FERRY FIASCO: DID THE SCOTTISH GOVERNMENT BREAK THE LAW?
Allegations of Ministerial direction not properly recorded and suggestions of evidence destruction to avoid FOI requests all shows a need for Police Scotland's involvement.
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THE ferry fiasco has cost Scotland’s taxpayers more than £240m, with no new ships to show for it. Island communities have been left to go whistle, amid an absence of accountability. The Scottish Government has battled accusations of incompetence concerning the whole issue, but now allegations of potential criminality are raised. The spectre facing the SNP government is one where it has been in breach of law, and that the First Minister has misled parliament (again).
According to the Nicola Sturgeon, it is “regrettable” that key decisions around the contract for the vessels awarded to Ferguson Marine were not recorded properly. And this is quite interesting, not least since the issue to be confronted is not what was signed, but rather why it was signed.
We know the contents and nature of the ferry contract. It was signed without the basic tenets of taxpayer protection, and went ahead against the advice from Caledonian Maritime Assets Ltd (CMAL). The CMAL procurement agency had said not to award the work to the Fergusson yard, but was overruled by Scottish Government ministers. We also know that the yard at the time was run by Jim McColl, who was in favour of Scottish independence1.
We also know that the Auditor General’s report into the fiasco concluded that all the evidence deemed necessary was not forthcoming. Plus, the existence of non-disclosure agreements weaponised by the Scottish Government to prevent individuals from engaging with the Auditor General is also a fact on record2.
Why was Auditor General Stephen Boyle unable to obtain critical documentation from the government showing why the standard taxpayer refund guarantee had been dropped? Why were all the decisions taken throughout this process?
Nicola Sturgeon initially tried to dump the blame onto Derek MacKay, but that failed to butter any parsnips given he had been a junior Transport minister at the time. And the subsequent line about “regret” over the absence of key documentation is equally unsustainable.
The Auditor General told Holyrood that the failure to record decisions was at odds with the Public Finance and Accountability Act, which is incredible enough. But Former First Minister Jack McConnell on twitter also suggests a possible breach of the law,
“I’m sure that when we wrote and then passed the Freedom of Information Act, we included clauses to make the destruction or removal of official documents a crime”3
At Holyrood, the Scottish Auditor General outlined his frustrations at evidence he considered relevant not being available, and urged the civil service to “reflect on” its processes.
And the Auditor General hits on a key point, namely how on earth is it possible for the Civil Service bureaucracy to not have any documentation concerning decision making? When an Auditor General tells you to should “reflect on” something, it’s not just a piece of advice. You ignore it at your peril.
It is not good enough for the First Minister to be wringing her hands theatrically in parliament, saying how sorry it all is that key documents are no longer available. How regrettable she finds the situation, where the Scottish civil service bureaucracy has been exposed as inept and potentially acting unlawfully.
As I’ve written about previously, the civil service machine is a land where decision making witnesses everyone even loosely involved being copied into email chains, conversations written down. Why? Because that is how civil service bureaucrats protect themselves, spreading responsibility around and making sure instructions are written down, decision making is documented. Anything less than this is ineptitude, incompetence and absolutely shocking.
The First Minister is asking us to accept that there is no email trail anywhere in the system that reveals why SNP ministers took the reckless decision to ignore CMAL’s warning. I do not believe her. If that were true, then the civil servant bigwig I’d most like to hear from is Alyson Stafford CBE.
Perhaps any investigation should begin by asking Ms Alyson Stafford CBE why key decisions were reached? And also question why apparently she and everyone else in top jobs in the civil service have nothing written down pertaining to decision making.
We know Ms Stafford at the time was Director General Finance from October 2010-June 2017. According to her own words Alyson Stafford must have been cc’d into many emails concerning the ferry procurement process.
“As Director General Finance for the Scottish Government I am the principal financial adviser to the Permanent Secretary as Principal Accountable Officer and to Scottish Ministers. I am responsible for the overall Scottish Budget including tax, spending and infrastructure investment. I lead a team of finance professionals who support financial decisions across the Scottish Government to secure value for Scotland and Ministers from the Scottish Budget” - Alyson Stafford DG Finance 22 September 20164
As per her own job description, she must have been someone who would have signed-off after knowledge broke in September 2015 that, as preferred bidder, FMEL were unable to provide full taxpayer refund guarantee (a mandatory requirement for the contract). And she would have directly reported to Leslie Evans as Permanent Secretary.
As Roddy Dunlop QC puts it, if any evidence did exist and Ms Stafford or Leslie Evans destroyed it, this could fall foul of the law concerning Freedom of Information.
The current Scottish Government line is that the key documents relating to why decisions were taken cannot be found. But that is interesting as it concedes that such evidence did indeed exist in the first place. Ms Stafford and others in the civil service presumably once had some sort of evidence providing insight into why decisions were taken to over overrule CMAL. But apparently nobody can find anything anymore. All the email chains, the cc’d back and forth all vanished. Gone. Oops…how “regrettable”.
But if key information ‘vanished’ after the Scottish Government received an FOI, that is a criminal matter for the police.
Furthermore, if it becomes clear that Ministerial Direction took place in this process, yet more questions are raised. Ministerial Direction is a formal instruction from ministers to proceed with a spending proposal despite objections from civil servants.
Correspondence between officials in the Scottish Government and at CMAL suggest there was a ministerial direction, but that it had not been appropriately recorded. This fact indicates a breach of the Public Finance and Accountability Act5. As any failure to record key decision making in of itself is not lawful, and thus also a matter for the fuzz. It also means more questions to be asked of the top civil servants involved in this whole process, namely Leslie Evans and Alyson Stafford CBE.
We are in a situation where there are credible allegations of unlawful conduct on the part of the Scottish Government. Where top civil servants have questions to answer, and a First Minister potentially misled parliament. And what for? If we believe Jim McColl, all this mess was so Nicola Sturgeon could have good publicity for her 2015 party conference speech6. This is not just incompetence, there are clear grounds to suspect criminality.
Boothman, John (2022, April 23), ‘Call in the police, says Lord McConnell as row over Scottish ferry contract worsens’, The Times, https://www.thetimes.co.uk/article/call-in-the-police-says-lord-mcconnell-as-row-over-scottish-ferry-contract-worsens-fvt0w0bqp
Blackley, Michael (2022), ‘Bosses gagged over watchdog probe’, Scottish Daily Mail, click here for link
Boothman, John (2022, April 23), ‘Call in the police, says Lord McConnell as row over Scottish ferry contract worsens’, The Times, https://www.thetimes.co.uk/article/call-in-the-police-says-lord-mcconnell-as-row-over-scottish-ferry-contract-worsens-fvt0w0bqp
Scottish Government Consolidated Accounts 2015 to 2016, Foreword, https://www.gov.scot/publications/scottish-government-consolidated-accounts-2015-16/
Matchett, Connor, (2022, April 21), ‘Scottish Ministers 'may have broken law' over failure to record Ferguson Marine deal decision’, The Scotsman, https://www.scotsman.com/news/politics/scottish-ministers-may-have-broken-law-over-failure-to-record-ferguson-marine-deal-decision-3662530
Cameron, Greig (2022, March 29), ‘Former owner Jim McColl blames ‘SNP propaganda’ for failure of Ferguson Marine’s ferries’, The Times, https://www.thetimes.co.uk/article/former-owner-jim-mccoll-blames-snp-propaganda-for-failure-of-ferguson-marines-ferries-bk63rh2kt