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Crofting Commission appointments and unfinished business?

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Crofting Commission appointments and unfinished businessThe 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

Secret meeting declares Brora meeting valid

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Crofting Commission 'secret' Special Meeting

Crofting Commissioners meet to debate legality of their previous meeting

In my last post I considered the background to the ‘secret’ special meeting of the Crofting Commission that was to be held in Inverness this morning. It had been requested by the Convener of the Crofting Commission, Colin Kennedy, purportedly to seek to overturn the decisions taken after he walked out of the Brora meeting.

Mr Kennedy has maintained in statements to the media that the Brora meeting was ultra vires (illegal). It is assumed that he was to argue this at the special meeting called by him this morning even although I pointed out yesterday that it would be a clear conflict of interest for him to participate in any decision making process in this regard.

It was reported by the BBC that at the start of the meeting commissioner David Campbell (West Highlands) made a motion for the meeting to be held in public for the purposes of natural justice, accountability and transparency to the ordinary crofter.

However, none of the other commissioners in the room (who are all crofters) were willing to second this motion. Thus the meeting proceeded in secret and out of honourable principle Mr Campbell departed the meeting at the same time as the press and public were excluded.

David Campbell departs the meeting as it was being held in private rather than public

David Campbell departs the meeting as it was being held in private rather than public

Commissioner Murdo Maclennan (Western Isles) did not attend the meeting. It was reported by the BBC that this was due to a threat of legal action against the Commission/Commissioners by the Convener.

Thus the secret ‘cabal’ consisted of:-

  • Colin Kennedy (Convener) – South West Highlands
  • Ian George Macdonald (Vice-convener) – West Highlands
  • Kathleen Sinclair – Shetland
  • Arnold Pirie – Caithness and Orkney
  • Marina Dennis – East Highlands

However, at the end of the day (after a 6 hour meeting) the Convener didn’t appear to get his way.

Bill Barron confirms that the Brora Meeting was valid

Bill Barron confirms that the Brora Meeting was valid

The official statement issued by Interim Chief Executive Bill Barron to the BBC after the meeting stated:-

At the request of the Convener, the interim CEO called a special meeting of the Crofting Commission on Friday 9 December 2016.

The Commissioners present reaffirmed the importance of working together effectively in the final months of their terms.

The Board also discussed the status of the meeting held in Brora in September and how to move forward.

The Board decided that there was one meeting in Brora which took place in two valid parts, the meeting previously referred to as a special meeting being a continuation of the scheduled Board meeting.

Any consequences from this will be considered at their Board meeting on Wednesday 14 December 2016.

So six hours to decide that the two meetings in Brora (one with the Convener present and one without him after he walked out) were in fact one meeting held in two parts. It is assumed that legal advice had been sought on this (the Commission’s lawyer was evident in the film of the meeting shown on BBC Alba tonight) and that such advice conflicted with the Convener’s own interpretation which may well have been ingenious but flawed.

So there we have it: The Convener’s publicly stated position on the Brora meeting has been wrong from the outset. But will he now accept that?

The official statement says that any consequences from this will be considered at the Board meeting on Wednesday. Surely there are no consequences as such if the meeting was a legally held one. Is it not just a case of approving the minutes and moving on? Or are the consequences linked to the Convener’s stance on the meeting being ultra vires? After all in terms of the Standing Orders [PDF]:-

Once a decision has been reached, all members have a corporate responsibility to recognise and accept the decision as that of the Crofting Commission. Corporate responsibility entails that members must adhere to and accept such a decision until it is otherwise altered.

We will no doubt find out on Wednesday!

Brian Inkster

Image Credits: © BBC Alba

A Crofting Cabal?

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Is there a cabal within the Crofting Commission?

Is there a cabal within the Crofting Commission?

It was revealed by the BBC yesterday morning that Colin Kennedy, Convener of the Crofting Commission, has requested a special meeting of the Crofting Commission to take place this coming Friday, 9 December 2016 (i.e. tomorrow).

The meeting is apparently to be held in private and concerns consideration of the decisions taken by the Commission at Brora after the Convener walked out of the scheduled Board meeting and a special meeting had to be called to enable Commission business to be transacted.

It is not clear but has been suggested that Colin Kennedy may be seeking to cancel or reverse the decisions taken by the Crofting Commission at Brora. He has previously stated his personal view that this meeting was ultra vires (illegal) .

I was asked by BBC Alba to comment on this development and did so in an interview that was broadcast on An Lá yesterday evening. This blog post will cover and expand upon the points I made to BBC Alba.

Ability to call a Special Meeting

In terms of the Standing Orders that govern the conduct of Crofting Commission meetings [PDF] the Convener has the right to call a special meeting.

Public Notice

Again in terms of the Standing Orders public notice of a meeting of the Commission will normally be given by posting a Notice on the Crofting Commission website at least 4 days before the meeting.

However, public notice is not required where a special meeting is convened to deal with a matter of a particular sensitive nature.

When the BBC revealed yesterday that this meeting was to be held on Friday no public notice had been given and there was less than 4 days to go before the meeting was to take place.

Did this mean that a matter of a particular sensitive nature was to be dealt with on Friday?

If so it must have been decided by the Board that the matter was of a particular sensitive nature as the Convener alone cannot decide that in terms of the Standing Orders.

However, at some point yesterday (after the BBC revealed what the Convener was up to) a public notice appeared on the Commission’s website intimating that a special meeting was taking place at 10am on Friday 9 December 2016 at the Glenmoriston Hotel, Inverness.

Presumably that meant that the matter to be discussed on Friday was not actually of a particular sensitive nature or that Board approval to it so being had either not been sought or had not been given. Having said that item number 3 of the Agenda [PDF] is the “exclusion of press and public”. So the meeting may still be held in private if the commissioners decide that is appropriate on Friday. Interestingly that Agenda does not tell us what the business to be discussed is other than simply stating “Business that requires special urgency“.

Should the meeting be held in private?

In terms of the Standing Orders:-

Members of the press and public are entitled to attend meetings of the Commission. However, the Commission may determine that matters of a confidential or sensitive nature should be considered without the press or the public in attendance.

If the special meeting is indeed being convened to discuss the legality of the Brora meeting then as that meeting was held in public surely this one should be too?

It is already a matter that is in the public domain and one that Colin Kennedy has been outspoken about publicly in the media. It is surely therefore in the public interest that any debate covering it should be held in public and not in secret.

There appears, on the face of it, to be nothing confidential being discussed and the only sensitivities involved are those that may affect the Convener himself. Therefore there appears no good reason for the Commission to exclude the press or the public from tomorrow’s meeting.

Declaration of Interest

The Standing Orders state:-

A member of the Commission, or any officer working on behalf of the Commission, who has a direct or indirect interest in a matter being considered at a meeting of the Commission or a committee of the Commission, must disclose the nature of the interest to the meeting.

Any attempt to reverse the decision of the Brora special meeting is a matter that the Convener clearly has a direct interest in. Thus he would have to declare that interest and not take part in the meeting. Indeed, on that basis, it is questionable whether a special meeting could be called by the Convener where he is conflicted in the subject matter at hand.

Any failure by the Convener to declare an interest tomorrow will surely be questionable in the extreme.

Can the decisions made at the Brora meeting be reversed?

During the Common Grazings crisis the line peddled continually by the Commission, and supported by the Convener, was that decisions taken by the Commission cannot be altered once made and the only recourse that anyone has to do so is through the courts. Thus if this is the case should he not, if he considers he has a legitimate right to do so, personally be pursuing matters through the courts rather than via secretly convened meetings?

It has not, however, stopped the Commission from rewriting its history before now.

I trust that the interim Chief Executive of the Crofting Commission, Bill Barron, will have chapter and verse on this area from the Commission’s legal advisers to present to commissioners before the meeting commences tomorrow.

Does the Convener have support from fellow commissioners?

It has been mooted for some time that there was a divided board with some members under the spell of the Convener and others less enchanted by him. The weight possibly swung in the Convener’s favour following the resignations of Susan Walker and William Swann. However, in his absence at the special meeting in Brora there was a unified front from all the commissioners that his behaviour warranted a call for him to resign.

Perhaps the former cabal (as some have called it) has been reformed and is prepared to do the Convener’s bidding on Friday regardless of the legalities, morals and ethics that may be involved.

The identity of the members of that cabal may also become clearer depending on how things pan out tomorrow.

The public purse

It has also been questioned whether it is in the public interest for a special meeting to be called just three working days before a scheduled board meeting. Surely any matter arising could be dealt with as an additional agenda item next Wednesday? Think of the cost of commissioners travelling to Inverness from as far afield as Shetland, Orkney, Lewis, Skye and Coll twice in one week for two meetings that could have easily been dealt with as one. Presumably officials based in Edinburgh will be doing the same.

Special meetings but not Board meetings

It should also be noted that when several commissioners could not apparently attend the last scheduled Board meeting it was postponed and a new date was “being arranged” and was to “be notified as soon as possible“. No such new date was ever arranged. But it seems that whilst the Commission could not arrange a new date for a major Board meeting they have no problem doing so for a questionable special meeting. Odd that.

Minutes of the Brora meeting

As a result of the last Board meeting not taking place the minutes of the Brora meeting have yet to be approved. That is scheduled to happen at the next Board meeting next Wednesday. Can a special meeting take place tomorrow to consider a meeting the minutes of which have yet to be approved? Surely any such meeting, if even competent, should happen only after and not before approval of the minutes?

Irony

It is also somewhat ironic that the legality of a special meeting is being called into question by a special meeting being convened that, unlike the Brora one, is highly questionable in itself.

The hole gets bigger

The governance of the Crofting Commission is currently under review by the Scottish Government. Antics such as these can only add fuel to the fire.

Brian Inkster

Image credit: ‘There is no cabal on Wikipedia‘ by Rama, Wikimedia Commons, Cc-by-sa-2.0-fr

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.

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

Image Credit: Police Academy © Warner Bros

 

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