Tag Archives: Bill Barron

Crofting Law Group Conference 2017

The Crofting Law Group are holding their annual conference this year at Lews Castle, Stornoway, Isle of Lewis on 9th June 2017.

Chaired by Sir Crispin Agnew of Lochnaw, Bt. QC, the conference will look at the Scottish Government’s proposals for Crofting Law Reform, where things are at and what happens next. Michael O’Neill from the Crofting Bill Team of the Scottish Government will guide delegates through that. There will be views from Patrick Krause Chief Executive of the Scottish Crofting Federation.

Bill Barron, Chief Executive of the Crofting Commission will provide a Crofting Commission Update.

The Conference will look at the question of Common Grazings, what went wrong last year (a recurring theme on this blog!) and what does the future hold with reference to the Crofting Commission’s proposed new Common Grazing Regulations Template. There will be contributions and discussion on this topic from the Crofting Commission’s Solicitor, David Findlay, Solicitor Brian Inkster, Crofters and Landlords. Relevant excerpts of the film ‘Grazing on the Edge’ will be shown and introduced by Janette Sutherland of the Scottish Agricultural College.

Duncan MacPhee, Solicitor, will look at Mortgages for Croft Houses.

There will also be the usual case law update provided this year by Robert Sutherland, Advocate.

Representatives from Registers of Scotland will be on hand to answer any queries concerning the Crofting Register.

For full details and to book your place see Crofting Law Conference 2017 on the Crofting Law Group website.

Crofting Commission Elections 2017 – The Results

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Crofting Elections 2017 - Count at Stornoway Town Hall

Colin Kennedy keeps a close eye on the count at Stornoway Town Hall

The results are in from the count in Stornoway Town Hall for the Crofting Commission Elections. They are:-

East Highlands (East Sutherland, Easter Ross, East Inverness and Moray)

Stage 1 votes:-

Rod Mackenzie – 150 votes
Archie MacNab – 91 votes
John Ferme McMorran – 71 votes

Stage 2 votes (following exclusion of John Ferme McMorran):-

Rod Mackenzie – 181 votes – Duly elected
Archie MacNab – 121 votes

South West Highlands (Lochaber, Argyll & Bute, Arran and Cumbrae, Small Isles)

Stage 1 votes:-

Colin Niall Kennedy – 165 votes
Billy Neilson – 124 votes
Catherine Mackinnon – 67 votes
Uilleam Smith – 55 votes
Ronnie Campbell – 32 votes

Stage 2 votes (following exclusion of Ronnie Campbell):-

Colin Niall Kennedy – 172 votes
Billy Neilson – 128 votes
Catherine Mackinnon – 81 votes
Uilleam Smith – 57 votes

Stage 3 votes (following exclusion of Uilleam Smith):-

Colin Niall Kennedy – 181 votes
Billy Neilson – 152 votes
Catherine Mackinnon – 98 votes

Stage 4 votes (following exclusion of Catherine Mackinnon):-

Billy Neilson – 201 votes – Duly Elected
Colin Niall Kennedy – 199 votes

West Highlands (West Sutherland, Wester Ross, Skye & Lochalsh)

Mairi Mackenzie – 694 votes – Duly Elected
Stephen William Love – 204 votes
Peter O’Donnghaile – 164 votes
Jonathan James Hedges – 95 votes

Western Isles

Iain Maciver -1069 votes – Duly elected
Alasdair MacEachen – 1059 votes

Only one nomination was received for Caithness & Orkney and also Shetland. Thus each candidate for those two constituencies was automatically elected and no election took place.

Caithness and Orkney

Cyril Annal – Automatically elected

Shetland

Andy Holt – Automatically elected

Two of the seats were very close indeed.

In the Western Isles Iain Maciver got in with 10 votes over Alasdair MacEachen.

Most eyes were on the South West Highlands seat where controversial Crofting Commission Convener, Colin Kennedy, was re-standing for election. It was taken through 4 stages of voting with each transferable vote counting until Billy Neilson was victorious over Colin Kennedy by just 2 votes. Thus Kennedy, who many have been calling for long to go, is now gone. However, it shows that despite his controversial stance on a number of matters, that were decried by many far and wide, he still had fairly strong support amongst crofters in his own constituency.

Adding in the three appointed commissioners the nine new Crofting Commissioners are:-

Cyril Annal – Elected – Caithness and Orkney
David Campbell – Appointed – Landlord Representative
Andy Holt – Elected – Shetland
Iain Maciver – Elected – Western Isles
Mairi Mackenzie – Elected – West Highlands
Rod Mackenzie – Elected – East Highlands
Malcolm Mathieson – Appointed
Billy Neilson – Elected – South West Highlands
James Scott – Appointed

Malcolm Mathieson and James Scott were only recently appointed and thus David Campbell is the only commissioner to have already served for some time (since June 2014) on the board of the Crofting Commission. David Campbell was clearly, at times, in conflict with the former Convener, Colin Kennedy.

Commenting on the results, Rural Secretary Fergus Ewing said:-

Crofting is an integral part of Scottish rural life and it is essential that it has dedicated people to represent and reflect the interests and diversity of our crofting communities.

The elected crofting commissioners will give crofters a stronger say in how they are regulated, bringing valuable local knowledge and experience to the role and I would like to take this opportunity to congratulate the six newly elected Commissioners on their election and wish them every success.

This group, together with the appointed commissioners, will play an essential role in the effective governance and operation of the Crofting Commission, ensuring that it has the policies in place to deliver fair, reasonable and transparent decisions on matters affecting crofters and rural communities.

Crofting Commission Chief Executive Bill Barron said:-

I would like to congratulate those who have been elected and I look forward to meeting and welcoming them to the Commission. With the three Commissioners appointed/re-appointed by the Scottish Government earlier this year, we now have a full complement of nine. I and all the staff of the Commission are determined to give the new Board the best possible support as they take on the responsibilities of leading the Crofting Commission. We believe there is a positive future for crofting and I will do all I can to help the new Board of Commissioners carry out their functions effectively.

With such a big batch of new commissioners ushered in at one time many hope that this will see a change in approach by the Crofting Commission as the organisation has been dogged by almost constant controversy over the past 5 years. Only time will tell. We will be watching and reporting.

Brian Inkster

Image Credit: © BBC Alba

Review highlights “notable and worrying failures” in governance within the Crofting Commission

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Rural Economy Secretary, Fergus Ewing, has asked the Crofting Commission to take urgent action to improve performance in crucial areas following the publication of the Governance Review [PDF] undertaken on the instruction of the Scottish Government by business advisors and accountancy firm Scott-Moncrieff.

The Scottish Government ordered the Governance Review of the Crofting Commission following the crisis of confidence in the organisation due to the inappropriate actions taken on common grazings committees and the subsequent breakdown of relationships within the Commission.

A full action plan including prioritising work to deliver the necessary improvements in the way regulatory cases and Board proceedings are managed will be delivered in response to the findings of the Governance Review.

The Crofting Commission Governance Review highlighted a range of areas that need urgent action including:-

Governance standards, procedures and other arrangements, at both executive and non-executive levels, to underpin effective decision-making, particularly in relation to the Bohuntin, Upper Coll and Mangersta Common Grazings cases [Note: The review did not look at the regulatory decisions themselves]
Arrangements for handling conflicts of interest
Ensuring that capacity building and development needs of Board members are met and that the necessary training is provided.

Rural Economy Secretary, Fergus Ewing, said:-

This review highlights notable and worrying failures in the governance of the crofting commission which must be improved immediately. That is why I have asked the new Chief Executive to urgently prepare an action plan to take this forward.

Crofting is an integral part of Scottish rural life and it is essential that it has an effective regulator. This review, and the action plan which will follow, must help to deliver the necessary changes and ensure the commission is able to lead the crofting industry forward.

Crofting Commission Chief Executive, Bill Barron, said:-

A number of important points have been made in the governance review and we are committed to ensuring robust processes are in place to achieve a high standard of governance within the organisation. I will be putting in place a full action plan to ensure these points are addressed, as requested by the Rural Economy Secretary.

We have already made some of the improvements recommended in the review and we are developing a comprehensive induction programme for the new Board of Commissioners following the elections in March 2017.

Continuous improvement within the Commission, and building on the recommendations from the review, will help us to create a focussed and effective organisation working to secure the future of crofting.

The Scottish Crofting Federation has welcomed the pledge by the Scottish Government to put in place an action plan to address the failures highlighted by the Governance Review. Their Chair, Russell Smith, said:-

The Governance Review of the Crofting Commission, instigated by Scottish Government at our request, has exposed many weaknesses in basic operating procedures and in how the organisation copes with extraordinary individual behaviours. The review has made it clear that a robust Commissioner appraisal process is required, to help identify and deliver ongoing training and skills development. We are particularly keen to see a rationalisation of the roles of Commissioners, establishing when they should be delegating to the executive staff or referring to other bodies that have the required expertise. Commissioners should have a strategic and advisory capacity only. It is clear that they got too involved with executive procedures that they did not have the competence or remit for.

The review team recognises the huge damage done to the reputation of the Commission by the in-fighting and particularly that the vote of no confidence in the convener did not achieve a tangible result, that is, his removal. Frustratingly, the review does not suggest how this will be resolved, though the government’s recent exoneration will open up options.

It is alarming that the review team found there to be fundamental inconsistencies and gaps in records of events that led to the breakdown of the organisation. This appears to have handicapped the review to an extent, and is telling in itself.

The list of areas for improvement is long and the minister for crofting, Mr Fergus Ewing, has instructed that an action plan to address them be put in place as a matter of urgency. This will, we hope, sort out some of the fundamental issues that allowed the near collapse of this significant organisation. We are strongly of the opinion that the purpose and role of Commissioners needs to be appraised and a clear boundary to be set between their overseeing strategy and the staff’s executive function. This seems critical to the health of the Crofting Commission.

No comment appears to have been made by the Convener of the Crofting Commission, Colin Kennedy, on the “notable and worrying failures” found whilst he was at the helm.

Mr Kennedy has, however, as part of his campaign for re-election to the South West Highlands seat on the Crofting Commission, stated to The Oban Times that his “experience prompted” him “to make representations to the Scottish Government, which included insisting an external review was required to establish what was, or was not, going on“. One would, therefore, think that the review was instigated at the insistence of Mr Kennedy!

It was, of course, as a result of the alleged abuse of power within the Crofting Commission whilst Mr Kennedy was in charge that I and the Scottish Crofting Federation, amongst others, called on Fergus Ewing to instigate a review into goings on at Great Glen House.

As far back as April 2016, I stated:-

In 1883 a Royal Commission (The Napier Commission) was set up by Gladstone’s Liberal Government. Its purpose was ‘to inquire into the conditions of the crofters and cottars in the Highlands and Islands of Scotland’ and everything concerning them. This came on the back of The Highland Clearances and ‘The Battle of the Braes’ where the Braes crofters stood up against the 50 policemen brought in from Glasgow following the loss of their hill pasture on Ben Lee and a rent strike in protest. The Report by the Napier Commission resulted in the first Crofters Act in 1886 providing security of tenure for crofters.

130 years after security of tenure was given to crofters a new form of clearance is happening in the Highlands and Islands: The clearance of common grazings committees by the Crofting Commission. They are wielding power in an unjustified and brutal manner reminiscent of landlords from the nineteenth century. We are about to see I believe ‘The Battle of Great Glen House’ (this time perhaps fought with paper and ink rather than stones) and the Scottish Government must now institute an inquiry into the actings of the Crofting Commission and everything concerning them.

In May 2016 the then Chair of the Scottish Crofting Federation, Fiona Mandeville, referring to a meeting held in Ullapool to discuss the common grazings crisis said:-

The meeting was unequivocal in its opinion of the Crofting Commission’s conduct. As well as a vote of no confidence in the Commission, the meeting thought that it would be appropriate for the convener of the Commission to stand aside whilst an investigation is carried out into the summary dismissals of grazings committees and the internal procedures of the Commission that has led to this debacle. The Scottish Crofting Federation fully supports this.

Then in June 2016 the Scottish Crofting Federation reiterated its call on Scottish Ministers to intervene in the crofting common grazings debacle and to instigate an external examination of the Crofting Commission, following revelations of a cover-up. Fiona Mandeville then said:-

We reiterate our petition that the Scottish Ministers intervene and ensure that an impartial examination of the Commission’s recent conduct is carried out by a competent external body.

This is extremely disappointing. It seems that the only way to deal with this is through an external audit of the Commission’s behaviour over the common grazings. And we do mean a full audit.

Also in June 2016 Brian Wilson writing in The Scotsman said:-

The immediate question is whether the Scottish Government is prepared to back their quango’s interpretation of the law and its heavy-handed approach to enforcement.

In the short term, a rapid inquiry into why the Crofting Commission has got itself into this mess and how it can be helped out of it may seem a relatively attractive option.

In September 2016 the West Highland Free Press called for decisive Ministerial intervention in the crofting crisis. Their editor stated:-

As crofting minister Mr Ewing has a duty to be open and transparent in the exercise of his responsibility. He is not just another interested observer.

He also has a duty to the crofting community to ensure that its governing body adheres to best practice and does not trample crofters into the ground.

The West Highland Free Press have also, of course, repeatedly called on Fergus Ewing to remove Colin Kennedy as Convener of the Crofting Commission. They were of the view that “more than anybody else, Mr Kennedy spearheaded the assault on the grazings committees“.

So, no, it was not Colin Kennedy who asked for the Governance Review. But it was his actions that were certainly behind the call by the many who did want to see such a review and are not surprised at all by its findings. I will consider those findings in some detail in future posts on this blog.

Brian Inkster

Image Credit: Commission on the Rocks – Cartoon © A concerned crofter

SEE YOU IN COURT?

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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

Last vacant Crofting Commissioner seat filled at last

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The newest Crofting Commissioners, Malcolm Mathieson and James Scott, at their first Board meeting on 8 February 2017

The newest Crofting Commissioners, Malcolm Mathieson and James Scott, ready for their first Board meeting on 8 February 2017

The Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, has announced the appointment of James Scott as a Commissioner of the Crofting Commission Board from 1 February 2017.

Appointment

James Scott runs a business, focussing on training and assessing skills in rural businesses. James has a strong agricultural and field sports background and has previously worked in deer and conservation in both the public and private sectors. James has a particular interest in ensuring the future of crofting through making it attractive and accessible to new and young entrants and in growing the skills of these groups to allow them to be successful crofters.

Length of Terms and Remuneration

Mr Scott’s appointment is for three years and runs from 1 February 2017 until 31 January 2020. The appointment is part time and attracts remuneration of £161.29 per day for a time commitment of around 4.5 days per month.

The appointment is regulated by the Commissioner for Ethical Standards in Public Life in Scotland.

Welcome from Crofting Commission

Bill Barron, Chief Executive of the Crofting Commission, said:

I would like to welcome James to the Commission and we look forward to working with him. James’s expertise in conservation and interest in making crofting attractive and accessible to new and young entrants will be extremely valuable to the Board.

With a full Board of Commissioners we can work to ensure everything is in place for a smooth handover to the elected Commissioners in April 2017.

No statement has been released, as yet, by the Convener of the Crofting Commission, Colin Kennedy, regarding the appointment.

First Board Meeting

James Scott joined the other newly appointed commissioner Malcolm Mathieson for their first board meeting at Great Glen House on 8 February. What an eye opener that must have been for them with it being revealed at the meeting that threats of legal action made by the Convener, Colin Kennedy, hang over the commission and commissioners. More on that in my next post.

Brian Inkster

Image Credit: © BBC Alba

New Crofting Commission CEO not Commissioner!

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The Scottish Farmer are not always on the ball when it comes to crofting news. This week they excelled themselves with the headline ‘New Crofting Commissioner announced’.

Well we had all been waiting patiently for the remaining vacant seat for an appointed commissioner to be filled. Only one of the two vacant posts was recently filled following the appointment of Malcolm Mathieson with a promise that the remaining appointment would “be made in due course“. Did The Scottish Farmer have an exclusive for us on this? Unfortunately not. They just had their CEOs mixed up with their commissioners.

The real news that the Scottish Farmer was trying to report was that Bill Barron has been appointed as Chief Executive at the Crofting Commission.

The Chief Executive and designated Accountable Officer is responsible for the strategic leadership and overall operation and management of the Crofting Commission, including financial controls. Bill Barron has assumed the role on a permanent basis after being appointed as interim CEO in October 2016 following the departure of Catriona Maclean.

Cabinet Secretary for Rural Economy and Connectivity Fergus Ewing said:-

I am pleased that Bill has accepted the position and will join the Commission as permanent Chief Executive.

We have achieved a number of important milestones since we established the Crofting Commission in 2012, and there is now an opportunity to build on successful developments in crofting, refocusing attention on being an effective regulator and delivering an excellent service to crofters.

I am sure that Bill will bring leadership skills and dedication to the role and I wish him every success.

Crofting Commission Chief Executive Bill Barron said:-

I am delighted to have been appointed Chief Executive of the Crofting Commission. In my three months as Interim Chief Executive I have met regularly with Commissioners, staff, crofters and many other stakeholders to hear their views.

The work I have started will continue, giving the Commission a renewed focus on securing the future of crofting and preparing for the new Board following the crofting elections in March 2017.

Background

Bill Barron – biography

Bill Barron was appointed interim CEO of the Crofting Commission in October 2016.

Before that he worked on housing policy and delivery for the Scottish Government for 8 years, covering a range of issues including homelessness, housing’s contribution to health and social care, housing-related social security, and the supply of affordable housing.

A former statistician, Bill has also worked for the UK and Scottish Governments in the fields of education, social security, health and justice.

Crofting Commission

The Commission’s board can have up to nine commissioners. A maximum of six are elected by crofters, with the remainder appointed by Scottish Ministers. The Commission is the only public body in Scotland with a majority of board members elected by the people they serve.

Brian Inkster

Crofting Commission dodge answering questions

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Dodging Bullets at the Crofting Commission

The Crofting Commission can stop your questions by simply not answering them!

The Cross-Party Group on Crofting has been waiting patiently on answers to 18 questions that they posed to the Crofting Commission. These were originally sent to the Crofting Commission in July 2016 then modified and sent in October 2016.

Where in law it is stated that the Crofting Commission cannot revisit its own decisions?
Why did the Crofting Commission chose to remove three grazings committees instead of work with them to improve things, if things needed improvement?
Why were grazings shareholders not given the chance to elect a new committee when the Crofting Commission removed their committee, instead of moving straight to the appointment of a grazings constable?
Does a removed committee have a right of appeal to the Crofting Commission?
Where in law it is stated that the Crofting Commission has the power to appoint a Grazings Constable when they remove members of a grazing committee from office?
Where in law it is stated that the Crofting Commission can extend the appointment of a Grazings Constable?
Why is the Crofting Commission ignoring its own guidelines on the investigation of financial irregularities?
Does the Crofting Commission maintain that all funds in a grazings bank account have to be disbursed immediately (including SRDP grants, as Mr MacLennan stated is the bulk of funds in the CPGoC)?
If there are 3 levels of accounting as outlined by Mr MacLennan (examination by external qualified person such as local retired bank manager, prepared by qualified accountant on information supplied, full forensic audit), what are the thresholds at which each is required? Do they apply to balance or income? Who decides what is appropriate (given this was the reason Mr MacLennan gave for the Upper Coll grazings committee being removed by the Crofting Commission?)
Why did the convener of the Crofting Commission involve himself in every one of these three cases and committee removals? Is this the job of a convener?
Did the convener of the Crofting Commission declare his interest in the cases when the commissioners made their decision to move to removal?
Does the Crofting Commission consider value for public money when pursuing cases?
Mr MacLennan emphasised that the Crofting Commission were obliged to act as a shareholder had made a complaint. This does not square with the Commission’s dealings relating to other regulatory matters. We are aware of complaints made by shareholders with regard to absenteeism and neglect of crofts that go many years without commission action so it would be good to know why you are so diligent in pursuing grazings committees with such rigour. Has there been a policy change to target this type of regulatory issue (as there was previously with absentees)?
Following the letter written to the Convener by Fergus Ewing concerning disbursement of common grazings funds to shareholders and SRDP funding there were mixed messages issued to the press by Commissioners. It appeared that the contents of the letter was supported but the Commission (or perhaps certain Commissioners) still thought they had done nothing wrong. Those two statements do not sit well next to one another. Can the Commission clarify their actual stance on the letter in clear terms for the benefit of this Group.
Can the Commission explain why they have been questioning SRDP funding for and VAT Registration by Common Grazings?
The Commission appear to be supporting their ‘constable’ Colin Souter and his behaviour at Upper Coll. Do they actually support a ‘constable’ who is having meetings with 4 shareholders and making decisions affecting 42 shareholders when 26 out of those 42 have signed a petition calling for his removal?
Will the Commission advise the Group what remit was given to Constable Souter and why he appeared to be acting in an investigatory role rather than as an actual clerk.
The latest revelation appears to be matters being decided by Commissioners via ‘brown envelopes’ rather than at board meetings. Can the Commission enlighten us further on this?

There were, in addition, two questions specifically posed to the Crofting Commission via the Cross-Party Group on Crofting by Iain MacKinnon on 1 November 2016:-

I would like to draw your attention to a letter by Colin Kennedy published this month in the Scottish Farmer. In the letter he draws the Scottish Crofting Federation’s attention to ‘the commission mole’ at the time of the ‘Susan Walker debacle’. Presumably he is referring here to the anonymous commissioner quoted by the West Highland Free Press when information was leaked to the paper and other media outlets about a letter signed by five commissioners – including Mr Kennedy – calling a meeting to discuss a potential vote of no confidence in Ms Walker. Mr Kennedy told the Scottish Farmer this month:

‘I can assure the SCF that prior to my becoming convener, the mole was identified and the information was provided to the appropriate persons to take the matter forward.’

At the Cross Party Group on Crofting’s meeting on 15th September last year, Jean Urquhart asked Mr Kennedy about the leak to the press.

He was unable to give her an answer and did not identify any ‘mole’ on that occasion. However, the then chief executive of the organisation was able to respond and this is noted in the minutes as follows:

‘What is being done about the fact that there was a leak to the press from a commissioner, which is a breach of the code of conduct?

While a newspaper claimed their was leak by a Commissioner, as Accountable Officer the CEO has carried out an internal investigation which found no evidence that any Commissioner had breached the code of conduct by leaking information on the matter to the press.’

I would like to hear from the Commission’s representative at the meeting how they reconcile these two statements and to ask again, in light of Mr Kennedy’s claim: what is being done about the leak to the press; and who was the ‘mole’ as described by Mr Kennedy in his letter to The Scottish Farmer.

Six months after the first questions were put to the Crofting Commission their Interim Chief Executive, Bill Barron, addressed them at the Cross-Party Group meeting at Holyrood on 25 January 2017 by stating that he didn’t intend to answer them but would like, instead, “to focus on the future“. He wanted to “draw a line under the rows of last year“. He acknowledged that “things had been done wrong” but there was “no merit in unpicking all of that“.

Mr Barron may have missed the fact that some of the rows of last year continue into this one.

He stated:-

Some of the specific issues raised in your questions have already been clarified by the Commission. For example, we have confirmed that we agree with the Scottish Government’s position that there is nothing in the CAP rules that prevents the Scottish Government approving an SRDP application made by a grazings committee, and that we agree with the Scottish Government’s position regarding immediate disbursement of funds.

These, however, are two points that the Convener of the Crofting Commission, Colin Kennedy, still appears to be taking issue with and possibly still taking a contrary position on compared to his fellow commissioners and the official line of the Crofting Commission. This is all contrary to the doctrine of collective corporate responsibility. Indeed it is interesting to note that following the departure from the Crofting Commission of their former Convener, Susan Walker, Colin Kennedy, then Vice Convener, stated [PDF: Board Minutes – 13 May 2015]:-

I am sure that I speak on behalf of everyone when I say that today we are all equal with collective responsibility. In fact we are all Conveners, working together for the betterment of the Crofting Commission.

However, his publicly opposing views to that of the board clearly conflict with that statement.

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.

Colin Kennedy was not in attendance at the Cross-Party Group meeting on Wednesday night. He has only attended one meeting out of the five that have taken place since the start of the current Parliamentary term.

At the meeting in Holyrood on Wednesday night the Chair of the Scottish Crofting Federation, Russell Smith, asked Bill Barron if Colin Kennedy was still Convener and was still chairing Board meetings. Bill Barron answered both questions in the affirmative. Russell Smith then asked if the Board was working as it should to which Bill Barron replied “it is not easy but it is getting its work done“. How well, under the circumstances, it is getting its work done is, however, very debatable.

On the points raised by Ian MacKinnon the response from Bill Barron was:-

The same [i.e. not answering the questions] holds for Iain MacKinnon’s questions about a leak to the press, which was investigated by the previous CEO in 2015. Colin Kennedy’s more recent public comments about this appear to have been made in a personal capacity, but I can confirm that the Commission has no plans to re-examine this matter. Instead, my priority is to look forward to the upcoming elections and to prepare to give the best possible support to the new Board.

So it is all about looking forward and not looking back. However, you sometimes have to look back to learn from your mistakes before you can move forward and avoid making the same mistakes again.

Perhaps the Scottish Government’s review into the governance of the Crofting Commission will reflect more on the mistakes of the past and what needs to be done to prevent a recurrence of them. The Cross-Party Group on Crofting was advised on Wednesday by Gordon Jackson, Head of Rural Business Development and Land Tenure at the Scottish Government, that this review will be published “shortly“.

Brian Inkster

Image Credit: The Matrix Reloaded © Village Roadshow Pictures, Silver Pictures and NPV Entertainment

Crofting Commission appointments and unfinished business?

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The Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, has announced the appointment of Malcolm Mathieson as a Commissioner of the Crofting Commission Board from 1 January 2017. He also announced the reappointment of David Campbell as a Commissioner of the Crofting Commission Board from 1 April 2017.

The official Scottish Government press release reads:-

Appointments

Malcolm Mathieson is by profession an accountant who has held senior Finance and Managing Director positions within various global organisations. He is senior partner in Moy Farm, an 1800 acre hill farm in Lochaber and a Director of Lochaber Lodges which he set up in 2009 as part of the farming diversification of Moy Farm. Mr Mathieson has a specific interest in the financial viability of farming in less favoured areas.

Reappointment

David Campbell’s reappointment introduces a degree of continuity between the current Crofting Commission Board and the new Board which will be in place following the Crofting Commission elections in March 2017. He has a wide experience of crofting matters with a solid grasp of crofting’s cultural, social and economic benefits, and how these are underpinned by effective regulation. Mr Campbell has a strong connection to crofting traditions with an equally able understanding of how crofting system of land tenure plays a significant role in population retention.

Length of Terms and Remuneration

Mr Mathieson’s appointment is for three years and runs from 1 January 2017 until 31 December 2019.

Mr Campbell’s appointment is for three years and will run from 1 April 2017 until 31 March 2020. His appointment fulfils the requirement for there to be a Crofting Commissioner to represent the interest of landlords of crofts.

Both appointments are part time and attract remuneration of £161.29 per day for a time commitment of around 4.5 days per month.

The appointment and reappointment are regulated by the Commissioner for Ethical Standards in Public Life in Scotland.

Bill Barron, Interim Chief Executive of the Crofting Commission, said:-

We look forward to working with Malcolm, his experience and knowledge of finance and governance will be of great value to the Commission over the coming years.

Commissioner Campbell has provided an important contribution to the Board with his experience of crofting matters and understanding of the interests of landlords of crofts. His reappointment will provide crucial continuity to the Board ahead of the crofting elections in March 2017.

The Scottish Government press release also revealed that:-

One further Commissioner appointment will be made in due course.

It appears odd that this appointment was not also announced at the same time as the appointment of Malcolm Mathieson given that the two vacancies were advertised at the same time and presumably the selection process carried out at the same time. Given all the problems that exist within the Crofting Commission it is an appointment that the Scottish Government can ill afford to delay any further.

It was interesting to see the Scottish Government press release state that:-

The Convener is appointed from among Commission members.

Whilst the current convener was so appointed it is of course within the power of Scottish Ministers to make the appointment rather than delegate that function to commissioners. It will be interesting to see the approach taken on this by Fergus Ewing MSP following the next Crofting Commission elections.

The current convener, Colin Kennedy, was back in the limelight this week speaking to The Scottish Farmer. He told them:-

I am standing again for election as I believe the job I started in 2012 is not completed.

I have been given overwhelming support from crofters across the crofting counties over the past four months, who recognise the commission requires people who are not afraid to take the decisions which the law provides for, rather than the decisions which certain individuals desire.

It is my paramount desire to ensure fair and equal treatment of all crofters regardless of where they reside. I am aware the board have been informed by a commissioner on several occasions ‘you don’t understand, crofting is different in our area’, which may be the case – and should it be that the Scottish Government have made special arrangements for that area, then it is only fair that crofters in all counties are afforded equality.

The board provides leadership, direction, support and guidance to make sure the commission does its job properly in line with the law. This is what I have tried to do and intend to continue to do should I be re-elected.

Also of extreme importance to every crofter is an explanation as to why the executive requested certain papers be destroyed, and why those vast documents were not on the commission system when a freedom of information request was received.

Who produced those papers which were then provided to both the commission committee and the full board with a list of options on how to dispose of such cases remains a mystery requiring answers. And why was the minute of the board dated September 15, 2015, in relation to those papers not implemented, together with numerous other minutes which were not implemented.

I am not sure where this “overwhelming support” is coming from. It has not been evidenced as far as I can see. On the contrary we have had crofters and crofter representatives seeking his resignation or dismissal.

With regard to “fair and equal treatment” Mr Kennedy has perhaps forgotten that the Commission’s removal from office of the Upper Coll Common Grazings Committee because they did not produce five years of audited accounts contradicted the position previously taken by the Commission. Their former convener, Susan Walker, had stated to another grazings committee that based on legal advice received by the Commission “reference to audit in the Grazings Regulations is not a specific statutory requirement”.

This is one of many examples of the Crofting Commission contradicting itself and not taking a uniform approach to the application of the law.

Also many would dispute that there has been “fair treatment” to crofters in Lewis and Lochaber over the past year.

There is little doubt in many observers eyes that the Commission has certainly not done “its job properly in line with the law” in recent times. If that is what Mr Kennedy has really tried to do it is something he appears, unfortunately, to have failed in.

It is not surprising to hear about the destruction of documents within the Crofting Commission. Mr Kennedy’s own guidelines on disbursement of funds by grazings committees was of course deleted from the Crofting Commission website as though it had never existed. Perhaps the missing documents Mr Kennedy refers to are the ones that were found by commissioners in the secret brown envelopes? However, the cryptic nature of the references by Mr Kennedy to these papers leaves more questions than answers. Perhaps he should arrange a special meeting of the board to be held in public to air fully any such matters that are “of extreme importance to every crofter“?

Brian Inkster

Crofting chaos escalates

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

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

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

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

Tavish Scott MSP was interviewed stating that:-

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

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

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

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

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

Donald Lamont, reporting from Inverness, told us:-

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

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

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

Donald Lamont continued:-

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

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

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

Donald Lamont went on to say:-

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

Then back to Bill Barron who elaborated:-

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

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

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

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

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

Tavish Scott MSP said:-

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

Niall O’Gallagher then continued:-

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

Kate Forbes MSP said:-

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

Presenter, Iain Maclean, returned:-

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

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

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

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

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

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

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

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

View from the Crofting Law Blog

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

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

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

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

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

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

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

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

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

Brian Inkster

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