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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

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.

  1. Where in law it is stated that the Crofting Commission cannot revisit its own decisions?
  2. Why did the Crofting Commission chose to remove three grazings committees instead of work with them to improve things, if things needed improvement?
  3. 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?
  4. Does a removed committee have a right of appeal to the Crofting Commission?
  5. 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?
  6. Where in law it is stated that the Crofting Commission can extend the appointment of a Grazings Constable?
  7. Why is the Crofting Commission ignoring its own guidelines on the investigation of financial irregularities?
  8. 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)?
  9. 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?)
  10. 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?
  11. Did the convener of the Crofting Commission declare his interest in the cases when the commissioners made their decision to move to removal?
  12. Does the Crofting Commission consider value for public money when pursuing cases?
  13. 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)?
  14. 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.
  15. Can the Commission explain why they have been questioning SRDP funding for and VAT Registration by Common Grazings?
  16. 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?
  17. 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.
  18. 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

Law Awards of Scotland recognise Crofting Endeavours

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Law Awards of Scotland - Finalist - Solicitor of the Year - Brian InksterBrian Inkster has been shortlisted for Solicitor of the Year at the Law Awards of Scotland.

This nomination recognises his endeavours in crofting law over the past year and in particular his quest to see justice done over the alleged abuse of power within the Crofting Commission over the sacking of three common grazings committees.

Brian Inkster has been very vocal in the press, radio and on TV over the issue. He has written 97 blog posts on this topic alone over the past six months.

The Crofting Commission recently accepted their decisions as being wrong and issued an apology to the crofters affected. However, conflict continues within the Crofting Commission with a clear divide between their convener and the other commissioners.

Brian Inkster said:-

I am honoured to be one of only three solicitors in Scotland shortlisted for this award.

Hopefully it will help to highlight further the plight of the ordinary crofter at the hands of a regulator that is out of control.

There is still much more that the Scottish Government needs to do to restore confidence in the Crofting Commission and I will be making my views known on that in the coming months.

Inksters Solicitors who have offices in Glasgow, Inverness, Forfar, Portree, Wick and a visiting base in Lerwick have also been shortlisted for Litigation Firm of the Year and their trainee solicitor, Alistair Sloan, for Trainee of the Year at this year’s Law Awards of Scotland.

The winners will be announced on 24 November at a gala dinner at the Crowne Plaza Hotel, Glasgow.

Has the Convener lost his memory?

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Has the Crofting Commission Convener, Colin Kennedy, lost his memory?The Convener of the Crofting Commission, Colin Kennedy, gave an interview to Gordon Brewer on Sunday Politics Scotland by phone from the Isle of Coll. This followed on from my own interview with Gordon Brewer at the BBC studios at Pacific Quay in Glasgow.

What struck me from Mr Kennedy’s responses to Gordon Brewer’s questions was that he appeared to have lost his memory. I will look at some of those responses and explain why:-

Mr Kennedy’s assertion that the Commission have acted wholly within the law at all times and have not received legal advice to the contrary

Gordon Brewer asked:-

Are you going to stay in the post?

Colin Kennedy responded:-

I have no intention of resigning.

Gordon Brewer:-

Why not?

Colin Kennedy:-

As matters stand, I believe the commission have acted wholly within the law at all times and until such times as we have legal advice to the contrary, I will maintain my position.

View from the Crofting Law Blog on Mr Kennedy’s assertion that the Commission have acted wholly within the law at all times and have not received legal advice to the contrary

Has Mr Kennedy forgotten that he had deleted from the Crofting Commission’s website his own guidelines on “immediate” payment of funds when it was shown that the law did not insist upon that.

Has Mr Kennedy forgotten already that Fergus Ewing MSP, Cabinet Secretary responsible for crofting, wrote him a letter which stated that Mr Ewing saw “little merit” in and “wholly disagrees” with his interpretation of the law?

Indeed Mr Ewing referred to the Scottish Government’s position as being “diametrically opposed” to Mr Kennedy’s position. He went onto say that it was “not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law”.

The Board of the Commission (including Mr Kennedy) subsequently accepted and supported the Government’s position in this regard.

Has Mr Kennedy also forgotten the meeting that he and other commissioners had with Mr Ewing at Holyrood?

At that meeting Mr Ewing told Mr Kennedy that the action taken by the Crofting Commission to remove grazings committees from office was wrong, that the decisions should be rescinded and an apology given to the grazings committees in question.

Following Mr Kennedy walking out of the Board Meeting at Brora the remaining commissioners accepted Mr Ewing’s position and the apology was issued.

First Minister, Nicola Sturgeon, referred to it as being “disappointing” that Mr Kennedy was not a party to that apology.

Mr Kennedy being unaware that the commissioners have no confidence in him

Gordon Brewer said:-

Okay, but the commissioners have said they no longer have any confidence in you. Which is not brilliant from your point of view is it?

Colin Kennedy responded:-

I am unaware of the commissioners having said they have no confidence in me.

Gordon Brewer:-

You are not aware of that?

Colin Kennedy:-

Correct.

The Crofting Law Blog’s view on Mr Kennedy being unaware that the commissioners have no confidence in him

Mr Kennedy has been known to go into hiding but he must be on a different planet if he is suggesting that he does not know what was discussed at the Special Meeting in Brora.

It was headline news following that meeting.

Perhaps commissioners didn’t use the exact words “no confidence” at their meeting but calling on Mr Kennedy to resign is a vote of no confidence if ever there was one.

Mr Kennedy’s understanding of the Commission’s Standing Orders

Gordon Brewer asked:-

So as far as you are concerned what? The Crofting Commission is carrying on its work as per normal?

Colin Kennedy replied:-

Well I would suggest at this moment in time that the Crofting Commission conducted a meeting on 28th September which is in non compliance or in accordance with the standing orders of the Crofting Commission and therefore it would appear in my view to be ultra vires.

The Crofting Law Blog’s view on Mr Kennedy’s understanding of the Commission’s Standing Orders

Is Mr Kennedy not familiar with the Commission’s Standing Orders? Surely the Convener should be?

The relevant provisions for present purposes are:-

6.4 The Chief Executive will call a Special Meeting of the Commission when required to do so by the Convener of the Commission. A Special Meeting will also be called by the Chief Executive if in receipt of a written request stating the business of the meeting from another member of the Commission and seconded by a majority of the Commission. The meeting will be held within 21 days of the receipt of the requisition by the Chief Executive.

6.5 Where the Convener requires a Special Meeting, and considers that there is particular urgency, the Chief Executive may call the meeting without giving the
7 days’ notice normally required at 6.1 above, provided every effort is made to contact members to give as much notice as possible prior to the meeting.

These provisions were followed and a Special Meeting duly convened.

The Crofting Commission have stated:-

When the Convener left the board meeting on 28 September in Brora the remaining commissioners requested a Special Meeting. This was held in line with the Crofting Commission’s Standing Orders.

Crofting Commissioners should be commended for doing so and allowing important business that Fergus Ewing MSP had requested them to deal with to so be dealt with.

The Convener was content to abandon the scheduled meeting and not deal at all with the business of the day.

Mr Kennedy’s views on the inexplicable

Gordon Brewer:-

So right. You think that they still have confidence in you but that they have held an ultra vires meeting without you for reasons that are inexplicable?

Colin Kennedy:-

Correct.

The Crofting Law Blog’s take on Mr Kennedy’s views on the inexplicable

What can you say!

Mr Kennedy’s assertion that decisions have been based on legal advice and papers presented to the Board

Gordon Brewer pointed out:-

The substance of this is about you, they allege, that you made various determinations about things like payments in the form of edicts – that they weren’t really consulted.

Colin Kennedy retorted:-

Absolutely incorrect.

At no time under my leadership have any decisions been taken without full endorsement of the board and based on legal advice.

And if I could comment prior to those decisions as per the board minute of 15 September 2015, prior to taking any of those decisions a formal request was made to the Chief Executive to obtain legal advice to support the papers presented to the board on which the board took the decisions.

The Crofting Law Blog’s view on Mr Kennedy’s assertion that decisions have been based on legal advice and papers presented to the Board

I am unsure what the board minute of 15 September 2015 is. I have located one from 16 September 2015 but that does not appear to be of any relevance to the matter at hand.

However, has Mr Kennedy forgotten that the Chief Executive provided clear advice to the Board that they could not appoint a grazings constable where a grazings committee was removed from office?

Despite that advice the Board went onto appoint three grazings constables in three such circumstances which appears to be a contravention of the legal advice received on at least three occasions.

General comment from the Crofting Law Blog on Mr Kennedy’s memory

It would appear that when analysed Mr Kennedy’s responses in each instance are somewhat flawed. The accurate position in each instance can actually be found in the archives on this blog.

Perhaps Mr Kennedy should refresh his memory by reading through the blog before he gives his next press interview.

However, the flaws in his responses highlight a serious divide between him and the Scottish Government and one that you would think the Scottish Ministers cannot tolerate for much longer.

Brian Inkster

Image Credit: Sunday Politics Scotland © BBC Scotland

Shackles lifted on Murdo Maclennan

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Murdo Maclennan - Crofting Commissioner (Western Isles)

Murdo Maclennan – Crofting Commissioner (Western Isles)

The Stornoway Gazette, has revealed that Murdo Maclennan, Crofting Commissioner for the Western Isles, is pleased to now be free to publicly declare his position on the common grazings crisis in the Western Isles after the shackles applied, when he confirmed a declaration of interest, were finally lifted.

In the online article Murdo Maclennan admits that the past few months have been difficult as both Mangersta and Upper Coll have endured very public struggles. He is quoted as saying:-

It has been very difficult for me being unable to give my opinions on the ongoing matters in Mangersta and Upper Coll but now my declaration of interests have been lifted.

It is important to say I was being held back by these declarations, but I can speak now.

The Constable (Mr Colin Souter) installed in Upper Coll should complete his work as quickly as possible and the move to have a new committee in Upper Coll should happen as quickly as possible.

I would hope despite all that has happened that there can be a drawing of a line under it to move forward together, and like all committees, we will need to work with the commission for the benefit of crofting in the future in these areas.

There are lessons learned on the commission side absolutely. In terms of Mangersta I have asked why it has taken six years to resolve? That will be open and transparent to everyone. The way matters were handled and whether a grazings officer could intervene at an earlier stage to bring communities together.

The Stornoway Gazette article points out that last week at the Board meeting at Brora Golf Club Mr Maclennan led a motion, which was seconded and agreed by officials, calling for the resignation of the Crofting Commission’s Convener, Colin Kennedy.

This followed Mr Kennedy walking out of a meeting after he refused to accept Mr Maclennan’s withdrawal of his declaration of interest.

It goes on to quote Mr Maclennan as saying:-

I had sought to represent publicly the Western Isles crofters involved by asking for the papers and being able to take part in the discussions later on in the meeting,

But I was denied that by the convener and after taking advice from the officials present, my position was sustained, that I could have access to the papers which led to him closing the meeting.

The board did continue to meet and we had a full day of business. I did move that the board state, through a motion, in my opinion it was the convener’s position to retire due to the situation. This was seconded and also received the unanimous vote of the board.

It is a question of accountability and responsibility for all that has gone on in the past six months.

View from the Crofting Law Blog

It is good that Mr Maclennan no longer has a conflict of interest and is able at last to take an active role in important issues concerning his own island community.

It is also heartening to see that he was instrumental in leading the motion calling for the convener’s resignation.

Mr Maclennan says that the grazings ‘constable’ Colin Souter should complete his work as quickly as possible and the move to have a new committee in Upper Coll should happen as quickly as possible.

However, what work does Mr Souter have to complete? I don’t think the majority of shareholders at Upper Coll want him to complete anything for them anymore.

In the case of Mangersta the ‘constable’ there was removed very swiftly indeed. Should the same not happen at Upper Coll?

What move needs to be made to have a new committee in Upper Coll? Is that not in effect all done and dusted by the actions taken by the shareholders themselves some weeks ago?

It looks like the Commission is unnecessarily prolonging the agony for the crofters of Upper Coll.

Colin Souter should step down immediately, without any further delay, and let the crofters get on with it themselves.

That happened in Mangersta. There is no good reason why it cannot and should not happen in Upper Coll.

The six crofting commissioners (including Mr Maclennan) who now oppose Mr Kennedy should ensure that this happens without further delay and preferably by close of play tomorrow at the latest. This would demonstrate that the shackles have well and truly been lifted.

Brian Inkster

Few tears should be shed

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WHFP - 30 September 2016The latest edition (30 September) of the West Highland Free Press contains a strong editorial concerning the events in Brora last week. It is entitled Crofting Commission: No tears for the end of the Colin Kennedy era. We reproduce it here as an important part of our archive on ‘The Common Clearances‘:-

By walking out of a Crofting Commission meeting in Brora yesterday (Wednesday) because everything was not going his own way, Colin Kennedy abandoned the convenership in the same disgracefully arrogant manner with which he has held the position for the last 15 months.  Few tears should be shed.

Last week crofting minister Fergus Ewing instructed the crofting commissioners to make a full public apology to the Lewis grazings committees which earlier this year, they summarily and possibly illegally dismissed from office.

In other words, according to the crofting minister, throughout this whole sorry affair the Crofting Commission has been completely wrong in both its legislative interpretation and procedural actions.

The commission was wrong to consider that the locally-elected grazings committees at Upper Coll and Mangersta had been constitutionally at fault.  It was also wrong to sack them.

There can be few graver charges laid at the door of crofting’s regulatory body.  Its punishment is to publish a humiliating confession of its sins, and to submit to a review of its practices by Scottish Government officials.

More than anybody else, Mr Kennedy spearheaded the assault on the grazings committees.  In doing so he at least demeaned and possibly also subverted his office.

If one thing was certain following Mr Ewing’s intervention before Wednesday’s meeting in Brora, it was that Colin Kennedy could no longer stay on as convener.  All that remained was the manner of his leaving.  It could have been gracious or it could have been petulant.  It was of course the latter.

The remnants of the Crofting Commission was left to compose its letter of apology.  Once that task was completed, before dusting itself down and attempting to resume normal and responsible service, it must tie up another loose end from Mr Kennedy’s convenership.

The commission should instantly remove its constable, Colin Souter, from Upper Coll.  The imposition of Mr Souter on that part of Lewis was a grossly insulting over-reaction.  He should never have been sent there in the first place.

In the words of the Scottish Crofting Federation’s Fiona Mandeville, Constable Souter “has no place in crofting, is aggravating bad feeling and is standing in the way of democratic process”.

Colin Souter’s continuing presence on the east side of Lewis is reminiscent of the Highland authorities’ response to the 19th century land war.  It has no place in the 21st century.

Colin Kennedy was elected to the Crofting Commission by the crofters of the south-west Highland constituency.  He was then elected to the convenership by his fellow commissioners following their vote of no confidence in the government-appointed chair, Susan Walker.  He is walking proof of the fallibility of democracy.

But if free votes have bad outcomes, they can also correct their mistakes.

If Mr Kennedy hangs around, stands and is re-elected by the voters of Lochaber, Argyll and Bute, Arran and Cumbrae and the Small Isles next March, that will be their right and their responsibility.  We hope, however that the crofters of the south-west Highlands have enough decency and sense to choose an alternative.

Other commissioners should and doubtless are taking long hard looks at their positions.

They have all been complicit, to one degree or another, in this fiasco.  Murdo MacLennan was returned from Lewis with the biggest vote of all.  For all of his experience and affability, Mr MacLennan has not defended the crofters of his own constituency from his convener’s excesses.

If, as we have often suggested, the size of the Western Isles crofting constituency was property respected and it had two or three elected commissioners, Colin Kennedy might have found some opposition within the commission’s ranks – and the grazings committees of Upper Coll and Mangersta might not have been dragged through the mire.

As things stand, Murdo MacLennan is the only Western Isles representative on the Crofting Commission.  In this important instance, however reluctantly and for whatever reasons, he has failed his voters.  If he also stands for re-election, he might not expect many voters from Upper Coll next spring.  Whether or not the crofters of the rest of Lewis stick with him is their decision.  We suggest that it is time for a change there also.

It may not be his worst offence, but Colin Kennedy’s Crofting Commission has given ammunition to those who will suggest that crofters are incapable of managing their own affairs.

Crofters themselves can refute that charge.  Six months from now they will once again be asked to vote for crofting commissioners.

In the elections of 2012 the turnout was low.  In both the Western Isles and in Skye and the West Highlands, only half of crofters bothered to vote.

That turnout should increase significantly next spring.  Crofters everywhere know by now how much is at stake.  The least they can demand of their commissioner candidates is that they refrain from mounting concerted attacks on grazings committees.

Kennedy walks out of Brora meeting and remaining Commissioners apologise and call for his resignation

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Crofting Convener, Colin Kennedy, walks out of Board meeting at Brora Golf Club and remaining Commissioners seek his resignation

Brora Golf Club – Location of the latest episode of the Crofting Soap Opera

Dramatic happenings in the world of crofting this morning in Brora.

The Crofting Commission were holding their board meeting in Brora Golf Club. It started at 9.30am this morning. On the agenda, amongst other things, was their meeting with Fergus Ewing MSP last week when they were in effect given a direction to apologise for dismissing three grazings committees from office. It was fully expected that this apology would be forthcoming after the meeting and would have to be made by the Convener, Colin Kennedy.

The BBC initially reported that:-

The Crofting Commission’s convener has walked out of a meeting at which the body was under pressure to make a public apology in a long-running row.

Colin Kennedy had earlier in the meeting refused to allow a commissioner to withdraw his declaration of interest in the dispute about common grazings.

When officials told him he had to accept the request, Mr Kennedy closed the meeting and walked out.

It would appear that the remaining commissioners then convened a Special Meeting which was posted on the Crofting Commission’s website as starting at 10.15am. They resumed the business of the day without their Convener who has been known to go into hiding before today.

An updated report from the BBC on the resumed meeting states that:-

Commissioners passed a motion calling on Colin Kennedy to stand down after he walked out of a meeting in Brora, Sutherland, earlier on Wednesday.

They have also issued a public apology for how the commission handled its dispute with the crofters.

It is understood that this apology was issued, in the Convener’s absence, by Vice Convener, I. G. MacDonald. Clearly that was the responsibility of the Convener but one that he evaded.

This apology has now been issued in writing by the Crofting Commission. It reads:-

The Crofting Commission wishes to apologise for the way it has handled recent grazings committee cases.

Three unprecedented cases have been considered by the Commission under Section 47(8) of the Crofting Act and resulted in committees being put out of office.  The decisions taken by the Commission have created a poor result for everyone involved.  The actions taken in these cases did not enable communities to work together for the benefit of crofting and in fact have had an adverse impact on the crofting community.  The Commission acknowledges that the recent decisions have caused prolonged uncertainty and anxiety not only for the three communities involved but for all crofters, and for this we are sorry.

The Commission continually seeks ways to ensure it is delivering in the best interests of crofters and will ensure that any lessons learned from the cases can inform future procedures and decision-making.  We will also continue to engage with Scottish Government to look at greater flexibility in crofting legislation.

The Crofting Commission will continue to work alongside stakeholders to develop good practice guidance for grazings committees.  We would like to reassure crofters that as the regulator of crofting, our main focus continues to be securing the future of crofting through effective regulation and we look forward to working constructively with crofters, grazings committees and crofting stakeholders.

Scottish Crofting Federation chair, Fiona Mandeville, said:-

Surely now the convener will do what he should have done weeks ago – stand down and let the people who genuinely care about crofting get on with their work. So much time and energy has been wasted during this inexcusable debacle. We have had enough of Kennedy and want to see the back of him. By his action in walking out from the board meeting today and refusing to meet the Minister’s request for an apology, we take it that he has finally abdicated.

We welcome the Commission board taking this decisive action at last and look forward to working with them to rebuild trust in the Commission and to developing strategies for crofting, taking up again all the positive initiatives which had been set aside while Kennedy was in control.

We also naturally welcome the apology issued by the board after the convener’s departure.

It is little wonder after these latest developments that his fellow commissioners have now decided enough is enough. The board had appeared split in their loyalties towards him but they have clearly realised that it is time for them to unite under the stewardship of a new convener and seek to heal the damage done as a result of ‘The Common Clearances‘.

There have been repeated calls over a number of months from crofters and from the Scottish Crofting Federation for Colin Kennedy to resign. Those calls have been ignored by him. Now his fellow commissioners are calling on him to do the same thing.

Will, however, Colin Kennedy accept the motion and stand down? Does he have any option? If he doesn’t will Fergus Ewing have to intervene?

Brian Inkster

Image Credit: Brora Golf Club

 

Crofting Commission must “swiftly resolve” Common Grazings Crisis

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Fergus Ewing MSP wants Crofting Commission to "swiftly resolve" Common Grazings crisis

Fergus Ewing MSP

The Press & Journal has published a statement by Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Connectivity, following his meeting last week with Crofting Commissioners. He said:-

During the meeting, I stressed the Scottish Government’s commitment to working with the commission to ensure it delivers an effective service for crofting, especially ahead of the crofting elections next year.

I also emphasised the need to swiftly resolve the current situation regarding common grazings committees, and made clear my view on what the commission’s board needs to do to restore equilibrium. The forthcoming elections for new commissioners add impetus to the need to draw a line under the current episode. I look forward to hearing how the commissioners intend to proceed.

The Commissioners are meeting in Brora on Wednesday, 28 September, to decide how to proceed.

Crofting Convener in Hiding

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Crofting Convener in Hiding

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

Grazings ‘Constable’ must stand aside or be removed

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Upper Coll Grazings Constable, Colin Souter, must stand aside or be removedThe Scottish Crofting Federation has written to the cabinet secretary for crofting, Fergus Ewing MSP, expressing deep concern that crofters’ democratic rights are being flouted by a constable appointed, perhaps illegally, by the Crofting Commission.

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

The majority of shareholders of the Upper Coll grazings have voted, yet this constable, whose legality of appointment is refuted by lawyers, is completely ignoring them. The shareholders have demanded that the constable, Colin Souter, who was appointed by the Crofting Commission, stands down so that they can reinstate a democratically elected grazings committee. Why is he still there?

Democracy is the very foundation of grazings committees. A lack of democratic procedure by the removed Upper Coll committee is something that the constable has been trying, unsuccessfully, to find evidence of. The shareholders have the legal right to elect their own committee and Souter is standing in their way. He must stand aside or be removed.

Judging by the press releases Souter issues, he clearly has misunderstood the role of a grazings clerk, or that of an appointed constable fulfilling the duties of clerk – were his appointment legal. He seems to be either completely out of control, or under the control of the Crofting Commission, an organisation that has lost all credibility. In addition Souter and his masters are attempting to undermine the viability of crofters’ collaborative enterprises by questioning their entitlement to SRDP and registration for VAT. Are they trying to bring to an end 130 years of crofting? The only recourse is for the Scottish Government to take control of the situation and to remove him.

This incredible situation is extremely harmful, not only to the crofting community of Upper Coll, but to crofting itself. We can understand that the Scottish Government is reluctant to interfere with a democratically elected Commission, but this constable is not democratically elected, claims to be independent of the Crofting Commission who appointed him, and is flouting democracy. There is nothing to stop the Scottish Government from doing the right thing, and it must do it now.