Tag Archives: Fergus Ewing MSP

New Crofting Commission CEO not Commissioner!

Fake Crofting NewsThe Scottish Farmer are not always on the ball when it comes to crofting news. This week they excelled themselves with the headline ‘New Crofting Commissioner announced’.

Well we had all been waiting patiently for the remaining vacant seat for an appointed commissioner to be filled. Only one of the two vacant posts was recently filled following the appointment of Malcolm Mathieson with a promise that the remaining appointment would “be made in due course“. Did The Scottish Farmer have an exclusive for us on this? Unfortunately not. They just had their CEOs mixed up with their commissioners.

Crofting CEO not CommissionerThe real news that the Scottish Farmer was trying to report was that Bill Barron has been appointed as Chief Executive at the Crofting Commission.

The Chief Executive and designated Accountable Officer is responsible for the strategic leadership and overall operation and management of the Crofting Commission, including financial controls. Bill Barron has assumed the role on a permanent basis after being appointed as interim CEO in October 2016 following the departure of Catriona Maclean.

Cabinet Secretary for Rural Economy and Connectivity Fergus Ewing said:-

I am pleased that Bill has accepted the position and will join the Commission as permanent Chief Executive.

We have achieved a number of important milestones since we established the Crofting Commission in 2012, and there is now an opportunity to build on successful developments in crofting, refocusing attention on being an effective regulator and delivering an excellent service to crofters.

I am sure that Bill will bring leadership skills and dedication to the role and I wish him every success.

Crofting Commission Chief Executive Bill Barron said:-

I am delighted to have been appointed Chief Executive of the Crofting Commission. In my three months as Interim Chief Executive I have met regularly with Commissioners, staff, crofters and many other stakeholders to hear their views.

The work I have started will continue, giving the Commission a renewed focus on securing the future of crofting and preparing for the new Board following the crofting elections in March 2017.

Background

Bill Barron – biography

Bill Barron was appointed interim CEO of the Crofting Commission in October 2016.

Before that he worked on housing policy and delivery for the Scottish Government for 8 years, covering a range of issues including homelessness, housing’s contribution to health and social care, housing-related social security, and the supply of affordable housing.

A former statistician, Bill has also worked for the UK and Scottish Governments in the fields of education, social security, health and justice.

Crofting Commission

The Commission’s board can have up to nine commissioners. A maximum of six are elected by crofters, with the remainder appointed by Scottish Ministers. The Commission is the only public body in Scotland with a majority of board members elected by the people they serve.

Brian Inkster

Crofting Commission dodge answering questions

Dodging Bullets at the Crofting Commission

The Crofting Commission can stop your questions by simply not answering them!

The Cross-Party Group on Crofting has been waiting patiently on answers to 18 questions that they posed to the Crofting Commission. These were originally sent to the Crofting Commission in July 2016 then modified and sent in October 2016.

  1. Where in law it is stated that the Crofting Commission cannot revisit its own decisions?
  2. Why did the Crofting Commission chose to remove three grazings committees instead of work with them to improve things, if things needed improvement?
  3. Why were grazings shareholders not given the chance to elect a new committee when the Crofting Commission removed their committee, instead of moving straight to the appointment of a grazings constable?
  4. Does a removed committee have a right of appeal to the Crofting Commission?
  5. Where in law it is stated that the Crofting Commission has the power to appoint a Grazings Constable when they remove members of a grazing committee from office?
  6. Where in law it is stated that the Crofting Commission can extend the appointment of a Grazings Constable?
  7. Why is the Crofting Commission ignoring its own guidelines on the investigation of financial irregularities?
  8. Does the Crofting Commission maintain that all funds in a grazings bank account have to be disbursed immediately (including SRDP grants, as Mr MacLennan stated is the bulk of funds in the CPGoC)?
  9. If there are 3 levels of accounting as outlined by Mr MacLennan (examination by external qualified person such as local retired bank manager, prepared by qualified accountant on information supplied, full forensic audit), what are the thresholds at which each is required? Do they apply to balance or income? Who decides what is appropriate (given this was the reason Mr MacLennan gave for the Upper Coll grazings committee being removed by the Crofting Commission?)
  10. Why did the convener of the Crofting Commission involve himself in every one of these three cases and committee removals? Is this the job of a convener?
  11. Did the convener of the Crofting Commission declare his interest in the cases when the commissioners made their decision to move to removal?
  12. Does the Crofting Commission consider value for public money when pursuing cases?
  13. Mr MacLennan emphasised that the Crofting Commission were obliged to act as a shareholder had made a complaint. This does not square with the Commission’s dealings relating to other regulatory matters. We are aware of complaints made by shareholders with regard to absenteeism and neglect of crofts that go many years without commission action so it would be good to know why you are so diligent in pursuing grazings committees with such rigour. Has there been a policy change to target this type of regulatory issue (as there was previously with absentees)?
  14. Following the letter written to the Convener by Fergus Ewing concerning disbursement of common grazings funds to shareholders and SRDP funding there were mixed messages issued to the press by Commissioners. It appeared that the contents of the letter was supported but the Commission (or perhaps certain Commissioners) still thought they had done nothing wrong. Those two statements do not sit well next to one another. Can the Commission clarify their actual stance on the letter in clear terms for the benefit of this Group.
  15. Can the Commission explain why they have been questioning SRDP funding for and VAT Registration by Common Grazings?
  16. The Commission appear to be supporting their ‘constable’ Colin Souter and his behaviour at Upper Coll. Do they actually support a ‘constable’ who is having meetings with 4 shareholders and making decisions affecting 42 shareholders when 26 out of those 42 have signed a petition calling for his removal?
  17. Will the Commission advise the Group what remit was given to Constable Souter and why he appeared to be acting in an investigatory role rather than as an actual clerk.
  18. The latest revelation appears to be matters being decided by Commissioners via ‘brown envelopes’ rather than at board meetings. Can the Commission enlighten us further on this?

There were, in addition, two questions specifically posed to the Crofting Commission via the Cross-Party Group on Crofting by Iain MacKinnon on 1 November 2016:-

I would like to draw your attention to a letter by Colin Kennedy published this month in the Scottish Farmer. In the letter he draws the Scottish Crofting Federation’s attention to ‘the commission mole’ at the time of the ‘Susan Walker debacle’. Presumably he is referring here to the anonymous commissioner quoted by the West Highland Free Press when information was leaked to the paper and other media outlets about a letter signed by five commissioners – including Mr Kennedy – calling a meeting to discuss a potential vote of no confidence in Ms Walker. Mr Kennedy told the Scottish Farmer this month:

‘I can assure the SCF that prior to my becoming convener, the mole was identified and the information was provided to the appropriate persons to take the matter forward.’

At the Cross Party Group on Crofting’s meeting on 15th September last year, Jean Urquhart asked Mr Kennedy about the leak to the press.

He was unable to give her an answer and did not identify any ‘mole’ on that occasion. However, the then chief executive of the organisation was able to respond and this is noted in the minutes as follows:

‘What is being done about the fact that there was a leak to the press from a commissioner, which is a breach of the code of conduct?

While a newspaper claimed their was leak by a Commissioner, as Accountable Officer the CEO has carried out an internal investigation which found no evidence that any Commissioner had breached the code of conduct by leaking information on the matter to the press.’

I would like to hear from the Commission’s representative at the meeting how they reconcile these two statements and to ask again, in light of Mr Kennedy’s claim: what is being done about the leak to the press; and who was the ‘mole’ as described by Mr Kennedy in his letter to The Scottish Farmer.

Six months after the first questions were put to the Crofting Commission their Interim Chief Executive, Bill Barron, addressed them at the Cross-Party Group meeting at Holyrood on 25 January 2017 by stating that he didn’t intend to answer them but would like, instead, “to focus on the future“. He wanted to “draw a line under the rows of last year“. He acknowledged that “things had been done wrong” but there was “no merit in unpicking all of that“.

Mr Barron may have missed the fact that some of the rows of last year continue into this one.

He stated:-

Some of the specific issues raised in your questions have already been clarified by the Commission.  For example, we have confirmed that we agree with the Scottish Government’s position that there is nothing in the CAP rules that prevents the Scottish Government approving an SRDP application made by a grazings committee, and that we agree with the Scottish Government’s position regarding immediate disbursement of funds.

These, however, are two points that the Convener of the Crofting Commission, Colin Kennedy, still appears to be taking issue with and possibly still taking a contrary position on compared to his fellow commissioners and the official line of the Crofting Commission. This is all contrary to the doctrine of collective corporate responsibility. Indeed it is interesting to note that following the departure from the Crofting Commission of their former Convener, Susan Walker, Colin Kennedy, then Vice Convener, stated [PDF: Board Minutes – 13 May 2015]:-

I am sure that I speak on behalf of everyone when I say that today we are all equal with collective responsibility. In fact we are all Conveners, working together for the betterment of the Crofting Commission.

However, his publicly opposing views to that of the board clearly conflict with that statement.

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.

Colin Kennedy was not in attendance at the Cross-Party Group meeting on Wednesday night. He has only attended one meeting out of the five that have taken place since the start of the current Parliamentary term.

At the meeting in Holyrood on Wednesday night the Chair of the Scottish Crofting Federation, Russell Smith, asked Bill Barron if Colin Kennedy was still Convener and was still chairing Board meetings. Bill Barron answered both questions in the affirmative. Russell Smith then asked if the Board was working as it should to which Bill Barron replied “it is not easy but it is getting its work done“. How well, under the circumstances, it is getting its work done is, however, very debatable.

On the points raised by Ian MacKinnon the response from Bill Barron was:-

The same [i.e. not answering the questions] holds for Iain MacKinnon’s questions about a leak to the press, which was investigated by the previous CEO in 2015. Colin Kennedy’s more recent public comments about this appear to have been made in a personal capacity, but I can confirm that the Commission has no plans to re-examine this matter. Instead, my priority is to look forward to the upcoming elections and to prepare to give the best possible support to the new Board.

So it is all about looking forward and not looking back. However, you sometimes have to look back to learn from your mistakes before you can move forward and avoid making the same mistakes again.

Perhaps the Scottish Government’s review into the governance of the Crofting Commission will reflect more on the mistakes of the past and what needs to be done to prevent a recurrence of them. The Cross-Party Group on Crofting was advised on Wednesday by Gordon Jackson, Head of Rural Business Development and Land Tenure at the Scottish Government, that this review will be published “shortly“.

Brian Inkster

Image Credit: The Matrix Reloaded © Village Roadshow Pictures, Silver Pictures and NPV Entertainment

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

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

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

The end game?

Have we reached the end game in the crofting commission crisis?

Is it time for the First Minister to declare checkmate?

Many crofters and other interested parties have been wondering for some time why the crisis within the Crofting Commission has been allowed to trundle on for so long. Why they ask is Colin Kennedy still in post as Convener of the Crofting Commission despite many alleged breaches by him of the code of conduct and calls for his resignation from fellow commissioners, representative bodies, the press and crofters.

He has stated that “hell will freeze over” before he resigns. It was suggested that if he didn’t jump he would be pushed. A good few weeks later and no jumping and no pushing to be seen.

The latest move in this bizarre game is that Colin Kennedy has made a formal complaint against Fergus Ewing MSP, the Cabinet Secretary with responsibility for crofting. It has been reported by the BBC that Mr Kennedy “accuses the Rural Economy Secretary Fergus Ewing of being in breach of the ministerial code“.

This is rather ironic given the numerous accusations over a number of months from various parties against Mr Kennedy for his purported breaches of the code of conduct for members of devolved public bodies.

This brought about some thoughts on the issue on Twitter tonight:-

A reference to Colin Kennedy retaining an active interest in and being part of the decision making process in the Mangersta and Upper Coll cases despite complaints being made against him.

A reference to Colin Kennedy’s reasons for his behaviour in response to the complaint made against him by former committee members at Upper Coll Common Grazings.

Thus Mr Kennedy’s latest move may not have been as smart as he thinks. He may want to drag the agony out for everyone and cause more pain and anguish along the way. He may wish to pull others down with him. The reality is that such behaviour is not helping the greater good of crofting and the day to day regulation thereof by the Crofting Commission.

The Oban Times reported, in December 2006, that in a sheriff and jury trial at Oban Sheriff Court concerning a shotgun allegation against Mr Kennedy’s agricultural tenant, John Brackenbury, on the Isle of Coll:-

various police reports, about matters on Coll, were read to the court and one said Mr Kennedy was “not averse to confrontation” and added that “by his own admission his actions can antagonise the situation”.

The Oban Times also reported that the defence agent, Mr Nelson:-

put forward evidence in his lengthy cross-examination of Mr Kennedy, which had brought the farmer’s character into question.

He produced a tabloid press report, from the mid-90s, which said fellow islanders at that time called for Mr Kennedy – who was once banned from the island’s only hotel bar – to be banned from having a shotgun, claiming that he “has awful fits of temper”.

Strathclyde Police have received repeated complaints from Mr Kennedy and Mr Brackenbury, over the years, and Mr Nelson produced extracts from police subject sheets, recorded by unnamed police officers, relating to Mr Kennedy.

One stated: “He is of the personality type which seeks to utilise a verbal steam-roller through any contrary argument or viewpoint.”

The report continued: “That he has been an efficient farmer and businessman is beyond question but that very success has engendered a singular arrogance and a persona which ill-fits a small island community where toleration and cooperation are pre-requisite.”

Another police report called Mr Kennedy “an extremely stubborn individual who made it quite clear that he is intent on taking his revenge upon a number of individuals who he believes have previously wronged him”.

And yet another police subject sheet, dated October 4, 2005, said: “Taking aside the 20 years of civil disputes with Mr Brackenbury, Mr Kennedy has recently embarked on a civil complaint with almost every occupant in Arinagour and his lawyers have sent letters claiming £20,000 from each of them, as compensation for their gardens and houses being built on his grazing land. This has caused considerable anguish upon Coll, especially with the elderly.

10 years later and this behaviour appears to have moved from the Isle of Coll to the corridors of Great Glen House and Holyrood.

It is not behaviour befitting anyone in public office and we have surely now reached the end game. If Mr Kennedy thinks he has cornered Fergus Ewing it is time for the First Minister to swiftly move forward and declare checkmate. After all the Queen on the chess board, with an army of support behind her, is much more powerful than a lone ‘King’.

Brian Inkster

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

Bad penny?

Bad Penny? - The convener who just would not goAnother hard hitting editorial appeared in this week’s West Highland Free Press (14 October 2016). It was entitled ‘The Convener who just would not go‘. It follows on from their editorial two week’s ago in which it was suggested that by walking out on the Crofting Commission Board meeting in Brora Colin Kennedy “abandoned the convenership“.

This week the editorial expressed amazement that two weeks later he was still in post. Again we reproduce it here as an important part of our archive on ‘The Common Clearances‘:-

If Colin Kennedy is still convener of the Crofting Commission when Fergus Ewing MSP reads this, we suggest that the crofting minister steps outside and personally puts Mr Kennedy’s P45 in the post.

What on earth is going on over there? It is over two weeks since Mr Kennedy walked out of a Crofting Commission meeting in a fit of pique, leaving the chair temporarily to an unhappy and embarrassed Ian George Macdonald.

It is more than two weeks since the crofting minister deplored Colin Kennedy’s convenership. It is more than two weeks since his remaining colleagues on the Crofting Commission unanimously called on Mr Kennedy to resign as their convener, and issued in his absence a grovelling apology for his actions.

Colin Kennedy may still have an electoral base of the 216 crofter voters in the south-west Highlands who elected him as their representative four years ago. He is not being asked to vacate his position as their commissioner.

But as convener he has lost the support of the rest of the Crofting Commission, the Scottish Government, most crofters elsewhere in the country and the Scottish Crofting Federation.

His position has been untenable since he abandoned that meeting on the morning of Wednesday 28th September. But bizarrely, he has refused to vacate it. On the contrary, he has announced his intention to stay in post!

We understand that Mr Kennedy finds it difficult to accept that he has done anything wrong, in Lewis or elsewhere, although the crofters of Upper Coll and Mangersta might disagree.

We understand that he feels himself to have been betrayed by other commissioners who supported him during most of his term in office.

Those considerations are irrelevant. Every day that Colin Kennedy clings on to his convenership brings both the Crofting Commission and crofting itself into further disrepute.

That may, at this point, be Colin Kennedy’s intention. He should not be abetted by the indecision of the crofting minister. Fergus Ewing has the power to remove Mr Kennedy. He should exercise that power without any more delay.

View from the Crofting Law Blog

I, like many others, can only agree with the sentiments expressed by the WHFP. However, I might question their suggestion that Colin Kennedy is not being asked to vacate his position as a commissioner. Can he really be removed as Convener but not as Commissioner?

The relative provisions in the Crofters (Scotland) Act 1993 refer to removal of a member who is unable or unfit to exercise the functions of a member or unsuitable to continue as a member.

Thus they relate to the removal of a member not removal from the office of convener. Removal of a convener would appear to involve removal of the member who happens to be the convener. On removal they would cease to be convener but also cease to be a board member.

In any event if it is necessary to strip a commissioner of the convenership could that commissioner really be suitable to continue as a member of the board of the Crofting Commission?

Brian Inkster

Image Credit: Bad Penny © Jarmean

Kennedy says hell will freeze over before he resigns and that the Cabinet Secretary for Crofting should stand down!

only when hell freezes over will the crofting commission convener colin kennedy resignIn an exclusive interview with The Oban Times, published today, Colin Kennedy, Convener of the Crofting Commission, said that “hell will freeze over” before he resigns. He went onto say that Fergus Ewing MSP, cabinet secretary responsible, for crofting, is contravening crofters’ human rights by not allowing access to their own share of European funds. Mr Kennedy said: “The MSP should be standing down himself“.

Mr Kennedy also made reference to alleged “cronyism within the Crofting Commission”  and to practices “within the commission that are not fair and equitable“.

The Oban Times further reported Mr Kennedy as saying there is a real crisis in the Scottish Government as it tries to cover its back and leave itself open to legal challenges that could cost it millions.

The conflict between the Crofting Convener and the Cabinet Secretary has now reached an extraordinary stage. It is clear that despite the Crofting Commission stating that they supported the Scottish Government’s stance over SRDP funding of common grazings and ‘immediate’ payment of monies to shareholders this is a view not shared by Colin Kennedy. As convener of the Crofting Commission he should be expressing the views of the Board and not his personally held views.

The Framework Document between the Crofting Commission and the Scottish Government (April 2016 – October 2018) [PDF] sets out the broad framework within which the Crofting Commission will operate and defines key roles and responsibilities which underpin the relationship between the Crofting Commission and the Scottish Government.

Paragraph 21 of this Framework Document states:-

The Convener is responsible to the Scottish Ministers and, in common with any individual with responsibility for devolved functions, may also be held to account by the Scottish Parliament. The Convener shall ensure that the Crofting Commission’s policies and actions support the wider strategic policies of the Scottish Ministers; and that the Crofting Commission’s affairs are conducted with probity.

Current activities would appear to be a breach of that on the part of the Convener.

Under Paragraph 22 the Convener has a particular leadership responsibility on the following matters:-

  • Ensuring that the Crofting Commission fulfils the aims and objectives set by the Scottish Ministers; 
  • Formulating the Board’s strategy; 
  • Ensuring that the Board, in reaching decisions, takes proper account of guidance issued by the Scottish Ministers; 
  • Promoting the efficient and effective use of staff and other resources; 
  • Encouraging high standards of propriety and regularity; 
  • Representing the views of the Board to the general public; and 
  • Promoting diversity throughout the organisation.

He does not appear to be ensuring that the Crofting Commission fulfils the aims and objectives set by the Scottish Ministers.

He does not appear to be ensuring that the Board, in reaching decisions, takes proper account of guidance issued by the Scottish Ministers (or at least he is disputing that guidance).

He does not appear to be promoting the efficient and effective use of staff and other resources. That was clear from him closing and walking out of the meeting in Brora.

He does not appear to be encouraging high standards of propriety and regularity.

He does not appear to be representing the views of the Board to the general public. He is only representing his own personal views which appear to be in divergence to those of the Board. Perhaps even “diametrically opposed”, being the phrase used by Fergus Ewing MSP to describe how Mr Kennedy’s own views compared to those held by the Scottish Government.

So again he appears to be in serious breach of the Framework Document.

In terms of Paragraph 23 the Convener shall also “ensure… that the board is working effectively”. Recent actions by him cannot mean that it is.

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 have been given to Mr Kennedy. He appears to be ignoring those directions.

The seven principles of conduct underpinning public life (as identified by the Nolan Committee in 1995) are as follows:

1. Selflessness
Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or other friends.

2. Integrity
Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

3. Objectivity
In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

4. Accountability
Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

5. Openness
Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

6. Honesty
Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

7. Leadership
Holders of public office should promote and support these principles by leadership and example.

The Scottish Executive took the Nolan Committee recommendations one step further with the introduction of the Ethical Standards in Public Life etc. (Scotland) Act 2000 which brought in a statutory Code of Conduct for Board Members of Devolved Public Bodies and set up a Standards Commission for Scotland to oversee the ethical standards framework.

The Scottish Executive also identified nine key principles underpinning public life in Scotland, which incorporated the seven Nolan Principles and introduced two further principles:-

8. Public Service
Holders of public office have a duty to act in the interests of the public body of which they are a Board member and to act in accordance with the core tasks of the body.

9. Respect
Holders of public office must respect fellow members of their public body and employees of the body and the role they play, treating them with courtesy at all times.

Does the latest outburst in The Oban Times comply with these 9 principles and especially numbers 4, 7, 8 and 9?

A Scottish Government spokesman is quoted by The Oban Times as saying:-

Serious allegations about Scottish ministers were attributed to Mr Kennedy in the press following the Crofting Commission’s meeting in Brora on September 28.

The Scottish Government has requested further information from the convener in relation to these allegations and will give this further consideration, as appropriate. While this matter is ongoing, the Cabinet Secretary for Rural Economy and Connectivity [Mr Ewing] will continue to monitor the situation at the Crofting Commission closely.

Matters have surely today reached the point of no return. The ball is in Mr Ewing’s court.

Brian Inkster