Category Archives: Common Grazings

The Cross-Party Elephant?

6 Replies
The elephant in the crofting cross-party room

Was there an elephant in the room at the crofting cross-party group meeting?

The cross-party group on crofting met last Wednesday at Holyrood.

It was very ably chaired by Tavish Scott MSP. He is one of the three co-conveners of the group, having been elected along with Kate Forbes MSP at the last meeting to replace Michael Russell MSP after Mr Russell became Brexit Minister. Rhoda Grant MSP is the third co-convener of the group.

Fergus Ewing MSP, cabinet secretary with responsibility for crofting, was a special guest at the meeting.

Mr Ewing made it clear at the outset that he couldn’t comment in any respect on the current controversy regarding the convener of the Crofting Commission given the allegations made by him against Mr Ewing which are the subject of an independent investigation.

Mr Ewing outlined all that the Scottish Government is currently doing to assist crofting and its future.

In particular he discussed future crofting law reform. The Scottish Government wants to modernise crofting law and make it transparent, understandable and workable in practice. Mr Ewing made it clear that they very much wanted to listen with no precise timetable in mind.

Mr Ewing stressed the importance of taking time to get it right. I couldn’t endorse that view more and trust that we won’t see the chaos of a huge number of last minute amendments that was encountered in creating the Crofting Reform (Scotland) Bill in 2010. That was possibly partly responsible for many of the issues (not common grazings ones that were not affected by the 2010 legislation) that has led to the current Scottish Government having to tackle crofting law reform so soon again.

After Mr Ewing left the meeting we continued with the topic of crofting law reform. Derek Flyn outlined the background to the crofting law sump report which he described as a “collection of what is wrong with crofting law”.

Michael O’Neil, the newly appointed Head of the Scottish Government Legislation Team, then outlined proposals to take crofting law reform forward.

Mr O’Neil indicated his intention to involve as wide a range of stakeholders as possible. He will get out and about and meet anyone he needs to speak with.

He will refer to the information contained in the crofting law sump and in the Shucksmith Report.

Some questions Mr O’Neil had in mind included:-

  • Why do we need crofting legislation?
  • What changes need to be made to it?
  • How do we go about delivering the changes identified?
  • Are there other options to new legislation?

A small team has been assembled by the Scottish Government to take crofting law reform forward.

It will be interesting to see this process move forward and we will keep you posted on the Crofting Law Blog as it does.

Bill Barron, the new Chief Executive of the Crofting Commission, was attending his first cross party group meeting. On the agenda was an “update on grazing committee removals and other current Crofting Commission business”. He appeared to dodge being able to provide that update on the basis that it was his fifth day in the job.

However, sitting next to him was the Convener of the Crofting Commission, Colin Kennedy. Mr Kennedy did not offer an update on grazing committee removals and other current Crofting Commission business. Indeed, other than to introduce himself as all attendees did at the outset, Mr Kennedy sat silent throughout the entire meeting. He didn’t speak and no one asked him to speak.

This was, of course, the first crofting cross-party group meeting that Mr Kennedy has attended in this session of Parliament, having avoided the last two. He has thus not expressed the views of the Crofting Commission to the cross-party group since this session of Parliament commenced.

Mr Kennedy has, however, been very vocal in expressing his own personal views (which don’t necessarily coincide with those of the board of the Crofting Commission) in the media over the past few weeks including, in particular, in four successive editions of the Scottish Farmer.

His presence at last week’s cross party group meeting was referred to by some as the elephant in the room. But can the situation simply be ignored?

Brian Inkster

The end game?

3 Replies
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

Crofting Law whilst in Milan

3 Replies
Crofting Law whilst in Milan

The dome in the Galleria Vittorio Emanuele II, Milan, Italy

It is over a week since my last blog post. Not because it has been quiet in the world of crofting law but because I’ve been away in Milan. I didn’t quite escape crofting law whilst there as I had a meeting where a translator turned my crofting law advice into Italian. I hope nothing was lost in translation. Not sure what the Italian is for souming!

Last time I was away from the UK I commented that there was ‘no let up on the common grazings crisis whilst on holiday‘. Much the same this time around. Especially due to the fact that the ‘twa Colins’ (as they have become known in the comments section of this blog) are, somewhat incredulously, still in post.

Colin Souter, the Grazings ‘Constable‘ of Upper Coll, still seems to hold that ‘position’ despite the Crofting Commission announcing over three weeks ago that he would be stepping down “as soon as possible“. Why has he not stepped down or been stepped down?

Colin Souter has been uncharacteristically quiet during that period. Whereas Colin Kennedy, Convener of the Crofting Commission, has been uncharacteristically vocal. My last blog post looked at his  crofting ‘crusade‘ as revealed in The Scottish Farmer. A week later and The Scottish Farmer have published a letter from Colin Kennedy which starts with an attack on the Scottish Crofting Federation, rambles on a bit and is cryptic in places but seems to be blaming the  former Chief Executive of the Crofting Commission, Catriona Maclean, for everything that everyone else has been blaming him for. I will look at that, and the further breaches of the code of conduct by Mr Kennedy arising therefrom, in a future blog post.

Kennedy is the renegade commissioner who is breaking almost all, if not every, ethical standard expected of public office holders. The Editor of the West Highland Free Press wondered a couple of weeks ago how Kennedy had still not received his P45. Patrick Krause, Chief Executive of the Scottish Crofting Federation, writing in the Press & Journal around the same time expected this “Ozymandias with delusions of grandeur” to have been toppled by now.

The First Minister, Nicola Sturgeon, referred to Kennedy’s behaviour as “disappointing” and hinted at the powers the Scottish Ministers had to remove him. Since then he has gone on a personal tirade against those very ministers, his commissioner colleagues and commission staff. How has he been allowed to go on like this? Who is in control? What message does this send out to crofters and the general electorate? Where and how will it all end?

I referred earlier to “former” Chief Executive, Catriona Maclean, because her replacement on an interim basis, Bill Barron, started work at Great Glen House on Monday. I will also look at that in more detail in a future blog post.

However, how can this new interim Chief Executive be expected to effectively operate an organisation where the Convener has gone renegade? Where that convener does not have the support of the other commissioners, the Scottish Ministers, any of the crofting representative bodies or the vast majority of crofters? Could the role be any more of a poisoned chalice?

What else happened over the past week? Well:-

  • The closing date came and went for applications for the two appointed Crofting Commissioner posts.
  • Top search terms leading people to this blog were “Colin Kennedy Crofting Commission” and “the Marquis & Marchioness of Stafford”. I have previously drawn comparisons.
  • Comments on the blog took on a Star Trek theme making a change from Star Wars analogies. The Dark Side have become the Klingons it would appear 😉
  • Revelations of baboon-a-grams being advertised on the Isle of Coll emerged. We are searching the News of the World archives for more on this story which just might eclipse the Convener’s Throne for amusement value.
  • It would appear that back issues of the News of the World, Press & Journal and Oban Times also hold other interesting stories about the Isle of Coll. We will see what our research turns up.
  • Crofting road shows will be taking place to inform crofters about the Crofting Commission  elections and other crofting issues.
  • The Rural Economy and Connectivity Committee has launched a call for written evidence to help inform its short, focussed review of priorities for crofting law reform.
  • Crofting Election Regulations have been put before the Scottish Parliament but these make no changes, as previously mooted, to the six constituency boundaries.

A week is clearly a long time in crofting law!

More detail on some of these stories  will appear in future blog posts. Do subscribe to this blog by inserting your e-mail address in the box in the top right of this page and press ‘Subscribe’. You will then receive the latest blog posts directly into your mail box as soon as they are published. You don’t want to miss that baboon-a-gram story 😉

Brian Inkster

Colin Kennedy and the Holy Grail

29 Replies

i-am-your-kingThe Scottish Farmer today gives space for Colin Kennedy, Convener of the Crofting Commission, to tell them about his “crofting crusade!”. This follows hot on the heals of a huge press offensive on his part over the past week with appearances/articles in Sunday Politics Scotland, The Oban Times and BBC Radio Highlands & Islands.

The story is the same: He is right and everyone else is wrong.

He has again stressed that his sole motivation is:-

to uphold crofting law, and defend the statutory rights of ordinary crofters

It has been shown that this is very much his own interpretation of crofting law and not one supported by the Scottish Government or by his fellow commissioners.

He has, however, again rounded on the Scottish Government and the cabinet secretary responsible for crofting, Fergus Ewing MSP, with The Scottish Farmer reporting Mr Kennedy as:-

bluntly accusing him [Mr Ewing] of perpetrating a cover-up of ScotGov’s historic role in a quagmire of maladministration.

He labours on about his views on the illegalities of common grazings obtaining SRDP funding which, as has been pointed out many times before, is not any business of the crofting regulator but a matter for the Scottish Government, the EU and crofters.

Mr Kennedy claims that:-

The commission has taken legal advice from Sir Crispin Agnew QC and it is my understanding that a grazing committee does not merit claiming subsidies, as only individual shareholders with grazing rights are eligible, provided that they comply with the provisions of the legislation for such activity.

Does Mr Kennedy have the approval of the Board of the Crofting Commission to discuss in public this legal advice obtained by the Commission? If not he is breaking that code of conduct again that he was keen to discuss on BBC Radio Highlands & Islands. This is, of course, true in relation to much that he has said over the past week.

Obtaining such a legal opinion was probably outwith the remit of the Crofting Commission in any event. It is understood that Mr Kennedy was instrumental in having it obtained. It is further understood that whilst the Board may have considered this legal opinion when produced they did not use it as a base for any decisions made.

The Scottish Government stated that it “wholly disagrees” with the views on SRDP funding held by Mr Kennedy. This would appear to include the legal opinion that he still clings to.

Those views, like his ones on VAT registration, were potentially all about depriving crofters of funding and had nothing to do with upholding crofting law and defending the statutory rights of ordinary crofters.

well-i-didnt-vote-for-you

Mr Kennedy again showed the huge divide between himself and the Crofting Commission Board and the fact that he was not in fact supporting decisions taken by the Board such as accepting the Government’s position on SRDP and disbursement of funds.

Mr Kennedy proceeded, in his interview with The Scottish Farmer, to attack the former Upper Coll Grazings Committee stating that they:-

have a lot to answer on behalf of shareholders.

Again this is completely at odds with the position taken by the Scottish Government and the Board of the Crofting Commission who have issued an apology to the grazings committee in question.

Mr Kennedy’s position in such circumstances is completely untenable.

mandate-from-the-masses

On the subject of Colin Souter, the grazings ‘constable’ at Upper Coll, Mr Kennedy denies any involvement in his appointment or that he is “his man“. He points the finger on Chief Executive, Catriona Maclean, for the appointment “without reference to the agreed board process“.

However, Freedom of Information requests reveal evidence that Mr Kennedy’s version of events may be one painted through rose tinted glasses. His memory again may not be serving him well.

A document produced by the Crofting Commission states:-

Following the Board meeting on 9th May the Convener, Vice Convener, and CEO met by phone to agree who should be appoint4ed [sic] to the post of Grazings constable in the Upper Coll Common Grazings.

So Mr Kennedy was very involved in the selection process.

The selection committee considered four potential candidates for the job and concluded that:-

Mr Souter has experience in working with crofters and grazings committe4ss [sic] through his time in the Police. An ex-chief inspector and force negotiator who comes from south Usit [sic] Mr Souter has both the skills and experience to deal with this matter and therefore he was selected to be appointed constable.

So Mr Kennedy was in fact party to and appointed Mr Souter to the post in question.

There is also evidence of direct communication between Mr Souter and Mr Kennedy. For example an e-mail from the former to the latter on 24 May 2016 which reads:-

Hi Colin

In looking to progress a meeting with the shareholders at Upper Coll, in the near future, I wanted to ensure the venue was appropriate and given you’ve been out there, I wondered if you had an idea on the best venue option and perhaps a secondary one, if circumstances require?

Kind Regards

Colin

Colin Souter

No evidence was produced from the Freedom of Information request as to whether or not recommendations were given by Mr Kennedy to Mr Souter on the comfort of the chairs at possible venues in Upper Coll. But this exchange does prove that there was indeed direct communication between the two as previously suggested on this blog.

Furthermore Mr Kennedy was taking a direct interest in matters by requesting to see minutes of meetings held by Mr Souter at Upper Coll, all as disclosed from information obtained through Freedom of Information.

Mr Kennedy in discussion with The Scottish Farmer refers to the whole grazings committee issue being “a can of worms” but stressed that to his knowledge it was only a problem specifically on Lewis. He is reported as having “quipped“:-

as previously stated in the board room things are often done differently in Lewis.

What about in Lochaber? Has Mr Kennedy also forgotten about the grazings committee he and his fellow commissioners put out of office there? Has he forgotten about how instrumental he was in ensuring the appointment of a grazings ‘constable’ there who would do his bidding?

It has, however, been commented on before that Lewis appeared to be a particular target for the convener. It is unclear why. But perhaps that will eventually come out in the wash.

Mr Kennedy is quoted by The Scottish Farmer as saying:-

But now I’ve put my head on the block in trying to get to grips with the truth. I know people are queuing up to get me out but I am not letting this rest. I’m not going to jump, so I will probably be pushed. If that happens my solicitor is standing by.

That solicitor will have a difficult hill to climb. The evidence seems to me to be firmly stacked against Mr Kennedy and has been since my first blog post on ‘The Common Clearances‘. Subsequent events and revelations from Freedom of Information requests has just fortified that position.

im-invincible

Mr Kennedy’s version of events, as given to the press this past week, appears to show a selective memory with many gaps to fill. I and others who post comments attempt to fill those as best we can on this blog.

Mr Kennedy, like Mr Souter, appears to be searching for a justification for his discredited actions. I doubt that he will ever find it.

Brian Inkster

Image Credits: Monty Python and the Holy Grail © Python (Monty) Pictures

Bad penny?

Leave a Reply

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

7 Replies
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):-

Brian Inkster

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

Leave a Reply

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

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

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

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

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

Paragraph 21 of this Framework Document states:-

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

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

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

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

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

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

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

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

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

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

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

Section 1(3) of the Crofters (Scotland) Act 1993 states:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brian Inkster

An elective despotism is not the Crofting Commission we fought for

3 Replies

An elective depotisim is not the Crofting Commission we fought forThomas Jefferson said:

An elective despotism is not the government we fought for.

This week the Scottish Crofting Federation called the Convener of the Crofting Commission, Colin Kennedy, a deluded despot. Perhaps they are now thinking that an elective despotism is not the Crofting Commission they fought for.

An elected Crofting Commission (6 out of the 9 commissioners – with the other 3 being appointed) was introduced by the Crofting Reform (Scotland) Act 2010. The Scottish Crofting Federation supported this move. Before that all commissioners of the Crofters Commission were appointed.

At the time the then environment minister, Stewart Stevenson, said:-

The Scottish government wants to give crofters a voice to determine their own future and these first ever Crofting Commission elections is a solid step down that road.

The Scottish government believes crofts that are occupied and worked can be the biggest contribution to the sustainable economic growth and development of our crofting communities. Having an effective regulator is a vital part of achieving that aim.

The first Convener of the new Crofting Commission was Susan Walker who was appointed by the Scottish Government. At the time some thought that process should have been delegated to the commissioners themselves.

Patrick Krause, Chief Executive of the Scottish Crofting Federation, said:-

Clearly the minister doesn’t have enough confidence in the commission to allow them to choose their own convener.

Elsewhere we have heard of the spread of democracy through the Arab Spring.

Is it not time to allow democracy to apply in crofting and to have a Crofting Spring where the commission can be allowed to make its own decisions?

Tavish Scott, Shetland Liberal Democrat MSP, said:-

This is a terrible decision and is consistent with the command and control being exercised by the SNP government on a whole range of issues.

They won’t make an appointment unless they are sure the person passes the Saltire underpants test.

Why do they not trust the people who have been elected by the crofters to make the decision?

Mary Scanlon, Highlands and Islands Conservative MSP, said:-

Given that this was the first time that commissioners were chosen with a mandate from their own communities, it seems high-handed of the minister to appoint the convener himself.

If the nine commissioners were allowed to choose from among their own number the convener would have the confidence and respect of the others. That might not be the case if the appointment is made by the minister.

Rhoda Grant, Highlands and Islands Labour MSP, said:-

To choose the convener in this way, weights the process towards the three commissioners already chosen through the public appointments system.

The minister should allow the commission to choose its own convener.

Alasdair Allan, Western Isles SNP MSP, said:-

There must be a tie between the commission and the minister because it is a public body.

The minister has a choice among all the members.

If the six members chosen by the crofters are unhappy with what the government or the commission is doing they will not be slow to say that.

There is a majority of crofters’ representatives so it is not true to say that this is an attempt to control the commission.

Some commissioners were not too slow to show that they were unhappy and organised a coup against the incumbent convener. They then insisted that they should elect the new one. The minister responsible for crofting at the time, Aileen McLeod, allowed them to do so and Colin Kennedy was duly elected.

The result has been clear for all to see. It could not have been foreseen by the representative bodies and MSPs who called for this democratic process at the outset. In light of what has happened a future crofting minister might think twice about allowing commissioners to choose a convener themselves.

Fergus Ewing MSP, cabinet secretary responsible for crofting, has instituted a governance review of the Crofting Commission. Whatever the outcome of that review it should at least attempt to avoid despotism ever appearing again within the Crofting Commission.

Brian Inkster

Crofting Federation call on the Commission’s Convener to be ousted

Leave a Reply

Scottish Crofting Federation call on Crofting Commission Convener Colin Kennedy to be oustedOn the back of assertions by Colin Kennedy in the press and on TV that he has no intention of resigning as Convener of the Crofting Commission the Scottish Crofting Federation has called on the Cabinet Secretary for crofting, Fergus Ewing, to oust him. First Minister, Nicola Sturgeon, hinted at their ability to do so at last week’s First Minister’s Question Time. The BBC suggested if he didn’t jump he would be pushed.

Fiona Mandeville, Chair of the Scottish Crofting Federation, said:-

This dreadful humiliation of crofting regulation and complete waste of public money has got to stop.

In his latest statements to the media, Mr Kennedy has said that he intends to stay in place as Convener of the Crofting Commission. He still refutes any wrong doing and claims to have operated within the law, despite the fact that lawyers and the Cabinet Secretary for crofting, who is himself from a legal background, have said he is wrong. That is some arrogance.

To top this Mr Kennedy said on the BBC that he had no knowledge of the fact that his fellow Commissioners have no confidence in him. He must be the only person in Scotland who hasn’t heard that last week the Commissioners unanimously agreed that Mr Kennedy should stand down, following his petulant abandonment of their board meeting. This joins the widespread calls from the Scottish Crofting Federation, crofters and politicians for Mr Kennedy to go. He’s now a laughing stock if it weren’t so serious a situation. He is a lonely figure with his head stuck firmly in the sand.

How much is this whole affair costing the public purse? The resources being used trying to clean up after Mr Kennedy’s bungling must be astronomical. We have the existential crisis of Brexit staring us in the face and the fundamental weaknesses in the whole regulatory framework, yet a phenomenal amount of everyone’s time and energy is being expended on this one deluded despot.

The Cabinet Secretary must end this farce and restore some normality in crofting by demanding Mr Kennedy’s resignation forthwith. It is within his power to do so. Mr Ewing has the support of the Crofting Commissioners, the public, MSPs and the First Minister. If it just takes all the parties to formally give their support, we urge them to make this clear. Crofting is too important to the Highlands and Islands to let this man run rough-shod over the lives of decent people any longer.

Image Credit: Lord Sugar says “You’re fired” on The Apprentice © BBC

Has the Convener lost his memory?

3 Replies

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