Crofting Commission appointments and unfinished business?

Crofting Commission appointments and unfinished businessThe Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, has announced the appointment of Malcolm Mathieson as a Commissioner of the Crofting Commission Board from 1 January 2017.  He also announced the reappointment of David Campbell as a Commissioner of the Crofting Commission Board from 1 April 2017.

The official Scottish Government press release reads:-

Appointments

Malcolm Mathieson is by profession an accountant who has held senior Finance and Managing Director positions within various global organisations.  He is senior partner in Moy Farm, an 1800 acre hill farm in Lochaber and a Director of Lochaber Lodges which he set up in 2009 as part of the farming diversification of Moy Farm.  Mr Mathieson has a specific interest in the financial viability of farming in less favoured areas.

Reappointment

David Campbell’s reappointment introduces a degree of continuity between the current Crofting Commission Board and the new Board which will be in place following the Crofting Commission elections in March 2017.  He has a wide experience of crofting matters with a solid grasp of crofting’s cultural, social and economic benefits, and how these are underpinned by effective regulation.  Mr Campbell has a strong connection to crofting traditions with an equally able understanding of how crofting system of land tenure plays a significant role in population retention.

Length of Terms and Remuneration

Mr Mathieson’s appointment is for three years and runs from 1 January 2017 until 31 December 2019.

Mr Campbell’s appointment is for three years and will run from 1 April 2017 until 31 March 2020.  His appointment fulfils the requirement for there to be a Crofting Commissioner to represent the interest of landlords of crofts.

Both appointments are part time and attract remuneration of £161.29 per day for a time commitment of around 4.5 days per month.

The appointment and reappointment are regulated by the Commissioner for Ethical Standards in Public Life in Scotland.

Bill Barron, Interim Chief Executive of the Crofting Commission, said:-

We look forward to working with Malcolm, his experience and knowledge of finance and governance will be of great value to the Commission over the coming years.

Commissioner Campbell has provided an important contribution to the Board with his experience of crofting matters and understanding of the interests of landlords of crofts.  His reappointment will provide crucial continuity to the Board ahead of the crofting elections in March 2017.

The Scottish Government press release also revealed that:-

One further Commissioner appointment will be made in due course.

It appears odd that this appointment was not also announced at the same time as the appointment of Malcolm Mathieson given that the two vacancies were advertised at the same time and presumably the selection process carried out at the same time. Given all the problems that exist within the Crofting Commission it is an appointment that the Scottish Government can ill afford to delay any further.

It was interesting to see the Scottish Government press release state that:-

The Convener is appointed from among Commission members.

Whilst the current convener was so appointed it is of course within the power of Scottish Ministers to make the appointment rather than delegate that function to commissioners. It will be interesting to see the approach taken on this by Fergus Ewing MSP following the next Crofting Commission elections.

The current convener, Colin Kennedy, was back in the limelight this week speaking to The Scottish Farmer. He told them:-

I am standing again for election as I believe the job I started in 2012 is not completed.

I have been given overwhelming support from crofters across the crofting counties over the past four months, who recognise the commission requires people who are not afraid to take the decisions which the law provides for, rather than the decisions which certain individuals desire.

It is my paramount desire to ensure fair and equal treatment of all crofters regardless of where they reside. I am aware the board have been informed by a commissioner on several occasions ‘you don’t understand, crofting is different in our area’, which may be the case – and should it be that the Scottish Government have made special arrangements for that area, then it is only fair that crofters in all counties are afforded equality.

The board provides leadership, direction, support and guidance to make sure the commission does its job properly in line with the law. This is what I have tried to do and intend to continue to do should I be re-elected.

Also of extreme importance to every crofter is an explanation as to why the executive requested certain papers be destroyed, and why those vast documents were not on the commission system when a freedom of information request was received.

Who produced those papers which were then provided to both the commission committee and the full board with a list of options on how to dispose of such cases remains a mystery requiring answers. And why was the minute of the board dated September 15, 2015, in relation to those papers not implemented, together with numerous other minutes which were not implemented.

I am not sure where this “overwhelming support” is coming from. It has not been evidenced as far as I can see. On the contrary we have had crofters and crofter representatives seeking his resignation or dismissal.

With regard to “fair and equal treatment” Mr Kennedy has perhaps forgotten that the Commission’s removal from office of the Upper Coll Common Grazings Committee because they did not produce five years of audited accounts contradicted the position previously taken by the Commission. Their former convener, Susan Walker, had stated to another grazings committee that based on legal advice received by the Commission “reference to audit in the Grazings Regulations is not a specific statutory requirement”.

This is one of many examples of the Crofting Commission contradicting itself and not taking a uniform approach to the application of the law.

Also many would dispute that there has been “fair treatment” to crofters in Lewis and Lochaber over the past year.

There is little doubt in many observers eyes that the Commission has certainly not done “its job properly in line with the law” in recent times. If that is what Mr Kennedy has really tried to do it is something he appears, unfortunately, to have failed in.

It is not surprising to hear about the destruction of documents within the Crofting Commission. Mr Kennedy’s own guidelines on disbursement of funds by grazings committees was of course deleted from the Crofting Commission website as though it had never existed. Perhaps the missing documents Mr Kennedy refers to are the ones that were found by commissioners in the secret brown envelopes? However, the cryptic nature of the references by Mr Kennedy to these papers leaves more questions than answers. Perhaps he should arrange a special meeting of the board to be held in public to air fully any such matters that are “of extreme importance to every crofter“?

Brian Inkster

Nominations open for Crofting Commission elections

tand as a Candidate for the Crofting Commission

Fishermen may apply

An election is being held to elect Crofting Commissioners from the six crofting constituencies:

  • Shetland
  • Orkney and Caithness
  • East Highlands (East Sutherland, Easter Ross, East Inverness and Moray)
  • Western Isles
  • West Highlands (West Sutherland, Wester Ross. Skye and Lochalsh)
  • South West Highlands (Lochaber, Argyll and Bute, Arran and Cumbrae, Small Isles)

One Commissioner will be elected from each constituency and will, along with the three Commissioners appointed by the Scottish Government, make up the Board of the Crofting Commission.

Nomination forms and other documents relating to the election can be downloaded from www.cne-siar.gov.uk/electionoffice/croftingelection; obtained on request, by e- mail to elections@cne-siar.gov.uk; or from the Election Offices detailed in the Notice of Election. Completed nomination forms must be submitted by Thursday 26 January 2017.

An election will be held in each contested constituency by postal ballot, with votes having to be returned by 4.00pm on Thursday 16 March 2017.  The count will take place in the Town Hall, Point Street, Stornoway, Isle of Lewis HS1 2XF on Friday 17 March 2017 at 10.00am.

View from the Crofting Law Blog

The election nominations have been called at a time when the current Crofting Commission remains in chaos. The board is divided, the Convener is ostracised but remains in position possibly pending the outcome of a complaint made by him against Fergus Ewing MSP, Cabinet Minister with responsibility for crofting. Vacancies for two appointed Commissioners remain unfilled.

With elections now in sight there is perhaps a glimmer of hope that they will herald in a new batch of commissioners and, as a result a new and improved Crofting Commission. However, the current Convener, Colin Kennedy, has already expressed his intention to stand again for election. He has been accused by many as the root cause of the problems that have plagued the Crofting Commission throughout its first five years of existence. So will it be a change for the better on 17 March 2017 or another 5 years of chaos, trouble and strife? That is now in the hands of the crofters who are the electorate.

The image used to encourage people to stand for election as a crofting commissioner is curiously of a fisherman. I had the following exchange about that on Twitter:-

To stand for election as a crofting commissioner you do not actually have to be a crofter as long as you have been nominated by a crofter entitled to vote at the election. So a pure fisherman, without a croft, could be a crofting commissioner.

My father was a Shetland fisherman and not a crofter. He was not even a fisherman with a croft. However, he would, I am sure, have made a better crofting commissioner than many of the crofters who hold that position today. Perhaps non-crofters being nominated for and being elected as crofting commissioners would avoid the conflicts of interest and power struggles that have plagued the current Crofting Commission over the past five years? Perhaps it would be a good thing for crofting? What do you think?

Brian Inkster

Pantomime, Farce or Tragedy?

Crofting Pantomime, farce or tragedy?

He’s right in front of you!

As news of the goings on at the Crofting Commission’s Board meeting on 14 December 2016 filtered out views thereon played out on Twitter:-

Image Credit: Dick Whittington © Hackney Empire

Crofting chaos escalates

Despite 101 blog posts highlighting the crisis within the Crofting Commission, a review being commissioned by the Scottish Government into their governance and countless calls from all quarters for the current Convener, Colin Kennedy, to step down the chaos within the Crofting Commission just seems to get worse by the day.

Before Christmas it truly escalated with the Convener calling a secret meeting of commissioners in an attempt to purportedly overturn the decisions taken at Brora, including the call for him to resign. He failed. Things did not go well for him either, a few days later, at the scheduled meeting of the board on 14 December. That board meeting was covered by BBC Alba and we reproduce here their full report:-

Iain Maclean (presenter) highlighted the matter at the outset of the evening news headlines:-

This evening, more chaos and controversy surrounding the Crofting Commission as two officials refuse to attend a board meeting, they say that they cannot work with the current board.  Three co conveners, have asked the Scottish Parliament for an intervention in relation to Colin Kennedy.

BBC Alba - Commission Chaos - 141216 - Tavish Scott MSPTavish Scott MSP was interviewed stating that:-

The Crofting Commission has failed now to work for crofters, it’s now a mess, it’s now working in an extraordinary manner, involving people leaving the room and not working with the current Chairman.

Then when it came to the full report the presenter, Iain Maclean, stated:-

We start tonight with more absolute crofter chaos, after two officials have refused to attend meetings.  They maintain that they cannot possibly work with the current board.  This follows from the events that unfolded at the last meeting in Brora.  Let us look at today’s meeting in Inverness with Donald Lamont.

BBC Alba - Commission Chaos - 141216 - Colin Kennedy, Convener

Colin Kennedy, Convener of the Crofting Commission, was reportedly looking “very uncomfortable” at the board meeting in Inverness on 14 December 2016

Donald Lamont, reporting from Inverness, told us:-

Everything seemed very wrong at today’s meeting in Inverness, first of all it was obvious that not everyone was present.  Two officials refused to attend and were not present. This suggests that things are coming to a head for Colin Kennedy, who looked very uncomfortable today.

BBC Alba - Commission Chaos - 141216 - Bill Barron, Interim Chief ExecutiveBill Barron. Interim Chief Executive of the Crofting Commission, was then interviewed. He said:-

It’s very regrettable to me that two of my staff didn’t feel comfortable coming to the meeting. That’s because, one commissioner has made various allegations, criticisms, about what they have done in recent months.  They find that unacceptable and I’m supporting their position on that.

Donald Lamont continued:-

One can understand with this news, some of the commissioners are very angry, David Campbell being one of them.

BBC Alba - Commission Chaos - 141216 - Board Meeting - David Campbell, Commissioner, speaksFootage was then shown of the meeting itself with David Campbell saying to the board:-

This is extremely disturbing, extremely disturbing, the most disturbing thing I’ve come across in my time on this board… that two members of staff, by the sounds of what you said there, feel unable to be present here and by your description are unable to work with this board directly in a public forum… that gives me grave, grave concerns.

Donald Lamont went on to say:-

Few of the commissioners still support Kennedy, but things are far from right amongst the board.  With the Commission’s own situation, it is obvious that the crofters themselves are no longer the priority.

Then back to Bill Barron who elaborated:-

On Friday we accepted that it was one continuous meeting in two valid parts. What happened today was that we approved the vast majority of the  minutes of that meeting. There are two issues still to be ironed out on that.  We also noted that there are some doubts about the way the piece of business that led to the motion against the convener, the way that was called, but the commission decided to take no particular further action on that.

Iain Maclean (presenter) then came back on air to say:-

We now go to Holyrood to our political correspondent Niall O’Gallagher.

BBC Alba - Commission Chaos - 141216 - Niall O'GallagherNiall O’Gallagher, reporting from Holyrood, advised:-

They have now moved their business from the Highlands to Edinburgh in relation to the Kennedy situation.  We had three political figures from Labour, SNP and the Lib Dems come together to say that, the minister concerned, Fergus Ewing, needs to remove Colin Kennedy from the Commission to move forward. Talking to us is Lib Dem, Tavish Scott.

Tavish Scott MSP said:-

The Crofters Commission cannot carry on with the chairman it’s currently got, and the dysfunctional nature of the organisation where the senior staff meant to work together for the crofters are instead fighting like ferrets in a sack.  This has got to change.  The minister would have my full support if he now steps in, makes the changes that need to happen, including getting rid of the current chairman, and getting the organisation back to doing what it’s meant to do and that is serving the crofters.

Niall O’Gallagher then continued:-

Other than questions and concerns about the people involved in the Commission at the moment, there is also questions about the work that they actually do.  The opinion many have of the Commission is not a good one, they are not seen to be working to help the crofters who should be their prime concern.  Talking to us from the SNP is Kate Forbes.

BBC Alba - Commission Chaos - 141216 - Kate Forbes MSPKate Forbes MSP said:-

We need to do something.  Next year will be a very important year, they will have elections.  We need to change the situation now!

Presenter, Iain Maclean, returned:-

Thank you Kate, now back to Niall at Holyrood.  What is happening at parliament this evening?

Niall O’Gallagher then rounded matters off from Holyrood:-

We didn’t get a chance to speak to Fergus Ewing tonight.  The parliament’s view is that they don’t want anyone with bad intentions within the Commission.  We managed to have a few words with Alasdair Allan. Talking on behalf of the government he said that there would be an opportunity to pick new commissioners but that it was not for Holyrood to make any quick impulse decisions.

BBC Alba - Commission Chaos - 141216 - Cross Party MeetingIt was also reported online on BBC Naidheachdan that Professor Donald Meek from Tiree, who attended the meeting at Holyrood, had said that all the uncertainty was doing great harm. He is quoted as saying:-

What I realised this evening, was that I was very familiar with the old Commission.

Whatever was happening with the old Commission, there was never any uncertainty about the Commission’s own situation.

The Commission was somewhat subtle, stable, and although you were now and again not in agreement with the Commission, the Commission was still a guiding stone for crofting affairs.

That is not true now at all, ever since the uncertainty arose  in relation to those leading, those who shouldn’t even be there, so on and so forth.

View from the Crofting Law Blog

It is clear (if it was not already) that all is not well at Great Glen House. Now senior employees of the Crofting Commission are refusing to attend board meetings purportedly due to issues involving the Convener.

Despite attempts by the Convener to reverse or nullify the decisions taken by the board at Brora he has failed to do so.

Indeed Bill Barron, Interim Chief Executive to the Crofting Commission, clarified to the Cross Party Group on Crofting at Holyrood, that six commissioners had asked the Convener to stand down at the Brora meeting and have not recanted on that. The Convener has chosen not to.

Thus the call from all six commissioners, who met after the Convener walked out of the board meeting at Brora, for the Convener to resign still stands.

We now also have it reiterated by MSPs from the SNP, Scottish Labour and Scottish Liberal Democrats that they believe that the Convener should go.

Yet the Convener remains defiantly in place, apparently pending hell freezing over.

Investigations concerning a complaint made by the Convener against Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, appear to still be ongoing. The Scottish Ministers have, it would seem, been paralysed from taking any action concerning the position of convener pending the outcome of those investigations, despite the fact that it remains within their power to do so.

Perhaps the New Year will see this mess unravel and be properly sorted in the way I suggested it should have been back in April 2016. Eight months is hardy a period that would allow Scottish Ministers to be accused of making “quick impulse decisions” as Alasdair Allan MSP suggested might be the case to BBC Alba!

Meantime crofters suffer from a Crofting Commission that cannot, it would appear, be properly regulated itself let alone effectively regulate crofting.

Brian Inkster

Image Credits: © BBC Alba

Gaelic credit: Thanks to Vicki Folan of Inksters for translating the BBC Alba coverage from Gaelic to English

The Crofting Commission has become a three-ring circus

The Crofting Commission has become a three-ring circus

Every good circus needs a performing elephant!

The title of this post is the title of the Editorial in the West Highland Free Press (WHFP) published on 16 December 2016.

We reproduce that Editorial here as an important addition to the 101 blog posts already published on the fiasco arising from ‘The Common Clearances‘:-

For the last three months the Crofting Commission has not been dysfunctional. it has been non-existent.

As the Crofting Commission is the regulatory body of almost 20,000 crofts occupied by over 30,000 people – including around half of the combined populations of the Western Isles, Skye and the west Highlands – that is plainly unacceptable.

This dire state of affairs originated in the persecution of grazings committees in Lewis and Lochaber by the commission’s convener, Colin Kennedy.

Following a widespread outcry, Mr Kennedy’s edicts were overthrown and he was ordered by the crofting minister, Fergus Ewing, to retreat and apologise.

In September the rest of the commissioners issued their own apology and passed a vote of no confidence in Colin Kennedy, who had stalked out of the meeting.

In the real world, that would have been that. Mr Kennedy would have vacated the convener’s chair. The Crofting Commission would have dusted itself down and continued to do its duties as best as possible.

In the unreal world of the Crofting Commission chaos ensued.

Colin Kennedy has refused to accept the censure of both the Scottish Government and his colleagues on the Crofting Commission. Even more remarkably, the other commissioners and the crofting minister seem prepared to accept this.

As we go to press on Wednesday the Crofting Commission is meeting in Inverness. Following recent form, we have no idea what will transpire. It could be anything from another walk-out to a song and dance act in the grounds of Great Glen House.

It is possible that the commission will settle for a quiet life and accept the status quo – Colin Kennedy included – until its elections next March.

That would mean three months of a non-existent Crofting Commission followed by three months of a dispirited and barely functional Crofting Commission.

Why has the crofting minister allowed this to occur?

View from the Crofting Law Blog

The WHFP have a greater grasp of the situation and have been more vocal than most news papers in calling for a resolution thereof by the Scottish Government over the past few months.

They are as perplexed as I, and many others are, at the dithering on the part of the Scottish Government over it.

Unfortunately a song and dance act in the grounds of Great Glen House did not take place at the board meeting underway as the WHFP went to press that Wednesday. Perhaps that is being saved until the Scottish Government does take the action that it really needs to take 😉

Another walk-out was nearer the mark as will be revealed in our next blog post.

Brian Inkster

Image Credit: Coll-ossus cartoon © A concerned crofter

three-ring circus - definition

101 blog posts on ‘The Common Clearances’

101 Blog Posts on 'The Commom Clearances'

For some ‘The Common Clearances’ have been the equivalent of being sent to Room 101. Many have suggested who should be sent to room 101!

When I published a post on here back in April 2016 on alleged abuse of power within the Crofting Commission I did not think for one minute it would spawn 100 further blog posts all linked to the same issue and in effect stemming from what has been dubbed ‘The Common Clearances‘. Here is a handy index to the first 101 posts. Perhaps I should have called this blog post ‘101 reasons why the Crofting Commission is not fit for purpose’ 😉  More such posts will undoubtedly follow! At least 9 are currently pending.

  1. Abuse of power within the Crofting Commission?
  2. The Common Clearances
  3. Crofting Commission’s appointment of Grazings Constable is illegal
  4. Crofting Federation hold meeting on Common Grazings Calamity
  5. Crofting Commission Statement on ‘Common Clearances’
  6. When the costs of administering a Common Grazings Fund would exceed the income
  7. Whose best practice?
  8. Claims against Mangersta Common Grazings Committee withdrawn
  9. Vote of no confidence in Crofting Commission and calls for their Convener to stand aside pending the outcome of a full external enquiry
  10. No let up on the Common Clearances crisis whilst on holiday!
  11. ‘A Menacing Presence’
  12. Common Grazings and the Spirit of the Law
  13. Crofting Commissioner Resigns over situation the Scottish Government and Crofting Commission need to sort out
  14. Crofting Commission deletes its history
  15. The deleted Crofting Commission post
  16. Crofting Commission must be audited “and we do mean a full audit”
  17. Pressure mounts for a full investigation of the Crofting Commission
  18. It’s been 125 years
  19. Crofting Commission flouts the will of Parliament
  20. The Emperor’s New Clothes
  21. The Commission is for turning
  22. Yes Crofting Minister
  23. Ignore the law and the lawyers
  24. You might think that, I couldn’t possibly comment
  25. Crofting Crossroads
  26. Dismissed before you can resign
  27. Back to the Future of Crofting
  28. Grazings Constables Risk the Clink
  29. Carry on Grazings Constable
  30. Reports from a ‘Grazing Constable’
  31. The Chief Grazings Constable
  32. Crofting Commission knew they were acting illegally in appointing Grazings Constables
  33. Grazings Constables were added to the Sump by the Crofting Commission
  34. Time for Kennedy to go
  35. Grazings Puppets
  36. Keystone Crofting Cops
  37. ‘Allo ‘allo ‘allo… what’s all this then?
  38. Lewis and Harris Crofters’ Meeting
  39. Who pays the Grazings Constables?
  40. How much are Grazings Constables paid?
  41. The cost of the Common Clearances
  42. Crofting Convener must go
  43. A “big step” or a just step?
  44. Cabinet Secretary “wholly disagrees” with Crofting Commission Convener
  45. Fudged response from Crofting Commission
  46. Decisions “have been divisive, unacceptable and not in line with crofting law”
  47. Statement by Crofting Commission gets no better in Gaelic
  48. Crofting Convener seeks to stop SRDP funding for Common Grazings
  49. Who calls the shots at the Crofting Commission?
  50. Lacklustre response by Crofting Commission
  51. Croft Wars: Return of the Committee
  52. Croft Wars: The Constable Strikes Back
  53. Who are we supposed to believe?
  54. Not a Grazings ‘gamechanger’
  55. Crofters and Lawyers
  56. The Wrong Grazings Committee!
  57. What the Grazings ‘Constable’ didn’t do
  58. Crofting VATgate
  59. Catriona moves on from herding the Commissioner(s)
  60. Inspector Constable
  61. The Crofting Bat Phone
  62. Conflict of Interest at Upper Coll
  63. A chair fit for a Crofting Convener
  64. Twitter Hashtags poke fun at Crofting Convener
  65. New Grazings Committee formed at Upper Coll
  66. The Scottish Farmer adds balance to the tales of the Upper Coll ‘Constable’
  67. Crofting is about People
  68. Crofters, Lawyers, VAT and a Grazings ‘Constable’
  69. Constable Propaganda
  70. The T-1000 Grazings ‘Constable’
  71. Decisive Ministerial intervention in crofting crisis is now required
  72. Grazings ‘Constable’ must stand aside or be removed
  73. Brown Envelopes at the Crofting Commission?
  74. Croft Wars: A New Hope
  75. Crofting Convener in Hiding
  76. Crofting Commission must “swiftly resolve” Common Grazings Crisis
  77. Scottish Farmer confused over Common Grazings Crisis
  78. Kennedy walks out of Brora meeting and remaining Commissioners apologise and call for his resignation
  79. Crofting Premonition
  80. Souter to step down “as soon as possible”
  81. Kennedy refuses to adhere to the law
  82. Few tears should be shed
  83. Crofting Farce
  84. Shackles lifted on Murdo Maclennan
  85. First Minister answers questions on “intolerable” Convener
  86. Either he Jumps or he will be Pushed
  87. Kennedy stays in post and seeks legal advice
  88. Sunday Politics Scotland: Chaos on the Croft
  89. Has the Convener lost his memory?
  90. Crofting Federation call on the Commission’s Convener to be ousted
  91. An elective despotism is not the Crofting Commission we fought for
  92. Kennedy says hell will freeze over before he resigns and that the Cabinet Secretary for Crofting should stand down!
  93. Radio Crofting GaGa
  94. Bad penny?
  95. Colin Kennedy and the Holy Grail
  96. Crofting Law whilst in Milan
  97. The end game?
  98. The Cross-Party Elephant?
  99. Why are the Crofting Commissioners not meeting?
  100. A Crofting Cabal?
  101. Secret meeting declares Brora meeting valid

Image Credit: 1984: © Virgin Films

Secret meeting declares Brora meeting valid

Crofting Commission 'secret' Special Meeting

Crofting Commissioners meet to debate legality of their previous meeting

In my last post I considered the background to the ‘secret’ special meeting of the Crofting Commission that was to be held in Inverness this morning. It had been requested by the Convener of the Crofting Commission, Colin Kennedy, purportedly to seek to overturn the decisions taken after he walked out of the Brora meeting.

Mr Kennedy has maintained in statements to the media that the Brora meeting was ultra vires (illegal). It is assumed that he was to argue this at the special meeting called by him this morning even although I pointed out yesterday that it would be a clear conflict of interest for him to participate in any decision making process in this regard.

It was reported by the BBC that at the start of the meeting commissioner David Campbell (West Highlands) made a motion for the meeting to be held in public for the purposes of natural justice, accountability and transparency to the ordinary crofter.

However, none of the other commissioners in the room (who are all crofters) were willing to second this motion. Thus the meeting proceeded in secret and out of honourable principle Mr Campbell departed the meeting at the same time as the press and public were excluded.

David Campbell departs the meeting as it was being held in private rather than public

David Campbell departs the meeting as it was being held in private rather than public

Commissioner Murdo Maclennan (Western Isles) did not attend the meeting. It was reported by the BBC that this was due to a threat of legal action against the Commission/Commissioners by the Convener.

Thus the secret ‘cabal’ consisted of:-

  • Colin Kennedy (Convener) – South West Highlands
  • Ian George Macdonald (Vice-convener) – West Highlands
  • Kathleen Sinclair – Shetland
  • Arnold Pirie – Caithness and Orkney
  • Marina Dennis – East Highlands

However, at the end of the day (after a 6 hour meeting) the Convener didn’t appear to get his way.

Bill Barron confirms that the Brora Meeting was valid

Bill Barron confirms that the Brora Meeting was valid

The official statement issued by Interim Chief Executive Bill Barron to the BBC after the meeting stated:-

At the request of the Convener, the interim CEO called a special meeting of the Crofting Commission on Friday 9 December 2016.

The Commissioners present reaffirmed the importance of working together effectively in the final months of their terms.

The Board also discussed the status of the meeting held in Brora in September and how to move forward.

The Board decided that there was one meeting in Brora which took place in two valid parts, the meeting previously referred to as a special meeting being a continuation of the scheduled Board meeting.

Any consequences from this will be considered at their Board meeting on Wednesday 14 December 2016.

So six hours to decide that the two meetings in Brora (one with the Convener present and one without him after he walked out) were in fact one meeting held in two parts. It is assumed that legal advice had been sought on this (the Commission’s lawyer was evident in the film of the meeting shown on BBC Alba tonight) and that such advice conflicted with the Convener’s own interpretation which may well have been ingenious but flawed.

So there we have it: The Convener’s publicly stated position on the Brora meeting has been wrong from the outset. But will he now accept that?

The official statement says that any consequences from this will be considered at the Board meeting on Wednesday. Surely there are no consequences as such if the meeting was a legally held one. Is it not just a case of approving the minutes and moving on? Or are the consequences linked to the Convener’s stance on the meeting being ultra vires? After all in terms of the Standing Orders [PDF]:-

Once a decision has been reached, all members have a corporate responsibility to recognise and accept the decision as that of the Crofting Commission. Corporate responsibility entails that members must adhere to and accept such a decision until it is otherwise altered.

We will no doubt find out on Wednesday!

Brian Inkster

Image Credits: © BBC Alba

A Crofting Cabal?

Is there a cabal within the Crofting Commission?

Is there a cabal within the Crofting Commission?

It was revealed by the BBC yesterday morning that Colin Kennedy, Convener of the Crofting Commission, has requested a special meeting of the Crofting Commission to take place this coming Friday, 9 December 2016 (i.e. tomorrow).

The meeting is apparently to be held in private and concerns consideration of the decisions taken by the Commission at Brora after the Convener walked out of the scheduled Board meeting and a special meeting had to be called to enable Commission business to be transacted.

It is not clear but has been suggested that Colin Kennedy may be seeking to cancel or reverse the decisions taken by the Crofting Commission at Brora. He has previously stated his personal view that this meeting was ultra vires (illegal) .

I was asked by BBC Alba to comment on this development and did so in an interview that was broadcast on An Lá yesterday evening. This blog post will cover and expand upon the points I made to BBC Alba.

Ability to call a Special Meeting

In terms of the Standing Orders that govern the conduct of Crofting Commission meetings [PDF] the Convener has the right to call a special meeting.

Public Notice

Again in terms of the Standing Orders public notice of a meeting of the Commission will normally be given by posting a Notice on the Crofting Commission website at least 4 days before the meeting.

However, public notice is not required where a special meeting is convened to deal with a matter of a particular sensitive nature.

When the BBC revealed yesterday that this meeting was to be held on Friday no public notice had been given and there was less than 4 days to go before the meeting was to take place.

Did this mean that a matter of a particular sensitive nature was to be dealt with on Friday?

If so it must have been decided by the Board that the matter was of a particular sensitive nature as the Convener alone cannot decide that in terms of the Standing Orders.

However, at some point yesterday (after the BBC revealed what the Convener was up to) a public notice appeared on the Commission’s website intimating that a special meeting was taking place at 10am on Friday 9 December 2016 at the Glenmoriston Hotel, Inverness.

Presumably that meant that the matter to be discussed on Friday was not actually of a particular sensitive nature or that Board approval to it so being had either not been sought or had not been given. Having said that item number 3 of the Agenda [PDF] is the “exclusion of press and public”. So the meeting may still be held in private if the commissioners decide that is appropriate on Friday. Interestingly that Agenda does not tell us what the business to be discussed is other than simply stating “Business that requires special urgency“.

Should the meeting be held in private?

In terms of the Standing Orders:-

Members of the press and public are entitled to attend meetings of the Commission. However, the Commission may determine that matters of a confidential or sensitive nature should be considered without the press or the public in attendance.

If the special meeting is indeed being convened to discuss the legality of the Brora meeting then as that meeting was held in public surely this one should be too?

It is already a matter that is in the public domain and one that Colin Kennedy has been outspoken about publicly in the media. It is surely therefore in the public interest that any debate covering it should be held in public and not in secret.

There appears, on the face of it, to be nothing confidential being discussed and the only sensitivities involved are those that may affect the Convener himself. Therefore there appears no good reason for the Commission to exclude the press or the public from tomorrow’s meeting.

Declaration of Interest

The Standing Orders state:-

A member of the Commission, or any officer working on behalf of the Commission, who has a direct or indirect interest in a matter being considered at a meeting of the Commission or a committee of the Commission, must disclose the nature of the interest to the meeting.

Any attempt to reverse the decision of the Brora special meeting is a matter that the Convener clearly has a direct interest in. Thus he would have to declare that interest and not take part in the meeting. Indeed, on that basis, it is questionable whether a special meeting could be called by the Convener where he is conflicted in the subject matter at hand.

Any failure by the Convener to declare an interest tomorrow will surely be questionable in the extreme.

Can the decisions made at the Brora meeting be reversed?

During the Common Grazings crisis the line peddled continually by the Commission, and supported by the Convener, was that decisions taken by the Commission cannot be altered once made and the only recourse that anyone has to do so is through the courts. Thus if this is the case should he not, if he considers he has a legitimate right to do so, personally be pursuing matters through the courts rather than via secretly convened meetings?

It has not, however, stopped the Commission from rewriting its history before now.

I trust that the interim Chief Executive of the Crofting Commission, Bill Barron, will have chapter and verse on this area from the Commission’s legal advisers to present to commissioners before the meeting commences tomorrow.

Does the Convener have support from fellow commissioners?

It has been mooted for some time that there was a divided board with some members under the spell of the Convener and others less enchanted by him. The weight possibly swung in the Convener’s favour following the resignations of Susan Walker and William Swann. However, in his absence at the special meeting in Brora there was a unified front from all the commissioners that his behaviour warranted a call for him to resign.

Perhaps the former cabal (as some have called it) has been reformed and is prepared to do the Convener’s bidding on Friday regardless of the legalities, morals and ethics that may be involved.

The identity of the members of that cabal may also become clearer depending on how things pan out tomorrow.

The public purse

It has also been questioned whether it is in the public interest for a special meeting to be called just three working days before a scheduled board meeting. Surely any matter arising could be dealt with as an additional agenda item next Wednesday? Think of the cost of commissioners travelling to Inverness from as far afield as Shetland, Orkney, Lewis, Skye and Coll twice in one week for two meetings that could have easily been dealt with as one. Presumably officials based in Edinburgh will be doing the same.

Special meetings but not Board meetings

It should also be noted that when several commissioners could not apparently attend the last scheduled Board meeting it was postponed and a new date was “being arranged” and was to “be notified as soon as possible“. No such new date was ever arranged. But it seems that whilst the Commission could not arrange a new date for a major Board meeting they have no problem doing so for a questionable special meeting. Odd that.

Minutes of the Brora meeting

As a result of the last Board meeting not taking place the minutes of the Brora meeting have yet to be approved. That is scheduled to happen at the next Board meeting next Wednesday. Can a special meeting take place tomorrow to consider a meeting the minutes of which have yet to be approved? Surely any such meeting, if even competent, should happen only after and not before approval of the minutes?

Irony

It is also somewhat ironic that the legality of a special meeting is being called into question by a special meeting being convened that, unlike the Brora one, is highly questionable in itself.

The hole gets bigger

The governance of the Crofting Commission is currently under review by the Scottish Government. Antics such as these can only add fuel to the fire.

Brian Inkster

Image credit:There is no cabal on Wikipedia‘ by Rama, Wikimedia Commons, Cc-by-sa-2.0-fr

Why are the Crofting Commissioners not meeting?

Why are the Crofting Commissioners not meeting

No commissioners to be seen at Great Glen House this past week

Following the controversial Crofting Commission board meeting in Brora their next one was set down to take place at Great Glen House in Inverness on 9 November 2016. However a few days before the date of that meeting a notice appeared on the Crofting Commission’s website stating that:-

The Board meeting due to take place on 9 November has been postponed, as several Commissioners are not available on that date. A new date is being arranged and will be notified as soon as possible.

This is quite extraordinary. These meetings are scheduled months, perhaps a whole year, in advance. Commissioners know when they are happening and should be available for them. There will always be occasions when a commissioner can’t make the meeting for good reason but the meetings continue regardless with those who can attend.

Meetings of the Crofting Commission  must consist of at least five members. Where there are three or more elected members, the quorum must include no fewer than three such members.

There are currently seven commissioners in post out of the nine possible, with two positions waiting to be filled following the resignations of Susan Walker and William Swann.

So were at least three of the commissioners not able to attend the meeting on 9 November and if so why not?

Commissioners may attend meetings by videoconference or by teleconference if not able to attend in person. Is it really the case that at least three commissioners could not attend in person and could not attend by videoconference or by teleconference?

There does not appear to be anything in the Standing Orders relating to the Conduct of Meetings for the Crofting Commission allowing the postponement or rescheduling of a meeting in advance of it taking place once a date has been fixed.

There are provisions on the day of the meeting if a quorum is not present for the Convener to allow ten minutes before adjourning the meeting and fixing a time, then or afterwards, for it to take place.

As often seems to be the case these days the Crofting Commission appear to be ignoring the rules and making it up as they go along.

It has been suggested by some that the divisions within the board, and the position that has prevailed since the Brora meeting, mean they simply cannot meet and cannot make decisions at board level. At least not whilst the current Convener remains in post.

Bill Barron, on being appointed interim Chief Executive, said:-

I am looking forward to working with everyone at the Crofting Commission and our partners, to ensure that the Commission remains focused on giving a good service to crofters, promoting and protecting the interests of crofting, and providing effective regulation.

Not a good start to his watch for him to allow the first board meeting to be cancelled. There is clearly actually a severe lack of focus on giving a good service to crofters, promoting and protecting the interests of crofting, and providing effective regulation.

Meantime the Scottish Government has formally announced its review into the governance of the Crofting Commission. The latest goings on at Great Glen House, this past week alone, demonstrate how necessary such a review actually is.

Brian Inkster

The Cross-Party Elephant?

The elephant in the crofting cross-party room

Was there an elephant in the room at the crofting cross-party group meeting?

The cross-party group on crofting met last Wednesday at Holyrood.

It was very ably chaired by Tavish Scott MSP. He is one of the three co-conveners of the group, having been elected along with Kate Forbes MSP at the last meeting to replace Michael Russell MSP after Mr Russell became Brexit Minister. Rhoda Grant MSP is the third co-convener of the group.

Fergus Ewing MSP, cabinet secretary with responsibility for crofting, was a special guest at the meeting.

Mr Ewing made it clear at the outset that he couldn’t comment in any respect on the current controversy regarding the convener of the Crofting Commission given the allegations made by him against Mr Ewing which are the subject of an independent investigation.

Mr Ewing outlined all that the Scottish Government is currently doing to assist crofting and its future.

In particular he discussed future crofting law reform. The Scottish Government wants to modernise crofting law and make it transparent, understandable and workable in practice. Mr Ewing made it clear that they very much wanted to listen with no precise timetable in mind.

Mr Ewing stressed the importance of taking time to get it right. I couldn’t endorse that view more and trust that we won’t see the chaos of a huge number of last minute amendments that was encountered in creating the Crofting Reform (Scotland) Bill in 2010. That was possibly partly responsible for many of the issues (not common grazings ones that were not affected by the 2010 legislation) that has led to the current Scottish Government having to tackle crofting law reform so soon again.

After Mr Ewing left the meeting we continued with the topic of crofting law reform. Derek Flyn outlined the background to the crofting law sump report which he described as a “collection of what is wrong with crofting law”.

Michael O’Neil, the newly appointed Head of the Scottish Government Legislation Team, then outlined proposals to take crofting law reform forward.

Mr O’Neil indicated his intention to involve as wide a range of stakeholders as possible. He will get out and about and meet anyone he needs to speak with.

He will refer to the information contained in the crofting law sump and in the Shucksmith Report.

Some questions Mr O’Neil had in mind included:-

  • Why do we need crofting legislation?
  • What changes need to be made to it?
  • How do we go about delivering the changes identified?
  • Are there other options to new legislation?

A small team has been assembled by the Scottish Government to take crofting law reform forward.

It will be interesting to see this process move forward and we will keep you posted on the Crofting Law Blog as it does.

Bill Barron, the new Chief Executive of the Crofting Commission, was attending his first cross party group meeting. On the agenda was an “update on grazing committee removals and other current Crofting Commission business”. He appeared to dodge being able to provide that update on the basis that it was his fifth day in the job.

However, sitting next to him was the Convener of the Crofting Commission, Colin Kennedy. Mr Kennedy did not offer an update on grazing committee removals and other current Crofting Commission business. Indeed, other than to introduce himself as all attendees did at the outset, Mr Kennedy sat silent throughout the entire meeting. He didn’t speak and no one asked him to speak.

This was, of course, the first crofting cross-party group meeting that Mr Kennedy has attended in this session of Parliament, having avoided the last two. He has thus not expressed the views of the Crofting Commission to the cross-party group since this session of Parliament commenced.

Mr Kennedy has, however, been very vocal in expressing his own personal views (which don’t necessarily coincide with those of the board of the Crofting Commission) in the media over the past few weeks including, in particular, in four successive editions of the Scottish Farmer.

His presence at last week’s cross party group meeting was referred to by some as the elephant in the room. But can the situation simply be ignored?

Brian Inkster