Public Petition PE 1390 to the Scottish Parliament

I have submitted a petition to the Scottish Parliament which has passed scrutiny by the clerks and will be heard by the Parliament's Public Petitions Committee once the new session of Parliament starts after the election. The petition (Petition 1390) is here

The petition has three pages of argument, but the intention is set out at the beginning in that it calls on the Scottish Parliament to:

"urge the Scottish Government to support the setting up of an Independent Expert Group to consider and recommend institutional and regulatory options for issues relating to the provision of competitively tendered Scottish ferry services under EC law"

It will not offer any immediate solutions to ferry policy here such as Gourock-Dunoon or Campbeltown Ballycastle. So why bother with the petition? Well, let's look first at the case of Gourock-Dunoon.

Over recent months, the Government claimed that they were in active discussions with the European Commission over the tender, then they said the European Commission was delaying the tender, then they even claimed the problem was the European Commission would not let the Government delay the tender any longer. The Government also claimed that there were suitable second-hand vehicle-carrying ferries available for the route and also that a community-based enterprise could make a difference to the outcome of the tender process despite the fact it was underway and the shortlist had been decided about a year ago.

None of this was true, but if it had not been for Freedom of Information the Government would have got away with much of it. Ministers regularly recited these deceits, and rightly should bear responsibility here (as should the Government at this election), but while ministers would have made up much of this to fit their views of the world, there was also the role anonymous officials played in feeding ministers rubbish and failing to properly brief ministers.

More recently the Government has been claiming that "provision of two new boats (for the route) was forbidden under European law" as the SNP candidate for Argyll and Bute said on Brian Taylor's big debate on April Fools Day.

This claim also is absolutely untrue, there is nothing under European law which forbids such provision, indeed there is no distinction between old and new boats under European Law. Whenever this claim has been made by the Government or its representatives they have been challenged to explain exactly what part of European law prohibits this, but have been unable to do so. All we get are weak spoutings to the effect that the Government has its own "legal advisers" and have to listen to them.

The reality in Gourock-Dunoon was recently set out by the Managing Director of Western Ferries who revealed that just after the 2007 election the Government offered to remove the CalMac vehicle-carrying service (and so effectively give Western Ferries a monopoly of vehicle carrying) if Western ran some of their boats into Dunoon pier. So much for the promise to build two new vehicle-carrying ferries for the route which they had made before the Holyrood election that year, and which helped them win both locally and nationally.

As for the Government's recent conversion to the idea of a "ferry regulator", while that is part of the solution, by itself it would be useless, like appointing a referee without a rule book. Every well-run UK essential service in the UK has a well developed statutory regulatory framework for the service in question, in the case of ferries here we have had a decade of ad-hocery.

When the SNP candidate was challenged in the debate on April Fools Day by another candidate citing my arguments that building such vessels would be feasible and legal under EC law, the SNP candidate retorted "Professor Kay is not an expert in European law, he is an economist".

In fact I have researched widely, published and taught in the areas of European competition law and indeed held a fellowship in the European Commission's own university in the Law department and a professorial appointment in its Economics department where European competition policy was a major part of my interests and responsibilities. I have also consulted widely with experts in the fields on matters where I wanted more specialist advice. What we are talking about is competence, not whether I am the Government's own legal adviser or not. Have a look at the several documented areas in which my advice conflicted with the Government in this petition over the past ten years (quite apart from Gourock-Dunoon) and ask; who was giving competent advice and who was giving incompetent advice? I was restricted to three pages of background evidence but I could have added to the list, as when I disputed the 2003-2007 Scottish Executive's claims that you could not have PSOs (public service obligations) and PSCs (public service contracts) on the same route and I was subsequently proven correct, or when I warned very early on in the first session of parliament 1999-2003 that the Executive's claims that the tendering of the CalMac network could take place in a few months were not simply realistic.

On that last point, officials here had a strong incentive in the early days of the parliament to communicate urgency of deadlines to ministers and that decisions would have to be made sooner rather than later. Several of the issues in my petition were actually discussed as possible policy options in the first session of parliament (some raised by me and others), but ministers would have been reminded that time was short that such issues were for later dates if they were to be discussed at all. This enabled officials to keep control of the process.

Officials have and will resist the appointment of an Expert Group along the lines suggested in the petition, not just because it means they might lose control and responsibility here but because such a task force or Expert Group would surely expose the systemic and sustained incompetence of the advice they and their predecessors have been giving ministers down the years. - which is why I am asking for the Expert Group to be set up by the parliament and not Government officials at Victoria Quay, which would be the default if it was given over to Government to consider.

If the new parliament wants this degradation to stop, its MSPs should support the petition. It does not guarantee solutions but it does show a possible way of this morass if done properly.

And if this is not done, what will happen? Then there will be another wasted Parliament and Government where the network will continue to degrade and officials at Victoria Quay will continue to consult "stakeholders". Apart from superficial contact for public relation purposes, this does not really mean communities, users or even Calmac (remember the Government was prepared to tell CalMac in 2007 to get their car ferry off the Gourock-Dunoon route if the Government could make a deal with Western Ferries). The evidence is that the policy here is being driven by a few "stakeholders" mostly cherry-pickers with the financial, legal and public relation resources to lobby government directly, or with the help of commissioned lobbyists and consultants.

If you want a footnote to how far this process of degradation has gone there was some excitement on the Clyde a few weeks ago when a vessel "Beluga Faith" docked on the Clyde carrying a fast catamaran "Solundir". It was thought that "Solundir" was destined for the Gourock-Dunoon tender, but it was easy to check that Beluga Faith was in fact headed for Luba in Equatorial Guinea.

Compared to the two vessels currently on the Gourock-Dunoon route, the Solundir is much superior to Ali Cat and much younger than Jupiter.

Good for Equatorial Guinea (if that is indeed where Solundir is headed), but that is what we have been reduced to when the service here may be degraded below levels being set by a developing country, and where the prospects are that the present tender will degrade this even further.

The fact that no-one seems to have noticed this or just takes it for granted just shows how far things have gone What a way to run -actually ruin - a ferry service, and indeed a whole network.

Neil Kay

5th April 2010