Tag Archives: BBC Highland

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

Colin Kennedy and the Holy Grail

i-am-your-kingThe Scottish Farmer today gives space for Colin Kennedy, Convener of the Crofting Commission, to tell them about his “crofting crusade!”. This follows hot on the heals of a huge press offensive on his part over the past week with appearances/articles in Sunday Politics Scotland, The Oban Times and BBC Radio Highlands & Islands.

The story is the same: He is right and everyone else is wrong.

He has again stressed that his sole motivation is:-

to uphold crofting law, and defend the statutory rights of ordinary crofters

It has been shown that this is very much his own interpretation of crofting law and not one supported by the Scottish Government or by his fellow commissioners.

He has, however, again rounded on the Scottish Government and the cabinet secretary responsible for crofting, Fergus Ewing MSP, with The Scottish Farmer reporting Mr Kennedy as:-

bluntly accusing him [Mr Ewing] of perpetrating a cover-up of ScotGov’s historic role in a quagmire of maladministration.

He labours on about his views on the illegalities of common grazings obtaining SRDP funding which, as has been pointed out many times before, is not any business of the crofting regulator but a matter for the Scottish Government, the EU and crofters.

Mr Kennedy claims that:-

The commission has taken legal advice from Sir Crispin Agnew QC and it is my understanding that a grazing committee does not merit claiming subsidies, as only individual shareholders with grazing rights are eligible, provided that they comply with the provisions of the legislation for such activity.

Does Mr Kennedy have the approval of the Board of the Crofting Commission to discuss in public this legal advice obtained by the Commission? If not he is breaking that code of conduct again that he was keen to discuss on BBC Radio Highlands & Islands. This is, of course, true in relation to much that he has said over the past week.

Obtaining such a legal opinion was probably outwith the remit of the Crofting Commission in any event. It is understood that Mr Kennedy was instrumental in having it obtained. It is further understood that whilst the Board may have considered this legal opinion when produced they did not use it as a base for any decisions made.

The Scottish Government stated that it “wholly disagrees” with the views on SRDP funding held by Mr Kennedy. This would appear to include the legal opinion that he still clings to.

Those views, like his ones on VAT registration, were potentially all about depriving crofters of funding and had nothing to do with upholding crofting law and defending the statutory rights of ordinary crofters.

well-i-didnt-vote-for-you

Mr Kennedy again showed the huge divide between himself and the Crofting Commission Board and the fact that he was not in fact supporting decisions taken by the Board such as accepting the Government’s position on SRDP and disbursement of funds.

Mr Kennedy proceeded, in his interview with The Scottish Farmer, to attack the former Upper Coll Grazings Committee stating that they:-

have a lot to answer on behalf of shareholders.

Again this is completely at odds with the position taken by the Scottish Government and the Board of the Crofting Commission who have issued an apology to the grazings committee in question.

Mr Kennedy’s position in such circumstances is completely untenable.

mandate-from-the-masses

On the subject of Colin Souter, the grazings ‘constable’ at Upper Coll, Mr Kennedy denies any involvement in his appointment or that he is “his man“. He points the finger on Chief Executive, Catriona Maclean, for the appointment “without reference to the agreed board process“.

However, Freedom of Information requests reveal evidence that Mr Kennedy’s version of events may be one painted through rose tinted glasses. His memory again may not be serving him well.

A document produced by the Crofting Commission states:-

Following the Board meeting on 9th May the Convener, Vice Convener, and CEO met by phone to agree who should be appoint4ed [sic] to the post of Grazings constable in the Upper Coll Common Grazings.

So Mr Kennedy was very involved in the selection process.

The selection committee considered four potential candidates for the job and concluded that:-

Mr Souter has experience in working with crofters and grazings committe4ss [sic] through his time in the Police. An ex-chief inspector and force negotiator who comes from south Usit [sic] Mr Souter has both the skills and experience to deal with this matter and therefore he was selected to be appointed constable.

So Mr Kennedy was in fact party to and appointed Mr Souter to the post in question.

There is also evidence of direct communication between Mr Souter and Mr Kennedy. For example an e-mail from the former to the latter on 24 May 2016 which reads:-

Hi Colin

In looking to progress a meeting with the shareholders at Upper Coll, in the near future, I wanted to ensure the venue was appropriate and given you’ve been out there, I wondered if you had an idea on the best venue option and perhaps a secondary one, if circumstances require?

Kind Regards

Colin

Colin Souter

No evidence was produced from the Freedom of Information request as to whether or not recommendations were given by Mr Kennedy to Mr Souter on the comfort of the chairs at possible venues in Upper Coll. But this exchange does prove that there was indeed direct communication between the two as previously suggested on this blog.

Furthermore Mr Kennedy was taking a direct interest in matters by requesting to see minutes of meetings held by Mr Souter at Upper Coll, all as disclosed from information obtained through Freedom of Information.

Mr Kennedy in discussion with The Scottish Farmer refers to the whole grazings committee issue being “a can of worms” but stressed that to his knowledge it was only a problem specifically on Lewis. He is reported as having “quipped“:-

as previously stated in the board room things are often done differently in Lewis.

What about in Lochaber? Has Mr Kennedy also forgotten about the grazings committee he and his fellow commissioners put out of office there? Has he forgotten about how instrumental he was in ensuring the appointment of a grazings ‘constable’ there who would do his bidding?

It has, however, been commented on before that Lewis appeared to be a particular target for the convener. It is unclear why. But perhaps that will eventually come out in the wash.

Mr Kennedy is quoted by The Scottish Farmer as saying:-

But now I’ve put my head on the block in trying to get to grips with the truth. I know people are queuing up to get me out but I am not letting this rest. I’m not going to jump, so I will probably be pushed. If that happens my solicitor is standing by.

That solicitor will have a difficult hill to climb. The evidence seems to me to be firmly stacked against Mr Kennedy and has been since my first blog post on ‘The Common Clearances‘. Subsequent events and revelations from Freedom of Information requests has just fortified that position.

im-invincible

Mr Kennedy’s version of events, as given to the press this past week, appears to show a selective memory with many gaps to fill. I and others who post comments attempt to fill those as best we can on this blog.

Mr Kennedy, like Mr Souter, appears to be searching for a justification for his discredited actions. I doubt that he will ever find it.

Brian Inkster

Image Credits: Monty Python and the Holy Grail © Python (Monty) Pictures

Radio Crofting GaGa

Radio Crofting GaGa

All we hear is…

Following his statements to Sunday Politics Scotland and The Oban Times, Colin Kennedy, Convener of the Crofting Commission, was today also speaking to BBC Highlands & Islands.

He said:-

It would appear to be clear that there is a code of conduct that we all must follow and to act against best legal advice and practice would seem to me to be somewhat contrary to the code of conduct. I would say it probably clashes with the Government.

But is that not him arguing against himself. Surely he has been acting against best legal advice and practice. Thus this has indeed been contrary to the code of conduct. Yes, that does indeed clash with the Government!

He went on to say:-

I believe everybody should be treated fairly and equitably within the legislation and that is what I stand for: fair and equal treatment to every crofter.

Do the crofters of Mangersta and Upper Coll consider the Crofting Commission’s treatment of them, under Mr Kennedy’s leadership, to have been fair and equal? I doubt it.

Mr Kennedy continued:-

But when you have civil servants with views and having cases pulled from decision making and changing policies in order to support decision making it gives me great concern.

I am unsure of the context of this or to what Mr Kennedy is actually referring. Are civil servants not allowed views? What cases have been pulled from decision making and by whom? How can civil servants change policies? Presumably only MSPs and commissioners can do that?

He then concluded with:-

And the reason I will not resign is that I will not rest until I get to the bottom of what is going on.

We all would like to know what is going on. But we all thought only Mr Kennedy knew the answer to that one!

N.B. A recording of Mr Kennedy speaking to the BBC is available (possibly for a limited time?) at Soundcloud (full report starts at approximately 1.34 minutes in):-

[soundcloud url=”https://api.soundcloud.com/tracks/287514607″ params=”auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&visual=true” width=”100%” height=”600″ iframe=”true” /]

Brian Inkster

Decisive Ministerial intervention in crofting crisis is now required

West Highland Free Press - 16 September 2016In a hard hitting editorial in the latest edition (16 September 2016) of the West Highland Free Press it was made clear by the editor that he considers that the Crofting Commission needs ministerial advice and direction and that Colin Kennedy’s continuing tenure as Convener must be in doubt.

I will reproduce the editorial in question here followed by some of my own thoughts on the matter

The Crofting Commission needs ministerial advice and direction

The self-created crisis within the Crofting Commission has gone past the point where it can be healed internally.  Public and decisive ministerial intervention is now required.

On the most mundane but incendiary points which lit the blaze, the Crofting Commission can be pronounced quite wrong.

Grazings committees should have the right to determine in which manner their income is spent, under the law and to the benefit of the community.

Grazings committees such as those at Upper Coll and Mangersta should not be obliged instantly to distribute funds as dividends and then reclaim the money in order to finance improvements.

Without those commonplace – and previously widely accepted – permissions, west-coast crofting in particular would suffer.

Grazings committees, which are the voluntary foundation of the system, would become almost impossible to establish.  It should be pointed out here that crofting commissioners are paid £8,600 a year for four-and-a-half days’ work a month, and the commissioner’s convener is paid £20,300 for an eight-day month.  Grazings committee member are paid nothing.

Crofting would become even less of a communal activity and even more of a private, individual enterprise.  It beggars belief that a large reason for the recent dictatorial action by the Crofting Commission was the fact that Upper Coll grazings committee made assets available to infrastructure projects which benefited not only crofters but also the wider community.

In the three years of its existence the present Crofting Commission has managed to lose three of its seven members, and its chief executive Catriona Maclean has now packed her bags and moved on to happier pastures.

By any standards, this is a failing institution.  The response of the new crofting minister, Fergus Ewing, has been inadequate.

Last month Mr Ewing wrote a private letter to the commission’s controversial chair, Colin Kennedy.  In that letter the crofting minister told Mr Kennedy that he and the Scottish Government “wholly disagreed” with the Crofting Commission’s actions and attitudes towards grazings committees.

Most importantly, Fergus Ewing wrote that as crofting minister he considers that the law “does not require the immediate disbursement or pay out of funds by a grazings committee”.

In other words, Colin Kennedy’s interpretation of crofting law had been wrong from the start.  As a result all of his subsequent actions had been, at best, invalid.

This private letter was then leaked to the veteran BBC Highland correspondent Jackie O’Brien.  It seems probable that Mr Ewing authorised the leak in order to shore up his credentials with crofters.

That also was unacceptable.  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.  Colin Kennedy’s Crofting Commission is currently preparing “draft guidance” for grazings committees.  We hope that Fergus Ewing is fully involved in that exercise.  We wait to see whether that guidance will follow the Kennedy or the Ewing version of legislation.  There can be no compromise.  It is difficult to see how Mr Kennedy can emerge from the process with his £20,000 part-time post intact.

This unpleasant chain of events should not shake our belief in democracy.  We continue to believe that the entire Crofting Commission should be elected by crofters rather than composed of professional quangoteers and other government appointees.

Many hundred of crofters in large parts of the Highlands and Islands cast their votes ill-advisedly three years ago, and a lot of them will now realise that.

Thanks to the democratic system, they will have the chance to put things right at the elections next spring.  We hope that they, and the many crofters who previously chose not to vote, will take that chance.  In the long as well as the short term, the future of crofting is at stake.

View from the Crofting Law Blog

I must wholeheartedly agree with this editorial in so far as the need for “public and decisive ministerial intervention”. Indeed I suggested that in my first blog post on this sorry saga back on 25 April 2016. There have been calls since by the Crofting Federation and by crofters for the same thing. To see the West Highland Free Press support the same calls is heartening indeed and must add to the pressure on Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, to do something about it.

The jury is still out as far as I am concerned about the idea of the entire Crofting Commission being elected by crofters “rather than composed of professional quangoteers and other government appointees”. The problems at the Crofting Commission seem to lie at the door of elected commissioners or perhaps an elected commissioner. Two of the government appointees (who by all accounts were very able and capable commissioners) have resigned in recent times and have yet to be replaced.

The calibre of elected commissioners may be very much down to those willing to put themselves up for election rather than the will of the crofting electorate.

With the Crofting Commission in its current mess there is a good chance that there won’t be many level headed crofters volunteering for the task of clearing that mess up come the 2017 elections. Possibly another solution is required. Answers on the back of a postcard please to Fergus Ewing MSP.

Brian Inkster