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taken by the Crofting Commission to remove grazings committees from office was wrong, that the decisions should be rescinded and an apology given to the grazings committees in question.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.
Image Credit: Sunday Politics Scotland © BBC Scotland
The other very serious issue that needs to be aired is Kennedy’s assertion that he had to close the meeting because neither Commissioner MacLennan nor the Deputy Accountable Officer could or would hand over to him a letter from the Standards Commissioner explaining that MacLennan no longer had a conflict of interest in the two Lewis cases.
This is crucial. Firstly, the Convener had no need to cancel the whole meeting and the whole agenda because of this point. Even if he was correct in this (and he wasn’t) he could have taken every other agenda point and refused to take any agenda point relating to the issue. The fact that he chose to close the entire meeting when the public body had gone to massive public expense getting everyone to Brora shows his unfitness to continue. Under their Code of Conduct, a chair of a public body and any of its board members must always act in the interests of the public body and protect its resources. The Framework document also places this duty on the chair and the commission.
Secondly, a declaration of interest is a private matter for which each individual board member is personally responsible. They will be answerable to the Standards Commissioner if they get it wrong. The Ethical Standards in Public Life Guidance specifically advises that if a board member has declared an interest, a chair does have the right to ask that member to leave the room for any discussion on that matter, and if they refuse to leave the room, the chair has the responsibility to warn the board member that they will immediately report the matter to the Standards Commissioner. The chair has no right under the code to close the meeting. It is for the Standards Commissioner to adjudicate on failure to act correctly in relation to declarations of interest by any individual board member. This is not the responsibility of the chair.
However, that was not the situation here. In this case, the board member (MacLennan) had sought official guidance from the Standards Commissioner who advised that his previously declared interest was no longer relevant and that he could take part in any discussion related to the previously declared interest. Maclennan had shared the response from the Standards Commissioner with the Deputy Accountable Officer, a very senior member of staff. A chair of a board has no right to see a board member’s private correspondence such as this, especially when it can be verified by a senior official. As stated before, the responsibility for correctly declaring an interest lies with the individual board member.
By taking the extreme steps of refusing to continue with the meeting, in order to prevent MacLennan from taking part in any discussion, Kennedy has openly declared that he does not trust both a fellow board member or a senior member of staff and that he believes them capable of lying. This is in itself a breach of the Ethical Standards in Public Life which requires board members of public bodies to show Trust and Respect to fellow board members and staff. The chair of a public body has an additional responsibility to lead by example. What an example Kennedy is showing us. Exactly how a chair of a public body should not behave.
How many more examples of unfitness to continue as Convener does Fergus Ewing require?
The more this farce goes on… the more I think crofting and ALL the issues surrounding crofting are up to the interpretation of whoever wants it to say ..what they want it to .
Have folk forgotten Susan Walker was turfed out by Murdo Maclennan and collegues.?
no scottish government questions there?
whynot. ?
each commissioner maybe needs to watch they dont fall foul of doing their perceived ‘job’ … correctly.
they might be the next casualty.
this does the shambles of crofting no favours..rather reinforces the belief that its just one big mess. Some benefit…
some benefit more.
Didn’t Kennedy himself refuse to leave a meeting on Lewis when he was asked, although he’d declared a conflict of interest himself??? What a joker he is. The poor fool. The interview with Gordon Brewer was hilarious, the deranged quality to his high pitched squeaky voice was such a treat to hear on national TV. Watching this unfold is like watching a car crash, in this case the car crash is Kennedy and everyone can see him skidding off and hitting a tree at 90mph except Kennedy himself. Does he not realise that by maintaining his current position just makes him look even more stupid? The Big Fat Fish in the little island pond is too dumb to realise that he’s in the ocean now, and an aggressive, nasty little piranha buzzing about nipping at much bigger fish is going to get chewed up and spat out. After all, what self-respecting marine life would swallow something so disgusting? The sooner he’s slapped back to his miserable, isolated existence the better, although it is fun watching him make a toolbag of himself on TV.