Daily Archives: June 16, 2016

Oh yes you did!

Oh yes you did!

The whole truth and nothing but the truth?

On Monday of this week the Chief Executive of the Crofting Commission, Catriona Maclean, published an open letter. It reads:-

There has been much said recently about the Crofting Commission and its actions, in particular in relation to common grazings.  As the regulator for crofting we cannot comment on specific cases but it is clear that there have been a number of issues raised which many people have expressed concern over and the full circumstances of why action was necessary is not yet in the public domain.

I think it is important to say that the Commission is not on a campaign to review the functioning of every grazings committee.  Be assured, we do understand that most of the nearly 500 grazings committees across the crofting counties are working well, and will continue to do so, helping to safeguard this important community asset.  This situation has identified the passion and value that crofters, and those who represent them, put on common grazing land.  The Commission shares that passion and value and it is good to see its management and potential being discussed openly.

It is also important to emphasise that the Commission has never said “every grazings committee must carry out a full audit of their accounts” or that “without question all grazings committee must distribute every penny of money to all shareholders and that no money can be retained”.  This view has been advanced by others, not the Commission.

We are the regulator of crofting and we must represent the interest of all 15,388 crofters, the majority of whom share in common grazings and when they express concerns we have a duty to investigate.  In most cases these matters are resolved by mutual agreement.  Putting a committee out of office is not a step taken lightly by the Commission and only occurs rarely and after protracted discussion and investigation.

The way the Crofters (Scotland Act) 1993 (as amended) states that common grazings should be managed represents true democracy at its most local level.  It requires the committees, who are appointed by the shareholders to represent them, to discuss plans with the shareholders and to get their approval for improvements.  This ensures that shareholders share both the costs incurred and any benefit or dividend that results.  All the more reason to see grazings being managed well.

Indeed, the Commission has had support from within crofting communities for being willing to grasp the nettle and be an effective regulator, taking the position that grazings should be properly managed.

Some have expressed concern over crofters who are absent, possibly blocking improvements or failing to pay for maintenance.  I would like to assure crofters that there are remedies available within the current law.  The Landlord has the right to make an application to the Scottish Land Court to terminate the tenancy where a person is in breach of their statutory conditions as, following a much more complex process, can the Commission.  Even if that does not happen should a shareholder fail to contribute to costs the Commission can, when asked to intervene, act as arbiter and has the power to suspend and ultimately terminate a share and reallocate it to others.  This would result in shares coming into the hands of active crofters, willing to pay their dues.

People have said “why should an absentee get anything at all?”  The current Act does not differentiate between shareholders who are resident and non-resident and therefore, neither can the Commission. This is for legislators to address when next reviewing crofting legislation.  Equally there has been speculation about the interpretation of the Act.  The Commission is confident they are applying the law correctly but the only place this can be clarified is in the Scottish Land Court.

I would like to reassure committees and shareholders that we are preparing more best-practice guidance for them and, once we have discussed this guidance with our crofting partners, we will make it available to all grazings committees, shareholders and crofters.  In the meantime, Commission staff are on hand to support and provide guidance to crofters, grazings clerks and grazings committees.  More information can be found on our website (www.crofting.scotland.gov.uk).  In addition we will be running an information session on common grazings at our local crofting meetings to be held across the crofting counties later in the year.

As Chief Executive of the Commission I have a genuine interest in the crofting system.  Partly because I have been involved in its administration one way or another for over 20 years, but even more so because – as a daughter of the croft – it is in my psyche and in my heart.  I know how it benefits people and I am committed to seeing the system flourish.

What is important to both myself and Commissioners is that we work together with others to secure the future of the crofting system that we all value.  I sincerely hope that those who have either engaged in this debate or have been reading along with it, will continue to engage in a discussion about what that future will look like and make sure that decision makers hear those views.

For those who feel passionate about the Commission and how it operates – then why not take the chance to be part of it by standing for election when these take place early next year?  This would provide you with the opportunity to be at the heart of shaping the future Crofting Commission to ensure that it, and the crofting system, is the way you want it to be.

What I would highlight, in particular, from this letter is Catriona Maclean’s adamant statement that the Commission has never said “without question all grazings committee must distribute every penny of money to all shareholders and that no money can be retained”.  Oh yes they did!

The Crofting Commission have deleted from their website guidance issued by their Convener, Colin Kennedy, on 25 April 2016. That guidance included the following statement:-

As trustees any money received by the committee belongs to the shareholders and
should be distributed to them as soon as is reasonably practicable. It is NOT the
township’s or the committee’s money and as such it is the duty of the Grazings Clerk
to distribute any money received from whatever source, but in particular
resumptions, according to each individual shareholder’s share entitlement whether or
not they are active crofters.

When the Grazings Committee require monies to maintain the common Grazings
and the fixed equipment or to carry out works for improvements, the committee must
levy and recover the required monies directly from the shareholders for onward
payment to any third parties.

William Swann, who has since resigned as a Commissioner, also reiterated this same stance on behalf of the Crofting Commission when he chaired a meeting that the Crofting Commission held with the shareholders in the Mangersta Common Grazings. It was reported at the time that:-

Commissioner William Swann, who presided over the meeting, made it clear that under the Crofting Reform Act of 1993 any money that comes into the village must be distributed among all the shareholders – including absentees. Any improvement works then needing to be carried out must be financed through a levy charged on the same shareholders.

The Crofting Commission’s attempt at the eleventh hour to change their tune in this way through historical revisionism does them no credit. An apology and an admission that they got it wrong might have.

Brian Inkster

Image Credit: Pinocchio © Disney

The deleted Crofting Commission post

Rebel Crofters store the data from the Crofting Commission

The Crofting Commission did not bank on the Rebel Alliance of Crofters having the technology to store and retrieve data

In the last post on this blog reference was made to the Crofting Commission deleting its history. The possible purpose for this historical revisionism will become apparent in subsequent posts on this blog. For now we reproduce, for posterity, that deleted post from 25 April 2016 (the Crofting Commission clearly not being technologically savvy enough to completely cover their tracks):-

COMMON GRAZINGS THE RIGHTS OF CROFTERS AND THE DUTIES OF
GRAZINGS COMMITTEES AND THEIR GRAZINGS CLERKS

It seems to me like a very good time to remind shareholders in Common Grazings
what their rights are and what the duties of the Grazings committee and their
Grazings clerk are. The following is a brief overview of the key points that everyone
involved should understand. Many people reading this may think that this is not what
happens in their village and may feel that it is overly bureaucratic but this is what is
contained in the Crofting Acts. If this process is not what is now required then the
only way to address it would be to ensure that any new Act reflects current
requirements. Until then the Commission have a responsibility for regulating crofting
within current legislation.

Shareholders

  • Crofters who share in a common grazing have certain rights over the land. These
    rights, or pertinents, include the grazing of stock, access to a house or pier or
    foreshore, an area for laying up a boat, the right to collect seaware, the right to cut
    peat, the right to use heather and grass for thatching. These rights, shared with
    others, are over the whole area comprising the common grazing. There are also
    certain common Grazings used as arable machairs, particularly in the Western Isles,
    where the crofters may have a right of cropping. The crofting acts state that the only
    way this can be changed is:-
  • If the landlord resumes an area of the Grazings for a reasonable purpose and
    the shareholders are compensated for their loss and obtain a share of the
    development value of the resumed land.
  • An individual gets an apportionment when his souming may be adjusted.
  • If shareholders enter into a forestry project in terms of section 50 or 50A of the
    crofting Act.
  • If the land court has agreed to a scheme for development under section 19A
    which is binding on all parties.
  • If the majority of the shareholders voting and the Grazings committee or
    constable have obtained the Commission’s consent to use part of the
    Grazings for some other purposeful use under section 50B.
  • Through Compulsory purchase by an acquiring authority with powers of
    compulsory purchase under section 37 of the Act, subject to compensation
    and share in the development value as with resumption.
  • By a reorganisation scheme.
  • Any other local Grazings arrangement is not binding on shareholders who, if they
    choose to do so retain the right to graze stock equivalent to their souming over the
    whole Grazings and the committee and clerk should ensure that any shareholder
    wishing to use the Grazings is accommodated.

Grazings Committees

The most important thing that shareholders in a common Grazings need to
understand is that the Grazings committee act as trustees of the shareholders. The
Land Court has stated that:-

..they (that is the Grazings committee) have clear duty to act as trustees of
the WHOLE shareholders in the Grazings and therefore it is their duty to act
impartially and judicially, keep in view what is their paramount consideration
– how the common Grazings can best be administered to the greatest
advantage of ALL of the tenants sharing in the Grazings….

The general responsibilities of the Committee are to:-

  • Make regulations (which require the consent of the Commission and) which
    should in the spirit of their primary duty to accommodate the requirements of
    all shareholders. Regulations cannot themselves curtail the right of any
    shareholder to graze his souming across the whole Grazings other than in the
    circumstances detailed under the paragraph entitled ‘Shareholders’ or to meet
    any specific environmental designations.
  • Hold an annual general meeting and the clerk should give the meeting an
    account of the work of the committee and of the financial position. At this
    meeting the committee should answer the questions of the shareholders
    whom they represent.
  • MAINTAIN the Grazings and any fixed equipment. That is clearly any existing
    fixed equipment such as fences. They can do this without reference to the
    shareholders and they should claim back any costs INCURRED from each of
    the shareholders whether they are actively using the Common Grazing or
    not.
  • Should the committee wish to carry out any IMPROVEMENTS to the Grazings
    they cannot do so unless they have served notice on each shareholder and
    told them how much the shareholder’s proportion of the cost will be. This
    gives the shareholder the opportunity to make representations against any
    such proposal to the Commission.

Financial management

As trustees any money received by the committee belongs to the shareholders and
should be distributed to them as soon as is reasonably practicable. It is NOT the
township’s or the committee’s money and as such it is the duty of the Grazings Clerk
to distribute any money received from whatever source, but in particular
resumptions, according to each individual shareholder’s share entitlement whether or
not they are active crofters.

When the Grazings Committee require monies to maintain the common Grazings
and the fixed equipment or to carry out works for improvements, the committee must
levy and recover the required monies directly from the shareholders for onward
payment to any third parties.

The rights of crofters have been detailed above and there is no explicit provision
in the crofting acts for the Grazings committee or clerk to be involved in the
administration or coordination of schemes falling within the provisions of
IACS regulations. So any involvement or concern regarding this should be directed
to the scheme administrators. Notwithstanding that fact, as the committee are acting
on behalf of the shareholders, any monies received and lodged in the Grazing
Committee Bank Account belongs to shareholders and must be distributed to each
shareholder in accordance with their share entitlement. It is important that all monies
are distributed to all shareholders timeously in order to assist correct financial
accounting by each individual shareholder should they require to make an annual
return to the HMRC.

There is nowhere in the Crofting Acts that allows a Grazings Committee to retain and
spend shareholders’ money on projects, village improvement works, or make gifts or
donations no matter how altruistic the purpose for which that money is to be spent.
Should townships wish to do this they should set up a separate, appropriate,
mechanism to do so and gather in any necessary funds from those willing to
participate.

Finally, I would like to say that the Crofting Commission is keen to see, wherever
possible, that crofting communities regulate themselves. It may be that shareholders
in your Common Grazings were unaware of the law and your committee has not
been being run in line with the requirements of the Crofting Act. If this is the case it
is important that shareholders and the committee hold a meeting to discuss this and
work together to ensure your Grazings Committee functions within the requirements
of the Crofting Acts.

Colin N Kennedy
Convener
Crofting Commission

Image Credit: Star Wars: Episode IV – A New Hope © Lucasfilm Ltd

Update: Is this why the post was deleted?: Oh yes you did!

Crofting Commission deletes its history

Crofting Commission deletes its history

No… the Crofting Commission never said that!

The ‘Crabbit Crofter‘ brought to our attention today the fact that the Crofting Commission have been deleting/changing their website in so far as guidelines concerning ‘common grazings the rights of crofters and the duties of grazings committees and their grazings clerks’ are concerned.

In April 2016 the Crofting Commission published guidelines on this topic by their Convener, Colin Kennedy, who stated:-

It seems to me like a very good time to remind shareholders in Common Grazings what their rights are and what the duties of the Grazings committee and their Grazings clerk are.

This came almost immediately on the back of us publishing a post on this blog concerning alleged abuse of power within the Crofting Commission linked to what has become known as ‘The Common Clearances‘.

The Crabbit Crofter reveals that those guidelines have now been deleted from the Crofting Commission’s website:-

Crabbit Crofter - Crofting Commission Deletes its History

Crabbit Crofter - Crofting Commission Deletes its History

It is extraordinary that a public body in Scotland in this day and age is resorting to historical revisionism and we shall return in a subsequent post to the significance of this in light of what the Crofting Commission is now claiming their current and past position on ‘The Common Clearances‘ to be.

Brian Inkster

Update – Read what the Crofting Commission tried to hide: The deleted Crofting Commission post and why: Oh yes you did!

Crofting Commissioner Resigns over situation the Scottish Government and Crofting Commission need to sort out

William Swann - Crofting Commissioner Resigns from Crofting Commission

William Swann

More catch up news on ‘The Common Clearances‘ since I returned from holiday. This time the news from last week that William Swann had resigned, the previous week, as a Commissioner at the Crofting Commission.

This was covered in the media last week and this week as follows:-

Crofting Commission Press Release – 9th June 2016

The Crofting Commission today confirmed that William Swann decided to resign from the position of Commissioner on Thursday 2, June.

William Swann, from the Isle of Skye, was appointed as Commissioner by Scottish Ministers in January 2012 and has provided significant contribution to the Commission during his time and was particularly helpful as the chair of the Audit and Finance Committee.

Crofting Commission Chief Executive, Catriona Maclean, commented:

William has provided invaluable knowledge, expertise and guidance to the Commission.  The Commission would like to thank William for all of his hard work and we wish him luck with his future ventures.

The Commission remain quorate and I would like to assure all crofters that it is business as usual with a continued focus on securing the future of crofting.

The Skye Times – 10 June 2016

In recent months there has been growing discontent at grass roots level over the decisions by the Commission to remove from office two grazing committees at Upper Coll and Mangersta in Lewis after investigating their financial arrangements.

However, today Mr Swann said he had nothing to add to the resignation announcement made by the Chief Executive.

However, he did say:

The situation is one very much between the Scottish Government and Crofting Commission and something they need to sort out. I hope that things do calm down.

BBC News coverage – 13 June 2016

William Swann quit as a member of the Crofting Commission last week.

BBC Alba has since learned that he had told crofters he would resign if he felt the commission was not dealing with their case in a fair manner.

The commission has been in dispute with the crofters in Mangersta and Upper Coll about how they manage their common grazings committees.

The commission dismissed both committees, whose members are crofters, earlier this year and appointed officials to run the grazings, which are shared areas of land for raising livestock…

Catriona MacLean, of the Crofting Commission… said she could not comment on Mr Swann’s resignation, but said the commission was working effectively and within the law.

The Herald – 14 June 2016

William Swann, who was one of three commission members appointed by the Scottish Government, stood down last week without explanation.

Mr Swann, from Skye was chair of the Audit and Finance Committee. There were reports that he had told crofters on Lewis he would resign if he felt the commission was not dealing with their case in a fair manner.

But spokeswoman said last night:-

The Crofting Commission can confirm that there is no connection between what was reportedly said by William Swann at a meeting with Mangersta shareholders and his decision to resign. William’s reasons for resignation are a private matter for him and we must respect that.

View from the Crofting Law Blog

The most important thing to glean from these various reports is what Mr Swann said himself, namely:-

The situation is one very much between the Scottish Government and Crofting Commission and something they need to sort out. I hope that things do calm down.

It would therefore appear that he resigned due to an issue at the Crofting Commission that he feels needs sorting out between them and the Scottish Government. There have been calls for some time for the Scottish Government to step in and investigate what is going on at the Crofting Commission. Perhaps William Swann’s resignation will be a catalyst to them now actually doing just that.

It should be noted that William Swann chaired the meeting involving shareholders of the Mangersta Common Grazings at which there was reportedly ‘a menacing presence‘.

Brian Inkster