16th. July 2011.

Operation Magnetise-Statement by Cllr. Gordon Beurskens.

It is now 32 months since the investigation known as “Operation Magnetise” began, predicated on a complaint by Labour politicians in December 2008, about alleged planning corruption at West Lothian Council. It started after an FOI request allegedly showed that several colleagues and I had abused our positions. A subsequent Standards Commission report, yet to be published at the request of the Crown Office, has ruled out corruption and a host of other allegations. But despite the passage of time, we are still no further forward. In response to ongoing speculation about the affair, I have decided to issue this statement.

Since our election in 2007, we have collectively and individualy been the subject of offer and attack from the Labour Party. When they realised they could not buy us off with offers of prestigious-and sometimes well rewarded-positions, they began a series of personal attacks. The Labour Party made clear their intention at the outset, and that was to retain power in the Council at any cost. For many months it seemed like my colleague and friend Councillor Ellen Glass and I were a tag team for their vicious and extremely hurtful attacks. What was all the more disturbing was they would make us an offer, then publicly attack us, only to renew their offers a few days later. And for Ellen, it was particularly insensitive as all this was done while she suffered not one but two very close family bereavements. This process continued throughout the first 18 months of our term, and when they realised they were making no headway, they pulled out all the stops.

In the words of a senior member of Lothian and Borders Police Board, Operation Magnetise has been a “witch-hunt” from the outset. My friends, family and I have been subjected to a tortuous process, which has been questionably handled throughout. What started as an investigation into planning matters has extended to an intrusive and unwarranted attack on every aspect of our lives. I have heard from various sources that the police claimed they had a witness list of several hundred people. The number is staggering when you consider that a murder enquiry will often have fewer than fifty. And still, despite the huge amount of resources deployed, there has been little progress.

Contrast our inability to get answers now, with the information made available to my political enemies who made the complaint, solely about planning matters, in the first place. On 26 th. November 2009, a year after the investigation began and before anyone had been detained for questioning, Cllr. Graeme Morrice made a statement in the the local press. He claimed the police were investigating allegations of “serious financial fraud”, in addition to planning matters. It may have seemed innocuous at the time, but this information was not in the public domain. In fact, Lothian and Borders Police Board were to subsequently comment on 27 th. October 2010 “that it was unfortunate that information relating to the case had appeared in the media prior to any action by the police”. Unfortunate indeed, but how and why did it happen? And since this could have been a criminal offence under Section 55 of the Data Protection Act, why was it never investigated?

When Cllr. Morrice and other members of the Labour Group made their complaint in December 2008 to the then Chief Executive, Alex Linkston, they had no evidence of wrongdoing. Simply put, I had done nothing wrong. In fact, I was meticulous about taking legal advice from the Council’s Solicitors and senior officers. That would normally have been all a Councillor would need to do, and of course to follow the advice, but this was a “witch-hunt”. Cllr. Morrice was potentially a key prosecution witness, yet he was able to make statements to the press revealing what were confidential details of the nature and content of the investigation, before those allegations were put to the people accused.

On reflection, I suppose it should come as no great surprise that he was privy to confidential information. After all, Mr. Linkston took no action when I reported corrupt offers from the Labour Party including planning consent at Whitrigg, to him and the Leader of the Council 7 months previously on 8 th. May 2008. And at a subsequent meeting with Mr. Linkston and Cllr. Johnston on 20 th. May 2009, Mr. Linkston admitted that the complaint against me contained “no evidence of anything illegal”. So why the urgency to report matters to the police in the absence of any evidence, and without clear support from the Council’s own Anti-Fraud and Corruption Policy-which has now been discredited?

In July 2009 I decided to lodge a counter complaint on the basis of fraudulent offers made by senior members of the Labour Party in 2007 and 2008. It was acknowledged by the Police, and I was told I would be interviewed about it. No such interview took place, and we learned earlier this year that it was never investigated. The police now claim that they had passed the matter to the Crown Office, but received no instructions to investigate. So why was there such a clear lack of enthusiasm for an even-handed approach?

The answer to that is complex; a blend of past history and our own approach to scrutiny. It includes an investigation into serious allegations of corruption involving a host of Council officers and members of the former Labour administration, which was started by my SNP colleagues and me in 2007. That investigation has not fully concluded, but two Internal Audit reports and an independent report have been highly critical of the behaviour and conduct of Council officers. And these are the very same officers whose “evidence” has been relied upon during the course of this investigation.

So what lay behind their clearly evidenced bias and hostility? The start was the Council being found guilty of maladministration in 1998 after a complaint from me about planning. Then they were forced to change their procedures to stop covering up their mis-deeds after a second complaint to the Ombudsman in 2002-on the same planning application. We then had the leaking of confidential discussions my business associate and I were having with the Council’s planners in 2005 and 2006, to a commercial competitor. This isn’t unusual in the Council, as I found in my former roll as Chair of the Audit Committee.

There was the missing valuation for land worth millions that the Council transferred for £1. The Council said there was an independent valuation, but when I asked for it, I was buried in 12,000 documents. Mr. Linkston and his head of property services, now also retired, authorised this course of action, in a clear attempt to bury further mis-deeds. I worked through the files, but there was no valuation. The explanation offered now is that the valuation was done, but the officer, who allegedly produced it, by pure coincidence, has now left the Council. And the report is missing from the files. So I was lied to, and buried in paperwork when I persisted. It sounds all too familiar.

So does the missing correspondence relating to questions put to Council solicitors about the Council’s intentions for the land prior to its transfer-to the same commercial competitor to whom the Council had previously leaked my confidential discussions. I was told I had all the files in the 12,000 documents. But what was also missing was key documentation relating to a Council tenant on the land. This solicitor’s letter claimed the Council had no intention of transferring the land, despite the fact the Council was pursuing only one option: transferring the land to a third party. And there had already been three draft agreements drawn up to facilitate that transfer. In addition, masterplans for the site had already been drawn up by the “development partner”, although their existence was denied by senior planning officers prior to the transfer.

Then there is the issue of a Council “arms length company”, West Lothian Enterprise Ltd. used to facilitate the renunciation of the farmer’s lease, and the subsequent transfer to the “development partner”. This Council owned company filed dormant accounts during the period it was acting as the “transfer vehicle”. By taking this approach its activities remained hidden, until its omission from the Council’s corporate accounts was spotted by me. Although the Council has contented itself that this was an “administrative” error, it is another in a long line of convenient errors and omissions in the Council’s records.

And what about the CHAPS payment of almost a million pounds of grant funding for the same project? This funding was essential to the development, so surely the Council and its “development partner” would take care of it? What they did was to make an error in the payment. I accept the error was only £9000, but this is public money. Council Officers spotted it, but rather than correct the error, they emailed a member of the “development partner’s” staff about splitting the proceeds, with a cut going to another senior officer.

It lay un-resolved until I spotted it during my trawl through the files. When I raised it in November 2009 with the then Head of Finance-who has also retired in the interim-there was no investigation, nor were other records audited to ensure it was an isolated error. So it begs the questions, how often does it happen, and how can it go ignored for years when Officers have identified there was an error? I suppose we don’t need to look too deeply into why all this has been allowed to happen without proper investigation. After all, the former Council Director whose department was responsible for all of these issues recently began working for the “development partner” or its associated companies. No, you really couldn’t make it up.

So we continue to suffer under the weight of an investigation instigated by those who had more to hide than they would care to admit. We should have known that things were not right when Cllr. Morrice was able to comment to the press in advance of our detention. And that detention on the 1 st. December 2009 was redolent with irregularity. There has been much press coverage recently of the human rights decisions of the Supreme Court. But our case shows how easily our unique system of laws in Scotland can be easily undermined.

When we were detained, we exercised our right to have our solicitor advised of our detention. In fact, during that detention, I asked for my solicitor to be advised on three separate occasions. Unbeknown to us, Lothian and Borders Police had allegedly taken a “policy decision” not to contact any West Lothian solicitor, for fear they may subsequently have been witnesses in the case. This was the bizarre explanation offered last year for what was a clear breach of the provisions of the Criminal Procedure (Scotland) Act 1995. What still remains unanswered is why, if that decision had been taken, we were not advised of it at the time. Unlike the Cadder case so often cited in recent months, our statutory rights were not only deficient they were simply usurped on a whim.

We were charged with financial fraud, predicted in the press only days before by the prescient Cllr. Morrice. What has become a point of irony is that this investigation has been repeatedly described as being of such a sensitive nature that the case hasn’t been logged on the Crown Office computer system, and that we, the accused, have been unable to get access to accurate information as a result. In view of Cllr. Morrice’s access to the details, it seems sensitivity is a matter of whose interests are served by leaking information. And our interests have clearly not taken precedence.

And so it is that we still find this stressful and iniquitous journey no nearer an end. We have had to sit on our hands while the police have written their own rules; where they have gone well beyond their powers trying to compile a case that is fundamentally flawed; where they have pressured and led witnesses to the extent that innocent bystanders have become unwitting participants; where the truth has been twisted by investigators to mislead and contrive allegations that are so far removed from the truth it is quite implausible; where “evidence” has continued to be gathered from the Council without a warrant, on the say-so of the former Chief Executive; and where guilty people, both inside and out of West Lothian Council, have been allowed to jump on a bandwagon that is now a runaway juggernaut of injustice.

It has been my great pleasure and privilege to have worked over the past four years with the police locally. They have been nothing other than professional and have shown a level of commitment and dedication I have nothing other than admiration for. But that cannot take away from the fact that I have had 9 complaints against the police partially or fully upheld, including complaints to the Police Board and the Police Complaints Commissioner for Scotland. These include three in relation to Operation Magnetise. Prior complaints include matters as serious as the denial of the existence of video evidence in a criminal case where I was the victim, the subsequent admission that the evidence had in fact been in the possession of the police, and then destroyed by them. My cynicism therefore has some basis.

Some of my colleagues said at the outset of this investigation that it would be orchestrated to fit a timeline to do maximum damage in the run-up to the 2012 local elections. That idea was scoffed at, but here we are, only 8 months away, and still no outcome. Even if a decision to instigate proceedings was made tomorrow, it would be possible, and indeed probable, that the case would be ongoing during that election. And that would suit the ulterior motive that has always lain behind this “witch-hunt”.

It would be difficult to see how I could stand for election again with these allegations hanging in the air. There is an increasing likelihood that any prospective candidates for our Party would think twice before putting their heads above the parapet to stand for election in 2012, when they look at our experiences since 2007. And the only losers from that would be the people in West Lothian for whom we have worked tirelessly over the last 4 years. But then why let good public service get in the way of political score-settling? To put it in the words of a host of Council Officers, “In the history of this Council, it has never seen the level of scrutiny it has since 2007”. And that’s a good thing, right? Yes, but only when those in charge have nothing to hide!

This Council is a hugely powerful organisation that was led by a handful of senior executives, capable of deceit and duplicity at the drop of a hat, with close links to certain politicians forged over many years; a police involvement that is less than impartial in its approach to investigations; and where material is selectively leaked, or is only released when people get caught out. If this sounds familiar, you’ve obviously been following the events of recent weeks in the national media. Recent comments there highlight the need for the distinction that perception is one thing, but reality is quite another. I couldn’t agree more. Issues of perception are the preserve of regulatory agencies and not the prosecution services, and the regulators have already ruled out corruption, lobbying and abuse of office. And no criminal investigation should be pursued based on perception, as it has in our case.

All of the allegations I have made are well evidenced, despite repeated attempts to gag me. Where this investigation began based on an FOI request which gave wholesale and possibly unlawful access to my communications, I have had to fight the Council for months to get responses to FOI requests for correspondence about me between Council officers, their colleagues or other Councillors. The Council has selectively applied an exemption. The reasons given include that “Councillors expect their correspondence with officers to be kept confidential” and “it would inhibit the free and frank exchange of views between Council officers” if their emails were released. The irony of this cannot be lost on the reader that had these same rules been applied in 2008, there would have been no grounds to make these spurious allegations against us in the first place.

To those whose enduring support has sustained us through the last 3 years, we thank you again. To those who have orchestrated the events of that period, they should hang their heads in shame.