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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

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

Has the Convener lost his memory?

Has the Crofting Commission Convener, Colin Kennedy, lost his memory?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.

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.

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 that he had deleted from the Crofting Commission’s website his own guidelines on “immediate” payment of funds when it was shown that the law did not insist upon that.

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.

Gordon Brewer:-

You are not aware of that?

Colin Kennedy:-

Correct.

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

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.

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:-

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.

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.

Brian Inkster

Image Credit: Sunday Politics Scotland © BBC Scotland

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

Kennedy stays in post and seeks legal advice

Colin Kennedy stays in position as Convener of the Crofting Coimmission and seeks legal adviceYesterday we heard that the Convener of the Crofting Commission, Colin Kennedy, had told the BBC that he had no plans to resign.

Today we learn that he has also been speaking to The Scottish Farmer. Their front page main story reveals:-

I am currently taking legal advice and it is inappropriate for me to comment at this stage.

All I will say is that, despite all the flak, I am staying in my position as convener, and not resigning.

In the past week Mr Kennedy has provided statements to The Herald, BBC and The Scottish Farmer asserting that he is going nowhere. That appears to be many more statements than he has ever made to the press as convener on behalf of the Crofting Commission in over a year in that position.

With no support from fellow commissioners, the Scottish Crofting Federation, National Farmers Union Scotland, MSPs of all political persuasions, the press and the vast majority of crofters it would appear very clear that he no longer has a mandate to continue in that position.

All the legal advice in the world won’t change that simple fact.

Brian Inkster

Either he Jumps or he will be Pushed

Sally Magnusson - BBC Reporting Scotland - Crofting Commission Report

Sally Magnusson – BBC Reporting Scotland

Reporting Scotland took up the Broragate story yesterday following the questions asked by Tavish Scott MSP at First Minister’s Question Time on Thursday.

Sally Magnusson introduced the news item:-

Pressure is mounting on the head of the Crofting Commission to resign after the First Minister warned that the Government would intervene if it didn’t put its own house in order.

This follows a turbulent few months during which the Commission was forced to apologise to crofters in the Western Isles and then passed a vote of no confidence in its own convener.

Craig Anderson - BBC Reporting Scotland - Crofting Commission Report

Craig Anderson – BBC Reporting Scotland

Craig Anderson explains:-

Its feared by many as an idylic lifestyle, part time farming on small parcels of land with tiny rents.

There are almost 20,000 crofts in Scotland protected and regulated by government agency the Crofting Commission.

But the body is imploding. It suspended two local grazings committees in Lewis earlier this year on the grounds of financial mismanagment but was forced into a u-turn when that was ruled heavy handed if not illegal.

Brian Inkster - Crofting Law Specialist - BBC Reporting Scotland

Brian Inkster commented:-

It all begins with the common grazings committees having been put out office. There were two put out of office in Lewis and one in Lochaber. It is really how the Crofting Commission has gone about that and the uproar that has caused.

Convener of the Crofting Commission, Colin Kennedy, storms out of the board meeting in Brora

Convener of the Crofting Commission, Colin Kennedy, storms out of the board meeting in Brora

Craig Anderson continued:-

The Scottish Government then called on the commission and its convener Colin Kennedy to apologise to the crofters involved.

Last week he stormed out of commissioners meeting. They issued an apology and then passed a vote of no confidence in Mr Kennedy.

So who’s running the show the First Minister was asked at Holyrood yesterday.

Nicola Sturgeon MSP - First Minister - Crofting Commission crisis

Nicola Sturgeon MSP answered:-

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.

Colin Kennedy and other crofting at Brora before he ended the meeting and walked out

Colin Kennedy and other crofting commissioners at Brora before he ended the meeting and walked out

Craig Anderson pointed out:-

I contacted Mr Kennedy at his home on the Island of Coll by phone earlier today and he told me he had no plans to resign but would make no further comment.

But the implication of the intervention by Nicola Sturgeon is clear: either he jumps or he will be pushed.

Tavish Scott MSP speaks to BBC Reporting Scotland about the crisis at the Crofting Commission

Tavish Scott MSP said:-

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.

Crofting Community - affect on Crofting Coimmission crisis

Craig Anderson asked:-

But does any of this really matter to the people who actually live and work in our crofting communities?

Brian Inkster, Crofting Lawyer

Brian Inkster – Crofting Lawyer

Brian Inkster responded:-

People being removed from office unfairly and unjustifiably has a huge affect on small communities. Allegations made about people that have not been proven to be correct. It has split/divided communities, caused lots of problems.

Craig Anderson rounded the news item off:-

There is a saying that a croft is a piece of land surrounded by legislation. It’s an old joke, but never was a truer word spoken in jest.

Image Credits: Reporting Scotland © BBC

First Minister answers questions on “intolerable” Convener

The First Minister, Nicola Sturgeon MSP, answers questions on the turmoil at the Crofting Commission

The First Minister, Nicola Sturgeon MSP, answers questions from Tavish Scott MSP on the turmoil at the Crofting Commission

At First Minister’s Question Time in the Scottish Parliament today Tavish Scott MSP questioned the First Minister, Nicola Sturgeon MSP, over what could possibly be dubbed Broragate.

Tavish Scott asked:-

Is the First Minister aware of the turmoil in the Crofting Commission caused by the intolerable behaviour of the current convener?

Does she know that other commissioners have asked for his resignation and that the previous Chief Executive, Catriona Maclean, left because of the convener’s behaviour and the pressure that is being placed on commission staff?

In those circumstances will she and her rural secretary now take action to make the commission work for crofters across the crofting counties without the disruptive presence of the convener?

Tavish Scott MSP asks the First Minister questions on the turmoile at the Crofting Commission

Tavish Scott MSP asking the First Minister questions on the turmoil at the Crofting Commission

First Minister Nicola Sturgeon answered:-

Well Tavish Scott raises a very important issue.

The Cabinet Secretary for the Rural Economy has already welcomed the apology from the board of the Crofting Commission but it is disappointing that the convener was not a party to that apology.

It is important that we get to the stage of being able to draw a line under recent events.

The resources spent on dealing with these issues by the  commission would in my view be far better used in being an effective regulator in contributing to a sustainable future for crofting.

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, and I can assure Tavish Scott that the Cabinet Secretary continues to monitor the situation very closely and would be very happy to discuss it further with Tavish Scott.

You can watch this exchange between Tavish Scott and the First Minister on YouTube at about 24:42 in:-

Crofting Farce

Crofting FarceIt is exactly one week since the Convener of the Crofting Commission, Colin Kennedy, walked out on a Board meeting at Brora Golf Club. The remaining Commissioners who convened a Special Meeting in his absence called on his resignation.

The Scottish Crofting Federation have expressed bewilderment that Mr Kennedy is still in place despite it being clear that he now stands alone. They have referred to his position as a farce that is getting in the way of important business.

Russell Smith, Vice-chair of the Scottish Crofting Federation said:-

The Crofting Commission board meeting last week was certainly an eye-opener. It quickly became apparent that the Convener had lost the support of his board and it came as no surprise that he left the meeting with his tail between his legs. What is astounding though is that he still has not resigned. What does it take for him to get the message?

At the Board meeting of the Crofting Commission, held in Brora last week, observers were treated to a bizarre display involving the Convener, Colin Kennedy, attempting to force his will on the rest of the board and officials. Failing in this he closed the meeting without any business being conducted and left. The meeting was re-convened with vice-convener Iain George MacDonald in the chair and normal business was resumed. Mr MacDonald issued a full and open apology for the recent debacle involving the Commission’s handling of common grazing committees.

The apology is very welcome and shows the other Commissioners do have integrity. However, the apology should have come from Mr Kennedy, along with his resignation speech, both because he is the spokesman for the Commissioners and because he has been the chief antagonist in the whole affair. Mr Kennedy has been very destructive for crofting and for the Commission, and it is time to put an end to this sorry episode.

There is much to be done in crofting development and in rural issues, especially with the uncertainty over the effect of the European referendum. Mr Kennedy is standing alone now, his position is a farce and he is getting in the way of important business. It is time for the Commission, as a body, to have him removed.

Image Credit: Farce of Nature © Aleks Ortynski

Kennedy refuses to adhere to the law

Colin Kennedy will not bow to the Scottish Government

Colin Kennedy wouldn’t comment to BBC Alba as he left the meeting at Brora Golf Club yesterday. However he decided to express his views today via The Herald.

The Herald scooped a highly unusual exclusive. They managed to get a statement from Colin Kennedy, Convener of the Crofting Commission.

Normally Colin Kennedy avoids giving statements on behalf of the Crofting Commission allowing others to do that for him. Today he gave The Herald a personal statement following calls by his fellow commissioners yesterday for him to resign after he walked out of the board meeting at Brora Golf Club.

He told The Herald:-

I have not resigned. My health has suffered in the recent weeks having been put under ridiculous pressure by the Scottish Government minister responsible, and his cohorts. They want me to sweep matters of crofting law under the carpet, because they are inconvenient politically. I refused to do that.

Has Mr Kennedy considered the health of those who have suffered from unfairly being removed from office as grazings committee members?

Mr Kennedy, in my view, seriously misinterpreted the law. He appears to have gone against advice provided to him by officials. I have asked the Crofting Commission on a number of occasions to justify the actions taken by them with reference to statutory provisions and/or case law. They have failed to do so. The best they can do is to say that a decision taken by them is a final one and cannot be revisited by them. That is to say they can, in effect, make illegal decisions and then don’t need to justify them or revisit them.

Numerous posts on this blog give reasoned legal argument as to why Mr Kennedy got it wrong. He has not, even through the pages of The Herald, sought to put forward a reasoned contrary view.

The Scottish Government has clearly taken their own legal advice on the matter and they disagree with Mr Kennedy’s view. They are his superiors and he should be accepting their direction.

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 can’t sweep Section 1(3) under the carpet and refuse to do as directed. By doing so he is flouting crofting law and flouting the will of Parliament.

Does that in itself make Mr Kennedy “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”? [Paragraph 9(1)(e) of Schedule 1 of the 1993 Act]

Brian Inkster

Image Credit: Colin Kennedy leaving the meeting at Brora Golf Club © BBC Alba