With every fresh development, the Ferguson Marine scandal comes to resemble a living textbook of how not to do government.
The central question remains: why, in spite of official advice, did the Scottish Government award ferry-building contracts worth £97m to a firm which could not guarantee a full refund of taxpayers' money if the end product wasn't satisfactory?
Stephen Boyle, the Auditor General for Scotland, doesn't know the answer. He told a Holyrood committee last week that ‘an important piece of documentary evidence wasn’t prepared to arrive at the judgment that ministers arrived at’ and spoke of ‘a frustration from us that we weren’t able to review what we would consider to be all the relevant evidence’.
Presumably the Scottish Government knows why it handed over the contracts, but it is not for telling us. 'A thorough search has been conducted and the paperwork/documentation cannot be located,' a St Andrew's House spokesman told the media. Unlike Boyle, the Scottish Government doesn't seem terribly fussed about getting to the bottom of this. Establishment Scotland's complacency-bordering-on-apathy towards these matters recalls the meme of the cartoon dog sitting calmly in a burning building, a speech bubble declaring: 'This is fine.'
It is worth recounting the scale of this scandal. In 2014, Ferguson’s, the last commercial shipyard on the Clyde, went into administration. Not only did this imperil jobs, it was politically inconvenient to a Yes campaign that was selling independence as a way of ‘supporting key Scottish industries including the shipbuilding industry’. Then First Minister Alex Salmond convinced Scottish Government adviser and billionaire tycoon Jim McColl to buy Ferguson’s, which he did, renaming it Ferguson Marine Engineering Limited (FMEL).
The following year, and with Nicola Sturgeon now First Minister, contracts were put out to tender for two new ferries. FMEL made the most expensive bid but was chosen as the preferred bidder. One month later, FMEL admitted it was unable to meet one of the contractual obligations — an industry-standard refund guarantee — and the public ferries agency, Caledonian Maritime Assets Limited, warned the Scottish Government that awarding the contracts to FMEL was too risky. The Scottish Government awarded the contracts to FMEL.
Within two months, FMEL was already failing to live up to parts of the contracts. The Scottish Government began giving the company a series of advances and loans until the shipyard entered administration and was nationalised by ministers. The cost to the taxpayer has since ballooned to £250m. The two ferries, due for delivery in 2018, have still to be completed and have been delayed again until next year.
An Audit Scotland report concluded there was ‘insufficient documentary evidence to explain why Scottish ministers accepted the risks and were content to approve the contract award’. The First Minister says the absence of these papers is ‘regrettable’ but has shifted the blame to Derek Mackay, who was transport minister at the time but is no longer in public life.
If there was no wrongdoing in any of the above, what exactly does wrongdoing look like? If all of this turns out to have been unfortunate but within the proper conduct of ministerial duties, what does that say about our expectations of ministers? If these aren't grounds for censure, what does the Scottish Government have to do to warrant censure?
I return to a running theme of this column: accountability, or rather the lack of it, in the administration of government. Audit Scotland has effectively conceded defeat in its efforts to ascertain what happened and why. Who, then, will hold the government to account?
The Scottish Parliament? A feeble talking shop where the SNP group votes as a block and committee convenorships are divvied up by the party whips? Sturgeon’s independent advisor on the ministerial code? The same one who reviewed the First Minister’s conduct in the Alex Salmond affair, including secret meetings and her failure to disclose them, and could find no breach of the ministerial code?
Police Scotland? The constabulary will only get involved if there are reasonable grounds to suspect a criminal offence has been committed. Lord McConnell, the last Labour first minister, has suggested the boys in blue be called in, adding: '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.'
Even then, it would be up to the Crown Office whether to prosecute and this would be contentious. The Lord Advocate is an independent prosecutor but she is also a minister in Nicola Sturgeon’s government and the principal legal adviser to the Scottish Ministers. If it came to it, Dorothy Bain QC would be placed in an invidious position. Her only partisanship is to the upholding of the law but a decision not to prosecute would be viewed with cynicism.
There is a danger of getting bogged down in legal intricacies. If there is any suggestion that the law has been broken, it should be investigated but attention to the provisions of the Freedom of Information Act is not the heart of this scandal. This scandal is about what all Scottish Government scandals are about: incompetence and secrecy. The incompetence goes unchecked because constitutionalism not competence is this government's raison d'être. The secrecy is a hallmark of an elite that acts as if it is untouchable because it is.
The vessels commissioned are four years overdue and counting, taxpayers’ money has been wasted on a grand scale, and when asked for the most basic of information about how this sorry situation came to be, the Scottish Government responds as though affronted that the plebs could be so uppity.
If the only consequence for all this is that ministers receive a stern ticking off for poor note-taking, it would be akin to Al Capone getting away with racketeering and only going to prison for tax evasion.
There is a corruption that is not financial or criminal in nature but political and institutional, a corruption that so thoroughly wears down norms and practices that the very institutions democracy depends on become compromised. The SNP has brought to bear on the governance of the nation its secretive style, its contempt for transparency, its distaste for scrutiny, its intolerance of dissent and its towering, arrogant certainty. The Scottish Government is now a mere extension of the SNP and of its culture of control and cover-up.
We have to face up to a troubling possibility: that there might be no institution capable of holding the SNP government to account, or at least none that enjoys confidence among both nationalists and unionists. This is what happens when you arrange a country around the resentful monopolitics of national identity, when you conflate party and state and make the former’s cause the latter’s primary purpose. As institutions have become corrupted, they have become trusted or distrusted along party and constitutional lines.
The ferries scandal is about more than unbuilt ships, wasted money and who signed off on what. It is one of a spreading spider's web of cracks in the body politic of Scotland, another hairline fracture in the integrity of a political system which has fair elections, a free media and a nominally independent civil society but which is nonetheless democratically insufficient.
Substantive democracy is about more than ballots stuffed in boxes. It's about political and constitutional arrangements, conventions and institutions, that daily act as checks and balances on executive power. These are the engines that motor successful democratic enterprises and keep parliamentary government afloat. Substantive democracy is far from sunk in Scotland but it is taking on water fast.
Originally published in the Scottish Daily Mail on April 25, 2022.
….the tone of your reply and lack of a coherent argument confirms that the SNP are incapable of debating the matter . The Union is of much more value than the spurious promises of an SNP run Scotland .
Perhaps the best recourse of action is to demand that Westminster instigates a full public inquiry into the manner in which Scotland is being and has been governed . Otherwise it would be patently unwise to allow Devolution to continue any longer on the grounds that it was constitutionally unsafe .