Monthly Archives: April 2016

The Common Clearances

Crofting Clearances

Who wields the axe at the Crofting Commission?

Following the revelations of the Upper Coll Common Grazings Committee being removed from office by the Crofting Commission in a “dictatorial, vindictive and unjustified“ manner there came news that this was not an isolated incident. The Mangersta Common Grazings Committee has also been removed from office by the Crofting Commission. Members of the now defunct Grazings Committee have referred to the Crofting Commission’s behaviour as “erratic, overbearing and contradictory”. They have called on an inquiry into this “appalling” situation.

The facts surrounding the Mangersta ‘sackings’ related to payment of monies to an absentee crofting tenant who had returned cheques sent to him. On any reading of the situation, as disclosed in the press this past week, the actings of the Commission and their Convener appear almost beyond belief.

The only cheep so far on any of this from the Crofting Commission is a blog post which they state to be a reminder on the ‘The Rights of Crofters and the Duties of Grazings Committees and their Grazings Clerks‘. This ‘reminder’ is unfortunately misleading and inaccurate. It is recommended that crofters don’t follow it but seek independent specialist advice.

Donald Macsween (a crofter in Ness on the Isle of Lewis) has blogged on the “nonsensical” and “totally impractical” stance by the Crofting Commission on the financial management of grazing funds. He makes some very astute and sensible points. Ones that appear to be lost on the powers that be in the crofting regulator’s HQ at Great Glen House in Inverness. I am likely to return to this topic on a future dedicated blog post covering it in some detail from a legal point of view.

Scottish Labour’s candidate for Na h-Eileanan an Iar/Western Isles, Rhoda Grant, has backed calls for a full inquiry into the workings of the Crofting Commission and the reinstatement of  Upper Coll Common Grazings Committee.

Mrs Grant has issued a letter to the Chief Executive of the Crofting Commission, Catriona Maclean, in which she refers to the removal of the Upper Coll Common Grazings Committee as a “sorry episode”. She states that this is:-

symptomatic of a much wider problem with the Crofting Commission which has gained an unwelcome reputation for its high-handed, overbearing attitude towards good people doing their best to hold crofting together.

Mrs Grant goes on to say:-

The whole system of crofting tenure is in a very parlous state and it needs the support of a regulatory body which acts firmly and fairly in the crofting interest.  Instead, we have a bull-in-the-china shop approach which is undermining the work of well-run crofting villages, for reasons that seem to be random rather than for any consistent, coherent reason.

The Crofting Commission is a creature of statute and nobody is empowered to behave as a law unto himself.  There must be an urgent inquiry, relating to Upper Coll and also more generally, to find if the Commission has acted beyond its powers and whether its recent behaviour is consistent with the interests of the crofting community.

The Editorial in this week’s West Highland Free Press brands the Crofting Commission’s actions at Upper Coll as “high-handed, insulting and wrong”. It states:-

Every single one of the eight commissioners should be aware that this crisis is now their responsibility. They must take it upon themselves to resolve a serious situation before suffering the ignominy of ministerial or even legal intervention.

Patrick Krause, Chief Executive of the Scottish Crofting Federation, has asked:-

What on earth is going on? How many others are there who have been intimidated and bullied into submission under threat of removal?

He has gone on to state:-

It is clear that there has to be a review by the Scottish Government of how the commission works and what its objective is.

The Scottish Crofting Federation yesterday issued open letters to the Crofting Commissioners and to the Minister for the Environment, Climate Change and Land Reform. They call upon the Crofting Commission to make a public statement on what is behind their actions. They request the Scottish Government to carry out “a full review of the situation as soon as possible before the damage is irreversible”.

It has been stated that “crofters are so intimidated by the Crofting Commission that they will not speak out publicly“. Now that some crofters are actually beginning to do so hopefully more will tell their stories. From what I can see this is the crofting worlds equivalent of the ‘Panama Papers‘. There is likely to be many more revelations on the actings of the Crofting Commission surrounding ‘Common Clearances’ and other crofting issues.

In 1883 a Royal Commission (The Napier Commission) was set up by Gladstone’s Liberal Government. Its purpose was ‘to inquire into the conditions of the crofters and cottars in the Highlands and Islands of Scotland’ and everything concerning them. This came on the back of The Highland Clearances and ‘The Battle of the Braes’ where the Braes crofters stood up against the 50 policemen brought in from Glasgow following the loss of their hill pasture on Ben Lee and a rent strike in protest. The Report by the Napier Commission resulted in the first Crofters Act in 1886 providing security of tenure for crofters.

130 years after security of tenure was given to crofters a new form of clearance is happening in the Highlands and Islands: The clearance of common grazings committees by the Crofting Commission. They are wielding power in an unjustified and brutal manner reminiscent of landlords from the nineteenth century. We are about to see I believe ‘The Battle of Great Glen House’ (this time perhaps fought with paper and ink rather than stones) and the Scottish Government must now institute an inquiry into the actings of the Crofting Commission and everything concerning them.

Brian Inkster

Abuse of power within the Crofting Commission?

Abuse of Power within the Crofting Commission

Is there an abuse of power within the Crofting Commission?

The publicity last week surrounding a Common Grazings Committee being summarily removed from office by the Crofting Commission highlights a worrying trend concerning alleged abuse of power within the Crofting Commission. It is not the first time that I have heard actions taken by the Crofting Commission referred to as being “dictatorial, vindictive and unjustified“.

The facts appear to be that two shareholders in the Upper Coll Common Grazings lodged complaints with the Crofting Commission to the effect that the Grazings Committee were not conducting its duties in a proper manner. This resulted in the Crofting Commission calling a meeting of shareholders on 10 November 2015 where the Crofting Commission were represented by Colin Kennedy (Convener), I. G. MacDonald (Vice-Convener) and Linda Gourlay (Staff Member).

Following that meeting formal complaints were lodged with the Crofting Commission by a number of those attending accusing the Convener of “unfair and biased conduct” while chairing the meeting. It is unclear whether the complaints procedure involved was finalised/exhausted before the Crofting Commission removed the Grazings Committee from office.

The Crofting Commission gave the Grazings Committee three months to implement five main action points and a further month to get the last five years accounts externally audited.

All points requested of the Committee were dealt with including lodging timeously accounts prepared by external accountants. However, the issue appears to be the definition of “audited”. The grazings regulations of  Upper Coll Common Grazings state that the Clerk shall arrange to have the accounts “audited” annually. In normal parlance that might mean simply having financial statements prepared by an external accountant as indeed most businesses do. A detailed and forensic audit would arguably be completely out of proportion for any Grazings Committee to be expected to carry out given the time and expense of such procedure. Furthermore, you are perhaps unlikely to find a firm of accountants in Stornoway able or willing to undertake such a  task especially in the short time frame dictated by the Crofting Commission.

It is very interesting to note that in the Crofting Commission’s own Common Grazings Regulations Guidance [PDF] it is stated:-

A grazing committee shall undertake an annual independent scrutiny of their financial accounts. The committee should satisfy themselves that the level of scrutiny is proportionate to the value of monetary transactions.

Surely that means the preparation of external financial statements and not an expensive forensic audit? Furthermore the onus is on the committee to satisfy themselves not for the Crofting Commission to dictate.

However, the Common Grazings Regulations Template [PDF] provided by the Crofting Commission does not appear to even state the need therein for such an annual independent scrutiny.

The said Guidance on Common Grazings Regulations do make reference to the question of an audit. They state:-

Historically, the term ‘audit’ has been used loosely to describe any external scrutiny of accounts, however if the term ‘audit’ is used in the Grazings Regulations, the accounts must be audited by a registered auditor.

This appears to recognise the fact that ‘audit’ can mean “any external scrutiny of accounts” but then perhaps bizarrely states that “if the term ‘audit’ is used in the Grazings Regulations, the accounts must be audited by a registered auditor”. From what authority and on what basis can the Crofting Commission make such an assertion when at the same time recognising that ‘audit’ can mean “any external scrutiny of accounts”? Furthermore, why would they seek to insist upon this for historical Grazings Regulations using this term when their preferred template does not?

It is understood that the accountants acting for Upper Coll Common Grazings Committee sought guidance from the Crofting Commission as to what they wanted with regard to audited accounts. They were apparently advised that this was a matter between them and the Grazings Committee! With no guidance given as to what was expected how could they know what to produce to pass the muster of the Crofting Commission?

The Crofting Commission should perhaps have, at least, directed the accountants to their own Guidance on Common Grazings Regulations which state:-

… an auditor is required to build up a body of evidence and express an opinion on the accounts. The opinion given in an audit depends on the nature of the accounts that have been prepared.

• If receipts and payments accounts have been prepared, the opinion will state whether or not the accounts ‘properly present’ the receipts and payments for the common grazings for the financial year.

• If fully accrued accounts have been prepared, the opinion will state whether the accounts provide a ‘true and fair view’ of the financial affairs of the common grazings.

Surely, if Financial Statements prepared by accountants were produced that did not meet whatever requirements the Crofting Commission actually had with regard to an ‘audit’ they should have sought further information/detail as necessary rather than summarily removing the Grazings Committee from office?

It should also be noted that the said Guidance on Common Grazings Regulations 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 if there is any question of alleged financial impropriety (and it is not clear that there even is) then it would be for any aggrieved shareholders to take civil and/or criminal action and perhaps only on the conclusion thereof, and depending upon the outcome, for the Crofting Commission to consider the removal of some or all of the committee and/or clerk.

On any view, therefore, the actions of the Crofting Commission in this instance are extraordinary.

Patrick Krause, Chief Executive of the Scottish Crofting Federation, has stated [PDF]:-

The press made us all aware of the grievance raised by the Lewis Upper Coll grazings committee against the convener of the commission, Colin Kennedy, a few weeks ago. On the face of it, this looks like an appalling attempt by the commission to nullify the complaint. Whatever is actually behind their decision, it is a staggeringly clumsy exercise in public relations. We are struggling to maintain, and to form new, grazings committees as it is.

Hopefully, this is not the reason behind the decision to remove the Grazings Committee from office. If it is then it is very worrying indeed. Whatever the thinking involved it does however remain worrying and should be of grave concern to all crofters and to the Scottish Government that the Crofting Regulator is behaving in this way.

The Crofting Commission’s ability under the Crofters (Scotland) Act 1993 to remove a grazings committee involves “making such inquiry, if any, as they may deem necessary”. Not much process potentially involved there then! However, they must be “satisfied” that the members of the grazings committee “are not properly carrying out the duties imposed upon them”.

On any reading of the situation it would appear that, at least without further inquiry to satisfy themselves, the Crofting Commission in coming to the decision to remove the Upper Coll Common Grazings Committee from office arguably took a decision so unreasonable that no reasonable person acting reasonably could have made it. This is the Wednesbury test (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223) and that decision could therefore be open for judicial review.

If this decision was a correct and proper one to make there must be countless other grazings committees in breach of their own regulations whom the Crofting Commission should also now be seeking to remove from office.

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.

Brian Inkster

Shetland and Orkney should be separate constituencies in the 2017 crofting election

Tavish Scott thinks Orkney and Shetland should remain separate constituencies in the 2017 crofting elections

Tavish Scott: “The consultation needs to offer something different: separate constituencies for Orkney and Shetland in the 2017 crofting election”

Following my recent blog post on the 2017 Crofting Elections Consultation being flawed there have been calls for Shetland and Orkney to remain separate constituencies in the 2017 crofting election.

The Shetland Times reported online yesterday that Liberal Democrat candidate for Shetland in the Scottish election, Tavish Scott, was of the view that Shetland and Orkney should be considered as separate constituencies in the 2017 crofting election.

Mr Scott said:-

Shetland’s crofting communities face different challenges to those in Orkney, but yet again the Scottish government is proposing to ride roughshod over the needs of local people.

The SNP simply does not understand these differences. Already we have ministers who have imposed a one-size-fits-all approach, failing to take into account the unique nature of crofting in the isles.

Already crofters are spending more time meeting the demands of regulation and waiting for payments that have been delayed by months.

The consultation needs to offer something different: separate constituencies for Orkney and Shetland in the 2017 crofting election.

Diversity between our crofting communities should be encouraged and supported but the SNP does not appear willing to even entertain that idea.

This view was backed up by NFU Shetland Chairman, Jim Nicolson, who said:-

Regarding constituencies, my position is that Shetland remains a constituency on its own.

It’s very, very difficult for whoever is the commissioner. It’s time consuming, expensive, and there are a large number of crofters to represent in Shetland as it is.

Hopefully the consultation exercise will take account of such views resulting, if necessary, in the addition of a further elected crofting commissioner to allow the Western Isles to be split into two constituencies (if there does indeed exist the desire to do so) but not at the expense of unnecessarily and unreasonably combining Orkney with Shetland.

Brian Inkster

Photo Credit: Rob McDougall

Crofting Election Consultation is flawed

Is it really necessary to divide the Western Isles but combine Orkney and Shetland?

Is it really necessary to divide the Western Isles but combine Orkney and Shetland?

The Scottish Government recently launched a consultation on the 2017 Crofting Elections. Unfortunately that consultation is somewhat flawed.

The main part of the consultation seeks the views of crofters on the best way to divide up the crofting areas into six constituencies. There is an attempt to possibly make the number of crofts in the six constituencies more equal. Due to the Western Isles containing almost a third of all crofts it has been suggested that this constituency could be divided into two (Lewis and Harris as one constituency with Uist and Barra as another). However creating two new constituencies from one will mean larger or combined constituencies elsewhere if the number of constituencies are to be maintained at six. The resulting options put forward in the consultation paper see Orkney and Shetland combined into one constituency or both combined with Caithness.

Whilst there may be merit in dividing the Western Isles in two it is undoubtedly the case that crofting in Shetland is very different to crofting in Orkney. Should those two distinct crofting areas be combined?

What the consultation paper misses altogether is that there is no need to be confined to six constituencies. The mistake appears to be an assumption that because there are currently six elected crofting commissioners there must be six constituencies. But in the same way that the Scottish Government may, by regulations, amend constituency boundaries they can likewise vary the number of elected members under and in terms of paragraph 3(6)(c) of Schedule 1 to the Crofters (Scotland) Act 1993. This could and should be given as an option in the consultation paper. By not offering it the consultation is flawed.

Brian Inkster