Challenges that the contract for 801 and 802 have been placing on Ferguson Marine Engineering Limited: FOI appeal

Information request and response under the Freedom of Information (Scotland) Act 2002.

Information requested

You asked: 

“I refer to Scottish Government’s response to Freedom of Information request FOI/18/02245 specifically email correspondence from Jim McColl to Liz Ditchburn dated 5 February 2018, timed at 13:32.  The correspondence states “….it is also important for the Scottish Government to recognise that I have been highlighting the challenges and cash pressures that the contract for 801 and 802 are placing on the business since March 2017.”

Please provide all correspondence, both internal and external, held by the Scottish Government, covering the time period 1 September 2016 to 31 July 2017, relating to the challenges and cash pressures that the contract for 801 and 802 have been placing on Ferguson Marine Engineering Limited.”


During the course of your appeal we have now given further consideration to the information withheld under section 33(1)(b) (commercial interests) in relation to your request reference FOI/18/03135 and we have concluded that some of the information previously withheld under section 33(1)(b) can now be released. I enclose a copy of this information. 

Reasons for not providing information
However we have determined that an exemption under section 33(1)(b) of FOISA continues to apply to some of the information as indicated by the numbered red redactions in the attached documents for the reasons previously given in our response to your initial request and review. 

In addition, we consider that an exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to a very small amount of the information requested.  This is noted as [Redacted – 1] in document 17. This exemption applies because revealing the source of the Scottish Government’s legal advice, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on the consideration of financial or contractual agreements when providing support to Scottish Companies.  This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

This exemption is subject to the ‘public interest test’.  Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.  We have found that, on balance, the public interest lies in favour of upholding the exemption.  We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.  However, there is a greater public interest in enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter.  Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter.  There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at

FOI-18-03135 - Information Released


Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road

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