Author Archives: Brian Inkster

The 2010 Crofting Law Rush

he 2010 Crofting Law Rush

Ready, steady… MSPs didn’t have long to get through 230 crofting law amendments!

In my post yesterday, about the two phase approach being taken to crofting law reform by the Scottish Government, I made reference to the rush over the Crofting Reform (Scotland) Act 2010.

I thought it would be worthwhile to remind readers about that rush which in effect took place at Stage 3 of the Bill going through the Scottish Parliament. In that final stage of parliamentary procedure there were around 230 amendments dealt with in around three hours.

At the commencement of the debate the Presiding Officer stated:-

The first division will be a 30-second division, following a five-minute suspension. Thereafter, there will be a voting period of one minute for the first division after a debate and the voting period for all other divisions will be 30 seconds. We are incredibly tight for time, so, to begin with, I ask no speaker to speak for more than one minute.

It is little wonder that we are having to revisit crofting legislation given the potential lack of scrutiny that these 230 last minute amendments might have received in the very limited amount of time allowed to debate them.

Furthermore the rush to get these amendments through saw an opposition amendment being passed without the objections thereto being noted! The chaos surrounding this in the debating chamber at Holyrood was well documented at the time by Scott Wortley on the Edinburgh University Scots Law News Blog: The Crofting Reform (Scotland) Bill and the curious incident of the unopposed opposition amendment.

Back in November 2016 when Fergus Ewing MSP met with the Cross-Party Group on Crofting at Holyrood he stressed the importance of taking time to get crofting reform right. The two phased approach recently announced by him reinforces that.

Let’s hope that we do not see a repeat of the 2010 fiasco when the next crofting reform bill reaches stage 3 debate at the Scottish Parliament. It looks as though Mr Ewing, as Cabinet Secretary for the Rural Economy and Connectivity, will be doing his very best to avoid that.

Brian Inkster

Two Phase approach to Crofting Law Reform announced by Scottish Government

Fergus Ewing MSP - Cabinet Secretary responsible for Crofting - announces proposals for legislative reform

Fergus Ewing MSP

The Scottish Government’s plans for legislative reform of crofting were first outlined to the Cross-Party Group on Crofting on 28 March 2018 by Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting.

Following on from that meeting Mr Ewing has stated:-

This government is determined not to allow crofting to be simply a relic of our past: crofting must have a purpose and a role in our present and our future.

That purpose is to support people to remain on the land and to bring people back to the land, with crofting also playing a role in creating a sustainable and productive environment in which people can live and work. To achieve this, crofting needs an effective regulatory and statutory framework.

Yet, most agree that current crofting legislation is complex and lacking in transparency, having been developed on a ‘piecemeal’ basis over nearly 150 years. We have recently completed a public consultation on what might usefully be changed through legislative reform.

The consultation was launched last August, seeking views from stakeholders on (amongst other things) the Scottish Government’s Crofting Policy, the potential form that new crofting legislation could take, and priorities for legislative change.  During the three month consultation period, my officials held a series of 21 meetings with the public and interested stakeholder groups, hearing directly from over 300 individuals across the crofting counties.

The consultation closed in late November last year with 122 responses from individuals and organisations. The responses were independently analysed and a report on that analysis was published in mid-March. The results made for interesting reading  and the diversity of responses only highlighted the scale of the challenge ahead.

After careful consideration, there does not appear to be a consensus that would allow me to decide on specific pieces of legislative reform. I was also presented with a dilemma over deciding the best legislative approach to take, as the analysis highlighted almost equal proportions of support for new crofting legislation, versus making changes to existing legislation and restating or consolidating the law.

Following the publication of the analysis report I met with the Cross-Party Group on Crofting to outline how I wish to take matters forward and to hear members and MSPs’ views. I am proposing a two-phase approach to legislative reform, with a first phase in the shorter term, leading to a Bill in this parliamentary session.  This first phase will focus on delivering changes which carry  widespread support, including across the Scottish Parliament, and result in  practical everyday improvements to the lives of crofters and/or streamline procedures that crofters are required to follow.  I am keen to fully involve and engage MSPs with crofting interests to ensure that their ideas and proposals can be considered and taken forward in legislation.

The second phase is longer term work, where I have asked my officials to continue with fundamentally reviewing crofting legislation to provide a solution to some of the more complex and challenging issues facing crofting, and what that might mean for how legislation is developed in future. This work will begin now but will be for a future Parliament to deliver.

I’m also keen to use non-legislative means to make changes that help to improve the sustainability of crofting, and encourage new entrants. These will include a National Development Plan for crofting, and a new entrant’s scheme that will directly benefit crofters without the need to wait for legislative change. It is also not just within crofting that I see opportunities to enhance provision – I am keen to encourage more woodland crofts through the National Forest Estate and to ensure that crofting communities benefit from our ambitions for a low carbon economy, and commitment to provide all homes and businesses with access to superfast broadband.

The approach I am taking forward is pragmatic and focused on delivering a future for crofting in 21st Century Scotland   My approach seeks to support people to make lives on the land, to diversify to create sustainable livelihoods, and to collaborate with neighbours and communities to find common solutions. That approach is as important to supporting crofting more generally as it is to reforming its statutory frameworks.

The Crofting Commission stated:-

The Crofting Commission look forward to working with Scottish Government and other Stakeholders to take forward crofting legislation reform. The practical approach outlined by the Cabinet Secretary will enable the necessary improvements of phase one to be made in this Parliamentary Session, with more complex issues being held over to a second phase.

In particular the Commission welcome the opportunity to work with the Scottish Government in developing a New Entrants Scheme for crofting and to discuss a future promotional role for the Commission itself.

Rod Mackenzie, Convener of the Crofting Commission, said: “We support the Scottish Government’s decision to take a collaborative approach to rectifying and improving crofting legislation during this Parliament.  The Commission will play a full part in this, and will be particularly keen to consider with others what improvements can be made to the law on registration and on common grazings, among other key issues.”

The Scottish Crofting Federation (SCF) also supported the Scottish Government’s proposals. Their chair, Russell Smith, said:-

We are pleased that the Cabinet Secretary has announced a positive way forward for crofting law and restated his commitment to non-legislative changes also. He promised that we will have a bill in this parliamentary session which corrects the major anomalies in the current law and so enables it to work appropriately for crofters. This is the essential course of action needed and will pave the way to a consolidation bill in the next session. It is exactly what SCF hoped for.

There will also be a fundamental review running in parallel which may enable more far-reaching changes to crofting law, whilst maintaining crofters’ rights, in the future. This is very good news for crofting. The Cabinet Secretary asked for input to the bill and the SCF are delighted to contribute.

My view

This seems an eminently sensible way for the Scottish Government to take legislative reform forward. They have recognised the complexities involved and that all that needs to be sorted probably can’t be easily sorted in just one parliamentary term.

Thus splitting reform over two parliamentary terms should allow a comprehensive and considered approach to crofting reform unlike the rushed approach that led to the Crofting Reform (Scotland) Act 2010. That rushed approach created many of the problems requiring to be resolved today.

Brian Inkster

My response to the Consultation on the Future of Crofting Legislation

Response to the Consultation on the Future of Crofting LegislationThe Consultation on the Future of Crofting Legislation received responses up until 20 November 2017. An analysis of the responses was published on 21 March 2018 and Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting, outlined the Scottish Government’s plans for legislative reform to the Cross-Party Group on Crofting on 28 March 2018.

I will come back on this blog to look in more detail at the analysis and Government plans. In the meantime I thought I should publish here my own personal response to the Consultation.

Current Scottish Government crofting policy may be stated as:

The Scottish Government values crofting as a form of land tenure and recognises
the added contribution that crofting continues to make to the rural economy and the
sustainability of rural and remote rural communities.

The Scottish Government is committed to reforming crofting to secure its future,
bring new blood into crofting communities, and ensure it can continue to contribute to
the development of a thriving rural Scotland.

This policy is reflected in the current legislative framework which places a number of
duties on crofters, including the duty to reside within 32 km of the croft; cultivate the
croft, or put the croft to another purposeful use; and not misuse or neglect the croft.
These duties serve to maintain the integrity of rural communities in the Highlands
and Islands.

Question 1: Do you agree with the stated Scottish Government policy on crofting?

Answer 1: No strong views on the question of policy but will refer to it when commenting on the ‘Clean Sheet’ approach to legislative reform below.

Question 2: Please select your preferred option to indicate which you believe to be the most suitable way to proceed with any crofting law reform. Should you wish to suggest another approach that has not been discussed above, then please select ‘other’ and provide details.

The options given were:-

Option 1 – Consolidation Bill
Option 2 – Bill amending existing legislation / Pre-Consolidation Bill
Option 3 – Bill amending existing legislation and restating crofting law
Option 4 – Bill setting out ‘new’ crofting law

Answer 2: Option 2.

The Scottish Government has already given a commitment to legislative change. Option 1 will not achieve that and arguably should not have been an option at all.

The Scottish Government’s Crofting Policy “is reflected in the current legislative framework” and thus there would appear no merit in pursuing a ‘Clean Sheet’ approach when current legislation and policy coincide. There is also a danger that pursuing a ‘Clean Sheet’ approach will result in much debate and little ability to actually fix the problems identified in ‘The Sump’ Report within this Parliamentary term. Thus Option 4 should be discounted.

It would appear that Option 3 may result in less problem areas being tackled than Option 2. Consolidation does not need to happen at the same time as amendments to the law and should not be pursued at the same time if that is going to reduce the number of amendments involved to existing law.

Thus Option 2 is really the only sensible one for the Scottish Government to pursue.

Questions 3 – 9 asked various questions on (1) Absenteeism, Misuse and Neglect; (2) Assignation and Succession; (3) Common Grazings; (4) Crofting Commission Regulatory Functions and Processes; (5) Crofting Registration; (6) Owner-occupier Crofts; and (7) Standard Securities.

Question 10 asked for those seven issues to be listed in order of priority: ‘higher priority’ first to ‘lower priority’ last.

Rather than answering those questions individually, or providing a priority list, I decided to deal with that as part and parcel of my answer to question 11 and simply referred the Scottish Government to that particular answer.

Question 11: Please tell us any other thoughts you have about the proposed Crofting Legislation reform not covered in your earlier answers.

I have not answered questions 3 to 10 as I consider my views on these matters to be covered by ‘The Sump’ Report (November 2014) [PDF] and the Proposals put forward by the Scottish Government’s Crofting Legislation Stakeholder Consultation Group (10 February 2015) [PDF]. These documents prioritise matters but ultimately are of the view that all (not some) of the problem areas identified should be tackled and fixed by the Scottish Government. A new Bill under Option 2 should set out to do just that.

My views on Standard Securities are contained in an article entitled “Is it Time for a Crofting Mortgage Bill?” originally published by The Firm Online on 31 May 2010 and subsequently reproduced in The Crofting Law Group Newsletter. Those views have not changed with the passage of time.


Those were my responses. You can view 97 of the 122 submitted responses (N.B. 97 of those 122 respondents gave consent to publish their responses) via this Scottish Government link: https://consult.gov.scot/agriculture-and-rural-communities/crofting-consultation-2017/consultation/published_select_respondent.

In future blog posts I will look at the analysis of those responses and the Scottish Government’s plans in light of that analysis. I will also publish on this blog my views on Standard Securities from 2010 as ‘The Firm Online’, where those views were originally published, is no longer online.

Consultation on the Future of Crofting Legislation

On 28 August 2017 the Scottish Government launched its consultation document [PDF] on the future of Crofting Legislation seeking views on both the form of the legislation and the priorities for change within it.

Launching the document, Fergus Ewing, the Cabinet Secretary for Rural Economy and Connectivity said:

Crofting delivers valuable local benefits and a successful crofting sector helps our rural communities to thrive. It is therefore vital the law that governs it is fit for purpose.

Initial discussions have shown while there is plenty of agreement that the current law needs to change, there are many views on what should replace it.

I would strongly encourage anyone with an interest in the future of crofting –  whether crofters, landowners, those living in a crofting communities or in other parts of Scotland – to take part in this consultation and help us improve future legislation.

The Scottish Crofting Federation (SCF) welcomed the Scottish Government’s commitment to continue the process of reforming crofting legislation within this parliamentary session.

Russell Smith, Chair of the SCF, said:-

This is another stage in the long process of crofting law reform and we are pleased that the Scottish Government is taking this forward. Following the 1993 consolidation act there have been several amendments to crofting legislation but this is still unfinished business. The addition of subsequent layers of legislation, and the fact that amendments have introduced further inconsistencies and errors, has rendered current crofting law difficult to access and, in some aspects, unusable.

This consultation is seeking views on the most suitable way to proceed with any crofting law reform and how it might be improved. It opens up opportunities to take a fresh look at crofting legislation and its purpose. At this point we may ask what crofting legislation should achieve and how best it can do this.

It is widely agreed that the law does need to be reformed further and there are suggested a range of options for taking this forward but neither of the two extremes of merely consolidating with little change or starting all over again with a ‘clean sheet’ are going to achieve a desirable result. So, we are being asked to choose between the workable options of amending and then consolidating the law or ‘restating’ it. The consultation document helpfully explains the difference.

Whilst exploring ways to make the legislation fit for purpose we must not lose sight of the fact that crofting legislation was formed to protect crofters’ rights, not to serve lawyers, this principle is inviolable. The crofting act is the heart of crofting and has evolved over 130 years, adapting to work for crofting in a changing world. This is another time of change, but the basic principles of protection must not be lost.

The SCF will be looking at these options in considerable detail and will be both seeking our members’ views and providing information for them. We encourage all crofters, and others with an interest, to attend the events the Scottish Government will be hosting and to respond to the consultation before it closes.

Scottish Government Officials will be holding a number of public meetings where they will deliver a presentation on the purpose of the consultation, an explanation of the options for changing legislation and an overview on how to respond to the consultation. There will be the opportunity to discuss the options available and to raise questions relating to the consultation.

The first such meeting takes place in Lerwick on 13 September with further meetings already scheduled for Oban (19 September), Kirkwall (26 September), Portree (3 October), Fort William (4 October), Glenuig (5 October), Kinlochbervie (10 October), Lairg (11 October) and Gairloch (12 October). More dates and locations will be announced in due course. A full list of the events, which will be updated regularly, may be found on Eventbrite where you may also register your attendance.

The consultation can be completed on Citizen Space or in printed form by contacting your local RPID Area Office. Copies of the Consultation Document will also be available at the public meetings or by contacting The Scottish Government, The Crofting Bill Team D Spur, Saughton House, Broomhouse Drive, Edinburgh EH11 3XG.

The consultation will last 12 weeks and will close at 00:00 on 20 November 2017. Any questions may also be directed to croftingconsultation@gov.scot

 

The Crofting Commission Barometer

Crofting Commission BarometerIt has been suggested that this blog is a good barometer for how well or badly the Crofting Commission are doing. This, we have been told, can be measured by the number of blog posts appearing about the Commission. The more posts there are the worse they are doing: the less posts there are the better they are doing.

Blog posts certainly petered off after the last Crofting Commission elections and the appointment of a new Convener. The Crofting Commission have done nothing since then of controversy that we are aware of. The days of the common clearances, convenergate, SRDPgate, VATgate and Broragate appear, thankfully, to be behind us. So there is, as a result, less to blog about. The new Crofting Commissioners certainly appear to be doing much better than there predecessors.

So, yes, this blog as a Crofting Commission Barometer is not a bad analogy.

There have, however, been events in the world of crofting law that we do need to catch up on.

There are also some issues arising from the tenure of the last set of Crofting Commissioners that we didn’t manage to blog about at the time and, for completeness, will try to fill in when we get the chance.

Keep an eye on the Crofting Law Blog for these updates.

Crofting Law Group Conference 2017

Crofting Law Group Conference 2017

The Crofting Law Group are holding their annual conference this year at Lews Castle, Stornoway, Isle of Lewis on 9th June 2017.

Chaired by Sir Crispin Agnew of Lochnaw, Bt. QC, the conference will look at the Scottish Government’s proposals for Crofting Law Reform, where things are at and what happens next. Michael O’Neill from the Crofting Bill Team of the Scottish Government will guide delegates through that. There will be views from Patrick Krause Chief Executive of the Scottish Crofting Federation.

Bill Barron, Chief Executive of the Crofting Commission will provide a Crofting Commission Update.

The Conference will look at the question of Common Grazings, what went wrong last year (a recurring theme on this blog!) and what does the future hold with reference to the Crofting Commission’s proposed new Common Grazing Regulations Template.  There will be contributions and discussion on this topic from the Crofting Commission’s Solicitor, David Findlay, Solicitor Brian Inkster, Crofters and Landlords.  Relevant excerpts of the film ‘Grazing on the Edge’ will be shown and introduced by Janette Sutherland of the Scottish Agricultural College.

Duncan MacPhee, Solicitor, will look at Mortgages for Croft Houses.

There will also be the usual case law update provided this year by Robert Sutherland, Advocate.

Representatives from Registers of Scotland will be on hand to answer any queries concerning the Crofting Register.

For full details and to book your place see Crofting Law Conference 2017 on the Crofting Law Group website.

Crofting Commission Elections 2017 – The Results

Crofting Elections 2017 - Count at Stornoway Town Hall

Colin Kennedy keeps a close eye on the count at Stornoway Town Hall

The results are in from the count in Stornoway Town Hall for the Crofting Commission Elections. They are:-

East Highlands (East Sutherland, Easter Ross, East Inverness and Moray) 

Stage 1 votes:-

  • Rod Mackenzie – 150 votes
  • Archie MacNab – 91 votes
  • John Ferme McMorran  – 71 votes

Stage 2 votes (following exclusion of John Ferme McMorran):-

  • Rod Mackenzie – 181 votes – Duly elected
  • Archie MacNab – 121 votes

South West Highlands (Lochaber, Argyll & Bute, Arran and Cumbrae, Small Isles)

Stage 1 votes:-

  • Colin Niall Kennedy – 165 votes
  • Billy Neilson – 124 votes
  • Catherine Mackinnon – 67 votes
  • Uilleam Smith – 55 votes
  • Ronnie Campbell – 32 votes

Stage 2 votes (following exclusion of Ronnie Campbell):-

  • Colin Niall Kennedy – 172 votes
  • Billy Neilson – 128 votes
  • Catherine Mackinnon – 81 votes
  • Uilleam Smith – 57 votes

Stage 3 votes (following exclusion of Uilleam Smith):-

  • Colin Niall Kennedy – 181 votes
  • Billy Neilson – 152 votes
  • Catherine Mackinnon – 98 votes

Stage 4 votes (following exclusion of Catherine Mackinnon):-

  • Billy Neilson – 201 votes – Duly Elected
  • Colin Niall Kennedy – 199 votes

West Highlands (West Sutherland, Wester Ross, Skye & Lochalsh)

  • Mairi Mackenzie – 694 votes – Duly Elected
  • Stephen William Love – 204 votes
  • Peter O’Donnghaile – 164 votes
  • Jonathan James Hedges – 95 votes

Western Isles

  • Iain Maciver -1069 votes – Duly elected
  • Alasdair MacEachen – 1059 votes

Only one nomination was received for Caithness & Orkney and also Shetland. Thus each candidate for those two constituencies was automatically elected and no election took place.

Caithness and Orkney

  • Cyril  Annal – Automatically elected

Shetland

  • Andy Holt – Automatically elected

Two of the seats were very close indeed.

In the Western Isles Iain Maciver got in with 10 votes over Alasdair MacEachen.

Most eyes were on the South West Highlands seat where controversial Crofting Commission Convener, Colin Kennedy, was re-standing for election. It was taken through 4 stages of voting with each transferable vote counting until Billy Neilson was victorious over Colin Kennedy by just 2 votes. Thus Kennedy, who many have been calling for long to go, is now gone. However, it shows that despite his controversial stance on a number of matters, that were decried by many far and wide, he still had fairly strong support amongst crofters in his own constituency.

Adding in the three appointed commissioners the nine new Crofting Commissioners are:-

  • Cyril  Annal – Elected – Caithness and Orkney
  • David Campbell – Appointed – Landlord Representative
  • Andy Holt – Elected – Shetland
  • Iain Maciver – Elected – Western Isles
  • Mairi Mackenzie – Elected – West Highlands
  • Rod Mackenzie – Elected – East Highlands
  • Malcolm Mathieson – Appointed
  • Billy Neilson – Elected – South West Highlands
  • James Scott – Appointed

Malcolm Mathieson and James Scott were only recently appointed and thus David Campbell is the only commissioner to have already served for some time (since June 2014) on the board of the Crofting Commission. David Campbell was clearly, at times, in conflict with the former Convener, Colin Kennedy.

Commenting on the results, Rural Secretary Fergus Ewing said:-

Crofting is an integral part of Scottish rural life and it is essential that it has dedicated people to represent and reflect the interests and diversity of our crofting communities.

The elected crofting commissioners will give crofters a stronger say in how they are regulated, bringing valuable local knowledge and experience to the role and I would like to take this opportunity to congratulate the six newly elected Commissioners on their election and wish them every success.

This group, together with the appointed commissioners, will play an essential role in the effective governance and operation of the Crofting Commission, ensuring that it has the policies in place to deliver fair, reasonable and transparent decisions on matters affecting crofters and rural communities.

Crofting Commission Chief Executive Bill Barron said:-

I would like to congratulate those who have been elected and I look forward to meeting and welcoming them to the Commission.  With the three Commissioners appointed/re-appointed by the Scottish Government earlier this year, we now have a full complement of nine.   I and all the staff of the Commission are determined to give the new Board the best possible support as they take on the responsibilities of leading the Crofting Commission. We believe there is a positive future for crofting and I will do all I can to help the new Board of Commissioners carry out their functions effectively.

With such a big batch of new commissioners ushered in at one time many hope that this will see a change in approach by the Crofting Commission as the organisation has been dogged by almost constant controversy over the past 5 years. Only time will tell. We will be watching and reporting.

Brian Inkster

Image Credit: © BBC Alba

 

Ding Dong! The Convener is Gone

Crofters
Ding Dong! The Convener is gone. Which old Convener? The Cunning Convener!
Ding Dong! The Cunning Convener is gone.
Wake up – sleepy head, rub your eyes, get out of bed.
Wake up, the Cunning Convener is gone. He’s gone where the goblins go,
The Isle of Coll. Yo-ho, let’s open up and sing and ring the bells out.
Ding Dong’ the merry-oh, sing it high, sing it low.
Let them know
The Cunning Convener is gone!
Returning Officer
As Returning Officer, In the County of the Land of the Western Isles, I welcome you most regally.
Lawyer
But we’ve got to verify it legally, to see
Returning Officer
To see?
Lawyer
If he
Returning Officer
If he?
Lawyer
Is morally, ethic’lly
Crofter No.1
Spiritually, physically
Crofter No. 2
Positively, absolutely
Crofters
Undeniably and reliably Gone
Minister for Crofting
As Minister I must aver, I thoroughly examined him.
And he’s not only merely gone, he’s really most sincerely gone.
Returning Officer
Then this is a day of Independence for all the Crofters and their descendants
Lawyer
If any
Returning Officer
Yes, let the joyous news be spread The Cunning old Convener at last is gone!
Crofters
Ding Dong! The Convener is gone. Which old Convener? The Cunning Convener!
Ding Dong! The Cunning Convener is gone.
Wake up – sleepy head, rub your eyes, get out of bed.
Wake up, the Cunning Convener is gone. He’s gone where the goblins go,
The Isle of Coll. Yo-ho, let’s open up and sing and ring the bells out.
Ding Dong’ the merry-oh, sing it high, sing it low.
Let them know
The Cunning Convener is gone!

—-

Image credit: The Wizard of Oz – Metro-Goldwyn-Mayer

Lyrics: Adapted from “Ding-Dong! The Witch Is Dead” by E.Y. Harburg.

Review highlights “notable and worrying failures” in governance within the Crofting Commission

Rural Economy Secretary, Fergus Ewing, has asked the Crofting Commission to take urgent action to improve performance in crucial areas following the publication of the Governance Review [PDF] undertaken on the instruction of the Scottish Government by business advisors and accountancy firm Scott-Moncrieff.

The Scottish Government ordered the Governance Review of the Crofting Commission following the crisis of confidence in the organisation due to the inappropriate actions taken on common grazings committees and the subsequent breakdown of relationships within the Commission.

A full action plan including prioritising work to deliver the necessary improvements in the way regulatory cases and Board proceedings are managed will be delivered in response to the findings of the Governance Review.

The Crofting Commission Governance Review highlighted a range of areas that need urgent action including:-

  • Governance standards, procedures and other arrangements, at both executive and non-executive levels, to underpin effective decision-making, particularly in relation to the Bohuntin, Upper Coll and Mangersta Common Grazings cases [Note: The review did not look at the regulatory decisions themselves]
  • Arrangements for handling conflicts of interest
  • Ensuring that capacity building and development needs of Board members are met and that the necessary training is provided.

Rural Economy Secretary, Fergus Ewing, said:-

This review highlights notable and worrying failures in the governance of the crofting commission which must be improved immediately. That is why I have asked the new Chief Executive to urgently prepare an action plan to take this forward.

Crofting is an integral part of Scottish rural life and it is essential that it has an effective regulator. This review, and the action plan which will follow, must help to deliver the necessary changes and ensure the commission is able to lead the crofting industry forward.

Crofting Commission Chief Executive, Bill Barron, said:-

A number of important points have been made in the governance review and we are committed to ensuring robust processes are in place to achieve a high standard of governance within the organisation.  I will be putting in place a full action plan to ensure these points are addressed, as requested by the Rural Economy Secretary.

We have already made some of the improvements recommended in the review and we are developing a comprehensive induction programme for the new Board of Commissioners following the elections in March 2017.

Continuous improvement within the Commission, and building on the recommendations from the review, will help us to create a focussed and effective organisation working to secure the future of crofting.

The Scottish Crofting Federation has welcomed the pledge by the Scottish Government to put in place an action plan to address the failures highlighted by the Governance Review. Their Chair, Russell Smith, said:-

The Governance Review of the Crofting Commission, instigated by Scottish Government at our request, has exposed many weaknesses in basic operating procedures and in how the organisation copes with extraordinary individual behaviours. The review has made it clear that a robust Commissioner appraisal process is required, to help identify and deliver ongoing training and skills development. We are particularly keen to see a rationalisation of the roles of Commissioners, establishing when they should be delegating to the executive staff or referring to other bodies that have the required expertise. Commissioners should have a strategic and advisory capacity only. It is clear that they got too involved with executive procedures that they did not have the competence or remit for.

The review team recognises the huge damage done to the reputation of the Commission by the in-fighting and particularly that the vote of no confidence in the convener did not achieve a tangible result, that is, his removal. Frustratingly, the review does not suggest how this will be resolved, though the government’s recent exoneration will open up options.

It is alarming that the review team found there to be fundamental inconsistencies and gaps in records of events that led to the breakdown of the organisation. This appears to have handicapped the review to an extent, and is telling in itself.

The list of areas for improvement is long and the minister for crofting, Mr Fergus Ewing, has instructed that an action plan to address them be put in place as a matter of urgency. This will, we hope, sort out some of the fundamental issues that allowed the near collapse of this significant organisation. We are strongly of the opinion that the purpose and role of Commissioners needs to be appraised and a clear boundary to be set between their overseeing strategy and the staff’s executive function. This seems critical to the health of the Crofting Commission.

No comment appears to have been made by the Convener of the Crofting Commission, Colin Kennedy, on the “notable and worrying failures” found whilst he was at the helm.

Mr Kennedy has, however, as part of his campaign for re-election to the South West Highlands seat on the Crofting Commission, stated to The Oban Times that his “experience prompted” him “to make representations to the Scottish Government, which included insisting an external review was required to establish what was, or was not, going on“. One would, therefore, think that the review was instigated at the insistence of Mr Kennedy!

It was, of course, as a result of the alleged abuse of power within the Crofting Commission whilst Mr Kennedy was in charge that I and the Scottish Crofting Federation, amongst others, called on Fergus Ewing to instigate a review into goings on at Great Glen House.

As far back as April 2016, I stated:-

In 1883 a Royal Commission (The Napier Commission) was set up by Gladstone’s Liberal Government. Its purpose was ‘to inquire into the conditions of the crofters and cottars in the Highlands and Islands of Scotland’ and everything concerning them. This came on the back of The Highland Clearances and ‘The Battle of the Braes’ where the Braes crofters stood up against the 50 policemen brought in from Glasgow following the loss of their hill pasture on Ben Lee and a rent strike in protest. The Report by the Napier Commission resulted in the first Crofters Act in 1886 providing security of tenure for crofters.

130 years after security of tenure was given to crofters a new form of clearance is happening in the Highlands and Islands: The clearance of common grazings committees by the Crofting Commission. They are wielding power in an unjustified and brutal manner reminiscent of landlords from the nineteenth century. We are about to see I believe ‘The Battle of Great Glen House’ (this time perhaps fought with paper and ink rather than stones) and the Scottish Government must now institute an inquiry into the actings of the Crofting Commission and everything concerning them.

In May 2016 the then Chair of the Scottish Crofting Federation, Fiona Mandeville, referring to a meeting held in Ullapool to discuss the common grazings crisis said:-

The meeting was unequivocal in its opinion of the Crofting Commission’s conduct. As well as a vote of no confidence in the Commission, the meeting thought that it would be appropriate for the convener of the Commission to stand aside whilst an investigation is carried out into the summary dismissals of grazings committees and the internal procedures of the Commission that has led to this debacle. The Scottish Crofting Federation fully supports this.

Then in June 2016 the Scottish Crofting Federation reiterated its call on Scottish Ministers to intervene in the crofting common grazings debacle and to instigate an external examination of the Crofting Commission, following revelations of a cover-up. Fiona Mandeville then said:-

We reiterate our petition that the Scottish Ministers intervene and ensure that an impartial examination of the Commission’s recent conduct is carried out by a competent external body.

This is extremely disappointing. It seems that the only way to deal with this is through an external audit of the Commission’s behaviour over the common grazings. And we do mean a full audit.

Also in June 2016 Brian Wilson writing in The Scotsman said:-

The immediate question is whether the Scottish Government is prepared to back their quango’s interpretation of the law and its heavy-handed approach to enforcement.

In the short term, a rapid inquiry into why the Crofting Commission has got itself into this mess and how it can be helped out of it may seem a relatively attractive option.

In September 2016 the West Highland Free Press called for decisive Ministerial intervention in the crofting crisis. Their editor stated:-

As crofting minister Mr Ewing has a duty to be open and transparent in the exercise of his responsibility.  He is not just another interested observer.

He also has a duty to the crofting community to ensure that its governing body adheres to best practice and does not trample crofters into the ground.

The West Highland Free Press have also, of course, repeatedly called on Fergus Ewing to remove Colin Kennedy as Convener of the Crofting Commission. They were of the view that “more than anybody else, Mr Kennedy spearheaded the assault on the grazings committees“.

So, no, it was not Colin Kennedy who asked for the Governance Review. But it was his actions that were certainly behind the call by the many who did want to see such a review and are not surprised at all by its findings. I will consider those findings in some detail in future posts on this blog.

Brian Inkster

Image Credit: Commission on the Rocks – Cartoon © A concerned crofter