Tag Archives: Cross-Party Group on Crofting

Crofting Commission dodge answering questions

Dodging Bullets at the Crofting Commission

The Crofting Commission can stop your questions by simply not answering them!

The Cross-Party Group on Crofting has been waiting patiently on answers to 18 questions that they posed to the Crofting Commission. These were originally sent to the Crofting Commission in July 2016 then modified and sent in October 2016.

  1. Where in law it is stated that the Crofting Commission cannot revisit its own decisions?
  2. Why did the Crofting Commission chose to remove three grazings committees instead of work with them to improve things, if things needed improvement?
  3. Why were grazings shareholders not given the chance to elect a new committee when the Crofting Commission removed their committee, instead of moving straight to the appointment of a grazings constable?
  4. Does a removed committee have a right of appeal to the Crofting Commission?
  5. Where in law it is stated that the Crofting Commission has the power to appoint a Grazings Constable when they remove members of a grazing committee from office?
  6. Where in law it is stated that the Crofting Commission can extend the appointment of a Grazings Constable?
  7. Why is the Crofting Commission ignoring its own guidelines on the investigation of financial irregularities?
  8. Does the Crofting Commission maintain that all funds in a grazings bank account have to be disbursed immediately (including SRDP grants, as Mr MacLennan stated is the bulk of funds in the CPGoC)?
  9. If there are 3 levels of accounting as outlined by Mr MacLennan (examination by external qualified person such as local retired bank manager, prepared by qualified accountant on information supplied, full forensic audit), what are the thresholds at which each is required? Do they apply to balance or income? Who decides what is appropriate (given this was the reason Mr MacLennan gave for the Upper Coll grazings committee being removed by the Crofting Commission?)
  10. Why did the convener of the Crofting Commission involve himself in every one of these three cases and committee removals? Is this the job of a convener?
  11. Did the convener of the Crofting Commission declare his interest in the cases when the commissioners made their decision to move to removal?
  12. Does the Crofting Commission consider value for public money when pursuing cases?
  13. Mr MacLennan emphasised that the Crofting Commission were obliged to act as a shareholder had made a complaint. This does not square with the Commission’s dealings relating to other regulatory matters. We are aware of complaints made by shareholders with regard to absenteeism and neglect of crofts that go many years without commission action so it would be good to know why you are so diligent in pursuing grazings committees with such rigour. Has there been a policy change to target this type of regulatory issue (as there was previously with absentees)?
  14. Following the letter written to the Convener by Fergus Ewing concerning disbursement of common grazings funds to shareholders and SRDP funding there were mixed messages issued to the press by Commissioners. It appeared that the contents of the letter was supported but the Commission (or perhaps certain Commissioners) still thought they had done nothing wrong. Those two statements do not sit well next to one another. Can the Commission clarify their actual stance on the letter in clear terms for the benefit of this Group.
  15. Can the Commission explain why they have been questioning SRDP funding for and VAT Registration by Common Grazings?
  16. The Commission appear to be supporting their ‘constable’ Colin Souter and his behaviour at Upper Coll. Do they actually support a ‘constable’ who is having meetings with 4 shareholders and making decisions affecting 42 shareholders when 26 out of those 42 have signed a petition calling for his removal?
  17. Will the Commission advise the Group what remit was given to Constable Souter and why he appeared to be acting in an investigatory role rather than as an actual clerk.
  18. The latest revelation appears to be matters being decided by Commissioners via ‘brown envelopes’ rather than at board meetings. Can the Commission enlighten us further on this?

There were, in addition, two questions specifically posed to the Crofting Commission via the Cross-Party Group on Crofting by Iain MacKinnon on 1 November 2016:-

I would like to draw your attention to a letter by Colin Kennedy published this month in the Scottish Farmer. In the letter he draws the Scottish Crofting Federation’s attention to ‘the commission mole’ at the time of the ‘Susan Walker debacle’. Presumably he is referring here to the anonymous commissioner quoted by the West Highland Free Press when information was leaked to the paper and other media outlets about a letter signed by five commissioners – including Mr Kennedy – calling a meeting to discuss a potential vote of no confidence in Ms Walker. Mr Kennedy told the Scottish Farmer this month:

‘I can assure the SCF that prior to my becoming convener, the mole was identified and the information was provided to the appropriate persons to take the matter forward.’

At the Cross Party Group on Crofting’s meeting on 15th September last year, Jean Urquhart asked Mr Kennedy about the leak to the press.

He was unable to give her an answer and did not identify any ‘mole’ on that occasion. However, the then chief executive of the organisation was able to respond and this is noted in the minutes as follows:

‘What is being done about the fact that there was a leak to the press from a commissioner, which is a breach of the code of conduct?

While a newspaper claimed their was leak by a Commissioner, as Accountable Officer the CEO has carried out an internal investigation which found no evidence that any Commissioner had breached the code of conduct by leaking information on the matter to the press.’

I would like to hear from the Commission’s representative at the meeting how they reconcile these two statements and to ask again, in light of Mr Kennedy’s claim: what is being done about the leak to the press; and who was the ‘mole’ as described by Mr Kennedy in his letter to The Scottish Farmer.

Six months after the first questions were put to the Crofting Commission their Interim Chief Executive, Bill Barron, addressed them at the Cross-Party Group meeting at Holyrood on 25 January 2017 by stating that he didn’t intend to answer them but would like, instead, “to focus on the future“. He wanted to “draw a line under the rows of last year“. He acknowledged that “things had been done wrong” but there was “no merit in unpicking all of that“.

Mr Barron may have missed the fact that some of the rows of last year continue into this one.

He stated:-

Some of the specific issues raised in your questions have already been clarified by the Commission.  For example, we have confirmed that we agree with the Scottish Government’s position that there is nothing in the CAP rules that prevents the Scottish Government approving an SRDP application made by a grazings committee, and that we agree with the Scottish Government’s position regarding immediate disbursement of funds.

These, however, are two points that the Convener of the Crofting Commission, Colin Kennedy, still appears to be taking issue with and possibly still taking a contrary position on compared to his fellow commissioners and the official line of the Crofting Commission. This is all contrary to the doctrine of collective corporate responsibility. Indeed it is interesting to note that following the departure from the Crofting Commission of their former Convener, Susan Walker, Colin Kennedy, then Vice Convener, stated [PDF: Board Minutes – 13 May 2015]:-

I am sure that I speak on behalf of everyone when I say that today we are all equal with collective responsibility. In fact we are all Conveners, working together for the betterment of the Crofting Commission.

However, his publicly opposing views to that of the board clearly conflict with that statement.

The Guide for Board Members of Public Bodies in Scotland [PDF] states:-

While Board members must be ready to offer constructive challenge, they must also share collective responsibility for decisions taken by the Board as a whole. If they fundamentally disagree with the decision taken by the Board, they have the option of recording their disagreement in the minutes. However, ultimately, they must either accept and support the collective decision of the Board – or resign.

Colin Kennedy was not in attendance at the Cross-Party Group meeting on Wednesday night. He has only attended one meeting out of the five that have taken place since the start of the current Parliamentary term.

At the meeting in Holyrood on Wednesday night the Chair of the Scottish Crofting Federation, Russell Smith, asked Bill Barron if Colin Kennedy was still Convener and was still chairing Board meetings. Bill Barron answered both questions in the affirmative. Russell Smith then asked if the Board was working as it should to which Bill Barron replied “it is not easy but it is getting its work done“. How well, under the circumstances, it is getting its work done is, however, very debatable.

On the points raised by Ian MacKinnon the response from Bill Barron was:-

The same [i.e. not answering the questions] holds for Iain MacKinnon’s questions about a leak to the press, which was investigated by the previous CEO in 2015. Colin Kennedy’s more recent public comments about this appear to have been made in a personal capacity, but I can confirm that the Commission has no plans to re-examine this matter. Instead, my priority is to look forward to the upcoming elections and to prepare to give the best possible support to the new Board.

So it is all about looking forward and not looking back. However, you sometimes have to look back to learn from your mistakes before you can move forward and avoid making the same mistakes again.

Perhaps the Scottish Government’s review into the governance of the Crofting Commission will reflect more on the mistakes of the past and what needs to be done to prevent a recurrence of them. The Cross-Party Group on Crofting was advised on Wednesday by Gordon Jackson, Head of Rural Business Development and Land Tenure at the Scottish Government, that this review will be published “shortly“.

Brian Inkster

Image Credit: The Matrix Reloaded © Village Roadshow Pictures, Silver Pictures and NPV Entertainment

Crofting chaos escalates

Despite 101 blog posts highlighting the crisis within the Crofting Commission, a review being commissioned by the Scottish Government into their governance and countless calls from all quarters for the current Convener, Colin Kennedy, to step down the chaos within the Crofting Commission just seems to get worse by the day.

Before Christmas it truly escalated with the Convener calling a secret meeting of commissioners in an attempt to purportedly overturn the decisions taken at Brora, including the call for him to resign. He failed. Things did not go well for him either, a few days later, at the scheduled meeting of the board on 14 December. That board meeting was covered by BBC Alba and we reproduce here their full report:-

Iain Maclean (presenter) highlighted the matter at the outset of the evening news headlines:-

This evening, more chaos and controversy surrounding the Crofting Commission as two officials refuse to attend a board meeting, they say that they cannot work with the current board.  Three co conveners, have asked the Scottish Parliament for an intervention in relation to Colin Kennedy.

BBC Alba - Commission Chaos - 141216 - Tavish Scott MSPTavish Scott MSP was interviewed stating that:-

The Crofting Commission has failed now to work for crofters, it’s now a mess, it’s now working in an extraordinary manner, involving people leaving the room and not working with the current Chairman.

Then when it came to the full report the presenter, Iain Maclean, stated:-

We start tonight with more absolute crofter chaos, after two officials have refused to attend meetings.  They maintain that they cannot possibly work with the current board.  This follows from the events that unfolded at the last meeting in Brora.  Let us look at today’s meeting in Inverness with Donald Lamont.

BBC Alba - Commission Chaos - 141216 - Colin Kennedy, Convener

Colin Kennedy, Convener of the Crofting Commission, was reportedly looking “very uncomfortable” at the board meeting in Inverness on 14 December 2016

Donald Lamont, reporting from Inverness, told us:-

Everything seemed very wrong at today’s meeting in Inverness, first of all it was obvious that not everyone was present.  Two officials refused to attend and were not present. This suggests that things are coming to a head for Colin Kennedy, who looked very uncomfortable today.

BBC Alba - Commission Chaos - 141216 - Bill Barron, Interim Chief ExecutiveBill Barron. Interim Chief Executive of the Crofting Commission, was then interviewed. He said:-

It’s very regrettable to me that two of my staff didn’t feel comfortable coming to the meeting. That’s because, one commissioner has made various allegations, criticisms, about what they have done in recent months.  They find that unacceptable and I’m supporting their position on that.

Donald Lamont continued:-

One can understand with this news, some of the commissioners are very angry, David Campbell being one of them.

BBC Alba - Commission Chaos - 141216 - Board Meeting - David Campbell, Commissioner, speaksFootage was then shown of the meeting itself with David Campbell saying to the board:-

This is extremely disturbing, extremely disturbing, the most disturbing thing I’ve come across in my time on this board… that two members of staff, by the sounds of what you said there, feel unable to be present here and by your description are unable to work with this board directly in a public forum… that gives me grave, grave concerns.

Donald Lamont went on to say:-

Few of the commissioners still support Kennedy, but things are far from right amongst the board.  With the Commission’s own situation, it is obvious that the crofters themselves are no longer the priority.

Then back to Bill Barron who elaborated:-

On Friday we accepted that it was one continuous meeting in two valid parts. What happened today was that we approved the vast majority of the  minutes of that meeting. There are two issues still to be ironed out on that.  We also noted that there are some doubts about the way the piece of business that led to the motion against the convener, the way that was called, but the commission decided to take no particular further action on that.

Iain Maclean (presenter) then came back on air to say:-

We now go to Holyrood to our political correspondent Niall O’Gallagher.

BBC Alba - Commission Chaos - 141216 - Niall O'GallagherNiall O’Gallagher, reporting from Holyrood, advised:-

They have now moved their business from the Highlands to Edinburgh in relation to the Kennedy situation.  We had three political figures from Labour, SNP and the Lib Dems come together to say that, the minister concerned, Fergus Ewing, needs to remove Colin Kennedy from the Commission to move forward. Talking to us is Lib Dem, Tavish Scott.

Tavish Scott MSP said:-

The Crofters Commission cannot carry on with the chairman it’s currently got, and the dysfunctional nature of the organisation where the senior staff meant to work together for the crofters are instead fighting like ferrets in a sack.  This has got to change.  The minister would have my full support if he now steps in, makes the changes that need to happen, including getting rid of the current chairman, and getting the organisation back to doing what it’s meant to do and that is serving the crofters.

Niall O’Gallagher then continued:-

Other than questions and concerns about the people involved in the Commission at the moment, there is also questions about the work that they actually do.  The opinion many have of the Commission is not a good one, they are not seen to be working to help the crofters who should be their prime concern.  Talking to us from the SNP is Kate Forbes.

BBC Alba - Commission Chaos - 141216 - Kate Forbes MSPKate Forbes MSP said:-

We need to do something.  Next year will be a very important year, they will have elections.  We need to change the situation now!

Presenter, Iain Maclean, returned:-

Thank you Kate, now back to Niall at Holyrood.  What is happening at parliament this evening?

Niall O’Gallagher then rounded matters off from Holyrood:-

We didn’t get a chance to speak to Fergus Ewing tonight.  The parliament’s view is that they don’t want anyone with bad intentions within the Commission.  We managed to have a few words with Alasdair Allan. Talking on behalf of the government he said that there would be an opportunity to pick new commissioners but that it was not for Holyrood to make any quick impulse decisions.

BBC Alba - Commission Chaos - 141216 - Cross Party MeetingIt was also reported online on BBC Naidheachdan that Professor Donald Meek from Tiree, who attended the meeting at Holyrood, had said that all the uncertainty was doing great harm. He is quoted as saying:-

What I realised this evening, was that I was very familiar with the old Commission.

Whatever was happening with the old Commission, there was never any uncertainty about the Commission’s own situation.

The Commission was somewhat subtle, stable, and although you were now and again not in agreement with the Commission, the Commission was still a guiding stone for crofting affairs.

That is not true now at all, ever since the uncertainty arose  in relation to those leading, those who shouldn’t even be there, so on and so forth.

View from the Crofting Law Blog

It is clear (if it was not already) that all is not well at Great Glen House. Now senior employees of the Crofting Commission are refusing to attend board meetings purportedly due to issues involving the Convener.

Despite attempts by the Convener to reverse or nullify the decisions taken by the board at Brora he has failed to do so.

Indeed Bill Barron, Interim Chief Executive to the Crofting Commission, clarified to the Cross Party Group on Crofting at Holyrood, that six commissioners had asked the Convener to stand down at the Brora meeting and have not recanted on that. The Convener has chosen not to.

Thus the call from all six commissioners, who met after the Convener walked out of the board meeting at Brora, for the Convener to resign still stands.

We now also have it reiterated by MSPs from the SNP, Scottish Labour and Scottish Liberal Democrats that they believe that the Convener should go.

Yet the Convener remains defiantly in place, apparently pending hell freezing over.

Investigations concerning a complaint made by the Convener against Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, appear to still be ongoing. The Scottish Ministers have, it would seem, been paralysed from taking any action concerning the position of convener pending the outcome of those investigations, despite the fact that it remains within their power to do so.

Perhaps the New Year will see this mess unravel and be properly sorted in the way I suggested it should have been back in April 2016. Eight months is hardy a period that would allow Scottish Ministers to be accused of making “quick impulse decisions” as Alasdair Allan MSP suggested might be the case to BBC Alba!

Meantime crofters suffer from a Crofting Commission that cannot, it would appear, be properly regulated itself let alone effectively regulate crofting.

Brian Inkster

Image Credits: © BBC Alba

Gaelic credit: Thanks to Vicki Folan of Inksters for translating the BBC Alba coverage from Gaelic to English

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

Crofting Convener in Hiding

Crofting Convener in Hiding

Hide and seek was a favourite pastime at Great Glen House

The Cross Party Group on Crofting met on Wednesday night at Holyrood.

This followed the private meeting between Fergus Ewing MSP, Cabinet Secretary responsible for crofting, and all of the Crofting Commissioners. At that private meeting Mr Ewing told Commissioners that he expected them to rescind their decisions and issue an apology to the three grazings committees removed from office since December 2015.

One would have expected the Convener of the Crofting Commission, Colin Kennedy, to have represented the Crofting Commission at the Cross Party Group meeting. However, he was nowhere to be seen at that meeting. Where was he? He was in Edinburgh (presumably in the very same building) earlier that very same day for the meeting with Mr Ewing. One assumes he would not have been able to get back to the Isle of Coll after that meeting to tend to his croft and would have been staying overnight in Edinburgh in any event?

As Convener of the Crofting Commission, Colin Kennedy, has the particular responsibility of representing the views of the Board to the general public. This will include those attending the Cross Party Group on Crofting.

Colin Kennedy did not attend the last Cross Party Group meeting in June on the day when the Crofting Commission took a massive U-turn on their stance at Mangersta Common Grazings.

Colin Kennedy did not attend the last Scottish Government Crofting Stakeholder Forum meeting when the Chief Executive, Catriona Maclean, announced her resignation.

Colin Kennedy did not attend this week’s Cross Party Group meeting when one would have thought he should have been there to advise that meeting of the outcome of the earlier meeting that day between Commissioners and Mr Ewing.

Instead Commissioner Murdo Maclennan attended this week’s Cross Party Group meeting, disclosed nothing about the earlier meeting with Mr Ewing and refused to answer questions verbally saying he would only do so in writing. However, after the meeting he appears to have released information to the BBC that again one would have thought could and perhaps should have been revealed first to the Cross Party Group.

Why is the Convener in hiding?

Why is the Convener not attending meetings on the Commission’s behalf and representing the views of the Board?

Is the Convener “unsuitable to continue” in that role given this clear dereliction of duty on top of and in addition to the abuse of power he has been accused of?

Presumably the Convener will have to come out of hiding for the Board meeting of the Crofting Commission at Brora on 28 September. Presumably after that meeting it will have to be he who gives the public apology to the crofters affected by the decisions to remove grazings committees from office. Thereafter he can perhaps go into hiding again especially if he takes the advice of the Chair of the Scottish Crofting Federation, Fiona Mandeville, who said:-

As the person who seems to be behind the on-going attacks on crofting committees, it would be appropriate for the Convener of the Crofting Commission, Colin Kennedy to give the apology in his resignation statement.

Brian Inkster

Who are we supposed to believe?

Whose riddles are the right riddles?

Whose riddles are the right riddles?

A guest post by the Crabbit Crofter.

Over the last five months “the public” has become more and more confused by the Crofting Commission’s changing statements, retractions, and now silence on the subject of ‘The Common Clearances‘. So whose fault is it the message is so confused?

The Crofting Commission seems to have the right intention. It has a button you can click on its website called Openness. It boldly claims “We aim to provide high quality services and information to all members of the public.” So how is it getting on with its aim?

First. Who should be making sure we were given clear messages about such an important topic? And lo and behold Crofting Commission has a handy Framework Document [PDF]. It became operational just about when everything started to go wrong with the common grazings furore so a shame everyone seems to have forgotten what it says. It covers the period April 2016 to March 2018. The introduction says:-

This framework document has been drawn up by the Scottish Government (SG) in consultation with the Crofting Commission. It sets out the broad framework within which the Crofting Commission will operate and defines key roles and responsibilities which underpin the relationship between the Crofting Commission and the SG.

How handy. It tells us lots of useful stuff. It sets out who is responsible for communicating with the public. Guess who it is? The Convener of the Crofting Commission. The Framework Document states one of the Convener’s “particular responsibilities” is:-

Representing the views of the Board to the general public

So how has Convener Kennedy been getting on with this “particular responsibility”? Since the 2016-2018 Framework Document came into force, there have been:-

  • various interviews on Radio nan Gaidheal and An La, BBC Alba (TV) with Commissioner MacLennan, including one where he was challenged by the interviewer Donald Lamont on why he hasn’t done more to help Lewis grazing committees. Mr MacLennan explained he couldn’t talk about Mangersta or Upper Coll because he had conflicts of interest. In the Upper Coll case because he had some sort of link with the solicitor representing Upper Coll in the Land Court case.

It could be argued Mr MacLennan as a Gaelic speaker was used for these interviews rather than Convener Kennedy. But, guess what?  There have also been:-

  • An interview in English with Commissioner Swan after the meeting in Mangersta on 17th May on Aithris an Fheasgair, Radio nan Gaidheal.
  • An interview in English with Chief Executive Catriona MacLean on Radio nan Gaidheal, and An La, BBC Alba, after the meeting attended also by Convener Kennedy (and Commissioner MacLennan) in Stornoway with the CNES Joint Consultative Committee, on 13th June.
  • Statements at the Scottish Parliament Cross Party Group on Crofting in June by Commissioner MacLennan and Chief Executive Catriona MacLean (in English). Convener Kennedy was notably absent when the big topic of the Commission’s self-inflicted common grazings crisis was on the agenda and obviously politicians and the general public would be demanding a clear statement from the Commission. Strangely Commissioner MacLennan seemed to have forgotten about his reluctance to talk about the issue because of a conflict of interest in the two Lewis cases.
  • Interviews with Commissioner MacLennan following the board meeting on 17th August, carried on Aithris an Fheasgair and An La in Gaelic and in a BBC Highland report in English. These interviews were almost unintelligible. They left the “general public” in a worse state of confusion than if there had been no interviews at all by anyone.

There have also been numbers of statements –

  • The famous Convener Kennedy statement on how to manage common grazings finances, now removed from the Commission’s website but available on the Crofting Law Blog.
  • statement from Vice Convener MacDonald on 8th June contradicting the previous statement from the Convener but with no explanation if it was his own views or those of the whole board who had agreed to disagree with their Convener on the issue.
  • The famous Open Letter from Chief Executive Catriona MacLean still available on the Commission website. It contradicts the Convener’s previous statement, but claims no such statement was ever made. So which of the Convener’s or the Chief Executive’s statements was the views of the board? We have to assume the Convener’s since it is his “particular responsibility” to convey the views of the board to the general public.
  • report from Jackie O’Brien on Good Morning Scotland (Radio Scotland) who hadn’t managed to get an interview but had got a statement from Convener Kennedy prior to the board meeting on 17th August. The Convener’s statement was extraordinary because it disagreed with his Minister. And it stated the Convener’s position on the matter before he allowed the board to have a democratic discussion. But then the Convener didn’t make any attempt to convey the views of the board to the general public after the board meeting. Why not? Instead we got something almost completely unintelligible from Commissioner MacLennan no-one has been able to decipher yet. So what were the views of the board? Since it is his “particular responsibility” to convey the views of the board to the general public we must assume it was the Convener’s statement before the board meeting.

All of this leaves the general public totally confused. Which of these contradictory interviews and statements from five different people (Vice Convener, two Commissioners, Chief Executive, Convener) over the past 5 months is the opinion of the board?  The Framework Document tells us we should only listen to the Convener because he has “particular responsibility” to convey the views of the board to the general public. But he has consistently refused to give interviews. And his two public statements baldly state grazing committees have to pay out all money immediately to shareholders and can keep none.  So there you have it. It looks like he is in conflict with his Minister. And with his board. And his Chief Executive. Not to mention crofters.  No wonder we are all so confused and angry.

Crabbit Crofter

Guest Blogger Bio: A crabbit crofter who wishes the weather was better & Scotland produced more of its own food. He believes in a just & honest world, full of integrity & decency.

Image Credit: The Riddler – Batman Forever © Tim Burton Productions and PolyGram Pictures

Ignore the law and the lawyers

Ignore the Law and the Lawyers

Hear no crofting law, See no crofting law and Speak no crofting law

I have been blogging for some time about the Crofting Commission ignoring the law.

They have done so in relation to, amongst other things:-

They have, however, this past week made a massive U-turn which could just mean they now actually accept that they did in fact completely ignore the law.

It also, unfortunately, transpired at the meeting of the Cross Party Group on Crofting on Wednesday that they are now simply ignoring lawyers who take a different viewpoint from them and/or represent crofters challenging their stance.

When Commissioner Murdo Maclennan announced that he “thought we have a conclusion” on Mangersta and there was “no grazing constable in place at the moment“, I asked how this could be when I thought that the Commission had purported to extend the appointment of the Grazing Constable (illegally appointed in my opinion and in the opinion of others) for a further six months from and after 6 June 2016.

Chief Executive of the Crofting Commission, Catriona Maclean, interjected that:-

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

I questioned why they had not advised the solicitor acting of this (i.e. me) and she responded:-

We have been in correspondence with the people of Mangersta and that is who we will respond to.

I pointed out that they had been in correspondence with a solicitor representing former members of the (unlawfully in my opinion) removed grazings committee and they should be responding to that solicitor.

There then appeared to be a reluctant acceptance that I might hear from them!

Astounding.

The Crofting Commission appear to think they can simply bury their ignorance of the law by taking a U-turn and not responding to questions raised by a solicitor concerning that ignorance of the law. The fact that they have acted contrary to the law remains and they do require to answer outstanding points in correspondence that sits unanswered on the desk of their Chief Executive.

They still need to answer, amongst other things:-

  • Where in law it is stated that the Crofting Commission cannot revisit its own decisions.
  • Where in law it is stated that the Crofting Commission has the power to appoint a Grazings Constable when they remove members of a grazing committee from office.
  • Where in law it is stated that the Crofting Commission can extend the appointment of a Grazings Constable.
  • Why the Crofting Commission is ignoring its own guidelines on the investigation of financial irregularities.

Perhaps they do now accept, given that U-turn, that nowhere in law is any of this stated and therefore they are unable to answer my questions. They should, if that is the case, at least have the dignity to say so.

I will let you know if and when the Crofting Commission deign to respond to me.

Brian Inkster

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

Crofting Law and the new Scottish Government

Crofting Law and the New Scottish Government

How does the election results affect the future of crofting law?

Today’s Scottish Parliamentary election results saw the SNP form a minority administration with 63 seats. The Scottish Conservatives came second and form the opposition with 31 seats. Scottish Labour were in third place with 24 seats followed by the Scottish Green Party on six and Scottish Liberal Democrats on five.

What does this mean for the future of crofting law?

The SNP Manifesto states:-

Modernising Crofting

Crofting plays a unique role in Scotland’s Highlands and Islands heritage, bringing distinct social, economic and environmental benefits to communities. We will continue to provide public support for the continuation of crofting and to secure thriving crofting communities.

We will also introduce a new entrant’s scheme for crofting, explore the creation of new woodland crofts and publish a National Development Plan for Crofting.

Croft housing grants have been increased and we will continue to target support at those most in need. We will also re-introduce the Croft House Loan Scheme.

Crofters have long been concerned at overly complicated and outdated legislation so we will modernise crofting law and make it more transparent, understandable and workable in practice. We will also ensure new community landowners are not left out of pocket due to registering as the new landlord of crofts within their community owned estate.

So there is a clear commitment to “modernise crofting law and make it more transparent, understandable and workable in practice”. This must mean a new Crofting Bill being introduced during the next parliamentary term.

At the Crofting Law Group Conference in March there was clear cross-party agreement on the need for crofting law reform. So I can’t see any opposition to the introduction of a new Crofting Bill.

The last Minister for Environment, Climate Change and Land Reform (with responsibility for crofting) was Dr Aileen McLeod MSP. She failed to win the Galloway and West Dumfries constituency seat and missed out on getting a South Scotland Regional seat in the list vote. So inevitably there will be a new Minister for Environment, Climate Change and Land Reform.

Perhaps with a new Crofting Bill in the offing and the dreadful problems within the Crofting Commission that the new Minister has to tackle it is time for Nicola Sturgeon to appoint a dedicated Crofting Minister? Preferably one with a seat in the crofting counties.

Who will be the political voices we will now hear speaking up for crofting law reform and investigation of the alleged abuse of power within the Crofting Commission?

Gone from Holyrood are the strong voices on crofting that came from Jamie Mcgrigor (Conservative), Rob Gibson (SNP), Jean Urquhart (Independent) and Dave Thompson (SNP). We will also miss Alex Fergusson (Conservative) who thought that crofting law is a complete mystery but amused us with his analogy of ‘The Crofting Law Hydra‘.

Returned to Holyrood are Tavish Scott (Liberal Democrat) and Rhoda Grant (Labour). Both of whom participated in Crofting Question Time at the Crofting Law Group Conference in March expressing strong views on the “mess” that is crofting law. I can’t see them holding back on the latest “mess” of ‘The Common Clearances‘.

New to Holyrood are Donald Cameron (Conservative) and Andy Wightman (Green Party). Again they both participated in Crofting Question Time at the Crofting Law Group Conference. Donald Cameron said there that it was “time for crofting law to be for the crofters and not the lawyers”. I think that ‘The Common Clearances’ is a clear testament to that sentiment.

Helping the SNP with the Crofting Bill, and routing out the alleged abuse of power at the Crofting Commission, must surely be all SNP MSPs within the crofting counties. Alasdair Allan (Western Isles) has already spoken out about ‘The Common Clearances’ with two ‘sacked’ grazings committees, that we know of, being within his constituency. Other SNP MSPs in the crofting counties include long time politician Michael Russell (Argyll and Bute) and newbie Kate Forbes (Skye, Lochaber and Badenoch), who I had the pleasure of discussing The Crofting Law Sump with at The Future of Crofting Conference in December. Maree Todd took the SNPs only Regional Seat in the Highlands & Islands so I would think she will take an active interest in crofting law which will affect many of her constituents.

The first opportunity for the new MSPs to flex their muscles on crofting matters might be the Cross-Party Group on Crofting at Holyrood. Expect a large attendance.

Brian Inkster

Image Credit: © BBC

The Future of Crofting Conference

The Future of Crofting Conference 2015Brian Inkster will be speaking about ‘The Sump‘ at The Future of Crofting Conference in Inverness on 4 December 2015. This conference is a joint venture involving the Scottish Parliament Cross Party Group on Crofting, the Highland Council and the Scottish Crofting Federation.

Conference details are:-

Where: Highland Council Chamber, Inverness.

When: Friday 04 December 2015 09.00 – 16.00 (registration opens 08.30).

Background: In the wake of the near collapse of the Crofting Reform Bill in 2006, pressure from the Scottish Crofting Federation led to Scottish ministers commissioning a Committee of Inquiry on Crofting (CoIoC). This was chaired by Professor Mark Shucksmith. The CoIoC undertook many community meetings throughout 2007 and delivered their final report in 2008.

This was the most comprehensive study of crofting since the Taylor Commission, which reported in 1954.

The Scottish ministers used this report to formulate a further bill, its passage through Parliament culminating in the passing of the Crofting Reform (Scotland) Act 2010. Before the 2010 Act was published a conference called ‘The Future of Crofting’ was held in Stornoway in January 2010, hosted by the Comhairle nan Eilean Siar.

The Scottish Parliament Cross Party Group on Crofting agreed at a meeting in April 2015 that it is time to hold a further ‘Future of Crofting’ conference to look at what progress has been made since the CoIoC. The Highland Council have generously offered to host this with funding assistance from HIE.

Conference agenda: the conference offers expert speakers on the CoIoC, including Professor Shucksmith, and on the state of crofting law, regulation and development. There will also be ‘a view from the fank’ – a reflection by crofting activists. The format will give plenty of time for open discussion to gather views from the floor, which will be collated and presented by the Cross Party Group on Crofting, on behalf of the conference, to the Scottish Government.

You can download the conference programme here: Programme – The Future of Crofting Conference – 4 Dec 2015.

The conference is free and as there are limited places, advance registration is essential.

To register please email Maria Scholten.

Crofting Convenergate?

Crofting Convenergate

Infamy, infamy they’ve all got it in for me!

We recently blogged on the change of Convener within the Crofting Commission. There was reference in that post to what has been called a “witch-hunt” and “a bad smell”. Three letters written by Dr Iain MacKinnon to the West Highland Free Press give more detail on what one might refer to as ‘Crofting Convenergate’. We publish them here in their entirety and as they were written (the West Highland Free Press edited the second of the three letters a little prior to publication).

Letter 1:  3 May 2015

The anonymous Crofting Commissioner quoted in last week’s Free Press claimed discontent with Susan Walker’s convenership of the Commission has “been going on for some time”.

If that is so, then why did the five alleged complainants not wait for the scheduled Commission board meeting on 13th May to raise their no-confidence motion: what sudden calamity made their ‘emergency meeting’ such an imperative? The anonymous commissioner was silent on this, as they were on any details about Susan Walker’s failings.

The Free Press then claimed they had been told: “The commissioners did not want to go on the record at this stage”.

This remarkable statement suggests the complainants have agreed collectively to leak the story anonymously while anticipating going ‘on the record’ in the future.

This would be an astonishing course of action. The conspirators must be aware there are proper procedures available to them for resolving such disputes. Instead they must have decided collectively to throw the organisation that they represent – and crofting regulation generally – into public disrepute.

This matters because section 2.1. of the Commission’s Code of Conduct states commissioners “have a duty to act in the interests of the public body of which they are a member and in accordance with the core functions and duties of that body”.

The code then states: “You have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public’s trust and confidence in the integrity of the public body and its members in conducting public business.”

The code also demands that commissioners must respect their fellows, “treating them with courtesy at all times”. The anonymous briefings clearly breach this part of the code.

If they have been jointly briefing against Susan Walker the five complainants appear to be in breach of the Commission’s Code of Conduct and liable to investigation by the Standards Commission for Scotland which polices ‘The Ethical Standards in Public Life Act’.

Additionally, “promoting the interests of crofting” is a requirement for commissioners under Part 1 of the Crofting Act and, if they are shown to have acted against this, then under Schedule 1 they can be found unsuitable to continue and dismissed.

If, as is alleged, five anonymous commissioners want to declare ‘no-confidence’ in Susan Walker, they are free to do so. However, if they have also unnecessarily called an ‘emergency meeting’ and then systematically leaked that news to the media for maximum publicity, then they have undoubtedly weakened “the public’s trust and confidence in the integrity” of the Crofting Commission and they have brought their own positions within it into disrepute.

If this is the case, the Crofting Minister must consider whether such people are fit for public office. If it turns out that, in fact, the anonymous briefings have been instigated by one or two individuals, without the consent of other complainants, then those complainants who have been used in this way need to think carefully about the ugly, cowardly whispering campaign of which they are now part.

Letter 2: 18 May 2015

I would like to add to the tributes offered to former Crofting Commission convener, Susan Walker. My primary reason for writing is as it was two weeks ago – not as a friend and one-time colleague of the former convener, but as someone concerned about the future well-being of crofting tenure.

The whispering campaign against Susan Walker began in the media at the end of last month. Since then, her work on behalf of crofting throughout the Highlands and Islands has been praised by the Scottish Crofting Federation and the chairs of the Scottish Parliament’s Rural Affairs Committee and Cross-Party Group on Crofting.

It is worth reflecting on the breadth of that support. It includes the crofting representative body, the senior parliamentarians on crofting issues and also the Scottish Government itself. All appear to believe that “the new enlightened way in which the Crofting Commission functions” has been in part the result of Susan Walker’s leadership, and had given grounds for optimism for a tenure system that had previously been described, almost universally, as “failing”.

Her critics, on the other hand, appear to comprise her disaffected former colleagues and one or two newspapers. One of these newspapers is the Free Press – with one columnist dismissing her as a ‘trusty’ in the pocket of Government.

While the Free Press’ editorial two weeks ago gave an admirably clear argument for a fully elected Crofting Commission, it also acknowledged that the newspaper publicised the conspiracy against Susan Walker without knowing what she is said to have done wrong.

So what has Susan Walker been doing right these last three years? The contrast between Taynuilt and North Ballachulish indicates the Commission’s wider change in attitude under her leadership. In 2005, when ten houses were proposed on croft land in Taynuilt, the old ‘failed’ Crofters Commission folded to the developer’s demands with barely a whimper. By contrast, under Susan Walker’s leadership the new Commission has taken its opposition to the current plan for ten houses on a croft in North Ballachulish all the way to the Land Court.

This principled opposition was not the result of new legislative requirements but of a new determination within the Commission itself. The wide-ranging praise Susan Walker has received in recent weeks suggests this step-change has been noted throughout the organisation’s work.

The commissioners responsible for the covert briefings against her have breached standards required for public life and brought the Commission into disrepute. They have lost the trust of government and have surely failed the trust of those who elected them to turn around the mess they inherited. It would be a real service to crofting if the Free Press were to disclose their identity.

The media coverage no doubt greatly reduced the opportunity for a mediated process within the commission to resolve the conflict and allow Susan Walker to continue the good work she had started. The unstinting dedication for the good of crofting that she brought to her role will leave the commission with her.

Letter 3: 23 June 2015

The Minister for Crofting, Aileen McLeod, this week told the Crofting Commission she is “very pleased to support their proposal on the selection of a new convener”.

However, files I obtained from the Commission last week through Freedom of Information legislation reveal that the conduct of Commissioners has been privately criticised by the Minister, with an unnamed official expressing Dr McLeod’s disappointment “at events being played out through the media” following the conspiracy against former Commission convener Susan Walker at the end of April.

A full two months after the conspiracy against Walker began, no credible information has yet been forthcoming from any Commissioner or from Government about the nature of the problems Walker is supposed to have created. The Commission is even refusing to name those Commissioners who organised the proposal of no-confidence against her – removing all but one signature from the copy they sent me of the letter in which some Commissioners put that proposal forward.

Dr McLeod’s disappointment does not stand alone. Crofters, crofting administrators, the Scottish Crofting Federation and a senior Member of the Scottish Parliament have all criticised the behaviour of the Commissioners involved in the move against Walker.

One crofter, summing up his views on social media, concluded that the Commission is in “chaos” and “disarray”, and presently not fit for purpose.

According to the FoI files, even the chief executive of the Crofting Commission, Catriona Maclean, has privately criticised the way Commissioners have handled this affair and she has gone further, with one internal note suggesting the Commission may have underplayed the level of division within their board during discussions with Government. Writing shortly after the convener’s resignation she said that, while the Commission “wanted to reassure the Minister [for Crofting] that they were keen to move forward in a united and positive way”, her own view is that there are “still differences of opinion on the merits of what happened”. In a later commentary she specified disagreement between board members which will require “a focus on healing”.

Such is the sorry state of the crofting regulator. It seems everybody knows it, yet no-one in Government or the Commission is willing to admit it, and, so far as their public statements go, it appears there will be no attempt to investigate what has really gone wrong at the Commission – and to investigate why at least one Commissioner seems to be allowed to break the organisation’s code of conduct with impunity.

Indeed, this despicable soul may even be elected convener and become the new face of crofting regulation – the files show that this was a well-orchestrated manoeuvre, and those in charge had a clear outcome in mind. The files also suggest that, in fact, the campaign against Walker had two main instigators – with at least one of them male.

Allowing the Commission to elect their own convener in such circumstances is not simply a humiliation for the Scottish Government, and for the Crofting Commission as an organisation; it undermines the credibility of crofting regulation as a whole.

Dr Iain MacKinnon

 

Dr Iain MacKinnon is researching the politics of crofting at Coventry University, although the letters on ‘convenergate’ are not part of his academic work.

Main image credit: Carry on Cleo