Tag Archives: Iain MacKinnon

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

Conflict of Interest at Upper Coll

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conflict-of-interest-at-upper-collOur last post on this blog raised once more the issue of conflict of interest on the part of the Convener of the Crofting Commission, Colin Kennedy, over the Upper Coll affair. This, for completeness, is a good point to remind readers of the detail of that conflict of interest. We therefore now reproduce, with the author’s kind permission, a letter by Dr Iain MacKinnon that first appeared in the West Highland Free Press in July 2016:-

On 9th December 2015 the Crofting Commission removed from office the entire common grazings committee at Upper Coll on Lewis. The minutes of that meeting disclose that its decisions were reached by consensus and that the Commission’s convener, Colin Kennedy, chaired the meeting throughout.

When that decision was made the Commission were in the process of investigating complaints from crofters at Upper Coll about the way in which Mr Kennedy had chaired a meeting in Upper Coll in November to discuss the grazings issue.

In light of this, Mr Kennedy’s decision to participate in the 9th December discussions raises ethical questions. The Scottish Government’s model code of conduct for standards in public life states that when confronted with a potential conflict of interest, members of public bodies must conduct ‘the objective test’ before proceeding. This test is severe. The member must consider ‘not only whether you will be influenced but whether anybody else would think that you might be influenced by the interest’.

Would a member of the public, with knowledge of the relevant facts, ‘reasonably regard the interest as so significant that it is likely to prejudice your discussion or decision making in your role as a member of a public body’? If there is even the possibility that a member of the public would regard the member as conflicted, then that member must withdraw.

In this instance the plain facts of the matter are that Mr Kennedy was the subject of outstanding complaints about his conduct made by members of a regulated grazings committee at the moment when the regulator, led by Mr Kennedy, took a questionable decision to remove that committee from office.

Indeed, as Mr Kennedy had chaired the November meeting between crofters and Commission in Upper Coll, we can only presume that it was on Mr Kennedy’s recommendation that the decision to sack the Upper Coll committee was made.

Mr Kennedy’s central role in the Upper Coll case casts further doubt on his judgement and fitness for public life – was it reasonable for him to have led on such a sensitive and controversial issue when he knew there were complaints outstanding against him?

We now learn that the retired policeman who was imposed by the Commission as grazings constable at Upper Coll regards himself as an independent force there and has taken it upon himself to initiate investigations that crofting lawyers believe are unlawful; in addition, it has been claimed that Mr Kennedy himself has acknowledged engaging in similar, apparently extralegal, behaviour to the current constable at Upper Coll when Mr Kennedy was acting as grazings constable around a decade ago.

The convener’s conduct in relation to Upper Coll is yet another straw on the back of the Commission donkey, already groaning under the weight of a series of related controversies about its competence and fitness for purpose. If the load of straw keeps getting heavier then at some point the accumulated weight will break the Commission’s back; the regulator will have lost the confidence of the electorate of crofters that it is there to regulate – indeed, Alastair Culbertson and Duncan MacDonald’s recent contributions to the debate demonstrate that confidence in the Commission has already evaporated even for crofters beyond Lewis.

To restore confidence in crofting regulation the Scottish Government’s recently announced review of Commission procedures must fully examine not only the organisation’s future working, but also the recent series of serious complaints which have cost it public trust.

If the practical reasoning and ethical standards of Commission members are found to be wanting, it is in the public interest for the Government to take action and to be seen to be taking action against those members upon whom responsibility is found to rest – including, if necessary, their removal from office. (Such actions should not preclude disbanding the Commission at a later date in favour of another form of regulation.)

Further, it is in the interests of the openness and transparency to which the Commission says it is “strongly committed” that the result of this investigation be fully and freely available to the crofting electorate.

Dr Iain MacKinnon

 

Dr Iain MacKinnon is researching the politics of crofting at Coventry University, although this letter is not part of his academic work.

Lochaber Decrofting Application Rejected

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Rejected Decrofting ApplicationThe Scottish Crofting Federation issued this press release today:-

The Scottish Crofting Federation has welcomed the Crofting Commission’s decision to reject as incompetent a controversial decrofting application in Lochaber that would have allowed ten houses to be built on a croft there. The SCF believes the decision is indicative of a strong new line against speculative development on croft land.

The application by Donald and Elizabeth MacGillivray to decroft part of their croft at Oldtown in North Ballachulish followed the couple’s successful planning application for the right to turn the majority of the croft there into a housing development. Their planning application was eventually passed on appeal by a single Scottish Government reporter based in the Lowlands, despite having first been rejected by Highland Council’s planning committee. It had been opposed by local crofters.

The MacGillivrays, who are long-term absentees from the croft, lodged their decrofting application before the new 2010 Crofting Act came into force. The 2010 Act granted new powers to the Commission to oppose speculative development on croft land. Because the MacGillivrays application was to be decided in terms of the pre-2010 legislation fears were raised that the Commission might therefore be forced to approve it.

However, after a hearing in Ballachulish earlier this summer, the Commission have now rejected the MacGillivrays’ decrofting application as incompetent and have returned it to the applicants after concluding from the evidence presented by the applicants’ legal agents that “the occupied extent of the croft and the owned extent do not coincide”.

Iain MacKinnon, who researched the Oldtown case on behalf of SCF, said: “Our understanding is that if the MacGillivrays now resubmit a decrofting proposal for their land at Oldtown they will have to do so under the terms of the 2010 Act, which has much stronger provisions against speculation. The SCF warmly welcomes the Crofting Commission’s decision at Oldtown and the broader policy shift we believe it represents. Although the Commission were not able to use their new powers against speculative development in this case, it seems clear to us that their decision here is indicative of a strong new line against speculation that, in future, will be supported by further powers.

“What is of even greater significance now is that this unwelcome proposal at Oldtown has shown that there is a desire to revitalise crofting in North Ballachulish. With such enthusiasm in the locality the different bodies with responsibility for crofting regulation and development now have the chance to turn a threat for crofting into an opportunity for crofting.”

It is interesting that the application has, in effect, been rejected on a technicality rather than following an exploration of the substantive issues involved. Readers of this blog will know that the Crofting Commission appear to like using technicalities when they can to put off the day that they will actually have to make a real decision on an application to decroft.

It is understood that the rejection of the MacGillivrays’ application as incompetent was in response to an apparently critical issue raised at the application hearing by a lawyer acting on behalf of the local grazings committee. He raised the question “as to whether the whole of the croft owned and/or tenanted is occupied by the applicants”.

In response the Crofting Commission concluded:

In the absence of any evidence that the applicants own the full extent of the land occupied by them as part of their croft (such as another disposition by the landlord) or any adequate explanation by the applicants, the Commission have assumed that part of the croft remains tenanted.

The Commission have returned the application to the applicant’s agent as incompetent on the basis that it is not clear from the plans provided whether part of the occupied croft extent (as shown by the Crofting Commission plan approved by the applicants) still remains in tenancy and how much of the croft is owned.

It is possible then that the MacGillvrays’ could now fall into the ‘alien’ category previously highlighted on this blog and, if so, their status would be presently unknown, in the eyes of the Crofting Commission, for the purposes of decrofting. Thus a fresh application to decroft would not be considered by Crofting Commission until such time as they resolve what that status actually is. More about what the Crofting Commission are doing (or perhaps not doing) with regard to ‘alien’ status will be discussed in my next blog post.

Brian Inkster