Tag Archives: Scottish Ministers

A “big step” or a just step?

Lucy Carmichael from the Scottish Government Crofting Policy Team at the Lewis and Harris Crofters meeting in Stornoway on 3 August 2016My last post considered the overwhelming view of Harris and Lewis crofters that the Convener of the Crofting Commission, Colin Kennedy, must go given his role in the alleged abuse of power within the Crofting Commission dubbed ‘The Common Clearances‘.

But despite many calls over several weeks for him to consider his position there is no sign of him stepping down anytime soon. In the absence of him doing the right thing is it time for the Scottish Ministers to force his hand?

This issue was raised at the meeting in Stornoway on 3rd August. This is how the West Highland Free Press reported the view thereon by Scottish Government crofting policy officer Lucy Carmichael and my response thereto:-

Ms Carmichael explained that the way crofting legislation is framed the only recourse available to crofters is to mount a challenge in the land court.

However, that was fiercely disputed by Mr Inkster who said that as the commission is a statutory body under the control of the Scottish Government it was perfectly legitimate for ministers to intervene if they felt it appropriate.

But Ms Carmichael felt that would be a “big step” – a statement which drew a sharp intake of breath from the audience, particularly those in Upper Coll who felt their removal from office was equally a big step and, indeed, unconstitutional.

Mr Inkster said that the commission had knowingly gone against their own legal advice, changed the guidance to common grazings committees and misinterpreted crofting legislation. “It is hard to see under such circumstances that anyone can have any confidence in any new guidance given out by the commission,” he said.

I would point out, if I recall correctly, that Lucy Carmichael also made reference to the Scottish Public Services Ombudsman and the Commissioner for Ethical Standards in Public Life in Scotland as other possible routes of recourse that crofters could take in addition to or instead of action via the Scottish Land Court.

Brian Inkster at the Lewis and Harris Crofters Meeting in Stornoway on 3 August 2016

In my very first blog post on the alleged abuse of power within the Crofting Commission I said, in connection with the removal from office of the Upper Coll Grazings Committee,:-

I would strongly suggest therefore that the Crofting Commission should, in all the circumstances, review this extraordinary decision. If they fail to do so the Scottish Government should maybe question the behaviour involved and perhaps even consider removing the commissioners responsible as “unsuitable to continue” as members. A power that the Scottish Ministers have at their disposal under the Crofters (Scotland) Act 1993. That may be seen by many as a more reasonable and justified use of power than that employed by the Crofting Commission.

46 blog posts on the common grazings debacle later and I am firmly of the view that it would indeed be a more reasonable and justified use of power than that employed by the Crofting Commission.

The evidence is now clear. The Crofting Commission have been exposed to knowingly acting illegally, clearly acting illogically, operating like a kangaroo court, creating conflicts of interest, brazenly deleting its own history and attempting to deny that history. They have been party to intimidation and bullyingobfuscation and manipulation, controlling grazings constablesflouting the will of Parliament and ignoring the law/lawyers. But ultimately they have made a massive U-turn which is nothing more than a clear admission that they got it wrong. They have cost the public purse a huge amount of money.

It is, in light of all of this, not a “big step” to remove a commissioner. It is an obvious step and a just one.

Brian Inkster

Images Credit © BBC Alba

Is the Crofting Commission a Tribunal?

Is the Crofting Commission a tribunal?

Order, order. Let the trial commence.

The Scottish Government have been looking for views on draft regulations prepared by them to  remove the Crofting Commission from the list of tribunals in the Tribunals (Scotland) Act 2014.

I have urged the Scottish Government to exercise caution in removing the Crofting Commission from the list of tribunals in the Tribunals (Scotland) Act 2014. I consider that such a move may be premature pending the outcome of an investigation into the Crofting Commission’s decisions to remove grazings committees from office.

The Scottish Government’s call for views as part of their consultation reads:-

The Crofting Commission is currently listed as a tribunal under schedule 1 of the Tribunals (Scotland) Act 2014 (the 2014 Act). The tribunals listed in Schedule 1 of the 2014 Act were taken from a report by the Administrative Justice and Tribunals Council (AJTC), which listed tribunals they considered to be devolved Scottish tribunals. The AJTC was a UK body (with a Scottish Committee) established by the Tribunals, Courts and Enforcement Act 2007.

The AJTC’s remit was defined in statute as having to keep the administrative justice system under review and report on the constitution and working of listed tribunals. At that time Ministers were minded not to remove the Crofting Commission’s status as a tribunal so as to keep it within the supervisory remit of the AJTC.

The AJTC was abolished in 2013 and the successor body in Scotland did not undertake the supervisory role carried out by them.  As there is no longer a supervisory body and the Scottish Minister’s view that the Crofting Commission is not a tribunal in the true sense of the word we are proposing to remove them from the list of tribunals in the 2014 Act.

If there is no longer a supervisory body for tribunals and the Scottish Government previously thought that the Crofting Commission should be supervised it is perhaps no wonder that we are where we are at due to lack of supervision!

The Faculty of Advocates have stated that they agree with the reasoning behind the Scottish Government’s plan to do so. However, I am of the view that the Faculty of Advocates are perhaps at a disadvantage in not seeing at the coalface how the Crofting Commission are actually handling their decision making process and aspects thereof that make them very much a tribunal, but one that appears to be out of control. This is certainly the case with regard to the recent removal by the Crofting Commission from office of three grazings committees.

Last week I submitted my own response to the Scottish Government’s consultation on the matter. It reads:-

Whilst it is stated that it is the “Scottish Minister’s view that the Crofting Commission is not a tribunal in the true sense of the word” recent events would suggest that the Crofting Commission is in many respects acting as a tribunal but without the procedures, checks and balances that one would normally associate with a tribunal.

The Crofting Commission has been using the power vested in it under and in terms of section 47(8) of the Crofters (Scotland) Act 1993 to remove grazings committees from office. There have been three such removals since December 2015.

This has created a lot of controversy with allegations of abuse of power and calls for an investigation of the Commission.

It is submitted that in taking action to remove grazings committees from office the Crofting Commission has been acting as a tribunal.

However, it would appear that no proper procedures, as would be expected from a tribunal, have been followed by them in so doing.

Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms (ECHR) provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Where the Crofting Commission is determining a civil right or obligation it must ensure that its processes are Article 6(1) compliant.  There are three key aspects to this (1) Security of tenure of the members; (2) Absence of bias amongst the members of the tribunal; (3) Absence of procedural unfairness.

It is considered that the manner in which the Crofting Commission has carried out its decision making under the said section 47(8) was non-compliant and, indeed, that the said section 47(8) is not ECHR compliant.

More worrying still is that the Crofting Commission are currently arguing that an appeal of a decision made by it under the said section 47(8) cannot be brought before the Scottish Land Court. If this is correct (and a decision on this procedural technicality is currently awaited from the Scottish Land Court) then the only right of redress may be judicial review via the Court of Session.

Given all of this it would, in my view, be very unwise to remove at this stage reference to the Crofting Commission from the Tribunals (Scotland) Act 2014. It may well be that Scottish Ministers in considering the alleged abuse of power within the Crofting Commission might want to consider the possible benefits of utilising the Tribunals (Scotland) Act 2014 to remedy some of the issues and problems actually highlighted above. Of course there may be other ways of achieving the same result.

In all the circumstances it is considered premature, at the moment, for the Tribunals (Scotland) Act 2014 to be amended in any way that would exclude the Crofting Commission therefrom.

Brian Inkster

Research Credit: I am indebted to Alistair Sloan for researching, at my request, the detail of the Tribunals (Scotland) Act 2014 and the ECHR aspects involved.

You might think that, I couldn’t possibly comment

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

There comes a point where actions speak louder than words

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

Rhoda Grant MSP asked the Scottish Government:-

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

Fergus Ewing MSP answered:-

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

Rhoda Grant MSP also asked the Scottish Government:-

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

Fergus Ewing MSP answered:-

The Scottish Government has no current plans to do so.

In addition Rhoda Grant MSP asked the Scottish Government:-

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

Fergus Ewing MSP answered:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An inquiry is necessary to answer questions such as:-

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

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

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

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

Brian Inkster

Image Credit: House of Cards © BBC

Crofting Commission must be audited “and we do mean a full audit”

Crofting Commission should be audited

If anyone needs an audit it is the Crofting Commission

Following the revelations yesterday that the Crofting Commission has been deleting its online history and thus, in effect, using historical revisionism to paint a different picture of ‘The Common Clearances‘ a call has been made, once more, by the Scottish Crofting Federation for an independent investigation into their actings.

The Scottish Crofting Federation has released the following statement:-

The Scottish Crofting Federation (SCF) has reiterated its call on Scottish Ministers to intervene in the crofting common grazings debacle and to instigate an external examination of the Crofting Commission, following revelations of a cover-up.

“’The Crofting Commission are lying to us’ would perhaps be too strong an accusation” the chair of the SCF, Fiona Mandeville, said, “but it is clear that they are spinning distortions. Saying one thing and then trying to hide the evidence that they have indeed said something else in the past is duplicitous to say the least.

“This has gone far enough” Ms Mandeville continued. “It seems we can no longer hope that the Commission will come clean and will behave honourably. We have encouraged the Commission all along to allay the fears of crofters and to try to rebuild confidence. With the recent public statements they at last appeared to be moving around to the right direction, but with this ‘cover-up’ exposed they have now drastically reduced confidence further. We reiterate our petition that the Scottish Ministers intervene and ensure that an impartial examination of the Commission’s recent conduct is carried out by a competent external body.

Ms Mandeville concluded, “This is extremely disappointing. It seems that the only way to deal with this is through an external audit of the Commission’s behaviour over the common grazings. And we do mean a full audit.”

The reference to the full audit is, of course, a reference to the Crofting Commission’s insistence that Upper Coll Common Grazings Committee should produce full audited accounts where this was clearly unreasonable and unnecessary for a Grazings Committee to be expected to do and contrary to what the Crofting Commission had previously stated was expected of Grazings Committees. We will return to that point in greater detail on this blog in future posts as it is worthy of detailed examination to demonstrate clearly how unreasonable the Crofting Commission were being.

However, as the Scottish Crofting Federation say, it would certainly be appropriate for a public body such as the Crofting Commission to have a full audit carried out on it in these circumstances. Given the continuing and mounting evidence surrounding potential abuse of power within the Crofting Commission, the Scottish Government should, indeed, instigate such an audit as a matter of priority and without further delay.

Brian Inkster

Crofting Commissioner Resigns over situation the Scottish Government and Crofting Commission need to sort out

William Swann - Crofting Commissioner Resigns from Crofting Commission

William Swann

More catch up news on ‘The Common Clearances‘ since I returned from holiday. This time the news from last week that William Swann had resigned, the previous week, as a Commissioner at the Crofting Commission.

This was covered in the media last week and this week as follows:-

Crofting Commission Press Release – 9th June 2016

The Crofting Commission today confirmed that William Swann decided to resign from the position of Commissioner on Thursday 2, June.

William Swann, from the Isle of Skye, was appointed as Commissioner by Scottish Ministers in January 2012 and has provided significant contribution to the Commission during his time and was particularly helpful as the chair of the Audit and Finance Committee.

Crofting Commission Chief Executive, Catriona Maclean, commented:

William has provided invaluable knowledge, expertise and guidance to the Commission.  The Commission would like to thank William for all of his hard work and we wish him luck with his future ventures.

The Commission remain quorate and I would like to assure all crofters that it is business as usual with a continued focus on securing the future of crofting.

The Skye Times – 10 June 2016

In recent months there has been growing discontent at grass roots level over the decisions by the Commission to remove from office two grazing committees at Upper Coll and Mangersta in Lewis after investigating their financial arrangements.

However, today Mr Swann said he had nothing to add to the resignation announcement made by the Chief Executive.

However, he did say:

The situation is one very much between the Scottish Government and Crofting Commission and something they need to sort out. I hope that things do calm down.

BBC News coverage – 13 June 2016

William Swann quit as a member of the Crofting Commission last week.

BBC Alba has since learned that he had told crofters he would resign if he felt the commission was not dealing with their case in a fair manner.

The commission has been in dispute with the crofters in Mangersta and Upper Coll about how they manage their common grazings committees.

The commission dismissed both committees, whose members are crofters, earlier this year and appointed officials to run the grazings, which are shared areas of land for raising livestock…

Catriona MacLean, of the Crofting Commission… said she could not comment on Mr Swann’s resignation, but said the commission was working effectively and within the law.

The Herald – 14 June 2016

William Swann, who was one of three commission members appointed by the Scottish Government, stood down last week without explanation.

Mr Swann, from Skye was chair of the Audit and Finance Committee. There were reports that he had told crofters on Lewis he would resign if he felt the commission was not dealing with their case in a fair manner.

But spokeswoman said last night:-

The Crofting Commission can confirm that there is no connection between what was reportedly said by William Swann at a meeting with Mangersta shareholders and his decision to resign. William’s reasons for resignation are a private matter for him and we must respect that.

View from the Crofting Law Blog

The most important thing to glean from these various reports is what Mr Swann said himself, namely:-

The situation is one very much between the Scottish Government and Crofting Commission and something they need to sort out. I hope that things do calm down.

It would therefore appear that he resigned due to an issue at the Crofting Commission that he feels needs sorting out between them and the Scottish Government. There have been calls for some time for the Scottish Government to step in and investigate what is going on at the Crofting Commission. Perhaps William Swann’s resignation will be a catalyst to them now actually doing just that.

It should be noted that William Swann chaired the meeting involving shareholders of the Mangersta Common Grazings at which there was reportedly ‘a menacing presence‘.

Brian Inkster

The Crofting Commission now have a Plan

The Crofting Commission Plan is not a cunning one Baldrick

I have a plan so cunning you could stick a tail on it and call it a weasel

The Crofting Commission had six months from 17 March 2012 to prepare and submit a Plan to the Scottish Ministers. I am not sure exactly when the Crofting Commission did so but the Scottish Ministers only approved that Plan today. So more than 15 months after the Crofting Commission elections were held the Crofting Commission now have a Plan. It will be interesting to see whether this brings clarity to their regulatory functions. There will no doubt be future posts on the Crofting Law Blog on specific aspects of the Plan. In the meantime the official line from the Crofting Commission reads as follows:-

After celebrating a first anniversary in April, the Crofting Commission now has another landmark to celebrate, with the formal approval of the Policy Plan for its term of office, by Paul Wheelhouse, Minister for the Environment and Climate Change.

For Convener Susan Walker this marks the end of one period and an exciting beginning. Speaking from Skye Susan said, “We are delighted to receive formal approval of the Plan from the Minister. This is our blueprint for action for the rest of our term in office, as the first Commissioners of the newly created Crofting Commission. The primary focus of our first six months at the helm of the new organisation was spent drafting and consulting on the Plan. It contains our aspirations and ambitions for crofting and reflects our belief that crofting has a significant role to play in things such as population retention. The Plan also sets out our strategic policy and will be underpinned by more detailed individual policies, covering the whole gambit of crofting regulation.”

The Plan stems from provisions in the 2010 Crofting Reform (Scotland) Act, which saw the birth of the Crofting Commission and charged the Commissioners with the task of developing a Plan. As part of that process, the Commission consulted widely on the draft Plan and carefully considered all of the responses received before submitting a final draft to the Minister.

The Plan explains to tenant and owner-occupier crofts, landlords, organisations and agencies involved in crofting, how the Crofting Commission will make decisions on regulatory cases, in line with legislation and why consistent regulation of crofting is important.

In this way, the Commission seeks to balance the interests of crofting communities, landlords, crofters and the wider community – a balance which is essential if crofting is to continue to contribute to the development of some of the most fragile rural areas in Scotland.

There is a particular focus in the Plan on the need for crofting to play a part in retaining population in remote communities, through the occupation of crofts. The Crofting Act requires the Commission to ensure all tenants and owner-occupier crofters reside on or within 32km of their crofts.

The Commission wishes to encourage crofters to use Succession and other regulatory means to increase access to crofts for new entrants.

“People sometimes associate crofting with the past,” Susan Walker observed, “but while an awareness and understanding of the past is important, through our Plan, the Commission has clearly set its sights on the future of crofting”.

You can read the Plan in its full glory here: Crofting Commission Policy Plan (Word Doc)

Brian Inkster

[Photo Credit: Blackadder © BBC]