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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.  

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Last modified: October 19, 2005