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by Louise Wilson
13 May 2022
Legal challenge threat to ferry contracts revealed by Douglas Ross

Pressure is mounting on Swinney, although the First Minister said it was Derek Mackay who had signed off on the contract

Legal challenge threat to ferry contracts revealed by Douglas Ross

The possible threat of a legal challenge against the award of the delayed CalMac ferries to Ferguson Marine has been revealed by Douglas Ross.

The Scottish Conservative leader used FMQs to highlight previously redacted advice from government officials regarding “significant procurement risks” due to the absence of a full refund guarantee.

The document goes on to warn: “The impact of a successful legal challenge could be high – in the worst case the contract could be declared ineffective – and a challenge could be brought at any time as the contract terms are not being made public.”

The First Minister insisted ministers had to regularly “weigh up” such matters when taking any decision and highlighted the contract had not been challenged.

She also defended her deputy, John Swinney, saying he had no role in the award of the ferries.

Yesterday, the Scottish Government published missing emails which implicated former minister Derek Mackay in the decision.

Those emails also confirmed the deputy first minister had been briefed about the proposal. An official wrote: “He [Swinney] now understands the background and that Mr McKay [sic] has cleared the proposal. So the way is clear to award.”

Speaking in the chamber, Ross said: “These new emails state John Swinney understands the background and the way is clear to award. If he doesn’t clear the deal, it doesn’t go ahead – that’s what these emails say. He went ahead knowing, as we just revealed, that it could open the government to legal challenge.”

Sturgeon said Swinney “did not take the decision” and had only been briefed afterwards. She added it was “not unusual” for the finance secretary to be briefed whenever money is spent.

She said: “It is clear that the decision that was taken, was taken on the basis of all of the information and the mitigations set out in the paper of 8 October 2015. That was paperwork that wasn’t copied to John Swinney, that went to Derek Mackay as transport minister, and Derek Mackay took the decision.”

Responding to the publication of the emails yesterday, Audit Scotland said that while it confirmed ministers approved the award of the contract, it still did not answer other questions.

A spokesman said: “There remains insufficient documentary evidence to explain why the decision was made to proceed with the contract, given the significant risks and concerns raised by CMAL.”

Anas Sarwar also accused the government of presiding over a “culture of secrecy” after asking about investigations into complaints against ministers.

The Scottish Labour leader had asked about the outcome of an investigation into former minister Fergus Ewing and whether other investigations were ongoing.

The First Minister said she was not able to reveal that information due to data protection concerns. She said the “fact or detail” of complaints could not be put into the public domain.

Sarwar said: “The public deserve to know the outcome of an investigation relating to ministers in the SNP government. That’s an issue of public transparency.”

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