Tag Archives: Crofting Reform (Scotland) Bill

The Cross-Party Elephant?

The elephant in the crofting cross-party room

Was there an elephant in the room at the crofting cross-party group meeting?

The cross-party group on crofting met last Wednesday at Holyrood.

It was very ably chaired by Tavish Scott MSP. He is one of the three co-conveners of the group, having been elected along with Kate Forbes MSP at the last meeting to replace Michael Russell MSP after Mr Russell became Brexit Minister. Rhoda Grant MSP is the third co-convener of the group.

Fergus Ewing MSP, cabinet secretary with responsibility for crofting, was a special guest at the meeting.

Mr Ewing made it clear at the outset that he couldn’t comment in any respect on the current controversy regarding the convener of the Crofting Commission given the allegations made by him against Mr Ewing which are the subject of an independent investigation.

Mr Ewing outlined all that the Scottish Government is currently doing to assist crofting and its future.

In particular he discussed future crofting law reform. The Scottish Government wants to modernise crofting law and make it transparent, understandable and workable in practice. Mr Ewing made it clear that they very much wanted to listen with no precise timetable in mind.

Mr Ewing stressed the importance of taking time to get it right. I couldn’t endorse that view more and trust that we won’t see the chaos of a huge number of last minute amendments that was encountered in creating the Crofting Reform (Scotland) Bill in 2010. That was possibly partly responsible for many of the issues (not common grazings ones that were not affected by the 2010 legislation) that has led to the current Scottish Government having to tackle crofting law reform so soon again.

After Mr Ewing left the meeting we continued with the topic of crofting law reform. Derek Flyn outlined the background to the crofting law sump report which he described as a “collection of what is wrong with crofting law”.

Michael O’Neil, the newly appointed Head of the Scottish Government Legislation Team, then outlined proposals to take crofting law reform forward.

Mr O’Neil indicated his intention to involve as wide a range of stakeholders as possible. He will get out and about and meet anyone he needs to speak with.

He will refer to the information contained in the crofting law sump and in the Shucksmith Report.

Some questions Mr O’Neil had in mind included:-

  • Why do we need crofting legislation?
  • What changes need to be made to it?
  • How do we go about delivering the changes identified?
  • Are there other options to new legislation?

A small team has been assembled by the Scottish Government to take crofting law reform forward.

It will be interesting to see this process move forward and we will keep you posted on the Crofting Law Blog as it does.

Bill Barron, the new Chief Executive of the Crofting Commission, was attending his first cross party group meeting. On the agenda was an “update on grazing committee removals and other current Crofting Commission business”. He appeared to dodge being able to provide that update on the basis that it was his fifth day in the job.

However, sitting next to him was the Convener of the Crofting Commission, Colin Kennedy. Mr Kennedy did not offer an update on grazing committee removals and other current Crofting Commission business. Indeed, other than to introduce himself as all attendees did at the outset, Mr Kennedy sat silent throughout the entire meeting. He didn’t speak and no one asked him to speak.

This was, of course, the first crofting cross-party group meeting that Mr Kennedy has attended in this session of Parliament, having avoided the last two. He has thus not expressed the views of the Crofting Commission to the cross-party group since this session of Parliament commenced.

Mr Kennedy has, however, been very vocal in expressing his own personal views (which don’t necessarily coincide with those of the board of the Crofting Commission) in the media over the past few weeks including, in particular, in four successive editions of the Scottish Farmer.

His presence at last week’s cross party group meeting was referred to by some as the elephant in the room. But can the situation simply be ignored?

Brian Inkster

You might think that, I couldn’t possibly comment

You might think that, I couldnt possibly comment - Common Grazings Crisis - Crofting Commission - Scottish Government

There comes a point where actions speak louder than words

To date the Cabinet Secretary for the Rural Economy and Connectivity with responsibility for Crofting, Fergus Ewing MSP, has not said much on the question of  ‘The Common Clearances‘.

Rhoda Grant MSP asked the Scottish Government:-

whether it is satisfied with how the Crofting Commission has acted in all matters relating to the dismissal of the Mangersta grazing committee.

Fergus Ewing MSP answered:-

The Crofting Commission is a non-departmental public body that takes regulatory decisions within the bounds of its duties and powers. Such decisions are taken independently and at arm’s length from Scottish Government.

Rhoda Grant MSP also asked the Scottish Government:-

whether it will establish an inquiry into the workings of the Crofting Commission.

Fergus Ewing MSP answered:-

The Scottish Government has no current plans to do so.

In addition Rhoda Grant MSP asked the Scottish Government:-

whether it has confidence in the convener of the Crofting Commission.

Fergus Ewing MSP answered:-

The Scottish Government is confident that the Crofting Commission board is able to deliver the functions of the commission.

That may have been the Scottish Government’s position on 27 June 2016. The massive U-turn taken by the Crofting Commission on 29 June 2016 should change that stance.

That U-turn and the manner in which it was executed demonstrates that the Crofting Commission got it wrong. They handled the whole Mangersta affair very badly indeed from start to finish. In light of this there can be no confidence that the board or their Convener is able to deliver the functions of the Commission.

The watershed moment was reached on 29 June. The Scottish Government can no longer sit on the fence. There has been as good an admission as any that the Crofting Commission failed the shareholders of Mangersta. In so doing they failed in their regulatory duties and should be made to account for those failings.

A day before the U-turn representatives of the Scottish Crofting Federation met with Fergus Ewing MSP. Commenting on that meeting the Chair of the Federation, Fiona Mandeville, said:-

We also had constructive discussion on the Crofting Commission crisis. We are very supportive of a majority elected Commission and fear that the common grazings debacle can jeopardise this. We therefore asked Mr Ewing to consider a procedural review of the Commission. At his request, we will send him a note outlining details of our recommendations forthwith.

In the wake of the U-turn, Fergus Ewing MSP should take heed of that request for a procedural review and actually now instigate it.

The Scottish Government can no longer hide behind suggestions that the Crofting Commission are at “arm’s length” from the Scottish Government.

The fact is that the Crofting Commission and their Commissioners are answerable to the Scottish Government.

Under and in terms of the Crofters (Scotland) Act 1993:-

  • The Crofting Commission shall discharge their functions in accordance with such directions of a general or specific character as may from time to time be given to them in writing by the Scottish Ministers. [Section 1(3)]
  • The Scottish Ministers may (a) confer functions on; (b) remove functions from; (c) otherwise modify functions of, the Crofting Commission, where they consider it appropriate to do so to ensure that the Crofting Commission carry out their functions efficiently and effectively. [Section 2A(1) and (2)]
  • In so doing Scottish Ministers may modify any enactment (including the 1993 Act). [Section 2A(3)(b)]
  • The Scottish Ministers may remove a member of the Crofting Commission from office if satisfied that the member is unable or unfit to exercise the functions of a member or is unsuitable to continue as a member. [Paragraph 9(1)(e) of Schedule 1]
  • The Crofting Commission must provide the Scottish Ministers with such information in respect of the exercise, or proposed exercise, of the Crofting Commission’s functions as the Scottish Ministers may, from time to time, require. [Paragraph 20 of Schedule 1]

So, far from being a body that the Scottish Government should consider to be at arms length from it, the Crofting Commission is one that is directly accountable to and ultimately under the control of the Scottish Ministers.

That being the case the Scottish Government should not, like the Crofting Commission, ignore the law involved. They should apply the law, as set out above, as necessary to make the Crofting Commission accountable for their actions over the Mangersta debacle.

Following the U-turn by the Crofting Commission, former members of Mangersta Common Grazing Committee stated:-

We continue to believe that there should be an inquiry into the functioning of the Crofting Commission.

An inquiry is necessary to answer questions such as:-

  • Why did the Crofting Commission reopen a case investigated, resolved and closed by the Crofters Commission?
  • On whose insistence and on what evidence was the case reopened?
  • Was there undeclared conflicts of interest by Crofting Commissioners involved in the matter?
  • What legal advice was sought by the Crofting Commission on the matter? From whom, when, on whose insistence and on what basis? Was such legal advice followed?
  • Why were inconsistencies applied by the Crofting Commission to the handling of this case compared to others being dealt with contemporaneously?
  • Why was the removal from office of the Grazings Committee at the time deemed justifiable and necessary?
  • Why did the Crofting Commission ignore and not respond to the legal position put forward on behalf of members of the dismissed Grazings Committee?
  • Why did the Crofting Commission refuse to revisit their decision (saying that they could not in law do so) but ultimately did just that?
  • Why did the Crofting Commission ignore their own guidelines on the investigation of questions of financial impropriety which they had stated were a matter for the civil or criminal courts?
  • Why did the Crofting Commission purport to appoint a Grazings Constable when there is no basis in law to do so and then sought to extend that appointment, again when there is no basis in law to do so?
  • Why was the particular Grazings Constable in question appointed, on what basis and was a conflict of interest declared by any Commissioners relative to that appointment?
  • Was the Grazings Constable really independent and impartial or was he provided with instructions for the discharge of his appointment by the Crofting Commission?
  • Why did the Convener of the Crofting Commission, Colin Kennedy, attend a meeting of the shareholders of the Mangersta Common Grazings and refuse to leave when a conflict of interest had been declared by him?
  • Why and on what basis in law, when shareholders questioned the legality of the Commissioners proposals at that meeting, were they told that if all shareholders did not accept them, the Commission would not allow shareholders to reform a committee?
  • Did the Crofting Commission’s handling of the matter result in the resignation of William Swann as a Commissioner?
  • Why did the Crofting Commission issue guidelines on the management of grazings funds, then delete those guidelines and claim that they had never said what they had said in them?
  • Why did the Crofting Commission insist that funds had to be paid out by Grazings Clerks to shareholders “immediately” when Roseanna Cunningham MSP, on behalf of the Scottish Government, clarified on 21 June 2016 that “the Crofters (Scotland) Act 1993 does not require the immediate disbursement of funds by a grazings committee”?
  • Why did the Crofting Commission insist on common grazings funds being managed in a way that defied logic and was not set out anywhere in law?
  • Why did the Crofting Commission not take cognisance of the statement by Minister of State for Scotland, Lord Kirkhill, in the House of Lords on 6 April 1976 regarding the Crofting Reform (Scotland) Bill that “there would seem to be nothing [in the bill] to prevent a voluntary arrangement being made whereby any crofter’s share would be diverted to the grazings committee”?

These are questions that the Scottish Ministers can no longer ignore following the recent U-turn by the Crofting Commission. The Scottish Ministers must comment properly on them and, if necessary, take appropriate action under and in terms of the Crofters (Scotland) Act 1993.

The only way that they will be able to properly pass such comment and take such action is following a focused and detailed investigation into how and why the Crofting Commission handled the Mangersta situation in the manner that they did.

That case is no longer ongoing and is not subject to court proceedings. The Crofting Commission therefore cannot hide from, prevent or delay an investigation specifically focussed thereon. Fergus Ewing MSP must now instigate just such an investigation for the future stability, survival and sustainability of crofting in Scotland.

Brian Inkster

Image Credit: House of Cards © BBC