Author Archives: Brian Inkster

Consultation on the Future of Crofting Legislation

On 28 August 2017 the Scottish Government launched its consultation document [PDF] on the future of Crofting Legislation seeking views on both the form of the legislation and the priorities for change within it.

Launching the document, Fergus Ewing, the Cabinet Secretary for Rural Economy and Connectivity said:

Crofting delivers valuable local benefits and a successful crofting sector helps our rural communities to thrive. It is therefore vital the law that governs it is fit for purpose.

Initial discussions have shown while there is plenty of agreement that the current law needs to change, there are many views on what should replace it.

I would strongly encourage anyone with an interest in the future of crofting –  whether crofters, landowners, those living in a crofting communities or in other parts of Scotland – to take part in this consultation and help us improve future legislation.

The Scottish Crofting Federation (SCF) welcomed the Scottish Government’s commitment to continue the process of reforming crofting legislation within this parliamentary session.

Russell Smith, Chair of the SCF, said:-

This is another stage in the long process of crofting law reform and we are pleased that the Scottish Government is taking this forward. Following the 1993 consolidation act there have been several amendments to crofting legislation but this is still unfinished business. The addition of subsequent layers of legislation, and the fact that amendments have introduced further inconsistencies and errors, has rendered current crofting law difficult to access and, in some aspects, unusable.

This consultation is seeking views on the most suitable way to proceed with any crofting law reform and how it might be improved. It opens up opportunities to take a fresh look at crofting legislation and its purpose. At this point we may ask what crofting legislation should achieve and how best it can do this.

It is widely agreed that the law does need to be reformed further and there are suggested a range of options for taking this forward but neither of the two extremes of merely consolidating with little change or starting all over again with a ‘clean sheet’ are going to achieve a desirable result. So, we are being asked to choose between the workable options of amending and then consolidating the law or ‘restating’ it. The consultation document helpfully explains the difference.

Whilst exploring ways to make the legislation fit for purpose we must not lose sight of the fact that crofting legislation was formed to protect crofters’ rights, not to serve lawyers, this principle is inviolable. The crofting act is the heart of crofting and has evolved over 130 years, adapting to work for crofting in a changing world. This is another time of change, but the basic principles of protection must not be lost.

The SCF will be looking at these options in considerable detail and will be both seeking our members’ views and providing information for them. We encourage all crofters, and others with an interest, to attend the events the Scottish Government will be hosting and to respond to the consultation before it closes.

Scottish Government Officials will be holding a number of public meetings where they will deliver a presentation on the purpose of the consultation, an explanation of the options for changing legislation and an overview on how to respond to the consultation. There will be the opportunity to discuss the options available and to raise questions relating to the consultation.

The first such meeting takes place in Lerwick on 13 September with further meetings already scheduled for Oban (19 September), Kirkwall (26 September), Portree (3 October), Fort William (4 October), Glenuig (5 October), Kinlochbervie (10 October), Lairg (11 October) and Gairloch (12 October). More dates and locations will be announced in due course. A full list of the events, which will be updated regularly, may be found on Eventbrite where you may also register your attendance.

The consultation can be completed on Citizen Space or in printed form by contacting your local RPID Area Office. Copies of the Consultation Document will also be available at the public meetings or by contacting The Scottish Government, The Crofting Bill Team D Spur, Saughton House, Broomhouse Drive, Edinburgh EH11 3XG.

The consultation will last 12 weeks and will close at 00:00 on 20 November 2017. Any questions may also be directed to croftingconsultation@gov.scot

 

The Crofting Commission Barometer

Crofting Commission BarometerIt has been suggested that this blog is a good barometer for how well or badly the Crofting Commission are doing. This, we have been told, can be measured by the number of blog posts appearing about the Commission. The more posts there are the worse they are doing: the less posts there are the better they are doing.

Blog posts certainly petered off after the last Crofting Commission elections and the appointment of a new Convener. The Crofting Commission have done nothing since then of controversy that we are aware of. The days of the common clearances, convenergate, SRDPgate, VATgate and Broragate appear, thankfully, to be behind us. So there is, as a result, less to blog about. The new Crofting Commissioners certainly appear to be doing much better than there predecessors.

So, yes, this blog as a Crofting Commission Barometer is not a bad analogy.

There have, however, been events in the world of crofting law that we do need to catch up on.

There are also some issues arising from the tenure of the last set of Crofting Commissioners that we didn’t manage to blog about at the time and, for completeness, will try to fill in when we get the chance.

Keep an eye on the Crofting Law Blog for these updates.

Crofting Law Group Conference 2017

Crofting Law Group Conference 2017

The Crofting Law Group are holding their annual conference this year at Lews Castle, Stornoway, Isle of Lewis on 9th June 2017.

Chaired by Sir Crispin Agnew of Lochnaw, Bt. QC, the conference will look at the Scottish Government’s proposals for Crofting Law Reform, where things are at and what happens next. Michael O’Neill from the Crofting Bill Team of the Scottish Government will guide delegates through that. There will be views from Patrick Krause Chief Executive of the Scottish Crofting Federation.

Bill Barron, Chief Executive of the Crofting Commission will provide a Crofting Commission Update.

The Conference will look at the question of Common Grazings, what went wrong last year (a recurring theme on this blog!) and what does the future hold with reference to the Crofting Commission’s proposed new Common Grazing Regulations Template.  There will be contributions and discussion on this topic from the Crofting Commission’s Solicitor, David Findlay, Solicitor Brian Inkster, Crofters and Landlords.  Relevant excerpts of the film ‘Grazing on the Edge’ will be shown and introduced by Janette Sutherland of the Scottish Agricultural College.

Duncan MacPhee, Solicitor, will look at Mortgages for Croft Houses.

There will also be the usual case law update provided this year by Robert Sutherland, Advocate.

Representatives from Registers of Scotland will be on hand to answer any queries concerning the Crofting Register.

For full details and to book your place see Crofting Law Conference 2017 on the Crofting Law Group website.

Crofting Commission Elections 2017 – The Results

Crofting Elections 2017 - Count at Stornoway Town Hall

Colin Kennedy keeps a close eye on the count at Stornoway Town Hall

The results are in from the count in Stornoway Town Hall for the Crofting Commission Elections. They are:-

East Highlands (East Sutherland, Easter Ross, East Inverness and Moray) 

Stage 1 votes:-

  • Rod Mackenzie – 150 votes
  • Archie MacNab – 91 votes
  • John Ferme McMorran  – 71 votes

Stage 2 votes (following exclusion of John Ferme McMorran):-

  • Rod Mackenzie – 181 votes – Duly elected
  • Archie MacNab – 121 votes

South West Highlands (Lochaber, Argyll & Bute, Arran and Cumbrae, Small Isles)

Stage 1 votes:-

  • Colin Niall Kennedy – 165 votes
  • Billy Neilson – 124 votes
  • Catherine Mackinnon – 67 votes
  • Uilleam Smith – 55 votes
  • Ronnie Campbell – 32 votes

Stage 2 votes (following exclusion of Ronnie Campbell):-

  • Colin Niall Kennedy – 172 votes
  • Billy Neilson – 128 votes
  • Catherine Mackinnon – 81 votes
  • Uilleam Smith – 57 votes

Stage 3 votes (following exclusion of Uilleam Smith):-

  • Colin Niall Kennedy – 181 votes
  • Billy Neilson – 152 votes
  • Catherine Mackinnon – 98 votes

Stage 4 votes (following exclusion of Catherine Mackinnon):-

  • Billy Neilson – 201 votes – Duly Elected
  • Colin Niall Kennedy – 199 votes

West Highlands (West Sutherland, Wester Ross, Skye & Lochalsh)

  • Mairi Mackenzie – 694 votes – Duly Elected
  • Stephen William Love – 204 votes
  • Peter O’Donnghaile – 164 votes
  • Jonathan James Hedges – 95 votes

Western Isles

  • Iain Maciver -1069 votes – Duly elected
  • Alasdair MacEachen – 1059 votes

Only one nomination was received for Caithness & Orkney and also Shetland. Thus each candidate for those two constituencies was automatically elected and no election took place.

Caithness and Orkney

  • Cyril  Annal – Automatically elected

Shetland

  • Andy Holt – Automatically elected

Two of the seats were very close indeed.

In the Western Isles Iain Maciver got in with 10 votes over Alasdair MacEachen.

Most eyes were on the South West Highlands seat where controversial Crofting Commission Convener, Colin Kennedy, was re-standing for election. It was taken through 4 stages of voting with each transferable vote counting until Billy Neilson was victorious over Colin Kennedy by just 2 votes. Thus Kennedy, who many have been calling for long to go, is now gone. However, it shows that despite his controversial stance on a number of matters, that were decried by many far and wide, he still had fairly strong support amongst crofters in his own constituency.

Adding in the three appointed commissioners the nine new Crofting Commissioners are:-

  • Cyril  Annal – Elected – Caithness and Orkney
  • David Campbell – Appointed – Landlord Representative
  • Andy Holt – Elected – Shetland
  • Iain Maciver – Elected – Western Isles
  • Mairi Mackenzie – Elected – West Highlands
  • Rod Mackenzie – Elected – East Highlands
  • Malcolm Mathieson – Appointed
  • Billy Neilson – Elected – South West Highlands
  • James Scott – Appointed

Malcolm Mathieson and James Scott were only recently appointed and thus David Campbell is the only commissioner to have already served for some time (since June 2014) on the board of the Crofting Commission. David Campbell was clearly, at times, in conflict with the former Convener, Colin Kennedy.

Commenting on the results, Rural Secretary Fergus Ewing said:-

Crofting is an integral part of Scottish rural life and it is essential that it has dedicated people to represent and reflect the interests and diversity of our crofting communities.

The elected crofting commissioners will give crofters a stronger say in how they are regulated, bringing valuable local knowledge and experience to the role and I would like to take this opportunity to congratulate the six newly elected Commissioners on their election and wish them every success.

This group, together with the appointed commissioners, will play an essential role in the effective governance and operation of the Crofting Commission, ensuring that it has the policies in place to deliver fair, reasonable and transparent decisions on matters affecting crofters and rural communities.

Crofting Commission Chief Executive Bill Barron said:-

I would like to congratulate those who have been elected and I look forward to meeting and welcoming them to the Commission.  With the three Commissioners appointed/re-appointed by the Scottish Government earlier this year, we now have a full complement of nine.   I and all the staff of the Commission are determined to give the new Board the best possible support as they take on the responsibilities of leading the Crofting Commission. We believe there is a positive future for crofting and I will do all I can to help the new Board of Commissioners carry out their functions effectively.

With such a big batch of new commissioners ushered in at one time many hope that this will see a change in approach by the Crofting Commission as the organisation has been dogged by almost constant controversy over the past 5 years. Only time will tell. We will be watching and reporting.

Brian Inkster

Image Credit: © BBC Alba

 

Ding Dong! The Convener is Gone

Crofters
Ding Dong! The Convener is gone. Which old Convener? The Cunning Convener!
Ding Dong! The Cunning Convener is gone.
Wake up – sleepy head, rub your eyes, get out of bed.
Wake up, the Cunning Convener is gone. He’s gone where the goblins go,
The Isle of Coll. Yo-ho, let’s open up and sing and ring the bells out.
Ding Dong’ the merry-oh, sing it high, sing it low.
Let them know
The Cunning Convener is gone!
Returning Officer
As Returning Officer, In the County of the Land of the Western Isles, I welcome you most regally.
Lawyer
But we’ve got to verify it legally, to see
Returning Officer
To see?
Lawyer
If he
Returning Officer
If he?
Lawyer
Is morally, ethic’lly
Crofter No.1
Spiritually, physically
Crofter No. 2
Positively, absolutely
Crofters
Undeniably and reliably Gone
Minister for Crofting
As Minister I must aver, I thoroughly examined him.
And he’s not only merely gone, he’s really most sincerely gone.
Returning Officer
Then this is a day of Independence for all the Crofters and their descendants
Lawyer
If any
Returning Officer
Yes, let the joyous news be spread The Cunning old Convener at last is gone!
Crofters
Ding Dong! The Convener is gone. Which old Convener? The Cunning Convener!
Ding Dong! The Cunning Convener is gone.
Wake up – sleepy head, rub your eyes, get out of bed.
Wake up, the Cunning Convener is gone. He’s gone where the goblins go,
The Isle of Coll. Yo-ho, let’s open up and sing and ring the bells out.
Ding Dong’ the merry-oh, sing it high, sing it low.
Let them know
The Cunning Convener is gone!

—-

Image credit: The Wizard of Oz – Metro-Goldwyn-Mayer

Lyrics: Adapted from “Ding-Dong! The Witch Is Dead” by E.Y. Harburg.

Review highlights “notable and worrying failures” in governance within the Crofting Commission

Rural Economy Secretary, Fergus Ewing, has asked the Crofting Commission to take urgent action to improve performance in crucial areas following the publication of the Governance Review [PDF] undertaken on the instruction of the Scottish Government by business advisors and accountancy firm Scott-Moncrieff.

The Scottish Government ordered the Governance Review of the Crofting Commission following the crisis of confidence in the organisation due to the inappropriate actions taken on common grazings committees and the subsequent breakdown of relationships within the Commission.

A full action plan including prioritising work to deliver the necessary improvements in the way regulatory cases and Board proceedings are managed will be delivered in response to the findings of the Governance Review.

The Crofting Commission Governance Review highlighted a range of areas that need urgent action including:-

  • Governance standards, procedures and other arrangements, at both executive and non-executive levels, to underpin effective decision-making, particularly in relation to the Bohuntin, Upper Coll and Mangersta Common Grazings cases [Note: The review did not look at the regulatory decisions themselves]
  • Arrangements for handling conflicts of interest
  • Ensuring that capacity building and development needs of Board members are met and that the necessary training is provided.

Rural Economy Secretary, Fergus Ewing, said:-

This review highlights notable and worrying failures in the governance of the crofting commission which must be improved immediately. That is why I have asked the new Chief Executive to urgently prepare an action plan to take this forward.

Crofting is an integral part of Scottish rural life and it is essential that it has an effective regulator. This review, and the action plan which will follow, must help to deliver the necessary changes and ensure the commission is able to lead the crofting industry forward.

Crofting Commission Chief Executive, Bill Barron, said:-

A number of important points have been made in the governance review and we are committed to ensuring robust processes are in place to achieve a high standard of governance within the organisation.  I will be putting in place a full action plan to ensure these points are addressed, as requested by the Rural Economy Secretary.

We have already made some of the improvements recommended in the review and we are developing a comprehensive induction programme for the new Board of Commissioners following the elections in March 2017.

Continuous improvement within the Commission, and building on the recommendations from the review, will help us to create a focussed and effective organisation working to secure the future of crofting.

The Scottish Crofting Federation has welcomed the pledge by the Scottish Government to put in place an action plan to address the failures highlighted by the Governance Review. Their Chair, Russell Smith, said:-

The Governance Review of the Crofting Commission, instigated by Scottish Government at our request, has exposed many weaknesses in basic operating procedures and in how the organisation copes with extraordinary individual behaviours. The review has made it clear that a robust Commissioner appraisal process is required, to help identify and deliver ongoing training and skills development. We are particularly keen to see a rationalisation of the roles of Commissioners, establishing when they should be delegating to the executive staff or referring to other bodies that have the required expertise. Commissioners should have a strategic and advisory capacity only. It is clear that they got too involved with executive procedures that they did not have the competence or remit for.

The review team recognises the huge damage done to the reputation of the Commission by the in-fighting and particularly that the vote of no confidence in the convener did not achieve a tangible result, that is, his removal. Frustratingly, the review does not suggest how this will be resolved, though the government’s recent exoneration will open up options.

It is alarming that the review team found there to be fundamental inconsistencies and gaps in records of events that led to the breakdown of the organisation. This appears to have handicapped the review to an extent, and is telling in itself.

The list of areas for improvement is long and the minister for crofting, Mr Fergus Ewing, has instructed that an action plan to address them be put in place as a matter of urgency. This will, we hope, sort out some of the fundamental issues that allowed the near collapse of this significant organisation. We are strongly of the opinion that the purpose and role of Commissioners needs to be appraised and a clear boundary to be set between their overseeing strategy and the staff’s executive function. This seems critical to the health of the Crofting Commission.

No comment appears to have been made by the Convener of the Crofting Commission, Colin Kennedy, on the “notable and worrying failures” found whilst he was at the helm.

Mr Kennedy has, however, as part of his campaign for re-election to the South West Highlands seat on the Crofting Commission, stated to The Oban Times that his “experience prompted” him “to make representations to the Scottish Government, which included insisting an external review was required to establish what was, or was not, going on“. One would, therefore, think that the review was instigated at the insistence of Mr Kennedy!

It was, of course, as a result of the alleged abuse of power within the Crofting Commission whilst Mr Kennedy was in charge that I and the Scottish Crofting Federation, amongst others, called on Fergus Ewing to instigate a review into goings on at Great Glen House.

As far back as April 2016, I stated:-

In 1883 a Royal Commission (The Napier Commission) was set up by Gladstone’s Liberal Government. Its purpose was ‘to inquire into the conditions of the crofters and cottars in the Highlands and Islands of Scotland’ and everything concerning them. This came on the back of The Highland Clearances and ‘The Battle of the Braes’ where the Braes crofters stood up against the 50 policemen brought in from Glasgow following the loss of their hill pasture on Ben Lee and a rent strike in protest. The Report by the Napier Commission resulted in the first Crofters Act in 1886 providing security of tenure for crofters.

130 years after security of tenure was given to crofters a new form of clearance is happening in the Highlands and Islands: The clearance of common grazings committees by the Crofting Commission. They are wielding power in an unjustified and brutal manner reminiscent of landlords from the nineteenth century. We are about to see I believe ‘The Battle of Great Glen House’ (this time perhaps fought with paper and ink rather than stones) and the Scottish Government must now institute an inquiry into the actings of the Crofting Commission and everything concerning them.

In May 2016 the then Chair of the Scottish Crofting Federation, Fiona Mandeville, referring to a meeting held in Ullapool to discuss the common grazings crisis said:-

The meeting was unequivocal in its opinion of the Crofting Commission’s conduct. As well as a vote of no confidence in the Commission, the meeting thought that it would be appropriate for the convener of the Commission to stand aside whilst an investigation is carried out into the summary dismissals of grazings committees and the internal procedures of the Commission that has led to this debacle. The Scottish Crofting Federation fully supports this.

Then in June 2016 the Scottish Crofting Federation reiterated its call on Scottish Ministers to intervene in the crofting common grazings debacle and to instigate an external examination of the Crofting Commission, following revelations of a cover-up. Fiona Mandeville then said:-

We reiterate our petition that the Scottish Ministers intervene and ensure that an impartial examination of the Commission’s recent conduct is carried out by a competent external body.

This is extremely disappointing. It seems that the only way to deal with this is through an external audit of the Commission’s behaviour over the common grazings. And we do mean a full audit.

Also in June 2016 Brian Wilson writing in The Scotsman said:-

The immediate question is whether the Scottish Government is prepared to back their quango’s interpretation of the law and its heavy-handed approach to enforcement.

In the short term, a rapid inquiry into why the Crofting Commission has got itself into this mess and how it can be helped out of it may seem a relatively attractive option.

In September 2016 the West Highland Free Press called for decisive Ministerial intervention in the crofting crisis. Their editor stated:-

As crofting minister Mr Ewing has a duty to be open and transparent in the exercise of his responsibility.  He is not just another interested observer.

He also has a duty to the crofting community to ensure that its governing body adheres to best practice and does not trample crofters into the ground.

The West Highland Free Press have also, of course, repeatedly called on Fergus Ewing to remove Colin Kennedy as Convener of the Crofting Commission. They were of the view that “more than anybody else, Mr Kennedy spearheaded the assault on the grazings committees“.

So, no, it was not Colin Kennedy who asked for the Governance Review. But it was his actions that were certainly behind the call by the many who did want to see such a review and are not surprised at all by its findings. I will consider those findings in some detail in future posts on this blog.

Brian Inkster

Image Credit: Commission on the Rocks – Cartoon © A concerned crofter

Ewing Exonerated

Fergus Ewing v Colin Kennedy

One Nil to Fergus Ewing. Ding ding, next round!

BBC Naidheachdan have reported that Fergus Ewing, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting, has been cleared of any wrongdoing in the complaint brought against him by the Convener of the Crofting Commission, Colin Kennedy.

This is how they reported it:-

The Secretary for Rural Economy was not breaking any rules in the way he dealt with the Crofting Commission.

This was the outcome of a review by the Secretary of Justice, after the Convener of the Commission, Colin Kennedy, raised several complaints against Fergus Ewing.

Mr Kennedy raised his complaints after a controversial Commission meeting in Brora, Sutherland in September. He questioned decisions made by Mr Ewing in connection with the Commission.

Mr Kennedy was angry that the Commission had to excuse crofters in relation to how they handled the grazing committees disputes.

Since then there has been controversy surrounding Mr Kennedy and there has been pressure on Mr Ewing to ask Kennedy to stand down.

It has not been possible for Ewing to deal with the Commission whilst this review has been underway.

Now the government has confirmed that the review conducted by the Department of Justice is over, and that Ewing did nothing wrong.

The question now is what will Ewing do with all his freedom to make decisions regarding the Commission.

View from the Crofting Law Blog

As highlighted previously on this blog section 1(3) of the Crofters (Scotland) Act 1993 states:-

The Commission shall discharge their functions in accordance with such directions of a general or specific character as may from time to time be given to them in writing by the Scottish Ministers.

Directions were given to Mr Kennedy by a Scottish Minister. It would appear that Mr Kennedy refused to accept those directions and instead lodged a complaint against the Scottish Minister in question.

The Scottish Minister has been completely exonerated in what would appear to have been a vexatious complaint. Will Mr Kennedy therefore now accept those directions which will involve him personally issuing a public apology to the three grazings committees removed from office by the Crofting Commission in Mangersta, Upper Coll and Bohuntin? Or is it a case that ‘hell will freeze over‘ before he does that?

Will Mr Kennedy now accept the Scottish Government’s position on disbursement of common grazings funds and receipt of SRDP funding which has been accepted by his fellow commissioners but which he has been very vocal in disagreeing with?

Mr Kennedy is, in any event, not well known for representing the views of the board of the Crofting Commission to the general public despite it being one of his “particular responsibilities“, as convener, to do so. He is also, as highlighted in my last post, completely at odds with the board and appears to be refusing to follow the doctrine of collective responsibility.

Fergus Ewing did say some time ago that it is not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law. Is it sustainable for the Scottish Government and the Convener of one of its public bodies to take opposing interpretations of the law and to be in continuing conflict over those interpretations?

The governance review of the Crofting Commission was published last week and referred to “notable failures in governance within the Crofting Commission“. The review made reference to “strong personalities, differences of opinion and apparent incongruent individual objectives and priorities” having “impaired effective and efficient governance“. I will look at this governance review in some detail in forthcoming posts on this blog.

Brian Inkster

Gaelic credit: Thanks to Vicki Folan of Inksters for translating the BBC Naidheachdan report from Gaelic to English

SEE YOU IN COURT?

Donald Morrison introduces the headline news item on BBC Alba An Là

The BBC reported on Wednesday that it had been revealed at a board meeting of the Crofting Commission that day in Inverness that the Convener of the Commission, Colin Kennedy, was threatening the organisation with legal action.

This is how Andrew Thomson of BBC Radio Highlands & Islands reported matters on the 5.30pm bulletin:-

It has emerged that the Convener of the Crofting Commission, Colin Kennedy, is threatening to take legal action against the organisation over the way he has been treated over the last few months.

His lawyers claim he has been defamed by the Commission.

The Crofting Commissioners get ready for the meeting and that before the heat was turned up

The Crofting Commissioners get ready for the meeting and that before the heat was turned up

The details of the case came to light at a heated meeting of the Commission in Inverness this morning.

The legal threats also specifically mention the actions of two commissioners, Murdo Maclennan and David Campbell, at a meeting in Brora in September last year.

The Chief Executive of the Crofting Commission, Bill Barron, says these two men have the full backing of the organisation.

Bill Barron will "back and totally defend" commissioners threatened by Colin Kennedy

Bill Barron will “back them totally and defend” commissioners threatened by Colin Kennedy

Bill Barron:-

Mr Kennedy has made it clear that there are things that the two of them have done that he particularly takes exception to and so they are named in this vague threat.

But having said that I don’t believe there is any reason why they need to worry unduly. They can continue to work with the board as they are doing and if there were difficult legal actions taken against them we would obviously back them totally and defend them.

As I say there is no sign of that actually getting up and running so at the moment although I appreciate their nervousness they are absolutely right to continue to work within the board.

It was also headline news on BBC Alba An Là at 8pm with Donald Morrison at the news desk and Donald Lamont reporting from Inverness:-

Donald Lamont reports from Great Glen House

Donald Lamont reports from Great Glen House

The Convener of the Crofting Commission is threatening the Commission and some of the commissioners with legal action.  Colin Kennedy maintains that the meeting in Brora last year was held against the law and Mr Kennedy’s solicitor is of the opinion that the commission has damaged his reputation.

At the last meeting, Mr Kennedy said that he was not threatening anyone with legal proceedings. However on Wednesday it came to light that a letter had actually been delivered to the Commission from his solicitor the day before that meeting took place.

Colin Kennedy enters for the meeting on Wednesday

Colin Kennedy arrives for the meeting on Wednesday

The letter wanted the Commission to change the decisions made at the previous meeting in Brora and to admit that what the Commission did was illegal, and especially that the actions of two individual commissioners were against the law.

The head of the Commission Bill Barron understands the concerns of the commissioners especially any concerns surrounding the letter.

Bill Barron:-

Mr Kennedy has made it clear that there are things that the two of them have done that he particularly takes exception to and so they are named in this vague threat.

But having said that I don’t believe there is any reason why they need to worry unduly. They can continue to work with the board as they are doing and if there were difficult legal actions taken against them we would obviously back them totally and defend them.

The newest Crofting Commissioners, Malcolm Mathieson and James Scott, share a joke before their first Board meeting

The newest Crofting Commissioners, Malcolm Mathieson and James Scott, share a joke before the tension began

There were two new commissioners present at today’s meeting. Donald Lamont asked Bill Barron was it unfortunate that their first meeting was full of tension?

Bill Barron:-

It’s part of where we are. There are those tensions within the board and until they are fully resolved that’s part of our context. I think it was not too bad for the new commissioners to join into that, Obviously I hope we will move on and resolve those things and move to more normal ways of operating.

There isn’t but three weeks until voting papers are distributed to pick a new board for the Commission.

View from the Crofting Law Blog

Since Colin Kennedy walked out of the board meeting in Brora in September there hasn’t been one board meeting of the Crofting Commission without controversy surrounding it:-

Commissioners and officials get ready for Wednesday's board meeting

Commissioners and officials get ready for Wednesday’s board meeting

It has been very clear to many for some time that the board of the Crofting Commission has not been functioning as it should. Further rationale for that became apparent on Wednesday. How can a board function when one of its members (in this case the convener no less) is threatening legal action against the organisation itself and against fellow commissioners? How can such a situation even arise? The newly appointed commissioners, Malcolm Mathieson and James Scott, must have been wondering what on earth they had let themselves in for.

Colin Kennedy

Colin Kennedy

The Convener is taking a polar opposite view from his fellow commissioners. He thinks they are wrong in what they did in Brora and they think they are correct in the actions taken by them. This is similar to the ‘diametrically opposed‘ views held by him and the Scottish Government on distribution of common grazings funds and receipt of SRDP funding.

Confidential discussions?

Confidential discussions?

The legal basis of Colin Kennedy’s purported claims of defamation and damage to reputation arising from the Brora meeting are not clear. Why he considers that meeting to be invalid in law is also unclear.

What is clear is that the Crofting Commission took legal advice and at their last meeting it was “accepted that it [the Brora meeting] was one continuous meeting in two valid parts“. It was further clarified to the Cross-Party Group on Crofting at Holyrood, by Bill Barron, 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.

When six commissioners out of seven take a decision that decision should be respected and stand in accordance with the doctrine of collective responsibility.

As pointed out previously on this blog the Guide for Board Members of Public Bodies in Scotland [PDF] states:-

While Board members must be ready to offer constructive challenge, they must also share collective responsibility for decisions taken by the Board as a whole. If they fundamentally disagree with the decision taken by the Board, they have the option of recording their disagreement in the minutes. However, ultimately, they must either accept and support the collective decision of the Board – or resign.

Should Colin Kennedy have packed his bags and left by now?

Should Colin Kennedy have packed his bags and left by now?

Thus by sharing in collective responsibility, as he is obliged to do, Colin Kennedy should accept and support the decision of the board taken in Brora in September. By accepting and supporting that decision he should resign.

If, however, he does not accept and support the collective decision of the Board (which appears to be the case) he must, following the guidelines for Board Members of Public Bodies in Scotland, resign.

Either way he should not therefore currently be the Convener of the Crofting Commission.

Brian Inkster

Image Credits: © BBC Alba

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