Tag Archives: Brian Wilson

Review highlights “notable and worrying failures” in governance within the Crofting Commission

Rural Economy Secretary, Fergus Ewing, has asked the Crofting Commission to take urgent action to improve performance in crucial areas following the publication of the Governance Review [PDF] undertaken on the instruction of the Scottish Government by business advisors and accountancy firm Scott-Moncrieff.

The Scottish Government ordered the Governance Review of the Crofting Commission following the crisis of confidence in the organisation due to the inappropriate actions taken on common grazings committees and the subsequent breakdown of relationships within the Commission.

A full action plan including prioritising work to deliver the necessary improvements in the way regulatory cases and Board proceedings are managed will be delivered in response to the findings of the Governance Review.

The Crofting Commission Governance Review highlighted a range of areas that need urgent action including:-

  • Governance standards, procedures and other arrangements, at both executive and non-executive levels, to underpin effective decision-making, particularly in relation to the Bohuntin, Upper Coll and Mangersta Common Grazings cases [Note: The review did not look at the regulatory decisions themselves]
  • Arrangements for handling conflicts of interest
  • Ensuring that capacity building and development needs of Board members are met and that the necessary training is provided.

Rural Economy Secretary, Fergus Ewing, said:-

This review highlights notable and worrying failures in the governance of the crofting commission which must be improved immediately. That is why I have asked the new Chief Executive to urgently prepare an action plan to take this forward.

Crofting is an integral part of Scottish rural life and it is essential that it has an effective regulator. This review, and the action plan which will follow, must help to deliver the necessary changes and ensure the commission is able to lead the crofting industry forward.

Crofting Commission Chief Executive, Bill Barron, said:-

A number of important points have been made in the governance review and we are committed to ensuring robust processes are in place to achieve a high standard of governance within the organisation.  I will be putting in place a full action plan to ensure these points are addressed, as requested by the Rural Economy Secretary.

We have already made some of the improvements recommended in the review and we are developing a comprehensive induction programme for the new Board of Commissioners following the elections in March 2017.

Continuous improvement within the Commission, and building on the recommendations from the review, will help us to create a focussed and effective organisation working to secure the future of crofting.

The Scottish Crofting Federation has welcomed the pledge by the Scottish Government to put in place an action plan to address the failures highlighted by the Governance Review. Their Chair, Russell Smith, said:-

The Governance Review of the Crofting Commission, instigated by Scottish Government at our request, has exposed many weaknesses in basic operating procedures and in how the organisation copes with extraordinary individual behaviours. The review has made it clear that a robust Commissioner appraisal process is required, to help identify and deliver ongoing training and skills development. We are particularly keen to see a rationalisation of the roles of Commissioners, establishing when they should be delegating to the executive staff or referring to other bodies that have the required expertise. Commissioners should have a strategic and advisory capacity only. It is clear that they got too involved with executive procedures that they did not have the competence or remit for.

The review team recognises the huge damage done to the reputation of the Commission by the in-fighting and particularly that the vote of no confidence in the convener did not achieve a tangible result, that is, his removal. Frustratingly, the review does not suggest how this will be resolved, though the government’s recent exoneration will open up options.

It is alarming that the review team found there to be fundamental inconsistencies and gaps in records of events that led to the breakdown of the organisation. This appears to have handicapped the review to an extent, and is telling in itself.

The list of areas for improvement is long and the minister for crofting, Mr Fergus Ewing, has instructed that an action plan to address them be put in place as a matter of urgency. This will, we hope, sort out some of the fundamental issues that allowed the near collapse of this significant organisation. We are strongly of the opinion that the purpose and role of Commissioners needs to be appraised and a clear boundary to be set between their overseeing strategy and the staff’s executive function. This seems critical to the health of the Crofting Commission.

No comment appears to have been made by the Convener of the Crofting Commission, Colin Kennedy, on the “notable and worrying failures” found whilst he was at the helm.

Mr Kennedy has, however, as part of his campaign for re-election to the South West Highlands seat on the Crofting Commission, stated to The Oban Times that his “experience prompted” him “to make representations to the Scottish Government, which included insisting an external review was required to establish what was, or was not, going on“. One would, therefore, think that the review was instigated at the insistence of Mr Kennedy!

It was, of course, as a result of the alleged abuse of power within the Crofting Commission whilst Mr Kennedy was in charge that I and the Scottish Crofting Federation, amongst others, called on Fergus Ewing to instigate a review into goings on at Great Glen House.

As far back as April 2016, I stated:-

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

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

In May 2016 the then Chair of the Scottish Crofting Federation, Fiona Mandeville, referring to a meeting held in Ullapool to discuss the common grazings crisis said:-

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

Then in June 2016 the Scottish Crofting Federation 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. Fiona Mandeville then said:-

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.

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.

Also in June 2016 Brian Wilson writing in The Scotsman said:-

The immediate question is whether the Scottish Government is prepared to back their quango’s interpretation of the law and its heavy-handed approach to enforcement.

In the short term, a rapid inquiry into why the Crofting Commission has got itself into this mess and how it can be helped out of it may seem a relatively attractive option.

In September 2016 the West Highland Free Press called for decisive Ministerial intervention in the crofting crisis. Their editor stated:-

As crofting minister Mr Ewing has a duty to be open and transparent in the exercise of his responsibility.  He is not just another interested observer.

He also has a duty to the crofting community to ensure that its governing body adheres to best practice and does not trample crofters into the ground.

The West Highland Free Press have also, of course, repeatedly called on Fergus Ewing to remove Colin Kennedy as Convener of the Crofting Commission. They were of the view that “more than anybody else, Mr Kennedy spearheaded the assault on the grazings committees“.

So, no, it was not Colin Kennedy who asked for the Governance Review. But it was his actions that were certainly behind the call by the many who did want to see such a review and are not surprised at all by its findings. I will consider those findings in some detail in future posts on this blog.

Brian Inkster

Image Credit: Commission on the Rocks – Cartoon © A concerned crofter

Back to the Future of Crofting

Back to the Future of Crofting

But Doc, nothing has changed in 10 years!

If you were to travel back in time 10 years ago to the day you would find a headline in The Scotsman that read ‘MSPs heap pressure on Crofters’ Commission with criticism of bill‘.

It was 5 July 2006 and on that day the Scottish Parliament’s Environment and Rural Affairs Committee released its findings on the Crofting Reform Bill after taking evidence at five meetings that year.

Some salient points from The Scotsman’s report from then:-

Critics of the commission during the evidence-gathering sessions included the National Trust for Scotland, which said the commission’s work is regarded as “inconsistent and ineffective”. The Scottish Crofting Foundation also gave an example of the “long-term regulatory failure” in one township where 11 out of 19 croft holders are absentees despite demand from prospective new entrants.

The report adds: “The committee was struck by the range of negative comments and the depth of frustration and long-standing dissatisfaction expressed by witnesses about the commission’s practice.”

It also said it was “astonished” a proper register of crofts has not been produced despite it being a statutory obligation on the commission for over 50 years.

Rob Gibson, the SNP’s land reform spokesman, said the bill offers no vision for the future of crofting and said successive governments had failed to ensure the commission does it job.

The report in The Scotsman also mentioned Brian Wilson, the former Government Minister, saying of the report:-

The whole thing has turned into an indictment of the Crofters’ Commission and its failure to implement its regulatory role. I think they [the commission board] should now consider their positions.

Fast forward 10 years and not much has changed. It is now called the Crofting Commission as opposed to the Crofters Commission. Similar but perhaps more acute criticism is being laid at its door. Indeed, I was speaking to a crofter just today who said that the Crofting Commission of 2016 is much worse than its predecessor, the Crofters Commission, was 10 years ago.

Headlines in the news over the past few weeks have included:-

Crofting Comission branded as ‘dictatorial, vindictive and unjustified’ by Upper Coll crofters

Row between national body and local crofters on Lewis deepens

Crofting Commission ‘flouting the will’ of Parliament

Crofting commissioner resigns in Lewis grazings row

Pressure grows on Crofting Commission as row over committees continues

Demands intensify for inquiry into operations of Crofting Commission

Crofting Commission “cover-up” blasted

Sleat storm surrounds Crofting Commission

Crofting Commission’s Mangersta U-turn welcomed, but calls for government investigation continue

It was in the wake of the near collapse of the Crofting Reform Bill in 2006 that pressure from the Scottish Crofting Federation led to Scottish Ministers commissioning a Committee of Inquiry on Crofting. This was chaired by Professor Mark Shucksmith. The Committee of Inquiry on Crofting undertook many community meetings throughout 2007 and delivered their final report in 2008.

The Shucksmith Report commented on the Governance of Crofting as follows:-

Crucial issues for the governance of crofting are transparency, source of legitimacy, accountability and the balance of central and local interests. Centralised arrangements,
together with a lack of clear functional boundaries between the key institutions, particularly
between the Crofters Commission and the Scottish Government, cloud the lines of public
accountability for the effective governance of crofting. Recurring themes in the evidence
were that the Commission should be more accountable; have greater area representation;
should enforce regulations more effectively; should be better aligned with other relevant partners; and should have closer communication with local people and Grazings Committees.

All issues that appear to remain today. Perhaps that is because in introducing the Crofting Reform (Scotland) Act 2010 the then Scottish Parliament ignored many of the recommendations actually contained in the Shucksmith Report.

There is currently a major crisis in crofting. The consensus of opinion appears to be that the problems are caused by the Crofting Commission and the decisions taken by them and manner in which they execute those decisions.

A recent online poll conducted by The Scottish Farmer indicated that 96% of readers who took part considered that the Scottish Government should enact an independent inquiry into the workings of the Crofting Commission.

The Scottish Farmer in conducting this poll stated:-

The level of criticism has mounted so quickly that it is now incumbent on the Scottish Government to institute an independent external audit of the commission.

And, if the Crofting Commissioners feel the criticism to be unjust, they too should welcome independent scrutiny of their actions.

One thing is for sure, Scottish ministers cannot continue to sit on their hands on this one. Action must be taken swiftly and decisively!

I sincerely hope that in 10 years from now we don’t look back and say that nothing has really changed and indeed the situation at the Crofting Commission has got worse not better. The Scottish Government has the opportunity to change the future and must now do so.

Brian Inkster

Image Credit: Back to the Future © Amblin Entertainment

It’s been 125 years

 In 1886 crofters thought their position was, for once, secure. That was all to change in 2015/16 when the Crofting Commission decided to apply the law in weird and draconian ways.

Writing in The Scotsman (Is dogma digging a hole for crofting?), Brian Wilson, pointed out that:-

One thing crofting has in plenty is legislation. The Crofting Commission attributes its recent rulings to the requirements of the 1993 Crofting Act, although nobody has sought to enforce them in the intervening 23 years. “Why now and so destructively?” asks the Scottish Crofting Federation.

Reference to this 23 year period is an easy mistake for people to make when they see reference to the 1993 Act. However, the Crofters (Scotland) Act 1993 was a consolidating Act. It didn’t actually introduce new crofting law but simply gathered in one place all the various pieces of crofting legislation that had come into being from and after the first Act of 1886 (the Crofters Holdings (Scotland) Act 1886).

The provisions in the 1993 Act concerning Common Grazings actually have their origins in the Crofters Common Grazings Regulation Act 1891 and the Crofters Common Grazings Regulation Act 1908. Thus, these provisions have actually been around for well over 100 years.

This makes it all the more astounding that the Crofting Commission are using the legislation in the way that they are today when there is no evidence it has ever been used in that way since its inception at the turn of the last century and towards the end of the century before that.

Brian Inkster

Research Credit: I am indebted to Derek Flyn for researching, at my request, the history and origins of the legislation involved.

Pressure mounts for a full investigation of the Crofting Commission

The crofting law truth is out there

The truth is out there

On this blog on 25 April 2016 I called for the Scottish Government to review the Crofting Commission’s actions in connection with ‘The Common Clearances‘ due to an alleged abuse of power within Great Glen House.

The Scottish Crofting Federation and others have backed that call. Yesterday the Scottish Crofting Federation reiterated that call on the back of apparent historical revisionism on the part of the Crofting Commission. Statements by the Convener of the Crofting Commission, Colin Kennedy, previously published on their website have been deleted and a different version of events presented by their Chief Executive, Catriona Maclean.

The uncovering of this underhand behaviour on the part of the Crofting Commission has resulted in mounting pressure for  the Scottish Government to now actually do something about it.

Uisdean Robertson, Councillor and Chair of the Joint Crofting Committee of Comhairle nan Eilean Siar (Western Isles Council), has been quoted as saying on Radio nan Gàidheal that the Council have no confidence in the members of the Crofting Commission and their Chief Executive. He has said that Crofting Commissioners and the Chief Executive all need to think about their positions in light of what has gone on.

Brian Wilson, writing in The Scotsman, has said:-

The immediate question is whether the Scottish Government is prepared to back their quango’s interpretation of the law and its heavy-handed approach to enforcement.

In the short term, a rapid inquiry into why the Crofting Commission has got itself into this mess and how it can be helped out of it may seem a relatively attractive option.

It has been asked on Twitter who would carry out such an inquiry. It must be someone with investigative experience (with a team at their disposal to assist them) and who is truly independent with no association whatsoever with Commissioners, the Convener or the Chief Executive.

Also, in my view, the Scottish Government should directly involve the Scottish Land Court by submitting a reference to them under section 53 of the Crofters (Scotland) Act 1993 to answer the questions in law that the Crofting Commission have been evading. Catriona Maclean, the Chief Executive of the Crofting Commission, has stated:-

The Commission is confident they are applying the law correctly but the only place this can be clarified is in the Scottish Land Court.

However, the Crofting Commission have yet to set out any legal argument with reference to statute or case law to show that they are applying the law correctly. I am strongly of the view that they are not. My detailed legal reasoning to them on this has gone unchallenged other than for them to say that once they make a decision that is final and cannot be changed by them!

If the Crofting Commission are so confident that they are applying the law correctly they should have nothing to fear by making a reference to the Scottish Land Court to confirm that. As they clearly do not wish to actually be found out to be in the wrong (the same is true of the decrofting debacle that resulted in unnecessary ‘remedial’ legislation at huge expense to the taxpayer when a Section 53 reference could easily have resolved the issue) the Scottish Government should advance that reference or insist that the Crofting Commission do so.

The truth is out there and it is in the Scottish Government’s hands to find it.

Brian Inkster

Image Credit: The X-Files © Ten Thirteen Productions, 20th Television, 20th Century Fox Television