Audit Scotland & Calum McMillan

A number of readers have asked why Audit Scotland has refused to investigate the scandalous waste of money in defending the Calum McMillan case. Remember that in previous posts I said that for an outlay of £50k in cash, this could have been settled in May 2014. Instead, the council has probably spent around £300k of your money on internal staff time and external legal costs. Here is what Audit Scotland said:

On 3 Mar 2017, at 16:12, David McConnell <> wrote:

the key point at issue is whether  the council should have legally defended the action raised against it by Mr McMillan.  In this I would concur with the view expressed by the council’s Chief Internal Auditor – that the council, and its officers, have a right to defend any case raised against it.  In so doing they would draw upon relevant advice, which is what appears to me to have been done in this case.  Therefore I would not propose to investigate this matter further as part of the external audit process.

I was away for a week’s holiday when this reply came in but Mr McConnell had replied to myself and Michael Russell. Michael replied on 5 March, as follows:

Dear Mr McConnell 

Thank you for copying me into your response to Cllr Breslin and Mr Hendry

I disagree with your  conclusion (above).

I think there are at least five points that need to be considered ,as follows: 

Firstly there is substantial evidence that a negotiated settlement was possible in this case and that therefore the raising of the case was a failure of policy on behalf of the council which either did not try to secure that negotiated settlement or behaved in a way that made that impossible.   

Secondly it is  frequently alleged that there is a policy operated by Council officers to defend all cases no matter the merits and to do so up until the moment at which they are either lost or abandoned.  This policy is explicitly based on blunt use of the financial power of the authority in contrast to the lack of resource available to ordinary citizens who are driven to take actions by , they believe, the Council’s behaviour towards them.   This is contrary to natural justice and is not best practice.     A councillor has indicated that evidence of that policy can be had from a conversation he had with a senior council official about this case and Audit Scotland should investigate.

Thirdly the matter of Rothesay Harbour and the way the issue was handled was central to two sets of serious complaints against Cllr Breslin firstly by senior councillors and then by senior management of the Council.   The fact these these complaints all failed is germane and suggests that the Council  may have been  , at the highest  level ,  very keen to prevent discussion and speculation about the Rothesay harbour issue.  Defending  the case at considerable expense – £145,000 is already admitted to – may have been a manifestation of that same concern.   The public need to know precisely why the Council was so fixated on the matter. 

Fourthly the costs incurred were out of all proportion to the likely cost of a settlement and therefore the decision did not represent best practice or value for money.

Fifthly the “advice” referred to by yourself above has not been made available in full and therefore there has been no transparency about the matter. 

Finally given the many  shortcomings  in operation, accountability and governance  still being demonstrated by Argyll & Bute Council which continue to this day Audit Scotland should be approaching issues arising from complaint about the Council in a much more robust way than is obvious at present.    

I therefore concur with Cllr Breslin’s view that a full investigation is necessary and I am copying in Fraser McKinley so that he is aware of my view. 

When I came back I emailed them to say I agreed with Michael. There has been no reply yet from Audit Scotland:





  1. Are Audit Scotland saying that public, local, COUNCILS can spend unrestricted amounts of money defending actions of sometimes very lowly staff (as has happened with Rothesay Harbour)? I was under the impression that Audit Scotland would monitor this council, and, ensure it was working in the public interest and towards best value.

    Do the council publish statistics on all legal challenges? It would be interesting to see how many cases have been defended by the council at any stage over the past 5 years or so. Can this be done by FOI?

    The risk, as anyone in the real world can see, is that illegal behaviours from front line staff up to and including senior officers are now completely beyond challenged by the public, unless you can afford a lawyer. It appears the council will simply throw money behind defensive actions. This is extremely dangerous stuff.

  2. At Kilmory bog justice can be bought. Thanks to Michael were all able to read about Kilmory and this is the latest in a long running pattern of behaviour in which Kilmory is going to extraordinary lengths to defend the indefensible rather than adopting an open and honest approach to learn from the past. It’s clear to me that a complete change of leadership at the Kilmory is needed and at what time can and do Government intervene.

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