Monthly Archives: May 2016

Fergus Ewing is new Cabinet Secretary for Crofting

Scottish First Minister, Nicola Sturgeon, today announced her new Scottish Cabinet and ministerial team.

Crofting now falls within the portfolio of the Cabinet Secretary for the Rural Economy and Connectivity. Fergus Ewing has been appointed to that cabinet position.

Jim Hunter, in response to my last blog post, tweeted:-

Among the 63 SNP MSPs is a poor soul about to be appointed Minister for Crofting – ‘poisoned chalice’ doesn’t cut it.

John MacPherson responded:-

A Minister for Crofting will need (at least!) a degree in theology and good pair of knee-pads!

Fergus Ewing will certainly have his work cut out in dealing with the issues surrounding ‘The Common Clearances‘.

To what extent Fergus Ewing may be assisted by Humza Yousaf remains to be seen. Humza Yousaf has been appointed Minister for Transport and the Islands acting as junior minister to the Cabinet Secretary for Rural Economy and Connectivity. The current controversy arises from actions taken by the Crofting Commission against Common Grazings Committees on the Isle of Lewis.

John Finnie MSP submitted a Parliamentary Question on the issue for answer by the Scottish Government. It reads:-

To ask the Scottish Government what its position is on the suspended Mangersta grazing committee on the Isle of Lewis and whether it has a role to play in the mediation of this matter.

The answer to that question and many others posed in recent weeks is now awaited with much interest and anticipation.

Brian Inkster

Vote of no confidence in Crofting Commission and calls for their Convener to stand aside pending the outcome of a full external enquiry

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Vote of no confidence in Crofting Commissio at Crofting Federation meeting

All hands went up in Ullapool with a vote of no confidence in the Crofting Commission

The Scottish Crofting Federation have highlighted that the outrage of crofters at the treatment grazings committees are receiving from the Crofting Commission is escalating as another constable is appointed and shareholders are summoned to a Commission meeting.

Chair of the Scottish Crofting Federation, Fiona Mandeville, said:-

The behaviour of the Crofting Commission is causing widespread resentment and bewilderment in the crofting communities. We are all completely dismayed that the body that is supposed to be promoting the interests of crofting is instead behaving so negatively and harmfully. It seems to have lost all sense of reason.

Following summary dismissals of grazings committees by the Crofting Commission, and accusations of the Commission’s inconsistent and oppressive behaviour, the Scottish Crofting Federation held a meeting in Ullapool last Friday. Fifteen people attended, including deposed grazings officials, crofters and others. A vote of no confidence in the Commission was passed unanimously.

Ms Mandeville went on to say:-

The meeting was unequivocal in its opinion of the Crofting Commission’s conduct. As well as a vote of no confidence in the Commission, the meeting thought that it would be appropriate for the convener of the Commission to stand aside whilst an investigation is carried out into the summary dismissals of grazings committees and the internal procedures of the Commission that has led to this debacle. The Scottish Crofting Federation fully supports this.

How does the Crofting Commission intend to manage the day to day running of the grazings that they have left with no committee? Claims for CAP support are due imminently, both by committees on behalf of grazings and by individuals who need agreement of their grazings committee to use extra soumings. Large amounts of money, and we are talking thousands of pounds, will be lost. Will the Crofting Commission be ready to compensate for losses? Or do they expect the constables they are imposing on the grazings to do this? Whilst being questionable in legality, imposing constables is belligerent, particularly as shareholders are expected to pay them.

The issue seems to be around how committees manage their operational reserves. The Crofting Act is open to interpretation on exactly how this is supposed to be done but grazings committees have always taken a pragmatic approach. The Commission have apparently recently taken an interpretation that is simply unworkable. We are hearing from many committees that if they are forced to pay out all their operational reserves they will simply have to wind up management of the grazings. That will be the end of this unique system, which we hope is not the intention. The Commission is being utterly irresponsible.

Prior to summary dismissal, grazings committee members were called by the Commission to meetings with no warning of what the meeting was to be about. The commission are carrying on in the same authoritarian vein with another summons to their meetings again, with no consultation as to suitability of date, time or venue.

We understand that there may be other sacked grazings committees. The Commission has to be reined in and held to account. We understand that there may be other sacked grazings committees. The Commission has to be reined in and held to account. We will be seeking an urgent meeting with the new Minister for crofting as soon as she or he is in place and will call for a full external inquiry.

It was reported in The Scotsman that a spokeswoman for the Crofting Commission said:-

The actions of the Scottish Crofting Federation are not a matter for the commission.

An extraordinary statement for the regulator of crofting in Scotland to say about the organisation that represents the interests of crofters. The regulator should be taking heed of what they say. Instead they appear to simply be closing the door on them. A door that the Scottish Government must break down with a view to sorting this sorry mess out once and for all.

Crabbit Crofter on Twitter summed the current situation up with this image:-

Brian Inkster

Claims against Mangersta Common Grazings Committee withdrawn

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Mangersta Village and common grazings (Photo by Elsie Mitchell)

The former tenant in the crofting village of Mangersta, whose activities led to the disbandment of the Common Grazings Committee, has withdrawn all of his financial claims.

Following recent publicity, the individual – who had sought a personal share of grants paid to the village while he was an absentee tenant between 1994 and 2012 – said in a letter to the former Grazings Clerk that he was withdrawing “any and all claims … with immediate effect”.

I, as agent for the former clerk to and four former members of the Mangersta Common Grazings Committee, have now written to the Crofting Commission informing them of the development and asking them to reinstate the Grazings Committee and clerk without delay. I previously described the Commission’s conduct in replacing the Committee with a Grazings Constable as “unreasonable” and “illegal”.

Members of the former Grazings Committee said in a statement:-

We welcome the withdrawal of these demands and sincerely hope it will bring all of this to an end.

We repeat our call for an inquiry into the workings of the Crofting Commission and particularly the guidance they have sent out, in response to events in Mangersta and Upper Coll, on financial management by Grazings Committees.

As is now widely appreciated, these have extremely damaging implications for the whole crofting system.

Brian Inkster

Whose best practice?

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Even a five year old knows the importance of experience and knowledge when it comes to best practice!

It was reported online today in Farming UK that NFU Scotland has asked the Crofting Commission to bring forward a simple guide to best practice for grazing committees.

Sutherland crofter Sandy Murray, who chairs the NFU’s Crofting Highlands and Islands Working Group said:

It is in the best interests of all, that any Common Grazings Committee operates with up-to-date regulations and within the law.

The Crofting Commission is best placed to deliver guidance and clarification to any committee. If changes are needed, then a grazings committee meeting can be held as soon as possible, all stakeholders notified and steps taken to ensure that their grazing regulations are fit-for-purpose and up-to-date.

NFUS has called on the Commission to draw up simple and accessible best practice guidance on how grazings committees should be operating – clearly mapping out what they must do, should do and could do.

The Commission should then send this to all grazings committees and clerks along with the new common grazings regulations template and guidance – as available on the Commission website.

The Union supports active crofters and the active use of common grazings. In order to help achieve this we believe that there are real benefits in Common Grazings being regulated and having grazing committees in office, for the benefit of the common grazing and the shareholders.

The problem is that the Crofting Commission’s idea of best practice is very different from what crofters consider it to be and is also often at odds with what any sensible interpretation of the law says it is.

The NFU approach is not the answer to the problem. Crofters should be very wary at the moment of any guidance and clarification issued by the Crofting Commission and should take independent legal advice thereon.

It is hoped that the Scottish Crofting Federation meeting that was held in Ullapool yesterday results in more positive steps being taken that actually resolve ‘The Common Clearances’ and the alleged abuse of power within the Crofting Commission. More news on that to come.

Brian Inkster

Crofting Law and the new Scottish Government

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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

When the costs of administering a Common Grazings Fund would exceed the income

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Neglect of common grazings now actively being encouraged by the Crofting Regulator!

The Crofting Commission have, in statements and guidance issued surrounding ‘The Common Clearances‘, stressed the importance of funds received by Grazings Committees requiring to be immediately paid out to shareholders.

As indicated in previous posts on this blog examples of the “nonsensical” and “totally impractical” stance by the Crofting Commission have been given by Donald Macsween on his blog Air An Lot.

A comment from Donald Murdie today on the Crofting Law Blog gives more practical examples of the need for funds to be maintained for the benefit of the common grazings.

Also today on Twitter I had an exchange of tweets on this topic with Rebecca Hutton. She pointed out that:-

Still not cleared things up re grazings regs saying to maintain a grazings fund. For example, we get £10 for island rent which would mean spending £22.55 to send out cheques of 24p each!!

Indeed. If you were to follow Crofting Commission stipulations who would meet the deficits that could arise in Common Grazings bank accounts?

Another question that the Crofting Commission are unlikely to answer in a hurry.

Brian Inkster

Crofting Commission Statement on ‘Common Clearances’

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Crofting Commission meeting arranged for Common Grazings Shareholders that no one knows anything about - will anyone be there other than the Commission

Will any crofters be at a meeting that no one knows anything about?

The Crofting Commission issued a statement at its Board meeting today on ‘The Common Clearances‘. Needless to say they didn’t actually refer to the situation as ‘The Common Clearances’. Their statement is as follows:-

The Commission wish to reassure shareholders that it is committed to assisting all common grazings committees and clerks to self-regulate within the provisions of crofting legislation and will work with them to do so.

To support this, it is important that all shareholders have the fullest information about the differing roles and duties of the grazings committee and the grazings clerk.

The committee are responsible for managing the rights of all crofters within the common grazings in accordance with their own, approved regulations.

The role of the clerk is to receive and pay-out all shareholders monies in accordance with their approved regulations as set out in the Crofting Act 1993.

With this in mind the Commission has arranged to meet with the shareholders in both Upper Coll and Mangersta Common Grazings in mid-May to advance the process which has already begun in these townships.

The stated commitment to assist all common grazings committees and clerks to self-regulate within the provisions of crofting legislation and the statement that they will work with them to do so does not sit well with the summary dismissal of two grazings committees without any apparent attempt to do that.

The role of the clerk is not simply “to receive and pay-out all shareholders monies in accordance with their approved regulations as set out in the Crofting Act 1993”. I will look at this in more detail in a future post. For now I would refer you again to Donald Macsween’s very astute blog post on the “nonsensical” and “totally impractical” stance by the Crofting Commission on the financial management of grazing funds.

Apparently the Crofting Commission “has arranged to meet with the shareholders in both Upper Coll and Mangersta Common Grazings in mid-May”. This has come as news to shareholders in both townships who have not, as yet, actually been contacted by the Crofting Commission concerning such a meeting!

In a statement issued today former members of the Mangersta Common Grazings Committee said:-

The Commission just blunders on. We were astonished to see from their web-site that they had ‘arranged to meet with the shareholders’ in both Upper Coll and Mangersta grazings in mid-May.’

We wish it to be known that we have heard absolutely nothing about any meeting, far less agreed to participate in it. If and when the Commission proposes a meeting, we will take legal advice on the appropriateness of attending.

We can only express astonishment at the continuing unprofessional and misleading behaviour of the Crofting Commission. One would have thought that the basic courtesy of consulting about a possible meeting and the form it might take would not have been beyond them, before making a public announcement about a meeting nobody else knows anything about.

The purpose of the meeting which no one knows anything about is apparently “to advance the process which has already begun in these townships”. That sounds very much like there is no going back on the part of the Crofting Commission and the intention is to finish what they have started even if it is illegal.

Calls made from various quarters, including politicians and the Scottish Crofting Federation for the Crofting Commission to explain their actions and/or for the committees in both instances to be reinstated, appear to be falling on deaf ears. The Scottish Crofting Federation has requested the Scottish Government to carry out “a full review of the situation as soon as possible before the damage is irreversible”. Perhaps the Scottish Government needs to send a representative to the Crofting Commission’s meeting which no one knows anything about if they can manage to find out the date, time and location thereof.

Brian Inkster

Crofting Federation hold meeting on Common Grazings Calamity

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Ullapool

The Scottish Crofting Federation are holding a meeting for representatives of common grazings affected by Crofting Commission decisions in Ullapool this coming Friday morning to exchange information and plan what can be done next.

It was reported in Hebrides Today that the Scottish Crofting Federation has expressed bafflement at the recent behaviour of the Crofting Commission in which it “seems set to antagonise crofters and put grazings at risk”.

We have, of course, reported on this bizarre behaviour:-

Abuse of power within the Crofting Commission?

The Common Clearances

Crofting Commission’s appointment of Grazings Constable is illegal

And there are even more baffling details behind some of this which will be revealed on this blog in future posts.

Hebrides Today summarised the position to date:-

The Crofting Commission recently removed two grazings committees from their offices on grounds that they did not fulfil their statutory obligations. This is vigorously denied by those removed, with claims that the commission made it impossible to comply by contradiction, vagueness and antagonism. The commission’s decision to impose a constable on one of the grazings is being questioned by a leading lawyer as to its legitimacy.

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

The commission is apparently behaving extremely high-handedly and their diplomacy skills are very low. Grazings shareholders need a word of comfort urgently to restore confidence in the regulator.

A public statement giving the assurance that grazings committees will not continue to be sacked, that grazings constables, legal or otherwise, will not be imposed on them and that the issue of enforcement of fatally impractical demands will be addressed, is overdue and essential to halt this calamity.

Crofters are completely perplexed at this extraordinary behaviour

Those wishing to attend the meeting being organised by the Scottish Crofting Federation in Ullapool on the morning of Friday 6th May should contact their head office:-

E-mail: HQ@crofting.org

Tel: 01599 530 005

Photo credit: Paul Hart from Glasgow, Scotland – Ullapool, CC BY-SA 2.0

Crofting Commission’s appointment of Grazings Constable is illegal

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Appointment of Grazings Constable by Crofting Commission is illegal

Evenin’ Commissioners!

I have been appointed by the former clerk to and four former members of the Mangersta Common Grazings Committee to represent their interests. Due to the wider implications involved for Grazings Committees throughout the Crofting Counties they are happy for me to make public my views on the actings of the Crofting Commission in removing them from office. The background involved can be found in my last blog post: ‘The Common Clearances’.

It is very clear to me that the Crofting Commission in deciding to remove the clerk to and the five members of the Mangersta Common Grazings Committee from office took a decision so unreasonable that no reasonable person acting reasonably could have made it. This is a settled test in law known as the Wednesbury principle. Furthermore that decision was based on a complaint concerning financial matters that the Crofting Commission had no remit to handle. The Crofting Commission’s own guidelines in this respect state:-

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.

I have therefore written a letter to the Chief Executive of the Crofting Commission calling upon the Crofting Commission to issue an apology to my clients and to reinstate them as members of and clerk to the Mangersta Common Grazings Committee without further delay.

It should in particular be noted that the Crofting Commission purported to appoint a Grazings Constable to administer the Mangersta Grazings Regulations. The Crofting Commission does not have the power to do so under section 47(8) of the Crofters (Scotland) Act 1993.

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 and that clearly does not apply to the present situation.

If the Crofting Commission decide to remove a committee of five and a clerk from office they must appoint, or provide for the appointment of, five committee members and a clerk to replace them. Therefore the Crofting Commission has acted illegally in appointing a Grazings Constable and any actions taken by him are null and void.

This latest revelation compounds the allegations of abuse of power made against the Crofting Commission and highlights once more the urgent need for the Scottish Government to institute an inquiry into their actings.

Brian Inkster

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