Dear Mr Thornton,
My argument is not the simplistic one which you attribute to me. Regardless
of one's views on the merits of PFI projects or tolling in general,
unfortunately there are serious questions about the legality of whole tolling
regime in the case of the Skye Bridge. That in itself is a legitimate
matter for comment and concern given that failure to pay the toll is a criminal
offence - and large numbers now have a criminal record as a result of decisions
not to pay the toll.
The legal regime is
unfortunately not a straightforward one. A toll order was made in 1992
which empowered the then Secretary of State to collect tolls for up to 27 years
and to assign his right to collect tolls. Where the right is assigned it
is on such conditions as the Secretary of State thinks fit. Thus the 27
year period does not automatically transfer to the concessionaire. The
terms and conditions of the assignation are thus crucial and in fact do not
assign the right to collect tolls for 27 years. This is where problems
begin to arise between the fundamental principle of law that a person is
entitled to know clearly the circumstances in which his conduct might give rise
to criminal sanctions and commercial confidentiality.
The assignation agreement itself
is commercially confidential although some details of it have leaked out over
the years, mainly as a result of Robbie the Pict's efforts. However,
further legislation requires that an "Assignation Statement" be made
publicly available. This is a crucial document since it is formally the
only indication the public have about the terms on which the assignation has
taken place. Robbie the Pict has pointed to the problems of this document being
unsigned and undated which arguably affects its validity and hence the legality
of tolling regime. Leaving those aside, it is that document, a copy of
which I attach for your information, (click here
to read the assignation statement) which provides the only formal public
indication of the assignation agreement and more significantly, the
circumstances in which the right to toll may come to an end.
You will see that in paragraph 4
of the document that the concession period is to be based on a formula linked to
traffic flow. That in turn is explicitly linked to the time at which the
costs of designing and constructing the bridge and toll plaza etc are met.
When these costs are met then the right to toll ends. As regards the
costs themselves, you indicate in your article that the figure of £23.64
million is my figure. It is not. It is the figure which appears in
the Assignation Statement as you can see. The figure is obviously
presented in such a way as to take account of inflation. However, this
figure is represented - or rather misrepresented - as a fixed one only taking
account of inflation and nothing else. This is where the legal
problem arises. Certainly the concessionaire expected to and indeed has
made a profit from the tolls but that aspect of the agreement, the formula by
which it was worked out etc. has not been made public. By representing (or
rather as I would argue, misrepresenting) the costs as fixed and allowing only
for the impact of inflation, the public who have to pay the tolls are entitled
to expect that once that figure allowing for inflation is reached, the tolls
will end and there will be no more prosecutions. It does not matter that a
commercially confidential agreement may exist somewhere in the background under
which the concessionaire is entitled to collect more money. The public are
entitled to know the circumstances in which tolling will cease. The
Assignation Statement provides the only such an indication within the legal
regime governing the toll and it has never been amended. If the costs
were/are greater then the Assignation Statement ought to have provided fuller
details of the agreement from the outset regardless of commercial
confidentiality or at least have been amended. There is a stronger public
interest in knowing the circumstances in which one might be prosecuted than in
preserving commercial confidentiality.
Further breakdown of the £23.64
million agreed costs are provided in a set of minutes of the then Highland
Regional Council (HRC) dating from 1992 which I also attach. (Click here
to read them.) HRC acted as
agents for the then Scottish Office in relation to the construction of the
bridge as you may know. The costs were represented to them - leaving aside
inflation - as being £23.6 million. The minutes were originally
confidential but have susbequently been made public in the press and, I believe,
in legal proceedings.
Having the right to levy a toll
dependent on the collection of costs the amount of which are governed by a
commercially confidential arrangement offends against the fundamental principle
that the public have a right to know the circumstances in which their conduct
will give rise to criminal penalties. The very uncertainty of the
figure itself undermines the basis for making it a criminal offence to fail to
pay the toll. It is hardly different from having a set of secret laws
which determine when someone will be criminally liable. Given that
over £30m has now been collected it is therefore far from unreasonable to
assert that on the face it and taking account of inflation, the circumstances
which trigger the end of the right to toll may now be present given what the
legal regime governing the right to toll actually provides.
It has to be said that usually
in Private Finance Initiative projects the issue of commercial confidentiality of costs is
understandable and unproblematic because they relate to school or hospital
construction and there is simply no issue of potential criminal liability for
members of the public arising. However, in the case of the Skye Bridge, it
is far from unproblematic since refusal to pay the toll gives rise to criminal
sanctions. There are ways round this: the legislation governing the new
toll motorway around Birmingham simply assigns the right to collect a toll for a
certain period rather than linking it to recovery of the costs of the project.
Although again one might take issue with the merits of tolls per se, that
regime is unproblematic in legal terms since the public know that they must pay
a toll during the period concerned otherwise they face criminal sanctions.
That could have been done with the Skye Bridge: unfortunately it was not.
The mess arises here from the
poorly thought out legal regime governing this Private Finance Initiative project.
Professor Mark Poustie, 28 November 2004
iGreen reply
We are happy to apologise for our rudeness, for claiming that Professor
Poustie "got in on the act" and for misrepresenting the basis of his
argument that the toll regime is now illegal. We have withdrawn the
intemperate remarks.
Jim Thornton 29 November 2004.
