Tag Archives: BBC

SEE YOU IN COURT?

Donald Morrison introduces the headline news item on BBC Alba An Là

The BBC reported on Wednesday that it had been revealed at a board meeting of the Crofting Commission that day in Inverness that the Convener of the Commission, Colin Kennedy, was threatening the organisation with legal action.

This is how Andrew Thomson of BBC Radio Highlands & Islands reported matters on the 5.30pm bulletin:-

It has emerged that the Convener of the Crofting Commission, Colin Kennedy, is threatening to take legal action against the organisation over the way he has been treated over the last few months.

His lawyers claim he has been defamed by the Commission.

The Crofting Commissioners get ready for the meeting and that before the heat was turned up

The details of the case came to light at a heated meeting of the Commission in Inverness this morning.

The legal threats also specifically mention the actions of two commissioners, Murdo Maclennan and David Campbell, at a meeting in Brora in September last year.

The Chief Executive of the Crofting Commission, Bill Barron, says these two men have the full backing of the organisation.

Bill Barron will “back them totally and defend” commissioners threatened by Colin Kennedy

Bill Barron:-

Mr Kennedy has made it clear that there are things that the two of them have done that he particularly takes exception to and so they are named in this vague threat.

But having said that I don’t believe there is any reason why they need to worry unduly. They can continue to work with the board as they are doing and if there were difficult legal actions taken against them we would obviously back them totally and defend them.

As I say there is no sign of that actually getting up and running so at the moment although I appreciate their nervousness they are absolutely right to continue to work within the board.

It was also headline news on BBC Alba An Là at 8pm with Donald Morrison at the news desk and Donald Lamont reporting from Inverness:-

Donald Lamont reports from Great Glen House

The Convener of the Crofting Commission is threatening the Commission and some of the commissioners with legal action. Colin Kennedy maintains that the meeting in Brora last year was held against the law and Mr Kennedy’s solicitor is of the opinion that the commission has damaged his reputation.

At the last meeting, Mr Kennedy said that he was not threatening anyone with legal proceedings. However on Wednesday it came to light that a letter had actually been delivered to the Commission from his solicitor the day before that meeting took place.

Colin Kennedy enters for the meeting on Wednesday

Colin Kennedy arrives for the meeting on Wednesday

The letter wanted the Commission to change the decisions made at the previous meeting in Brora and to admit that what the Commission did was illegal, and especially that the actions of two individual commissioners were against the law.

The head of the Commission Bill Barron understands the concerns of the commissioners especially any concerns surrounding the letter.

Bill Barron:-

Mr Kennedy has made it clear that there are things that the two of them have done that he particularly takes exception to and so they are named in this vague threat.

But having said that I don’t believe there is any reason why they need to worry unduly. They can continue to work with the board as they are doing and if there were difficult legal actions taken against them we would obviously back them totally and defend them.

The newest Crofting Commissioners, Malcolm Mathieson and James Scott, share a joke before their first Board meeting

The newest Crofting Commissioners, Malcolm Mathieson and James Scott, share a joke before the tension began

There were two new commissioners present at today’s meeting. Donald Lamont asked Bill Barron was it unfortunate that their first meeting was full of tension?

Bill Barron:-

It’s part of where we are. There are those tensions within the board and until they are fully resolved that’s part of our context. I think it was not too bad for the new commissioners to join into that, Obviously I hope we will move on and resolve those things and move to more normal ways of operating.

There isn’t but three weeks until voting papers are distributed to pick a new board for the Commission.

View from the Crofting Law Blog

Since Colin Kennedy walked out of the board meeting in Brora in September there hasn’t been one board meeting of the Crofting Commission without controversy surrounding it:-

Commissioners and officials get ready for Wednesday’s board meeting

It has been very clear to many for some time that the board of the Crofting Commission has not been functioning as it should. Further rationale for that became apparent on Wednesday. How can a board function when one of its members (in this case the convener no less) is threatening legal action against the organisation itself and against fellow commissioners? How can such a situation even arise? The newly appointed commissioners, Malcolm Mathieson and James Scott, must have been wondering what on earth they had let themselves in for.

Colin Kennedy

The Convener is taking a polar opposite view from his fellow commissioners. He thinks they are wrong in what they did in Brora and they think they are correct in the actions taken by them. This is similar to the ‘diametrically opposed‘ views held by him and the Scottish Government on distribution of common grazings funds and receipt of SRDP funding.

Confidential discussions?

The legal basis of Colin Kennedy’s purported claims of defamation and damage to reputation arising from the Brora meeting are not clear. Why he considers that meeting to be invalid in law is also unclear.

What is clear is that the Crofting Commission took legal advice and at their last meeting it was “accepted that it [the Brora meeting] was one continuous meeting in two valid parts“. It was further clarified to the Cross-Party Group on Crofting at Holyrood, by Bill Barron, 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.

When six commissioners out of seven take a decision that decision should be respected and stand in accordance with the doctrine of collective responsibility.

As pointed out previously on this blog the Guide for Board Members of Public Bodies in Scotland [PDF] states:-

While Board members must be ready to offer constructive challenge, they must also share collective responsibility for decisions taken by the Board as a whole. If they fundamentally disagree with the decision taken by the Board, they have the option of recording their disagreement in the minutes. However, ultimately, they must either accept and support the collective decision of the Board – or resign.

Should Colin Kennedy have packed his bags and left by now?

Thus by sharing in collective responsibility, as he is obliged to do, Colin Kennedy should accept and support the decision of the board taken in Brora in September. By accepting and supporting that decision he should resign.

If, however, he does not accept and support the collective decision of the Board (which appears to be the case) he must, following the guidelines for Board Members of Public Bodies in Scotland, resign.

Either way he should not therefore currently be the Convener of the Crofting Commission.

Brian Inkster

Image Credits: © BBC Alba

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

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

The end game?

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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:-

@CroftingLaw looks like Kennedy using complaint as form of defence. @FergusEwingMSP can’t remove him while being investigated. Was too slow https://t.co/qodG9LXeu6

— Dunc Mac (@DuncMacL) October 27, 2016

Sly move by the CC Convener. Is his plan that @FergusEwingMSP must now declare an interest in dealing with him? @CroftingLaw

— Domhnall Macsween (@sweenyness) October 27, 2016

Unfortunately the same issue arose with complaint from Upper Coll & Mangersta, didn’t stop Kennedy then! @FergusEwingMSP @CroftingLaw

— Domhnall Macsween (@sweenyness) October 27, 2016

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.

@sweenyness @CroftingLaw So @FergusEwingMSP should copy Convener + respond with excuse of discomfort of @ScotParl chairs + dingy lighting!

— Crabbit Crofter (@CrabbitCrofter) October 27, 2016

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.

If @FergusEwingMSP now conflicted it is not an issue as Scottish Ministers (plural) have power to remove a commissioner. cc @NicolaSturgeon

— Crofting Law (@CroftingLaw) October 27, 2016

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.

@NicolaSturgeon please urgently acquaint yourself with the disaster that is affecting crofting This needed action long ago but not too late

— Crabbit Crofter (@CrabbitCrofter) October 27, 2016

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 Federation call on the Commission’s Convener to be ousted

Kennedy stays in post and seeks legal advice

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Yesterday we heard that the Convener of the Crofting Commission, Colin Kennedy, had told the BBC that he had no plans to resign.

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

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

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

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

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

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

Brian Inkster

Crofting Convener in Hiding

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Hide and seek was a favourite pastime at Great Glen House

The Cross Party Group on Crofting met on Wednesday night at Holyrood.

This followed the private meeting between Fergus Ewing MSP, Cabinet Secretary responsible for crofting, and all of the Crofting Commissioners. At that private meeting Mr Ewing told Commissioners that he expected them to rescind their decisions and issue an apology to the three grazings committees removed from office since December 2015.

One would have expected the Convener of the Crofting Commission, Colin Kennedy, to have represented the Crofting Commission at the Cross Party Group meeting. However, he was nowhere to be seen at that meeting. Where was he? He was in Edinburgh (presumably in the very same building) earlier that very same day for the meeting with Mr Ewing. One assumes he would not have been able to get back to the Isle of Coll after that meeting to tend to his croft and would have been staying overnight in Edinburgh in any event?

As Convener of the Crofting Commission, Colin Kennedy, has the particular responsibility of representing the views of the Board to the general public. This will include those attending the Cross Party Group on Crofting.

Colin Kennedy did not attend the last Cross Party Group meeting in June on the day when the Crofting Commission took a massive U-turn on their stance at Mangersta Common Grazings.

Colin Kennedy did not attend the last Scottish Government Crofting Stakeholder Forum meeting when the Chief Executive, Catriona Maclean, announced her resignation.

Colin Kennedy did not attend this week’s Cross Party Group meeting when one would have thought he should have been there to advise that meeting of the outcome of the earlier meeting that day between Commissioners and Mr Ewing.

Instead Commissioner Murdo Maclennan attended this week’s Cross Party Group meeting, disclosed nothing about the earlier meeting with Mr Ewing and refused to answer questions verbally saying he would only do so in writing. However, after the meeting he appears to have released information to the BBC that again one would have thought could and perhaps should have been revealed first to the Cross Party Group.

Why is the Convener in hiding?

Why is the Convener not attending meetings on the Commission’s behalf and representing the views of the Board?

Is the Convener “unsuitable to continue” in that role given this clear dereliction of duty on top of and in addition to the abuse of power he has been accused of?

Presumably the Convener will have to come out of hiding for the Board meeting of the Crofting Commission at Brora on 28 September. Presumably after that meeting it will have to be he who gives the public apology to the crofters affected by the decisions to remove grazings committees from office. Thereafter he can perhaps go into hiding again especially if he takes the advice of the Chair of the Scottish Crofting Federation, Fiona Mandeville, who said:-

As the person who seems to be behind the on-going attacks on crofting committees, it would be appropriate for the Convener of the Crofting Commission, Colin Kennedy to give the apology in his resignation statement.

Brian Inkster

Who calls the shots at the Crofting Commission?

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“I’ve been expecting you Mr Ewing”

The letter from Fergus Ewing MSP, Cabinet Secretary responsible for crofting, to Colin Kennedy, Convener of the Crofting Commission, made it clear that the Scottish Government did not share the legal interpretation taken by the Crofting Commission on (a) the distribution of funds by Grazings Committees and (b) entitlement to SRDP funding by Grazings Committees.

The letter, interestingly, suggested that the wrong views on these matters were personal ones held by Colin Kennedy and did not necessarily represent the views of the Board of the Crofting Commission. Fergus Ewing, in the letter, stated:-

At our meeting you noted that the views you expressed on these issues were in fact your own and not those of the Crofting Commission Board. This was confirmed by the Crofting Commission’s Chief Executive. As it currently stands, the Scottish Government sees little merit in your views on these issues and wholly disagrees with them. Based on a thorough consideration that we have given this matter, it is clear that our own view on these important issues is diametrically opposed to your own. I am very concerned about this and also about the risk that policy decisions at the Crofting Commission may be taken without a clear mandate from the Crofting Commission’s Board.

If this is the case then although the Crofting Commission Board may not have shared Colin Kennedy’s views on the distribution of funds by Grazings Committees decisions were still made that forced or sought to force Grazings Committees to empty their bank accounts, put them out of office and replaced them with illegally appointed grazings constables. How did this happen?

BBC Reporter Jackie O’Brien said on 17 August 2016 that:-

I did speak to him [Colin Kennedy] last night. He is adamant that he has done nothing wrong. He claims that all of the decisions which have been made have been made during/since he has been Convener have been based on papers supplied by the Commission’s executive.

He has also insisted that not a single matter on this has ever had to go to a vote or at board level and he says that all decisions are taken by means of reasoned debate and consensus.

If he admitted to Fergus Ewing that the views were his own and this was backed up by Catriona Maclean, Chief Executive of the Crofting Commission, then clearly decisions were not actually based on papers supplied by the Commission’s executive.

Also if these views were his own and not shared by the Board how was it that “not a single matter on this has ever had to go to a vote or at board level” and “that all decisions are taken by means of reasoned debate and consensus“?

Or has there never been a vote at board level because the decisions have already been taken by the Convener?!

Colin Kennedy has either been misleading Fergus Ewing MSP or Jackie O’Brien because the statements made by each of them do not correspond.

The inference, however, from the Fergus Ewing letter is that Colin Kennedy has been calling the shots at the Crofting Commission and that policy decisions may have been taken without a clear mandate from the Crofting Commission’s Board. If this is the case it is concerning indeed.

It is also rather ironic that the last Convener, Susan Walker, was ousted from office in a coup by certain Board members because there had been growing concern amongst her fellow commissioners over her style of leadership with it being alleged that she had assumed the role of an executive chair, rather than that of primus inter pares – first among equals. Whether or not Susan Walker was actually behaving in this way, and I have seen no evidence to suggest that she was, it would appear that her replacement, Colin Kennedy, is!

Crofting Commission meet at Great Glen House to discuss Common Grazings Committees on the Isle of Lewis

“Our target, commissioners, is the Isle of Lewis”

At the time it was reported that even the Chief Executive of the Crofting Commission, Catriona Maclean, had privately criticised the way Commissioners handled the affair and she went further, with one internal note suggesting the Commission may have underplayed the level of division within their board during discussions with Government. Writing shortly after the convener’s resignation she said that, while the Commission “wanted to reassure the Minister [for Crofting] that they were keen to move forward in a united and positive way”, her own view was that there were “still differences of opinion on the merits of what happened”. In a later commentary she specified disagreement between board members which will require “a focus on healing”.

It would appear that this disagreement between board members still subsists with no sign of any healing. If anything the wound has perhaps deepened.

If the cause of this is a commissioner who dictates his views on the others and those views are “diametrically opposed” to those held by the Scottish Government then there appears to be a conflict that requires to be resolved. It may not be one that can easily be resolved without the intervention sought by many.

Brian Inkster

Statement by Crofting Commission gets no better in Gaelic

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It was previously raised on this blog that the statement made by Crofting Commissioner Murdo Maclennan after the board meeting on 17 August was fairly unintelligible.

This was a statement made by him, on behalf of the Crofting Commission, following discussion by them of the letter from Fergus Ewing MSP, the Cabinet Secretary with responsibility for crofting, on the Commission’s handling of the common grazings debacle.

That statement was made by Murdo Maclennan in English. He made another statement on the same day to the media in Gaelic. That Gaelic statement was broadcast on BBC Radio nan Gaidheal’s Aithris an Fheasgair on 17 August 2016.

The Crabbit Crofter has made as accurate a transcription and translation into English from Gaelic as he could of this statement, and that as follows:-

…that was in the letter and…um…and…eh…the Convener made…eh…he brought the letter to the board…about it…as I said…as…as…every public board is anyway…there will be different opinions…and we came…we talked about it and we came to the conclusion…everyone in the…everyone in the Commission was behind…as I’m saying…and accepted it.

Unfortunately in these two villages that…they didn’t come to an agreement…there wasn’t an agreement…between the people who raised the topic and…and…eh…the township committees themselves but…but that’s past now…and…and we are working eh with…as in Upper Coll…we have got a Constable who is working with crofters in the village…and…and…I am finding out he is working well with them…eh… unfortunately …I said that it was…it came to this…but we think we did the right things for the township.

Well, no better or any more understandable than the statement made in English!

Interesting that in this statement Murdo Maclennan speaks specifically about an apparent lack of agreement in two villages (there were actually three involved: two on the Isle of Lewis and one on the Scottish mainland) but “that’s past now”.

It may be in the past in the Commission’s eyes but it is what Fergus Ewing’s letter was all about and crofters still want answers as to why the Commission took the action that they did and assurances that they will never do so, in such circumstances, again.

The Commission’s current policy on this matter, in light of the letter from Fergus Ewing MSP, must be made clear and this statement goes nowhere near doing so.

Murdo Maclennan says “we have got a Constable”. Is this, yet again, the Commission thinking the constable is their man on the ground rather than an independent party distinct from the Commission who simply takes the role of clerk/committee?

In any event the grazings constable in question is illegal! If the Crofting Commission are now accepting that they got it wrong, in light of Fergus Ewing’s letter, does it not follow that they are accepting that they got it wrong in relation to the appointment of constables?

@CroftingLaw Note the freudian slip. “we’ve got a constable” in Upper Coll. The Commissions man, not the townships.

— Crabbit Crofter (@CrabbitCrofter) 17 August 2016

The Crofting Commission, via Murdo Maclennan seems to think that the illegally appointed constable in Upper Coll is “working well” with the crofters in the village. Certainly not the message being given out loud and clear by many of the crofters in the village who have stated that to date they have “only been co-operating with the constable under duress”.

Also Murdo Maclennan said, on behalf of the Crofting Commission, that they think they “did the right things for the township”. That is not what the majority of crofters or the Scottish Government seem to think. Also is that statement actually reflected in the massive U-turn the Commission took over Mangersta?

Murdo Maclennan’s confusing,if not incoherent,statement (cf https://t.co/jMBITcl7m2) tone deaf to Lewis crofters’ overwhelming views on 3-08

— Crofting Federation (@SCFHq) 18 August 2016

All and all it still seems to be a shambles. The Crofting Commission appear to say, perhaps reluctantly, on one hand that they agree that they got it wrong (i.e. in support of the Scottish Government position) but on the other hand they still think that they did the right thing. Those two viewpoints cannot sit easily side by side.

@Feorlean – surely @CroftingScot public response to Scots Govt criticism can’t just be the gibberish to the BBC as reported by @CroftingLaw?

— IainMacK (@IainMacKinnon75) 19 August 2016

However, the statements made on behalf of the Crofting Commission by Murdo Maclennan, both in English and in Gaelic, are far from clear in any event and are open to misinterpretation.

The Crofting Commission must, in all the circumstances, publish a written statement in clear English and Gaelic (each one being a direct translation of the other) that sets out their actual position on the matter. This should, in any event, have been done as a matter of course immediately following their board meeting last Wednesday.

Last tweet in the name of @CroftingScot 16 days ago – statement after yesterday’s board not even tweeted ! #lackoftransparency

— Michael Russell (@Feorlean) 18 August 2016

Brian Inkster

Update: 3 September 2016

In the West Highland Free Press yesterday a letter was published from Murdo Maclennan under the heading “Partick twang” to blame. It reads:-

I refer to the comments of Ms Mandeville of the SCF as reported on the WHFP website on 19th August and her reference to my “apparent assertion after a recent board meeting”.

As she does not disclose her source of information I assume that she is referring to my post-board interview with BBC Alba. My Gaelic is nuanced through a Partick twang and she has clearly misinterpreted my public statement. I did state during the interview that the Commission conducted a debate followed by a motion, which I moved, being carried unanimously and without dissent. In any public body vigorous debate is surely to be encouraged and not disparaged.

Sorry, Mr Maclennan but that goes nowhere near resolving the confusion you have already created – It may in fact have caused more!

Do the Commission take the view that they have done nothing wrong despite the letter from Fergus Ewing? A simple “Yes” or “No” in English, Gaelic or Partick twang will suffice.

Decisions “have been divisive, unacceptable and not in line with crofting law”

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In a statement issued today the Scottish Crofting Federation (SCF) has welcomed the intervention of rural affairs secretary Fergus Ewing MSP in his letter to Colin Kennedy, Crofting Commission convener.

SCF chair, Fiona Mandeville, commented:-

We are pleased that the Scottish Government has finally endorsed what we and others have been saying for months, that the actions of the Commission convener, and the decisions he appears to have forced through, have been divisive, unacceptable and not in line with crofting law.

While Mr Ewing’s letter is not yet in the public domain, its contents have been summarised and made public. It is clear that the Scottish Government is as concerned as the SCF and all who care about crofting. BBC’s Jackie O’Brien has seen the letter and reports that the Government’s view is diametrically opposed to Mr Kennedy’s and that it is not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law.

Ms Mandeville continued:-

The secretary for rural affairs has written a direct personal reprimand to the convener, who should now do the honourable thing and stand down right away.

Commissioner Murdo Maclennan’s apparent assertion after the Commission’s recent board meeting is that the board is backing Kennedy. Does the Crofting Commission convener agree with the board? Does the board unanimously support the convener? It is natural for a board to attempt to portray a consensus, but is this really the case?

Fergus Ewing, in his letter as reported by the BBC, expresses his grave concern that policy decisions may be taken without a clear mandate from the Crofting Commission’s board. This suggests such concerns are also held by Scottish Government.

Colin Kennedy must accept the reality that it is time for him to go.