Daily Archives: August 17, 2016

Fudged response from Crofting Commission

Fudged response from Crofting CommissionFollowing the revelation this morning that the Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing, has stated in a letter that he wholly disagrees with the Convener of the Crofting Commission, Colin Kennedy, over the handling of the common grazings debacle, I said that I awaited the Commission’s response with bated breath.

When it came this afternoon it was a fudged response which unfortunately but perhaps unsurprisingly did nothing to restore the faith of crofters in their regulator.

BBC Radio Scotland Newsdrive this afternoon aired a statement by Murdo Maclennan, Crofting Commissioner, who said on behalf of members (the Convener, Colin Kennedy, again conspicuous by his absence in front of the media):-

Once the letter was received the Convener convened a meeting of the Commission.

We had a full debate about it. As within every public body there are different views but at the end of the day we came to a unanimous decision on it and that has been conveyed to the minister.

So the position of the Scottish Government is one which we fully support and in a sense have never adversely had taken any adverse effect or decision regarding the Crofting Commission in relation to it.

I was then interviewed by BBC Radio Scotland Newsdrive and said:-

I can’t see how the Crofting Commission can take that view. I mean it has been made absolutely clear to them, from what I can understand, that they got it wrong and for them to think that in some sort of way that they didn’t is beyond me.

There needs to be clarity from the Crofting Commission. In light of the letter from Fergus Ewing I would have thought it would be a case of them holding their hands up in the air and saying “sorry we got it wrong, we apologise and we are going to do things to make this right and not happen again”.

But that is not what they have done or doesn’t seem to be what they have done so far.

Further comment by the Crofting Law Blog

Murdo Maclennan on one hand says that the Commission fully supports the position of the Scottish Government (i.e. that the Commission got it wrong) but on the other hand suggests that the Commission never did anything adverse to that position (i.e. didn’t do anything wrong?)!

Again this is done in a way that would not have been out of place in an episode of Yes Minister. Sir Humphrey Appleby would have delighted in the obfuscation and manipulation displayed with the almost unintelligible statement that:-

in a sense [the Commission] have never adversely had taken any adverse effect or decision regarding the Crofting Commission in relation to it.

That is I believe fairly accurately transcribed having listened to the recording on BBC iPlayer several times. Make of it what you will but my reading is a denial of wrongdoing. We may, of course, receive a Trump like retraction tomorrow that there was any meaning of the sort intended.

However, it is high time that the Crofting Commission gave crofters clarity over this matter. Crofting law may be complex but the utterings of the Crofting Commission are more complex and harder to decipher still.

The Scottish Government have told the Crofting Commission in no uncertain terms that they got it wrong. If they actually support that view then they should come out straight and admit that they got it wrong and apologise to the grazing committee members that they have wrongly tarnished and accused of wrongdoing. Unless and until they do so in clear and unambiguous terms no one can have any faith in anything that they do or say.

Brian Inkster

Cabinet Secretary “wholly disagrees” with Crofting Commission Convener

Fergus Ewing v Colin Kennedy

A clash has begun between Fergus Ewing MSP and Colin Kennedy

Breaking news on BBC Radio Scotland this morning:-

The BBC has seen a letter written by the Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, that says he “wholly disagrees” with the Crofting Commission’s stance on Common Grazings Committees and the distribution of funds received by them.

BBC Scotland reporter Gary Robertson said:-

The Scottish Government is going head to head with the Convener of the public body responsible for crofting.

In a hard hitting letter seen by BBC Scotland the rural affairs secretary, Fergus Ewing, has told the Convener of the Crofting Commission that he wholly disagrees with his handling of a bitter dispute over shared land in the Western Isles.

BBC Scotland reporter Jackie O’Brien has seen the correspondence and Gary Robertson asked her what the background was.

Jackie O’Brien said:-

Well this has been a protracted and slightly complicated dispute involving the way that the ground crofters share is managed through what they call common grazings committees which are made up of crofters.

Now earlier this year two committees on Lewis, one in Mangersta and the other in Upper Coll, were removed from office by the Crofting Commission.

This happened after questions were asked over financial records and some transactions including the fact that the Upper Coll committee had not distributed or as they call it disbursed income from croft house sites to individual crofters but had put all of the money into a crofting township fund instead.

Now the Commisssion in the meantime appointed what they called constables to manage the land whilst committee accounts were investigated.

One of the committees has been reinstated but there is still annoyance and outrage over the way that this whole affair has been handled. Some say it is belligerent and unlawful and there have been calls for the resignation of the Crofting Commission Convener, Colin Kennedy.

Gary Robertson asked:-

So what exactly does Fergus Ewing say in this letter?

Jackie O’Brien responded:-

Well the rural affairs secretary has been trying to calm the waters and has been quite diplomatic on this to date. But there is no sign of it in this letter which I have seen that he has sent to Colin Kennedy.

He confirms that contrary to Mr Kennedy’s views the Crofters (Scotland) Act does not require the immediate disbursement or pay out of funds by a grazings committee. He says that as it currently stand the Scottish Government sees little merit in the Crofting Chairman’s views which he says he wholly disagrees with.

The letter goes on to say that the Government’s view is diametrically opposed to Mr Kennedy’s and that it is not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law.

Gary Robertson then asked:-

Any response from Colin Kennedy himself?

Jackie O’Brien confirmed:-

I did speak to him 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.

Gary Robertson then asked Jackie O’Brien:-

What is your sense of the implications of this clash?

Jackie O’Brien responded:-

Well the contents of this letter shows the Government is clearly pointing the finger at Mr Kennedy who is an elected Convener. This is backed up by the fact that Fergus Ewing has said in his letter that he is also very concerned about the risk that policy decisions may be taken without a clear mandate from the Crofting Commission’s board. This implies that not everyone on the board supports the way things have been handled.

Now the Commission’s board does happen to be meeting today, and in his letter Fergus Ewing has asked for its position on the matter to be made clear after this meeting. But he warns that if the Commission continues to subscribe to an entirely different view he will then have to consider what action to take. It is not clear what that action could be but that could put further pressure on him to resign.

View from the Crofting Law Blog

The Scottish Government clearly takes the same view regarding the law on the common grazings debacle taken from the outset on the Crofting Law Blog. It is good that they have done so and made their position clear in such strong terms.

The law on the matter has in my view been fairly clear. It is also, it transpires, clear to the Scottish Government.

Why has it been so unclear to the Crofting Commission?

Despite repeated requests from me to the Crofting Commission asking them to justify their position with reference to statute and case law they have failed to do so. They have simply ignored me. If they had papers from their executive that backed up their position in law surely they would have referenced those to me.

The Chief Executive of the Crofting Commission, Catriona Maclean, suggested in a meeting of the Scottish Government Crofting Stakeholder Forum that the law on the matter would follow “in due course” after the Commission had drawn up new guidelines for grazings committees to follow. Putting the cart before the horse was never a good idea!

The Convener of the Crofting Commission, Colin Kennedy, has said to BBC Scotland that the Commission were following advice given in papers produced by their executive. Oh no they weren’t! The Crofting Commission specifically ignored the advice given by the executive and appointed grazings constables in circumstances where they knew that to do so was illegal. How many other times has this happened?

Furthermore, it should not be forgotten that a paper [PDF] was considered by the Crofting Commission at a February 2016 Policy in Development meeting. In that paper it was, somewhat alarmingly, stated:-

There is a degree of irony in that the Commission may be requiring grazing committees to adhere to regulations while not being clear about the procedure it is itself employing in directing this.

Thus did the Commission actually have papers from the executive to consider when making some of their decisions or were they simply making it up as they went along?

We also, of course, know that the Commission has chopped and changed its position on the matter, tried to hide the fact they have done so and ultimately made a massive U-Turn. Does that demonstrate having done nothing wrong?

In light of the stance now taken by the Scottish Government against the Convener surely his tenure in office must be in question more so than it ever was. Especially if he continues with the adamant view that he has done nothing wrong when all of the evidence that has so far come to light would perhaps suggest otherwise.

The Crofting Commission are having a board meeting today. On the agenda [PDF] is ‘Grazings committees – a practical approach to the management of common grazings’ with a paper on that topic for discussion. A practical approach would no doubt be a welcome approach from most crofters. But let’s hope the Commission have now got a clear understanding and grasp of what the law actually is when applying a practical approach.

A little bit of humbleness, signs of regret and an apology would not go amiss at today’s meeting in light of the letter from Fergus Ewing.

A statement from the Crofting Commission on the outcome of today’s meeting is awaited with bated breath.

Brian Inkster