Tag Archives: crofting stakeholders

The Crofting Bat Phone

The Crofting Bat Phone

Commissioner Gordon and Batman didn’t have a look in to the lines of communication available between the Crofting Commissioner(s) and their Grazings Constable!

There have been quite a few comments of late about the difficulties of getting a statement from the Convener of the Crofting Commission, Colin Kennedy. He is elusive to say the least and seldom represents the views of the Board to the general public despite this being one of his “particular responsibilities” .

Other Commissioners have been thin on the ground of late as well with no Commissioner replacing the Convener when he failed to attend the Scottish Government Crofting Stakeholder Forum in Inverness on Tuesday. This left the Chief Executive, Catriona Maclean, representing the views of the Commission in front of BBC Alba after the meeting.

Getting clear and unambiguous information out of Commissioners when you can pin them down is also often a challenge.

One person who seems to have direct access without difficulty to Commissioners (which might include, or indeed mean, the Convener) is the Grazings ‘Constable’ of Upper Coll, Colin Souter. He certainly appears to be in possession of information that only Commissioners would have and that well in advance of such information being made available to anyone else outside of Great Glen House.

One example of that became clear at the meeting of the Scottish Government Crofting Stakeholder Forum in Inverness on Tuesday.

I had been aware from the published Agenda that the Board of the Commission had considered a paper at their meeting on 17th August on ‘Grazings Committees – A Practical Approach to the Management of Common Grazings’. There was no mention of that at the Stakeholder Forum so I enquired about it.

I was advised that the Crofting Commission was setting up a Stakeholders’ Working Group to advise on the revision of common grazings regulations and guidance. This paper from 17th August would be considered by that group at a meeting on 20th September. Only after that meeting would the paper in question (possibly after refinement? – but that was not made clear) be circulated to the wider Stakeholder Forum.

So at the moment members of the Stakeholder Forum had no knowledge of or access to what the paper in question said. A stark contrast to the access to that paper apparently afforded to Grazings ‘Constable’ Colin Souter.

In the letter issued by Colin Souter to Shareholders of the Upper Coll Common Grazings on 29th August he states:-

The Board of Commissioners at a recent meeting, considered a submission along the lines I set out at the July meeting, whereby Committees can operate within a defined financial framework which allows retention of funds (from any legitimate source) in the bank, up to a maximum agreed by shareholders, taking account of any commitments under Schemes and projects ongoing and an Emergency Reserve (set at perhaps 3-4 times the 3-year average annual maintenance costs) and exceeding that amount automatically triggers payment to shareholders, three or four times a year. In doing so, the administrative burden is minimised for the Committee and they are seen to be operating within an agreed and better regulated financial framework. Whilst the Commission has a clear role, as regulator, in ensuring feu monies are distributed to shareholders, I understand it does not otherwise seek any direct involvement in other areas of finance affecting shareholders. The proposal tabled is seen as an initiative worthy of testing, for the benefit of Upper Coll and the wider crofting community but it is a choice for shareholders to make.

So even before the Commission has had the first meeting of its new Stakeholders’ Working Group, to advise on the revision of common grazings regulations and guidance, Colin Souter is seeking to impose the guidance so far produced (that no one other than Commissioners, Commission Officials and Colin Souter have seen) upon one particular Common Grazings, namely Upper Coll.

The same is true about his access to an Opinion from Queen’s Counsel which it is presumed was instructed by the Crofting Commission. In his said letter to shareholders at Upper Coll he said:-

Following receipt of legal opinion from Queen’s Counsel, the position of Grazings Committees being able to register for VAT as trading entities in order to reclaim VAT has come under scrutiny. The dialogue with HMRC regarding VAT status remains ongoing and once concluded, I will be able to advise on the outcome.

When I asked about this opinion at the Crofting Stakeholder Forum there was “no comment” from the Chief Executive of the Crofting Commission on behalf of the Board.

It is highly unusual for the Crofting Commission to publish legal advice received by them in any event.

On the topic of legal advice: Colin Souter seems very ready to challenge what he considers to be illegal activities at Upper Coll. It would be very unusual for a clerk in a common grazings (that is effectively what Colin Souter is had he been legally appointed) to appear so sure about crofting law without having sought legal advice. Not that I would give much weight to any advice that Colin Souter is getting given, in my view, a clear misunderstanding on his part as to what the law actually is.

We know that he thinks that legal advice cannot be paid for from grazings funds. So where is he getting his crofting law advice from? Is it likewise coming from Commission officials and/or from Commissioners and/or from a Commissioner? An organisation with a Board that has been shown to ignore the law and lawyers.

Why and how did one grazings clerk (i.e. Colin Souter) get privileged access to all of this information before any other grazings clerk in the land and before the members of the Crofting Stakeholder Forum? In the case of the opinion from Queen’s Counsel this may never be divulged to any other grazings clerks or to any members of the Crofting Stakeholder Forum.

The only explanation can be direct and special contact between him and a Commissioner and/or Commissioners and/or officials within the Crofting Commission.

So much for the assertion that he is acting at arms length and independent from the Commission.

It also again highlights the fact that he is under the control of and acting at the behest of the Crofting Commission. A reader of this blog having referred to him as a “maor” (or ground officer).

Serious questions must be asked by the Scottish Government about this arrangement and, in the circumstances, the validity of any pronouncements by the Crofting Commission and/or their ‘Constable’ over the situation at Upper Coll.

The Crofting Commission will no doubt say that the Scottish Government cannot investigate the situation when it is subject to on going court proceedings. Those court proceedings may touch upon the legality of the appointment of the Grazings ‘Constable’ in the first place.

But even if we take it that the appointment was legal (although that is denied) then the Scottish Government should be looking at the propriety of the relationship that exists between such a legally appointed grazings constable and the Crofting Commission.

Is it correct and proper that he has been given an investigative remit? Is it correct and proper that he is being supplied with the information that he has been? If it is not then who gave that remit and/or supplied that information?

If that was a Commissioner are they therefore, in all the circumstances, “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”? As such should the Scottish Ministers remove them from office under and in terms of the Crofters (Scotland) Act 1993?

Even worse if it were to transpire that it was the Convener who was embroiled in all of this. After all he has, for some time, been the subject of complaints about his handling of the affair at Upper Coll and so should not be involving himself in matters concerning Upper Coll until the relevant complaints process has been completed. To do so would be a clear conflict of interest. But there again that has not stopped him before.

Brian Inkster

Image Credit: The Bat Phone from Batman (TV Series) © Greenway Productions / 20th Century Fox Television

Catriona moves on from herding the Commissioner(s)

Herding cat(s) at the Crofting Commission

Or was there just one cat at the board room table?

It was announced by Catriona Maclean, at a meeting of the Scottish Government Crofting Stakeholder Forum in Inverness this morning, that she was stepping down as Chief Executive of the Crofting Commission from early October.

She has taken a promotion within the Scottish Government as Deputy Director of the Food, Drink and Rural Communities Division.

Catriona said:-

I will be leaving the Crofting Commission to take up a promotion as Deputy Director of Food, Drink and Rural Communities Division from late October. I am delighted to have been asked to lead on such a key area of work for the Scottish Government.

The Food and Drink sector covers a wide range of industries and creates both jobs and wealth for Scotland. It also has an impact on health and sustainability and I look forward to working with stakeholders to ensure the sector maximises its impact.

That said, it is not without a great deal of sadness that I leave the Crofting Commission and my staff who are all dedicated to providing an excellent service to crofters. Scottish Government is taking steps to fill the vacancy my departure creates and I am confident that the transition will be as smooth as possible and that continuity of service provision will be maintained.

I would like to take this opportunity to thank staff, Commissioners and stakeholders for the support they have given me in the last 3½ years and wish them well for the future.

It is a shame to see Catriona leaving the Crofting Commission at a critical time when there is still so much to be resolved in connection with the Common Grazings debacle.

It appears clear from documents obtained via Freedom of Information requests that Crofting Commissioners acted contrary to her advice in appointing grazing constables in circumstances where she had advised them it was illegal to do so.

It must have been difficult for her to be in the situation of providing proper and valid executive advice to a board who ignored it. Perhaps no surprise then that she is moving onto bigger and better things when the opportunity arose.

I wish her well in her new role which I imagine comes with the joy of no board to herd!

The Scottish Government now need to act swiftly by putting in an interim Chief Executive at the earliest possible opportunity. That Interim Chief Executive must try and resolve the internal conflict that clearly exists within the board and the issues surrounding Common Grazings that appear to have been created by the Convener. The question of seeking to prevent shareholders receiving SRDP and, possibly also, VAT funding being particularly serious.

There have been many calls for the Convener to step down and crofters will possibly be wishing that today’s news revolved around such a resignation rather than seeing the Chief Executive leaving the organisation.

Brian Inkster

Lacklustre response by Crofting Commission

Lacklustre response from Crofting CommissionThe Crofting Commission eventually got around, on 24 August 2016, to issuing a public written statement regarding the letter from Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, to Colin Kennedy, Convener of the Crofting Commission. It states:-

A special meeting was held by the Board on the 21 July to consider the Cabinet Secretary’s letter to the Convener. The Board unanimously agreed that the Crofting Commission support the Scottish Government’s position on CAP funding and disbursal of funds by common grazings committees.

The Convener, Colin Kennedy, has written to the Cabinet Secretary confirming the Board’s agreement.  At the Commission’s Board meeting on Wednesday 17 August, draft guidance for grazings committees was considered and the Commission is planning to engage with stakeholders to discuss the guidance.

The Crofting Commission continues to work constructively with the Scottish Government and is committed to securing the future of crofting.

So nothing there we didn’t know already! And nothing to clarify the confusing mixed messages issued on the Commission’s behalf by Commissioner Murdo Maclennan in English and in Gaelic immediately following the board meeting on 17 August.

Or does this clarify the position without explicitly saying so?

With no add-ons like we got from Murdo Maclennan does this mean there is no qualification to the support given to the letter from Fergus Ewing (i.e. the Crofting Commission are not actually saying that they think they did the right thing but are still supporting his letter – instead they are simply unequivocally supporting his letter and therefore admitting that they got it wrong completely?)

However, we shouldn’t have to be drawing inferences from statements issued by the Crofting Commission.

They knew there was confusion caused by Colin Kennedy’s statement to Jackie O’Brien on 16 August and Murdo Maclennan’s statement to the media on 17 August. In both cases the message was in effect  that “we’ve done nothing wrong but we support the letter from Fergus Ewing”. Is this or is this not the position of the Board of the Crofting Commission? Or are they split on this point?

I have asked the Chief Executive of the Crofting Commission, Catriona Maclean, to clarify the matter, for the avoidance of any doubt, for readers of this blog. I will let you know her response should I receive one and am not simply ignored again.

Yes Crofting Minister

Yes Crofting Minister

James Hacker: You said yourself how important these select committees are. I cannot be seen to mislead them.
Sir Humphrey Appleby: You will not be SEEN to mislead them.

How the Crofting Commission played out their sudden and surprise U-turn on the question of ‘The Common Clearances‘ 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 by the Crofting Commission in Holyrood on Wednesday night. However, like Sir Humphrey, the Crofting Commission is not immune to making miscalculations or outright blunders.

It was the first meeting, since the latest Scottish Government was formed, of the Cross Party Group on Crofting within the Scottish Parliament.

It was the first time, since allegations of abuse of power within the Crofting Commission over ‘The Common Clearances‘ were made, that the Crofting Commission would meet eye to eye with politicians and other crofting stakeholders in a public forum.

In the preceding week or two damning revelations had been made of historical revisionism and flouting the will of Parliament on the part of the Crofting Commission. This was on top of votes of no confidence against them, the Convener of the Crofting Commission attending meetings despite a clear conflict of interest,  a Crofting Commissioner resigning and calls for the Scottish Government to investigate the whole matter.

It looked like the Commission would be in for a very rough time at the Cross Party Group meeting.

They knew that and had to do something quick and decisive to limit the damage being caused to them and that could be wrought on them at that meeting.

Nothing like a massive U-turn, with an attempt to dress it up in other ways, to achieve that.

So Crofting Commissioner, Murdo Maclennan (the Convener, Colin Kennedy, was conspicuous by his absence), announced to the Cross Party Group that he “thought we have a conclusion” on Mangersta and there was “no grazing constable in place at the moment“.

On being pressed for clarification on certain elements of this the Chief Executive of the Crofting Commission, Catriona Maclean, elaborated that:-

there is no constable at present, the case is over and the people of Mangersta will be advised.

So case closed and no further discussion on that then. Please move along ladies and gentlemen.

When the removal of the Upper Coll common grazings committee from office was mentioned that, of course, could not be discussed as it was subject to on going proceedings in the Scottish Land Court.

The third committee that the Crofting Commission have evicted from office was not mentioned at all, other than briefly by me when Commissioner Murdo Maclennan insisted that I declare my interests. I think that perhaps backfired on him as the Commission would rather pretend that episode never happened as there has, to date, been no publicity surrounding it.

So one case conveniently closed, one sub judice and one we can simply forget about. Thus nothing really to talk about.

The extra gloss on this being that new guidelines were being produced by the Commission and all would be well when these were issued and followed. My criticism of this approach is already well known. You have to get the law right first before you write guidelines about how to follow that law. The Commission’s viewpoint is that their interpretation of the law will follow “in due course”. Perhaps this is because their latest massive U-turn means they actually now accept the law to be as I have been setting it out to be on this blog for some time!

The U-turn is great news for the shareholders in the Mangersta Common Grazings and the former members of their grazings committee. It is a vindication of the position correctly maintained by them throughout.

It leaves the Crofting Commission with egg on their face however they try to dress it up. The Emperor’s New Clothes remains a theme, in so far as the Commission is concerned, post the Cross Party Group meeting.

In my next blog post I will reveal how the Crofting Commission not only ignore the law but lawyers who write to them concerning it. In a subsequent blog post I will explore the significance of the latest U-turn by the Crofting Commission and the possible repercussions thereof.

Brian Inkster

Image Credit: Yes Minister © BBC

Update – 2 July 2016: Ignore the law and the lawyers