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Crofting Commission dodge answering questions

Dodging Bullets at the Crofting Commission

The Crofting Commission can stop your questions by simply not answering them!

The Cross-Party Group on Crofting has been waiting patiently on answers to 18 questions that they posed to the Crofting Commission. These were originally sent to the Crofting Commission in July 2016 then modified and sent in October 2016.

Where in law it is stated that the Crofting Commission cannot revisit its own decisions?
Why did the Crofting Commission chose to remove three grazings committees instead of work with them to improve things, if things needed improvement?
Why were grazings shareholders not given the chance to elect a new committee when the Crofting Commission removed their committee, instead of moving straight to the appointment of a grazings constable?
Does a removed committee have a right of appeal to the Crofting Commission?
Where in law it is stated that the Crofting Commission has the power to appoint a Grazings Constable when they remove members of a grazing committee from office?
Where in law it is stated that the Crofting Commission can extend the appointment of a Grazings Constable?
Why is the Crofting Commission ignoring its own guidelines on the investigation of financial irregularities?
Does the Crofting Commission maintain that all funds in a grazings bank account have to be disbursed immediately (including SRDP grants, as Mr MacLennan stated is the bulk of funds in the CPGoC)?
If there are 3 levels of accounting as outlined by Mr MacLennan (examination by external qualified person such as local retired bank manager, prepared by qualified accountant on information supplied, full forensic audit), what are the thresholds at which each is required? Do they apply to balance or income? Who decides what is appropriate (given this was the reason Mr MacLennan gave for the Upper Coll grazings committee being removed by the Crofting Commission?)
Why did the convener of the Crofting Commission involve himself in every one of these three cases and committee removals? Is this the job of a convener?
Did the convener of the Crofting Commission declare his interest in the cases when the commissioners made their decision to move to removal?
Does the Crofting Commission consider value for public money when pursuing cases?
Mr MacLennan emphasised that the Crofting Commission were obliged to act as a shareholder had made a complaint. This does not square with the Commission’s dealings relating to other regulatory matters. We are aware of complaints made by shareholders with regard to absenteeism and neglect of crofts that go many years without commission action so it would be good to know why you are so diligent in pursuing grazings committees with such rigour. Has there been a policy change to target this type of regulatory issue (as there was previously with absentees)?
Following the letter written to the Convener by Fergus Ewing concerning disbursement of common grazings funds to shareholders and SRDP funding there were mixed messages issued to the press by Commissioners. It appeared that the contents of the letter was supported but the Commission (or perhaps certain Commissioners) still thought they had done nothing wrong. Those two statements do not sit well next to one another. Can the Commission clarify their actual stance on the letter in clear terms for the benefit of this Group.
Can the Commission explain why they have been questioning SRDP funding for and VAT Registration by Common Grazings?
The Commission appear to be supporting their ‘constable’ Colin Souter and his behaviour at Upper Coll. Do they actually support a ‘constable’ who is having meetings with 4 shareholders and making decisions affecting 42 shareholders when 26 out of those 42 have signed a petition calling for his removal?
Will the Commission advise the Group what remit was given to Constable Souter and why he appeared to be acting in an investigatory role rather than as an actual clerk.
The latest revelation appears to be matters being decided by Commissioners via ‘brown envelopes’ rather than at board meetings. Can the Commission enlighten us further on this?

There were, in addition, two questions specifically posed to the Crofting Commission via the Cross-Party Group on Crofting by Iain MacKinnon on 1 November 2016:-

I would like to draw your attention to a letter by Colin Kennedy published this month in the Scottish Farmer. In the letter he draws the Scottish Crofting Federation’s attention to ‘the commission mole’ at the time of the ‘Susan Walker debacle’. Presumably he is referring here to the anonymous commissioner quoted by the West Highland Free Press when information was leaked to the paper and other media outlets about a letter signed by five commissioners – including Mr Kennedy – calling a meeting to discuss a potential vote of no confidence in Ms Walker. Mr Kennedy told the Scottish Farmer this month:

‘I can assure the SCF that prior to my becoming convener, the mole was identified and the information was provided to the appropriate persons to take the matter forward.’

At the Cross Party Group on Crofting’s meeting on 15th September last year, Jean Urquhart asked Mr Kennedy about the leak to the press.

He was unable to give her an answer and did not identify any ‘mole’ on that occasion. However, the then chief executive of the organisation was able to respond and this is noted in the minutes as follows:

‘What is being done about the fact that there was a leak to the press from a commissioner, which is a breach of the code of conduct?

While a newspaper claimed their was leak by a Commissioner, as Accountable Officer the CEO has carried out an internal investigation which found no evidence that any Commissioner had breached the code of conduct by leaking information on the matter to the press.’

I would like to hear from the Commission’s representative at the meeting how they reconcile these two statements and to ask again, in light of Mr Kennedy’s claim: what is being done about the leak to the press; and who was the ‘mole’ as described by Mr Kennedy in his letter to The Scottish Farmer.

Six months after the first questions were put to the Crofting Commission their Interim Chief Executive, Bill Barron, addressed them at the Cross-Party Group meeting at Holyrood on 25 January 2017 by stating that he didn’t intend to answer them but would like, instead, “to focus on the future“. He wanted to “draw a line under the rows of last year“. He acknowledged that “things had been done wrong” but there was “no merit in unpicking all of that“.

Mr Barron may have missed the fact that some of the rows of last year continue into this one.

He stated:-

Some of the specific issues raised in your questions have already been clarified by the Commission. For example, we have confirmed that we agree with the Scottish Government’s position that there is nothing in the CAP rules that prevents the Scottish Government approving an SRDP application made by a grazings committee, and that we agree with the Scottish Government’s position regarding immediate disbursement of funds.

These, however, are two points that the Convener of the Crofting Commission, Colin Kennedy, still appears to be taking issue with and possibly still taking a contrary position on compared to his fellow commissioners and the official line of the Crofting Commission. This is all contrary to the doctrine of collective corporate responsibility. Indeed it is interesting to note that following the departure from the Crofting Commission of their former Convener, Susan Walker, Colin Kennedy, then Vice Convener, stated [PDF: Board Minutes – 13 May 2015]:-

I am sure that I speak on behalf of everyone when I say that today we are all equal with collective responsibility. In fact we are all Conveners, working together for the betterment of the Crofting Commission.

However, his publicly opposing views to that of the board clearly conflict with that statement.

The Guide for Board Members of Public Bodies in Scotland [PDF] states:-

While Board members must be ready to offer constructive challenge, they must also share collective responsibility for decisions taken by the Board as a whole. If they fundamentally disagree with the decision taken by the Board, they have the option of recording their disagreement in the minutes. However, ultimately, they must either accept and support the collective decision of the Board – or resign.

Colin Kennedy was not in attendance at the Cross-Party Group meeting on Wednesday night. He has only attended one meeting out of the five that have taken place since the start of the current Parliamentary term.

At the meeting in Holyrood on Wednesday night the Chair of the Scottish Crofting Federation, Russell Smith, asked Bill Barron if Colin Kennedy was still Convener and was still chairing Board meetings. Bill Barron answered both questions in the affirmative. Russell Smith then asked if the Board was working as it should to which Bill Barron replied “it is not easy but it is getting its work done“. How well, under the circumstances, it is getting its work done is, however, very debatable.

On the points raised by Ian MacKinnon the response from Bill Barron was:-

The same [i.e. not answering the questions] holds for Iain MacKinnon’s questions about a leak to the press, which was investigated by the previous CEO in 2015. Colin Kennedy’s more recent public comments about this appear to have been made in a personal capacity, but I can confirm that the Commission has no plans to re-examine this matter. Instead, my priority is to look forward to the upcoming elections and to prepare to give the best possible support to the new Board.

So it is all about looking forward and not looking back. However, you sometimes have to look back to learn from your mistakes before you can move forward and avoid making the same mistakes again.

Perhaps the Scottish Government’s review into the governance of the Crofting Commission will reflect more on the mistakes of the past and what needs to be done to prevent a recurrence of them. The Cross-Party Group on Crofting was advised on Wednesday by Gordon Jackson, Head of Rural Business Development and Land Tenure at the Scottish Government, that this review will be published “shortly“.

Brian Inkster

Image Credit: The Matrix Reloaded © Village Roadshow Pictures, Silver Pictures and NPV Entertainment

Crofting Commission appointments and unfinished business?

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The Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, has announced the appointment of Malcolm Mathieson as a Commissioner of the Crofting Commission Board from 1 January 2017. He also announced the reappointment of David Campbell as a Commissioner of the Crofting Commission Board from 1 April 2017.

The official Scottish Government press release reads:-

Appointments

Malcolm Mathieson is by profession an accountant who has held senior Finance and Managing Director positions within various global organisations. He is senior partner in Moy Farm, an 1800 acre hill farm in Lochaber and a Director of Lochaber Lodges which he set up in 2009 as part of the farming diversification of Moy Farm. Mr Mathieson has a specific interest in the financial viability of farming in less favoured areas.

Reappointment

David Campbell’s reappointment introduces a degree of continuity between the current Crofting Commission Board and the new Board which will be in place following the Crofting Commission elections in March 2017. He has a wide experience of crofting matters with a solid grasp of crofting’s cultural, social and economic benefits, and how these are underpinned by effective regulation. Mr Campbell has a strong connection to crofting traditions with an equally able understanding of how crofting system of land tenure plays a significant role in population retention.

Length of Terms and Remuneration

Mr Mathieson’s appointment is for three years and runs from 1 January 2017 until 31 December 2019.

Mr Campbell’s appointment is for three years and will run from 1 April 2017 until 31 March 2020. His appointment fulfils the requirement for there to be a Crofting Commissioner to represent the interest of landlords of crofts.

Both appointments are part time and attract remuneration of £161.29 per day for a time commitment of around 4.5 days per month.

The appointment and reappointment are regulated by the Commissioner for Ethical Standards in Public Life in Scotland.

Bill Barron, Interim Chief Executive of the Crofting Commission, said:-

We look forward to working with Malcolm, his experience and knowledge of finance and governance will be of great value to the Commission over the coming years.

Commissioner Campbell has provided an important contribution to the Board with his experience of crofting matters and understanding of the interests of landlords of crofts. His reappointment will provide crucial continuity to the Board ahead of the crofting elections in March 2017.

The Scottish Government press release also revealed that:-

One further Commissioner appointment will be made in due course.

It appears odd that this appointment was not also announced at the same time as the appointment of Malcolm Mathieson given that the two vacancies were advertised at the same time and presumably the selection process carried out at the same time. Given all the problems that exist within the Crofting Commission it is an appointment that the Scottish Government can ill afford to delay any further.

It was interesting to see the Scottish Government press release state that:-

The Convener is appointed from among Commission members.

Whilst the current convener was so appointed it is of course within the power of Scottish Ministers to make the appointment rather than delegate that function to commissioners. It will be interesting to see the approach taken on this by Fergus Ewing MSP following the next Crofting Commission elections.

The current convener, Colin Kennedy, was back in the limelight this week speaking to The Scottish Farmer. He told them:-

I am standing again for election as I believe the job I started in 2012 is not completed.

I have been given overwhelming support from crofters across the crofting counties over the past four months, who recognise the commission requires people who are not afraid to take the decisions which the law provides for, rather than the decisions which certain individuals desire.

It is my paramount desire to ensure fair and equal treatment of all crofters regardless of where they reside. I am aware the board have been informed by a commissioner on several occasions ‘you don’t understand, crofting is different in our area’, which may be the case – and should it be that the Scottish Government have made special arrangements for that area, then it is only fair that crofters in all counties are afforded equality.

The board provides leadership, direction, support and guidance to make sure the commission does its job properly in line with the law. This is what I have tried to do and intend to continue to do should I be re-elected.

Also of extreme importance to every crofter is an explanation as to why the executive requested certain papers be destroyed, and why those vast documents were not on the commission system when a freedom of information request was received.

Who produced those papers which were then provided to both the commission committee and the full board with a list of options on how to dispose of such cases remains a mystery requiring answers. And why was the minute of the board dated September 15, 2015, in relation to those papers not implemented, together with numerous other minutes which were not implemented.

I am not sure where this “overwhelming support” is coming from. It has not been evidenced as far as I can see. On the contrary we have had crofters and crofter representatives seeking his resignation or dismissal.

With regard to “fair and equal treatment” Mr Kennedy has perhaps forgotten that the Commission’s removal from office of the Upper Coll Common Grazings Committee because they did not produce five years of audited accounts contradicted the position previously taken by the Commission. Their former convener, Susan Walker, had stated to another grazings committee that based on legal advice received by the Commission “reference to audit in the Grazings Regulations is not a specific statutory requirement”.

This is one of many examples of the Crofting Commission contradicting itself and not taking a uniform approach to the application of the law.

Also many would dispute that there has been “fair treatment” to crofters in Lewis and Lochaber over the past year.

There is little doubt in many observers eyes that the Commission has certainly not done “its job properly in line with the law” in recent times. If that is what Mr Kennedy has really tried to do it is something he appears, unfortunately, to have failed in.

It is not surprising to hear about the destruction of documents within the Crofting Commission. Mr Kennedy’s own guidelines on disbursement of funds by grazings committees was of course deleted from the Crofting Commission website as though it had never existed. Perhaps the missing documents Mr Kennedy refers to are the ones that were found by commissioners in the secret brown envelopes? However, the cryptic nature of the references by Mr Kennedy to these papers leaves more questions than answers. Perhaps he should arrange a special meeting of the board to be held in public to air fully any such matters that are “of extreme importance to every crofter“?

Brian Inkster

The Scottish Farmer adds balance to the tales of the Upper Coll ‘Constable’

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Last week I commented on how the letter from Colin Souter, the Grazings ‘Constable’ at Upper Coll, to shareholders was no ‘gamechanger’.

This week The Scottish Farmer has redressed the balance by publishing the views of the majority of shareholders at Upper Coll which counter the allegations made by Colin Souter against them.

They also published a letter from me on the topic which they asked me to edit down in size prior to publication. I will reproduce here the longer version that I originally supplied them with:-

Sir – I was somewhat bemused by the headline in last week’s Scottish Farmer. The letter from Colin Souter, the grazings ‘constable’ appointed by the Crofting Commission, to shareholders at Upper Coll Common Grazings is certainly no ‘gamechanger’.

Had your reporter sought to verify this sensationalist piece of propaganda via the former committee members at Upper Coll or myself he would have received a very different take on it.

Firstly, it should be made clear that many consider Mr Souter’s appointment as a grazings constable to be illegal. Donald Rennie explained clearly and in detail why in a letter published by you some weeks ago. It subsequently transpired that a report produced to the board of the Crofting Commission by their Chief Executive, Catriona Maclean, made it clear that grazings constables could not be legally appointed where a grazings committee is removed from office by the Commission. It would therefore appear that the board of the Crofting Commission acted contrary to legal advice given to them and appointed a ‘constable’ who has no standing in law.

Also, even if Colin Souter had been appointed legally as a grazings constable that role is not (despite the name) in law an investigative one but one that simply takes on the duties of day to day management of the common grazings on behalf of and in the interests of the shareholders.

Colin Souter, a retired police chief inspector, seems to be under the misapprehension that he has been brought out of retirement to utilise his police skills. He even states on his LinkedIn profile that he is “engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity”. He has no remit of the kind and if he has actually been given such a remit then serious questions should be asked regarding the conduct of the Crofting Commission over and above the fact that, in the first place, they knowingly appointed him when they knew that legally they couldn’t.

It appears that the Crofting Commission are on a fishing expedition. They removed from office the former committee at Upper Coll purely on the basis that they had produced 5 years of financial statements prepared by an accountant rather than 5 years of “audited” accounts as unfairly and unjustifiably demanded by the Commission. This was met by overwhelming incredulity on the part of onlookers. Now the Commission are seeking to justify their actions on other grounds. They have sent in a former police inspector to find something, anything, to make everything alright again for them.

Colin Souter appears to have carried out the bidding of his masters. He has trawled through records of the Upper Coll Common Grazings going back to 2008 if not before looking for misdemeanours. This is well out with the 5 year ‘audit’ period the Crofting Commission initially concerned itself with.

Colin Souter has compiled a list but that list is of no significance. Some of it is petty in the extreme such as highlighting one typographical error on the part of the accountants instructed by the former committee in the financial statements that the Commission had not even been willing to look at. He has claimed that monies were contributed to upgrading a road in 2008 when this is denied by shareholders and even if it were true so what? He decries the spending of £520 on feu design work to allow crofting families in the township to remain in the township by allocating to them house sites on land that was not much use for grazing purposes. Any costs associated with that would be more than recouped when house sites were sold and compensation on resumption received. He does not understand that.

What Colin Souter also does not appear to understand is that a new grazings committee is elected every three years. Most of his accusations relate to the activities of the committee of 2008/09. There have been a further three committees elected since then. Even if what the grazings committee of 2008/09 did was wrong (and there is no evidence to suggest that it was) it does not justify the Crofting Commission removing from office a committee only elected in 2015.

Colin Souter claims there is nothing in the Crofters (Scotland) Act 1993 that permits shareholders funds to be used to pay solicitors. What nonsense. A right for crofters to instruct lawyers does not need to be contained in tablets of stone within the Crofting Acts. It is a fundamental human right. Try the Magna Carta for starters.

It is also of course rather ironic that a grazing ‘constable’ whose legality has been questioned from the outset is stating left, right and centre what he considers the law to be and how he considers former committees to have breached it. Presumably in circumstances where he has not actually sought legal advice on such pronouncements because he doesn’t consider expenditure on legal advice by a grazings committee to be legal!

The situation with the grazings ‘constable’ at Upper Coll has become farcical. I will be expressing my concerns to Fergus Ewing MSP, as cabinet secretary responsible for crofting, about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

Brian Inkster

The Wrong Grazings Committee!

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Eh by gum, Gromit, no one told me that they appointed a new grazings committee every three years! Pass the cheese please.

It was reported in The Scottish Farmer this week that:-

New evidence has been revealed that appears to justify the Crofting Commission’s unpopular intervention in the financial affairs of a common grazings committee.

This ‘evidence’ was presented in a letter to shareholders in the Upper Coll Common Grazings by the grazings ‘constable’ Colin Souter. A grazings ‘constable’ illegally appointed in my view, and in the view of others including, ironically, the Crofting Commission themselves.

Many of the allegations made by Mr Souter actually, it transpires, relate to decisions made by shareholders when previous grazings committees were in power. Not the latest one which the Crofting Commission summarily removed from office for producing five years of financial statements prepared by an accountant rather than five years of “audited” accounts as demanded unfairly by the Commission.

Actions by past grazings committees cannot be used as evidence to justify the removal from office of a grazings committee that had no part in those actions.

Indeed it would appear that Mr Souter has been spending his time (and presumably as a result the shareholders money) trawling through the history of Upper Coll Common Grazings attempting to find fault wherever he can. His efforts in this regard go way back before the five year ‘audit’ period sought by the Crofting Commission.

Indeed the two main issues highlighted in the report by The Scottish Farmer date back to 2008/09. There have been three new grazings committees at Upper Coll since then!

Gordon Davidson reports in The Scottish Farmer:-

Top of his list was an application lodged with Comhairle Nan Eilean Siar seeking a grant under their Unadopted Road Upgrade Scheme, seeking £10,000 of matched funding to be spent on upgrading the landlord’s Ghearraidh Ghuirm private road.

In doing so, the former committee undertook to spend £20,000, including the CNES grant, of shareholders’ money on upgrading this section of road and also accepted the subsequent road maintenance obligation, in perpetuity – a decision of clear benefit to prospective few [sic – should have been “feu”] buyers, but with no apparent link to the maintenance or improvement of the common grazing.

“Thus, the spending of shareholders’ money in this way, was outwith the power of the committee at that time, meaning they acted outside of the law and the legal protection normally afforded,” noted Mr Souter.

This is what certain shareholders at Upper Coll have to say about this particular matter in a letter issued to shareholders in response to the one issued by Mr Souter:-

He accuses the then Grazings Committee of match funding the improvements to the Gearraidh Ghuirm Road behind Donald Campbell’s Garage. This is grossly untrue. The village did not put any money into this. The Councillors then in office helped facilitate the financial match funding from sources including contributions from residents. The village used some of this money to repair the road going out to the quarry, which in fact was an aid to the shareholders using the quarry and the peat-road! This was in 2008!!

Gordon Davidson also reports in The Scottish Farmer that Colin Souter:-

also found that the former committee had, in 2008/09 sought to earmark areas of common grazings land to be sold off as housing plots, and paid for the feu design work out of shareholders’ grazing funds, again acting outside of the law.

I asked shareholders at Upper Coll about this and was told that it was to allow crofting families in the township to remain in the township by allocating to them house sites on land that was not much use for grazing purposes. Any costs associated with that would be more than recouped when house sites were sold and compensation on resumption received.

Indeed consent to the sale of one such house site was raised as an agenda item at the meeting in November 2015 attended by the Crofting Commission, including Convener Colin Kennedy. This was approved at that meeting by the shareholders present. Of course the resumption application would be advertised in due course giving all and every shareholder the right to object should they wish to do so.

The house site under debate in November 2015 was, rather ironically, allocated to a relation of Ivor Matheson who brought the original complaint against the grazings committee and was so vocal in this week’s Scottish Farmer in support of the actions of Colin Souter which suggest this enterprising initiative on the part of the 2008/09 grazings committee to have been unlawful!

Ultimately shareholder funds are there to be utilised as shareholders want them to be. If all shareholders are happy to divert funds into a scheme on the common grazings that will result in benefit to members of the shareholders families, strengthen the crofting community and ultimately give a financial return what is wrong with that?

I do not believe that even Ivor Matheson would be looking for repayment of his share of the £520 (i.e. £12.38) spent on the feu design work given the benefit that small payment has had to his family.

It is clear that Mr Souter is making assumptions left, right and centre without appraising himself of the true facts. He is meddling in matters that are of no concern of his. He appears to have a goal, possibly at the behest of the master(s) who appointed him, to find fault with the former committee to justify his existence. He forgets he was illegally appointed and, like the Crofting Commission, has not been able to justify with reference to statute or case law the validity of his appointment. He forgets that grazings committees are appointed every three years and he cannot point the finger of blame at the last committee for the actions of their predecessors.

Ultimately, however, Mr Souter has produced a list of petty ‘faults’ most of which can be dismissed out of hand. He has certainly failed to produce the ‘gamechanger‘ that his master(s) may have wished him to find but that he had no remit to ever look for in the first place.

It should also be borne in mind that the initial action by the Crofting Commission against the former grazings committee at Upper Coll that ultimately resulted in the ‘appointment’ of Mr Souter centred around their misinterpretation of the law. A misinterpretation that the Commission have been reprimanded for by Fergus Ewing MSP and apparently has been accepted as such by them.

It has become a farce (although arguably has been for some time). Mr Souter and his master(s) look more ridiculous by the day over their handling of this whole sorry affair. In the process it is not reflecting well on the Scottish Government who have overarching responsibility for crofting.

In the letter of ‘appointment’ from the Crofting Commission addressed to Mr Souter it is stated:-

The appointment is for 6 months from the date of the Order. However the intention is that this should be a short term measure and once any outstanding actions are discharged, that you arrange a meeting of shareholders at which you will resign and a new committee will be elected by the shareholders to manage the grazings in accordance with the Regulations and the Act.

So the Crofting Commission saw the ‘appointment’ as short term and possibly expected it to have come to an end by now. Mr Souter’s duty was “to discharge any outstanding actions“. It is unclear whether he has in fact even applied himself to such a task and I will look at that in a further blog post. He appears, on the face of it, to have concentrated on a forensic examination of the history of Upper Coll Common Grazings. Something that he had no remit to do even if he had been legally appointed as a grazings constable.

The majority of shareholders at Upper Coll who attended a meeting convened for that purpose (there being no dissenters) have made it clear that they want nothing more to do with Mr Souter. They want to form a new grazings committee.

Mr Souter should respect the wishes of the shareholders who he supposedly represents. He should now do the honourable thing and ‘resign’ from his role as grazings ‘constable’ without further delay. He does not actually need to arrange a meeting of shareholders to do so, he can simply send them a letter or advise the Crofting Commission of his decision to do so and let them advise the shareholders accordingly.

This is what the similarly illegally appointed grazings constable at Mangersta Common Grazings saw fit to sensibly do.

Although arguably Colin Souter cannot resign from an illegal position that gives him no status or authority in the first place.

But the ‘resignation’ (as was the case in Mangersta) may have symbolic significance. It may at least draw a line under his interference in the workings of a common grazings where the vast majority of the shareholders simply wish to get on by themselves with controlling their own destiny and their own finances. They want to do so for the benefit of a community that Mr Souter and his master(s) appear intent on destroying.

Brian Inkster

Image Credit: Wallace & Gromit in The Wrong Trousers © Aardman Animations

Croft Wars: Return of the Committee

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“Remember, a crofter’s strength flows from the croft. But beware. Anger, fear, aggression. The dark side are they. Once you start down the dark path, forever will it dominate your destiny.”

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.

Brian Inkster

Image Credit: Star Wars: Episode VI – Return of the Jedi © Lucasfilm Ltd

Reports from a ‘Grazing Constable’

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The ‘Grazings Constable’ was under the false impression that he was a Police Constable come Court Reporter!

One of the more surprising episodes of ‘The Common Clearances‘ has been the issuing of press releases by the ‘Grazing Constable’ (illegally appointed, in my opinion and the opinion of others) of the Upper Coll Common Grazings.

To my knowledge that ‘Grazings Constable’, Colin Souter, has issued three such press releases to date. I now reproduce those here, with my comments on each added.

‘Grazing Constable’ Report #1 – 12 June 2016

I write briefly in connection with the Common Grazings at Upper Coll, having been appointed as Constable in recent weeks, by the Crofting Commission.

I should firstly stress such appointees are independent of the Commission. One of the main functions is to assume the role and responsibilities of the former Committee, representing the interests of the Crofters, whilst moving as swiftly as possible back to a situation of normality, with crofters being collectively in control of managing their own interests.

I am confident readers will appreciate the resolution to current difficulties will not be achieved overnight. I note there has been much interest, speculation and comment made on behalf of individuals who, I acknowledge, feel genuinely aggrieved with decisions the Commission has made.

On the other hand, it is only right and proper that the Commission, as a public body, should not comment on the specifics of any individual case.

Preliminary legal proceedings are currently underway at the Scottish Land Court, where it remains to be decided if the Appeal against Commission decisions will progress to the next stage. An Interim Interdict application at Inverness Sheriff Court to prevent the appointment of a Constable and further action by the Commission, was heard and refused.

It is likely that the process of the Land Court Appeal, if progressed, will take some considerable time to conclude. I will not be formally commenting in the media on the specifics of matters at Upper Coll, nor in relation to any single individual.

I do however wish to publicly acknowledge and thank those individuals at Upper Coll and elsewhere who have already contacted me since my appointment, to firstly share a collective view that there are matters at Upper Coll which need to be addressed and secondly to voice their support for a co-operative resolution over the coming weeks and months. All impartial observers must surely agree it is in the best interests of all parties to co-operate, to ensure the interests of all the crofters at Upper Coll are and continue to be properly protected.

Comment on ‘Grazing Constable’ Report #1by the Crofting Law Blog

Why, I wonder, did Colin Souter feel it necessary to issue such a statement? Was it because the Crofting Commission were staying silent on the matter? Did they sanction/encourage this statement?

How independent can Colin Souter really be? Did the Crofting Commission not provide him with a list of their ‘concerns’ for his investigation?

He has apparently stated to the shareholders at Upper Coll that his role is an investigative one. Nothing in the Crofters (Scotland) Act 1993 gives him such power other than, perhaps, the duty to report to the Crofting Commission on the condition of the Common Grazings and crofts with a share in the Common Grazings.

If investigations were required concerning any alleged financial impropriety on the part of the former grazings committee that would have been a role for the actual boys in blue and not for a retired police Chief Inspector who appears to think he, once more, has powers he once did. He does not.

If legally appointed, which is disputed, Colin Souter simply has to take on the role of committee and clerk. He is responsible to the shareholders. His role is purely administrative.

‘Grazing Constable’ Report #2 – 23 June 2016

On the evening of 22 June the Constable of the Upper Coll Common Grazings chaired a meeting of shareholders at Tong Village Hall. The meeting, which was well attended, discussed a number of issues and during the closed part of the meeting, the Constable, Mr Colin Souter shared a level of detail around issues and concerns which was clearly unknown to many of those present, prior to the meeting.

Mr Souter, a retired police Chief Inspector explained to the meeting that his appointment followed a communication to the Commission by the former Clerk to the Grazing, highlighting that 12 points of business needed to be addressed as soon as possible.

Mr Souter also explained that the Crofting Commission, as a public body, is unable to comment in the media on issues relating to specific individuals and their conduct but that being independent of the Commission, it was appropriate for him to share more information with the shareholders affected. At the meeting, he received further joint intimation in writing from Upper Coll shareholders, of their dissatisfaction with the conduct of the former Committee and will determine in due course whether that should be considered separately from other matters currently under investigation.

The meeting acknowledged the current position as laid out and discussed a constructive way forward, with a revised set of draft local Grazing Regulations being circulated by the Constable to all shareholders at Upper Coll to replace the current Regulations which date back to 1987. Mr Souter is also inviting contributions and comment more widely, from the Scottish Crofting Federation and National Farmers Union Scotland, as representative bodies, in an effort to secure a wide consensus of agreement. He intimated to the meeting that he was, very reluctantly, being forced to consider Court action as a last resort, in order to recover the Committee records from the former Grazings Clerk. A large number of those shareholders present expressed the view that withholding the records was not helping, declaring that it was acting against the interests of the shareholders and instead invited former Committee members to bear the cost of the Court action, should it go ahead.

The meeting closed on a positive note with an expression of thanks to Mr Souter, from the floor, for an open, informative and well-run meeting.

Mr Souter later said, “I appreciate there is a wide body of interest in events here at Upper Coll. I would like to publicly express my own thanks and appreciation to Upper Coll shareholders able to attend the meeting tonight, for their positive contributions and their willingness to begin moving forward to the point where a new Grazing Committee can be elected. Whilst that outcome is still in the distance, it has moved significantly closer, with a clearer path now defined, and shareholders having a better understanding of the concerns and the issues which brought us to where we are now.”

Note to Editor – the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders. On 16 May, some former committee members made an unsuccessful attempt to interdict the Crofting Commission from further action at Upper Coll. This was followed by submission of papers to the Scottish Land Court, seeking to Appeal against the Commission’s decision to remove them from office. The Land Court is currently awaiting submissions on jurisdiction from both sides, to help determine whether it can hear the Appeal. If the jurisdiction argument is won, the case will become sub judice until eventually concluded.

Comment on ‘Grazing Constable’ Report #2 by the Crofting Law Blog

I wonder if Mr Souter thinks that all grazings clerks should be issuing press releases about shareholders meetings held throughout the crofting counties? Local newspapers could have sections devoted to ‘Common Grazings Reports’ instead of, or in addition to, their usual ‘Court Reports’!

Where did the “issues and concerns” that Mr Souter had to share come from? I trust not from the Crofting Commission that he is apparently independent of?

Interesting that the Crofting Commission cannot comment on matters arising to the media but Mr Souter can. Has he therefore become their spokesman and if so how does that enable him to retain the supposed independence that he claims to have?

Mr Souter refers to “matters currently under investigation”. As commented on by me in connection with his first Report, his role is not an investigative one but merely an administrative one and then only if his appointment was legal which I, and others, maintain it is not.

Why was Mr Souter circulating new Grazings Regulations and who had drafted them and on what basis?

It would seem unusual for a Grazings Clerk to seek views from the Scottish Crofting Federation or the National Farmers Union Scotland on Grazings Regulations specific to a particular grazings.

Court action by a potentially illegally appointed ‘Grazings Constable’ to recover documentation he might have no right to hold would have made for interesting debate in the Sheriff Court! A suggestion that those against whom such an action was to be raised should fund the raising of the action is absurd to say the least.

Why is the election of a new Grazings Committee in the distance? What is preventing that happening sooner rather than later?

Is it perhaps in Mr Souter’s personal interest to delay the election of a new Grazings Committee. The longer he remains in ‘office‘ the longer he receives an income from the arrangement – albeit potentially an illegal arrangement that he should not actually be receiving a penny for.

Mr Souter states that “the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders.”

However, the only reason actually given by the Crofting Commission for the ultimate removal from office of the grazings committee was the failure to produce to them five years ‘audited’ accounts. The grazings committee produced financial statements produced by accountants. The irrationality, inconsistency and departure from legal advice obtained by the Crofting Commission on this point is one I will return to in future posts on this blog.

‘Grazing Constable’ Report #3 – 12 July 2016

Upper Coll shareholders met again on 11 July at a meeting chaired by the Grazings Constable, Colin Souter, who was appointed by the Crofting Commission in May. At this second meeting, shareholders covered a busy Agenda on a range of topics, including the resolution of a long-standing issue on the access of a bull owned by two shareholders, on the common grazings. Shareholders accepted the pragmatic resolution suggested by the Constable, which preserves shareholders rights to graze livestock but at the same time, acknowledges the responsibilities that go with these rights.

Shareholders also voted in favour of a revised set of Grazing Regulations which would encompass key elements of the previous regulations which dated back to 1987. Mr Souter hoped the final draft of the document which had already been subject to wide-ranging consultation would be ready to send to the Crofting Commission for approval, in the next few weeks. During a candid and honest discussion, some of those present, including former Committee members advised they had been entirely unaware of the existence of the 1987 Regulations.

After the meeting, Mr Souter said, “The key to progress here is an acceptance from shareholders that good Regulations make it easier for shareholders and for Committees to interact and minimise the potential for friction or conflict. We are nearly there, in terms of a finished product and whilst there are still a number of other issues for me to resolve with shareholders, we are steadily moving in the right direction. I am grateful for the support shown by shareholders this evening, in voting to move ahead.”

A number of other issues, including finances and areas of activity permissible for a Grazings Committee or Constable on behalf of shareholders, under the 1993 Crofting Act were explored in a closed session. No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

ends

Note – Mr Souter is a retired police Chief Inspector, appointed to the role of Constable at Upper Coll after the previous Committee were removed from office by the Crofting Commission. Following their removal, it was reported to the Commission that shareholder business remained outstanding and unresolved. Whilst he is appointed by the Commission, Mr Souter has successfully gained acceptance that he is independent of the Commission in all his decision-making.

Comment on ‘Grazing Constable’ Report #3 by the Crofting Law Blog

I asked shareholders of the Upper Coll Common Grazings for their views on this latest Report from Colin Souter. Here is a selection of comments received from them:-

The new regs would certainly have to come before shareholders again before being submitted. There will be nothing to stop us bringing in further changes at a full meeting of shareholders at a later date if that is needed.
The Grazings Regulations are at the “discussion” stage and still have much work to be done on them. There was no revised Regulations issued with no mention of changes some of us suggested. They are far from being at a stage for presenting to the Commission.
The constable has thus far refused to protect the interests of shareholders by bringing any scrutiny to bear on the Commission’s own dubious actions of the recent past. This goes to prove that he is not wholly independent of the Commission and shows that he who pays the piper calls the tune.
The majority of shareholders are still of the view that the position of Constable has been illegally imposed on the Upper Coll Grazings. These shareholders do not have any personal prejudice against Mr Souter but it is his position they question.
Shareholders were of the view that the Constable should be working “for” the shareholders and should therefore be working to see that some of the injustices done to the previous Committee are redressed. As he seems to be investigating the work of the previous committee then this “investigative” role should also be targeted at the Crofting Commission’s actions.
The minute of meeting of the 11th should also clearly show that we considered that the Commission had erred greatly in dismissing a democratically elected voluntary committee when they had legal obligations instead to advice and support it in the first instance. We suggested that this is going to be costly to the Commission.
The meaning of “audit” given by the Constable is not one shared by the vast majority of shareholders.
It is felt by the majority of shareholders that the term “financial irregularities” used by the Commission in relation to the Upper Coll Grazings Committee should be withdrawn and an apology issued to the committee by the Commission.
Mr Kennedy’s continued presence as Convenor of the Crofting Commission is in the opinion of the majority of shareholders untenable.

So clearly a different slant on things from the propaganda issued by the ‘Grazings Constable’. This demonstrates the nonsense of the whole situation.

Why is Colin Souter seeking to introduce new regulations? What is wrong with the existing ones other than perhaps the use of the word “audit”, which has caused much of the problems encountered by the former committee in their dealings with the Crofting Commission?

The former grazings committee were actually in the process of amending their regulations prior to being removed from office by the Crofting Commission. Why did the Crofting Commission not allow them to amend the regulations as they wished to do so?

Are the Crofting Commission influencing the new regulations proposed by Colin Souter? Do these new regulations follow the latest template promoted by the Crofting Commission which do not actually reflect the law as set out in the Crofters (Scotland) Act 1993?

Mr Souter refers to his “decision making”. What ability does he actually have to take decisions that are contrary to the wishes of the shareholders?

Mr Souter states:-

No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

This suggests that Mr Souter is going to finalise the draft Grazings Regulations without necessarily calling a meeting to approve them. He appears to simply be planning to get the approval of the Crofting Commission. If this is indeed the case it is outrageous.

However, it should always be borne in mind that Mr Souter’s appointment was, in my view and the view of others, illegal and any action taken by him is simply null and void.

Brian Inkster

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

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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

Oh yes you did!

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The whole truth and nothing but the truth?

On Monday of this week the Chief Executive of the Crofting Commission, Catriona Maclean, published an open letter. It reads:-

There has been much said recently about the Crofting Commission and its actions, in particular in relation to common grazings. As the regulator for crofting we cannot comment on specific cases but it is clear that there have been a number of issues raised which many people have expressed concern over and the full circumstances of why action was necessary is not yet in the public domain.

I think it is important to say that the Commission is not on a campaign to review the functioning of every grazings committee. Be assured, we do understand that most of the nearly 500 grazings committees across the crofting counties are working well, and will continue to do so, helping to safeguard this important community asset. This situation has identified the passion and value that crofters, and those who represent them, put on common grazing land. The Commission shares that passion and value and it is good to see its management and potential being discussed openly.

It is also important to emphasise that the Commission has never said “every grazings committee must carry out a full audit of their accounts” or that “without question all grazings committee must distribute every penny of money to all shareholders and that no money can be retained”. This view has been advanced by others, not the Commission.

We are the regulator of crofting and we must represent the interest of all 15,388 crofters, the majority of whom share in common grazings and when they express concerns we have a duty to investigate. In most cases these matters are resolved by mutual agreement. Putting a committee out of office is not a step taken lightly by the Commission and only occurs rarely and after protracted discussion and investigation.

The way the Crofters (Scotland Act) 1993 (as amended) states that common grazings should be managed represents true democracy at its most local level. It requires the committees, who are appointed by the shareholders to represent them, to discuss plans with the shareholders and to get their approval for improvements. This ensures that shareholders share both the costs incurred and any benefit or dividend that results. All the more reason to see grazings being managed well.

Indeed, the Commission has had support from within crofting communities for being willing to grasp the nettle and be an effective regulator, taking the position that grazings should be properly managed.

Some have expressed concern over crofters who are absent, possibly blocking improvements or failing to pay for maintenance. I would like to assure crofters that there are remedies available within the current law. The Landlord has the right to make an application to the Scottish Land Court to terminate the tenancy where a person is in breach of their statutory conditions as, following a much more complex process, can the Commission. Even if that does not happen should a shareholder fail to contribute to costs the Commission can, when asked to intervene, act as arbiter and has the power to suspend and ultimately terminate a share and reallocate it to others. This would result in shares coming into the hands of active crofters, willing to pay their dues.

People have said “why should an absentee get anything at all?” The current Act does not differentiate between shareholders who are resident and non-resident and therefore, neither can the Commission. This is for legislators to address when next reviewing crofting legislation. Equally there has been speculation about the interpretation of the Act. The Commission is confident they are applying the law correctly but the only place this can be clarified is in the Scottish Land Court.

I would like to reassure committees and shareholders that we are preparing more best-practice guidance for them and, once we have discussed this guidance with our crofting partners, we will make it available to all grazings committees, shareholders and crofters. In the meantime, Commission staff are on hand to support and provide guidance to crofters, grazings clerks and grazings committees. More information can be found on our website (www.crofting.scotland.gov.uk). In addition we will be running an information session on common grazings at our local crofting meetings to be held across the crofting counties later in the year.

As Chief Executive of the Commission I have a genuine interest in the crofting system. Partly because I have been involved in its administration one way or another for over 20 years, but even more so because – as a daughter of the croft – it is in my psyche and in my heart. I know how it benefits people and I am committed to seeing the system flourish.

What is important to both myself and Commissioners is that we work together with others to secure the future of the crofting system that we all value. I sincerely hope that those who have either engaged in this debate or have been reading along with it, will continue to engage in a discussion about what that future will look like and make sure that decision makers hear those views.

For those who feel passionate about the Commission and how it operates – then why not take the chance to be part of it by standing for election when these take place early next year? This would provide you with the opportunity to be at the heart of shaping the future Crofting Commission to ensure that it, and the crofting system, is the way you want it to be.

What I would highlight, in particular, from this letter is Catriona Maclean’s adamant statement that the Commission has never said “without question all grazings committee must distribute every penny of money to all shareholders and that no money can be retained”. Oh yes they did!

The Crofting Commission have deleted from their website guidance issued by their Convener, Colin Kennedy, on 25 April 2016. That guidance included the following statement:-

As trustees any money received by the committee belongs to the shareholders and
should be distributed to them as soon as is reasonably practicable. It is NOT the
township’s or the committee’s money and as such it is the duty of the Grazings Clerk
to distribute any money received from whatever source, but in particular
resumptions, according to each individual shareholder’s share entitlement whether or
not they are active crofters.

When the Grazings Committee require monies to maintain the common Grazings
and the fixed equipment or to carry out works for improvements, the committee must
levy and recover the required monies directly from the shareholders for onward
payment to any third parties.

William Swann, who has since resigned as a Commissioner, also reiterated this same stance on behalf of the Crofting Commission when he chaired a meeting that the Crofting Commission held with the shareholders in the Mangersta Common Grazings. It was reported at the time that:-

Commissioner William Swann, who presided over the meeting, made it clear that under the Crofting Reform Act of 1993 any money that comes into the village must be distributed among all the shareholders – including absentees. Any improvement works then needing to be carried out must be financed through a levy charged on the same shareholders.

The Crofting Commission’s attempt at the eleventh hour to change their tune in this way through historical revisionism does them no credit. An apology and an admission that they got it wrong might have.

Brian Inkster

Abuse of power within the Crofting Commission?

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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