Monthly Archives: December 2016

Pantomime, Farce or Tragedy?

He’s right in front of you!

As news of the goings on at the Crofting Commission’s Board meeting on 14 December 2016 filtered out views thereon played out on Twitter:-

It is getting more farcical every day..on par with the average Christmas Pantomine..@CroftingLaw @CroftingScot https://t.co/pgcovgUdpz

— Linda Brackenbury (@Linda_60_B) December 14, 2016

@Linda_60_B @CroftingLaw @CroftingScot and we all know who the baddy is. Boo Hiss. Can the Christmas Fairy please turn him into a turnip?

— Crabbit Crofter (@CrabbitCrofter) December 14, 2016

@CroftingLaw @DuncMacL At this rate will run longer than The Mousetrap!

— Alex O’Henley (@OHenleyAlex) December 14, 2016

@OHenleyAlex @CroftingLaw @CroftingScot And “to a Louse”?

— Dunc Mac (@DuncMacL) December 14, 2016

@OHenleyAlex @simon_brooke @DuncMacL @CroftingLaw only not nearly so much fun! More of a tragedy in many parts. A tragedy for crofting

— Crabbit Crofter (@CrabbitCrofter) December 14, 2016

Image Credit: Dick Whittington © Hackney Empire

Crofting chaos escalates

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Despite 101 blog posts highlighting the crisis within the Crofting Commission, a review being commissioned by the Scottish Government into their governance and countless calls from all quarters for the current Convener, Colin Kennedy, to step down the chaos within the Crofting Commission just seems to get worse by the day.

Before Christmas it truly escalated with the Convener calling a secret meeting of commissioners in an attempt to purportedly overturn the decisions taken at Brora, including the call for him to resign. He failed. Things did not go well for him either, a few days later, at the scheduled meeting of the board on 14 December. That board meeting was covered by BBC Alba and we reproduce here their full report:-

Iain Maclean (presenter) highlighted the matter at the outset of the evening news headlines:-

This evening, more chaos and controversy surrounding the Crofting Commission as two officials refuse to attend a board meeting, they say that they cannot work with the current board. Three co conveners, have asked the Scottish Parliament for an intervention in relation to Colin Kennedy.

Tavish Scott MSP was interviewed stating that:-

The Crofting Commission has failed now to work for crofters, it’s now a mess, it’s now working in an extraordinary manner, involving people leaving the room and not working with the current Chairman.

Then when it came to the full report the presenter, Iain Maclean, stated:-

We start tonight with more absolute crofter chaos, after two officials have refused to attend meetings. They maintain that they cannot possibly work with the current board. This follows from the events that unfolded at the last meeting in Brora. Let us look at today’s meeting in Inverness with Donald Lamont.

BBC Alba - Commission Chaos - 141216 - Colin Kennedy, Convener

Colin Kennedy, Convener of the Crofting Commission, was reportedly looking “very uncomfortable” at the board meeting in Inverness on 14 December 2016

Donald Lamont, reporting from Inverness, told us:-

Everything seemed very wrong at today’s meeting in Inverness, first of all it was obvious that not everyone was present. Two officials refused to attend and were not present. This suggests that things are coming to a head for Colin Kennedy, who looked very uncomfortable today.

Bill Barron. Interim Chief Executive of the Crofting Commission, was then interviewed. He said:-

It’s very regrettable to me that two of my staff didn’t feel comfortable coming to the meeting. That’s because, one commissioner has made various allegations, criticisms, about what they have done in recent months. They find that unacceptable and I’m supporting their position on that.

Donald Lamont continued:-

One can understand with this news, some of the commissioners are very angry, David Campbell being one of them.

Footage was then shown of the meeting itself with David Campbell saying to the board:-

This is extremely disturbing, extremely disturbing, the most disturbing thing I’ve come across in my time on this board… that two members of staff, by the sounds of what you said there, feel unable to be present here and by your description are unable to work with this board directly in a public forum… that gives me grave, grave concerns.

Donald Lamont went on to say:-

Few of the commissioners still support Kennedy, but things are far from right amongst the board. With the Commission’s own situation, it is obvious that the crofters themselves are no longer the priority.

Then back to Bill Barron who elaborated:-

On Friday we accepted that it was one continuous meeting in two valid parts. What happened today was that we approved the vast majority of the minutes of that meeting. There are two issues still to be ironed out on that. We also noted that there are some doubts about the way the piece of business that led to the motion against the convener, the way that was called, but the commission decided to take no particular further action on that.

Iain Maclean (presenter) then came back on air to say:-

We now go to Holyrood to our political correspondent Niall O’Gallagher.

Niall O’Gallagher, reporting from Holyrood, advised:-

They have now moved their business from the Highlands to Edinburgh in relation to the Kennedy situation. We had three political figures from Labour, SNP and the Lib Dems come together to say that, the minister concerned, Fergus Ewing, needs to remove Colin Kennedy from the Commission to move forward. Talking to us is Lib Dem, Tavish Scott.

Tavish Scott MSP said:-

The Crofters Commission cannot carry on with the chairman it’s currently got, and the dysfunctional nature of the organisation where the senior staff meant to work together for the crofters are instead fighting like ferrets in a sack. This has got to change. The minister would have my full support if he now steps in, makes the changes that need to happen, including getting rid of the current chairman, and getting the organisation back to doing what it’s meant to do and that is serving the crofters.

Niall O’Gallagher then continued:-

Other than questions and concerns about the people involved in the Commission at the moment, there is also questions about the work that they actually do. The opinion many have of the Commission is not a good one, they are not seen to be working to help the crofters who should be their prime concern. Talking to us from the SNP is Kate Forbes.

Kate Forbes MSP said:-

We need to do something. Next year will be a very important year, they will have elections. We need to change the situation now!

Presenter, Iain Maclean, returned:-

Thank you Kate, now back to Niall at Holyrood. What is happening at parliament this evening?

Niall O’Gallagher then rounded matters off from Holyrood:-

We didn’t get a chance to speak to Fergus Ewing tonight. The parliament’s view is that they don’t want anyone with bad intentions within the Commission. We managed to have a few words with Alasdair Allan. Talking on behalf of the government he said that there would be an opportunity to pick new commissioners but that it was not for Holyrood to make any quick impulse decisions.

It was also reported online on BBC Naidheachdan that Professor Donald Meek from Tiree, who attended the meeting at Holyrood, had said that all the uncertainty was doing great harm. He is quoted as saying:-

What I realised this evening, was that I was very familiar with the old Commission.

Whatever was happening with the old Commission, there was never any uncertainty about the Commission’s own situation.

The Commission was somewhat subtle, stable, and although you were now and again not in agreement with the Commission, the Commission was still a guiding stone for crofting affairs.

That is not true now at all, ever since the uncertainty arose in relation to those leading, those who shouldn’t even be there, so on and so forth.

View from the Crofting Law Blog

It is clear (if it was not already) that all is not well at Great Glen House. Now senior employees of the Crofting Commission are refusing to attend board meetings purportedly due to issues involving the Convener.

Despite attempts by the Convener to reverse or nullify the decisions taken by the board at Brora he has failed to do so.

Indeed Bill Barron, Interim Chief Executive to the Crofting Commission, clarified to the Cross Party Group on Crofting at Holyrood, that six commissioners had asked the Convener to stand down at the Brora meeting and have not recanted on that. The Convener has chosen not to.

Thus the call from all six commissioners, who met after the Convener walked out of the board meeting at Brora, for the Convener to resign still stands.

We now also have it reiterated by MSPs from the SNP, Scottish Labour and Scottish Liberal Democrats that they believe that the Convener should go.

Yet the Convener remains defiantly in place, apparently pending hell freezing over.

Investigations concerning a complaint made by the Convener against Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, appear to still be ongoing. The Scottish Ministers have, it would seem, been paralysed from taking any action concerning the position of convener pending the outcome of those investigations, despite the fact that it remains within their power to do so.

Perhaps the New Year will see this mess unravel and be properly sorted in the way I suggested it should have been back in April 2016. Eight months is hardy a period that would allow Scottish Ministers to be accused of making “quick impulse decisions” as Alasdair Allan MSP suggested might be the case to BBC Alba!

Meantime crofters suffer from a Crofting Commission that cannot, it would appear, be properly regulated itself let alone effectively regulate crofting.

Brian Inkster

Image Credits: © BBC Alba

Gaelic credit: Thanks to Vicki Folan of Inksters for translating the BBC Alba coverage from Gaelic to English

The Crofting Commission has become a three-ring circus

101 blog posts on ‘The Common Clearances’

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101 Blog Posts on 'The Commom Clearances'

For some ‘The Common Clearances’ have been the equivalent of being sent to Room 101. Many have suggested who should be sent to room 101!

When I published a post on here back in April 2016 on alleged abuse of power within the Crofting Commission I did not think for one minute it would spawn 100 further blog posts all linked to the same issue and in effect stemming from what has been dubbed ‘The Common Clearances‘. Here is a handy index to the first 101 posts. Perhaps I should have called this blog post ‘101 reasons why the Crofting Commission is not fit for purpose’ 😉 More such posts will undoubtedly follow! At least 9 are currently pending.

Image Credit: 1984: © Virgin Films

Secret meeting declares Brora meeting valid

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Crofting Commission 'secret' Special Meeting

Crofting Commissioners meet to debate legality of their previous meeting

In my last post I considered the background to the ‘secret’ special meeting of the Crofting Commission that was to be held in Inverness this morning. It had been requested by the Convener of the Crofting Commission, Colin Kennedy, purportedly to seek to overturn the decisions taken after he walked out of the Brora meeting.

Mr Kennedy has maintained in statements to the media that the Brora meeting was ultra vires (illegal). It is assumed that he was to argue this at the special meeting called by him this morning even although I pointed out yesterday that it would be a clear conflict of interest for him to participate in any decision making process in this regard.

It was reported by the BBC that at the start of the meeting commissioner David Campbell (West Highlands) made a motion for the meeting to be held in public for the purposes of natural justice, accountability and transparency to the ordinary crofter.

However, none of the other commissioners in the room (who are all crofters) were willing to second this motion. Thus the meeting proceeded in secret and out of honourable principle Mr Campbell departed the meeting at the same time as the press and public were excluded.

David Campbell departs the meeting as it was being held in private rather than public

Commissioner Murdo Maclennan (Western Isles) did not attend the meeting. It was reported by the BBC that this was due to a threat of legal action against the Commission/Commissioners by the Convener.

Thus the secret ‘cabal’ consisted of:-

Colin Kennedy (Convener) – South West Highlands
Ian George Macdonald (Vice-convener) – West Highlands
Kathleen Sinclair – Shetland
Arnold Pirie – Caithness and Orkney
Marina Dennis – East Highlands

However, at the end of the day (after a 6 hour meeting) the Convener didn’t appear to get his way.

Bill Barron confirms that the Brora Meeting was valid

The official statement issued by Interim Chief Executive Bill Barron to the BBC after the meeting stated:-

At the request of the Convener, the interim CEO called a special meeting of the Crofting Commission on Friday 9 December 2016.

The Commissioners present reaffirmed the importance of working together effectively in the final months of their terms.

The Board also discussed the status of the meeting held in Brora in September and how to move forward.

The Board decided that there was one meeting in Brora which took place in two valid parts, the meeting previously referred to as a special meeting being a continuation of the scheduled Board meeting.

Any consequences from this will be considered at their Board meeting on Wednesday 14 December 2016.

So six hours to decide that the two meetings in Brora (one with the Convener present and one without him after he walked out) were in fact one meeting held in two parts. It is assumed that legal advice had been sought on this (the Commission’s lawyer was evident in the film of the meeting shown on BBC Alba tonight) and that such advice conflicted with the Convener’s own interpretation which may well have been ingenious but flawed.

So there we have it: The Convener’s publicly stated position on the Brora meeting has been wrong from the outset. But will he now accept that?

The official statement says that any consequences from this will be considered at the Board meeting on Wednesday. Surely there are no consequences as such if the meeting was a legally held one. Is it not just a case of approving the minutes and moving on? Or are the consequences linked to the Convener’s stance on the meeting being ultra vires? After all in terms of the Standing Orders [PDF]:-

Once a decision has been reached, all members have a corporate responsibility to recognise and accept the decision as that of the Crofting Commission. Corporate responsibility entails that members must adhere to and accept such a decision until it is otherwise altered.

We will no doubt find out on Wednesday!

Brian Inkster

Image Credits: © BBC Alba

A Crofting Cabal?

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Is there a cabal within the Crofting Commission?

It was revealed by the BBC yesterday morning that Colin Kennedy, Convener of the Crofting Commission, has requested a special meeting of the Crofting Commission to take place this coming Friday, 9 December 2016 (i.e. tomorrow).

The meeting is apparently to be held in private and concerns consideration of the decisions taken by the Commission at Brora after the Convener walked out of the scheduled Board meeting and a special meeting had to be called to enable Commission business to be transacted.

It is not clear but has been suggested that Colin Kennedy may be seeking to cancel or reverse the decisions taken by the Crofting Commission at Brora. He has previously stated his personal view that this meeting was ultra vires (illegal) .

I was asked by BBC Alba to comment on this development and did so in an interview that was broadcast on An Lá yesterday evening. This blog post will cover and expand upon the points I made to BBC Alba.

Ability to call a Special Meeting

In terms of the Standing Orders that govern the conduct of Crofting Commission meetings [PDF] the Convener has the right to call a special meeting.

Public Notice

Again in terms of the Standing Orders public notice of a meeting of the Commission will normally be given by posting a Notice on the Crofting Commission website at least 4 days before the meeting.

However, public notice is not required where a special meeting is convened to deal with a matter of a particular sensitive nature.

When the BBC revealed yesterday that this meeting was to be held on Friday no public notice had been given and there was less than 4 days to go before the meeting was to take place.

Did this mean that a matter of a particular sensitive nature was to be dealt with on Friday?

If so it must have been decided by the Board that the matter was of a particular sensitive nature as the Convener alone cannot decide that in terms of the Standing Orders.

However, at some point yesterday (after the BBC revealed what the Convener was up to) a public notice appeared on the Commission’s website intimating that a special meeting was taking place at 10am on Friday 9 December 2016 at the Glenmoriston Hotel, Inverness.

Presumably that meant that the matter to be discussed on Friday was not actually of a particular sensitive nature or that Board approval to it so being had either not been sought or had not been given. Having said that item number 3 of the Agenda [PDF] is the “exclusion of press and public”. So the meeting may still be held in private if the commissioners decide that is appropriate on Friday. Interestingly that Agenda does not tell us what the business to be discussed is other than simply stating “Business that requires special urgency“.

Should the meeting be held in private?

In terms of the Standing Orders:-

Members of the press and public are entitled to attend meetings of the Commission. However, the Commission may determine that matters of a confidential or sensitive nature should be considered without the press or the public in attendance.

If the special meeting is indeed being convened to discuss the legality of the Brora meeting then as that meeting was held in public surely this one should be too?

It is already a matter that is in the public domain and one that Colin Kennedy has been outspoken about publicly in the media. It is surely therefore in the public interest that any debate covering it should be held in public and not in secret.

There appears, on the face of it, to be nothing confidential being discussed and the only sensitivities involved are those that may affect the Convener himself. Therefore there appears no good reason for the Commission to exclude the press or the public from tomorrow’s meeting.

Declaration of Interest

The Standing Orders state:-

A member of the Commission, or any officer working on behalf of the Commission, who has a direct or indirect interest in a matter being considered at a meeting of the Commission or a committee of the Commission, must disclose the nature of the interest to the meeting.

Any attempt to reverse the decision of the Brora special meeting is a matter that the Convener clearly has a direct interest in. Thus he would have to declare that interest and not take part in the meeting. Indeed, on that basis, it is questionable whether a special meeting could be called by the Convener where he is conflicted in the subject matter at hand.

Any failure by the Convener to declare an interest tomorrow will surely be questionable in the extreme.

Can the decisions made at the Brora meeting be reversed?

During the Common Grazings crisis the line peddled continually by the Commission, and supported by the Convener, was that decisions taken by the Commission cannot be altered once made and the only recourse that anyone has to do so is through the courts. Thus if this is the case should he not, if he considers he has a legitimate right to do so, personally be pursuing matters through the courts rather than via secretly convened meetings?

It has not, however, stopped the Commission from rewriting its history before now.

I trust that the interim Chief Executive of the Crofting Commission, Bill Barron, will have chapter and verse on this area from the Commission’s legal advisers to present to commissioners before the meeting commences tomorrow.

Does the Convener have support from fellow commissioners?

It has been mooted for some time that there was a divided board with some members under the spell of the Convener and others less enchanted by him. The weight possibly swung in the Convener’s favour following the resignations of Susan Walker and William Swann. However, in his absence at the special meeting in Brora there was a unified front from all the commissioners that his behaviour warranted a call for him to resign.

Perhaps the former cabal (as some have called it) has been reformed and is prepared to do the Convener’s bidding on Friday regardless of the legalities, morals and ethics that may be involved.

The identity of the members of that cabal may also become clearer depending on how things pan out tomorrow.

The public purse

It has also been questioned whether it is in the public interest for a special meeting to be called just three working days before a scheduled board meeting. Surely any matter arising could be dealt with as an additional agenda item next Wednesday? Think of the cost of commissioners travelling to Inverness from as far afield as Shetland, Orkney, Lewis, Skye and Coll twice in one week for two meetings that could have easily been dealt with as one. Presumably officials based in Edinburgh will be doing the same.

Special meetings but not Board meetings

It should also be noted that when several commissioners could not apparently attend the last scheduled Board meeting it was postponed and a new date was “being arranged” and was to “be notified as soon as possible“. No such new date was ever arranged. But it seems that whilst the Commission could not arrange a new date for a major Board meeting they have no problem doing so for a questionable special meeting. Odd that.

Minutes of the Brora meeting

As a result of the last Board meeting not taking place the minutes of the Brora meeting have yet to be approved. That is scheduled to happen at the next Board meeting next Wednesday. Can a special meeting take place tomorrow to consider a meeting the minutes of which have yet to be approved? Surely any such meeting, if even competent, should happen only after and not before approval of the minutes?

Irony

It is also somewhat ironic that the legality of a special meeting is being called into question by a special meeting being convened that, unlike the Brora one, is highly questionable in itself.

The hole gets bigger

The governance of the Crofting Commission is currently under review by the Scottish Government. Antics such as these can only add fuel to the fire.

Brian Inkster

Image credit: ‘There is no cabal on Wikipedia‘ by Rama, Wikimedia Commons, Cc-by-sa-2.0-fr

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