The overall positioning of the briefing paper that Council Leader Dick Walsh has sent variously to each of his fellow councillors on the Castle Toward affair begins with a strategic misdirection.
It declares that what is being shared with colleagues is ‘the council position’.
This attempts to present the public concern on this matter as being with the Council‘s position – and therefore a matter on which the council – and not individuals – are answerable.
That is not the case. The public concern is with active not the passive ingredients in this pudding [which one reader has amusingly christened as 'potted Dick] ‘- the position of Councillor Walsh himself and that of Executive Director Douglas Hendry.
The briefing’s strategy of trying to frame the public concern as being with ‘the council position’ is intended to achieve two objects:
- to make councillors feel complicit and to script them – ‘giving them a line’ as ‘the council position’.
- to make the council, as an entity, a buffer zone between the public and the individuals whose actions are the focus of question.
The briefing ends as misleadingly as it begins.
Its final paragraph says: ‘The final point we would make is that, as legal action has been threatened against the council, this communication contains information in respect of the council’s position and, as such, it should be treated as confidential and should not be divulged to any third party.’
This is wrong and manipulative. The briefing contains nothing that was not already in the public domain.
All that the raising of confidentiality was intended to achieve was the suppression of public awareness that this highly manipulative and misleading briefing was being sent to councillors to shape their perspective and to put words in their mouths.
The real focus of public concern
The Walsh briefing says [and the emphases are ours]: ‘We thought it would be helpful for colleagues to have a clear understanding of the council’s position in respect of this historical matter, which has been dealt with by Argyll and Bute Council and, for its interests, by Audit Scotland.’
Analysis: The first section emphasised above ‘ helpful for colleagues to have a clear understanding of the councll’s position’ can reliably be translated as ‘helpful for colleagues to see it my way’.
The attempt to define and confine the matter to the ‘historical’ implies that public concern is focused on the events of 2009, which is only partially the case.
The second emphasised passage above implies that Audit Scotland have investigated these events. This is a false claim. Audit Scotland deny that they have looked in detail at these events.
The dominant figure throughout
The Walsh briefing says: ‘‘The decisions about Castle Toward have been made collectively by elected members and the timeline around the marketing, disposal and maintenance of this property is such that it has been the subject of consideration by a number of different administrations since the decision in 2003 to progress disposal of the property.’
Analysis: This is technically correct but attempts to disguises the fact that Councillor Walsh was, by far, the dominant leading figure throughout the period.
The initial dealings on Castle Toward were with an administration led by Councillor Walsh from 1996 – 1999. From 1996 to 2012 he led three out of the five administrations [one brief]; and, from the evidence of council minutes as well as report, was the driving instructor in the longer of the two other administrations.
The interruption to Councillor Walsh’s leadership in 2000 came about as the result of having been found by the Commissioner for Local Administration to have breached the National Code of Local Government Conduct. [This is referenced in Council minutes of 30th March 2000 and 17th April 2000.]
Manipulation of council
The Walsh briefing says: ‘There has been ongoing media speculation about how the council dealt with what are now historical matters at Castle Toward in 2009. On occasion media coverage may have suggested that the corporate actions and decisions of the council in relation to Castle Toward were in fact the actions or decisions of individual officers or members. The council’s position is clear. All key decisions and actions taken with regard to Castle Toward were taken by the council. It is therefore inappropriate to attribute those actions and decisions to individual officers or members of the council. Responsibility for those actions and decisions rests with the council.’
Analysis: This is sleight-of hand-representation. The media coverage has been correct.
Decisions have been taken by Executive Director Douglas Hendry, presumably following a strategic line laid down by Council Leader Walsh, unless Mr Hendry was acting alone, which is improbable.
From time to time Committees or the Council have been asked to approve or note those decisions.
There were occasions when key information was demonstrably withheld from councillors, leaving them agreeing to proposed decisions from an incomplete and unfocused information base.
On the one occasion when a committee made a decision contrary to Mr Hendry’s advice – in 2004 the Bute and Cowal Area Committee refused to agree to the sale of Castle Toward – that decision was simply ignored.
This underlines the depth of unprincipled manipulation in the final sentence of this section: ‘Responsibility for those actions and decisions rests with the council.’
But the council was not ‘responsible’. It was not fully informed; nor was it universally consulted; nor were its decisions respected. The council is, however, ‘accountable‘ – a matter to which individual councillors should pay more attention than they do.
Advancing unable ‘evidence’
The Walsh briefing says: ‘The significant stages are summarised below.
‘ The council dealt with the closure and reopening of Castle Toward in 2009/early 2010. This included agreement with Actual Reality at that time on how the necessary works would be taken forward to allow it to reopen. There was a report to the Executive Committee of the council on 17th December 2009, with a decision in the following terms:
‘ Joint Report by Director of Corporate Services and Director of Community Services (to follow)
The Executive considered a report advising Members on the current situation in relation to the occupation of Castle Toward by Actual Reality Learning and Leadership Ltd, the position of the premises in relation to Health and Safety and the proposed sale of the property.
‘Subject to clarification of the criteria for certain limited use of the premises following consultation with Health and Safety Officers and other appropriate authorities, agreed to the recommendations detailed in the report.’
Analysis: First of all it is important to note that this report was not provided in advance to members of the Executive Committee. This is a long familiar hallmark of Councillor Walsh’s management of council business.
It means that Councillors are giving assent to positions with which they can be no more than superficially acquainted and have certainly not had time familiarise themselves with nor to think through.
The report itself was seriously misleading on a number of important points. This was drawn to Chief Executive, Sally Loudon’s attention by Actual Reality. Mrs Loudon chose to ignore the communication from Actual Reality without even acknowledgment of its existence.
More disguise and legal failures
The Walsh briefing says: ‘In April 2010, the Executive received a further report in respect of Castle Toward, which detailed the progress that had been made to allow the premises to reopen on 1st March 2010. The decision was in the following terms:
‘ A report advising Members on the current situation in relation to the occupation of Castle Toward by Actual Reality Learning and Leadership Ltd, the position of the premises in relation to Health and Safety and the proposed sale of the property was considered.
‘Noted the contents of the report.
‘ The reopening was clearly viewed by the council as a conclusion of the matter.’
Analysis: Again this glosses over a cluster of pertinent realities. It may well be true that the council may have viewed this as the conclusion of the matter. But this view was no more than an unchallenged assumption.
No one from the council ever asked Actual Reality if they agreed that the matter was closed, which they did not. This was legally remiss.
By the time Castle Toward re-opened on 1st March 2010, Actual Reality had lost £80,000 in cancelled course fees. Executive Director Hendry and some of his subordinates are, allegedly, lawyers. What lawyer would assume and on what grounds that any company would or could take a hit of those financial dimensions and never claim it back from the council?
Furthermore, the council had also secured, allegedly by deception, Actual Reality’s agreement that they would not claim back the cost of the remedial works carried out. Mr Hendry and bis subordinates , as lawyers, seem to have failed to appreciate the risk of securing an agreement by deception.
The trigger for Actual Reality’s complaint to the Ethics Commissioner
The Walsh briefing says: ‘There was no further contact about these matters until informal contact was made with the then leader of the council in December 2012, raising a political consideration of historical matters relating to the closure of Castle Toward and which raised concerns about the actions of the council. This contact was subsequently confirmed to the next leader as not being a complaint and was dealt with by the council.’
Analysis: This account characteristically obliterates a key event in the story – a matter known to both signatories to this document – Council Leader Dick Walsh and Deputy Council Leader, Ellen Morton – because they were present on the occasion – and the crucial trigger came from the then Councillor Walsh.
Actual Reality raised ‘a political consideration of historical matters relating to the closure of Castle Toward and which raised concerns about the actions of the council’ in November 2012, with then Council Leader Roddy McCuish and Dunoon Councillor Michael Breslin.
Following this meeting, Council Leader McCuish asked for an Audit Scotland investigation, which, while the part of the matter was eventually ‘looked at’ by the commissioners, was not carried out.
Actual Reality made their direct complaint at this point because, on 26th November 2012, Councillor Walsh had chosen to make a gratuitous attack on Actual Reality at a meeting of an ad hoc group of councillors and officers deputed by the Council to finalise the sale of the Ardentinny Outdoor Centre to Actual Reality.
He allegedly told the group that Actual Reality had exposed children to fire risks in 2009 and that they were not to be trusted.
This was mischievous, damaging and manipulative. It has proved damaging to its author.
In the law of unintended consequences, had Councillor Walsh not made this allegation, Actual Reality would have had no complaint to make to Council Leader McCuish [which in the light of this incident cannot be said to have been exclusively 'historical']; and this sequence would not have spun out into the situation where Cuncillor Walsh is now facing a very serious complaint to the Ethics Commissioner.
Look again how the passage above from the Walsh briefing represents how this complaint was then handled [the emphases are ours]: ‘This contact was subsequently confirmed to the next leader as not being a complaint and was dealt with by the council.’
The Actual Reality complaint is airbrushed into being no more than a ‘contact’. The next Council Leader was Councillor James Robb. The document does not say who ‘confirmed’ the ‘contact’ and presented it to him as not being a complaint – diminutions which together led to its being ‘dealt with’ [hardly] by the council itself, in house.
Perhaps Councillor Robb should be asked from which precise source/s came the flawed guidance he received on this matter.
The Actual Reality complaint to the Commissioner on this very matter
With this knowledge in mind, it is worth reading the substance of the Actual Reality complaint to the Ethics Commissioner.
‘Over a period of three months, from December 2012 to March 2013, on a number of occasions, Councillor Walsh sought to influence Argyll and Bute Council’s response to a complaint that had been made to the Leader of the Council by Actual Reality Ltd.
‘The complaint stemmed from remarks that Councillor Walsh and Mr Douglas Hendry had made about Actual Reality relating to events in 2009. The remarks had been made at a meeting on 26 November 2012 of an ad hoc group of councillors and officers which had been deputed by the Council to finalise the sale of the Ardentinny Outdoor Centre to Actual Reality.
‘We have complained that in seeking to influence the Council’s response to this complaint, Councillor Walsh acted in the knowledge that he had played a leading part in the 2009 events and that, if the complaint were investigated fully and independently, his own conduct could be called into question.
‘He accordingly had a personal, non-financial interest in how the complaint was to be investigated, which he did not declare; and he contributed on several occasions to the Council’s discussions and decision-making.
‘Our complaint is about Councillor Walsh’s interventions between 20 December 2012 and 21 March 2013, in matters in which he had a personal interest, without ever making a declaration of his interest. It is not about anything he did before that time or in 2009.’
Spurious claims of council unanimity
The Walsh briefing says [following decisions taken on an exempt report at the council meeting on 20th December]: ‘ Audit Scotland agreed to review certain of the matters and advised that, in respect of the remaining issues, these should be dealt with by the council. The council then took steps to address these remaining matters, with a report to group leaders and then the council in March 2013, which determined as undernoted.
‘ The Council considered a report [Ed: presumably in March 2013] which provided an update on the review of issues, occurring in 2009 / early 2010, relating to Castle Toward and Actual Reality following on from the report to the Council on 20 December 2012 and the response from Audit Scotland to the terms of reference provided to them.
‘The Council noted:
‘ 1. The content of the documents: Letter to Audit Scotland from the Chief Executive at Appendix 1, Letter from Audit Scotland to the Chief Executive at Appendix 2.
’2. The areas to be reviewed by Audit Scotland.
’3. That in light of the response from Audit Scotland, and following discussion with Group Leaders the Council endorsed the Group Leaders view that no further action is necessary in respect of this matter by the Chief Executive.
‘This decision was a unanimous decision of the council, as was the decision to seek the involvement of Audit Scotland in December 2012.’
Analysis: The statement above – that the agreement to note the three points listed was ‘a unanimous decision’ is a demonstrable piece of spin.
The minutes of that meeting on 21st March 2013 do not record any vote on the matter of the three points [given above in the Walsh document] which were agreed to be noted – and this agreement is the sole content of the Minute [No 26].
The same position is true of the December 2012 decision noted above. No vote was taken.
Unanimity cannot be justly claimed or validated on this basis.
Allegation that Actual Reality lied and that Audit Scotland confirmed this
The Walsh briefing says [and the emphasis is ours]: ‘It should be noted that there are again allegations by Dr Mason to matters relating to Actual Reality, Castle Toward and Ardentinny Outdoor Centre, the main elements of which date back to 2009 (with the exception of the recent disposal of Ardentinny Outdoor Centre on terms agreed with Actual Reality).
‘ The council does not accept that there is substance to the allegations made in respect of this matter and this assessment has been independently validated by the recent determination from Audit Scotland to the extent of its agreed remit. The council is not able to comment in detail on matters dealt with as exempt, even though it recognises that this may result in speculation as to the nature of discussions that take place when the press and the public are excluded. However, there is often a balance to be struck between holding matters in public and the requirement to safeguard the commercial interests of the council and of third parties, and it will not always be appropriate for the council to conduct its business in public.’
Analysis: The claim made in the sentence we have emphasised above is a dangerous one. Council Leader Walsh is alleging that Actual Reality is lying – and that this assessment has been independently validated by Audit Scotland.
We will be surprised if the Actual Reality Trust does not now swiftly refer this claim to the Controller of Audit and ask for confirmation that this is indeed Audit Scotland’s position.
Was there external legal advice?
The Walsh briefing says: ‘The council does not intend to engage in any further correspondence on this matter, which has been the subject of very detailed internal scrutiny. The council has obtained specialist external legal advice on this matter and will strenuously defend any court proceedings that may be raised by any party against the council.
Analysis: It is questionable that the Council has received external legal advice on this.
Councillor Robb posted a comment on For Argyll in which he said that ‘management’ told the group leaders that the historical events were too old to be investigated. This requires investigation on three counts:
- Are these ‘historical events’ now ‘too old to be investigated’?
- Was this reported communication the extent of what elected members were told?
- Which member of ‘management’ gave the leaders of the various groups of councillors this information?
- Did the member of ‘management’ concerned state that this was the opinion from ‘external legal advice’?
In summary, this briefing is deceptive, manipulative and self-protective in its disguises.
It adds further weight to the imperative for a full, fair and transparent investigation by the national audit commissioners.
It does, after all, call into serious question the integrity and good faith of the councillor who presently leads the troubled Argyll and Bute Council; and of one of the most senior officers in the council.
It is in all interests that there is an objectively forensic investigation of this matter, whose conclusions, whatever they should be, merit unequivocal public trust.