Tag Archives: Mangersta

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

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

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

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

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

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

Rural Economy Secretary, Fergus Ewing, said:-

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

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

Crofting Commission Chief Executive, Bill Barron, said:-

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

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

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

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

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

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

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

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

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

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

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

As far back as April 2016, I stated:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brian Inkster

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

Ewing Exonerated

Fergus Ewing v Colin Kennedy

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

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

This is how they reported it:-

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

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

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

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

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

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

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

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

View from the Crofting Law Blog

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

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

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

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

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

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

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

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

Brian Inkster

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

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

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

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

Sunday Politics Scotland: Chaos on the Croft

Sunday Politics Scotland - Crofting Commission Crisis - Gordon BrewerSunday Politics Scotland on BBC One Scotland this week looked at the crisis in the Crofting Commission.

Presenter Gordon Brewer introducing the topic said:-

Now Chaos on the Croft.

The body responsible for protecting and regulating Scotland’s crofting is embroiled in some dramatic internal politics of its own.

As Len Cooksley reports pressure is increasing on the head of the Crofting Commission to resign after the Scottish Government became involved.

Sunday Politics Scotland - Crofting Commission Crisis - Crofter and tractor

Len Cooksley:-

Scotland has nearly 20,000 crofts overseen by the Crofting Commission.

After suspending two local grazing committees on Lewis on the grounds of financial missmanagement it was forced into a u-turn.

There were claims the commission were both heavy handed and may have acted illegally.

Now the Scottish Government’s got involved. It called on the commission and its convener, Colin Kennedy, to apologise.

Last week Mr Kennedy walked out of a commissioners meeting. Those that remained issued that apology and then passed a vote of no confidence in Mr Kennedy.

The First Minister gave her take on events in parliament earlier this week.

Sunday Politics Scotland - Crofting Commission Crisis - Nicola Sturgeon MSP - First Minister

Nicola Sturgeon MSP:-

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.

Len Cooksley:-

MSPs are watching developments with interest.

Sunday Politics Scotland - Crofting Commission Crisis - Tavish Scott MSP

Tavish Scott MSP:-

There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.

What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.

Len Cooksley:-

We understand Mr Kennedy has no plans to resign but would make no further comment.

The implication is clear: either he jumps or he’ll be pushed.

Gordon Brewer:-

Well earlier I spoke to Brian Inkster who is a lawyer and blogger specialising in crofting matters.

Sunday Politics Scotland - Crofting Commission Crisis - Brian Inkster - Inksters Solicitors

Gordon Brewer asked:-

Well the crofting commissioners have no confidence in their leader. He won’t resign and the Scottish Government is threatening to get involved. What on earth is going on?

Brian Inkster answered:-

Well it all goes back to December time last year when they decided to put out of office a grazings committee in Lewis. The first one was Mangersta and then subsequently into 2016 they put out two other grazings committees: one in Upper Coll and the other in Lochaber.

Gordon Brewer:-

Right but what I don’t understand is that Mr Kenedy the man who is the commissioner is accused of issuing edicts on things like payments over common grazings and peoples backs are up about this. But how can he do that surely the commissioners have to decide to do this.

Brian Inkster:-

Well the commissioners should be deciding to do it. It looks as though he has been instrumental in pushing these issues forward.

There were three sort of main issues I suppose.

The first one was payment by grazings committees to shareholders in common grazings of monies that had come into grazings funds. His argument was that these monies had to be paid out immediately. So there would be immediate payment to the shareholders and if monies were required back to maintain the common grazings they would issue a levy onto the shareholders.

Nowhere in the law did it say that these immediate payments had to be made and indeed it just didn’t make any kind of logical or common sense approach to deal with it in that way.

Subsequently there were two other issues.

One was that he was seeking to stop common grazings committees receiving SRDP funding – which is really grants from the governmnet to assist in the maintenace and improvement of the common grazings.

And latterly there was an issue around VAT registration where it was being said that common grazings could not be VAT registered whereas historically they always have been.

Gordon Brewer:-

Right, now, what happened? At some point the commissioners had a vote of no confidence.

Brian Inkster:-

That was just over a week ago in Brora. That was on the back of Colin Kennedy walking out of a meeting. He closed the meeting and walked out on the basis that the commissioner for the Western Isles said he was no longer declaring an interest in the Western Isles cases which he had previously done and was now wanting to vote on any issues concerning the Western Isles.

Sunday Politics Scotland - Crofting Commission Crisis - Brian Inkster and Gordon Brewer

Gordon Brewer:-

On the face of it you would think that if the commissioners have no confidence in him he has to go but he doesn’t does he because he was elected?

Brian Inkster:-

He was elected and there is nothing in the law that says if the commissioners have a vote of no confidence he must go. One would imagine that if all the commissioners are against you, if the Scottish Crofting Federation, NFU Scotland, MSPs across all cross parties and the press are all saying it’s time to go you would think what is the point of clinging on here.

Gordon Brewer:-

The Scottish Government has threatened to become involved. What can they do?

Brian Inkster:-

In terms of the Crofters (Scotland) Act 1993, Scottish Ministers have the power if they consider that a commissioner is unable or unfit to exercise the functions of a member or unsuitable to continue as a member they can then remove a member from office.

Gordon Brewer:-

Now, Brian Inkster, just to give us a little sense of what the background to this is because it is quite complicated. But is the issue underlying all this the use of land and the fact, for example, wind farms wants to come in or housing wants to come in and it is about whether the common ground is allocated to the community the funds from it or to individuals.

Brian Inkster:-

It is linked to the funds that come into a common grazings. On a common grazings, especially as you mentioned wind farming, so in recent times the potential for larger sums of money to come into a common grazings exists. And it is linked to the distribution of those monies and there was an insistance on the part of the convener that those monies had to be paid out as soon as it was received. That there was no ability to hold onto the money to use it to spend on improvements within the common grazings. The Scottish Government said that was not the correct view in law.

Gordon Brewer:-

Alright, we will have to leave it there. Brian Inkster thank you very much indeed for joining us.

Brian Inkster:-

Thank you.

Gordon Brewer:-

Well earlier I spoke to Colin Kennedy. He is the Crofting Commission boss who is in the middle of all of this controversy. I spoke to him on the telephone from Coll.

Sunday Politics Scotland - Crofting Commission Crisis - Colin Kennedy - Convener Crofting Commission

Gordon Brewer asked:-

Are you going to stay in the post?

Colin Kennedy responded:-

I have no intention of resigning.

Gordon Brewer:-

Why not?

Colin Kennedy:-

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.

Gordon Brewer:-

But the Scottish Government has said it has the power to get involved. If they do get involved and say you have to go you will have to go won’t you?

Colin Kennedy:-

That will be the case, yes.

Gordon Brewer:-

So just to be clear on that. If the Scottish Government says look given that your commissioners have voted no confidence in you we don’t think you can stay in post you will have to resign.

Colin Kennedy:-

That may be the case.

Gordon Brewer:-

Why are you so determined? You walked out of the meeting didn’t you, the other week? Why have you fallen out with all of the commissioners?

Colin Kennedy:-

No I didn’t walk out of a meeting.

I formally declared the meeting closed in light of an advancement by a commissioner supported by the deputy accountable officer that they had obtained information from the standards commission which I requested sight of prior to determination which failed to materialise.

Accordingly given the nature of the business at hand I had no alternative other than to formally close the September meeting of the Crofting Commission prior to my departure.

Gordon Brewer:-

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:-

I am unaware of the commissioners having said they have no confidence in me.

Gordon Brewer:-

You are not aware of that?

Colin Kennedy:-

Correct.

Gordon Brewer:-

So as far as you are concerned what? The Crofting Commission is carrying on its work as per normal?

Colin Kennedy:-

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.

Gordon Brewer:-

So right. If they still have confidence in you why would they do that?

Colin Kennedy:-

I couldn’t comment on what they do at informally constituted meetings.

Gordon Brewer:-

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?

Colin Kennedy:-

Correct.

Gordon Brewer:-

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:-

Absolutely incorrect.

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.

Gordon Brewer:-

Alright Colin Kennedy we have to leave it. Thank you very much for joining us.

Colin Kennedy:-

Thank you.

N.B. For a limited period (29 days) you can watch this episode of Sunday Politics Scotland on iPlayer (at about 54 minutes in)

Image Credits: Sunday Politics Scotland © BBC Scotland

Shackles lifted on Murdo Maclennan

Murdo Maclennan - Crofting Commissioner (Western Isles)

Murdo Maclennan – Crofting Commissioner (Western Isles)

The Stornoway Gazette, has revealed that Murdo Maclennan, Crofting Commissioner for the Western Isles, is pleased to now be free to publicly declare his position on the common grazings crisis in the Western Isles after the shackles applied, when he confirmed a declaration of interest, were finally lifted.

In the online article Murdo Maclennan admits that the past few months have been difficult as both Mangersta and Upper Coll have endured very public struggles. He is quoted as saying:-

It has been very difficult for me being unable to give my opinions on the ongoing matters in Mangersta and Upper Coll but now my declaration of interests have been lifted.

It is important to say I was being held back by these declarations, but I can speak now.

The Constable (Mr Colin Souter) installed in Upper Coll should complete his work as quickly as possible and the move to have a new committee in Upper Coll should happen as quickly as possible.

I would hope despite all that has happened that there can be a drawing of a line under it to move forward together, and like all committees, we will need to work with the commission for the benefit of crofting in the future in these areas.

There are lessons learned on the commission side absolutely. In terms of Mangersta I have asked why it has taken six years to resolve? That will be open and transparent to everyone. The way matters were handled and whether a grazings officer could intervene at an earlier stage to bring communities together.

The Stornoway Gazette article points out that last week at the Board meeting at Brora Golf Club Mr Maclennan led a motion, which was seconded and agreed by officials, calling for the resignation of the Crofting Commission’s Convener, Colin Kennedy.

This followed Mr Kennedy walking out of a meeting after he refused to accept Mr Maclennan’s withdrawal of his declaration of interest.

It goes on to quote Mr Maclennan as saying:-

I had sought to represent publicly the Western Isles crofters involved by asking for the papers and being able to take part in the discussions later on in the meeting,

But I was denied that by the convener and after taking advice from the officials present, my position was sustained, that I could have access to the papers which led to him closing the meeting.

The board did continue to meet and we had a full day of business. I did move that the board state, through a motion, in my opinion it was the convener’s position to retire due to the situation. This was seconded and also received the unanimous vote of the board.

It is a question of accountability and responsibility for all that has gone on in the past six months.

View from the Crofting Law Blog

It is good that Mr Maclennan no longer has a conflict of interest and is able at last to take an active role in important issues concerning his own island community.

It is also heartening to see that he was instrumental in leading the motion calling for the convener’s resignation.

Mr Maclennan says that the grazings ‘constable’ Colin Souter should complete his work as quickly as possible and the move to have a new committee in Upper Coll should happen as quickly as possible.

However, what work does Mr Souter have to complete? I don’t think the majority of shareholders at Upper Coll want him to complete anything for them anymore.

In the case of Mangersta the ‘constable’ there was removed very swiftly indeed. Should the same not happen at Upper Coll?

What move needs to be made to have a new committee in Upper Coll? Is that not in effect all done and dusted by the actions taken by the shareholders themselves some weeks ago?

It looks like the Commission is unnecessarily prolonging the agony for the crofters of Upper Coll.

Colin Souter should step down immediately, without any further delay, and let the crofters get on with it themselves.

That happened in Mangersta. There is no good reason why it cannot and should not happen in Upper Coll.

The six crofting commissioners (including Mr Maclennan) who now oppose Mr Kennedy should ensure that this happens without further delay and preferably by close of play tomorrow at the latest. This would demonstrate that the shackles have well and truly been lifted.

Brian Inkster

Few tears should be shed

WHFP - 30 September 2016The latest edition (30 September) of the West Highland Free Press contains a strong editorial concerning the events in Brora last week. It is entitled Crofting Commission: No tears for the end of the Colin Kennedy era. We reproduce it here as an important part of our archive on ‘The Common Clearances‘:-

By walking out of a Crofting Commission meeting in Brora yesterday (Wednesday) because everything was not going his own way, Colin Kennedy abandoned the convenership in the same disgracefully arrogant manner with which he has held the position for the last 15 months.  Few tears should be shed.

Last week crofting minister Fergus Ewing instructed the crofting commissioners to make a full public apology to the Lewis grazings committees which earlier this year, they summarily and possibly illegally dismissed from office.

In other words, according to the crofting minister, throughout this whole sorry affair the Crofting Commission has been completely wrong in both its legislative interpretation and procedural actions.

The commission was wrong to consider that the locally-elected grazings committees at Upper Coll and Mangersta had been constitutionally at fault.  It was also wrong to sack them.

There can be few graver charges laid at the door of crofting’s regulatory body.  Its punishment is to publish a humiliating confession of its sins, and to submit to a review of its practices by Scottish Government officials.

More than anybody else, Mr Kennedy spearheaded the assault on the grazings committees.  In doing so he at least demeaned and possibly also subverted his office.

If one thing was certain following Mr Ewing’s intervention before Wednesday’s meeting in Brora, it was that Colin Kennedy could no longer stay on as convener.  All that remained was the manner of his leaving.  It could have been gracious or it could have been petulant.  It was of course the latter.

The remnants of the Crofting Commission was left to compose its letter of apology.  Once that task was completed, before dusting itself down and attempting to resume normal and responsible service, it must tie up another loose end from Mr Kennedy’s convenership.

The commission should instantly remove its constable, Colin Souter, from Upper Coll.  The imposition of Mr Souter on that part of Lewis was a grossly insulting over-reaction.  He should never have been sent there in the first place.

In the words of the Scottish Crofting Federation’s Fiona Mandeville, Constable Souter “has no place in crofting, is aggravating bad feeling and is standing in the way of democratic process”.

Colin Souter’s continuing presence on the east side of Lewis is reminiscent of the Highland authorities’ response to the 19th century land war.  It has no place in the 21st century.

Colin Kennedy was elected to the Crofting Commission by the crofters of the south-west Highland constituency.  He was then elected to the convenership by his fellow commissioners following their vote of no confidence in the government-appointed chair, Susan Walker.  He is walking proof of the fallibility of democracy.

But if free votes have bad outcomes, they can also correct their mistakes.

If Mr Kennedy hangs around, stands and is re-elected by the voters of Lochaber, Argyll and Bute, Arran and Cumbrae and the Small Isles next March, that will be their right and their responsibility.  We hope, however that the crofters of the south-west Highlands have enough decency and sense to choose an alternative.

Other commissioners should and doubtless are taking long hard looks at their positions.

They have all been complicit, to one degree or another, in this fiasco.  Murdo MacLennan was returned from Lewis with the biggest vote of all.  For all of his experience and affability, Mr MacLennan has not defended the crofters of his own constituency from his convener’s excesses.

If, as we have often suggested, the size of the Western Isles crofting constituency was property respected and it had two or three elected commissioners, Colin Kennedy might have found some opposition within the commission’s ranks – and the grazings committees of Upper Coll and Mangersta might not have been dragged through the mire.

As things stand, Murdo MacLennan is the only Western Isles representative on the Crofting Commission.  In this important instance, however reluctantly and for whatever reasons, he has failed his voters.  If he also stands for re-election, he might not expect many voters from Upper Coll next spring.  Whether or not the crofters of the rest of Lewis stick with him is their decision.  We suggest that it is time for a change there also.

It may not be his worst offence, but Colin Kennedy’s Crofting Commission has given ammunition to those who will suggest that crofters are incapable of managing their own affairs.

Crofters themselves can refute that charge.  Six months from now they will once again be asked to vote for crofting commissioners.

In the elections of 2012 the turnout was low.  In both the Western Isles and in Skye and the West Highlands, only half of crofters bothered to vote.

That turnout should increase significantly next spring.  Crofters everywhere know by now how much is at stake.  The least they can demand of their commissioner candidates is that they refrain from mounting concerted attacks on grazings committees.

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

What the Grazings ‘Constable’ didn’t do

What the Grazings Constable didn't do

Was the wrong list entered into the constable’s little black book?

With all the fuss over the apparent failings of successive grazings committees over the years at Upper Coll attention has been drawn away from what Colin Souter should actually have been doing himself assuming that his role as grazings constable was a legal as opposed to an illegal one.

As disclosed in my last post the letter of ‘appointment’ from the Crofting Commission addressed to Mr Souter stated:-

The appointment is for 6 months from the date of the Order. However the intention is that this should be a short term measure and once any outstanding actions are discharged, that you arrange a meeting of shareholders at which you will resign and a new committee will be elected by the shareholders to manage the grazings in accordance with the Regulations and the Act.

This letter also stated that:-

Your principal responsibility as Constable will be to discharge any outstanding actions required to ensure the duties imposed under the Crofting Acts and the grazings regulations are fulfilled.

This in effect was referencing the fact that following their removal from office the former committee highlighted to the Crofting Commission a list of matters that needed attending to.

Whilst the Crofting Commission erred in law (surprisingly knowingly) in appointing a grazings constable to attend to these matters it may be that their intentions in so doing were in good faith and to ensure that the list of matters highlighted to them were in fact attended to. Anyway, that appears to be the remit given to Colin Souter.

However, his report issued to shareholders on 29th August does not mention any such activities. In light of this shareholders at Upper Coll have, not surprisingly, stated:-

This constable has interfered in things he should not have and left undone the things he should have.

They have asked:-

But what has he not done?

And they have provided a list of what that might be:-

  1. Has he processed the IACS for the village?
  2. Has he submitted an application for the Agri-Environment Scheme that could have taken in some funding to the village?
  3. Has he worked out a Summer and Winter Grazings Timetable?
  4. Has he progressed the Croft Registration for 30 shareholders that had been well advanced before the committee were dismissed?
  5. Has he progressed the feu requests from couples desiring to build and live in Upper Coll?
  6. Why has he not been actively pursuing the Crofting Commission for the reimbursement by them of the money paid out by Upper Coll in feu dispositions. An instruction by the Crofting Commission to Upper Coll Grazings Committee that has since been proved illegal!
  7. What efforts has he made to heal the tensions and differences experienced within the village? Surely that should have been one of his first tasks!

If these matters have not been actioned then it would appear that Mr Souter has failed in the remit given to him by the Crofting Commission.

If that is the case then clearly the time has come for him to step aside and let those that know what need to be done do the necessary on behalf of and for the benefit of the shareholders.

If he has in fact dealt with these matters then he should be reporting that fact to the shareholders and resigning as constable as the Crofting Commission indicated should happen in their letter of ‘appointment’.

As indicated in my last blog post such a ‘resignation’ is what the similarly illegally appointed grazings constable at Mangersta Common Grazings saw fit to sensibly do.

Although arguably Colin Souter cannot resign from an illegal position that gives him no status or authority in the first place.

But the ‘resignation’ (as was the case in Mangersta) may have symbolic significance.

As suggested in my last blog post it may at least draw a line under his interference in the workings of a common grazings where the vast majority of the shareholders simply wish to get on by themselves with controlling their own destiny and their own finances.

Let’s hope that common sense prevails. Although, unfortunately, common sense does not often feature in this Common Grazings debacle.

Brian Inkster