Scottish Ferries: Updates release blocked through loophole

Ministers have come under fresh criticism over secrecy over the ferry fiasco – while it emerged that they have been using a legal loophole to block the release of updates.

The Scottish Parliament's Public Audit Committee is continuing to try to break down the confidentiality veil around the affair after The Herald revealed that the Scottish Government entered into ten gagging clauses with external private companies concerning the state-owned shipyard firm Ferguson Marine at the centre of the fiasco.

Ministers have also been coming under fire for refusing to spell out the extra costs involved in continuing to complete one of the two ferry fiasco vessels which they admit is not value for money.

A Scottish Government due diligence review supported by a secret analysis by consultants Teneo said it would be cheaper to scrap the ship still being built at Ferguson Marine and place a new order elsewhere. It is understood the Teneo report is subject to a non-disclosure agreement.

There have been further concerns registered by some MSPs that the publication of the progress updates by Ferguson Marine, government-owned ferry owning and procurement agency Caledonian Maritime Assets Ltd (CMAL) and Scottish Government's monthly updates over progress over the beleaguered ships has stopped.

The Herald can reveal that the Scottish Government has been blocking publications of updates for months, citing a loophole in the Freedom of Information (Scotland) Act.

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Scotland's lifeline services have been dogged with issues, with the delivery of ferries Glen Sannox and Glen Rosa still not online after being due to be available for passengers in the first half of 2018 when Ferguson Marine was under the control of tycoon Jim McColl. With both now due to serve Arran, they are getting on for six years late and the last estimates suggest the capital costs of delivery could have more than quadrupled from the original £97m contract cost.

The wellbeing economy secretary Neil Gray gave a rare written authority in May to plough ahead with supporting the delivery of the two ferries at Ferguson Marine in May, saying it is the "platform upon which future success can be built".

He said that non-delivery of the ferries at nationalised Ferguson Marine (Port Glasgow) would put the very future of the yard and the jobs it supports "in jeopardy".

It heralded the sanctioning of an extra £72.6m in capital spending on the ships. That was made up of £15m approved in December, last year and a further £57.6m for 2023/24.

Consultants Teneo said it would be cheaper to scrap the ship still being built at Ferguson Marine and place a new order elsewhere – the report is subject to a non-disclosure agreement (Image: Newsquest)
On February 17, the Scottish Government published updates for September and October 2022 – amounting to a four-month time lag.

It blocked publication of progress updates for January, February and March of this year, requested by The Herald through the Act in May, citing an exemption where it intended to publish within 12 weeks of the date of what was an April 24 request – meaning it should have been made public by July 31.

The Scottish Government response stated: "Although an exact date of publication has yet to be set, we can assure you that the information will be published..."

Publication never happened until November 30 – and only after queries were made about why the Scottish Government had not complied with the terms of the Act.

In a review response, the Scottish Government accepted that "it is a matter of fact that this information was not published within 12 weeks..."

It went on: "The main reason for this is that we are undertaking a review of our information management strategy, which includes a refresh of our publication scheme. The objective of the review is to improve the accessibility and relevance of the information we publish pro-actively relating to Ferguson Marine (Port Glasgow) Limited.

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"You should be aware that the information we have provided as part of our response to this case reflects the change in the format and regularity of reporting by both Scottish Government and the ship building teams..."

Further requests for progress updates for April to August in September were not responded to.

Meanwhile, ministers have been asked to explain the use of the non-disclosure agreements by Ferguson shipyard as calls are made for further investigation into the firm under the ownership of tycoon Jim McColl who won the ferry contract.

The public audit committee convener Richard Leonard has asked for the reason the NDAs were required, the private company that was involved and the date on which it was entered into.

The TaxPayers' Alliance, which campaigns against public money wastage, said the NDAs "appeared to be unusual" and said people would be "shocked by the unusually aggressive nature of this cover up".

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Mr Leonard has further challenged Mr Gray over a failure to publish the financial reasoning over the value for public money analysis that gave rise to the written authority to continue regardless.

He says the committee notes that "there is no such caveat regarding commercial confidentiality in the Scottish Public Finance Manual for the publication of written authority."

He told Mr Gray: "It therefore seeks to establish why the Scottish Government considers there to be issues of commercial confidentiality when it comes to publishing occurrences of shareholder authorisation for companies wholly owned by Scottish ministers."

A Scottish Government spokesman said: “The Scottish Government remains committed to being as open and transparent as possible in relation to decisions around Ferguson Marine and vessels 801 and 802."