The Convener of the Crofting Commission, Colin Kennedy, gave an interview to Gordon Brewer on Sunday Politics Scotland by phone from the Isle of Coll. This followed on from my own interview with Gordon Brewer at the BBC studios at Pacific Quay in Glasgow.
What struck me from Mr Kennedy’s responses to Gordon Brewer’s questions was that he appeared to have lost his memory. I will look at some of those responses and explain why:-
Mr Kennedy’s assertion that the Commission have acted wholly within the law at all times and have not received legal advice to the contrary
Gordon Brewer asked:-
Are you going to stay in the post?
Colin Kennedy responded:-
I have no intention of resigning.
As matters stand, I believe the commission have acted wholly within the law at all times and until such times as we have legal advice to the contrary, I will maintain my position.
View from the Crofting Law Blog on Mr Kennedy’s assertion that the Commission have acted wholly within the law at all times and have not received legal advice to the contrary
Has Mr Kennedy forgotten already that Fergus Ewing MSP, Cabinet Secretary responsible for crofting, wrote him a letter which stated that Mr Ewing saw “little merit” in and “wholly disagrees” with his interpretation of the law?
Indeed Mr Ewing referred to the Scottish Government’s position as being “diametrically opposed” to Mr Kennedy’s position. He went onto say that it was “not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law”.
The Board of the Commission (including Mr Kennedy) subsequently accepted and supported the Government’s position in this regard.
Has Mr Kennedy also forgotten the meeting that he and other commissioners had with Mr Ewing at Holyrood?
At that meeting Mr Ewing told Mr Kennedy that the action taken by the Crofting Commission to remove grazings committees from office was wrong, that the decisions should be rescinded and an apology given to the grazings committees in question.
Following Mr Kennedy walking out of the Board Meeting at Brora the remaining commissioners accepted Mr Ewing’s position and the apology was issued.
First Minister, Nicola Sturgeon, referred to it as being “disappointing” that Mr Kennedy was not a party to that apology.
Mr Kennedy being unaware that the commissioners have no confidence in him
Gordon Brewer said:-
Okay, but the commissioners have said they no longer have any confidence in you. Which is not brilliant from your point of view is it?
Colin Kennedy responded:-
I am unaware of the commissioners having said they have no confidence in me.
You are not aware of that?
The Crofting Law Blog’s view on Mr Kennedy being unaware that the commissioners have no confidence in him
Mr Kennedy has been known to go into hiding but he must be on a different planet if he is suggesting that he does not know what was discussed at the Special Meeting in Brora.
It was headline news following that meeting.
Perhaps commissioners didn’t use the exact words “no confidence” at their meeting but calling on Mr Kennedy to resign is a vote of no confidence if ever there was one.
Mr Kennedy’s understanding of the Commission’s Standing Orders
Gordon Brewer asked:-
So as far as you are concerned what? The Crofting Commission is carrying on its work as per normal?
Colin Kennedy replied:-
Well I would suggest at this moment in time that the Crofting Commission conducted a meeting on 28th September which is in non compliance or in accordance with the standing orders of the Crofting Commission and therefore it would appear in my view to be ultra vires.
The Crofting Law Blog’s view on Mr Kennedy’s understanding of the Commission’s Standing Orders
Is Mr Kennedy not familiar with the Commission’s Standing Orders? Surely the Convener should be?
The relevant provisions for present purposes are:-
6.4 The Chief Executive will call a Special Meeting of the Commission when required to do so by the Convener of the Commission. A Special Meeting will also be called by the Chief Executive if in receipt of a written request stating the business of the meeting from another member of the Commission and seconded by a majority of the Commission. The meeting will be held within 21 days of the receipt of the requisition by the Chief Executive.
6.5 Where the Convener requires a Special Meeting, and considers that there is particular urgency, the Chief Executive may call the meeting without giving the
7 days’ notice normally required at 6.1 above, provided every effort is made to contact members to give as much notice as possible prior to the meeting.
These provisions were followed and a Special Meeting duly convened.
The Crofting Commission have stated:-
When the Convener left the board meeting on 28 September in Brora the remaining commissioners requested a Special Meeting. This was held in line with the Crofting Commission’s Standing Orders.
Crofting Commissioners should be commended for doing so and allowing important business that Fergus Ewing MSP had requested them to deal with to so be dealt with.
The Convener was content to abandon the scheduled meeting and not deal at all with the business of the day.
Mr Kennedy’s views on the inexplicable
So right. You think that they still have confidence in you but that they have held an ultra vires meeting without you for reasons that are inexplicable?
The Crofting Law Blog’s take on Mr Kennedy’s views on the inexplicable
What can you say!
Mr Kennedy’s assertion that decisions have been based on legal advice and papers presented to the Board
Gordon Brewer pointed out:-
The substance of this is about you, they allege, that you made various determinations about things like payments in the form of edicts – that they weren’t really consulted.
Colin Kennedy retorted:-
At no time under my leadership have any decisions been taken without full endorsement of the board and based on legal advice.
And if I could comment prior to those decisions as per the board minute of 15 September 2015, prior to taking any of those decisions a formal request was made to the Chief Executive to obtain legal advice to support the papers presented to the board on which the board took the decisions.
The Crofting Law Blog’s view on Mr Kennedy’s assertion that decisions have been based on legal advice and papers presented to the Board
I am unsure what the board minute of 15 September 2015 is. I have located one from 16 September 2015 but that does not appear to be of any relevance to the matter at hand.
However, has Mr Kennedy forgotten that the Chief Executive provided clear advice to the Board that they could not appoint a grazings constable where a grazings committee was removed from office?
Despite that advice the Board went onto appoint three grazings constables in three such circumstances which appears to be a contravention of the legal advice received on at least three occasions.
General comment from the Crofting Law Blog on Mr Kennedy’s memory
It would appear that when analysed Mr Kennedy’s responses in each instance are somewhat flawed. The accurate position in each instance can actually be found in the archives on this blog.
Perhaps Mr Kennedy should refresh his memory by reading through the blog before he gives his next press interview.
However, the flaws in his responses highlight a serious divide between him and the Scottish Government and one that you would think the Scottish Ministers cannot tolerate for much longer.
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