Ministers found to breach law on ferry progress 'blocks'

The Scottish Government has received an official rap over transparency surrounding Scotland's ferry fiasco.

It comes while The Herald sought answers over why it had been blocking publication of updates for months having also cited a loophole in the Freedom of Information laws.

Ministers have admitted that they failed to comply with the laws in failing to respond to a request to provide updates over the progress of two vital lifeline island ferries being built at the Ferguson Marine shipyard that have been dogged with soaring costs and delays.

They also failed to respond to requests for a review of the failure to respond within the timescales.

Similar requests were made to ministers for release of the updates by MSPs on the Scottish Parliament's public audit committee that is scrutinising the costs of the ferry debacle.

Questions were raised with ministers over the publication of progress updates by Ferguson Marine, the ferry procurer Caledonian Maritime Assets Ltd (CMAL) and ministers for April, May, June, July and August 2023 – but it was met with silence.

Read more:

Scotland's Ferries | Four hour queues as Scots ferry 23 years past its 'sell by date' breaks down

The request was first made in September, last year, and a request for a review over a failure to respond was made on November 1. When there was still no response it was placed in the hands of the Scottish Information Commissioner on December 21 who began an investigation.

The Scottish Information Commissioner has now found that ministers failed to comply with the laws but said it did not have to take any more action as they had finally released information although it was delayed by months.

The Scottish Government has issued an apology for the failure to respond.

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.

On February 17, the Scottish Government published updates for September and October 2022 – amounting to a four-month time lag.

It also blocked publication of progress updates for January, February and March of last  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 the following 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.

"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..."

The Herald further took up a failure to publish within 12 weeks, when requesting other updates including that for September, last year.

The Scottish Government has further apologised for a failure to publish monthly updates and reports up to November having again said they would be published within 12 weeks.

Read more:

'Chaotic': Lifeline Scots island services in new turmoil as two ferries are sidelined

They said they were working on publication of additional material for September, October and November, "however in these months the format of report was altered by Ferguson Marine, which is the reason for delay".

They said that they had agreed a new publication schedule.

But so far there has been no publication of October and November reports, while some information was published relating to September, 2023, but not till February 16.

They said that the aim was now to publish monthly three months in arrears "in aid of increasing transparency".

It meant January 2024 updates would be published in March and February's would be published in April.   But no updates from Ferguson Marine, CMAL or ministers as previously set out have yet been published.

MSPs have been continuing to try to break down the confidentiality veil around the ferries affair after The Herald revealed that the Scottish Government entered into ten gagging clauses with external private companies concerning Ferguson Marine.

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.

The wellbeing economy secretary gave a rare written authority in May, last year 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 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.

Sign up for Scotland's Ferries and get extra from the journalist who broke the story.

Ministers 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 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".

The public audit committee has persistently challenged ministers for a failure to publish the financial reasoning over the value for public money analysis that gave rise to the written authority to continue regardless.

A Scottish Government spokesman said: “The Scottish Government notes the decision issued, and the commissioner has confirmed that we have now supplied the information requested. A review of the proactive publication scheme for documents relating to Ferguson Marine has been undertaken, and as a result of this increased numbers of documents have been published monthly since January 2024.

“The Scottish Government is currently responding to 97% of FOI requests within the statutory deadline, despite an increase of 66% in requests since 2019, to over 5,000 requests in 2023.”