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.
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