Ferries fiasco: Permanent secretary to look at whether any legal breach
Scotland’s top civil servant has said he will look at whether the failure to record why ministers decided to award a key ferries contract to Ferguson Marine may have broken the law.
John-paul Marks, who replaced Leslie Evans as permanent secretary in January, told MSPS it was “regrettable” the document confirming ministers were happy with the risks associated with the contract did not exist.
Ministers have been under intense pressure to explain why the decision to overrule concerns from ferry infrastructure owners CMAL when awarding the contract to ferguson Marine Engineering Limited (FMEL) was not recorded appropriately, sparking allegationsthe government may have broken the law.
The contracts for the Glen Sannox and unnamed hull 802 were signed without a full builder’ s refund guarantee, which would have protected the Government from overspends and delays. The ferries are now at least five years late and £150 million over budget.
Scottish Labour MSP Daniel Johnson asked Mr Marks whether there may have been a legal requirement to appropriately record the decision. In response, the permanent secretary responded he would be “happy to take away your last point” to ensure he was “very precise in the legal requirement”.
Mr Marks added: “The decision back in 2015, the submission that went to ministers is on the website. I’ve read it, it sets out the risks, it sets out the mitigations and then ultimately a further document follows, which then records that ministers have agreed to award the contract. There is documentation that tracks the decisionmaking process, but I agree with you, it is regrettable.”
Asked whether he agreed there was "something wrong" with the Scottish Government’s approach to transparency following recent scandals and the ruling that ministers must release legal advice around a second independence referendum, Mr Marks said there was “continuous improvement” around information management within the civil service.
He said he was “assuring himself” the Government’s approach to Freedom of Information was “robust”.
He said: “In 2021, we handled 4,000 Freedom of Information requests. That’s 25 per cent more than the year before. You reference the information commissioner, and when i have worked for over two decades in the civil service, the convention that legal advice is protected for ministers to create that private space for consideration of legal advice is a convention well established.
"This is not something unique to Scotland that somehow is being done here. This is a convention that is well understood. But we note the information commissioner’s judgment and will respond ahead of the deadline and ministers are giving it careful consideration.” Mr Marks was appearing in front of the finance and public administration committeeafter his predecessor leslie evans refused to give evidence on her tenure as permanent secretary. Defendingher decision to turn down an invitation to give evidence, the new permanent secretary said the responsibility of the office passed to him when Ms Evans retired.