Crofting Convener must go

Crofting Convener must go - says Lewis and Harris Crofters MeetingThe overwhelming message that came out of the Lewis and Harris Crofters’ Meeting was that the Convener of the Crofting Commission, Colin Kennedy, must go.

Over 80 people attended the meeting, organised by the Scottish Crofting Federation, in Stornoway Town Hall on 3 August.

I will reproduce some of the reports of the meeting that have appeared in the media.

“Lack of Trust” in the Crofting Commission – BBC Naidheachdan

On Wednesday night, more than 80 people gathered at a meeting in the Stornoway town hall to discuss the impact of unrest/conflict between the Crofting Commission and the Grazing Committees.

They put forward a vote of no confidence in the commission, and agreed that Colin Kennedy should resign from his position as the convener of the Crofting Commission.

The Commission had no official representation at the meeting.

Iain MacIver who is himself a Township Clerk said:-

The turnout tonight shows the interest in crofting, and how worried people are of the situation as it is now that they understand it.

It is easy to see that people are very angry about the way in which some of the villages were dealt.

They want to see how the Commission works, and how the law works, lessons to be learnt so that crofting stands in a better position.

The lack of trust vote shows the feelings that are there, but at the end of the day it is up to the government what they are going to do.

I think that the thing that worried people most, was if the people going forward were to be idle in their roles as Town Clerk , and also the Commission itself with the situation as it is now.

But we hope in the coming months that people will gain confidence and be given the right guidance so that crofting can be strengthened, instead of weakened, and that the Government endeavours to make this happen, and that they won’t ruin it as people suspected they would.  That was the consensus this evening.

Crofters make it clear: The Commission can stay but the Convener has to go – Scottish Crofting Federation

A meeting attended by eighty crofters in Stornoway concluded that a Crofting Commission is good for crofting, but it is currently not fit for purpose so the convener, Colin Kennedy, must go.

A crofting meeting organised by the Scottish Crofting Federation held in Stornoway last week, attended by eighty crofters from townships all over Lewis and Harris, gave a clear message to the Scottish Government: the convener of the Crofting Commission must step down; the Upper Coll grazings committee must be re-instated; the current Crofting Commission must be sorted out by Scottish Government but, nonetheless, a Commission is essential to crofting.

Vice-chair of the Scottish Crofting Federation (SCF), Russell Smith, said:-

It was a loud and clear message coming out of a very lively but thoughtful discussion. This is not knee-jerk reaction; the attack on common grazings committees by the Crofting Commission has been on-going now for several months so crofters have had plenty of time to think about this. It is not surprising that there is a call for the convener of the Commission to stand down and for deposed committees to be re-instated. It is perhaps more notable that, despite what is widely regarded as very poor behaviour, the Crofting Commission is still wanted, albeit following a thorough review and improvement of procedures. I think that this is a very sensible approach.

The meeting heard presentations from representatives of the removed Lewis grazings committees, SCF, Inksters Solicitors and Scottish Government, not only on the topic of the Crofting Commission but also on CAP, support to crofting and advocacy for crofting. The meeting, that sometimes became quite heated, was well-chaired by SCF member Donald MacSween.

Mr Smith continued:-

We can understand the Scottish Government’s reluctance to interfere with a majority-elected body, but the meeting was united in its view that the Scottish Government does have to intervene in this circumstance. The procedures of the Commission clearly need to be investigated and modified to stop this sort of thing happening again. The Crofting Commission may well be an ‘arms-length government body’, but the Scottish Government still has a responsibility to make sure that the Commission operates in a fair and reasonable manner – and does possess the powers to intervene, for example by removing a Commissioner, if it sees fit.

Following discussions a vote was called on the motion:-

this meeting has no confidence in the existing Crofting Commission and supports the SCF call for the resignation of the convener Colin Kennedy.

The motion was passed by an overwhelming majority.

Anger in Stornoway aimed at commission – West Highland Free Press

The sense of anger at the recent actions of the Crofting Commission was laid bare at a public meeting in Stornoway last week attended by over 80 people, which delivered an overwhelming vote of no confidence in the organisation and called for the resignation of its convener Colin Kennedy….

As the meeting was drawing to a close a vote of no confidence in the existing commission was passed as well as a call for the resignation of its convener. An overwhelming majority supported the moves with only five of those present against – three of whom are the crofters in Upper Coll who raised the original complaint against the committee, including a father and son.

The Crofting Commission’s Response – Island News and Advertiser

The Crofting Commission is committed to working positively with grazings committees and crofters. At present, the Commission is undertaking an examination of the circumstances of the recent cases, so that any lessons learnt can inform future procedures and decision-making.

A majority of the Crofting Commissioners are elected by crofters, with no involvement on the part of Commission staff in the process, so any consideration of their position is a matter for the individual Commissioner.

It should not be forgotten that consideration of the position of Crofting Commissioners is also a matter for Scottish Ministers and I will look at that further in my next post.

Brian Inkster

Image Credit: © BBC Alba

5 thoughts on “Crofting Convener must go

  1. Neil King

    I’m coming late to this but I’ve been back and read all your posts and what a saga!

    While it’s probably fair to say with the benefit of hindsight that the CC hasn’t covered itself in glory, and some of its personnel may lack diplomacy skills, I just wonder if it’s necessary to suspect the bad faith meriting the strident calls for enquiries and resignations etc. Is the remedy not at the ballot box?

    If money held by a grazings committee is from a resumption, is s.21(4)(c) not plain as a pikestaff that it has to be paid out (no matter how galling that may be for the reasons so articulately expressed by Domhnall Macsween)? The law is perhaps less clear about credit balances from other sources (corncrakes etc.) but then it would behove a GC to account fully for how much of its credit balance came from resumptions and how much from other sources it *may* not be obliged to pay out.

    I agree claims by a crofter for a payment from his GC are a matter for him to pursue privately through the civil courts. But standing its powers under s.47(8), might the CC not equally risk criticism if it did nothing to sanction a GC it suspected of illegally withholding payments due?

    I also agree it might have been a bit heavy handed to have dismissed the Upper Coll and Mangersta GCs en bloc but was this *illegal* (in the Wednesbury civil, not criminal, sense) standing that s.47(8) doesn’t require the CC to make enquiries?

    I also agree the CC can’t appoint a grazings constable under s.47(3) immediately upon their having dismissed the GC. But I disagree with Donald Rennie that they can’t appoint a single person under s.47(8) to act as a sort of judicial factor to the grazings. If the dismissed GC was composed of Messrs A, B, C, D & E, then the CC are exercising their discretion to replace Mr A but not replace the others. It doesn’t matter that they *called* him a constable when he wasn’t one strictly speaking. I do however agree that the CC blundered by appointing someone who had been a member of the dismissed Upper Coll GC – Mr Souter’s appointment is illegal for that reason alone. (I think it’s stretching s.47(8) to argue “We are replacing Mr A (but not the rest) with an “other person” who happens to be Mr B.”) It was also politically inept but we don’t have to suspect bad faith on anybody’s part, though.

    It does, however, point out a flaw in the legislation that there’s no explicit power in the legislation for the CC to appoint a judicial factor (or administrator, call it what you will) to a grazing in appropriate circumstances. But pending new legislation to fill that gap, then if we can leave on one side for now that the CC may have been hasty in dismissing the GCs and erred in appointing one of their number as the “judicial factor”, then you could argue it was a statesmanlike solution as a temporary caretaker measure pending election of a new committee.

    New legislation should also set out explicitly the circs in which a GC may retain a credit balance if so authorised by the crofters on a majority vote or pay it out. As I think someone commented, an analogy is with the board of a company being allowed to retain profits for reinvestment instead of paying dividends but with the board’s decisions being subject to review by resolutions of the shareholders at AGM.

    But all these legalities aside, the thing that *really* struck me in this saga was the existence of inactive or absentee crofters having a different agenda as regards GC credit balances from the active crofters – what is the CC doing about them?

    Reply
    1. Brian Inkster Post author

      Neil

      The ballot box can at times be distant but it will be coming around next year. In the eyes of many crofters that is still too far away to resolve the crisis that exists within the Crofting Commission.

      Resumption monies may require to be paid out but shareholders can allow retention if they so wish as was made clear by Lord Kirkhill. Also if a levy has been made for township improvements I cannot see why an offset cannot be made. The Crofting Commission were insisting that even where 100% of the shareholders wanted to retain monies for township improvements that they could not do so and had to empty their bank accounts.

      I don’t think that the Crofting Commission should be sanctioning a Grazings Committee that it “suspected” of illegally withholding payments due. What happened to innocent until proven guilty? Surely the aggrieved shareholder pursues the matter through the civil courts and, if his position is vindicated there, then the Crofting Commission would have clear grounds for sanctioning the grazings committee.

      Section 47(8) may not require the Crofting Commission to make enquiries but they must be “satisfied” that the members of the grazings committee “are not properly carrying out the duties imposed upon them”. The Wednesbury principle can hit at that. Also the lack of a need to make enquiries makes the legislation potentially non ECHR compliant.

      It wasn’t Mr Souter that was a member of the dismissed Upper Coll Grazings Committee. My post about a dismissed grazings committee member being appointed as constable did not relate to the two Lewis cases but to the one on the Scottish mainland.

      The orders appointing all three constables state that they are appointed under section 47(3) thus they were illegal even if one person can be appointed under section 47(8). I am not agreeing that they necessarily can though.

      You are being very generous not to suspect bad faith!

      The Crofting Commission appear to have taken their foot of the pedal regarding inactive or absentee crofters. All their energy and money of late having been devoted to the pursuit of ‘The Common Clearances‘!

      Reply
      1. Neil King

        Brian, I don’t know nearly enough of the facts to risk publicly imputing bad faith to anyone! Rather, I was being devil’s advocate to suggest the events are consistent with good faith, albeit very badly handled: in effect cock up rather than conspiracy.

        I hadn’t appreciated it wasn’t Mr Souter at Upper Coll who’d been a member of the dismissed GC or that the CC’s instruments of appointment of the purported constables explicitly referred to s47(3). But does referring to the wrong legislative provision necessarily vitiate an action if it’s valid in all other respects? I shouldn’t have used the word “sanction”. I meant “take action”. And I hear what you say about “being satisfied” (although that doesn’t seem to be a very high bar if the Keeper’s attitude to being satisfied as to validity of title under the Land Reg Act 2012 is anything to go by!)

        Be all that as it may, another consequence of this saga could be that inactive crofters elsewhere are emboldened to seek payouts from their GCs. Therefore, what advice would you give GCs faced with such a claim?

        It seems to me there’s a distinction between resumptions and other receipts. On resumptions, you keep talking about the will of Parliament as evidenced by speeches by ministers in the House of Lords during the passage of the 1976 Act. But is the will of Parliament not to be discovered from the wording of the legislation it passes? And only if that wording’s ambiguous, can you consult Hansard to see what may have been intended? But s.21(4)(c) isn’t at all ambiguous, it’s as plain as a pikestaff that a crofter has to be paid out his share of a resumption from a common grazing. Of course, a crofter can agree to waive that right to payment (as explained by Lord Kirkhill in the HoL) but is the whole point of Upper Coll & Mangersta not that some crofters did NOT agree to the GC retaining their money? You mention set-off against a levy as well. Sure if and to the extent there’s an outstanding levy but you can’t withhold money legally due against future contingencies that may or may not come to pass, can you?

        With other receipts, I think the legislation is silent but off the top of my head, first principles might suggest there could be no question of paying out a grant to defray expenditure while on the other hand it might be hard to argue for retaining (without consent) a grant designed to compensate income foregone. Of course this all opens up the question of what powers a GC has to contract on behalf of the crofters – I haven’t looked at the Act on that in any detail.

        I think it’s essential that any new crofting legislation introduces a power for GCs to retain receipts, wherever from, as a “war chest” if a majority of the sharing crofters so authorise (in effect Lord Campbell of Croy’s amendment in 1976 – what an irony he was acting at the behest of the Stornoway Trust to legislate for the existing practice there!). And perhaps a wider review of the exact powers and duties of GCs vis a vis the sharing crofters.

        Reply
        1. Brian Inkster Post author

          Neil

          Indeed. Could, of course be, a very badly handled conspiracy!

          Not sure in what “other respects” the appointment of “grazings constables” under Section 47(3) could be seen to be a valid appointment of a new committee under section 47(8). I think a lot of this comes down to the Crofting Commission’s clear misunderstanding of what the role of a grazings constable actually is. They had a need, in their eyes, to appoint a grazings constable rather than a replacement committee as they believed (mistakenly) that a grazings constable had investigative police type powers. Hence perhaps the choice of a retired police Chief Inspector for the role at Upper Coll.

          I do not disagree that shareholders can seek to have resumption monies paid out to them. But they can’t be forced to take such monies against their will as the Crofting Commission were insisting to be the case. The point at Upper Coll and Mangersta, as I understand it, was that the committees in question were prepared to pay out resumption monies properly due and payable to shareholders insisting on receiving it but the Crofting Commission were insistent on them going further than that and emptying their bank accounts. The Crofting Commission stated that all monies had to be paid out to all shareholders even where those shareholders clearly wished monies retained for township improvements. As we know the Crofting Commission deleted their history on this point and claimed they had never said this. When there is plenty of evidence that they did.

          If a grant is paid for township improvements I cannot see how that could be disbursed to shareholders rather than being spent on the township improvements in question. Again the Crofting Commission were bizarrely stating that such grants had to be disbursed.

          It may indeed be wise to amend the legislation, as part of the Government’s planned review thereof, to make the position 100% clear. However, I don’t think it is that unclear at present. Grazings Committees have managed the position without too much problem over many years. That is until the current Crofting Commission decided to turn their eyes onto it in 2015/16. The same was true of decrofting until the current Crofting Commission decided to turn their eyes onto it in 2013. Notice a theme?

          Reply
    2. Iain MacKinnon

      Another weakness with the ballot box solution is that the majority of the current debacle is being played out in the Western Isles. It doesn’t matter how angry the island crofters are with the convening commissioner for the ‘South west Highlands’ who is being held responsible for the debacle, they have no say in whether he will be re-elected. It’s a dirty bird that fouls its own nest…

      Reply

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