Tag Archives: Grazings Constables

Has the Convener lost his memory?

Has the Crofting Commission Convener, Colin Kennedy, lost his memory?The Convener of the Crofting Commission, Colin Kennedy, gave an interview to Gordon Brewer on Sunday Politics Scotland by phone from the Isle of Coll. This followed on from my own interview with Gordon Brewer at the BBC studios at Pacific Quay in Glasgow.

What struck me from Mr Kennedy’s responses to Gordon Brewer’s questions was that he appeared to have lost his memory. I will look at some of those responses and explain why:-

Mr Kennedy’s assertion that the Commission have acted wholly within the law at all times and have not received legal advice to the contrary

Gordon Brewer asked:-

Are you going to stay in the post?

Colin Kennedy responded:-

I have no intention of resigning.

Gordon Brewer:-

Why not?

Colin Kennedy:-

As matters stand, I believe the commission have acted wholly within the law at all times and until such times as we have legal advice to the contrary, I will maintain my position.

View from the Crofting Law Blog on Mr Kennedy’s assertion that the Commission have acted wholly within the law at all times and have not received legal advice to the contrary

Has Mr Kennedy forgotten that he had deleted from the Crofting Commission’s website his own guidelines on “immediate” payment of funds when it was shown that the law did not insist upon that.

Has Mr Kennedy forgotten already that Fergus Ewing MSP, Cabinet Secretary responsible for crofting, wrote him a letter which stated that Mr Ewing saw “little merit” in and “wholly disagrees” with his interpretation of the law?

Indeed Mr Ewing referred to the Scottish Government’s position as being “diametrically opposed” to Mr Kennedy’s position. He went onto say that it was “not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law”.

The Board of the Commission (including Mr Kennedy) subsequently accepted and supported the Government’s position in this regard.

Has Mr Kennedy also forgotten the meeting that he and other commissioners had with Mr Ewing at Holyrood?

At that meeting Mr Ewing told Mr Kennedy that the action taken by the Crofting Commission to remove grazings committees from office was wrong, that the decisions should be rescinded and an apology given to the grazings committees in question.

Following Mr Kennedy walking out of the Board Meeting at Brora the remaining commissioners accepted Mr Ewing’s position and the apology was issued.

First Minister, Nicola Sturgeon, referred to it as being “disappointing” that Mr Kennedy was not a party to that apology.

Mr Kennedy being unaware that the commissioners have no confidence in him

Gordon Brewer said:-

Okay, but the commissioners have said they no longer have any confidence in you. Which is not brilliant from your point of view is it?

Colin Kennedy responded:-

I am unaware of the commissioners having said they have no confidence in me.

Gordon Brewer:-

You are not aware of that?

Colin Kennedy:-

Correct.

The Crofting Law Blog’s view on Mr Kennedy being unaware that the commissioners have no confidence in him

Mr Kennedy has been known to go into hiding but he must be on a different planet if he is suggesting that he does not know what was discussed at the Special Meeting in Brora.

It was headline news following that meeting.

Perhaps commissioners didn’t use the exact words “no confidence” at their meeting but calling on Mr Kennedy to resign is a vote of no confidence if ever there was one.

Mr Kennedy’s understanding of the Commission’s Standing Orders

Gordon Brewer asked:-

So as far as you are concerned what? The Crofting Commission is carrying on its work as per normal?

Colin Kennedy replied:-

Well I would suggest at this moment in time that the Crofting Commission conducted a meeting on 28th September which is in non compliance or in accordance with the standing orders of the Crofting Commission and therefore it would appear in my view to be ultra vires.

The Crofting Law Blog’s view on Mr Kennedy’s understanding of the Commission’s Standing Orders

Is Mr Kennedy not familiar with the Commission’s Standing Orders? Surely the Convener should be?

The relevant provisions for present purposes are:-

6.4 The Chief Executive will call a Special Meeting of the Commission when required to do so by the Convener of the Commission. A Special Meeting will also be called by the Chief Executive if in receipt of a written request stating the business of the meeting from another member of the Commission and seconded by a majority of the Commission. The meeting will be held within 21 days of the receipt of the requisition by the Chief Executive.

6.5 Where the Convener requires a Special Meeting, and considers that there is particular urgency, the Chief Executive may call the meeting without giving the
7 days’ notice normally required at 6.1 above, provided every effort is made to contact members to give as much notice as possible prior to the meeting.

These provisions were followed and a Special Meeting duly convened.

The Crofting Commission have stated:-

When the Convener left the board meeting on 28 September in Brora the remaining commissioners requested a Special Meeting. This was held in line with the Crofting Commission’s Standing Orders.

Crofting Commissioners should be commended for doing so and allowing important business that Fergus Ewing MSP had requested them to deal with to so be dealt with.

The Convener was content to abandon the scheduled meeting and not deal at all with the business of the day.

Mr Kennedy’s views on the inexplicable

Gordon Brewer:-

So right. You think that they still have confidence in you but that they have held an ultra vires meeting without you for reasons that are inexplicable?

Colin Kennedy:-

Correct.

The Crofting Law Blog’s take on Mr Kennedy’s views on the inexplicable

What can you say!

Mr Kennedy’s assertion that decisions have been based on legal advice and papers presented to the Board

Gordon Brewer pointed out:-

The substance of this is about you, they allege, that you made various determinations about things like payments in the form of edicts – that they weren’t really consulted.

Colin Kennedy retorted:-

Absolutely incorrect.

At no time under my leadership have any decisions been taken without full endorsement of the board and based on legal advice.

And if I could comment prior to those decisions as per the board minute of 15 September 2015, prior to taking any of those decisions a formal request was made to the Chief Executive to obtain legal advice to support the papers presented to the board on which the board took the decisions.

The Crofting Law Blog’s view on Mr Kennedy’s assertion that decisions have been based on legal advice and papers presented to the Board

I am unsure what the board minute of 15 September 2015 is. I have located one from 16 September 2015 but that does not appear to be of any relevance to the matter at hand.

However, has Mr Kennedy forgotten that the Chief Executive provided clear advice to the Board that they could not appoint a grazings constable where a grazings committee was removed from office?

Despite that advice the Board went onto appoint three grazings constables in three such circumstances which appears to be a contravention of the legal advice received on at least three occasions.

General comment from the Crofting Law Blog on Mr Kennedy’s memory

It would appear that when analysed Mr Kennedy’s responses in each instance are somewhat flawed. The accurate position in each instance can actually be found in the archives on this blog.

Perhaps Mr Kennedy should refresh his memory by reading through the blog before he gives his next press interview.

However, the flaws in his responses highlight a serious divide between him and the Scottish Government and one that you would think the Scottish Ministers cannot tolerate for much longer.

Brian Inkster

Image Credit: Sunday Politics Scotland © BBC Scotland

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

Who calls the shots at the Crofting Commission?

Who calls the shots at the Crofting Commission - I've been expecting you Mr Ewing

“I’ve been expecting you Mr Ewing”

The letter from Fergus Ewing MSP, Cabinet Secretary responsible for crofting, to Colin Kennedy, Convener of the Crofting Commission, made it clear that the Scottish Government did not share the legal interpretation taken by the Crofting Commission on (a) the distribution of funds by Grazings Committees and (b) entitlement to SRDP funding by Grazings Committees.

The letter, interestingly, suggested that the wrong views on these matters were personal ones held by Colin Kennedy and did not necessarily represent the views of the Board of the Crofting Commission. Fergus Ewing, in the letter, stated:-

At our meeting you noted that the views you expressed on these issues were in fact your own and not those of the Crofting Commission Board. This was confirmed by the Crofting Commission’s Chief Executive. As it currently stands, the Scottish Government sees little merit in your views on these issues and wholly disagrees with them. Based on a thorough consideration that we have given this matter, it is clear that our own view on these important issues is diametrically opposed to your own. I am very concerned about this and also about the risk that policy decisions at the Crofting Commission may be taken without a clear mandate from the Crofting Commission’s Board.

If this is the case then although the Crofting Commission Board may not have shared Colin Kennedy’s views on the distribution of funds by Grazings Committees decisions were still made that forced or sought to force Grazings Committees to empty their bank accounts, put them out of office and replaced them with illegally appointed grazings constables. How did this happen?

BBC Reporter Jackie O’Brien said on 17 August 2016 that:-

I did speak to him [Colin Kennedy] last night. He is adamant that he has done nothing wrong. He claims that all of the decisions which have been made have been made during/since he has been Convener have been based on papers supplied by the Commission’s executive.

He has also insisted that not a single matter on this has ever had to go to a vote or at board level and he says that all decisions are taken by means of reasoned debate and consensus.

If he admitted to Fergus Ewing that the views were his own and this was backed up by Catriona Maclean, Chief Executive of the Crofting Commission, then clearly decisions were not actually based on papers supplied by the Commission’s executive.

Also if these views were his own and not shared by the Board how was it that “not a single matter on this has ever had to go to a vote or at board level” and “that all decisions are taken by means of reasoned debate and consensus“?

Or has there never been a vote at board level because the decisions have already been taken by the Convener?!

Colin Kennedy has either been misleading Fergus Ewing MSP or Jackie O’Brien because the statements made by each of them do not correspond.

The inference, however, from the Fergus Ewing letter is that Colin Kennedy has been calling the shots at the Crofting Commission and that policy decisions may have been taken without a clear mandate from the Crofting Commission’s Board. If this is the case it is concerning indeed.

It is also rather ironic that the last Convener, Susan Walker, was ousted from office in a coup by certain Board members because there had been growing concern amongst her fellow commissioners over her style of leadership with it being alleged that she had assumed the role of an executive chair, rather than that of primus inter pares – first among equals. Whether or not Susan Walker was actually behaving in this way, and I have seen no evidence to suggest that she was, it would appear that her replacement, Colin Kennedy, is!

Crofting Commission meet at Great Glen House to discuss Common Grazings Committees on the Isle of Lewis

“Our target, commissioners, is the Isle of Lewis”

At the time it was reported that even the Chief Executive of the Crofting Commission, Catriona Maclean, had privately criticised the way Commissioners handled the affair and she went 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 was that there were “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”.

It would appear that this disagreement between board members still subsists with no sign of any healing. If anything the wound has perhaps deepened.

If the cause of this is a commissioner who dictates his views on the others and those views are “diametrically opposed” to those held by the Scottish Government then there appears to be a conflict that requires to be resolved. It may not be one that can easily be resolved without the intervention sought by many.

Brian Inkster

Images Credit: Thunderball © Eon Productions Limited / Danjaq, LLC – 007.com

Cabinet Secretary “wholly disagrees” with Crofting Commission Convener

Fergus Ewing v Colin Kennedy

A clash has begun between Fergus Ewing MSP and Colin Kennedy

Breaking news on BBC Radio Scotland this morning:-

The BBC has seen a letter written by the Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, that says he “wholly disagrees” with the Crofting Commission’s stance on Common Grazings Committees and the distribution of funds received by them.

BBC Scotland reporter Gary Robertson said:-

The Scottish Government is going head to head with the Convener of the public body responsible for crofting.

In a hard hitting letter seen by BBC Scotland the rural affairs secretary, Fergus Ewing, has told the Convener of the Crofting Commission that he wholly disagrees with his handling of a bitter dispute over shared land in the Western Isles.

BBC Scotland reporter Jackie O’Brien has seen the correspondence and Gary Robertson asked her what the background was.

Jackie O’Brien said:-

Well this has been a protracted and slightly complicated dispute involving the way that the ground crofters share is managed through what they call common grazings committees which are made up of crofters.

Now earlier this year two committees on Lewis, one in Mangersta and the other in Upper Coll, were removed from office by the Crofting Commission.

This happened after questions were asked over financial records and some transactions including the fact that the Upper Coll committee had not distributed or as they call it disbursed income from croft house sites to individual crofters but had put all of the money into a crofting township fund instead.

Now the Commisssion in the meantime appointed what they called constables to manage the land whilst committee accounts were investigated.

One of the committees has been reinstated but there is still annoyance and outrage over the way that this whole affair has been handled. Some say it is belligerent and unlawful and there have been calls for the resignation of the Crofting Commission Convener, Colin Kennedy.

Gary Robertson asked:-

So what exactly does Fergus Ewing say in this letter?

Jackie O’Brien responded:-

Well the rural affairs secretary has been trying to calm the waters and has been quite diplomatic on this to date. But there is no sign of it in this letter which I have seen that he has sent to Colin Kennedy.

He confirms that contrary to Mr Kennedy’s views the Crofters (Scotland) Act does not require the immediate disbursement or pay out of funds by a grazings committee. He says that as it currently stand the Scottish Government sees little merit in the Crofting Chairman’s views which he says he wholly disagrees with.

The letter goes on to say that the Government’s view is diametrically opposed to Mr Kennedy’s and that it is not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law.

Gary Robertson then asked:-

Any response from Colin Kennedy himself?

Jackie O’Brien confirmed:-

I did speak to him last night. He is adamant that he has done nothing wrong. He claims that all of the decisions which have been made have been made during/since he has been Convener have been based on papers supplied by the Commission’s executive.

He has also insisted that not a single matter on this has ever had to go to a vote or at board level and he says that all decisions are taken by means of reasoned debate and consensus.

Gary Robertson then asked Jackie O’Brien:-

What is your sense of the implications of this clash?

Jackie O’Brien responded:-

Well the contents of this letter shows the Government is clearly pointing the finger at Mr Kennedy who is an elected Convener. This is backed up by the fact that Fergus Ewing has said in his letter that he is also very concerned about the risk that policy decisions may be taken without a clear mandate from the Crofting Commission’s board. This implies that not everyone on the board supports the way things have been handled.

Now the Commission’s board does happen to be meeting today, and in his letter Fergus Ewing has asked for its position on the matter to be made clear after this meeting. But he warns that if the Commission continues to subscribe to an entirely different view he will then have to consider what action to take. It is not clear what that action could be but that could put further pressure on him to resign.

View from the Crofting Law Blog

The Scottish Government clearly takes the same view regarding the law on the common grazings debacle taken from the outset on the Crofting Law Blog. It is good that they have done so and made their position clear in such strong terms.

The law on the matter has in my view been fairly clear. It is also, it transpires, clear to the Scottish Government.

Why has it been so unclear to the Crofting Commission?

Despite repeated requests from me to the Crofting Commission asking them to justify their position with reference to statute and case law they have failed to do so. They have simply ignored me. If they had papers from their executive that backed up their position in law surely they would have referenced those to me.

The Chief Executive of the Crofting Commission, Catriona Maclean, suggested in a meeting of the Scottish Government Crofting Stakeholder Forum that the law on the matter would follow “in due course” after the Commission had drawn up new guidelines for grazings committees to follow. Putting the cart before the horse was never a good idea!

The Convener of the Crofting Commission, Colin Kennedy, has said to BBC Scotland that the Commission were following advice given in papers produced by their executive. Oh no they weren’t! The Crofting Commission specifically ignored the advice given by the executive and appointed grazings constables in circumstances where they knew that to do so was illegal. How many other times has this happened?

Furthermore, it should not be forgotten that a paper [PDF] was considered by the Crofting Commission at a February 2016 Policy in Development meeting. In that paper it was, somewhat alarmingly, stated:-

There is a degree of irony in that the Commission may be requiring grazing committees to adhere to regulations while not being clear about the procedure it is itself employing in directing this.

Thus did the Commission actually have papers from the executive to consider when making some of their decisions or were they simply making it up as they went along?

We also, of course, know that the Commission has chopped and changed its position on the matter, tried to hide the fact they have done so and ultimately made a massive U-Turn. Does that demonstrate having done nothing wrong?

In light of the stance now taken by the Scottish Government against the Convener surely his tenure in office must be in question more so than it ever was. Especially if he continues with the adamant view that he has done nothing wrong when all of the evidence that has so far come to light would perhaps suggest otherwise.

The Crofting Commission are having a board meeting today. On the agenda [PDF] is ‘Grazings committees – a practical approach to the management of common grazings’ with a paper on that topic for discussion. A practical approach would no doubt be a welcome approach from most crofters. But let’s hope the Commission have now got a clear understanding and grasp of what the law actually is when applying a practical approach.

A little bit of humbleness, signs of regret and an apology would not go amiss at today’s meeting in light of the letter from Fergus Ewing.

A statement from the Crofting Commission on the outcome of today’s meeting is awaited with bated breath.

Brian Inkster

The cost of the Common Clearances

The Cost of the Common ClearancesIn my last post I revealed how much the grazings constables (appointed illegally in my opinion and in the opinion of others, including knowingly by the Crofting Commission itself) were being paid.

But what has been the overall cost of the alleged abuse of power within the Crofting Commission that has been dubbed ‘The Common Clearances‘?

A Freedom of Information request has disclosed that as at 1 July 2016:-

  • Colin Kennedy, Marina Dennis, William Swann and David Campbell (all Commissioners) together with a member of staff travelled to Stornoway to attend a meeting of the Mangersta shareholders on 16-17 May 2016 at an overall costs including flights, accommodation and subsistence of £2,005.
  • Donna Smith (Crofting Commission member of staff) and Colin Souter (‘Grazings Constable’) went to visit Upper Coll shareholders on 23 June 2016 at a cost of £852.40.
  • The cost of the ‘grazings constables’ as disclosed in my last post was £5,886.85.
  • Thus adding these figures together gives a total cost of £8,744.25.

But that figure is very much the tip of the iceberg.

There was an earlier visit to Lewis by the Crofting Commission to meet shareholders at Upper Coll before the decision was taken to remove the grazings committee from office.

There is the huge number of hours spent by Scottish Government officials, Crofting Commission officials and Crofting Commissioners on the debacle.

There is the legal expenses incurred by the Crofting Commission which reputedly includes the engagement of external counsel.

One of the grazings constables purports to still be in ‘office’ carrying out wholly unnecessary and dubious activities that he will no doubt still be paid for.

All costs that could and should have been avoided and better spent on the legitimate and proper regulation of crofting.

But perhaps more significant is the human cost. Something that cannot be quantified in pounds, shillings and pence. The devastating affect that the Crofting Commission has wrought on crofting communities with accusations of financial impropriety that have ultimately been withdrawn or still remain hanging.

One final observation: Why did the Crofting Commission meet the costs of their Convener, Colin Kennedy, attending the meeting in Mangersta in May 2016? He was not officially supposed to be there, he had a conflict of interest that was acknowledged but he insisted on attending albeit in silence. Was he doing so in a personal capacity rather than an official one? Whatever the position should the Crofting Commission have been meeting his travel and accommodation costs? A question (amongst many others) for Audit Scotland to answer perhaps.

Brian Inkster

How much are Grazings Constables paid?

How much are Grazings Constables paid

Hey… why are you getting £30 per hour and I’m not?!

In my last blog post I looked at who pays the Grazings Constables. This post will disclose how much they get paid.

In comments on the Island News & Advertiser when they published a letter from Colin Souter, the grazing constable for Upper Coll (illegally appointed in my opinion and the opinion of others, including the Crofting Commission itself) it was suggested that the going rate was £30 per hour.

Colin Souter disputed this figure. As that was, apparently, the figure obtained via a Freedom of Information (FOI) request in connection with the remuneration of the Mangersta Grazings Constable then perhaps different grazings constables have been paid different rates. If so then this would reveal yet more inconsistencies on the part of the Crofting Commission!

Another FOI request has disclosed that as at 1 July 2016 Donald Harrison (Mangersta Grazings Constable) had been paid or was due to be paid £4,659 and Colin Souter (Upper Coll Grazing Constable) had been paid or was due to be paid £1,227.85.

The Mangersta Grazings Constable had been carrying out activities (albeit illegally) much longer than the Upper Coll one at that point. Today the Mangersta Grazings Constable is no longer in ‘office’ but the Upper Coll one still purports to be and is no doubt still accepting payment for his activities despite the risks of so doing outlined by Donald Rennie.

Brian Inkster

Who pays the Grazings Constables?

Who pays the Grazings ConstablesWhen the Crofting Commission removed from office members of the Mangersta Common Grazings Committee they undertook to pay the costs of the (illegally appointed, in my opinion and in the opinion of others, including the Crofting Commission itself) Grazings Constable.

When the Crofting Commission removed from office members of the Upper Coll Common Grazings Committee they stated that the shareholders must pay the costs of the (illegally appointed, in my opinion and in the opinion of others, including the Crofting Commission itself) Grazings Constable.

Colin Kennedy, the current Convener of the Crofting Commission, originally stood for election to the board of the Crofting Commission after becoming disillusioned with its management. He said, at the time, that the eight crofters on the Isle of Coll had been treated ‘appallingly’ by the Commission, accusing the organisation of applying the legislation differently in one part of the country to another. If elected, he said he would strive to ensure Scotland’s Crofting Acts would be applied evenly across the board.

The opposite appears to be his actual practice.

However, as Donald Rennie has pointed out, no one should be paying illegally appointed grazings constables.

Brian Inkster

‘Allo ‘allo ‘allo… what’s all this then?

'Allo 'allo 'allo... what's all this then?

‘Allo ‘allo ‘allo… what’s all this then?

Just when you thought events at Great Glen House couldn’t get more farcical than highlighted in my last blog post, I am afraid to say they can.

It turns out that following the Crofting Commission’s decision to appoint a Grazings Constable with the sole function of paying monies considered to be due to a shareholder they appointed into that illegal position one of the committee members that they had just removed from office!

The decision to do so was made by the Convener, Vice-Convener and Chief Executive of the Crofting Commission.

Section 47(8) of the Crofters (Scotland) Act 1993 reads:-

If the Commission are satisfied, after making such inquiry, if any, as they may deem necessary, that any or all of the members of a grazings committee (however appointed under this section) are not properly carrying out the duties imposed on them (or that the grazings clerk is not properly carrying out the duties imposed on him) under this Act, the Commission may remove from office any or all such members or such clerk and may appoint or provide for the appointment of other persons (whether crofters or not) in their or his place.

Having removed from office the entire committee the Crofting Commission could then “appoint or provide for the appointment of other persons (whether crofters or not) in their or his place“.

Other persons” does not mean one of the same persons!

You couldn’t make it up.

Brian Inkster

Image Credit: Monty Python’s Flying Circus © BBC

Keystone Crofting Cops

Croftstone Cops (aka Grazings Constables)

Yes Commissioners… we’ll do whatever you say.

This post will give an insight into the workings of the Crofting Commission when, contrary to their own policies and procedures, they proceeded to appoint grazings constables illegally. It will also highlight how incompetent such appointments are.

All three cases involving the appointment of illegal grazings constables centred around monies that certain shareholders believed should have been paid to them and the Commission’s insistence that such monies should indeed have been paid out.

Minutes of a meeting of the Crofting Commission regarding the proposed removal from office of a grazings committee and clerk and appointment, in their place, of a grazings constable state:-

After discussion, the Commission agreed that the [name of Grazings Committee] would be written to and given 28 days to pay the money due to the shareholder. If after the 28 days have passed, they have failed to pay the money, the Committee and Clerk will be removed and a Constable appointed with the sole function of paying the monies due.

The appointing of the Constable will be decided by the Convener, Vice-Convener and Chief Executive.

Discussion took place about how the Constable would be able to sign cheques on behalf of the Grazing Committee and the Commission agreed that the Order issued to the Grazing Committee advising them that they have been removed from office should be worded clearly enough to maximise the ability of the Constable to access funds. However, the Commission cannot guarantee that the bank will accept the Order.

The Crofting Commission has no power to order payment of monies by grazings committees to shareholders. Indeed their own guidance on such matters states:-

The Commission will not get involved in any matter relating to alleged financial impropriety. This is potentially a civil and/or criminal matter and should be dealt with by the relevant authorities.

Thus they breached their own policies and procedures and acted without any power to do so in ordering the grazings committee to make payments. That is the case whether or not such payments were legitimately due and payable to the shareholder in question. That would have been a matter for that shareholder to pursue, as they considered appropriate, through the civil or criminal justice system.

It is interesting (and perhaps somewhat alarming) that the Crofting Commission decided that this particular grazings constable would be appointed “with the sole function of paying the monies due“.

Whilst the Crofting Commission have no power under and in terms of the Crofters (Scotland) Act 1993 to appoint a grazings constable to do a specific task ordered by them it is alarming that they would think, under any circumstances, that this would be a sensible approach to take.

A grazings committee and grazings clerk will potentially have many tasks to fulfill. By putting a committee out of office and not making appropriate and legal arrangements to allow those tasks to be continued the Crofting Commission is clearly evading its responsibilities as a regulator and acting in a highly irresponsible fashion.

The Convener of the Crofting Commission was at the ready to put in place a grazings constable who would pay out the monies if the first constable appointed to do so “has any difficulty and backs out“.

The appointment of a grazings constable where a grazings commitee has been removed from office is, however, in itself illegal. In such circumstances the Crofting Commission has no power to appoint a grazings constable and instead under section 47(8) of the 1993 Act:-

may appoint or provide for the appointment of other persons (whether crofters or not) in their or his place

The only ability for the Crofting Commission to appoint a grazings constable falls under section 47(3) of the 1993 Act. This is where the crofters who share in a common grazing fail at any time to appoint a grazing committee.

An illegally appointed grazings constable whose actions would be null and void should, of course, be let no where near a cheque book! The Crofting Commission however, knowing that they couldn’t guarantee that a bank would accept the position, decided that they would frame an Order as best they could to persuade a bank to do so!

Hopefully, no bank has been daft enough to allow an illegally appointed grazings constable such access. If they have done so the shareholders should have recourse against the bank as well as, of course, against the Crofting Commission. Also as Donald Rennie has stated:-

if a purported constable takes as much a penny piece from the crofters sharing in the common grazing, with intent permanently to deprive them of that money, he is at serious risk.

This farcical state of affairs would, unfortunately, not be out of place in a Mack Sennett comedy. No wonder that there have been calls for the Scottish Government to investigate and for the Convener to consider his position.

Brian Inkster

Image Credit: By Mack Sennett Studios – Publicity still from 1914 film “In the Clutches of the Gang”, via Wikimedia Commons

Grazings Puppets

Grazings Puppets

Strings are attached when appointed a Grazings Constable by the Crofting Commission

Grazings Constables appointed by the Crofting Commission have asserted their independence from the Crofting Commission. It must be remembered though that these grazings constables have been illegally appointed, and in the full knowledge that this was the case, by the Crofting Commission. However, legal or illegal how independent were the appointments and how independent were the grazings constables?

A freedom of information disclosure has shown that they were perhaps not very independent at all. Certainly, it would appear, not in the eyes of the Chief Grazings Constable and Convener of the Crofting Commission, Colin Kennedy. He stated, prior to one of the grazings constables being appointed, in an e-mail to the Chief Executive of the Crofting Commission, Catriona Maclean:-

I have had a man on from [name of grazings in question] delighted with the moves and if the Constable has any difficulty and backs out, he will willingly take the Constable position on and pay the monies.

Thus the Crofting Commission, or at least their Convener, was intent on putting henchmen in place to do their bidding. Something, once more, that the Crofting Commission had no power in law to do.

The first post on this blog about ‘The Common Clearances‘ made reference to alleged abuse of power within the Crofting Commission. 36 blog posts on the same subject matter later and the evidence is fairly clear that there was some substance to those allegations.

Brian Inkster

Image Credit: Police Officers © Puppetville