Tag Archives: Common Grazings Funds

Ewing Exonerated

One Nil to Fergus Ewing. Ding ding, next round!

BBC Naidheachdan have reported that Fergus Ewing, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting, has been cleared of any wrongdoing in the complaint brought against him by the Convener of the Crofting Commission, Colin Kennedy.

This is how they reported it:-

The Secretary for Rural Economy was not breaking any rules in the way he dealt with the Crofting Commission.

This was the outcome of a review by the Secretary of Justice, after the Convener of the Commission, Colin Kennedy, raised several complaints against Fergus Ewing.

Mr Kennedy raised his complaints after a controversial Commission meeting in Brora, Sutherland in September. He questioned decisions made by Mr Ewing in connection with the Commission.

Mr Kennedy was angry that the Commission had to excuse crofters in relation to how they handled the grazing committees disputes.

Since then there has been controversy surrounding Mr Kennedy and there has been pressure on Mr Ewing to ask Kennedy to stand down.

It has not been possible for Ewing to deal with the Commission whilst this review has been underway.

Now the government has confirmed that the review conducted by the Department of Justice is over, and that Ewing did nothing wrong.

The question now is what will Ewing do with all his freedom to make decisions regarding the Commission.

View from the Crofting Law Blog

As highlighted previously on this blog section 1(3) of the Crofters (Scotland) Act 1993 states:-

The Commission shall discharge their functions in accordance with such directions of a general or specific character as may from time to time be given to them in writing by the Scottish Ministers.

Directions were given to Mr Kennedy by a Scottish Minister. It would appear that Mr Kennedy refused to accept those directions and instead lodged a complaint against the Scottish Minister in question.

The Scottish Minister has been completely exonerated in what would appear to have been a vexatious complaint. Will Mr Kennedy therefore now accept those directions which will involve him personally issuing a public apology to the three grazings committees removed from office by the Crofting Commission in Mangersta, Upper Coll and Bohuntin? Or is it a case that ‘hell will freeze over‘ before he does that?

Will Mr Kennedy now accept the Scottish Government’s position on disbursement of common grazings funds and receipt of SRDP funding which has been accepted by his fellow commissioners but which he has been very vocal in disagreeing with?

Mr Kennedy is, in any event, not well known for representing the views of the board of the Crofting Commission to the general public despite it being one of his “particular responsibilities“, as convener, to do so. He is also, as highlighted in my last post, completely at odds with the board and appears to be refusing to follow the doctrine of collective responsibility.

Fergus Ewing did say some time ago that it is not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law. Is it sustainable for the Scottish Government and the Convener of one of its public bodies to take opposing interpretations of the law and to be in continuing conflict over those interpretations?

The governance review of the Crofting Commission was published last week and referred to “notable failures in governance within the Crofting Commission“. The review made reference to “strong personalities, differences of opinion and apparent incongruent individual objectives and priorities” having “impaired effective and efficient governance“. I will look at this governance review in some detail in forthcoming posts on this blog.

Brian Inkster

Gaelic credit: Thanks to Vicki Folan of Inksters for translating the BBC Naidheachdan report from Gaelic to English

Who are we supposed to believe?

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Whose riddles are the right riddles?

A guest post by the Crabbit Crofter.

Over the last five months “the public” has become more and more confused by the Crofting Commission’s changing statements, retractions, and now silence on the subject of ‘The Common Clearances‘. So whose fault is it the message is so confused?

The Crofting Commission seems to have the right intention. It has a button you can click on its website called Openness. It boldly claims “We aim to provide high quality services and information to all members of the public.” So how is it getting on with its aim?

First. Who should be making sure we were given clear messages about such an important topic? And lo and behold Crofting Commission has a handy Framework Document [PDF]. It became operational just about when everything started to go wrong with the common grazings furore so a shame everyone seems to have forgotten what it says. It covers the period April 2016 to March 2018. The introduction says:-

This framework document has been drawn up by the Scottish Government (SG) in consultation with the Crofting Commission. It sets out the broad framework within which the Crofting Commission will operate and defines key roles and responsibilities which underpin the relationship between the Crofting Commission and the SG.

How handy. It tells us lots of useful stuff. It sets out who is responsible for communicating with the public. Guess who it is? The Convener of the Crofting Commission. The Framework Document states one of the Convener’s “particular responsibilities” is:-

Representing the views of the Board to the general public

So how has Convener Kennedy been getting on with this “particular responsibility”? Since the 2016-2018 Framework Document came into force, there have been:-

various interviews on Radio nan Gaidheal and An La, BBC Alba (TV) with Commissioner MacLennan, including one where he was challenged by the interviewer Donald Lamont on why he hasn’t done more to help Lewis grazing committees. Mr MacLennan explained he couldn’t talk about Mangersta or Upper Coll because he had conflicts of interest. In the Upper Coll case because he had some sort of link with the solicitor representing Upper Coll in the Land Court case.

It could be argued Mr MacLennan as a Gaelic speaker was used for these interviews rather than Convener Kennedy. But, guess what? There have also been:-

An interview in English with Commissioner Swan after the meeting in Mangersta on 17th May on Aithris an Fheasgair, Radio nan Gaidheal.
An interview in English with Chief Executive Catriona MacLean on Radio nan Gaidheal, and An La, BBC Alba, after the meeting attended also by Convener Kennedy (and Commissioner MacLennan) in Stornoway with the CNES Joint Consultative Committee, on 13th June.
Statements at the Scottish Parliament Cross Party Group on Crofting in June by Commissioner MacLennan and Chief Executive Catriona MacLean (in English). Convener Kennedy was notably absent when the big topic of the Commission’s self-inflicted common grazings crisis was on the agenda and obviously politicians and the general public would be demanding a clear statement from the Commission. Strangely Commissioner MacLennan seemed to have forgotten about his reluctance to talk about the issue because of a conflict of interest in the two Lewis cases.
Interviews with Commissioner MacLennan following the board meeting on 17th August, carried on Aithris an Fheasgair and An La in Gaelic and in a BBC Highland report in English. These interviews were almost unintelligible. They left the “general public” in a worse state of confusion than if there had been no interviews at all by anyone.

There have also been numbers of statements –

The famous Convener Kennedy statement on how to manage common grazings finances, now removed from the Commission’s website but available on the Crofting Law Blog.
A statement from Vice Convener MacDonald on 8th June contradicting the previous statement from the Convener but with no explanation if it was his own views or those of the whole board who had agreed to disagree with their Convener on the issue.
The famous Open Letter from Chief Executive Catriona MacLean still available on the Commission website. It contradicts the Convener’s previous statement, but claims no such statement was ever made. So which of the Convener’s or the Chief Executive’s statements was the views of the board? We have to assume the Convener’s since it is his “particular responsibility” to convey the views of the board to the general public.
A report from Jackie O’Brien on Good Morning Scotland (Radio Scotland) who hadn’t managed to get an interview but had got a statement from Convener Kennedy prior to the board meeting on 17th August. The Convener’s statement was extraordinary because it disagreed with his Minister. And it stated the Convener’s position on the matter before he allowed the board to have a democratic discussion. But then the Convener didn’t make any attempt to convey the views of the board to the general public after the board meeting. Why not? Instead we got something almost completely unintelligible from Commissioner MacLennan no-one has been able to decipher yet. So what were the views of the board? Since it is his “particular responsibility” to convey the views of the board to the general public we must assume it was the Convener’s statement before the board meeting.

All of this leaves the general public totally confused. Which of these contradictory interviews and statements from five different people (Vice Convener, two Commissioners, Chief Executive, Convener) over the past 5 months is the opinion of the board? The Framework Document tells us we should only listen to the Convener because he has “particular responsibility” to convey the views of the board to the general public. But he has consistently refused to give interviews. And his two public statements baldly state grazing committees have to pay out all money immediately to shareholders and can keep none. So there you have it. It looks like he is in conflict with his Minister. And with his board. And his Chief Executive. Not to mention crofters. No wonder we are all so confused and angry.

Crabbit Crofter

Guest Blogger Bio: A crabbit crofter who wishes the weather was better & Scotland produced more of its own food. He believes in a just & honest world, full of integrity & decency.

Image Credit: The Riddler – Batman Forever © Tim Burton Productions and PolyGram Pictures

Lacklustre response by Crofting Commission

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The Crofting Commission eventually got around, on 24 August 2016, to issuing a public written statement regarding the letter from Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, to Colin Kennedy, Convener of the Crofting Commission. It states:-

A special meeting was held by the Board on the 21 July to consider the Cabinet Secretary’s letter to the Convener. The Board unanimously agreed that the Crofting Commission support the Scottish Government’s position on CAP funding and disbursal of funds by common grazings committees.

The Convener, Colin Kennedy, has written to the Cabinet Secretary confirming the Board’s agreement. At the Commission’s Board meeting on Wednesday 17 August, draft guidance for grazings committees was considered and the Commission is planning to engage with stakeholders to discuss the guidance.

The Crofting Commission continues to work constructively with the Scottish Government and is committed to securing the future of crofting.

So nothing there we didn’t know already! And nothing to clarify the confusing mixed messages issued on the Commission’s behalf by Commissioner Murdo Maclennan in English and in Gaelic immediately following the board meeting on 17 August.

Or does this clarify the position without explicitly saying so?

With no add-ons like we got from Murdo Maclennan does this mean there is no qualification to the support given to the letter from Fergus Ewing (i.e. the Crofting Commission are not actually saying that they think they did the right thing but are still supporting his letter – instead they are simply unequivocally supporting his letter and therefore admitting that they got it wrong completely?)

However, we shouldn’t have to be drawing inferences from statements issued by the Crofting Commission.

They knew there was confusion caused by Colin Kennedy’s statement to Jackie O’Brien on 16 August and Murdo Maclennan’s statement to the media on 17 August. In both cases the message was in effect that “we’ve done nothing wrong but we support the letter from Fergus Ewing”. Is this or is this not the position of the Board of the Crofting Commission? Or are they split on this point?

I have asked the Chief Executive of the Crofting Commission, Catriona Maclean, to clarify the matter, for the avoidance of any doubt, for readers of this blog. I will let you know her response should I receive one and am not simply ignored again.

Brian Inkster

Who calls the shots at the Crofting Commission?

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“I’ve been expecting you Mr Ewing”

The letter from Fergus Ewing MSP, Cabinet Secretary responsible for crofting, to Colin Kennedy, Convener of the Crofting Commission, made it clear that the Scottish Government did not share the legal interpretation taken by the Crofting Commission on (a) the distribution of funds by Grazings Committees and (b) entitlement to SRDP funding by Grazings Committees.

The letter, interestingly, suggested that the wrong views on these matters were personal ones held by Colin Kennedy and did not necessarily represent the views of the Board of the Crofting Commission. Fergus Ewing, in the letter, stated:-

At our meeting you noted that the views you expressed on these issues were in fact your own and not those of the Crofting Commission Board. This was confirmed by the Crofting Commission’s Chief Executive. As it currently stands, the Scottish Government sees little merit in your views on these issues and wholly disagrees with them. Based on a thorough consideration that we have given this matter, it is clear that our own view on these important issues is diametrically opposed to your own. I am very concerned about this and also about the risk that policy decisions at the Crofting Commission may be taken without a clear mandate from the Crofting Commission’s Board.

If this is the case then although the Crofting Commission Board may not have shared Colin Kennedy’s views on the distribution of funds by Grazings Committees decisions were still made that forced or sought to force Grazings Committees to empty their bank accounts, put them out of office and replaced them with illegally appointed grazings constables. How did this happen?

BBC Reporter Jackie O’Brien said on 17 August 2016 that:-

I did speak to him [Colin Kennedy] last night. He is adamant that he has done nothing wrong. He claims that all of the decisions which have been made have been made during/since he has been Convener have been based on papers supplied by the Commission’s executive.

He has also insisted that not a single matter on this has ever had to go to a vote or at board level and he says that all decisions are taken by means of reasoned debate and consensus.

If he admitted to Fergus Ewing that the views were his own and this was backed up by Catriona Maclean, Chief Executive of the Crofting Commission, then clearly decisions were not actually based on papers supplied by the Commission’s executive.

Also if these views were his own and not shared by the Board how was it that “not a single matter on this has ever had to go to a vote or at board level” and “that all decisions are taken by means of reasoned debate and consensus“?

Or has there never been a vote at board level because the decisions have already been taken by the Convener?!

Colin Kennedy has either been misleading Fergus Ewing MSP or Jackie O’Brien because the statements made by each of them do not correspond.

The inference, however, from the Fergus Ewing letter is that Colin Kennedy has been calling the shots at the Crofting Commission and that policy decisions may have been taken without a clear mandate from the Crofting Commission’s Board. If this is the case it is concerning indeed.

It is also rather ironic that the last Convener, Susan Walker, was ousted from office in a coup by certain Board members because there had been growing concern amongst her fellow commissioners over her style of leadership with it being alleged that she had assumed the role of an executive chair, rather than that of primus inter pares – first among equals. Whether or not Susan Walker was actually behaving in this way, and I have seen no evidence to suggest that she was, it would appear that her replacement, Colin Kennedy, is!

Crofting Commission meet at Great Glen House to discuss Common Grazings Committees on the Isle of Lewis

“Our target, commissioners, is the Isle of Lewis”

At the time it was reported that even the Chief Executive of the Crofting Commission, Catriona Maclean, had privately criticised the way Commissioners handled the affair and she went further, with one internal note suggesting the Commission may have underplayed the level of division within their board during discussions with Government. Writing shortly after the convener’s resignation she said that, while the Commission “wanted to reassure the Minister [for Crofting] that they were keen to move forward in a united and positive way”, her own view was that there were “still differences of opinion on the merits of what happened”. In a later commentary she specified disagreement between board members which will require “a focus on healing”.

It would appear that this disagreement between board members still subsists with no sign of any healing. If anything the wound has perhaps deepened.

If the cause of this is a commissioner who dictates his views on the others and those views are “diametrically opposed” to those held by the Scottish Government then there appears to be a conflict that requires to be resolved. It may not be one that can easily be resolved without the intervention sought by many.

Brian Inkster

Images Credit: Thunderball © Eon Productions Limited / Danjaq, LLC – 007.com

Crofting Convener seeks to stop SRDP funding for Common Grazings

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“I don’t believe it!”

Whilst the media concentrated last week on Fergus Ewing’s letter to Colin Kennedy stating that the Scottish Government disagreed with the way the Common Grazings debacle had been handled there was another significant element to his letter. This was that:-

there is nothing in the CAP rules that prevents the Scottish Government approving applications for SRDP funding in respect of a common grazings by a Grazings Committee.

This would suggest that the Convener of the Crofting Commission was seeking to prevent common grazings committees receiving SRDP funding! Why on earth would a crofter elected to represent the interests of crofters on the Crofting Commission seek to do that?

Furthermore what does SRDP funding have to do with the crofting regulator? Absolutely nothing!

It is worrying indeed that the Crofting Commission and/or their Convener might be spending any time or resources at all on seeking to deprive grazings committees of funding in the first place never mind them seeking to divest those committees of monies as soon as received.

It was made clear in the letter that this view on SRDP funding was Colin Kennedy’s own view and not one shared by the Board of the Crofting Commission. I will explore that fact further in my next blog post.

Brian Inkster

Image Credit: ©BBC – Victor Meldrew in One Foot in the Grave

Cabinet Secretary “wholly disagrees” with Crofting Commission Convener

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A clash has begun between Fergus Ewing MSP and Colin Kennedy

Breaking news on BBC Radio Scotland this morning:-

Scottish Govt warns chair of public body responsible for crofting it disagrees with his handling of Western Isles land dispute #bbcgms 0750

— Gary Robertson (@BBCGaryR) 17 August 2016

The BBC has seen a letter written by the Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, that says he “wholly disagrees” with the Crofting Commission’s stance on Common Grazings Committees and the distribution of funds received by them.

BBC Scotland reporter Gary Robertson said:-

The Scottish Government is going head to head with the Convener of the public body responsible for crofting.

In a hard hitting letter seen by BBC Scotland the rural affairs secretary, Fergus Ewing, has told the Convener of the Crofting Commission that he wholly disagrees with his handling of a bitter dispute over shared land in the Western Isles.

BBC Scotland reporter Jackie O’Brien has seen the correspondence and Gary Robertson asked her what the background was.

Jackie O’Brien said:-

Well this has been a protracted and slightly complicated dispute involving the way that the ground crofters share is managed through what they call common grazings committees which are made up of crofters.

Now earlier this year two committees on Lewis, one in Mangersta and the other in Upper Coll, were removed from office by the Crofting Commission.

This happened after questions were asked over financial records and some transactions including the fact that the Upper Coll committee had not distributed or as they call it disbursed income from croft house sites to individual crofters but had put all of the money into a crofting township fund instead.

Now the Commisssion in the meantime appointed what they called constables to manage the land whilst committee accounts were investigated.

One of the committees has been reinstated but there is still annoyance and outrage over the way that this whole affair has been handled. Some say it is belligerent and unlawful and there have been calls for the resignation of the Crofting Commission Convener, Colin Kennedy.

Gary Robertson asked:-

So what exactly does Fergus Ewing say in this letter?

Jackie O’Brien responded:-

Well the rural affairs secretary has been trying to calm the waters and has been quite diplomatic on this to date. But there is no sign of it in this letter which I have seen that he has sent to Colin Kennedy.

He confirms that contrary to Mr Kennedy’s views the Crofters (Scotland) Act does not require the immediate disbursement or pay out of funds by a grazings committee. He says that as it currently stand the Scottish Government sees little merit in the Crofting Chairman’s views which he says he wholly disagrees with.

The letter goes on to say that the Government’s view is diametrically opposed to Mr Kennedy’s and that it is not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law.

Gary Robertson then asked:-

Any response from Colin Kennedy himself?

Jackie O’Brien confirmed:-

I did speak to him last night. He is adamant that he has done nothing wrong. He claims that all of the decisions which have been made have been made during/since he has been Convener have been based on papers supplied by the Commission’s executive.

He has also insisted that not a single matter on this has ever had to go to a vote or at board level and he says that all decisions are taken by means of reasoned debate and consensus.

Gary Robertson then asked Jackie O’Brien:-

What is your sense of the implications of this clash?

Jackie O’Brien responded:-

Well the contents of this letter shows the Government is clearly pointing the finger at Mr Kennedy who is an elected Convener. This is backed up by the fact that Fergus Ewing has said in his letter that he is also very concerned about the risk that policy decisions may be taken without a clear mandate from the Crofting Commission’s board. This implies that not everyone on the board supports the way things have been handled.

Now the Commission’s board does happen to be meeting today, and in his letter Fergus Ewing has asked for its position on the matter to be made clear after this meeting. But he warns that if the Commission continues to subscribe to an entirely different view he will then have to consider what action to take. It is not clear what that action could be but that could put further pressure on him to resign.

View from the Crofting Law Blog

The Scottish Government clearly takes the same view regarding the law on the common grazings debacle taken from the outset on the Crofting Law Blog. It is good that they have done so and made their position clear in such strong terms.

The law on the matter has in my view been fairly clear. It is also, it transpires, clear to the Scottish Government.

Why has it been so unclear to the Crofting Commission?

Despite repeated requests from me to the Crofting Commission asking them to justify their position with reference to statute and case law they have failed to do so. They have simply ignored me. If they had papers from their executive that backed up their position in law surely they would have referenced those to me.

The Chief Executive of the Crofting Commission, Catriona Maclean, suggested in a meeting of the Scottish Government Crofting Stakeholder Forum that the law on the matter would follow “in due course” after the Commission had drawn up new guidelines for grazings committees to follow. Putting the cart before the horse was never a good idea!

The Convener of the Crofting Commission, Colin Kennedy, has said to BBC Scotland that the Commission were following advice given in papers produced by their executive. Oh no they weren’t! The Crofting Commission specifically ignored the advice given by the executive and appointed grazings constables in circumstances where they knew that to do so was illegal. How many other times has this happened?

Furthermore, it should not be forgotten that a paper [PDF] was considered by the Crofting Commission at a February 2016 Policy in Development meeting. In that paper it was, somewhat alarmingly, stated:-

There is a degree of irony in that the Commission may be requiring grazing committees to adhere to regulations while not being clear about the procedure it is itself employing in directing this.

Thus did the Commission actually have papers from the executive to consider when making some of their decisions or were they simply making it up as they went along?

We also, of course, know that the Commission has chopped and changed its position on the matter, tried to hide the fact they have done so and ultimately made a massive U-Turn. Does that demonstrate having done nothing wrong?

In light of the stance now taken by the Scottish Government against the Convener surely his tenure in office must be in question more so than it ever was. Especially if he continues with the adamant view that he has done nothing wrong when all of the evidence that has so far come to light would perhaps suggest otherwise.

The Crofting Commission are having a board meeting today. On the agenda [PDF] is ‘Grazings committees – a practical approach to the management of common grazings’ with a paper on that topic for discussion. A practical approach would no doubt be a welcome approach from most crofters. But let’s hope the Commission have now got a clear understanding and grasp of what the law actually is when applying a practical approach.

A little bit of humbleness, signs of regret and an apology would not go amiss at today’s meeting in light of the letter from Fergus Ewing.

A statement from the Crofting Commission on the outcome of today’s meeting is awaited with bated breath.

Brian Inkster

Crofting Crossroads

You might think that, I couldn’t possibly comment

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There comes a point where actions speak louder than words

To date the Cabinet Secretary for the Rural Economy and Connectivity with responsibility for Crofting, Fergus Ewing MSP, has not said much on the question of ‘The Common Clearances‘.

Rhoda Grant MSP asked the Scottish Government:-

whether it is satisfied with how the Crofting Commission has acted in all matters relating to the dismissal of the Mangersta grazing committee.

Fergus Ewing MSP answered:-

The Crofting Commission is a non-departmental public body that takes regulatory decisions within the bounds of its duties and powers. Such decisions are taken independently and at arm’s length from Scottish Government.

Rhoda Grant MSP also asked the Scottish Government:-

whether it will establish an inquiry into the workings of the Crofting Commission.

Fergus Ewing MSP answered:-

The Scottish Government has no current plans to do so.

In addition Rhoda Grant MSP asked the Scottish Government:-

whether it has confidence in the convener of the Crofting Commission.

Fergus Ewing MSP answered:-

The Scottish Government is confident that the Crofting Commission board is able to deliver the functions of the commission.

That may have been the Scottish Government’s position on 27 June 2016. The massive U-turn taken by the Crofting Commission on 29 June 2016 should change that stance.

That U-turn and the manner in which it was executed demonstrates that the Crofting Commission got it wrong. They handled the whole Mangersta affair very badly indeed from start to finish. In light of this there can be no confidence that the board or their Convener is able to deliver the functions of the Commission.

The watershed moment was reached on 29 June. The Scottish Government can no longer sit on the fence. There has been as good an admission as any that the Crofting Commission failed the shareholders of Mangersta. In so doing they failed in their regulatory duties and should be made to account for those failings.

A day before the U-turn representatives of the Scottish Crofting Federation met with Fergus Ewing MSP. Commenting on that meeting the Chair of the Federation, Fiona Mandeville, said:-

We also had constructive discussion on the Crofting Commission crisis. We are very supportive of a majority elected Commission and fear that the common grazings debacle can jeopardise this. We therefore asked Mr Ewing to consider a procedural review of the Commission. At his request, we will send him a note outlining details of our recommendations forthwith.

In the wake of the U-turn, Fergus Ewing MSP should take heed of that request for a procedural review and actually now instigate it.

The Scottish Government can no longer hide behind suggestions that the Crofting Commission are at “arm’s length” from the Scottish Government.

The fact is that the Crofting Commission and their Commissioners are answerable to the Scottish Government.

Under and in terms of the Crofters (Scotland) Act 1993:-

The Crofting Commission shall discharge their functions in accordance with such directions of a general or specific character as may from time to time be given to them in writing by the Scottish Ministers. [Section 1(3)]
The Scottish Ministers may (a) confer functions on; (b) remove functions from; (c) otherwise modify functions of, the Crofting Commission, where they consider it appropriate to do so to ensure that the Crofting Commission carry out their functions efficiently and effectively. [Section 2A(1) and (2)]
In so doing Scottish Ministers may modify any enactment (including the 1993 Act). [Section 2A(3)(b)]
The Scottish Ministers may remove a member of the Crofting Commission from office if satisfied that the member is unable or unfit to exercise the functions of a member or is unsuitable to continue as a member. [Paragraph 9(1)(e) of Schedule 1]
The Crofting Commission must provide the Scottish Ministers with such information in respect of the exercise, or proposed exercise, of the Crofting Commission’s functions as the Scottish Ministers may, from time to time, require. [Paragraph 20 of Schedule 1]

So, far from being a body that the Scottish Government should consider to be at arms length from it, the Crofting Commission is one that is directly accountable to and ultimately under the control of the Scottish Ministers.

That being the case the Scottish Government should not, like the Crofting Commission, ignore the law involved. They should apply the law, as set out above, as necessary to make the Crofting Commission accountable for their actions over the Mangersta debacle.

Following the U-turn by the Crofting Commission, former members of Mangersta Common Grazing Committee stated:-

We continue to believe that there should be an inquiry into the functioning of the Crofting Commission.

An inquiry is necessary to answer questions such as:-

Why did the Crofting Commission reopen a case investigated, resolved and closed by the Crofters Commission?
On whose insistence and on what evidence was the case reopened?
Was there undeclared conflicts of interest by Crofting Commissioners involved in the matter?
What legal advice was sought by the Crofting Commission on the matter? From whom, when, on whose insistence and on what basis? Was such legal advice followed?
Why were inconsistencies applied by the Crofting Commission to the handling of this case compared to others being dealt with contemporaneously?
Why was the removal from office of the Grazings Committee at the time deemed justifiable and necessary?
Why did the Crofting Commission ignore and not respond to the legal position put forward on behalf of members of the dismissed Grazings Committee?
Why did the Crofting Commission refuse to revisit their decision (saying that they could not in law do so) but ultimately did just that?
Why did the Crofting Commission ignore their own guidelines on the investigation of questions of financial impropriety which they had stated were a matter for the civil or criminal courts?
Why did the Crofting Commission purport to appoint a Grazings Constable when there is no basis in law to do so and then sought to extend that appointment, again when there is no basis in law to do so?
Why was the particular Grazings Constable in question appointed, on what basis and was a conflict of interest declared by any Commissioners relative to that appointment?
Was the Grazings Constable really independent and impartial or was he provided with instructions for the discharge of his appointment by the Crofting Commission?
Why did the Convener of the Crofting Commission, Colin Kennedy, attend a meeting of the shareholders of the Mangersta Common Grazings and refuse to leave when a conflict of interest had been declared by him?
Why and on what basis in law, when shareholders questioned the legality of the Commissioners proposals at that meeting, were they told that if all shareholders did not accept them, the Commission would not allow shareholders to reform a committee?
Did the Crofting Commission’s handling of the matter result in the resignation of William Swann as a Commissioner?
Why did the Crofting Commission issue guidelines on the management of grazings funds, then delete those guidelines and claim that they had never said what they had said in them?
Why did the Crofting Commission insist that funds had to be paid out by Grazings Clerks to shareholders “immediately” when Roseanna Cunningham MSP, on behalf of the Scottish Government, clarified on 21 June 2016 that “the Crofters (Scotland) Act 1993 does not require the immediate disbursement of funds by a grazings committee”?
Why did the Crofting Commission insist on common grazings funds being managed in a way that defied logic and was not set out anywhere in law?
Why did the Crofting Commission not take cognisance of the statement by Minister of State for Scotland, Lord Kirkhill, in the House of Lords on 6 April 1976 regarding the Crofting Reform (Scotland) Bill that “there would seem to be nothing [in the bill] to prevent a voluntary arrangement being made whereby any crofter’s share would be diverted to the grazings committee”?

These are questions that the Scottish Ministers can no longer ignore following the recent U-turn by the Crofting Commission. The Scottish Ministers must comment properly on them and, if necessary, take appropriate action under and in terms of the Crofters (Scotland) Act 1993.

The only way that they will be able to properly pass such comment and take such action is following a focused and detailed investigation into how and why the Crofting Commission handled the Mangersta situation in the manner that they did.

That case is no longer ongoing and is not subject to court proceedings. The Crofting Commission therefore cannot hide from, prevent or delay an investigation specifically focussed thereon. Fergus Ewing MSP must now instigate just such an investigation for the future stability, survival and sustainability of crofting in Scotland.

Brian Inkster

Ignore the law and the lawyers

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Hear no crofting law, See no crofting law and Speak no crofting law

I have been blogging for some time about the Crofting Commission ignoring the law.

They have done so in relation to, amongst other things:-

The Removal of Common Grazings Committees from office
The appointment of Grazings Constables
Conflict of Interest
Management of Grazings Funds

They have, however, this past week made a massive U-turn which could just mean they now actually accept that they did in fact completely ignore the law.

It also, unfortunately, transpired at the meeting of the Cross Party Group on Crofting on Wednesday that they are now simply ignoring lawyers who take a different viewpoint from them and/or represent crofters challenging their stance.

When Commissioner Murdo Maclennan announced that he “thought we have a conclusion” on Mangersta and there was “no grazing constable in place at the moment“, I asked how this could be when I thought that the Commission had purported to extend the appointment of the Grazing Constable (illegally appointed in my opinion and in the opinion of others) for a further six months from and after 6 June 2016.

Chief Executive of the Crofting Commission, Catriona Maclean, interjected that:-

there is no constable at present, the case is over and the people of Mangersta will be advised.

I questioned why they had not advised the solicitor acting of this (i.e. me) and she responded:-

We have been in correspondence with the people of Mangersta and that is who we will respond to.

I pointed out that they had been in correspondence with a solicitor representing former members of the (unlawfully in my opinion) removed grazings committee and they should be responding to that solicitor.

There then appeared to be a reluctant acceptance that I might hear from them!

Astounding.

The Crofting Commission appear to think they can simply bury their ignorance of the law by taking a U-turn and not responding to questions raised by a solicitor concerning that ignorance of the law. The fact that they have acted contrary to the law remains and they do require to answer outstanding points in correspondence that sits unanswered on the desk of their Chief Executive.

They still need to answer, amongst other things:-

Where in law it is stated that the Crofting Commission cannot revisit its own decisions.
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 the Crofting Commission is ignoring its own guidelines on the investigation of financial irregularities.

Perhaps they do now accept, given that U-turn, that nowhere in law is any of this stated and therefore they are unable to answer my questions. They should, if that is the case, at least have the dignity to say so.

I will let you know if and when the Crofting Commission deign to respond to me.

Brian Inkster

The Commission is for turning

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