out.

It is easy to go back in time and rewrite history, but would you say that it was a mistake to link the project to the AWPR development? Obviously, the legal challenges were not the Scottish Government’s fault; they were done by someone independently. Do you think that the decision to link it is what caused the main delay in the project?

Subsequent to the legal challenges, the linking of the projects has caused the main delay. I do not think that it was a bad idea at the time. I am an operations manager in a FTSE 100 oil services company, so I know about making tough decisions on such matters. However, people can also review what has been done and decide whether it is still the right course of action.

Could the Balmedie to Tipperty project be disconnected from the umpteen western peripheral route projects at this late stage?

Yes, absolutely. Anything is possible, if there is the will.

The questions that I have asked and which are part of my petition have not been answered. No one has explained in detail why combining the projects was the right decision in the first place. I have made my own assumptions, including on costs, which I think are appropriate. However, no one has documented savings versus the cost of the delay.

Do you have questions that are separate from and independent of the petition? We often send petitions to the Scottish Government for comment. We would welcome sight of any such questions, which you should give to the clerk. I am sure that committee members want the Government and Transport Scotland to look at and comment on your questions.

My questions reiterate those that I sent in my original letter to the Minister for Transport and Veterans. How was the decision made? What data set was used to make the decision? Is the decision still valid? Are there alternative options to be looked at? Even with a combined scheme, are there clever things that the Government could do in tendering to accelerate and commit to the early delivery of certain parts of the project?

Those all seem sensible to me. I throw the floor open to committee members for comments. At this stage, my instinct is to ask the Scottish Government and Transport Scotland for their views on Mr Cooper’s petition and a response to his questions, but members may have other views.

You have covered most of the matter, convener. Although I have some sympathy with the petition, we know that the project will not be completed by mid-2014, which is what the petition asks for. On that basis, the petition should fall. However, there is no harm in asking for further clarification. I am sure that there must be good reasons, not just related to cost but related to construction, as to why the project was bundled with the AWPR, and we know what happened to that project.

The note that we have in front of us is clear that the Balmedie to Tipperty project and the Aberdeen western peripheral route project are out to tender. If we are going to write to Transport Scotland and the Scottish Government, it would also be useful to ask Aberdeen City Council, as the managing agent for the contract—in effect, the Government and Transport Scotland have handed the matter over to Aberdeen City Council to progress—about whether separating out the contracts or the timescale would be problematic. It would be interesting to find out whether it would be possible to bring into the tender—without having to rewrite it—some phasing of work in a timescale that the petitioner would find more appropriate.

Do members agree to John Wilson’s suggestion?

Members indicated agreement.

It is important that we keep the petition open and, as John Wilson has suggested, that Aberdeen City Council, Transport Scotland and the Scottish Government clarify matters and respond to the questions that the petitioner has brought to us.

We will continue the petition and seek advice and information from Transport Scotland, the Scottish Government and Aberdeen City Council. We will keep in touch with Murray Cooper through the clerks and keep him up to date with developments.

I thank Mr Cooper for travelling through to Edinburgh and for taking time out of his busy job to put the petition to us in person.

No problem, and thank you for your time.

11:09 Meeting suspended.

11:10 On resuming—

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Solicitors (Complaints) (PE1479)

The second new petition is PE1479, by Andrew Muir, on complaints about solicitors. Members have a note by the clerk, which is paper 4, the SPICe briefing and the petition. Jackie Baillie, who is Mr Muir’s constituency MSP, had hoped to come along today but, given that the timing coincides with the meeting of the shadow cabinet, it is probably unlikely that she will make it.

I welcome the petitioner. Thank you for coming along, Mr Muir. I ask you to make a short statement of around five minutes, after which we will ask questions.

Hello. Thank you for allowing me to speak.

In the run-up to the independence referendum, I am trying to make Scotland a fairer and nicer place to live in, and to make services more accountable. That is the point of my petition and of my previous petition about the Scottish Public Services Ombudsman, which I spoke to the committee about last year.

The legal profession is very powerful in Scotland. Members of it can be very highly paid. Given their importance, it is essential that they come under the highest possible level of scrutiny and accountability. It is ridiculous that complaints can be made only within one year of an event happening. I would like to briefly share my complaint experiences.

The report, “Limited Review of the Mental Health (Care and Treatment) (Scotland) Act 2003”, was presented to Scottish ministers in March 2009. On page 41, it states that a major issue concerning mental health tribunals was the

“availability, quality and style of legal representation.”

On page 43, it states that the quality of legal representation was poor. Unfortunately, nothing has changed to correct those matters since 2009.

My wife was put under compulsory treatment for 15 months under the 2003 act and was given a solicitor, from a very limited choice, to represent her at mental health tribunals. To our horror, her solicitor, in a Kafkaesque situation, worked for the other side at those mental health tribunals by making several false statements. The solicitor was paid legal aid by the taxpayer but was worse than useless. She failed to point out serious procedural omissions when my wife’s liberty and right to refuse treatment were at stake. That is hardly the robust safeguard that was intended by the 2003 act.

After I had complained to the health board, the ombudsman and several other parties about other matters, I complained to the Law Society of Scotland about the issue some 15 months after my wife’s treatment had ended.

I am sorry to interrupt your presentation, Mr Muir, but it would be really useful if you could focus on the bigger issue that the petition deals with and how it affects people throughout Scotland. I appreciate that your wife’s situation is very pertinent to you, but focusing on one individual rather than the wider issue causes the committee some difficulty. Would it be possible for you to edit your comments?

Okay. I had been going to talk about how we went to court and how that did not work out. Would that be of any interest?

We would run into the same problem. We want to look at the wider issue. There are constraints on what the committee can and cannot hear about court cases, even if they have been dealt with.

I was just going to say that we went to court and that, because of the Scottish legal system, that did not work out. That makes it even more important that there is no time bar on complaints. Perhaps members would like a transcript of my speech so that they can read it themselves. It is about why the court case did not work out.

What would you like to do?

The advice that I am being given is that we need to hear about how the wider issue, which relates to complaints against solicitors, affects people in Scotland. The issue with your wife must be very painful, but there are some procedural constraints on us, which is why I pulled you up. I am sorry to have interrupted your remarks.

Are there any other points that you would like to make in summary?

I would just like to say that you cannot complain about a solicitor in a Scottish court, although you probably could in an English court. There are subtle differences, which mean that complaining about a solicitor is a problem in the Scottish justice system. Although the Scottish system is called distinctive by some commentators, I would call it unfair and unaffordable. The removal of the time bar would help to redress the balance a little.

I will leave it there and will miss out the second part of my remarks.

Okay. I apologise again for interrupting you. I am sure that you appreciate the constraints that we operate under. Thank you very much for your understanding.

I invite questions from committee members.

Good morning, Mr Muir.

The advice that we have been given says that the Scottish Legal Complaints Commission will not accept a complaint that is made more than one year after the event

“unless the Commission considers that the circumstances are exceptional”.

Did the commission give you any indication of what might be “exceptional” circumstances?

No, it just said that it was not going to deal with the complaint. It gave no indication at all of that.

That was it—it was not going to deal with it.

Yes, it was just not going to deal with it. Once I got the tribunal transcript, I tried again. After the court case, I tried again. The commission just continued to cite the one-year time ban and said that it would not deal with the complaint.

11:15

Perhaps I should understand this better but did you receive any guidance as to why there is the limitation? Why will a complaint not be accepted after one year?

The thinking seems to be that before a year is up you will have all the evidence, you will know exactly what you are doing, there will be no constraints on you and everything will be there. However, it does not work like that in practice.

Of course it does not work like that in practice on either side.

From my point of view—

I have some experience of this, having been at the Law Society of Scotland. The commission might say that it cannot accept a complaint after a year but do you know of circumstances in which a lawyer has not been able to respond in time but has still been able to provide evidence after a year?

I do not know anything about that.

There is no fairness, is there?

Well, as I have said, things like the Jimmy Savile case can go on for 40 years. Because of this big barrier in getting information and getting people to do things, one year is nothing.

And you get absolutely no explanation.

There is no explanation.

The Justice Committee has contacted the cabinet secretary but it is still awaiting his response. Have you received any response?

No. I saw that on the website, but I am in the dark about it.

Do you think that there should be a time bar and, if so, what would you consider to be reasonable? Do you think that there should be no time bar at all?

I do not think that there should be any limit. People have talked about three years or five years; I am seven years down the line now and, as I have said, the cases involving Jimmy Savile, the Catholic church and so on have been going on for 40 years. I could go on. As I was trying to explain in my introductory remarks, the time bar is such a barrier.

So you think that there should be no time bar.

None whatever.

Did you deal with one person or a series of people at the Scottish Legal Complaints Commission?

I had never heard of these organisations when I complained—I was expected to know all about them, the one-year rule, the two-year rule and so on. First of all, I went to the Law Society in 2009; it looked at my complaint and passed me on to the SLCC, where another person looked at it. Both said the same thing: “No, we’re not looking at this.”

I know that under the committee’s procedures we are not able to go into your wife’s circumstances in any detail but given that the petition impinges on wider mental health issues I wonder whether you have approached any of the mental health charities or organisations for a view.

When I approached the Mental Welfare Commission, it said, “What? A lawyer making up that sort of thing? Wouldn’t happen in practice.” It was not interested—it simply could not believe that it could happen.

And have you spoken to any of the charities?

Not really. I have been down the other complaints routes and have spoken to the ombudsman, my local council, the health board, the police—at least 10 others. However, I have not spoken to a charity as such.

The next step is for the committee to discuss how it will deal with the petition. We always ask witnesses to stay for that discussion to ensure that the process is open and transparent.

I certainly think that there is an argument for asking the Scottish Government, the Scottish Legal Complaints Commission and the Law Society of Scotland for their views on the petition, but I seek members’ own views on whether they think that that would be appropriate.

I think so, convener. This might not be the right place to make this comment, but I have to say that I am frustrated that some in the legal profession feel that they are a sector apart from society; indeed, we have already had a conversation about another individual not appearing before the committee. They are not a sector apart and I think that we should make it clear in the strongest possible terms that we are seeking information from the Government, the SLCC and the Law Society on their processes and their approach to such matters.

I also want to know why, if the Government was supposed to provide an update by Wednesday 22 May, no response was received as of 21 May.

Following Jim Eadie’s comments, I am keen to ask mental health charities and organisations for their views on the matter. After all, it will affect not just one person.

I also note that the SLCC has suggested to the Scottish Government that the Legal Profession and Legal Aid (Scotland) Act 2007 be reviewed. It would be good to hear the Scottish Government’s views on that.

Indeed. Given that the SLCC is a comparatively new body, it would also be interesting to hear its own views.

Do members agree with the approach that has been outlined?

I am happy to go along with that broader approach, convener. However, given that the Justice Committee is carrying out post-legislative scrutiny in this area and given that this is a highly personalised example of issues that arise, I would—unusually, it has to be said—also recommend that on this occasion we refer the petition to the Justice Committee.

I take that point. We should certainly not rule that out when we get the various responses and discuss the petition again.

In a letter that we have received, the Law Society’s director of law reform says:

“If the petitioner has not done so already he may want to seek legal advice about the exercise of this discretion by the Commission.”

My experience is that these matters go round a little pool of legal advisers, solicitors and what have you without any determination being reached. It is almost like a closed sect, and I think that it has to stop. If we want a fair and open society, the legal profession has to play the game like everyone else.

Thank you for that.

In summary, Mr Muir, the committee is keen to continue your petition and to seek advice from the organisations that members have mentioned. The clerks will keep you up to date with developments. Thank you again for taking the time to come along and give evidence; I am sorry that we had to cut you off on a purely procedural point.

I suspend the meeting for a minute to allow Mr Muir to leave.

11:22 Meeting suspended.

11:22 On resuming—