Tag Archives: Susan Walker

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

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

Why are the Crofting Commissioners not meeting?

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Why are the Crofting Commissioners not meeting

No commissioners to be seen at Great Glen House this past week

Following the controversial Crofting Commission board meeting in Brora their next one was set down to take place at Great Glen House in Inverness on 9 November 2016. However a few days before the date of that meeting a notice appeared on the Crofting Commission’s website stating that:-

The Board meeting due to take place on 9 November has been postponed, as several Commissioners are not available on that date. A new date is being arranged and will be notified as soon as possible.

This is quite extraordinary. These meetings are scheduled months, perhaps a whole year, in advance. Commissioners know when they are happening and should be available for them. There will always be occasions when a commissioner can’t make the meeting for good reason but the meetings continue regardless with those who can attend.

Meetings of the Crofting Commission  must consist of at least five members. Where there are three or more elected members, the quorum must include no fewer than three such members.

There are currently seven commissioners in post out of the nine possible, with two positions waiting to be filled following the resignations of Susan Walker and William Swann.

So were at least three of the commissioners not able to attend the meeting on 9 November and if so why not?

Commissioners may attend meetings by videoconference or by teleconference if not able to attend in person. Is it really the case that at least three commissioners could not attend in person and could not attend by videoconference or by teleconference?

There does not appear to be anything in the Standing Orders relating to the Conduct of Meetings for the Crofting Commission allowing the postponement or rescheduling of a meeting in advance of it taking place once a date has been fixed.

There are provisions on the day of the meeting if a quorum is not present for the Convener to allow ten minutes before adjourning the meeting and fixing a time, then or afterwards, for it to take place.

As often seems to be the case these days the Crofting Commission appear to be ignoring the rules and making it up as they go along.

It has been suggested by some that the divisions within the board, and the position that has prevailed since the Brora meeting, mean they simply cannot meet and cannot make decisions at board level. At least not whilst the current Convener remains in post.

Bill Barron, on being appointed interim Chief Executive, said:-

I am looking forward to working with everyone at the Crofting Commission and our partners, to ensure that the Commission remains focused on giving a good service to crofters, promoting and protecting the interests of crofting, and providing effective regulation.

Not a good start to his watch for him to allow the first board meeting to be cancelled. There is clearly actually a severe lack of focus on giving a good service to crofters, promoting and protecting the interests of crofting, and providing effective regulation.

Meantime the Scottish Government has formally announced its review into the governance of the Crofting Commission. The latest goings on at Great Glen House, this past week alone, demonstrate how necessary such a review actually is.

Brian Inkster

An elective despotism is not the Crofting Commission we fought for

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An elective depotisim is not the Crofting Commission we fought forThomas Jefferson said:

An elective despotism is not the government we fought for.

This week the Scottish Crofting Federation called the Convener of the Crofting Commission, Colin Kennedy, a deluded despot. Perhaps they are now thinking that an elective despotism is not the Crofting Commission they fought for.

An elected Crofting Commission (6 out of the 9 commissioners – with the other 3 being appointed) was introduced by the Crofting Reform (Scotland) Act 2010. The Scottish Crofting Federation supported this move. Before that all commissioners of the Crofters Commission were appointed.

At the time the then environment minister, Stewart Stevenson, said:-

The Scottish government wants to give crofters a voice to determine their own future and these first ever Crofting Commission elections is a solid step down that road.

The Scottish government believes crofts that are occupied and worked can be the biggest contribution to the sustainable economic growth and development of our crofting communities. Having an effective regulator is a vital part of achieving that aim.

The first Convener of the new Crofting Commission was Susan Walker who was appointed by the Scottish Government. At the time some thought that process should have been delegated to the commissioners themselves.

Patrick Krause, Chief Executive of the Scottish Crofting Federation, said:-

Clearly the minister doesn’t have enough confidence in the commission to allow them to choose their own convener.

Elsewhere we have heard of the spread of democracy through the Arab Spring.

Is it not time to allow democracy to apply in crofting and to have a Crofting Spring where the commission can be allowed to make its own decisions?

Tavish Scott, Shetland Liberal Democrat MSP, said:-

This is a terrible decision and is consistent with the command and control being exercised by the SNP government on a whole range of issues.

They won’t make an appointment unless they are sure the person passes the Saltire underpants test.

Why do they not trust the people who have been elected by the crofters to make the decision?

Mary Scanlon, Highlands and Islands Conservative MSP, said:-

Given that this was the first time that commissioners were chosen with a mandate from their own communities, it seems high-handed of the minister to appoint the convener himself.

If the nine commissioners were allowed to choose from among their own number the convener would have the confidence and respect of the others. That might not be the case if the appointment is made by the minister.

Rhoda Grant, Highlands and Islands Labour MSP, said:-

To choose the convener in this way, weights the process towards the three commissioners already chosen through the public appointments system.

The minister should allow the commission to choose its own convener.

Alasdair Allan, Western Isles SNP MSP, said:-

There must be a tie between the commission and the minister because it is a public body.

The minister has a choice among all the members.

If the six members chosen by the crofters are unhappy with what the government or the commission is doing they will not be slow to say that.

There is a majority of crofters’ representatives so it is not true to say that this is an attempt to control the commission.

Some commissioners were not too slow to show that they were unhappy and organised a coup against the incumbent convener. They then insisted that they should elect the new one. The minister responsible for crofting at the time, Aileen McLeod, allowed them to do so and Colin Kennedy was duly elected.

The result has been clear for all to see. It could not have been foreseen by the representative bodies and MSPs who called for this democratic process at the outset. In light of what has happened a future crofting minister might think twice about allowing commissioners to choose a convener themselves.

Fergus Ewing MSP, cabinet secretary responsible for crofting, has instituted a governance review of the Crofting Commission. Whatever the outcome of that review it should at least attempt to avoid despotism ever appearing again within the Crofting Commission.

Brian Inkster

Few tears should be shed

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who calls the shots at the Crofting Commission?

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Who calls the shots at the Crofting Commission - I've been expecting you Mr Ewing

“I’ve been expecting you Mr Ewing”

The letter from Fergus Ewing MSP, Cabinet Secretary responsible for crofting, to Colin Kennedy, Convener of the Crofting Commission, made it clear that the Scottish Government did not share the legal interpretation taken by the Crofting Commission on (a) the distribution of funds by Grazings Committees and (b) entitlement to SRDP funding by Grazings Committees.

The letter, interestingly, suggested that the wrong views on these matters were personal ones held by Colin Kennedy and did not necessarily represent the views of the Board of the Crofting Commission. Fergus Ewing, in the letter, stated:-

At our meeting you noted that the views you expressed on these issues were in fact your own and not those of the Crofting Commission Board. This was confirmed by the Crofting Commission’s Chief Executive. As it currently stands, the Scottish Government sees little merit in your views on these issues and wholly disagrees with them. Based on a thorough consideration that we have given this matter, it is clear that our own view on these important issues is diametrically opposed to your own. I am very concerned about this and also about the risk that policy decisions at the Crofting Commission may be taken without a clear mandate from the Crofting Commission’s Board.

If this is the case then although the Crofting Commission Board may not have shared Colin Kennedy’s views on the distribution of funds by Grazings Committees decisions were still made that forced or sought to force Grazings Committees to empty their bank accounts, put them out of office and replaced them with illegally appointed grazings constables. How did this happen?

BBC Reporter Jackie O’Brien said on 17 August 2016 that:-

I did speak to him [Colin Kennedy] last night. He is adamant that he has done nothing wrong. He claims that all of the decisions which have been made have been made during/since he has been Convener have been based on papers supplied by the Commission’s executive.

He has also insisted that not a single matter on this has ever had to go to a vote or at board level and he says that all decisions are taken by means of reasoned debate and consensus.

If he admitted to Fergus Ewing that the views were his own and this was backed up by Catriona Maclean, Chief Executive of the Crofting Commission, then clearly decisions were not actually based on papers supplied by the Commission’s executive.

Also if these views were his own and not shared by the Board how was it that “not a single matter on this has ever had to go to a vote or at board level” and “that all decisions are taken by means of reasoned debate and consensus“?

Or has there never been a vote at board level because the decisions have already been taken by the Convener?!

Colin Kennedy has either been misleading Fergus Ewing MSP or Jackie O’Brien because the statements made by each of them do not correspond.

The inference, however, from the Fergus Ewing letter is that Colin Kennedy has been calling the shots at the Crofting Commission and that policy decisions may have been taken without a clear mandate from the Crofting Commission’s Board. If this is the case it is concerning indeed.

It is also rather ironic that the last Convener, Susan Walker, was ousted from office in a coup by certain Board members because there had been growing concern amongst her fellow commissioners over her style of leadership with it being alleged that she had assumed the role of an executive chair, rather than that of primus inter pares – first among equals. Whether or not Susan Walker was actually behaving in this way, and I have seen no evidence to suggest that she was, it would appear that her replacement, Colin Kennedy, is!

Crofting Commission meet at Great Glen House to discuss Common Grazings Committees on the Isle of Lewis

“Our target, commissioners, is the Isle of Lewis”

At the time it was reported that even the Chief Executive of the Crofting Commission, Catriona Maclean, had privately criticised the way Commissioners handled the affair and she went further, with one internal note suggesting the Commission may have underplayed the level of division within their board during discussions with Government. Writing shortly after the convener’s resignation she said that, while the Commission “wanted to reassure the Minister [for Crofting] that they were keen to move forward in a united and positive way”, her own view was that there were “still differences of opinion on the merits of what happened”. In a later commentary she specified disagreement between board members which will require “a focus on healing”.

It would appear that this disagreement between board members still subsists with no sign of any healing. If anything the wound has perhaps deepened.

If the cause of this is a commissioner who dictates his views on the others and those views are “diametrically opposed” to those held by the Scottish Government then there appears to be a conflict that requires to be resolved. It may not be one that can easily be resolved without the intervention sought by many.

Brian Inkster

Images Credit: Thunderball © Eon Productions Limited / Danjaq, LLC – 007.com

No let up on the Common Clearances crisis whilst on holiday!

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No let up in the Common Clearances whilst in Morocco

Could I really escape the presence of the Crofting Commission in Morocco?

I have been in Morocco on holiday for the past couple of weeks. The run up to getting away and being away has meant a lull in reporting by me on The Common Clearances.

The last time I was in Morocco coincided exactly with the Scottish Government’s one week consultation period on the Crofting (Amendment) (Scotland) Bill. A bill that arose from the Decrofting Debacle unnecessarily and unjustifiably created by the Crofting Commission. Notice a theme?

I spent that week writing detailed submissions and drafting a better (in my view) bill for the Scottish Government and submitting it to them from Marrakech. A civil servant was to later tell me that my intervention was unhelpful. No doubt the same view is taken in the corridors of Saughton House and Great Glen House over my comments on The Common Clearances.

But it has been said that we provide a clear and understandable source of information at the Crofting Law Blog, something that you cannot get from the Crofting Commission (see ‘A Happy Crofter‘).

I decided, this holiday in Morocco, to actually have a holiday. Now I am back a quick look at the internet tells me there has been no let up in the Common Clearances crisis. As far as I can glean, so far, since I last blogged:-

  • The Crofting Commission held a meeting in Lewis with shareholders of the Mangersta Common Grazings which was chaired by Commissioner William Swann but “marred by a menacing presence” in that the Convener of the Crofting Commission, Colin Kennedy, turned up unexpectedly to observe proceedings despite having declared a conflict of interest.
  • Members of the ousted Upper Coll Grazings Committee applied for an interim interdict against the appointment of the Grazings Constable at Inverness Sheriff Court and that was refused.
  • John Finnie MSP has asked questions about the situation in the Scottish Parliament which have been answered in a fairly neutral manner by Cabinet Minister Fergus Ewing MSP.
  • Further parliamentary questions have been asked by John Finnie MSP and Rhoda Grant MSP about the issue with answers anticipated to be given by Fergus Ewing MSP on 23 June 2016.
  • Patrick Krause, Chief Executive of the Scottish Crofting federation, has written about ‘The Spirit of the Law – The inexplicable case of a public body confusing legal dogma with good sense’.
  • It was reported on Radio nan Gàidheal that another grazings committee has been put out of office by the Crofting Commission, this time on the Scottish mainland.
  • It was also reported by Radio nan Gàidheal that a grazings committee in South Uist has put themselves out of office to avoid any difficulties that may be encountered with being regulated by the Crofting Commission.
  • Commissioner William Swann has resigned from the Crofting Commission.
  • Propaganda about ‘the role of grazings committees in representing shareholders’ has been published by the Crofting Commission.
  • The former and ousted Convener of the Crofting Commission, Susan Walker, has written in the West Highland Free Press about the situation.
  • The Upper Coll Grazing Constable (illegally appointed in my view) has issued a letter to the press.

I will try to catch up on all of these developments on this blog in some detail, and share my thoughts on each, over the coming weeks. Do let me know if I have missed anything.

I also have to tell you on this blog about Inksters’ new and enhanced crofting law team (you may have read about that elsewhere before now).

So keep an eye on the Crofting Law Blog over the next few weeks for, as the ‘Happy Crofter‘ put it, an “invaluable source of information that [is] virtually impossible to find anywhere else”.

Brian Inkster

Update – 13 June 2016: The Crofting Law A-Team

Update – 14 June 2016: ‘A Menacing Presence’

Update – 15 June 2016: Common Grazings and the Spirit of the Law

Update – 16 June 2016: Crofting Commissioner Resigns over situation the Scottish Government and Crofting Commission need to sort out

Crofting Convenergate?

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Crofting Convenergate

Infamy, infamy they’ve all got it in for me!

We recently blogged on the change of Convener within the Crofting Commission. There was reference in that post to what has been called a “witch-hunt” and “a bad smell”. Three letters written by Dr Iain MacKinnon to the West Highland Free Press give more detail on what one might refer to as ‘Crofting Convenergate’. We publish them here in their entirety and as they were written (the West Highland Free Press edited the second of the three letters a little prior to publication).

Letter 1:  3 May 2015

The anonymous Crofting Commissioner quoted in last week’s Free Press claimed discontent with Susan Walker’s convenership of the Commission has “been going on for some time”.

If that is so, then why did the five alleged complainants not wait for the scheduled Commission board meeting on 13th May to raise their no-confidence motion: what sudden calamity made their ‘emergency meeting’ such an imperative? The anonymous commissioner was silent on this, as they were on any details about Susan Walker’s failings.

The Free Press then claimed they had been told: “The commissioners did not want to go on the record at this stage”.

This remarkable statement suggests the complainants have agreed collectively to leak the story anonymously while anticipating going ‘on the record’ in the future.

This would be an astonishing course of action. The conspirators must be aware there are proper procedures available to them for resolving such disputes. Instead they must have decided collectively to throw the organisation that they represent – and crofting regulation generally – into public disrepute.

This matters because section 2.1. of the Commission’s Code of Conduct states commissioners “have a duty to act in the interests of the public body of which they are a member and in accordance with the core functions and duties of that body”.

The code then states: “You have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public’s trust and confidence in the integrity of the public body and its members in conducting public business.”

The code also demands that commissioners must respect their fellows, “treating them with courtesy at all times”. The anonymous briefings clearly breach this part of the code.

If they have been jointly briefing against Susan Walker the five complainants appear to be in breach of the Commission’s Code of Conduct and liable to investigation by the Standards Commission for Scotland which polices ‘The Ethical Standards in Public Life Act’.

Additionally, “promoting the interests of crofting” is a requirement for commissioners under Part 1 of the Crofting Act and, if they are shown to have acted against this, then under Schedule 1 they can be found unsuitable to continue and dismissed.

If, as is alleged, five anonymous commissioners want to declare ‘no-confidence’ in Susan Walker, they are free to do so. However, if they have also unnecessarily called an ‘emergency meeting’ and then systematically leaked that news to the media for maximum publicity, then they have undoubtedly weakened “the public’s trust and confidence in the integrity” of the Crofting Commission and they have brought their own positions within it into disrepute.

If this is the case, the Crofting Minister must consider whether such people are fit for public office. If it turns out that, in fact, the anonymous briefings have been instigated by one or two individuals, without the consent of other complainants, then those complainants who have been used in this way need to think carefully about the ugly, cowardly whispering campaign of which they are now part.

Letter 2: 18 May 2015

I would like to add to the tributes offered to former Crofting Commission convener, Susan Walker. My primary reason for writing is as it was two weeks ago – not as a friend and one-time colleague of the former convener, but as someone concerned about the future well-being of crofting tenure.

The whispering campaign against Susan Walker began in the media at the end of last month. Since then, her work on behalf of crofting throughout the Highlands and Islands has been praised by the Scottish Crofting Federation and the chairs of the Scottish Parliament’s Rural Affairs Committee and Cross-Party Group on Crofting.

It is worth reflecting on the breadth of that support. It includes the crofting representative body, the senior parliamentarians on crofting issues and also the Scottish Government itself. All appear to believe that “the new enlightened way in which the Crofting Commission functions” has been in part the result of Susan Walker’s leadership, and had given grounds for optimism for a tenure system that had previously been described, almost universally, as “failing”.

Her critics, on the other hand, appear to comprise her disaffected former colleagues and one or two newspapers. One of these newspapers is the Free Press – with one columnist dismissing her as a ‘trusty’ in the pocket of Government.

While the Free Press’ editorial two weeks ago gave an admirably clear argument for a fully elected Crofting Commission, it also acknowledged that the newspaper publicised the conspiracy against Susan Walker without knowing what she is said to have done wrong.

So what has Susan Walker been doing right these last three years? The contrast between Taynuilt and North Ballachulish indicates the Commission’s wider change in attitude under her leadership. In 2005, when ten houses were proposed on croft land in Taynuilt, the old ‘failed’ Crofters Commission folded to the developer’s demands with barely a whimper. By contrast, under Susan Walker’s leadership the new Commission has taken its opposition to the current plan for ten houses on a croft in North Ballachulish all the way to the Land Court.

This principled opposition was not the result of new legislative requirements but of a new determination within the Commission itself. The wide-ranging praise Susan Walker has received in recent weeks suggests this step-change has been noted throughout the organisation’s work.

The commissioners responsible for the covert briefings against her have breached standards required for public life and brought the Commission into disrepute. They have lost the trust of government and have surely failed the trust of those who elected them to turn around the mess they inherited. It would be a real service to crofting if the Free Press were to disclose their identity.

The media coverage no doubt greatly reduced the opportunity for a mediated process within the commission to resolve the conflict and allow Susan Walker to continue the good work she had started. The unstinting dedication for the good of crofting that she brought to her role will leave the commission with her.

Letter 3: 23 June 2015

The Minister for Crofting, Aileen McLeod, this week told the Crofting Commission she is “very pleased to support their proposal on the selection of a new convener”.

However, files I obtained from the Commission last week through Freedom of Information legislation reveal that the conduct of Commissioners has been privately criticised by the Minister, with an unnamed official expressing Dr McLeod’s disappointment “at events being played out through the media” following the conspiracy against former Commission convener Susan Walker at the end of April.

A full two months after the conspiracy against Walker began, no credible information has yet been forthcoming from any Commissioner or from Government about the nature of the problems Walker is supposed to have created. The Commission is even refusing to name those Commissioners who organised the proposal of no-confidence against her – removing all but one signature from the copy they sent me of the letter in which some Commissioners put that proposal forward.

Dr McLeod’s disappointment does not stand alone. Crofters, crofting administrators, the Scottish Crofting Federation and a senior Member of the Scottish Parliament have all criticised the behaviour of the Commissioners involved in the move against Walker.

One crofter, summing up his views on social media, concluded that the Commission is in “chaos” and “disarray”, and presently not fit for purpose.

According to the FoI files, even the chief executive of the Crofting Commission, Catriona Maclean, has privately criticised the way Commissioners have handled this affair and she has gone further, with one internal note suggesting the Commission may have underplayed the level of division within their board during discussions with Government. Writing shortly after the convener’s resignation she said that, while the Commission “wanted to reassure the Minister [for Crofting] that they were keen to move forward in a united and positive way”, her own view is that there are “still differences of opinion on the merits of what happened”. In a later commentary she specified disagreement between board members which will require “a focus on healing”.

Such is the sorry state of the crofting regulator. It seems everybody knows it, yet no-one in Government or the Commission is willing to admit it, and, so far as their public statements go, it appears there will be no attempt to investigate what has really gone wrong at the Commission – and to investigate why at least one Commissioner seems to be allowed to break the organisation’s code of conduct with impunity.

Indeed, this despicable soul may even be elected convener and become the new face of crofting regulation – the files show that this was a well-orchestrated manoeuvre, and those in charge had a clear outcome in mind. The files also suggest that, in fact, the campaign against Walker had two main instigators – with at least one of them male.

Allowing the Commission to elect their own convener in such circumstances is not simply a humiliation for the Scottish Government, and for the Crofting Commission as an organisation; it undermines the credibility of crofting regulation as a whole.

Dr Iain MacKinnon

 

Dr Iain MacKinnon is researching the politics of crofting at Coventry University, although the letters on ‘convenergate’ are not part of his academic work.

Main image credit: Carry on Cleo

Crofting Commissioners do the Hokey Pokey

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Crofting Commissioners do the Hokey Pokey

Shake it all about

The Crofting Commission have announced the election of Colin Kennedy as their new Convener.

The secret ballot, overseen by the Crofting Commission’s Chief Executive, came following the delegation of the selection of the new Convener to Commissioners by Scotland’s Crofting Minister Dr Aileen McLeod.

Ian George Macdonald was voted in as Vice Convener, a position previously held by Colin Kennedy.

These elections follow on from a period of conflict within the Commission which resulted in the resignation of former Convener, Susan Walker, who was appointed to that position by the Scottish Government.

Back in April it was reported by The Herald that at least 5 commissioners had requisitioned a special meeting of the Crofting Commission in order to move a motion of no confidence in Susan Walker. The report claimed that there had been growing concern amongst her fellow commissioners over her style of leadership with it being alleged that she had assumed the role of an executive chair, rather than that of primus inter pares – first among equals. It was also suggested that she had been closer to officials in Edinburgh and Inverness, than to her commissioner colleagues.

What some have called a “witch-hunt” resulted in Susan Walker resigning both as Convener of the Crofting Commission and as a commissioner.

Following her departure Crofting Minister Dr Aileen McLeod said:-

“I would like to thank Susan for all of her hard work and for making such a positive contribution to crofting during her time as commissioner and convener. I have been impressed by her vision and passion for crofting and Scotland’s crofting communities, as well as her expertise and her many achievements since taking office.”

Colin Kennedy will now take up the post of Convener until 31 March 2017, covering the remaining tenure for the current Board.

Mr Kennedy said:-

“I would like to thank the Commissioners for voting me in to the role of Convener.  I am looking forward to working with the Board and staff in delivering the express will of Parliament contained in crofting legislation and effectively regulating crofting.”

It will be good to see the Crofting Commission actually “delivering the express will of Parliament contained in crofting legislation”. In recent years they have been putting their own interpretation on crofting legislation which many have argued was not how Parliament intended it. Indeed the Scottish Land Court recently ruled the Commission’s interpretation in one particular case to be wrong and clarified for the Commission what Parliament actually intended.

It is to be hoped that the Crofting Commission under Mr Kennedy’s stewardship will actually follow the express will of Parliament and no longer seek to interpret the Crofting Acts in weird and wonderful ways.

Mr Kennedy is, of course, no stranger to crofting legislation having been involved in a number of high profile personal battles in the Scottish Land Court over the years regarding crofting issues on the Isle of Coll.

Mr Kennedy originally stood for election to the board of the Crofting Commission after becoming disillusioned with its management. He said, at the time, that the eight crofters on the Isle of Coll had been treated ‘appallingly’ by the Commission, accusing the organisation of applying the legislation differently in one part of the country to another. If elected, he said he would strive to ensure Scotland’s Crofting Acts would be applied evenly across the board.

The Scottish Crofting Federation (SCF) has cautiously welcomed the election of the new Crofting Commission Convener, warning of a long way to go to restore confidence in the Commission.

SCF Vice-Chair Russell Smith said:-

“Following a long period of silence since the early departure of Susan Walker from the leadership of the Crofting Commission, we are pleased to see that something is being done to get the commission back on to a road to recovery. Electing a replacement convener will at least allow the commissioners to get on with their job.

“Crofters welcomed the fact that the new Commission had a majority of elected commissioners when it took over the regulation of crofting in 2012. So, it is even more disappointing that the fracas that led to Ms Walker’s resignation was allowed to happen.

“The fact that there have been no reasons given for the alleged vote of no confidence or that there has been no visible attempt to deal with the commissioner who breached the Code of Conduct by going to the press, leaves a bad smell. There are, understandably, questions still about how the commission operates. It is for the new convener to rectify this.

“However, we were gratified that the minister for crofting, Dr Aileen McLeod, allowed commissioners to elect their own convener this time, and we hope that this practice continues.

“There are some very experienced and competent people still on the commission and we hope that they are able to pick up the pieces. It is the intention of the SCF to continue to work closely with the commission for the furtherance of crofting.”

So it’s in, out and shake it all about at the Crofting Commission. But will they turn it around?

Crofting Commission make a U-turn on Decrofting Appeal to the benefit of many owner-occupiers

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Crofting Commission make a U-turn on decrofting appealThe Crofting Commission today confirmed that it has withdrawn its appeal to the Court of Session in connection with the Scottish Land Court’s decision of 18 December 2014 in the case of MacGillivray v Crofting Commission. That case concerned the Crofting Commission’s policy on decrofting where a croft unit is held in multiple ownership.

On 14 December 2012 Crofting Commissioners agreed to adopt a policy that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all the owners, in their capacity collectively as the ‘landlord’ of the croft, even in those cases where the application related to a part of the croft held in title by only one of their number. This decision was based on legal advice obtained by the Crofting Commission but never published by them.

This is a sensible decision by the Crofting Commission and puts the position back to what it was before they decided on 14 December 2012 to interpret crofting law in a way that I do not believe was ever intended by the Scottish Government. The Land Court decision was a clear, sensible and fair one and it makes much sense for the Crofting Commission to abide by it.

There will be a huge sense of relief amongst owner-occupiers of croft land who are not classified in law as owner-occupier crofters. They can now apply to decroft land that they own without requiring the consent of neighbours who happen to be owners of part of the original croft unit. The lack of such consent in certain instances was causing huge problems for many who have been in a state of limbo for over two years now.

The Crofting Commission in their official press release have stated:-

Due to the fixed deadline for submitting an appeal, the Crofting Commission submitted a skeleton appeal to provide it with sufficient time to convene the full Commission and allow it to discuss the implications of the decision.

The Commission met last week to review the case and it was decided to withdraw the appeal and accept the ruling of the Land Court which establishes that a single owner, as the landlord of their part of the croft, are entitled to submit a regulatory decrofting application to the Commission.

The Crofting Commission had originally found Mr & Mrs MacGillivray’s application to decroft land at 37 North Ballachulish for house building to have been incompetent, therefore, the Commission could not take a decision on it.  The recent Scottish Land Court ruling found the application to be competent.  No decision has been made yet on the merits of the application which the Commission will now have to reconsider.

The case challenged the Commission’s policy which was adopted at its Board meeting on 14 December 2012.  The policy found that all decrofting and letting applications in respect of crofts with multiple owners, must be submitted by all of the owners, in their capacity collectively as the ‘landlord’ of the croft.

The Land Court has ruled that in a multiple ownership situation one of the owners can apply independently from the other owners where the application solely relates to the land that they own.

Crofting Commission Convener, Susan Walker said “The ruling has implications on part croft owners in relation to the requirement to register the croft prior to submitting certain regulatory applications.  The Commission is working to align our policy to the ruling and will begin to process applications relating to part crofts from single owners.”

Brian Inkster