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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 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

Colin Kennedy and the Holy Grail

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The Scottish Farmer today gives space for Colin Kennedy, Convener of the Crofting Commission, to tell them about his “crofting crusade!”. This follows hot on the heals of a huge press offensive on his part over the past week with appearances/articles in Sunday Politics Scotland, The Oban Times and BBC Radio Highlands & Islands.

The story is the same: He is right and everyone else is wrong.

He has again stressed that his sole motivation is:-

to uphold crofting law, and defend the statutory rights of ordinary crofters

It has been shown that this is very much his own interpretation of crofting law and not one supported by the Scottish Government or by his fellow commissioners.

He has, however, again rounded on the Scottish Government and the cabinet secretary responsible for crofting, Fergus Ewing MSP, with The Scottish Farmer reporting Mr Kennedy as:-

bluntly accusing him [Mr Ewing] of perpetrating a cover-up of ScotGov’s historic role in a quagmire of maladministration.

He labours on about his views on the illegalities of common grazings obtaining SRDP funding which, as has been pointed out many times before, is not any business of the crofting regulator but a matter for the Scottish Government, the EU and crofters.

Mr Kennedy claims that:-

The commission has taken legal advice from Sir Crispin Agnew QC and it is my understanding that a grazing committee does not merit claiming subsidies, as only individual shareholders with grazing rights are eligible, provided that they comply with the provisions of the legislation for such activity.

Does Mr Kennedy have the approval of the Board of the Crofting Commission to discuss in public this legal advice obtained by the Commission? If not he is breaking that code of conduct again that he was keen to discuss on BBC Radio Highlands & Islands. This is, of course, true in relation to much that he has said over the past week.

Obtaining such a legal opinion was probably outwith the remit of the Crofting Commission in any event. It is understood that Mr Kennedy was instrumental in having it obtained. It is further understood that whilst the Board may have considered this legal opinion when produced they did not use it as a base for any decisions made.

The Scottish Government stated that it “wholly disagrees” with the views on SRDP funding held by Mr Kennedy. This would appear to include the legal opinion that he still clings to.

Those views, like his ones on VAT registration, were potentially all about depriving crofters of funding and had nothing to do with upholding crofting law and defending the statutory rights of ordinary crofters.

Mr Kennedy again showed the huge divide between himself and the Crofting Commission Board and the fact that he was not in fact supporting decisions taken by the Board such as accepting the Government’s position on SRDP and disbursement of funds.

Mr Kennedy proceeded, in his interview with The Scottish Farmer, to attack the former Upper Coll Grazings Committee stating that they:-

have a lot to answer on behalf of shareholders.

Again this is completely at odds with the position taken by the Scottish Government and the Board of the Crofting Commission who have issued an apology to the grazings committee in question.

Mr Kennedy’s position in such circumstances is completely untenable.

On the subject of Colin Souter, the grazings ‘constable’ at Upper Coll, Mr Kennedy denies any involvement in his appointment or that he is “his man“. He points the finger on Chief Executive, Catriona Maclean, for the appointment “without reference to the agreed board process“.

However, Freedom of Information requests reveal evidence that Mr Kennedy’s version of events may be one painted through rose tinted glasses. His memory again may not be serving him well.

A document produced by the Crofting Commission states:-

Following the Board meeting on 9th May the Convener, Vice Convener, and CEO met by phone to agree who should be appoint4ed [sic] to the post of Grazings constable in the Upper Coll Common Grazings.

So Mr Kennedy was very involved in the selection process.

The selection committee considered four potential candidates for the job and concluded that:-

Mr Souter has experience in working with crofters and grazings committe4ss [sic] through his time in the Police. An ex-chief inspector and force negotiator who comes from south Usit [sic] Mr Souter has both the skills and experience to deal with this matter and therefore he was selected to be appointed constable.

So Mr Kennedy was in fact party to and appointed Mr Souter to the post in question.

There is also evidence of direct communication between Mr Souter and Mr Kennedy. For example an e-mail from the former to the latter on 24 May 2016 which reads:-

Hi Colin

In looking to progress a meeting with the shareholders at Upper Coll, in the near future, I wanted to ensure the venue was appropriate and given you’ve been out there, I wondered if you had an idea on the best venue option and perhaps a secondary one, if circumstances require?

Kind Regards

Colin

Colin Souter

No evidence was produced from the Freedom of Information request as to whether or not recommendations were given by Mr Kennedy to Mr Souter on the comfort of the chairs at possible venues in Upper Coll. But this exchange does prove that there was indeed direct communication between the two as previously suggested on this blog.

Furthermore Mr Kennedy was taking a direct interest in matters by requesting to see minutes of meetings held by Mr Souter at Upper Coll, all as disclosed from information obtained through Freedom of Information.

Mr Kennedy in discussion with The Scottish Farmer refers to the whole grazings committee issue being “a can of worms” but stressed that to his knowledge it was only a problem specifically on Lewis. He is reported as having “quipped“:-

as previously stated in the board room things are often done differently in Lewis.

What about in Lochaber? Has Mr Kennedy also forgotten about the grazings committee he and his fellow commissioners put out of office there? Has he forgotten about how instrumental he was in ensuring the appointment of a grazings ‘constable’ there who would do his bidding?

It has, however, been commented on before that Lewis appeared to be a particular target for the convener. It is unclear why. But perhaps that will eventually come out in the wash.

Mr Kennedy is quoted by The Scottish Farmer as saying:-

But now I’ve put my head on the block in trying to get to grips with the truth. I know people are queuing up to get me out but I am not letting this rest. I’m not going to jump, so I will probably be pushed. If that happens my solicitor is standing by.

That solicitor will have a difficult hill to climb. The evidence seems to me to be firmly stacked against Mr Kennedy and has been since my first blog post on ‘The Common Clearances‘. Subsequent events and revelations from Freedom of Information requests has just fortified that position.

Mr Kennedy’s version of events, as given to the press this past week, appears to show a selective memory with many gaps to fill. I and others who post comments attempt to fill those as best we can on this blog.

Mr Kennedy, like Mr Souter, appears to be searching for a justification for his discredited actions. I doubt that he will ever find it.

Brian Inkster

Image Credits: Monty Python and the Holy Grail © Python (Monty) Pictures

Sunday Politics Scotland: Chaos on the Croft

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Sunday Politics Scotland on BBC One Scotland this week looked at the crisis in the Crofting Commission.

Presenter Gordon Brewer introducing the topic said:-

Now Chaos on the Croft.

The body responsible for protecting and regulating Scotland’s crofting is embroiled in some dramatic internal politics of its own.

As Len Cooksley reports pressure is increasing on the head of the Crofting Commission to resign after the Scottish Government became involved.

Len Cooksley:-

Scotland has nearly 20,000 crofts overseen by the Crofting Commission.

After suspending two local grazing committees on Lewis on the grounds of financial missmanagement it was forced into a u-turn.

There were claims the commission were both heavy handed and may have acted illegally.

Now the Scottish Government’s got involved. It called on the commission and its convener, Colin Kennedy, to apologise.

Last week Mr Kennedy walked out of a commissioners meeting. Those that remained issued that apology and then passed a vote of no confidence in Mr Kennedy.

The First Minister gave her take on events in parliament earlier this week.

Nicola Sturgeon MSP:-

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.

Len Cooksley:-

MSPs are watching developments with interest.

Tavish Scott MSP:-

There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.

What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.

Len Cooksley:-

We understand Mr Kennedy has no plans to resign but would make no further comment.

The implication is clear: either he jumps or he’ll be pushed.

Gordon Brewer:-

Well earlier I spoke to Brian Inkster who is a lawyer and blogger specialising in crofting matters.

Gordon Brewer asked:-

Well the crofting commissioners have no confidence in their leader. He won’t resign and the Scottish Government is threatening to get involved. What on earth is going on?

Brian Inkster answered:-

Well it all goes back to December time last year when they decided to put out of office a grazings committee in Lewis. The first one was Mangersta and then subsequently into 2016 they put out two other grazings committees: one in Upper Coll and the other in Lochaber.

Gordon Brewer:-

Right but what I don’t understand is that Mr Kenedy the man who is the commissioner is accused of issuing edicts on things like payments over common grazings and peoples backs are up about this. But how can he do that surely the commissioners have to decide to do this.

Brian Inkster:-

Well the commissioners should be deciding to do it. It looks as though he has been instrumental in pushing these issues forward.

There were three sort of main issues I suppose.

The first one was payment by grazings committees to shareholders in common grazings of monies that had come into grazings funds. His argument was that these monies had to be paid out immediately. So there would be immediate payment to the shareholders and if monies were required back to maintain the common grazings they would issue a levy onto the shareholders.

Nowhere in the law did it say that these immediate payments had to be made and indeed it just didn’t make any kind of logical or common sense approach to deal with it in that way.

Subsequently there were two other issues.

One was that he was seeking to stop common grazings committees receiving SRDP funding – which is really grants from the governmnet to assist in the maintenace and improvement of the common grazings.

And latterly there was an issue around VAT registration where it was being said that common grazings could not be VAT registered whereas historically they always have been.

Gordon Brewer:-

Right, now, what happened? At some point the commissioners had a vote of no confidence.

Brian Inkster:-

That was just over a week ago in Brora. That was on the back of Colin Kennedy walking out of a meeting. He closed the meeting and walked out on the basis that the commissioner for the Western Isles said he was no longer declaring an interest in the Western Isles cases which he had previously done and was now wanting to vote on any issues concerning the Western Isles.

Gordon Brewer:-

On the face of it you would think that if the commissioners have no confidence in him he has to go but he doesn’t does he because he was elected?

Brian Inkster:-

He was elected and there is nothing in the law that says if the commissioners have a vote of no confidence he must go. One would imagine that if all the commissioners are against you, if the Scottish Crofting Federation, NFU Scotland, MSPs across all cross parties and the press are all saying it’s time to go you would think what is the point of clinging on here.

Gordon Brewer:-

The Scottish Government has threatened to become involved. What can they do?

Brian Inkster:-

In terms of the Crofters (Scotland) Act 1993, Scottish Ministers have the power if they consider that a commissioner is unable or unfit to exercise the functions of a member or unsuitable to continue as a member they can then remove a member from office.

Gordon Brewer:-

Now, Brian Inkster, just to give us a little sense of what the background to this is because it is quite complicated. But is the issue underlying all this the use of land and the fact, for example, wind farms wants to come in or housing wants to come in and it is about whether the common ground is allocated to the community the funds from it or to individuals.

Brian Inkster:-

It is linked to the funds that come into a common grazings. On a common grazings, especially as you mentioned wind farming, so in recent times the potential for larger sums of money to come into a common grazings exists. And it is linked to the distribution of those monies and there was an insistance on the part of the convener that those monies had to be paid out as soon as it was received. That there was no ability to hold onto the money to use it to spend on improvements within the common grazings. The Scottish Government said that was not the correct view in law.

Gordon Brewer:-

Alright, we will have to leave it there. Brian Inkster thank you very much indeed for joining us.

Brian Inkster:-

Thank you.

Gordon Brewer:-

Well earlier I spoke to Colin Kennedy. He is the Crofting Commission boss who is in the middle of all of this controversy. I spoke to him on the telephone from Coll.

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.

Gordon Brewer:-

But the Scottish Government has said it has the power to get involved. If they do get involved and say you have to go you will have to go won’t you?

Colin Kennedy:-

That will be the case, yes.

Gordon Brewer:-

So just to be clear on that. If the Scottish Government says look given that your commissioners have voted no confidence in you we don’t think you can stay in post you will have to resign.

Colin Kennedy:-

That may be the case.

Gordon Brewer:-

Why are you so determined? You walked out of the meeting didn’t you, the other week? Why have you fallen out with all of the commissioners?

Colin Kennedy:-

No I didn’t walk out of a meeting.

I formally declared the meeting closed in light of an advancement by a commissioner supported by the deputy accountable officer that they had obtained information from the standards commission which I requested sight of prior to determination which failed to materialise.

Accordingly given the nature of the business at hand I had no alternative other than to formally close the September meeting of the Crofting Commission prior to my departure.

Gordon Brewer:-

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:-

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.

Gordon Brewer:-

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

Colin Kennedy:-

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.

Gordon Brewer:-

So right. If they still have confidence in you why would they do that?

Colin Kennedy:-

I couldn’t comment on what they do at informally constituted meetings.

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.

Gordon Brewer:-

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:-

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.

Gordon Brewer:-

Alright Colin Kennedy we have to leave it. Thank you very much for joining us.

Colin Kennedy:-

Thank you.

N.B. For a limited period (29 days) you can watch this episode of Sunday Politics Scotland on iPlayer (at about 54 minutes in)

Image Credits: Sunday Politics Scotland © BBC Scotland

Either he Jumps or he will be Pushed

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Sally Magnusson – BBC Reporting Scotland

Reporting Scotland took up the Broragate story yesterday following the questions asked by Tavish Scott MSP at First Minister’s Question Time on Thursday.

Sally Magnusson introduced the news item:-

Pressure is mounting on the head of the Crofting Commission to resign after the First Minister warned that the Government would intervene if it didn’t put its own house in order.

This follows a turbulent few months during which the Commission was forced to apologise to crofters in the Western Isles and then passed a vote of no confidence in its own convener.

Craig Anderson – BBC Reporting Scotland

Craig Anderson explains:-

Its feared by many as an idylic lifestyle, part time farming on small parcels of land with tiny rents.

There are almost 20,000 crofts in Scotland protected and regulated by government agency the Crofting Commission.

But the body is imploding. It suspended two local grazings committees in Lewis earlier this year on the grounds of financial mismanagment but was forced into a u-turn when that was ruled heavy handed if not illegal.

Brian Inkster commented:-

It all begins with the common grazings committees having been put out office. There were two put out of office in Lewis and one in Lochaber. It is really how the Crofting Commission has gone about that and the uproar that has caused.

Convener of the Crofting Commission, Colin Kennedy, storms out of the board meeting in Brora

Craig Anderson continued:-

The Scottish Government then called on the commission and its convener Colin Kennedy to apologise to the crofters involved.

Last week he stormed out of commissioners meeting. They issued an apology and then passed a vote of no confidence in Mr Kennedy.

So who’s running the show the First Minister was asked at Holyrood yesterday.

Nicola Sturgeon MSP answered:-

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.

Colin Kennedy and other crofting at Brora before he ended the meeting and walked out

Colin Kennedy and other crofting commissioners at Brora before he ended the meeting and walked out

Craig Anderson pointed out:-

I contacted Mr Kennedy at his home on the Island of Coll by phone earlier today and he told me he had no plans to resign but would make no further comment.

But the implication of the intervention by Nicola Sturgeon is clear: either he jumps or he will be pushed.

Tavish Scott MSP said:-

There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.

What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.

Craig Anderson asked:-

But does any of this really matter to the people who actually live and work in our crofting communities?

Brian Inkster – Crofting Lawyer

Brian Inkster responded:-

People being removed from office unfairly and unjustifiably has a huge affect on small communities. Allegations made about people that have not been proven to be correct. It has split/divided communities, caused lots of problems.

Craig Anderson rounded the news item off:-

There is a saying that a croft is a piece of land surrounded by legislation. It’s an old joke, but never was a truer word spoken in jest.

Few tears should be shed

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The 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.

Souter to step down “as soon as possible”

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Colin Souter was about to escape the life in a goldfish bowl he had created for himself as grazing ‘constable’ at Upper Coll.

The Crofting Commission announced today that Colin Souter is to step down as Grazings ‘Constable’ at Upper Coll on the Isle of Lewis “as soon as possible”.

The official statement reads:-

The Crofting Commission confirmed today that it has written to shareholders of Upper Coll Common Grazings to advise that the grazings constable will be stepping down as soon as possible.

The move follows the submission of a report from the constable, which was considered at a special meeting yesterday. The report will also be circulated to shareholders.

In the letter, the Commission encourages shareholders to work together in appointing a new grazings committee in line with crofting legislation.

This follows on from the direction given to Commissioners by Fergus Ewing MSP last week. The decision was made by Commissioners at a Special Meeting in Brora yesterday in the absence of the Convener, Colin Kennedy, who had walked out on the earlier convened meeting that morning.

Mr Souter’s appointment was seen by me, and others as illegal. Ironically a report by the executive of the Crofting Commission to their board also considered this to be the case.

Mr Souter was also criticised for taking on an investigative role and seeking to find some sort of fault at Upper Coll rather than assuming the role of grazings clerk with the day to day management function that goes with that role.

He sought to impose the views of a minority on the majority. He liked to report his ‘findings’ on a regular basis to the press.

Whilst Mr Souter claimed he was independent from the Crofting Commission it was clear that they were working hand in hand and indeed, on the face of it, Mr Souter was simply a Commission puppet.

The vast majority of shareholders at Upper Coll will be relieved by this latest news.

However, they may not be celebrating just yet. At least not until they see how long “as soon as possible” turns out to be.

A new committee has already been elected by the shareholders and the Crofting Commission would do well to simply accept that committee rather than insisting on further procedure, possibly involving Mr Souter, to achieve the very same end result.

Brian Inkster

New Grazings Committee formed at Upper Coll

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At a meeting in Upper Coll on the Isle of Lewis tonight, 10 September 2016, 17 shareholders (another 5 shareholders gave their apologies) met to form a new Grazings Committee. Four
shareholders were duly elected: Kenneth Macdonald, David Maclean, John Stewart and Scott Macrury.

Shareholders also agreed that another member could be co-opted at a later date.

A Petition signed by 26 shareholders was presented at the meeting stating:-

I support the election of a new Grazings Committee to run the affairs of Upper Coll Township. I also request the removal of the illegally imposed Grazings Constable with immediate effect.

The Factor of the Stornoway Trust was also in attendance and spoke to shareholders about certain public statements made by the ‘constable’. He felt that some of these needed correction. He duly did this.

The Crofting Commission were to be informed of these democratic decisions.

View from the Crofting Law Blog

It is to be hoped that the Crofting Commission accept these democratic decisions and ensure, in light thereof, that the Grazings ‘Constable’ (illegally appointed in my opinion and in the opinion of others including, rather ironically, the Crofting Commission itself) steps aside, hands over all documentation pertaining to the common grazings and returns control of the bank account to the new committee.

If they do not then the Scottish Government should step in once more and ensure that they do.

Brian Inkster

A chair fit for a Crofting Convener

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Is this comfy enough for you sir?

We have just, in the last post, been reminded about the conflict of interest on the part of the Convener of the Crofting Commission, Colin Kennedy, over goings on at Upper Coll.

This was where Colin Kennedy appeared to be instrumental in taking a decision to remove the former grazings committee from office. This was at a point where a formal complaint was still being dealt with by the Crofting Commission concerning his handling, as chairman, of a meeting of shareholders held at the Back Football and Recreation Club, Upper Coll, Isle of Lewis on 10 November 2015.

One of the more bizarre episodes (although there have been and continue to be many) in the whole Common Grazings debacle is how the Crofting Commission initially responded to that complaint.

One of the complaints arising from the meeting in question (and there were several) was that the meeting was chaired by Colin Kennedy in “an arrogant and dismissive manner“. This is how the Crofting Commission responded in writing to that particular element of the complaint:-

All members of the Commission who attended the meeting commented on the quality of the venue. They all complained about the seating arrangements which did not let them get their legs under the table which would have allowed them to sit up straight which may have led attendees to think the panel were being too casual. They also said the lighting was poor and general presentation of the room did not contribute to creating a positive atmosphere. The Commission agree that this is not helpful and have put in place a mechanism to check venues prior to meetings to ensure that they meet requirements. This includes discussing requirements in advance with providers and going to the venue prior to the meeting to check it is laid out as well as possible.

What! A complaint about the manner in which a meeting has been conducted by the Convener is turned around to being down to the meeting room in a crofting township not having adequate seats or lights!

I have, over the years, had plenty of meetings with crofters in village halls or similar venues throughout the crofting counties. They may not always be up to the luxurious surroundings enjoyed by Commissioners at Great Glen House but the facilities are always more than adequate for the purpose required.

The Land Court often have lengthy hearings in such halls and I have never heard a complaint from them about the facilities at hand.

As a crofting regulator you should accept the need to travel to the crofting counties and graciously accept the facilities offered to you. To suggest that those facilities are the root cause of the “posture, conduct and demeanour” of the Convener is surely a joke.

Are the Commission really now checking venues prior to meetings to ensure that they meet requirements? If they had a meeting in the far north reaches of Unst in Shetland, for example, would a scout from Great Glen House be flown up in advance to check that the seats were fit for the Convener? This would be at an additional cost of several hundred pounds to the public purse. If the facilities did not meet the high standards clearly required would a suitable chair then be flown in?

You couldn’t make it up.

Brian Inkster

Conflict of Interest at Upper Coll

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