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

13 thoughts on “Kennedy refuses to adhere to the law

  1. Derek Scanlan

    Mr Kennedy should consider how his actions have affected the health of those in the crofting communities that he has chosen to bully and slander through this sorry episode. Not to mention what he has done to those working for the Crofting Commission. What could be the motive other than to attempt to destroy crofting from the top down? Does he not yet understand that he is now finally being held to account for his illegal actions? He has abused democracy.

    However he is now irrelevant, no longer calling the shots. Very embarrassing!

    Time to resign Mr Kennedy.

  2. J J Maclennan

    It is no coincidence that the meeting was held at Brora Golf Course.

    The CC is teeing himself up for a golden goodbye from SG.

  3. Linda Brackenbury

    I know of no one who has not suffered in some way, health wise.. everyone who has ever had unfortunate dealings with the crofting convener has suffered, be that mentally, emotionally, physically or financial… well known for his abuse of the process of law…

    Time to come down from your high horse Mr. K and realise that you are not the man for this particular job.

    Go back to being the lone or poor crofter you yourself, profess to be.

  4. Kenny Maciver

    What about the effect on those who were unjustly maligned over all these months by the Commission in our village?

    Doing their best for years and finding themselves publicly painted as some sort of villains.

    What effect does the CC think that has had on them?

    An apology written as if it was about some third party.

    No sorry, totally ungracious.

    Unable even to pretend that they are apologising for how wrong THEY have got it.

    Not signed by the convener. Not signed by any commissioner.

    An apology delivered against their will is no apology.

    And they dare ask us to go forward together.

    The vast majority are together and always have been, until the bully boys from the CC came riding into town.

    They sided with 2 whose response to being asked to stop breaching village rules was to start all this.

    No need for lectures therefore.

    Apology not sincere and seen for what it is.

    1. Morag's seanair

      Let’s keep our eye on the ball. A number of previous posts on this blog have pointed to structural/governance reasons for the mess we’re in. There’s some truth in that. But we can’t forget that the overwhelming cause of the crisis in the Commission (and, increasingly, in crofting) is the current Convener.

      Admittedly, as a few have said, there have been weaknesses that allowed him to flourish; the crofters who were so fooled by his bluster at election time and his fellow Commissioners who, until the last possible second, supported him. They were like the last half dozen left in The Fuhrerbunker in April 1945.

      Worst of all, though, was the Government Minister (admittedly under a lot of short-sighted pressure from opposition MSPs) who allowed the Commission to elect their own Convener after he had been so obviously instrumental in forcing the previous Convener out. Apart from right now, that was the only point where the Government could realistically have intervened.

      Remember, the Commission is the only (largely) democratically elected regulatory public body in Scotland (and the UK). Once its fate has been entrusted to democracy, it is very, very difficult (though thankfully not impossible) for the Government to overrule that.

      Also, given the complete novelty of the democratic basis of the Commission, it was to be expected that the electorate would be immature (in its political sense) at first and that people may be elected the first time who would never sniff a chance subsequently. So, I don’t think it’s a case of a stupid electorate or a flawed model; it’s just what happens sometimes when you give people a free, secret vote for the very first time.

      Once you have a democratic system with hustings, secret ballots, Returning Officers etc. you simply can’t vet those that are elected.

      If you throw into that situation someone of the current Convener’s personality and outlook and you have the perfect storm. The governance framework was simply not set up to cope with someone (and especially a Convener) who is so dysfunctional. The framework assumes that Commissioners will be responsible, balanced, non-vindictive and collegiate, qualities not even remotely possessed by the current Convener.

      The framework assumes a Convener working for the greater good and not their own, it assumes a Convener listening to and respecting others’ views, it assumes a Convener not using the organisation as a vehicle for their own ego-trip.

      Contrary to some suggestions, the Government can’t (and shouldn’t) be everywhere so it’s quite right that there should be no mechanism for the Government of the day to interfere regularly in the Commission’s work. There of course should be, and there is, a mechanism to remove a Commissioner/Convener in the most extreme situations; it’s not made explicit of course but that allows for a way out of various traditional scandalous/criminal situations which we can all imagine. It was never envisaged that the power would need to be used against someone as dystopian as the current Convener. That’s partly why the Government is taking so long to get its head around this.

      But now that Fergus Ewing has presumably spent some time in the Convener’s company, and sees his disdain for Ministerial directions, he will surely understand what a previous Minister failed to understand; that the power to remove needs to be used and that he must go.

      This mess should also not be used as an excuse to return to the previous governance regime; while I agree that the current Commission (and particularly the Convener) compare very unfavourably with their predecessors in many ways, we can’t forget the detachment and complacency that was the hallmark of the “old” Commissions.

      Democracy was injected into the system for a good reason and that reason still stands, despite the huge damage done by the present Convener.

      So let’s keep our eye on the ball; there have been some governance failings (what system, especially one with a democratic element, is perfect?) but it’s had to cope with a Frankenstein’s Monster that wasn’t and couldn’t have been envisaged.

      That’s the root of the problem and that’s what has to be removed. Fergus Ewing must remove the current Convener immediately.

  5. Duncan MacLeod

    It isn’t just the law Kennedy is refusing to comply with. He is also completely ignoring the Ethical Standards in Public Life and the Crofting Commission-Scottish Government Framework Document. So what’s new with this outrageous Convener?

    The framework document and the Ethical Standards in Public Life guidance state the Convener has a number of responsibilities, all of which he has substantially breached by his bizarrre behaviour last Wednesday. He charged off in a rage, abandoning a whole room full of Commissioners, staff and the press, with not a jot of shame or guilt about the risk and damage to the reputation of the organisation to which he is supposed to have a duty of care. Since he presumably thought everyone would pack their bags and leave once he had stomped off, he displayed not one iota of concern about the waste of public finances of having taken all those members of the Commission to Brora at considerable cost, or the fact that the Commission had an urgent need to formulate a response to its Minister. No, he unashamedly trailed everyone to Brora, for no purpose, as far as he was concerned, other than to witness the excruciatingly embarrassing and unedifying spectacle of their Convener behaving like a little Napoleon, a supreme egotist, a spoilt brat who hadn’t got his way.

    The Framework document states that the Convener can be held to account by the Scottish Parliament:

    “21. 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.”

    It’s well past time to call him in, Fergus Ewing. Bring him before parliament and ask him to explain his extraordinary actions and to justify every single one of them. Both in the context of the law, and in the context of his duty to behave selflessly and with probity, always in the interests of the public body which he has voluntarily chosen to “serve”, and in the wider national interests.

    And please stream it live. But, better still, just tell us you have removed him from his post. His actions over the last months and particularly his actions in Brora have demonstrated he is completely unfit to hold a position in public life and particularly one which involves a duty of care to crofting.

  6. Linda Brackenbury

    Fully agree with all that has been written here, and do know from experience that the convener goes out of his way to hold everything that goes against him in contempt,
    I personally have never known anyone other than the convener who can disregard a person or body of people for so long,

    I think its sad that what is being overlooked here, is simply that the convener himself, is no better nor smarter than any other crofter,
    he is not of legal background as he professes to be..unless of course, you are looking at the other side of law,

    his motive is avarice, he strives to be something he can never be..because his personality does not allow him to be the well respected, successful laird of all he surveys…
    though that does not stop him trying.

    An honest man would accept his failings, would make or at least attempt to amend and would try to change his ways,
    but you won’t get that from the Convener, he considers himself to be above the law in all respects.

  7. Donald E Meek

    The Scottish Government is currently advertising for two new Commissioners, presumably to replace Susan Walker and William Swann.  Applications are to be in by 17 October, and the appointees are to be in post by 1 January 2017.

    The responsibilities of the nine Commissioners are described.  From my professional background in academia, and my work for Gaelic with the Scottish Executive in the early 2000s, I have some experience of such responsibilities.  However, the perspiration rolled down my back when I read what is expected of these (three, in total) SG appointees and the (six) democratically elected representatives of the crofting communities in their governance of both crofting and the Commission.

    Like Morag’s thoughtful Seanair, replete with the wisdom of the years, I too value democracy, and would seek to uphold it.  I recognise that circumstances may be a little unusual in the present context.

    Nevertheless, even with my crofting interest and the maintenance of the family croft in Tiree, and with my experience of the challenges imposed by crofting legislation, I do not feel that I could face applying.  I am simply not sufficiently well qualified for such a role.

    Democracy in this context is beguiling, and bestows great status as well as great responsibility. That is in the nature of democratic election to office, and in the selection of government appointees.  I can see how easily things can go wrong – and how history could repeat itself.

    So I must be realistic.  If I had a degree in Law, and a specialism in crofting legislation, I might consider applying. Without these qualifications, I cannot.

    Another model of crofting regulation, which asks less of the Commissioners, and more of the Commission’s 64 (yes!) staff, is urgently needed.

    Read the Job Description for yourselves, and you may see why!

  8. Roy Pentland

    What’s the chances of this crafty Convenor suing for damages to his health. Putting in a claim for bullying and taking a nice fat pay off just because the Crofting Commission now want shut. Watch this space.

    And it wouldn’t take much digging to find out the real reason why Susan the previous, perfectly competent and decent Convenor was ousted to be replaced with guess who?

    It’s all fitting together now like a jigsaw. He’s played us all like a fiddle but sadly for him we will no longer dance to his tune and its up to those in power to do a bit of ousting always ensuring that good legal advice is sought first, otherwise lawsuits and compensation claims will come in thick and fast. Mark my words.

  9. Morag's seanair

    What RP says is almost certainly right, I would think.

    The one and only public pronouncement in months from the current Convener, to the Herald ( that well known campaigning paper on crofting issues) focuses on his “health” when there are so many other things that he could have commented on. From his point of view, surely his reasons ( he must have some) for his actions would be the first thing to lay out, to justify his actions, to counter the overwhelming criticism levelled at him. To go down fighting for the “poor crofter” of which he is allegedly one.

    But no-the Herald statement is surely the most clunky, inept attempt at negotiating publicly with Fergus Ewing. He’s refusing to resign, saying effectively; sack me (the tribune of the people) and I’ll make life difficult for you.

    Well if it succeeds and the current Convener survives past 5.00pm tomorrow there may be some questions for the Government.

    Sack him now and fight the court cases later!

  10. Duncan MacLeod

    If the Convener tried to pull such a stunt as Roy Pentland suggests everyone would laugh like drains. As Roy points out, it was made clear from FOI requests at the time (reported in the WHFP) that Colin Kennedy “masterminded” the plot to force Susan Walker out. He + other Commissioners then put pressure on the Minister to allow them to choose their own Convener. He then stood for Convener + no doubt put pressure on fellow Commissioners to support him. So he voluntarily created a situation where he could voluntarily shove himself into the role of Convener.

    He was the Convener of the Commission when it agreed the Framework document with Scottish Ministers, which included among the Convener’s specific responsibilities: “Ensuring that the Board, in reaching decisions, takes proper account of guidance issued by the Scottish Ministers;” He was therefore well aware of his responsibilities to Scottish Ministers as the Convener of a public body, a post he had voluntarily chosen to grasp for himself.

    Kennedy then strong armed a bunch of weak, supine Commissioners and CEO to commit enormous amounts of public resources and the fatal damaging of a public body’s reputation by embarking on the extraordinary, unprecedented, tyrannical hounding of 3 grazing committees, imposing illegal constables on them all, in breach of crofting legislation, as advised by his own Chief Executive. At long last, the Minister finally gave the Commission unequivocal guidance on the matter, which other Commissioners (at last) sensibly decided to follow.

    If Kennedy were to claim he is now suffering from ill health it is clear the entire sorry tale has been one of his own making. He did not need to force out the previous Convener. He did not need to stand for Convener. He did not need to choose to lead the Commission in a brutal and unprecedented attack on 3 grazing committees; the Commission did not need to put any of the grazing committees out of office; they did not need to breach crofting legislation by imposing constables on them and so creating such a furore that the Minister has been forced to intervene.

    The one thing which he knew he did have to do, having voluntarily chosen to lead a public body was to listen to his Minister and re-examine the catalogue of self-imposed destruction he has caused. If having to confront his own stupidity is making him ill that’s his problem. He cannot sue others for his own stupidity, brutality and obstinance.

    If anyone is going to sue for ill-health or compensation, I would suggest that front of the queue would be the Upper Coll and Mangersta grazing committees, the unnamed grazing committee on the mainland Susan Walker, William Swan, and while we’re at it, Brian Inkster for many unnecessary hours lost due to the amount of time he has had to devote on this blog to Kennedy’s extradordinary behaviour. And in fact it should be Colin Kennedy they should be suing.

  11. Roy Pentland

    The canny poor crofter didn’t become a millionaire, owning half the island he lives on by being shy and retiring. So in no way is he hiding away. Indeed I imagine the opposite will be the case. Probably beavering away right now with his Brief, Lewis Kermack,* on how to get out of this situation with a few ££’s to soften the blow.

    But imagine having to slink back to his tiny island, where it is said, he is highly unpopular, and face the islanders who dislike him so much that apparently only the sycophants talk to him. Oh the shame! Sacked, booted out, forced to resign , What a come down for the self proclaimed King Crofter. No! Not necessarily as he laughs all the way to the bank with his pay off.

    * for those who haven’t followed earlier blogs Lewis Kermack for whatever reason suddenly seemed to became the Convenor’s mouth piece

  12. Linda Brackenbury

    Would not be the first time he has had to slink back to Coll.. mainland people are in general much less tolerant than those on the wee small isles,
    as for the high flying lawyer, it seems apparent by his absence on the blog that he may very well be “holidaying” courtesy of the convener on his tiny isle.


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