Meeting of the Parliament

Meeting date: Wednesday, December 16, 2020

Official Report 972KB pdf

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Burntisland Fabrications

The next item of business is a statement by Fiona Hyslop, providing an update on Burntisland Fabrications. The cabinet secretary will take questions at the end of her statement, so there should be no interventions or interruptions.

14:51  

Thank you for the opportunity to make a further statement on BiFab.

In 2016, the owners of BiFab sought to sell the business. At that point, DF Barnes became involved in the process and achieved preferred bidder status. The negotiations were paused when the managing director of BiFab sadly passed away. It subsequently became clear that BiFab would require external funding to be able to complete the works on the Beatrice offshore wind farm contract.

In 2017, the Scottish Government stepped in and provided a loan facility of £15 million. In April 2018, the company was purchased by DF Barnes. As part of that deal, the Scottish Government agreed to increase its existing commercial loan facility to £41 million, to be used specifically for the completion of the Beatrice contract, and to provide a second loan facility of up to £10 million for restructuring and working capital requirements.

Ultimately, £37.4 million of the original loan facility was used and, as agreed in the sale process in April 2018, it was converted to an equity stake of 32.4 per cent. Subsequent loan monies that were provided by the Scottish Government sit as a liability on BiFab’s balance sheet. The financial support provided by the Scottish Government ensured that the Beatrice contract secured work at the three yards, thereby providing employment for around 250 permanent staff, with a further 1,100 being employed via agencies to support specific contracts at peak construction. The support also ensured the Moray East wind farm pin piles contract, which secured 90 jobs in Arnish for around eight months, as well as a Nigerian oil and gas contract from FIRST Exploration & Petroleum Development Company Ltd for work at Burntisland and Methil for 250 contractors.

In 2018, it was clear that, to be successful and to secure and deliver new contracts, BiFab required working capital. It required appropriate assurance packages by the shareholders, and it needed investment at the sites. However, the majority shareholder made a commercial decision not to provide the support to the business in the way that we would expect of a majority shareholder and, as a result, it was unable to secure future work.

If the majority shareholder will not invest, investment by central Government can, almost by definition, be seen only as a subsidy. Investment by Government must be made on the same basis as that of a commercial investor. When the pipeline of future work was adversely affected by SSE Renewables deciding not to award the Seagreen work to BiFab, the commercial position changed. I have been asked why we could not invest at that time. It is simply because there was no prospect of a commercial return. A commercial investor would not have invested, so we were unable to do so. By investing, we would only have been providing subsidy with no prospect of a return. That fact is key to the state aid position.

As a minority shareholder, we have been exhaustive in our consideration of the options that are available to us to financially support BiFab. We have worked collaboratively with the United Kingdom Government to explore all options, and we have not identified a legally compliant way to support the business.

Deloitte LLP was appointed as administrator on Monday 14 December. We will work with it and trade unions to secure a new future for the yards in Fife and the Western Isles, helping to ensure they are able to diversify and compete in the competitive market.

The Scottish Government has engaged directly with the appointed administrators to understand their current strategy and plans for the workforce in the immediate term, and to shape the strategy and plans to reflect our priorities for the workforce and yards. I have agreed that the Scottish Government will fund the administrators’ initial work, which includes paying the workforce while a sale of business process is pursued, should there be insufficient funds in the business to do so. That will avoid any immediate redundancies, which I am sure will be welcome news for the workforce.

We remain hopeful that a buyer who is willing to invest in the business will be found. We will work closely with the administrators and trade unions to secure the best possible outcome for the workforce, yards and local communities.

The administrator is now responsible for all management and operational decisions at BiFab. It will form an independent assessment of the position of the company and will implement a strategy to maximise the return to all BiFab’s creditors. As a secured creditor with a considerable outstanding debt, the Scottish Government has a significant interest in the administration process and will work closely with the appointed administrator throughout the coming days and weeks. The administration process is governed by legislation, and the administrator is bound to act in the interests of all creditors.

The Scottish Government seeks a positive future for the workforce and the sites, and stands ready to work with credible parties who share our objectives. The process of securing a buyer for the business is for the administrator to manage. We will, of course, work closely with the administrator to support the marketing process in any way we can.

While the chances are receding of the Neart na Gaoithe contract being fulfilled from the yards, I reiterate my desire for that to happen. On two occasions in recent weeks, I have written to Saipem to express my hope that the NnG contract for eight jackets can still be completed in Scotland, but I am aware that Saipem has gone to the market to seek alternatives.

We are setting up a joint working group with the United Kingdom Government to rally our collective efforts to secure a strong future for BiFab’s sites. Although that group must respect the live administration process, it will position both Governments to stand ready to work with potential new investors. Last Thursday, Scottish Government officials met UK Government counterparts to discuss the group’s membership and terms of reference, including how we involve key Scottish stakeholders. I remain keen that the voice of our trade unions is heard as part of that process and will continue to press for that.

Our immediate focus is on delivering a sustainable future for the yards and the workforce. We remain committed to supporting Scottish supply chain growth and to bringing inward investment opportunities to Scotland, which will create employment and build our economy by capitalising on our natural resources. We have demonstrated that commitment with a series of initiatives. Those include the renewable energy investment fund, through which we have invested £70.3 million in 39 companies, leveraging additional investment of £168.5 million; the £62 million energy transition fund; and the green new deal and green recovery, which form our coherent and strategic approach to Scotland’s transition to net zero emissions by 2045.

Nonetheless, we must do more. The Crown Estate Scotland ScotWind leasing round must deliver benefit for the Scottish supply chain. It is an opportunity for Scotland that we should not miss. Scottish Enterprise and Highlands and Islands Enterprise will work in partnership with stakeholders and communities to ensure that resources are properly targeted to achieve a maximum impact for Fife, the Isle of Lewis and Scotland as a whole. With a collective effort, we can and must deliver for Scotland.

Beyond a focus purely on Scotland, we have been calling on the UK Government to reform the contract for difference process and to make greater use of supply chain plans in that process. The UK Government should not award contracts solely on price, but should weigh the contribution of the bid to domestic supply chains to ensure a better outcome for us all.

Despite our efforts, BiFab is now in administration. The best outcome is for the business to be sold as a going concern. For that reason, and to support the workforce, I have agreed to fund the administrators’ work in the short term in the event that there are insufficient funds available in the business to do that.

Over the longer term, we must pick up the opportunities and challenges that are offered by our green new deal to provide the best possible outcome for the yards and Scotland.

The cabinet secretary will now take questions on the issues raised in her statement. I intend to allow around 20 minutes for questions, after which we will move on to the next item of business.

I thank the cabinet secretary for advance sight of her statement. We had a good question and answer session at the Economy, Energy and Fair Work Committee yesterday, and I made clear my view that the Scottish Government has mishandled the spending of more than £50 million of public money. Saving jobs is a good thing and investing in a key sector such as this one is important, but it should come with a degree of influence. The Scottish Government put tens of millions of pounds into BiFab but did not even have a seat on the board. The company went into administration because the Government would not provide guarantees that could have secured the vital NnG contract, citing state aid rules.

Five hundred staff were preparing to return to work on that contract, and it is them I want to ask about today. They will perhaps be thinking of the words of the First Minister at Methil in April 2018, when she announced so-called new investment in BiFab—investment that amounted to £4—and said:

“We are delivering on the commitment”

to

“stand by BiFab and work to secure a long-term future for the company.”

Today, those words have a hollow ring about them.

Focusing on the workers, what discussions has the cabinet secretary had with unions? Has a working group been set up with the unions? For how long will the Scottish Government pay the workers through the administrator, and how much will it pay them?

There were a number of questions in there. To address the issue of working with the trade unions, I have had regular contact with the trade unions and we have had a number of meetings. Indeed, my most recent meeting with the Scottish Trades Union Congress was on 3 December. Unite the union and the GMB have been present at a number of those meetings.

My officials are in daily contact with the STUC, so that regular contact is happening, particularly at this time, and it is informing the strategy that we would want to persuade the administrator to follow while, of course, respecting their legally independent position.

In that case, it is about making sure that a regular pipeline of business can be secured, which was singularly absent—indeed, in the two-hour question-and-answer session that Graham Simpson referred to, one of the issues that was covered was what contracts had been bid for and what had been secured. Clearly, during the course of the last period, the issue of the lack of continuing contracts was very pertinent indeed.

I now want to address Graham Simpson’s initial point. Investment by the Scottish Government to support the completion of the vitally important Beatrice contract is being put into question by the Conservatives. Their view is that the Scottish Government should not have stepped in, should not have tried to save the yards and should not have supported the workforce. That is the premise of the member’s question.

In terms of the investment by a private company in a private purchase of the shares of BiFab back at that time, it is not uncommon for acquisitions of distressed businesses to be for a low value. BiFab was not acquired out of administration and therefore JV Driver was still liable for those existing liabilities to creditors and for exposure to future claims and other aspects.

We want to support the yard. We have invested in the yard and we have supported the yard. If the position of the Conservative Government is that we should have either had full nationalisation or walked away completely, as the Conservatives would have done in 2018, that is unacceptable to the workforce, it is unacceptable to Fife and the Isle of Lewis and it is unacceptable to Scotland.

I thank the cabinet secretary for prior sight of her statement.

These yards are crucial in their importance to Scotland’s renewables pipeline, and it is disappointing that they are now in administration due to the Scottish Government reneging on its guarantee. Although we welcome the information that the Government is paying for the workforce and the administrator in the interim, I cannot help but wonder whether that investment would have been better spent on the guarantee and on securing the Neart na Gaoithe contract. There appears to be hope that a buyer will be found for BiFab and hope of still securing the NnG contract. That calls into question the Scottish Government’s defence in citing state aid rules, even if those were still a consideration beyond Brexit.

What is the cost to the Scottish Government of paying for the workforce and administrator in the interim? Will that include employing the care and maintenance staff at Arnish? Has the Scottish Government discussed with the administrator the decoupling of the Arnish yard from BiFab?

There were a number of questions there. If I do not answer them all, I will get back to the member after the meeting.

Clearly, state aid is not a trivial thing and not something that can be put aside. As of now, on 16 December, we still do not know what the state aid provisions will be in the relationship between the UK and the EU, because the level playing field—which is about business competitiveness and subsidy—is still part of the discussions on that.

I refer the member to my evidence to the Economy, Energy and Fair Work Committee yesterday and reiterate what I said then. The point at which ministers make their decision is the point at which the state aid application is needed. Therefore, we did not renege on an assurance; we gave an agreement in principle in relation to NnG at a point in time when commercial returns and a pipeline of work were envisaged. That is very important in terms of those aspects.

Rhoda Grant asks specific questions to do with the provision for payment. That will depend on how much the existing resources in the company can be used. That gives the member an indication of the company’s perilous financial situation, which obviously led the board to move into administration. I will get back to the member on that provision. Obviously, we would need to ask the administrator about who exactly is covered by the provision on staffing costs. It is important that we support the wages of the staff through this very difficult time. I understand that there are about 30 full-time staff, but there are also temporary staff, whom Rhoda Grant might be referring to when she talks about care and maintenance aspects. I will also get back to the member on Arnish, in particular, in that respect.

On the point about decoupling Arnish, we have been speaking to the trade unions as well as to Highlands and Islands Enterprise and Scottish Enterprise about what might be suitable. Clearly, decoupling might be on the table, but it depends on who comes forward and what their interests are. However, it is absolutely essential to have more regular work for Arnish and to ensure that the provision ties in with the requirements for the Isle of Lewis, particularly in relation to the blue economy that has been developing and is in a strong prospective state there.

We are conscious of that, and we are ensuring that all those aspects are relayed to the administrator so that it has a full understanding of the particular needs. I cannot commit to what the administrator will do on decoupling, but that position has clearly been put to the administrator with regard to the interests that might develop in Arnish, rather than Methil.

I understand from what the cabinet secretary says that the best future for BiFab is as a going concern, and she is right to say that. However, like many, I continue to hear that a number of companies might have expressed an interest in making use of the site at Arnish. Can the cabinet secretary give an update on what is being done to engage with and encourage any such interests, and will she say how that will factor into the administration process?

The member is correct in saying that a number of parties have an interest. Any parties that express an interest in any of the BiFab sites will be directed to the administrator to make their interest known, as is appropriate. The Scottish Government stands ready to support any credible party that is willing to take on the business, but I reiterate what I said to Rhoda Grant: the process is for the administrator to manage in the first instance. As I said, we are working closely with the administrator to support the marketing decisions. Certainly, in relation to the Arnish site, we are asking any interested parties to engage with the administrator.

The point of reference on that is the interest of the unions and Highlands and Islands Enterprise. Their view is that a truly successful outcome for Arnish must support year-round economic activity. We want to make it clear to the administrator that the priority is securing long-term sustainable employment rather than having peaks and troughs, and we want prospective tenants to demonstrate the ability to provide a pipeline of activity. As the local constituency member, Alasdair Allan will be aware of the positive announcement of investment in Stornoway harbour and that there are strong opportunities for the island in relation to growth of the blue economy. We want to ensure that, whatever happens in Arnish, it is part of the wider blue economy reach that the island can have.

The cabinet secretary said in her statement:

“Despite our efforts, BiFab is now in administration.”

Yesterday, when she appeared before the Economy, Energy and Fair Work Committee, she repeated the Scottish Government’s position that it will not produce the legal advice that it received on BiFab or release the pre-acquisition business plan. How is anyone to know what efforts the Scottish Government has actually made without sight of the relevant paperwork? Why the secrecy and lack of transparency?

I have been extremely transparent. I have had several meetings with local MSPs and MPs, and I took part in yesterday’s session with the committee. I know that we are in the chamber rather than a committee meeting, but I reiterate what I said to the committee, which I think that members fully understand: under the ministerial code, I am not able to release legal advice that we have received. We can confirm the existence of legal advice but cannot divulge the content of it. However, I have made clear some of the surrounding issues. I would have thought that, by now, members would understand that it not possible to release legal advice.

We wrote to interested members to explain the context of issues such as those to do with the market economy investor principle, and I shared that information in a letter to Mr Lindhurst in his capacity as the convener of the Economy, Energy and Fair Work Committee.

I think that it would be a good idea if the committee could see the pre-acquisition business plan but, as I explained yesterday, it would be for the company to agree to that and, as yet, it has not done so. When it comes to the issue of “commercial in confidence”, we operate with many businesses for many different reasons and if, at any point in time, we were to release such a document—we should remember that the pre-acquisition business plan is the company’s document—more widely to committees, it could then be made public, which could compromise the trust that any company would have in working with any future Government, not least a future Scottish Conservative Government, should the Scottish Conservatives aspire to be in government, although I think that that is a bit doubtful on the basis of the two questions that Mr Lindhurst has just asked.

I am very pleased to hear of the close engagement on the part of the Scottish Government with the trade unions, and I am very pleased to hear that the Scottish Government is committed to covering the wages of the workforce, as necessary, while a sale of business process is pursued.

In that respect, can the cabinet secretary advise what funds, if any, are in the business? If that is not yet known, when is that information likely to become available?

It is the role of the administrators to look at the balance book of the business and the assets and liabilities. The decision of the board probably reflects an understanding of the urgency and immediacy of the position that the company was in. Decisions had to be taken because of the company’s financial situation.

I do not think that it would be appropriate for me to provide the information that Annabelle Ewing has requested at this time, but I will check with the administrator what could be made available more publicly. That information might influence the future sale and purchase of the company. As of now, the main interest of all of us is in ensuring that the company is sold as a going concern, and I think that that should be the focus of our attention.

However, I will try to get an understanding of the position of the administrator in relation to the sharing of the information that Ms Ewing has asked for.

I am disappointed by the lack of urgency in the statement. My top priority is to secure the NnG contract and the up to 500 jobs and apprenticeship opportunities that would come to Fife, and I am not prepared to give that up.

The cabinet secretary says that she has written to Saipem in recent weeks, but I am afraid that that is not good enough. What does the cabinet secretary have to say to those workers who are relying on the NnG contract? What are the conditions that will mean that those jobs can be brought to Fife?

I have not waited until now, or even the past few weeks, to try to ensure that, despite the problems that BiFab, as a company, had, there would be opportunities for the NnG contract to be delivered for the workforce. If Claire Baker had listened to my statement, she would know that I still want to pursue that. Long before she took an interest in the issue and long before she asked for engagement with EDF or Saipem—[Interruption.]

Cabinet secretary.

I reassure Claire Baker that, all along, we have tried to secure the jobs. I do not question her interest or what she is doing in trying to support the workforce at this time. However, I think that it is wrong for her to say that there has been a lack of urgency, because even before the period of administration, we were working with EDF and Saipem. That was before she would have been aware of the administration or indeed the threat of it. Even at that time, I was working to try to find a way, with EDF and Saipem, to secure the NnG contract, despite the inability of JV Driver to provide any financial assurance.

I say to Claire Baker that I was previously focused on the matter and I continue to be focused on it, but I say again that we are not in control of the process. As I have said to her previously, if there is a possibility in the tendering that Saipem is doing for the eight jackets—we understand that there may have been interest, but that is a matter for Saipem—of that work being done at BiFab, we will do what we can to ensure that that happens. That is why I was pleased to hear back from Saipem that it will keep me informed on the process and what it is doing.

Deloitte, which is the administrator, said in The Courier newspaper yesterday:

“We believe the skills of the BiFab workforce, and the strategically important facilities, can be utilised to take advantage of future market opportunities.”

The work is clearly not going away and there is still work available for Fife to bid into. Does the Scottish Government want a seat on the board of BiFab? If it does, how will it achieve that? How will it get on the board without future investment?

It is very difficult to deal in hypotheticals. We do not know what the interest is, although we know that there is interest in selling the company as a going concern.

On what we can do, it is obviously very difficult, and this comes back to the state aid rules in any case, whether under the market economy investor principle or under block state aid for Government, either as a shareholder or indeed to invest in a failing company. That is one of the basic things in relation to a financially failing company.

On what we can do going forward, that is exactly what we are looking at. It is about an investor coming in with the prospects of securing, as the member said, the future pipeline of work that is there. However, the arrangements for any sale are obviously subject to the administrator. I cannot give that answer.

My commitment to Mark Ruskell as an MSP with a regional interest, and indeed other constituency and regional MSPs, is to try to keep them as informed as I can. However, I ask them to respect the fact that many of the questions are to be answered by the administrator. I cannot do that on its behalf.

Claire Baker is right. The cabinet secretary is just repeating the same old excuses that she gave the last time she was in the chamber.

The cabinet secretary tells us that BiFab or Scotland probably will not build the eight NnG jackets. When is she going to deliver the jobs that she promised, instead of just managing decline? She said that she has written to Saipem twice, but what did it say when she spoke to it?

In relation to the EDF discussion, because obviously it is the developer and Saipem has won the contract, that was a very early discussion, as I said in my answer to Claire Baker.

On securing the jobs—again, this has not been touched by anybody—there is a very welcome and probably overdue consultation by the UK Government on contracts for difference. The deadline for that is January, and it is important that there is a dramatic change in those issues, in terms of what they relay.

Why is that important? We have important improvements in the statement of procurement or supply statement that is part of the ScotWind leasing, but we understand that those that are applying for the ScotWind leases will also want to apply for contracts for difference. There will be a real opportunity if the UK Government changes the contract for difference so that, instead of being a race to the bottom on price, it enables supply chain development in Scotland.

If that happens, the jobs that I and the Government have been talking about, which are already being secured by some of the other investments that we have been talking about, can actually be realised. Until such times as the contract for difference changes, there will be a hamstrung situation.

If the member has looked at the evidence that has been given to the Economy, Energy and Fair Work Committee by the industry—by EDF, JV Driver and other witnesses—he will know that the key to unlocking job opportunities is a change to the contract for difference. There is a possibility of that, and it would be very welcome if this Parliament could collectively ensure that the UK Government has a strong understanding of the vital importance of changing the provisions in the contract for difference.

It is clear that the UK policy context presents challenges. Contract for difference rules are seen to work against the Scottish supply chain. Does the cabinet secretary share those concerns, and can she provide any further detail on how the Scottish Government thinks that the rules could be reformed to support the wider economy and our response to the climate emergency?

Those things are tied together. On tackling the climate emergency, the update to the climate change plan that has been published today gives the strong evidence of our commitment and support, and the levels of investment that will be involved in that.

The greater use of supply chain plans as part of the contract for difference would make a material difference to the opportunities for Scottish supply chains to get work and jobs. A dramatic shift is needed, and the opportunity is there. In my previous answer, I relayed the point that those who are tendering for the current ScotWind contract are expected to apply for contract for difference. We understand that the CFD option round is due to commence in autumn next year. Ideally, the supply chain statements that we have from the Crown Estate provision and the improved contract for difference will ensure a very strong position for Scotland’s supply chain.

In her statement, the cabinet secretary said that the green new deal and the green recovery are

“our coherent and strategic approach to Scotland’s transition to net zero emissions by 2045.”

When will Scotland become the Saudi Arabia of renewables?

To be fair, the member may have not had the opportunity to see the climate change plan update that has been published today. Alongside that we have the climate emergency skills action plan, which is about ensuring that we have the skills base to support jobs. I encourage the member to look at those.

There are more than 600 companies in this arena. Nine of them are working very effectively and there is a real opportunity in relation to not just offshore wind but onshore wind, and also hydrogen. If the member looks at the statements that have been produced during this period, he will realise that there is real ambition there, backed up by investment and opportunity for jobs. I encourage him to look at that.

There is a clear path, although there are hurdles that have to be overcome, not least of which relates to contract for difference. With the collective will of not just Government but the Parliament, we can do that.

This all comes down to securing contracts for BiFab due to price. I appreciate that, sadly, the Scottish Government is bound by state aid rules, which limit the action that it can take to support BiFab. For the sake of clarity, can the cabinet secretary provide any further details of the limitations and whether we can change the rules that are affecting BiFab?

We do not know what the state aid situation will be after January. I am not saying that any member in particular is doing this, but there seems to be a general attitude that state aid will not exist after EU exit, and it is disingenuous to give that impression. That is not the case; it will exist in a different form, even under World Trade Organization rules. Indeed, because the level playing field is a key aspect of the EU exit negotiations, I suspect that it will feature in that.

A key aspect of state aid in relation to our position is the market economy investor principle. I have relayed that to many members in the letter that I wrote to them.

“The essence of the MEIP is that when a public authority invests in an enterprise on terms and in conditions which would be acceptable to a private investor operating under normal market economy conditions, the investment is not a state aid”

according to the terms of the relevant European Commission article. That requires an assessment, supported by appropriate financial evidence, demonstrating that the proposed investment is forecast to produce an acceptable commercial rate of return. This analysis does not take into account any wider public policy objectives that might be achieved as a result of the intervention. Only commercial considerations can be taken into account.

I have relayed to the chamber the UK Government’s position that, legally and commercially, it would not be able to provide state-aid compliant support either. It is not just the Scottish Government that has said that; the UK Government has made that point. I hope that that gives the context of the issues and the pressures under which we have been placed.

The Scottish Government was absolutely correct to put in the investment to complete the Beatrice contract, and the Scottish Tories should stop trying to get cheap headlines on the back of workers’ jobs.

If it was correct and not in breach of state aid rules to put £37 million into rescuing BiFab, why was it in breach of state aid rules to give the guarantee for the contract for NnG, which had already been secured, to be delivered?

DF Barnes confirmed to the Economy, Energy and Fair Work Committee that it offered the Scottish Government all the shares in BiFab free of charge. The company that is building the wind farm off the coast of Fife and shipping the product halfway round the world is a French, state-owned company. What is wrong with us looking at public ownership of those companies for Scotland to try to get those jobs for Scottish workers?

On the transfer of shares, the Scottish Government looked seriously at what would be possible with a share transfer and public ownership. Under state aid rules, we would still have been prevented from investing and financially supporting the company. That was the problem with that proposal. We considered it very seriously, but that was the situation that we found ourselves in.

On the Beatrice contract, a significant series of contracts were available for tender and securing at that point. On the point about the commercial situation, the prospects for future contracts and so on, it should be remembered that that was an investment before the Scottish Government was a stakeholder. Obviously, there were strategic interests in the Beatrice contract.

It is absolutely right to say to the Conservatives that it is not right or fair to the workers to try to make out that the funding of the Beatrice contract was somehow a problem. That was a solution not just for the workforce but for the Beatrice contract. It was state aid compliant, and we examined that at the time.

If members heard my answer to Richard Lyle’s question, they will know that the market economy investor principle put us, particularly as a shareholder, in a different situation in relation to the funding of a company that was obviously in distress at the time or in danger of going into a negative cash flow for a period of weeks or months recently.

I hope that that gives a technical explanation in answer to the member’s inquiry.

That concludes questions on the statement. I apologise to John Mason, but we must move on to the next item of business.

I remind members to observe the rules on social distancing when exiting and entering the chamber. Those rules are in place across the campus.