Annex A: Investment in businesses by Scottish Ministers
Investment in businesses by Scottish Ministers
Decision-making guidance for accountable officers and officials
1. This guidance sets out the key steps that must be considered when Scottish Ministers are considering an initial or follow-on investment in private businesses and forms the basis for developing proposals and, ultimately, a structure for decision-making. In this context, private business is defined as organisations or other entities that are not currently within the boundary of the public sector, as defined by the Office for National Statistics. It includes both for-profit and not-for-profit businesses and should be used when equity stakes or loans are being considered, both of which will be classified as financial investments. It is also relevant when Ministers are considering taking on financial risk in the form of guarantees or similar instruments that result in a contingent liability in businesses.
2. This guidance is not exhaustive because each investment decision is different and will have its own unique characteristics. It is therefore critical that appropriate advice is taken, both from expert staff within the Financial Management Directorate, Legal and Procurement and policy areas and for example, Subsidy control as appropriate, as well as external financial, commercial and legal advisers that might be necessary, depending on the complexity of the proposed arrangement.
3. The guidance builds on and consolidates existing guidance and practice within the Scottish Public Finance Manual (SPFM), HM Treasury’s Consolidated Budgeting Guidance and other publications. It also reflects experience gained through past investment decisions and the principles of managing public money, ensuring action is carried out:
- in the spirit, as well as the letter, of the law;
- in the public interest, to high ethical standards; and
- with a focus on value for money.
4. Routine investment in private businesses is carried out by the Scottish Government’s enterprise bodies through a range of schemes designed to promote growth in the Scottish economy, support job creation and, in turn, accrue tax receipts for the Scottish exchequer. From time to time, however, Ministers might decide to make investments directly through the core Scottish Government and Accountable Officers must therefore ensure that appropriate diligence and consideration is carried out before any commitment is made to invest.
5. As noted above, typically these types of investment are not likely to fall into the strategies and associated investment portfolios of those promoted by enterprise bodies and so will tend to be exceptional in nature and of particular significance to Ministers’ economic interests. It does not follow that all investments will be in businesses experiencing financial difficulties – it is possible for these investments to be of the type that would unlock economic benefit that might not be possible through other commercial means.
6. There is an opportunity cost to other spending on Ministers’ priorities so there should be a clear policy rationale for investing, ensuring that the opportunity contributes to the aims and objectives set out in the National Performance Framework. Investing carries the risk of distorting the market(s) in which a business operates and so a commercial outcome is also essential. There is no specific definition of a commercial outcome (although satisfying Subsidy control tests is a critical element) but broadly the proposal must be within the range that a commercial investor might expect in balancing risk and reward. Identifying what is and is not commercial will also entail wider consideration of, for example, interest rates, broader loan covenants and security. Advice from advisers is likely to be critical in drawing a conclusion, which will include comparisons with deals and/or investments made by private sector investors. These twin objectives of a clear policy rationale and an acceptable risk/reward ratio must therefore be central to the consideration and ultimately the final recommendation on whether Ministers should invest or not.
7. Scotland’s Economic Strategy and the associated Manufacturing Action Plan and Economic Action Plan set out Ministers’ commitment to inclusive growth and to regional economies and place; and emphasise the importance of economic ambition. Any investment consideration will therefore be driven by one or more factors underpinned by these policy priorities and/or associated policies. This could include, for example, businesses that have strategic importance to Scotland’s economy at regional and national level, sectoral significance, or, links with new/emerging industries. It is not possible to specify the exact parameters under which Ministers might or might not invest, including restricting that consideration to specific sectors or businesses – each must be considered on its own merits and a compelling case presented as part of any overall recommendation.
8. With interaction with private businesses there is scope for civil servants involved in investment decisions to experience a conflict of interest, financial or otherwise. It is therefore important that all officials (and as a matter of course advisers) declare and record these at the outset and, where appropriate, withdraw from future involvement, if deemed appropriate by the Accountable Officer, in discussion with Financial Management Directorate officials.
9. Central to the Accountable Officer’s recommendation are the duties set out in s15 of the Public Finance and Accountability (Scotland) Act 2000. The Accountable Officer is directly answerable to the Scottish Parliament, rather than Scottish Ministers, on these duties and must ensure that advice to Ministers and the related process fully considers these aspects. The first part of this guidance therefore focuses on the key Accountable Officer tests, with the remainder setting out the other critical areas of consideration necessary to effect a comprehensive view on the proposal. Flow charts, supporting the guidance on the key Accountable Officer tests and other critical areas of consideration can be found in the supporting documents section of the Scottish Public Finance Manual.
Accountable officer tests
Powers of intervention
10. The Government needs to be able to demonstrate that it has the legal powers in the relevant circumstances to intervene to provide financial support. This is known as Statutory Authority. Any proposed expenditure or other financial commitment will also require to have approval through the annual Budget Act. This is known as Parliamentary Authority and is the normal process through which Ministers gain approval for their expenditure plans. It is also possible to gain this through either of the two annual revisions to the Act that take place during the course of any financial year and there are also provisions for ‘emergency’ expenditure, where it is in the public interest.
Regularity of expenditure
11. This is satisfied through ensuring that expenditure (either immediate or in the event of meeting a future contingent liability) is in line with:
- Relevant prevailing legislation (i.e. Statutory Authority noted above), where Ministers have powers to commit expenditure. Note that it may be possible, in the absence of specific legislation, to rely on common law powers. Where it is not immediately obvious, advice from the Scottish Government Legal Directorate and/or Subsidy Control Team is critical to satisfying this test.
- The relevant accountability arrangements set out in the Public Finance and Accountability (Scotland) Act 2000 noted above;
- Other relevant provisions within the SPFM (e.g. re lending and due process);
- HM Treasury’s Consolidated Budgeting Guidance (CBG), specifically the budgeting classification of transactions within the National Accounts, and the Financial Reporting Manual (FReM), for the accounting relevant treatment in the SG’s accounts (noting that the budgeting and accounting treatment are not always identical).
12. This is satisfied through ensuring that expenditure and processes uphold the standards Parliament would expect for the use of taxpayers’ money, especially transparency, and that it is compliant with the annual Budget Act (i.e. Parliamentary Authority noted above). A schedule accompanies each annual Budget Act setting out the types of expenditure that may be incurred in each Ministerial portfolio. A key test here is whether the Accountable Officer would be prepared to defend the expenditure/commitment publicly, in particular at a Committee of the Scottish Parliament.
Value for money
13. It is always appropriate to demonstrate a sound basis for the use of public money. It will therefore normally be appropriate to develop a business case or a suitable alternative to set out the options for Ministers intervening and/or taking a financial interest in any business, along with an appropriate economic and financial appraisal of the preferred option(s) (HMT Green Book provides further guidance on options appraisal). This appraisal should take into account the widest assessment of the impact of a proposal as regards economy, efficiency and effectiveness. It should furthermore be supported by a rigorous due diligence exercise that takes into account, critically, an assessment of whether the Government will be acting akin to a commercial investor/lender. This is necessary to fully understand the costs and associated risks and weigh those against the financial, economic, environmental, social and community impact of any proposed intervention. Although value for money assessments can include some subjective elements, they are also a critical part of the process through which an Accountable Officer can demonstrate the sound and prudent use of public money.
14. It is important that, whatever the judgements above imply, the feasibility of the proposal must be considered. Where there is a significant doubt about whether the proposal can be implemented accurately, sustainably, or to the intended timetable it will fail to meet the test. It should be noted that a key test of feasibility is financial sustainability. Accountable Officers must therefore be able to demonstrate the source(s) of all funding necessary to meet the proposal both in the immediate financial year and, where appropriate, beyond. It is also important to assess how any financial risk proposed affects the general level of carrying risk that Ministers are exposed to, over the period in which it is expected to be carried. This is particularly important if Ministers are exposed to a guarantee or other form of contingent liability, where there may be no immediate exposure but funds might need to immediately be made available in the event of it being called. Appropriate risk-based assessments of the potential for guarantees to be called under various scenarios should be carried out to aid in their valuation. Fees charged for guarantees will normally be held within the Scottish Reserve to provide a basis for responding to future calls.
15. Where one or more of these tests cannot be satisfied, a proposal will fail to meet the standards expected for an Accountable Officer and advice to Ministers should reflect that conclusion. If Ministers intend to proceed with the proposal in such a case, the Accountable Officer will follow the process for seeking written authority (often known as a “ministerial direction”; SPFM Accountability chapter) from Ministers in line with the AO duty set out in section 15 of the Public Finance and Accountability (Scotland) Act 2000.
Areas for detailed consideration
16. Subsidy control – Any government support for a business operating in a commercial market place must be assessed to determine whether it confers advantage. Ministers will be expected to demonstrate that they are acting broadly in the same way as a commercial investor would in a similar situation – this is known as the Market Economy Investor Principle and is an economic, not legal test. The factors which determine acting commercially can include the rate that is charged on a loan, the loan tenor, lending covenants and security or the fee charged for a guarantee. Detailed advice from Subsidy Control Team /Scottish Government Legal Directorate is therefore required, where appropriate supported by external legal advice, and always with Financial Management Directorate.
17. National accounts classification – Intervention in a business always carries the risk of altering the perceived or actual balance of control over its operations. For example, where Ministers take an equity stake, this might result in achieving effective control even without a majority shareholding. This has the potential for the business to then be viewed as a public sector entity, where it is deemed that Ministers have of control (which need not necessarily be viewed simply through financial control). It is therefore important to consider whether government intervention and/or support might alter the classification status of an entity in the National Accounts from the private sector to the public sector. Any such change is likely to carry significant budgetary implications because of the way in which its financial transactions are subsequently classified. Assessments should be in line with the latest European System of Accounts (ESA) standard and the associated Manual for Government Deficit and Debt (MGDD), and might require Finance officials to engage with HM Treasury and the Office for National Statistics.
Budgeting and accounting
18. It is important to fully explore the budgeting and accounting implications of a proposal before final decisions are taken. Advice should always be sought from Finance officials to ensure that costs associated with any initial or later investment are considered against the resource, capital and financial transactions budgets. HM Treasury’s Consolidated Budgeting Guidance sets out the budgeting treatment for loans, equity and other forms of investment, as well as the implications of taking on contingent liabilities that might result in expenditure at a later date and how write-downs or other revaluations impact on the SG’s budget. The accounting treatment and carrying value of investments should also be considered in accordance with International Financial Reporting Standards as applied in the public sector, in particular, the application of International Financial Reporting Standard 9 (Financial Instruments), for the purposes of reporting in the SG’s consolidated accounts.
19. Governance – Where government takes a control of a business, an appropriate governance regime will need to be in place, both in terms of the appointment of a Chair, Board and CEO as well as an institutional framework that is appropriate to the classification status of the body. Unless the business was managed/operated by an existing public body, sponsorship arrangements might also need to be arranged, either through an appropriate Agency/NDPB specialising in the sector or directly by a policy team in the core SG. In part, governance will need to be influenced by the size of any shareholding, in the event of equity purchase. Note that the ability to appoint the Directors of a company is a significant factor in determining classification status.
20. Purchase/sale – Careful consideration needs to be given to the purchase/sale of any shares in a business. Both are considered either capital or financial transactions so would be a call on/of benefit to either budget. Any business wholly in the hands of Scottish Ministers through a public ownership route that is later sold on/privatised would need special consideration due to the budgeting treatment set out in HM Treasury’s Consolidated Budgeting Guidance. The availability of both immediate and any future funding to support purchase is a critical part of the Feasibility aspects of the Accountable Officer tests set out above.
21. Return on investment – Any proposed investment should be able to demonstrate a potential return commensurate with the risk associated with the proposal. Equity invested in a business or any lending would normally be expected to provide an appropriate commercial return to satisfy the appropriate State Aid considerations.
22. Security of investment – Where it is appropriate and feasible, Ministers should mitigate the risks of loss through appropriate security over assets, parent company or other guarantees that provide the basis for full or partial recompense in the event of a business no longer being able to meet its financial obligations to government. Security is not only an important part of the overall test of whether the proposal is commercial in nature but also forms a critical part of financial risk mitigation for ensuring the appropriate use of taxpayers’ money, as well as the Propriety considerations in the Accountable Officer tests. Obtaining legal and commercial advice (either internal or external) is crucial to ensuring that the maximum level of security has been obtained.
23. Where shares in an entity are being acquired and SG is not the sole shareholder, consideration should also be given to a Shareholders Agreement to act as an additional level of assurance that the taxpayer’s investment is being afforded maximum protection. This would include, for example, the rights and obligations of the individual shareholders, regulation of the sale of shares and how important decisions are made. Advice from both Finance officials and legal and commercial advisers should be sought to ensure the most robust arrangements possible.
24. Public body duties – Careful consideration needs to be given to the implications for businesses that are brought into the public sector through majority control (or other circumstances) relating to the requirements of public bodies. This includes areas such as public sector pay policy, Ministers’ policy on redundancies, procurement of good and services, ability to borrow and the holding and deployment of reserves. It is therefore important to consider fully the duties imposed on public bodies and their applicability or otherwise to the business.
25. Pensions – It is possible that there may be pension liabilities or a general deficit that a business cannot currently meet due to its existing profitability and/or cashflow arrangements. Where government takes majority control through equity purchase, very careful consideration is required of the extent to which such liabilities might then fall on government both in the short term and over the longer term, including guarantees that might need to be provided to scheme administrators. Potential costs here must be fully taken account of as part of the overall value for money case, as well as general affordability considerations.
26. Taxation – Existing arrangements for taxation (in particular VAT) cannot be taken for granted and need to be investigated fully to understand the potential impact. The Scottish Government is, through Revenue Scotland, a tax authority and has set out principles regarding taxation which may not sit with the way in which the business has operated in its tax affairs, potentially bringing additional financial exposure.
27. Legislative and parliamentary considerations – The provisions set out in the Companies Act need consideration to ensure compliance both during any in the acquiring of any financial interest in a company and during its full or partial ownership, if that is the proposed course of action. Special considerations are needed if the company is listed and so appropriate legal advice will be critical throughout.
28. It is also important to respect agreements with the Parliament in dealing with businesses. Provisions exist for the specific approval of financial guarantees, indemnities, letters of comfort and other forms of contingent liability by the Finance Committee and these must be respected fully in advance of any agreement being reached. Consideration should also be given to exposing the proposal to the Committee if the financial risk/exposure is deemed high. The Accountable Officer, as well as Ministers, must be prepared to explain the proposal. In most cases, Parliamentary sessions will likely be heard in private because of commercial considerations.
29. Disclosure and commercial sensitivity – In any intervention, officials should be fully aware of the commercial sensitivity of information about a company. Examples could be price sensitive information, information that may be subject to existing confidentiality agreements or information that may impact on the future commercial prospects of the company. It is important that the Scottish Government is able to act as a trusted and credible investor in commercial situations as failure to do so may impact on its future ability to operate effectively in the commercial sector in the future. Where government has intervened in a distressed company, the risks are greater as disclosure has the potential to affect the level of confidence that suppliers, customers, lenders and other relevant parties have in the business and so increase the potential for decisions that might increase that risk further, putting in jeopardy the investment taxpayers are making in a business.
30. There is a public interest in disclosing information about the use of public money; there is also a specific public interest in protecting the investment of public money by ensuring that a level playing field in commercial competition is not distorted by disclosure of information which would be adverse to the commercial interests of a company in which public funds have been invested.
31. Pro-active publication of information should be considered and will be a necessary consideration in relation to the Scottish Government’s Annual Consolidated Accounts but there is no fixed set of information that should be published. Any decision to make information available (particularly detailed information) should take cognisance of the legal and commercial context and balance the prospects of the business with the benefit of being transparent to Parliament and taxpayers. Consideration also need to be given to the provisions set out in the Freedom of Information (Scotland) Act 2002: how pro-active publication may assist in aiding understanding of the investment decisions made by Ministers and also responsibilities under the Act to not release information which would be subject to exemptions, for example the personal data of third parties, or, where disclosure of information about a company’s financial structure would not otherwise be in the public domain and could prejudice its commercial interests. It is particularly important, however, to give cognisance to the risk of disclosing detailed terms that would then place the government at a disadvantage in any future commercial negotiation as to do so could substantially weaken the ability to secure value for money for the taxpayer. Additional guidance on Freedom of Information requests is provided as Annex B.
32. Disclosure should be with the prior knowledge and, where possible, agreement of the company in question. As noted at the outset of this guidance, all officials and associated advisers involved in transactions must be asked to declare financial or other associated interests that may be relevant.
33. Appointed advisors and external auditors who are privy to details of such transactions, must also be alert to these disclosure considerations.
34. It is also worth noting that the sensitivity of information is likely to change over time, allowing previously withheld information to be made public.
35. Ultimately, decisions on the use of resources will be made by Scottish Ministers. To support a decision on a specific proposal, officials will engage with appropriate policy and expert colleagues within the SG and obtain advice and conduct due diligence and investigations as appropriate in order to provide advice to Ministers that fully explores all of the relevant considerations. This will include ensuring that the company is in good standing and that their practices conform with Ministers’ standards and policies (for example Fair Work and Human Rights guidance).
36. If it is deemed necessary to use external advisers in the transaction e.g. at options appraisal, or to perform monitoring and evaluation then procurement guidelines should be followed to obtain this support.
37. If the Accountable Officer tests cannot be met the advice must set out why and recommend that the proposed action does not proceed. As noted above, if Ministers intend to proceed with the proposal in such a case, the Accountable Officer will follow the process for seeking written authority (Often known as a “ministerial direction”; SPFM Accountability chapter).
38. Good record-keeping documenting each stage of the process is important throughout, particularly where commercial discussions and negotiations continue over a prolonged period. In particular, it is important that there is a clear and auditable trail leading up to and supporting decision-making (for example, covering the commercial discussions/negotiations around all the options considered, the evolution of the positions of the parties and the associated advice and consideration).
Monitoring, evaluation and management of the investment
39. Approved arrangements must be followed up by a robust monitoring and evaluation agreement to ensure the protection of investment and oversight of the changing nature of the financial risk to which taxpayers are exposed. This should be at least quarterly and it will be necessary to evaluate the carrying value of the investment using prevailing accounting standards. This should be led by relevant policy areas and supported by Finance officials.
40. Where public funds are tied-up in an investment, they are not then available to support the delivery of general public services. It is therefore important for Ministers to have a view, at the point of investment, on their long term aspirations for the entity in question and the terms of the investment should reflect the length of time that Ministers then expect to hold it, in whole or in part. Where possible, an exit strategy should be agreed at the outset, certainly it will be important to ensure there are periodic review points at which the SG and the entity formally review the need for Ministers to hold an investment where there is no defined exit strategy. In addition, if circumstances change, it will be necessary to perform a reappraisal of the investment.
Page Updated: August 2019