Jack McConnell, who was the Labor First Minister between 2001 and 2007, made the comments after Auditor General, Stephen Boyle, said the available evidence was consistent with the suggestion the Public Finance and Accountability Act had been breached.
This act requires ministerial directions be recorded by the Scottish Government appropriately and Audit Scotland be notified.
The Scottish Government awarded Ferguson Marine the contract to build hulls 801 and 802 in 2015, but the construction project has been beset by delays and overspending with the ships now five years late.
An Audit Scotland report estimated the cost of the two ships would now reach at least £240m, two and a half times over the original budget.
The report also criticized the Scottish Government for failing to record why ministers decided risks around the lack of a full builder’s refund guarantee – raised by CMAL – were acceptable.
Mr Boyle told MSPs during a session of the Public Audit committee on Thursday that this decision meant ministers had transferred the bulk of the risk of the project failing onto taxpayers, rather than the manufacturer as is standard in ship-building contracts.
He also said he did not believe documentation around the potential ministerial direction had been deliberately withheld, but said it was a “frustration” it did not exist.
The First Minister said it was “regrettable” the government had not recorded the decision appropriately.
However, Lord McConnell took to Twitter after the Scottish Government claimed a thorough search for all relevant documentation around the decision to sign the contract with Ferguson Marine had taken place.
He said: “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. I hope the BBC and the Auditor General are asking Police Scotland to investigate.”
The Freedom of Information (Scotland) Act includes a provision which makes the destruction or alteration of information subject to an FOI request a crime.
It states that where a request to a public body has been made and an applicant is entitled to be given it, anyone who “alters, defaces, blocks, erases, destroys, or conceals a record” is guilty of an offense and could be fined for breaking the law.
His comments came as former owner of the now-nationalized shipyard, Jim McColl, called on the Scottish Government to lift non-disclosure agreements with former Ferguson Marine staff.
He told the Sunday Times: “It’s appalling that former management are gagged with taxpayers’ money and prevented from giving evidence to the auditor general when he was investigating.”
“The NDAs were all signed at the request of the Scottish government and it can waive them at any time, as it did for some former staff during an earlier Holyrood inquiry by the rural economy and connectivity committee in 2020.
“The Scottish government imposed these NDAs simply to gag former staff. They were not based on FMEL employment contracts. These NDAs are simply another part of a process by the Scottish government to suppress what went wrong at the yard.”
A spokesperson for the Scottish Government said: “A thorough search has been conducted and all relevant information that we hold has been shared with Audit Scotland.
“There is extensive documentation available which records the decision-making process, including mitigations proposed to safeguard public money.
“The Scottish government fully supported Audit Scotland while they conducted their inquiry. We have committed to undertaking a formal review following the completion of the vessels, as recommended by the Audit Scotland report.”
Want to hear more from The Scotsman’s politics team? Check out the latest episode of our political podcast, The Steamie.
George Holan is chief editor at Plainsmen Post and has articles published in many notable publications in the last decade.