The Chief Executive of the Scottish Crofting Federation, Patrick Krause, previously highlighted the fact that the Crofting Commission were not delivering “the express will of Parliament”. I indicated that this was something I would return to in detail in a later blog post with a clear analysis of what the will of Parliament actually is on this issue. This I indicated would, actually, help to spell out the letter of the law on the matter.
It must be remembered that to date, despite being called upon to do so, the Crofting Commission has not given any explanation with reference to the law as to why they are taking the stance or actions that they are and have been taking on the issue of ‘The Common Clearances‘.
So here goes. We are concerned, for current purposes, with crofting law enacted by the Houses of Parliament in London prior to the creation of the Scottish Parliament. The will of the Houses of Parliament in London can be found in Hansard, the official report of all Parliamentary debates. Hansard can, in certain circumstances, be used by courts to aid the interpretation of statutory provisions and does, of course, give a flavour of the intention and will of Parliament.
When debating the provisions of the bill that became the Crofting Reform (Scotland) Act 1976, Parliament looked at the question of resumption monies being payable to shareholders in Common Grazings.
An Amendment was tabled by Lord Campbell of Croy to the effect that, as an alternative to apportioning resumption monies amongst the shareholders in a common grazing according to their rights therein, “a lump sum should be made available to the grazings committee who decide on improvements for the benefit of all”. This alternative was suggested by the Stornoway Trust as it was a practice “generally acceptable in their area of Lewis”.
Lord Kirkhill, on behalf of the Government of the day, indicated that there was no good reason to legislate in this way as “there would seem to be nothing to prevent a voluntary arrangement being made whereby any crofter’s share would be diverted to the grazings committee”.
On this assurance Lord Campbell of Croy withdrew his amendment as being unnecessary.
In a subsequent debate Lord Kirkhill re-emphasised the position stating that:-
This leaves the apportionment to be carried out on the initiative of the landlord with the agreement of the individual crofters. It will not prevent a landlord, such as the Stornoway Trust, agreeing with shareholders in a common grazing that the money should be paid to the common grazing fund.
Indeed Lord Kirkhill goes to pains to spell this sentiment out several times in that debate.
Lord Campbell of Croy said in response:-
We are glad to hear what the noble Lord said at the end of his speech, which was that the system practised by the Stornoway Trust can be continued.
The House of Commons agreed with the House of Lords.
Little did Lord Kirkhill or Lord Campbell of Croy know of what the Crofting Commission had in mind 40 years later. That was to completely ignore the will of Parliament and impose their own will on the crofters of Lewis removing any and all who might argue with them from office.
The Crofting Commission has insisted that the Grazings Committees of Upper Coll and Mangersta, both on the Isle of Lewis, must pay resumption monies to shareholders even where those shareholders want the monies in question retained within the common grazing fund for township improvements.
There is absolutely no basis in law for this and it is clear that the Crofting Commission are flouting the will of Parliament.
If I were an MSP I would not take kindly to that.
I don’t believe that this analysis can be correct.
The will of parliament is discerned from the legislation that it passes. Hansard can only be referred to as an aid to interpretation when the words of the Act are ambiguous or fail to provide a clear meaning. I don’t think it could be said that the sections dealing with the distribution of resumption money or the removal of a committee and the replacement with someone who need not be a shareholder are in any way ambiguous or unclear. Therefore, the contents of Hansard are, at best, of historical interest only.
In any event, the amendment which might have regularised what appears to have been happening at the grazings where committees have ben removed was withdrawn and not even put to the vote. It was never the law. The fact that an amendment was thought necessary makes it clear that the current law does not allow for what was happening.
It is trite to say, as is clear from the Minister’s response, that shareholders could agree to donate their compensation to the committee for use in the betterment of the grazings and that would not contravene the Act. What is clear from the recording of the meeting at Upper Coll is that such agreement was not sought or obtained and therefore the committee were probably in the wrong.
Transferring entitlement to compensation from shareholders to committees by a change in the law now would be difficult because it would change property rights and potentially invoke article 1of the first protocol of the European Convention on Human Rights and thus potentially illegal. Therefore I am sure that MSPs will be wary.
You completely miss the point.
The House of Lords were debating a draft clause that was to become Section 9(4) of the Crofting Reform (Scotland) Act 1976 (now section 21(4)(a) and (b) of the Crofters (Scotland) Act 1993). The question was did this clause have to be amended to clarify that resumption monies could be retained within township funds. The answer was no because that was permissible by agreement on the part of the shareholders entitled to receive the resumption monies.
You state yourself that “it is trite to say, as is clear from the Minister’s response that shareholders could agree to donate their compensation to the committee for use in the betterment of the grazings and that would not contravene the Act”. You therefore, appear, to contradict yourself and accept my argument! The Crofting Commission have been stating that you cannot do that and have been compelling grazings committees to pay monies to shareholders who actually wish the monies in question to be retained within the township funds for township improvements.
A change in the law is not being sought or suggested by me. The law is clear to me as it was also clear to Lord Kirkhill and his government.
For readers of this blog who are not familiar with the fact I think it only fair to point out to them that you have, in the past, had a close professional connection with the Convener of the Crofting Commission, Colin Kennedy.
I don’t believe that I have missed the point.
The Act makes it clear that resumption compensation belongs to the shareholders. For the administrative convenience of the landlord, the Act allows the landlord to pay the compensation over to the clerk and the clerk is clearly directed to distribute that money to the shareholders rather than directing it to the grazing fund. Lord Kirkhill’s statement is that there is nothing in law preventing the landlord and the shareholders agreeing that the landlord would pay the money to the grazing fund. The shareholders are entitled to waive their right to be compensated in a number of circumstances of which this is one. There would need, however, to be evidence of agreement. You could envisage instances of some shareholders in a township agreeing while others do not. In the absence of agreement, the clerk has to pay the money to the shareholders.
I am not sure of the relevance of your final paragraph. I had many clients when in practice and I remain bound by the requirements of client confidentiality. In addition, I was representing my client’s case always and never my own views.
Equally, you used to act for the Commission. Does that influence your views?
On consistency, in your posting ‘Crofting Commissioners do the Hokey Pokey’ you state “It will be good to see the Crofting Commission actually “delivering the express will of Parliament contained in crofting legislation”. The Commission seem to be delivering on that.
You are still missing the point.
The Crofting Commission have taken the stance that you cannot retain monies within a common grazings fund even when shareholders state they wish that to happen. They have been insisting upon all funds received by a Grazings Committee, for whatever purpose, being immediately distributed to individual shareholders and declared to HMRC as taxable income. The Grazings Committee should then apparently ask for the money back for specific purposes.
All shareholders in Mangersta Common Grazings – including the original complainant – have confirmed that they do not wish to receive individual shares of the money held by the former Grazings Committee. There is signed documentation to that effect. Yet the Crofting Commission still insist that monies held in the fund must be paid out to the shareholders who have mandated the retention thereof within the township account.
You state that “the shareholders are entitled to waive their right to be compensated in a number of circumstances”. Exactly, and that is the case here. You further state that “there would need, however, to be evidence of agreement”. Exactly, and that is the case here.
You clearly do not understand the actual facts involved. They are quite simply that shareholders want money retained not distributed and the Crofting Commission are saying they cannot do so, which stance by the Crofting Commission is contrary to and completely flouts the will of Parliament.
There is, unlike in your or the Commission’s communications, no inconsistency in my posts on this matter. You refer to my post ‘Crofting Commissioners do the Hokey Pokey’. That post stated that Colin Kennedy on being appointed Convener of the Crofting Commission stated:-
“I would like to thank the Commissioners for voting me in to the role of Convener. I am looking forward to working with the Board and staff in delivering the express will of Parliament contained in crofting legislation and effectively regulating crofting.”
“It will be good to see the Crofting Commission actually “delivering the express will of Parliament contained in crofting legislation”. In recent years they have been putting their own interpretation on crofting legislation which many have argued was not how Parliament intended it. Indeed the Scottish Land Court recently ruled the Commission’s interpretation in one particular case to be wrong and clarified for the Commission what Parliament actually intended.
“It is to be hoped that the Crofting Commission under Mr Kennedy’s stewardship will actually follow the express will of Parliament and no longer seek to interpret the Crofting Acts in weird and wonderful ways.”
Unfortunately, Lewis, my hope was not to be fulfilled. Instead the Crofting Commission, under Mr Kennedy’s stewardship, have been finding even weirder and more wonderful ways to misinterpret the Crofting Acts. They are certainly not delivering the express will of Parliament as is clear from my recent blog posts. On that point I have been and remain resolutely consistent.
Lord Kirkhill felt it necessary in the parliamentary debates to repeat his statement several times on the actual ability in law of shareholders to retain funds in a township account. I feel a bit like Lord Kirkhill when responding to you in that I have to repeat the same point (which you have actually in effect accepted) over again. It is not a point I intend to labour over with you any more. I have made it, the position is clear and you have in effect accepted it but still, for some unknown reason, seem to think the Crofting Commission is in the right. It may be that my most recent post on this blog applies to you too.
It is fanciful of you to suggest that I agree with you. It is a fruitless venture to try to make conclusions about the will of parliament on the basis of amendments that were withdrawn and not even put to the vote.
Also if you want to discuss particulars, an agreement requires a party and a counterparty. Setting aside that the existence of a complaint suggests that any agreement was not unanimous, Finlay Macleod’s published letter shows that the withdrawal of his request for payment occurred several months after the committee was dismissed. It did not exist as a counterparty. Not only that but the constable was exercising the functions of the committee and he would have needed to be a party. I have not heard it suggested that he did agree, but also he is entitled to disburse under any circumstances.
I think it would be a brave decision to ignore a constable on an at best debateable presumption that his appointment is invalid, particularly when the appointment was not appealed.
It is fruitless to argue with you when you simply ignore or brush over the points put to you. Rather like my experiences with the Crofting Commission come to think of it!
I find myself, yet again, having to repeat myself to you. I previously pointed out:-
“The House of Lords were debating a draft clause that was to become Section 9(4) of the Crofting Reform (Scotland) Act 1976 (now section 21(4)(a) and (b) of the Crofters (Scotland) Act 1993). The question was did this clause have to be amended to clarify that resumption monies could be retained within township funds. The answer was no because that was permissible by agreement on the part of the shareholders entitled to receive the resumption monies.”
Thus the will of Parliament on this issue is clear.
A clerk (or legally appointed constable in their place) has the duty to administer funds as instructed by the shareholders in the common grazings. The clerk (or legally appointed constable in their place) is not in a position to disagree with a mandate from those shareholders.
There is no requirement to appeal the appointment of a grazing constable who has no standing in law.
The Crofting Commission have now made a massive U-turn on the matter. They, in effect, accept that they got it wrong. I wonder if you will now do likewise?