On the back of revelations that the Scottish Government do not accept the way the common grazings debacle has been handled by the Crofting Commission the shareholders of Upper Coll are fighting back into power.
The Upper Coll Grazings Committee were put out of office by the Crofting Commission for not producing 5 years of “audited” accounts but instead producing 5 years of financial statements prepared by an independent accountant.
The Grazings Committee were ‘replaced’ by a Grazings Constable that I, and others (including bizarrely the Crofting Commission themselves) consider to be illegal.
Now the shareholders at Upper Coll have said enough is enough and the majority of those present at a meeting on 25 August 2016 (there being no objections) have issued a statement that calls on the resignation or dismissal of Convener, Colin Kennedy, and Commissioner, Murdo Maclennan. They state that they consider the Grazings Constable to have been appointed illegally and that they will be holding a meeting to nominate and elect a grazings committee. They want their bank account back (the grazings constable having wrestled control of it away from them).
Their statement reads:-
Return control of Upper Coll Grazings to shareholders vis a vis our democratically elected Grazing Committee.
Return our bank book.
The evidence is overwhelming that the Crofting Commission have acted out-with their powers, their guidelines and legal advice in dismissing the Upper Coll Grazings Committee and imposing a constable, who, while purporting to act for shareholders, seems to see his role as acting for the Crofting Commission in finding fault with democratically taken decisions over many years.
We have evidence that he has been investigating our decisions over many years by contacting, without our knowledge or permission, public and private organisations, in order to try and retrospectively find reasons for the Crofting Commission’s actions, which were out-with their own guidelines and have been the subject to criticism from the highest levels of the Scottish Government and legal profession.
We demand to know what gave the Commission the power to take over our bank account. We demand to know the mechanism which allows any organisation the power to take over and delete democratically appointed signatories to a bank account without the signatories knowledge or permission.
We reject the constable’s view that he has the support of the majority of shareholders. He has mistaken reluctant co-operation for approval. We agree with all the legal views, apart from the Commission’s, that he has been illegally appointed, and that the Commission made no attempt to elect a committee before they appointed him.
We support the guidelines adopted by the Crofting Commission on 27 April 2015 where they state “it does not appear that the Commission can directly appoint a constable as part of a disciplinary process where a committee is not carrying out its duties.” As a result, we call on the Commission to acknowledge their wrong-doing in imposing a Constable on the Upper Coll Township contrary to their own guidelines and apologise for this to the Upper Coll Shareholders and withdraw the current illegally appointed Constable.
We demand to know what rights an illegally appointed constable has to use village documents, obtained using the threat of legal action, for purposes other than which they were intended, by supplying information to an outside body which states it takes nothing to do with grazings committee’s finances.
We support the views of the Minister for Crofting, and demand that the Commission compensate Upper Coll Grazings for making us disburse monies, when even the Government states it was out-with their power to do so. We also demand that the Commission and/or Constable compensate the village for loss of money through grant schemes such as Agri-environment etc which were not applied for as a result of the dismissal of the Committee.
We support the overwhelming vote taken at the recent meeting in Stornoway of the Scottish Crofting Federation in calling for the resignation of Convener Colin Kennedy. In his refusal to resign we ask the Government to dismiss Mr Kennedy from a position he has used to further his own ends and which he has used to embarrass the Government.
We also call for the resignation or dismissal of our local commissioner Murdo Maclennan as he has done nothing to assist the Upper Coll Grazings when asked to do so on a number of occasions. His contribution in the whole matter has been questionable to say the least.
We support the return to the democracy we had before the dismissal of the Upper Coll Grazings Committee who had complied with all the demands made on them by the Crofting Commission.
We propose a meeting of shareholders on Saturday 10th September at 7pm to nominate and elect a grazings committee. We do this in accordance with the Crofting Commission’s own guidelines as laid out in Annex A for Policy in Development Paper No 6.
We call on the Commission to apologise for the stress caused and the public querying of “financial irregularities” even after they had properly independent accounts presented to them, which showed there was no such “irregularity”.
There is overwhelming evidence that the Commission’s conduct has been improper, outwith their own guidelines and in our case vindictive, draconian, and illegal.
We call on the Minister to help us get our bank account back, support us having an elected grazings committee back in place immediately, define what the role of the Commission is and how it should keep to its own public and legal guidelines to the same detail as it requires of voluntary grazings committees.
It was reported on Hebrides News that a Crofting Commission spokesperson said:-
Following an investigation under the Crofting Act the grazings committee in Upper Coll were removed from office on 14 April 2016.
Subsequently, the Crofting Commission received a request from the former grazings clerk, stating that there were a number of issues that, in the view of shareholders, required immediate attention and asking the commission what they intended to do to resolve the issues highlighted.
The commission discussed this matter at a meeting on 9 May 2016 and considered all of the options available to them.
Given the request for immediate action and in order to protect the interests of all shareholders the commission decided to appoint a constable in terms of section 47(3) of the Act.
The grazings constable is now nearing the end of his appointment following which the shareholders can appoint a committee of their choosing.
The Commission told Hebrides News that it could not give further details as the matter was the subject of court action. Certain committee members who were removed from office at Upper Coll appealed the decision of the Crofting Commission to the Scottish Land Court. There is currently debate before the Land Court as to whether or not the court has jurisdiction to hear such an appeal and a decision on that preliminary technical matter is awaited.
View from the Crofting Law Blog
It seems to me to be very strange indeed that on the back of a massive U-Turn regarding the appointment of a grazings constable at Mangersta, revelations that the Crofting Commission knew themselves that the appointment of a grazings constable, in these circumstances, was illegal and a rebuke from Fergus Ewing MSP over their handling of the affair that the Commission persists with the notion that a ‘constable’ exists at Upper Coll.
All indications are that they so persist in the hope that the constable will unearth some wrongdoing that will possibly justify his appointment in the first place! However, you can never justify a step that by all accounts (including their own) was illegal in the first place.
As recently as 17 August Commissioner Murdo Maclennan stated that:-
We have got a Constable who is working with crofters in the village… and… and… I am finding out he is working well with them.
Clearly a statement that is very much at odds with what the crofters in the village are actually saying.
The Crofting Commission need to put this mess that they have created to bed. Their failure to do so does not sit well with their apparent support of the position of the Scottish Government i.e. that the Commission got it wrong over the question of disbursement of funds – the very issue that resulted in the dismissal of the Upper Coll Grazings Committee and the illegal appointment of a grazings constable.
Does, however, the statement by the Crofting Commission spokesperson that:-
The grazings constable is now nearing the end of his appointment following which the shareholders can appoint a committee of their choosing
mean that the Crofting Commission perhaps do see the matter being put to bed shortly by simply the current term of an illegal appointment coming to its natural albeit illegal end?
In the absence of any early resolution of the matter by the Crofting Commission, and a Land Court action in hand that could rumble on for some time yet, it does not seem unreasonable for the shareholders at Upper Coll to be making the statement they have and taking the action intended to appoint a committee to manage their affairs sooner rather than later.
However, the ‘grazings constable’ of Upper Coll, Colin Souter, appears to be fighting back. I will look at his stance on the matter in my next blog post.
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