Ferries scandal: No answer from Permanent Secretary on legal requirements around recording of Scottish contract decision

Scotland’s most senior civil servant has avoided commenting on whether the decision to award the contract for two ferries to Ferguson Marine may have breached legal requirements due to a lack of documentary evidence.

In a letter to Holyrood’s finance committee, Permanent Secretary JP Marks said there was no “overarching statutory duty” to record decisions made by ministers in a certain way, but did not comment on whether the Scottish Government had met its legal obligations around the ferries contract.

The contract for hulls 801 and 802 was awarded to Ferguson Marine in 2015, but the vessels are now five years late and more than £150 million over budget.

Audit Scotland has criticised the Government for a lack of documentary evidence as to why ministers viewed the risks associated with the lack of a full builder’s guarantee as acceptable.

Such a guarantee would have protected the Government from any overspend or delay, but ministers agreed a deal that Auditor General Stephen Boyle disputed was “broadly comparable”.

During a session of the finance and public administration committee, Scottish Labour MSP Daniel Johnson asked Mr Marks whether there may have been a legal requirement to appropriately record the decision under the Scottish Public Finance manual and the Public Finance and Accountability (Scotland) Act.

In response, the Permanent Secretary said he would be “happy to take away your last point” to ensure he was “very precise in the legal requirement”.

JP Marks had said he would look at the legal requirements around the recording of large contract decisions. Picture: John Devlin

However, in a letter to the committee following transport minister Jenny Gilruth waving a printed email which had previously been lost by the Government in Holyrood, Mr Marks refused to be drawn on the specifics of what is required.

He said: “Recording ministerial decisions is a vital part of the role of civil servants. I am clear that, although there is no overarching statutory duty to record all decisions in a particular way, such decisions should be documented effectively as part of the official record and be suitably accessible.

“As we discussed when we met – the original advice to ministers in 2015 was documented by officials, and this was pro-actively published by the Scottish Government; and since, albeit with unacceptable delay, further emails have been located and published too, supplementing the documentary record of the decision.”

The head of the Scottish civil service said plans were in place to “achieve the highest standards in information management”.

The response was criticised by Mr Johnson.

"While I thank the Permanent Secretary for his response, I don’t feel he has answered the question,” he said.

"It is vitally important that we have clarity as to what the legal requirements are when Government makes these decisions and failure to answer the question leaves a cloud remaining over this whole issue, which I am sure he will agree with me is intolerable.

"Furthermore, it’s clear that we don’t have adequate documentation and indeed any organisation of any size, let alone an organisation of the scale and the significance of the Government, would take any major commercial decision to board level and have a full record of not just who made the decision, but the considerations that were given to it.”

The letter also confirmed the Government was failing to meet the 20-working day target for ministerial answers to ministerial correspondence which includes letters from MSPs and constituents.

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