APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Sutherland Appeal Nos: 787/98
Lord Marnoch281/98
Lord Cowie 1776/98
280/98
OPINION OF LORD SUTHERLAND
in
STATED CASES
in causa
ALEXANDER SMITH, ANDREW MacRAE MILLER, ANDREW McMORRINE and ROBBIE THE PICT Appellants;
against
PROCURATOR FISCAL, Dingwall Respondent:
Appellants: M.E. Scott; Wheatley & Co: M.E. Scott; Party: N. MacKenzie; Wheatley & Co:Party; Party Respondent: R. Anderson, Q.C., A.D.; Crown Agent
16 December 1999
These are four appeals against convictions under section 38 of the New Roads and Street Works Act 1991 ("the 1991 Act"). The appellant McMorrine was convicted on 27 May 1997 of two contraventions; the appellant Smith on 4 November 1997 of three contraventions; the appellant Miller on 18 November 1997 of twelve contraventions and the appellant Robbie the Pict on 19 November 1997 of twelve contraventions. While there are differences between the original and amended grounds of appeal for each appellant there are two fundamental matters which will decide these appeals. The first of these issues relates to whether the employers of the toll collectors on the Skye Bridge have authority to collect toll charges. The second relates to the status of the statutory instruments which constitute the toll order and the scheme, and in the case of Robbie the Pict the assignation statement.
The statutory framework under which tolls are charged is to be found in sections 27 to 40 of the 1991 Act. The following provisions are relevant to the present cases:
"27(1) An order authorising the charging of tolls (a 'toll order') by a roads authority may be made in relation to a special road proposed to be provided by that roads authority.
(2) A toll order relating to a special road to be provided by the Secretary of State shall be made by the Secretary of State...
(3) Part IIA, paragraphs 15 and 18 of Part III, and Part IV of Schedule 1 to the Roads (Scotland) Act 1984 apply to the making or confirmation of a toll order and Schedule 2 to that Act applies to a toll order with regard to its validity and date of operation.
(4) The proceedings required by Part IIA of Schedule 1 to that Act to be taken for the purposes of a toll order shall (so far as practicable) be taken concurrently with the proceedings required to be taken for the purposes of the special road scheme authorising the provision of the road to which the order relates...
(10) The power conferred on the Secretary of State by this section to make or confirm a toll order is exercisable by statutory instrument.
28(1) A toll order may authorise the special road authority in whose name it is made to assign, subject to subsection (2), to a person, for such period and subject to such terms and conditions as they think fit, their rights under a toll order to charge and to collect tolls.
(2) A special road authority may grant such an assignation only to a person who has undertaken such obligations as may be specified in the assignation with respect to the design, construction, maintenance, operation or improvement of the road.
29(1) A toll order shall provide for tolls to be chargeable for a period (the 'toll period') specified in or determined in accordance with the order...
31(3) Subject to section 32, where a toll order does authorise a special road authority to assign their rights under the order to charge and collect tolls, it shall not specify any maximum in respect of tolls which may be charged by the concessionaire...
32(1) A toll order which relates to a road which consists of or includes a major crossing to which there is no reasonably convenient alternative shall specify the maximum tolls which may be charged in respect of that road.
(2) The Secretary of State may make provision by regulations as to what is to be treated as a major crossing for this purpose and as to the circumstances in which another route is to be taken to be, or not to be, a reasonably convenient alternative...
35(1) The rights of a concessionaire under an assignation granted under section 28(1) may, with the consent of the special road authority, be assigned by the concessionaire...
36(1) A toll order may contain provision exempting from liability for tolls such descriptions of traffic as may be specified in the order. This does not affect the power of the person authorised to charge tolls to grant such other exemptions from toll as he thinks fit...
(3) A person authorised to charge tolls may, subject to the provisions of the order -
(a) suspend the collection of tolls;
(b) enter into agreements under which persons compound in advance, on such
terms as may be agreed, for the payment of tolls;
(c) charge different tolls according to -
(i) the distance travelled; or
(ii) the day, time of day, week, month or other period; and
(d) charge different tolls for different descriptions of traffic.
In the case of a concessionaire the powers mentioned above are exercisable subject to the provisions of the assignation.
37(1) The Secretary of State may make provision by regulations with regard to the collection of tolls in pursuance of a toll order.
(2) Different provision may be made for different types of road or different types of toll, or for particular roads or particular tolls.
(3) Regulations may, in particular, impose requirements with respect to -
(a) the displaying of lists of tolls, and
(b) the manner of implementing changes in the amount of tolls;
and where any such requirements are imposed, a toll may not be demanded unless they are, or as the case may be have been, complied with.
(4) A person who in respect of the use of the road to which a toll order relates demands a toll -
(a) which he is not authorised to charge, or
(b) which by virtue of subsection (3) may not be demanded,commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(5) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
38(1) A person who without reasonable excuse refuses or fails to pay, or who attempts to evade payment of, a toll which he is liable to pay by virtue of a toll order commits an offence and is liable on summary conviction to a fine not exceeding level 3 on the standard scale...".
It is convenient at this stage to notice certain provisions of the Roads (Scotland) Act 1984 ("the 1984 Act"). Section 7 makes general provision as to special roads and provides that a roads authority may be authorised by means of a scheme under that section to provide along a route prescribed by the scheme a special road for the use of traffic of any class so prescribed. A scheme under section 7 authorising the provision of a special road shall in the case of a road to be provided by the Secretary of State be made by the Secretary of State in accordance with the provisions of Parts II and III of Schedule 1 to the Act. Part II of Schedule 1 provides that where the Secretary of State proposes to make a scheme under section 7 he shall publish a notice stating the general effect of the proposed scheme. Thereafter provision is made for dealing with objections to the proposed scheme. Part III also deals with the matter of objections to the proposed scheme. By paragraph 96 of Schedu le 8 to the 1991 Act an additional Part IIA was inserted into Schedule 1 to the 1984 Act. The relevant provisions of Part IIA are as follows:
"14A(1) Where the Secretary of State proposes to make a toll order under section 27 of the New Roads and Street Works Act 1991, he shall prepare a draft of the order and shall publish in at least one newspaper circulating in the area in which the proposed special road is to be situated, and in the Edinburgh Gazette, a notice -
(a) stating the general effect of the proposed order;
(b) naming a place in that area where a copy of the draft order may be inspected by any person free of charge at all reasonable hours during the period specified in the notice, it being a period of not less than six weeks from the date of the publication of the notice; and
(c) stating that, within that period, any person may by notice to the Secretary of State object to the making of the order...
(3) Where it is intended that the proposed toll order shall authorise the special road authority to assign their rights to charge and collect tolls, the Secretary of State, or, as the case may be, the local roads authority shall make a statement containing such information as may be prescribed with respect to that assignation and the person to whom the rights are intended to be assigned and -
(a) the statement shall be made available for inspection with a copy of the order to which the notice under subparagraph (1) or (2) relates; and
(b) the notice shall state that such a statement will be so available.
(4) In subparagraph (3) 'prescribed' means prescribed by the Secretary of State by regulations made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament".
Section 143 of the 1984 Act under the heading "Regulations, Orders and Schemes" provides as follows:
"143(1) Where a power to make regulations or orders, or to make or confirm schemes, is exercisable by the Secretary of State by virtue of this Act, the exercise of that power shall be by statutory instrument under this subsection, and may -
(a) make different provision in relation to different cases or classes of case;
(b) exclude certain cases or classes of case.
(2) A statutory instrument -
(a) made under subsection (1) above and containing -
(i) regulations other than such regulations as are mentioned in paragraph (b)(i) below; or
(ii) an order under section 154 of this Act, shall be subject to annulment in pursuance of a resolution of either House of Parliament and
(b) containing -
(i) regulations under section 17 of this Act; or
(ii) an order under section 8 or 153 of this Act, shall not be made under subsection (1) above unless a draft of the instrument has been laid before Parliament and has been approved by resolution of each House of Parliament".
The proposal for the construction and operation of the Skye Bridge was that it should be privately financed. Accordingly the Secretary of State as roads authority proceeded to make the necessary orders and regulations under the 1991 Act with a view to assigning the right to charge and collect tolls to a concessionaire in return for the financing of the construction and the operation of the bridge. The first step was for the Secretary of State on 26 September 1991 to make the Assignation Statement (Prescribed Information)(Scotland) Regulations 1991 (S.I. 1991/2152) as required under paragraph 14A(4) of Schedule 1 to the 1984 Act as amended. This was followed by the assignation statement in terms of paragraph 14A(3). This statement opens:
"The Secretary of State, in accordance with paragraph 14A(3) of Part IIA of Schedule 1 to the Roads (Scotland) Act 1984 and the Assignation Statement (Prescribed Information)(Scotland) Regulations 1991, hereby makes the following statement with regard to the intended assignation by the Secretary of State of his rights to charge and to collect tolls under the proposed Invergarry-Kyle of Lochalsh Trunk Road (A87) Extension (Skye Bridge Crossing) Toll Order ('the toll order')".
It then goes on to make various statements as required by the regulations. In compliance with section 7(6) of the 1984 Act a notice dated 23 October 1991 was published giving notice that the Secretary of State proposed to make a scheme in connection with the construction of the bridge crossing. In compliance with paragraph 14A(1) a notice of even date was published giving notice that he proposed to make the toll order and also giving notice that he had made an assignation statement. These documents were available for public inspection. In anticipation of the ultimate making of the toll order a number of contractual documents were entered into on 16 December 1991, some of which are said to be relevant for present purposes. The principal document was the Concession Agreement, the main purpose of which was to assign to Skye Bridge Limited, as concessionaire, the right to charge and collect tolls for the duration of the concession period in return for an obligation on the part of Skye Bridge Limited to maintain and operate the crossing. Clause 28 of that agreement provides:
"Except where this agreement expressly provides otherwise the concessionaire shall not be entitled to assign or subcontract its rights or obligations under this agreement in whole or part without the consent of the Secretary of State, such consent not to be unreasonably withheld...".
Clause 1.2.3 of the agreement provides that wherever in the agreement provision is made for the giving of inter alia consent, that shall be in writing. The next document was the Operations and Maintenance Agreement ("the OMA"), entered into between Skye Bridge Tolls Limited on the one part and Miller Civil Engineering Limited and Dyckerhoff and Widmann AG trading together as the Miller/Dywidag Joint Venture ("MDJV") on the other part. The preamble narrates that the concessionaire wishes to engage MDJV to operate and maintain the bridge during the concession period on the terms and conditions contained in the agreement. Clause 3.1 provides:
"The concessionaire appoints the operator and the operator accepts such appointment, to perform the services on and subject to the terms and conditions of this agreement".
Clause 4.6 provides:
"In performing the services, the operator shall at all times act as an independent contractor and not as agent of the concessionaire. The operator shall not have, and shall not hold itself out as having, any authority to contract with any third party, or otherwise to incur any obligation or liability in the name of or on behalf of the concessionaire, save only with the specific prior approval of the concessionaire or as may be otherwise expressly provided herein".
Clause 8.2(B) provides:
"In operating the main bridge, the operator shall, on the concessionaire's behalf, collect from tolled traffic using the crossing, the tolls established and charged by the concessionaire pursuant to the terms of the concession agreement and notified to the operator in writing by the concessionaire from time to time (which tolls are referred to in this agreement as 'the tolls')".
The third document of significance is an agreement among Dyckerhoff and Widmann AG, Skye Bridge Tolls Limited and the Secretary of State to which is attached a memorandum. The principal purpose of the agreement relates to what is to happen in the event of the termination of yet another agreement, the Development Agreement. The memorandum bears to be a record of an agreement made among the Secretary of State, Skye Bridge Tolls Limited, the Miller Group Limited, Miller Civil Engineering Limited, Dyckerhoff and Widmann AG and the Miller/Dywidag Joint Venture, all of whom have signed the memorandum. It records agreement that each party which is a party to a "relevant document" confirms to each other party thereto that the documents have been entered into on the basis that certain other documents relating to financing have not yet been entered into and in the event of these latter documents not being entered into the rights and obligations of each party to a relevant document shall cease to exist. The "relevant documents" include the Concession Agreement, the Development Agreement, the OMA, and the agreement to which the memorandum is attached. On 23 June 1992 the Toll Order and the Invergarry-Kyle Road Scheme were made, to come into force on 26 June 1992. These orders were certified as being local and were not printed by the Queen's printer or laid before Parliament.
Miss Scott, on behalf of the appellants Smith and Miller, presented an argument that the persons who collect tolls at the bridge are employees of Miller Civil Engineering and they have no lawful authority to collect tolls. Her argument was adopted by the other appellants. Her submission was that section 28 of the 1991 Act authorises the Secretary of State to assign his rights to charge and collect tolls to any person subject to such terms and conditions as he thinks fit, and she submitted that some of these terms and conditions are contained in the statute and others are contained in the various agreements. The Concession Agreement includes the term that the written consent of the Secretary of State is required for any assignation or subcontract of the concessionaire's rights and obligations. The OMA constitutes a subcontract and there has been no written consent of the Secretary of State to that subcontract. Accordingly, the subcontract had not been properly authorised. Counsel accepted that section 28 per se does not require written consent, but she submitted that it does require compliance with terms and conditions. As one of the conditions of the contract between the Secretary of State and the concessionaire was that there should be written consent for any subcontract, this is effectively incorporated into the statutory scheme. Where there has been a breach of that requirement the whole arrangement is void and not voidable. She submitted that the whole scheme shows that there must be visible authority to charge tolls and this includes authority to collect tolls. The public are entitled to be told who is charging and what is the authority of the person collecting. Here the collection is being carried out by a third party who is nowhere publicly identified and that offends against the statutory scheme. Unlawful collection is a criminal offence under section 37(4) and this clearly shows that it was intended that the authority of the person collect ing should be demonstrated to the public. Any person who qu estions the right of a collector and who cannot be satisfied that the collector is authorised has a reasonable excuse not to pay. The case of Anderson v. Hingston 1996 S.C.C.R. 921 can be distinguished because in that case the Concession Agreement, and in particular clause 28, was not available to the court. Accordingly, the court inferred that men in uniform in the toll booths demanding tolls did so with the authority of the concessionaire. Now that clause 28 has come to light it is apparent that this assumption was incorrect because there has been no written consent of the Secretary of State. In the Sheriff Court the Crown had argued that written consent of the Secretary of State could be found in the memorandum attached to the agreement of 16 December 1991. Miss Scott submitted that for the reasons given by Lord Eassie in the petition of Robbie the Pict v. Miller Civil Engineering Limited and Others 3 March 1999 this contention was unsound. Lord Eassie held that it does not follow because the execution of a document is consistent with the existence of consent that the document thereby becomes the expression of consent in writing. The purposes of the memorandum were completely unrelated to the particular issue of eliciting the Secretary of State's written consent to the engagement of a subcontractor for the operation of the crossing. Accordingly, he came to the view that the execution of the memorandum did not constitute an expression of consent in writing for the purposes of clause 1.2.3 of the Concession Agreement. In so far as it might be suggested that the Secretary of State had waived his right to consent in writing, Miss Scott submitted that if there was a gap in the procedure that is a matter for the Crown to overcome and not the appellant. On the whole matter, therefore, she submitted that in the absence of any clear authority for employees of Miller Civil Engineering to collect tolls, any person crossing the bridge was entitled to refuse to pay because he could not be satisfied that the collecto r had proper authority.
In reply the advocate depute said that the Crown position was that the Secretary of State has always consented to MDJV being the collectors of the tolls. The issue of whether or not his consent was in writing is of no import in relation to the legality of what was happening. What matters is that there was actual consent and it is quite immaterial to a third party whether that consent was written or not. The memorandum is a record of agreement on 16 December 1991 amongst all parties having an interest. It was an essential component of a package and covered all agreements and guarantees. Everybody met on 16 December 1991 so that the whole package could be signed at that time, and subject only to the financial arrangements being put in place the whole deal was then arranged. Everybody, including the Secretary of State, must have known perfectly well what was contained within the whole package. The preamble to the OMA makes it quite clear that the party entitled to the income, nam ely the concessionaire, was going to make use of an operator for services in connection with the project. It is clear from that agreement that all actings of the operator were to be overseen by the concessionaire. What the operator was going to do was to collect the charges which the concessionaire was entitled to make and account for these charges to the concessionaire. There is no statutory provision requiring written consent by the Secretary of State for the concessionaire to enter into any form of subcontract. The provision for written consent is contained in a private contract between the Secretary of State and the concessionaire and is therefore of no concern to any third party. In any event such a requirement could be waived by the Secretary of State, this being a private contract. Finally the court could take the view that as the memorandum was signed by the Secretary of State it should be regarded as implied consent in writing to the terms of the whole package, includ ing the OMA.
In my opinion the appellant's submissions are misconceived. It is an essential feature of the submissions that there had been no written consent by the Secretary of State to the subcontracting by the concessionaire of the collection of tolls to Miller Civil Engineering. I accept that there has been no assignation by the concessionaire and also that in terms of clause 4.6 of the OMA, MDJV are not agents of the concessionaire but are independent contractors. It is accordingly clear that as far as the Secretary of State is concerned Skye Bridge Limited is the concessionaire and MDJV are subcontractors. What is crucial to ascertain, however, is not merely whether MDJV are subcontractors but what it is that has been subcontracted to them. What has been contracted to them under the OMA is the task of performing certain services, including the collection of tolls on behalf of the concessionaire. What the concessionaire under clause 28 of the Concession Agreement is not entitled to subcontract without the consent of the Secretary of State is "its rights or obligations under this agreement". In my opinion the provisions of the OMA do not constitute any subcontracting of any rights of the concessionaire. It is clear from clause 8.2(B) that the amount of the tolls is fixed by the concessionaire, and it is also clear from clause 4.10(A) that they retain control over the manner in which MDJV collect the tolls. In my view the concessionaire has retained the right to charge and collect and all that is done by the OMA is to arrange the way in which they exercise that right by employing independent contractors to act on their behalf in the physical collection of the money. That does not confer any independent rights on the contractors. Their authority to collect the tolls is wholly dependent on the authority granted to them by the concessionaire and the granting of that authority is merely an exercise by the concessionaire of their right, which they retain, to char ge and collect. It was suggested by Miss Scott that the rig ht to charge and the right to collect are disjunctive and that the right to charge could be retained but the right to collect subcontracted. However, in my view the right to charge is of no value unless there is also a right to collect and I do not regard the phrase "the right to charge and collect" as being in any way disjunctive. It follows that what has been subcontracted under the OMA is not something for which the Secretary of State's consent is needed. Even if consent was needed I am satisfied that the Secretary of State has given at least implied consent. As at 16 December 1991 when all the relevant documents were signed it is perfectly plain that the Secretary of State was aware of the existence of the OMA being one of the documents referred to in the memorandum signed on his behalf. He must, accordingly, have been perfectly well aware that the arrangement was for MDJV to collect tolls on Skye Bridge's behalf and he could not have signed the memorandum without acceptin g the OMA and the arrangements contained therein. As the advocate depute pointed out what this case is concerned with is whether MDJV and those acting on their behalf have authority to collect tolls and the Secretary of State's acceptance of the OMA clearly implies such consent. If necessary I would be prepared to hold that as the implication of consent was contained in the memorandum signed on behalf of the Secretary of State, this would constitute written consent. However, as the matter of whether or not consent should be in writing is contained in the Concession Agreement which is a private contract between the Secretary of State and the concessionaire it would be open to the Secretary of State to waive insistence on the requirement that consent should be in writing and, further, whether or not consent was implied, verbal, or written, is res inter alios as far as any person not a party to that agreement is concerned. For these reasons I am satisfied that the appellant's attack on the chain of authority cannot succeed. I should add that while counsel pointed to the fact that under the OMA it was MDJV who were authorised to collect the tolls whereas in fact this was being done by Miller Civil Engineering, she did so simply to emphasise that this was yet another step down the road of delegation. As Miller Civil Engineering forms part of the joint venture I am unable to see that any objection can be taken to Miller Civil Engineering collecting on behalf of MDJV. As the Lord Justice Clerk points out in Anderson v. Hingston the maxim omnia rite et solemniter acta praesumuntur applies until the contrary is proved, and I am satisfied that nothing has been put before this court to show any ground for saying that the authority of Miller Civil Engineering to collect the tolls on behalf of the concessionaire can be impugned. As this was the only ground of appeal in the cases of Smith and Miller these appeals will be refused.
Counsel for the appellant McMorrine submitted two additional arguments. In the first place he argued that the appellant, who had represented himself at all stages in the Sheriff Court, had been dealt with oppressively because he had not been permitted to recover certain documents and present arguments which could have been based on these documents. I can deal shortly with this point. The documents which he sought are now before this court, having been produced by the Crown in subsequent cases. The arguments which the appellant would have submitted on these documents are the arguments which are now before this court and are pure matters of law. If the arguments are sound, this court will quash the conviction. If they are unsound, the sheriff, if he had heard them, would have been bound to repel them. It is, accordingly, no longer material to consider whether or not the sheriff or sheriffs acted oppressively, because on no possible view could it be maintained that there has been a miscarriage of justice.
Counsel's second argument related to the special roads scheme and the toll order, both of which were introduced by statutory instruments. The argument falls into two parts. In the first place it was said that these statutory instruments were not laid before Parliament as was required by section 143(2) of the 1984 Act. Secondly, it was said that these statutory instruments required to be printed and sold in terms of the Statutory Instruments Act 1946 and the Statutory Instruments Regulations 1947 (S.I. 1948/1) and that this was not done. For either or both of these reasons the statutory instruments were not properly made, and the prosecution therefore proceeded on the basis of a fundamental nullity. In relation to the first part of the argument the submission was that clause 3 of the scheme in referring to "all classes of traffic set out in Schedule 3 to the said Act are hereby prescribed for the purposes of use of the special road..." constitutes a regulation and accordingly f alls within section 143(2)(a), and the same applies to clause 2 because it regulates the route of the bridge and the road. Similarly, in relation to the toll order various clauses in that order constitute regulations. By implication from section 27(10) section 143 is brought in because the toll order is twinned with the special scheme order which is subject to section 143. Section 27(3) applies Schedule 1 to the 1984 Act to the making and confirmation of toll orders. Clause 3(b) of the Toll Order authorises the Secretary of State to assign his right to charge and to collect tolls and clause 4 deals with the maximum tolls chargeable. Section 37 of the 1991 Act allows the Secretary of State to make provision by regulations with respect to the collection of tolls. Counsel submitted that the Secretary of State has effectively made such regulations but has done so within the Toll Order. That being so, that order, under section 37(5), is subject to the annulment procedure. It follow s that both of these statutory instruments should have been laid before Parliament and as this was not done the instruments are void. The second part of the argument is based on the provisions of the Statutory Instruments Act and regulations made thereunder. Section 3(1) of the Statutory Instruments Act provides that regulations made for the purposes of the Act shall make provision for the publication by His Majesty's Stationery Office of lists showing the date upon which every statutory instrument printed and sold by the King's printer of Acts of Parliament was first issued by that office. Section 3(2) provides that in any proceedings against any person for an offence consisting of a contravention of any statutory instrument it shall be a defence to prove that the instrument had not been issued by His Majesty's Stationery Office at the date of the alleged contravention unless it is proved that at that date reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public or of persons likely to be affected by it or of the person charged. Section 8(1) provides that the Treasury may by statutory instrument make regulations for the purposes of the Act and such regulations may, in particular, provide for the different treatment of instruments which are of the nature of a public Act and provide with respect to any classes or descriptions of statutory instrument that they shall be exempt from the requirement of being printed and of being sold by the King's printer of Acts of Parliament. Regulation 3 of the Statutory Instruments Regulations provides that all statutory instruments received by the King's printer shall be allocated to the series of the calendar year in which they are made and shall be numbered in that series consecutively, as nearly as may be, in the order in which they are received. Regulation 4 provides as follows:
"4(1) For the purpose of these regulations, statutory instruments shall be classified as local or general according to their subject matter.
(2) Unless there are special reasons to the contrary in any particular case, a statutory instrument which is in the nature of a local and personal or private Act shall be classified as local, and a statutory instrument which is in the nature of a public general Act shall be classified as general.
(3) The responsible authority shall, on sending a statutory instrument to the King's printer of Acts of Parliament, certify it as local or general, as the case may be; and unless the Reference Committee otherwise direct under these regulations, the instrument shall be classified accordingly...
(5) The following statutory instruments shall, unless the Reference Committee in any particular case otherwise direct unto these regulations, be exempt from the requirements of subsection (1) of section 2 of the principal Act with respect to the printing and sale of copies, that is to say:
(a) any local instrument...".
Both the Special Roads Scheme and the Toll Order were sent to the Queen's printer and were duly numbered in accordance with regulation 3. In relation to the Toll Order the Crown have produced a certificate in the following terms:
"It is certified that the instrument known as the Invergarry-Kyle of Lochalsh Trunk Road (A87) Extension (Skye Bridge Crossing) Toll Order 1992 is a local instrument",
and that certificate is issued by the Scottish Office. Counsel accepted that there was also a certificate in similar terms relating to the special roads scheme. His submission was, however, that the matter of classification was ruled by regulation 4(2) and that the instruments in question could not be said to be in the nature of a local and personal or private Act and therefore should not have been classified as local. They should have been classified as general and therefore should have been printed and sold. He referred to Simmonds v. Newell [1953] 1 W.L.R. 826. In that case a company was charged with a breach of the Iron and Steel Prices Order 1951. The schedules to that order were not in fact printed and there was no certificate of exemption. It was held that in the absence of a certificate of exemption, and in the absence of the Crown proving that at the date of the commission of the offence reasonable steps had been taken for the purpose of bringing the purport of the in strument to the notice of the public or of persons likely to be affected by it, the prosecution failed. In the present case he submitted that as the certificate was inaccurate in describing the instruments as being local, equally the prosecution should fail.
In reply the advocate depute submitted that neither the scheme nor the Toll Order required to be laid before Parliament. The scheme bears to proceed on the basis of the powers conferred on the Secretary of State by section 7, as read with sections 8, 10(1), 75(2) and 143(1) of the 1984 Act. The Secretary of State was not purporting to exercise any powers under section 143(2). Sections 7, 8 and 10 all relate to schemes for special roads and section 75 relates specifically to bridges. The terms of section 143(1) clearly differentiate between regulations, orders and schemes. Section 143(2) relates only to regulations and not to orders, except where specially mentioned, or schemes. The 1984 Act lays down what can be contained in schemes and nothing in the present scheme goes outside what is envisaged by Parliament as being the normal part of a scheme. Accordingly, it cannot be said that any part of the scheme constitutes regulations. For that simple reason section 143(2) has no ap plication and therefore there is no requirement for this scheme to be laid before Parliament. As far as the Toll Order is concerned, that purports to proceed on the basis of powers conferred by section 27(1), (2) and (10), section 28(1), section 29(1) and (2), section 32(1), (4) and (5) and section 36. All of the matters contained in the Toll Order are required to be there by virtue of these various sections and there is no question of any of these matters being regulations. The only reference to regulations that is material would be regulations required by 32(2) which are subject to annulment, but there is nothing in the Toll Order to constitute such a regulation. Accordingly, again, all the matters contained in the Toll Order are matters which Parliament envisages as being part of an order as opposed to being made by way of regulations. There was, accordingly, no requirement for either the scheme or the order to be laid before Parliament. In relation to the second leg of the argument the advocate depute submitted that the whole argu ment proceeded on the basis, as counsel for the appellant had accepted, that the scheme and the order could not be classified as local. The fact was, however, that they were classified as local, and if there was any error in that classification that was a matter for the Reference Committee in terms of regulation 4(3). There was, accordingly, no reason for the court to look behind this certificate even if it was entitled to do so. In any event it was perfectly reasonable to classify these instruments as local because they related to specific lengths of trunk road in a specific place. The argument that the absence of printing could in some way prejudice the appellants could not stand, having regard to all the preliminary matters which led to the making of the scheme and the Toll Order and the widespread publicity which these matters had received. Even if there could be argued to be some sort of prejudice, the remedy lies in section 3(2) of the Statutory Instruments Act which cov ers the position of persons who are unaware of the existence of any relevant regulation because there has been no publicity.
In my opinion the Crown's submissions are correct. Section 143(1) of the 1984 Act clearly differentiates between regulations, orders and schemes. It is clear from the empowering sections referred to in the statutory instruments that they do not purport to be regulations and I am satisfied that there is nothing in either instrument which constitutes a regulation. There is nothing contained in the scheme or the Toll Order which is not necessitated by some part of the empowering statute, and none of these empowering sections refer to the matters which have to be set out as being regulations. As section 143(2) is confined to regulations, it is in my view clear that both the scheme and the Toll Order do not fall within that subsection and accordingly there is no requirement for them to be laid before Parliament. In relation to the Toll Order the position is further clarified by section 27(10) of the 1991 Act, which provides that the power conferred on the Secretary of State to make or confirm a Toll Order is exercisable by statutory instrument. While other empowering provisions in the Act state in terms that the subordinate legislation must be laid before Parliament, section 27(10) does not, which is a further indication that Parliament did not intend that the annulment procedure should apply to the making and confirming of a Toll Order. The second part of the appellant's argument is predicated on the assumption that the scheme and the Toll Order are not local and counsel accepted that if they were local, his argument could not prevail. The method of division between local and general is set out in the Statutory Instrument Regulations and depends on certification by the responsible authority. The regulations provide for supervision of that certificate by the Reference Committee, and unless the Reference Committee disagrees "the instrument shall be classified accordingly". It must accordingly be very doubtful if the classification is a matter which can b e reviewed by this court even if we thought it appropriate to do so. However, in my view, the classification as local cannot be regarded as so plainly wrong that it could be overturned even if it was possible to do so. The distinction between public general Acts and private Acts does not provide much assistance as it can hardly be argued that because an empowering statute is a public general Act it automatically follows that all subordinate legislation which may be of very limited extent and purely of local impact must necessarily be categorised as general rather than local. The categorisation as local must accordingly refer to the subject matter of the subordinate legislation rather than its origin. Looked at from that perspective it is difficult to say that the subject matter of the scheme and the Toll Order was other than local. Even if that conclusion could be regarded as arguable, what cannot be suggested is that it was a wholly unreasonable conclusion to which no reasonable "responsible authority" could come. So far as the argum ent that the rule of law requires publication to interested parties is concerned, in the first place I find it difficult to see how the printing of these instruments by the Queen's printer would have brought anything more to the attention of interested parties than had already been achieved by the massive publicity attendant on the publication of the original scheme and draft Toll Order, and in any event even if some person using the bridge could establish that he or she was wholly unaware of the existence of such a thing as a Toll Order a defence is provided by section 3(2) of the Statutory Instruments Act. The mere existence of section 3(2) shows that the fact that a statutory instrument has not been printed does not render the instrument null and void. For these reasons I am satisfied that because of the classification of these statutory instruments as local there was no necessity for them to be printed by the Queen's printer and sold. I accordingly consider that neither th e scheme nor the Toll Order can be impugned on the basis of the argument presented on behalf of the appellant. It follows that the appeal against conviction on behalf of the appellant McMorrine must be refused. In the application for a stated case it was said that the sentence was excessive but counsel indicated that the appeal against sentence was not being pursued.
Robbie the Pict, who appeared on his own behalf, adopted the arguments submitted on behalf of the other appellants and had an additional argument relating to the assignation statement. His argument, as I understand it, related to the date of publication of the assignation statement and the contents thereof. He submitted that under paragraph 14A(3) of Schedule 1 of the 1984 Act, where it is intended that the proposed Toll Order shall authorise assignation of the right to charge and collect tolls the Secretary of State shall make a statement containing such information as may be prescribed and that statement shall be made available for inspection with the copy of the order to which the notice under subparagraph (1) relates. The notice to which subparagraph (1) relates is a notice stating the general effect of the proposed Toll Order and naming a place where a copy of the draft order may be inspected. Where reference is made in paragraph 14A(3)(a) to "the copy of the order to whi ch the notice under subparagraph (1) relates", this should be regarded as a reference to a copy of the order as finally made and not to a draft of the order which is referred to in subparagraph (1). Accordingly, the assignation statement should have been issued along with the final Toll Order which was in fact made on 23 June 1992, and both the assignation statement and a copy of the Toll Order should then have been made available for inspection. In fact the assignation statement was made available for inspection along with a draft of the Toll Order, but that was the wrong date because the draft of the Toll Order is not the same thing as the order which is referred to in paragraph 14A(3)(a). Accordingly, no proper assignation statement has been published at the proper time. Furthermore the assignation statement which was produced identified those persons holding more than 10% of the issued share capital of Skye Bridge Tolls as being Miller Construction Limited, Dyckerhoff and Widmann AG and Bank America International Finance Corporation. If the assignation statement had been issued at the time it should have been, namely in June 1992, it would have shown that the only person then registered as owning more than 10% of the share capital was Bank America International. Furthermore, although the assignation statement was made available at the same time as the draft Toll Order it is in fact undated and unsigned, in addition to being untrue in the respects mentioned above. In these circumstances there has been a failure properly to comply with paragraph 14A of Schedule 1 to the 1984 Act and the Assignation Statement (Prescribed Information) Regulations. These failures are fatal to all that has followed thereon and accordingly the prosecution proceeds on a fundamental nullity.
In my opinion an examination of paragraph 14A shows that this argument cannot prevail. Subparagraph (1) shows plainly that the Secretary of State's duty under that subparagraph relates to a period before any orders of any kind are made. If he has in mind a proposal to make a Toll Order he has to prepare a draft of that order and then publish a notice stating the effect of the proposed order and a place where "a copy of the draft order" may be inspected. Subparagraph (3) is still referring to the Secretary of State's intention and states that where it is intended that the proposed Toll Order shall authorise assignation of the right to charge and collect tolls he has to make a statement containing the information prescribed in the regulations, and that statement shall be made available for inspection with the copy of the order to which the notice under subparagraph (1) relates. The notice under subparagraph (1) relates to "a copy of the draft order" and in my view it is that copy of the order which is referred to in subparagraph (3)(a). That being so it follows that the assignation statement requires to be made available for inspection at the same time as the draft Toll Order referred to in subparagraph (1). This view is confirmed by reference to the Assignation Statement (Prescribed Information) Regulations which were approved by Parliament. The definition of "concessionaire" in regulation 2 is that it means "the person to whom the rights to charge and to collect tolls under a Toll Order are intended to be assigned". The information required to be contained in the assignation statement is set out in regulation 3 and provides inter alia that what has to be contained is the identity of the concessionaire, the proposed length of the concession period and a summary of any obligations to be undertaken by the concessionaire. There is an element of futurity in all of these matters and this, in my view, is a clear indication that the intention of the regula tions was that the assignation statement should precede any concluded contract with the concessionaire. As no Toll Order would be likely to be made until the contractual arrangements with the concessionaire were completed, it follows that the assignation statement must precede the making of the Toll Order. This confirms the view that the assignation statement should be made public along with the draft of the proposed Toll Order. There is no statutory provision for any production of an update of the assignation statement in the event of there being a change of circumstance between the issuing of that statement and the ultimate making of the Toll Order. Accordingly, the fact that there may be variations in the position as between the date of the assignation statement and the date of the making of the Toll Order is not something which requires publication and, in any event, cannot affect the validity of the assignation statement as at the time when it was made. For these reasons I am satisfied that this argument cannot prevail.
This appellant made certain other subsidiary points. In the first place he maintained that Miller Civil Engineering are demanding a toll which they are not authorised to demand, which is a criminal offence under section 37(4). He maintained that Miller Civil Engineering requires a statutory assignation in its name to permit that distinct company to perform the entitled and empowered function of toll collection. However, for the reasons which I have already given I am of opinion that there is no question of the concessionaire having yielded its right to charge and collect tolls and that all that Miller Civil Engineering are doing is to perform the physical task of collecting the tolls on behalf of the concessionaire, something which they are entitled to do with the authority of the concessionaire. It was then argued that the appellant had a reasonable excuse for not paying the toll in that he enquired of the collectors by what authority they were collecting the tolls and receiv ed no satisfactory response. This, however, in my view, could not constitute a reasonable excuse unless some valid argument was presented as to why it should be thought that the persons having ostensible authority to collect had no authority in law to do so. Finally, it was argued that the sheriff did not permit evidence of an objectively reasonable excuse, namely that it could be shown that the tolling regime was not in fact lawful. As I have already pointed out in relation to McMorrine's appeal, if the appellant had been permitted to present the arguments which he has presented to this court the sheriff would inevitably have had to repel them as being unsound in law and therefore this point has no validity. On the whole matter, therefore, I am satisfied that this appellant has not shown any flaw in the procedures leading to the making of the Toll Order, nor has he shown that the sheriff was wrong in holding that he had no reasonable excuse for failing to pay the toll required of him. This appeal also must accordingly be refused.
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Sutherland Appeal Nos: 787/98
Lord Marnoch 281/98
Lord Cowie 1776/98
280/98
OPINION OF LORD MARNOCH
in
STATED CASES
in causa
ALEXANDER SMITH, ANDREW MacRAE MILLER, ANDREW McMORRINE and ROBBIE THE PICT
Appellants;
against
PROCURATOR FISCAL, Dingwall
Respondent:
Appellants: M.E. Scott; Wheatley & Co: M.E. Scott; Party: N. MacKenzie; Wheatley & Co: Party; Party
Respondent: R. Anderson, Q.C., A.D.; Crown Agent
16 December 1999
I agree with the Opinion of your Lordship in the chair and would add only that, while in these cases the Crown has seen fit to produce a large amount of documentation including some lengthy documents of a contractual nature, it should not be assumed that this was strictly necessary or that it is the norm where those purporting to act under statutory powers have their authority questioned. Indeed, if such were the position, then, as your Lordship observed in the course of the hearing, it could have led to the production, in the present cases, of the individual contracts of employment for all of those who physically manned the toll barriers. That this is not the position results, of course, from an application of the maxim or brocard to which your Lordship has adverted in the course of his Opinion, viz. "omnia rite et solemniter acta praesumuntur". The importance of this presumption should not, in my view, be under-estimated.
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Sutherland Appeal Nos: 787/98
Lord Marnoch 281/98
Lord Cowie 1776/98
280/98
OPINION OF LORD COWIE
in
STATED CASES
in causa
ALEXANDER SMITH, ANDREW MacRAE MILLER, ANDREW McMORRINE and ROBBIE THE PICT
Appellants;
against
PROCURATOR FISCAL, Dingwall
Respondent:
Appellants: M.E. Scott; Wheatley & Co: M.E. Scott; Party: N. MacKenzie; Wheatley & Co: Party; Party
Respondent: R. Anderson, Q.C., A.D.; Crown Agent
16 December 1999
I concur in the Opinion of your Lordship in the chair, and have nothing to add.
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