Tag Archives: conflict of interest

The end game?

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Have we reached the end game in the crofting commission crisis?

Is it time for the First Minister to declare checkmate?

Many crofters and other interested parties have been wondering for some time why the crisis within the Crofting Commission has been allowed to trundle on for so long. Why they ask is Colin Kennedy still in post as Convener of the Crofting Commission despite many alleged breaches by him of the code of conduct and calls for his resignation from fellow commissioners, representative bodies, the press and crofters.

He has stated that “hell will freeze over” before he resigns. It was suggested that if he didn’t jump he would be pushed. A good few weeks later and no jumping and no pushing to be seen.

The latest move in this bizarre game is that Colin Kennedy has made a formal complaint against Fergus Ewing MSP, the Cabinet Secretary with responsibility for crofting. It has been reported by the BBC that Mr Kennedy “accuses the Rural Economy Secretary Fergus Ewing of being in breach of the ministerial code“.

This is rather ironic given the numerous accusations over a number of months from various parties against Mr Kennedy for his purported breaches of the code of conduct for members of devolved public bodies.

This brought about some thoughts on the issue on Twitter tonight:-

A reference to Colin Kennedy retaining an active interest in and being part of the decision making process in the Mangersta and Upper Coll cases despite complaints being made against him.

A reference to Colin Kennedy’s reasons for his behaviour in response to the complaint made against him by former committee members at Upper Coll Common Grazings.

Thus Mr Kennedy’s latest move may not have been as smart as he thinks. He may want to drag the agony out for everyone and cause more pain and anguish along the way. He may wish to pull others down with him. The reality is that such behaviour is not helping the greater good of crofting and the day to day regulation thereof by the Crofting Commission.

The Oban Times reported, in December 2006, that in a sheriff and jury trial at Oban Sheriff Court concerning a shotgun allegation against Mr Kennedy’s agricultural tenant, John Brackenbury, on the Isle of Coll:-

various police reports, about matters on Coll, were read to the court and one said Mr Kennedy was “not averse to confrontation” and added that “by his own admission his actions can antagonise the situation”.

The Oban Times also reported that the defence agent, Mr Nelson:-

put forward evidence in his lengthy cross-examination of Mr Kennedy, which had brought the farmer’s character into question.

He produced a tabloid press report, from the mid-90s, which said fellow islanders at that time called for Mr Kennedy – who was once banned from the island’s only hotel bar – to be banned from having a shotgun, claiming that he “has awful fits of temper”.

Strathclyde Police have received repeated complaints from Mr Kennedy and Mr Brackenbury, over the years, and Mr Nelson produced extracts from police subject sheets, recorded by unnamed police officers, relating to Mr Kennedy.

One stated: “He is of the personality type which seeks to utilise a verbal steam-roller through any contrary argument or viewpoint.”

The report continued: “That he has been an efficient farmer and businessman is beyond question but that very success has engendered a singular arrogance and a persona which ill-fits a small island community where toleration and cooperation are pre-requisite.”

Another police report called Mr Kennedy “an extremely stubborn individual who made it quite clear that he is intent on taking his revenge upon a number of individuals who he believes have previously wronged him”.

And yet another police subject sheet, dated October 4, 2005, said: “Taking aside the 20 years of civil disputes with Mr Brackenbury, Mr Kennedy has recently embarked on a civil complaint with almost every occupant in Arinagour and his lawyers have sent letters claiming £20,000 from each of them, as compensation for their gardens and houses being built on his grazing land. This has caused considerable anguish upon Coll, especially with the elderly.

10 years later and this behaviour appears to have moved from the Isle of Coll to the corridors of Great Glen House and Holyrood.

It is not behaviour befitting anyone in public office and we have surely now reached the end game. If Mr Kennedy thinks he has cornered Fergus Ewing it is time for the First Minister to swiftly move forward and declare checkmate. After all the Queen on the chess board, with an army of support behind her, is much more powerful than a lone ‘King’.

Brian Inkster

A chair fit for a Crofting Convener

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a chair fit for a crofting convener

Is this comfy enough for you sir?

We have just, in the last post, been reminded about the conflict of interest on the part of the Convener of the Crofting Commission, Colin Kennedy, over goings on at Upper Coll.

This was where Colin Kennedy appeared to be instrumental in taking a decision to remove the former grazings committee from office. This was at a point where a formal complaint was still being dealt with by the Crofting Commission concerning his handling, as chairman, of a meeting of shareholders held at the Back Football and Recreation Club, Upper Coll, Isle of Lewis on 10 November 2015.

One of the more bizarre episodes (although there have been and continue to be many) in the whole Common Grazings debacle is how the Crofting Commission initially responded to that complaint.

One of the complaints arising from the meeting in question (and there were several) was that the meeting was chaired by Colin Kennedy in “an arrogant and dismissive manner“. This is how the Crofting Commission responded in writing to that particular element of the complaint:-

All members of the Commission who attended the meeting commented on the quality of the venue. They all complained about the seating arrangements which did not let them get their legs under the table which would have allowed them to sit up straight which may have led attendees to think the panel were being too casual. They also said the lighting was poor and general presentation of the room did not contribute to creating a positive atmosphere. The Commission agree that this is not helpful and have put in place a mechanism to check venues prior to meetings to ensure that they meet requirements. This includes discussing requirements in advance with providers and going to the venue prior to the meeting to check it is laid out as well as possible.

What! A complaint about the manner in which a meeting has been conducted by the Convener is turned around to being down to the meeting room in a crofting township not having adequate seats or lights!

I have, over the years, had plenty of meetings with crofters in village halls or similar venues throughout the crofting counties. They may not always be up to the luxurious surroundings enjoyed by Commissioners at Great Glen House but the facilities are always more than adequate for the purpose required.

The Land Court often have lengthy hearings in such halls and I have never heard a complaint from them about the facilities at hand.

As a crofting regulator you should accept the need to travel to the crofting counties and graciously accept the facilities offered to you. To suggest that those facilities are the root cause of the “posture, conduct and demeanour” of the Convener is surely a joke.

Are the Commission really now checking venues prior to meetings to ensure that they meet requirements? If they had a meeting in the far north reaches of Unst in Shetland, for example, would a scout from Great Glen House be flown up in advance to check that the seats were fit for the Convener? This would be at an additional cost of several hundred pounds to the public purse. If the facilities did not meet the high standards clearly required would a suitable chair then be flown in?

You couldn’t make it up.

Brian Inkster

Conflict of Interest at Upper Coll

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conflict-of-interest-at-upper-collOur last post on this blog raised once more the issue of conflict of interest on the part of the Convener of the Crofting Commission, Colin Kennedy, over the Upper Coll affair. This, for completeness, is a good point to remind readers of the detail of that conflict of interest. We therefore now reproduce, with the author’s kind permission, a letter by Dr Iain MacKinnon that first appeared in the West Highland Free Press in July 2016:-

On 9th December 2015 the Crofting Commission removed from office the entire common grazings committee at Upper Coll on Lewis. The minutes of that meeting disclose that its decisions were reached by consensus and that the Commission’s convener, Colin Kennedy, chaired the meeting throughout.

When that decision was made the Commission were in the process of investigating complaints from crofters at Upper Coll about the way in which Mr Kennedy had chaired a meeting in Upper Coll in November to discuss the grazings issue.

In light of this, Mr Kennedy’s decision to participate in the 9th December discussions raises ethical questions. The Scottish Government’s model code of conduct for standards in public life states that when confronted with a potential conflict of interest, members of public bodies must conduct ‘the objective test’ before proceeding. This test is severe. The member must consider ‘not only whether you will be influenced but whether anybody else would think that you might be influenced by the interest’.

Would a member of the public, with knowledge of the relevant facts, ‘reasonably regard the interest as so significant that it is likely to prejudice your discussion or decision making in your role as a member of a public body’? If there is even the possibility that a member of the public would regard the member as conflicted, then that member must withdraw.

In this instance the plain facts of the matter are that Mr Kennedy was the subject of outstanding complaints about his conduct made by members of a regulated grazings committee at the moment when the regulator, led by Mr Kennedy, took a questionable decision to remove that committee from office.

Indeed, as Mr Kennedy had chaired the November meeting between crofters and Commission in Upper Coll, we can only presume that it was on Mr Kennedy’s recommendation that the decision to sack the Upper Coll committee was made.

Mr Kennedy’s central role in the Upper Coll case casts further doubt on his judgement and fitness for public life – was it reasonable for him to have led on such a sensitive and controversial issue when he knew there were complaints outstanding against him?

We now learn that the retired policeman who was imposed by the Commission as grazings constable at Upper Coll regards himself as an independent force there and has taken it upon himself to initiate investigations that crofting lawyers believe are unlawful; in addition, it has been claimed that Mr Kennedy himself has acknowledged engaging in similar, apparently extralegal, behaviour to the current constable at Upper Coll when Mr Kennedy was acting as grazings constable around a decade ago.

The convener’s conduct in relation to Upper Coll is yet another straw on the back of the Commission donkey, already groaning under the weight of a series of related controversies about its competence and fitness for purpose. If the load of straw keeps getting heavier then at some point the accumulated weight will break the Commission’s back; the regulator will have lost the confidence of the electorate of crofters that it is there to regulate – indeed, Alastair Culbertson and Duncan MacDonald’s recent contributions to the debate demonstrate that confidence in the Commission has already evaporated even for crofters beyond Lewis.

To restore confidence in crofting regulation the Scottish Government’s recently announced review of Commission procedures must fully examine not only the organisation’s future working, but also the recent series of serious complaints which have cost it public trust.

If the practical reasoning and ethical standards of Commission members are found to be wanting, it is in the public interest for the Government to take action and to be seen to be taking action against those members upon whom responsibility is found to rest – including, if necessary, their removal from office. (Such actions should not preclude disbanding the Commission at a later date in favour of another form of regulation.)

Further, it is in the interests of the openness and transparency to which the Commission says it is “strongly committed” that the result of this investigation be fully and freely available to the crofting electorate.

Dr Iain MacKinnon

 

Dr Iain MacKinnon is researching the politics of crofting at Coventry University, although this letter is not part of his academic work.

The Crofting Bat Phone

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The Crofting Bat Phone

Commissioner Gordon and Batman didn’t have a look in to the lines of communication available between the Crofting Commissioner(s) and their Grazings Constable!

There have been quite a few comments of late about the difficulties of getting a statement from the Convener of the Crofting Commission, Colin Kennedy. He is elusive to say the least and seldom represents the views of the Board to the general public despite this being one of his “particular responsibilities” .

Other Commissioners have been thin on the ground of late as well with no Commissioner replacing the Convener when he failed to attend the Scottish Government Crofting Stakeholder Forum in Inverness on Tuesday. This left the Chief Executive, Catriona Maclean, representing the views of the Commission in front of BBC Alba after the meeting.

Getting clear and unambiguous information out of Commissioners when you can pin them down is also often a challenge.

One person who seems to have direct access without difficulty to Commissioners (which might include, or indeed mean, the Convener) is the Grazings ‘Constable’ of Upper Coll, Colin Souter. He certainly appears to be in possession of information that only Commissioners would have and that well in advance of such information being made available to anyone else outside of Great Glen House.

One example of that became clear at the meeting of the Scottish Government Crofting Stakeholder Forum in Inverness on Tuesday.

I had been aware from the published Agenda that the Board of the Commission had considered a paper at their meeting on 17th August on ‘Grazings Committees – A Practical Approach to the Management of Common Grazings’. There was no mention of that at the Stakeholder Forum so I enquired about it.

I was advised that the Crofting Commission was setting up a Stakeholders’ Working Group to advise on the revision of common grazings regulations and guidance. This paper from 17th August would be considered by that group at a meeting on 20th September. Only after that meeting would the paper in question (possibly after refinement? – but that was not made clear) be circulated to the wider Stakeholder Forum.

So at the moment members of the Stakeholder Forum had no knowledge of or access to what the paper in question said. A stark contrast to the access to that paper apparently afforded to Grazings ‘Constable’ Colin Souter.

In the letter issued by Colin Souter to Shareholders of the Upper Coll Common Grazings on 29th August he states:-

The Board of Commissioners at a recent meeting, considered a submission along the lines I set out at the July meeting, whereby Committees can operate within a defined financial framework which allows retention of funds (from any legitimate source) in the bank, up to a maximum agreed by shareholders, taking account of any commitments under Schemes and projects ongoing and an Emergency Reserve (set at perhaps 3-4 times the 3-year average annual maintenance costs) and exceeding that amount automatically triggers payment to shareholders, three or four times a year. In doing so, the administrative burden is minimised for the Committee and they are seen to be operating within an agreed and better regulated financial framework. Whilst the Commission has a clear role, as regulator, in ensuring feu monies are distributed to shareholders, I understand it does not otherwise seek any direct involvement in other areas of finance affecting shareholders. The proposal tabled is seen as an initiative worthy of testing, for the benefit of Upper Coll and the wider crofting community but it is a choice for shareholders to make.

So even before the Commission has had the first meeting of its new Stakeholders’ Working Group, to advise on the revision of common grazings regulations and guidance, Colin Souter is seeking to impose the guidance so far produced (that no one other than Commissioners, Commission Officials and Colin Souter have seen) upon one particular Common Grazings, namely Upper Coll.

The same is true about his access to an Opinion from Queen’s Counsel which it is presumed was instructed by the Crofting Commission. In his said letter to shareholders at Upper Coll he said:-

Following receipt of legal opinion from Queen’s Counsel, the position of Grazings Committees being able to register for VAT as trading entities in order to reclaim VAT has come under scrutiny. The dialogue with HMRC regarding VAT status remains ongoing and once concluded, I will be able to advise on the outcome.

When I asked about this opinion at the Crofting Stakeholder Forum there was “no comment” from the Chief Executive of the Crofting Commission on behalf of the Board.

It is highly unusual for the Crofting Commission to publish legal advice received by them in any event.

On the topic of legal advice: Colin Souter seems very ready to challenge what he considers to be illegal activities at Upper Coll. It would be very unusual for a clerk in a common grazings (that is effectively what Colin Souter is had he been legally appointed) to appear so sure about crofting law without having sought legal advice. Not that I would give much weight to any advice that Colin Souter is getting given, in my view, a clear misunderstanding on his part as to what the law actually is.

We know that he thinks that legal advice cannot be paid for from grazings funds. So where is he getting his crofting law advice from? Is it likewise coming from Commission officials and/or from Commissioners and/or from a Commissioner? An organisation with a Board that has been shown to ignore the law and lawyers.

Why and how did one grazings clerk (i.e. Colin Souter) get privileged access to all of this information before any other grazings clerk in the land and before the members of the Crofting Stakeholder Forum? In the case of the opinion from Queen’s Counsel this may never be divulged to any other grazings clerks or to any members of the Crofting Stakeholder Forum.

The only explanation can be direct and special contact between him and a Commissioner and/or Commissioners and/or officials within the Crofting Commission.

So much for the assertion that he is acting at arms length and independent from the Commission.

It also again highlights the fact that he is under the control of and acting at the behest of the Crofting Commission. A reader of this blog having referred to him as a “maor” (or ground officer).

Serious questions must be asked by the Scottish Government about this arrangement and, in the circumstances, the validity of any pronouncements by the Crofting Commission and/or their ‘Constable’ over the situation at Upper Coll.

The Crofting Commission will no doubt say that the Scottish Government cannot investigate the situation when it is subject to on going court proceedings. Those court proceedings may touch upon the legality of the appointment of the Grazings ‘Constable’ in the first place.

But even if we take it that the appointment was legal (although that is denied) then the Scottish Government should be looking at the propriety of the relationship that exists between such a legally appointed grazings constable and the Crofting Commission.

Is it correct and proper that he has been given an investigative remit? Is it correct and proper that he is being supplied with the information that he has been? If it is not then who gave that remit and/or supplied that information?

If that was a Commissioner are they therefore, in all the circumstances, “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”? As such should the Scottish Ministers remove them from office under and in terms of the Crofters (Scotland) Act 1993?

Even worse if it were to transpire that it was the Convener who was embroiled in all of this. After all he has, for some time, been the subject of complaints about his handling of the affair at Upper Coll and so should not be involving himself in matters concerning Upper Coll until the relevant complaints process has been completed. To do so would be a clear conflict of interest. But there again that has not stopped him before.

Brian Inkster

Image Credit: The Bat Phone from Batman (TV Series) © Greenway Productions / 20th Century Fox Television

The cost of the Common Clearances

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The Cost of the Common ClearancesIn my last post I revealed how much the grazings constables (appointed illegally in my opinion and in the opinion of others, including knowingly by the Crofting Commission itself) were being paid.

But what has been the overall cost of the alleged abuse of power within the Crofting Commission that has been dubbed ‘The Common Clearances‘?

A Freedom of Information request has disclosed that as at 1 July 2016:-

  • Colin Kennedy, Marina Dennis, William Swann and David Campbell (all Commissioners) together with a member of staff travelled to Stornoway to attend a meeting of the Mangersta shareholders on 16-17 May 2016 at an overall costs including flights, accommodation and subsistence of £2,005.
  • Donna Smith (Crofting Commission member of staff) and Colin Souter (‘Grazings Constable’) went to visit Upper Coll shareholders on 23 June 2016 at a cost of £852.40.
  • The cost of the ‘grazings constables’ as disclosed in my last post was £5,886.85.
  • Thus adding these figures together gives a total cost of £8,744.25.

But that figure is very much the tip of the iceberg.

There was an earlier visit to Lewis by the Crofting Commission to meet shareholders at Upper Coll before the decision was taken to remove the grazings committee from office.

There is the huge number of hours spent by Scottish Government officials, Crofting Commission officials and Crofting Commissioners on the debacle.

There is the legal expenses incurred by the Crofting Commission which reputedly includes the engagement of external counsel.

One of the grazings constables purports to still be in ‘office’ carrying out wholly unnecessary and dubious activities that he will no doubt still be paid for.

All costs that could and should have been avoided and better spent on the legitimate and proper regulation of crofting.

But perhaps more significant is the human cost. Something that cannot be quantified in pounds, shillings and pence. The devastating affect that the Crofting Commission has wrought on crofting communities with accusations of financial impropriety that have ultimately been withdrawn or still remain hanging.

One final observation: Why did the Crofting Commission meet the costs of their Convener, Colin Kennedy, attending the meeting in Mangersta in May 2016? He was not officially supposed to be there, he had a conflict of interest that was acknowledged but he insisted on attending albeit in silence. Was he doing so in a personal capacity rather than an official one? Whatever the position should the Crofting Commission have been meeting his travel and accommodation costs? A question (amongst many others) for Audit Scotland to answer perhaps.

Brian Inkster

Yes Crofting Minister

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Yes Crofting Minister

James Hacker: You said yourself how important these select committees are. I cannot be seen to mislead them.
Sir Humphrey Appleby: You will not be SEEN to mislead them.

How the Crofting Commission played out their sudden and surprise U-turn on the question of ‘The Common Clearances‘ would not have been out of place in an episode of Yes Minister. Sir Humphrey Appleby would have delighted in the obfuscation and manipulation displayed by the Crofting Commission in Holyrood on Wednesday night. However, like Sir Humphrey, the Crofting Commission is not immune to making miscalculations or outright blunders.

It was the first meeting, since the latest Scottish Government was formed, of the Cross Party Group on Crofting within the Scottish Parliament.

It was the first time, since allegations of abuse of power within the Crofting Commission over ‘The Common Clearances‘ were made, that the Crofting Commission would meet eye to eye with politicians and other crofting stakeholders in a public forum.

In the preceding week or two damning revelations had been made of historical revisionism and flouting the will of Parliament on the part of the Crofting Commission. This was on top of votes of no confidence against them, the Convener of the Crofting Commission attending meetings despite a clear conflict of interest,  a Crofting Commissioner resigning and calls for the Scottish Government to investigate the whole matter.

It looked like the Commission would be in for a very rough time at the Cross Party Group meeting.

They knew that and had to do something quick and decisive to limit the damage being caused to them and that could be wrought on them at that meeting.

Nothing like a massive U-turn, with an attempt to dress it up in other ways, to achieve that.

So Crofting Commissioner, Murdo Maclennan (the Convener, Colin Kennedy, was conspicuous by his absence), announced to the Cross Party Group that he “thought we have a conclusion” on Mangersta and there was “no grazing constable in place at the moment“.

On being pressed for clarification on certain elements of this the Chief Executive of the Crofting Commission, Catriona Maclean, elaborated that:-

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

So case closed and no further discussion on that then. Please move along ladies and gentlemen.

When the removal of the Upper Coll common grazings committee from office was mentioned that, of course, could not be discussed as it was subject to on going proceedings in the Scottish Land Court.

The third committee that the Crofting Commission have evicted from office was not mentioned at all, other than briefly by me when Commissioner Murdo Maclennan insisted that I declare my interests. I think that perhaps backfired on him as the Commission would rather pretend that episode never happened as there has, to date, been no publicity surrounding it.

So one case conveniently closed, one sub judice and one we can simply forget about. Thus nothing really to talk about.

The extra gloss on this being that new guidelines were being produced by the Commission and all would be well when these were issued and followed. My criticism of this approach is already well known. You have to get the law right first before you write guidelines about how to follow that law. The Commission’s viewpoint is that their interpretation of the law will follow “in due course”. Perhaps this is because their latest massive U-turn means they actually now accept the law to be as I have been setting it out to be on this blog for some time!

The U-turn is great news for the shareholders in the Mangersta Common Grazings and the former members of their grazings committee. It is a vindication of the position correctly maintained by them throughout.

It leaves the Crofting Commission with egg on their face however they try to dress it up. The Emperor’s New Clothes remains a theme, in so far as the Commission is concerned, post the Cross Party Group meeting.

In my next blog post I will reveal how the Crofting Commission not only ignore the law but lawyers who write to them concerning it. In a subsequent blog post I will explore the significance of the latest U-turn by the Crofting Commission and the possible repercussions thereof.

Brian Inkster

Image Credit: Yes Minister © BBC

Update – 2 July 2016: Ignore the law and the lawyers

Common Grazings and the Spirit of the Law

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Patrick Krause

Patrick Krause

I continue to catch up with news of ‘The Common Clearances‘ since I returned from holiday. With the amount of new news on this topic being generated daily this week that is a difficult task!

On 25 May 2016 Patrick Krause, Chief Executive of the Scottish Crofting Federation, published a piece on the Federation’s website. I now reproduce it here in its entirety with a small comment at the end from myself on the question of the will of Parliament.

 

The Spirit of the Law
The inexplicable case of a public body confusing legal dogma with good sense 

The Crofting Commission website says “The Crofting Commission regulates and promotes the
interests of crofting in Scotland to secure the future of crofting.” Following the summary
dismissal of two (or more) grazings committees; the foisting of grazings constables upon the
dismembered grazings; the demolition of crofters’ characters; the contradiction and confusion,
it is no wonder that crofters and those with crofting interests are standing agog and are asking
“What is going on in the Crofting Commission?” It is not for me to make any judgement on the
legalities of the fracas that has been taking place over the past month – crofting lawyers are
willingly giving opinion – but I will attempt to explain the essence. Common grazings are the
epitome of communal working, yet this is a spectacularly detrimental exercise in public
relations by the Commission that threatens the very core of crofting communities. I wonder
what the motive is.

One committee was summarily dismissed for not presenting fully audited accounts. Previously
the Commission had issued official guidance that ‘audited’ did not mean fully audited in the
legal (and expensive) sense, but could be taken to mean an independent examination – the
Commission were taking a “light-touch approach”. At the demand by the Commission for five
years annual accounts, the committee presented an independent examination of its accounts,
as is usual for small businesses and social enterprises and is perfectly acceptable to HMRC,
Companies House and the Charities Regulator. They were summarily dismissed for failing the
demand. This subsequent heavy-handed bombshell has naturally caused fear throughout
regulated grazings that they also are in breach for not having fully audited accounts.

A second committee was also summarily dismissed (both grazings then had a constable foisted
upon them by the Commission, which a leading crofting lawyer claims is not legal in these
circumstances), in this case for not distributing income from resumption. Though the only
shareholder asking for his tiny share of the resumption money was an absentee, legally he had
the right to it, we are told by the Commission.

It is hard to understand why this committee was unexpectedly sacked when it had attempted
to pay the absentee, under guidance of the Commission (and the other was also instantly
sacked even though it had seemed to have complied with all the demands of the Commission).
But let’s leave the detail and look at the principle.

The law says that money due as part value of resumption may be paid by the landlord to the
clerk of the committee for distribution by the clerk among the crofters concerned. The law is
not prescriptive in saying when or how the distribution is to take place. The Commission has
added in its regulations the word “immediate”.

For years grazings committees have managed finance in a workable, business-like fashion.
Income generated from anything, such as resumption of land, schemes for development or
through managing agri-environment schemes, is put in the bank. As in any business,
expenditure on carrying out maintenance or improvements is deducted before any profit is
disbursed to shareholders. If a grazings committee was expected to take all income and pay it
out as dividends to shareholders before deducting expenditure, only to then have to recover
from all shareholders their share of the expenditure, it would be a complete nonsense.

Hobbling grazings by making them produce fully audited accounts, when other similar
businesses or voluntary groups don’t, and making them run an unworkable cash-flow, that no
business would, could not have been the intention of the law, but this is what it seems the
Crofting Commission is trying to enforce, presumably at considerable public cost.

The Commission argue that it is only carrying out its interpretation of the law; but why now
and so destructively? If the Crofting Act is wrong (as much of it has proven to be) it could be
put in ‘The Crofting Law Sump’ for future rectification and the Commission could quietly
resolve the issues, rather than turning this into a public, highly-charged stand-off. If it is
enforced, grazings committees cannot comply so will resign (or be dismissed) and the grazings
will leave regulation – unless the Commission then imposes constables on all grazings.

The Commission clearly knows a lot more about regulation than I, and knows what the
consequences of this will be, but are keeping quiet about its objective. How does this fit with
the Crofting Commission Policy Plan in which it says “The Commission regards the shared
management and productive use of the common grazing to be essential for the sustainability
of crofting. To that end it will … work with crofting communities to promote the establishment
of effective grazing committees and will actively support established committees”?

The Convener of the Crofting Commission is implicated in the fracas perhaps more than a
convener ought to be, having had complaints raised against him for behaviour at one of the
grazings meetings and having turned up unannounced at the other. He came to ‘observe’
apparently. The chair would not allow him to participate as he had a conflict of interest, and it
was surely odd that he was allowed to stay at all, this being the case, and it being against the
wishes of crofters present.

The convener has been widely quoted as saying the Commission is to deliver “the express will
of Parliament”. He would do well to go back and look at the passage of the Bill that became the
2010 Act to see what the will of Parliament was. The will of Parliament is not necessarily the
letter of the law, or in this case, the Crofting Commission interpretation of it, if it is bringing
about the demise of regulated common grazings.

Patrick Krause (Chief Executive of the Scottish Crofting Federation)

Comment on the Will of Parliament

Patrick is correct to highlight the fact that the Commission are certainly not delivering “the express will of Parliament”. This is something I will return to in detail in a later blog post with a clear analysis of what the will of Parliament actually is on this issue. This should also, actually, help to spell out the letter of the law on the matter. It should be noted that to date the Crofting Commission has not given any explanation with reference to the law as to why they are taking the stance or actions that they are and have been taking.

Brian Inkster

Update – 20 June 2016: Crofting Commission flouts the will of Parliament

‘A Menacing Presence’

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'A Menacing Prescence'

It was not the first time that the Crofting Commission had been referred to as ‘The Dark Side’

As indicated previously I am still catching up with news of ‘The Common Clearances‘ since I returned from holiday.

One news item in the saga from last month involved a meeting called by the Crofting Commission with shareholders of the Mangersta Common Grazings (their committee having been removed from office by the Crofting Commission).

There were three press releases relating to the meeting (one with a slightly different slant on it) and that as follows:-

Statement by the Crofting Commission

The Crofting Commission met with shareholders of Mangersta common grazings today, Tuesday 17 May.  The meeting was productive and the Commission would like to thank shareholders for their positive contribution.

The Crofting Commission conducted a closed meeting to give shareholders information on the current state of their common grazings finances as determined by the Commission appointed Grazings Constable.  The meeting has also provided opportunity to seek an agreement on the best way forward to ensure that the committee’s significant level of funds is distributed to shareholders appropriately.   The Commission are committed to achieving a resolution in Mangersta and would like to encourage shareholders to continue to work with us, and hope that this leads to the appointment of a new grazings committee in the near future.

The Commission wants to encourage the good shared management of common grazings across the crofting counties and the most effective way to do this is through properly constituted grazings committees. Clear grazings regulations are the most effective way to safe guard the future common grazing land for the benefit of all crofters.

Statement by the Former Committee members and clerk to Mangersta Common Grazings

The Former Committee members and clerk to Mangersta Common Grazings have expressed “profound concern about the implications for the whole crofting system of the actions now being pursued by the Crofting Commission”.

The statement from the group – who were removed from office on the orders of the Commission – followed a meeting convened by the Commission to explain its position.

Following the meeting, attendees said:

This is no longer about Mangersta or any other specific village which the Commission has intervened in.  It is about the very existence of the crofting system on any kind of viable, community basis.

The position of the Commission is that all money coming into a village for agricultural and environmental schemes must be distributed to individual shareholders, no matter where they live or what their contribution to the crofting life of the village is.

They say that these payments should be declared for the purposes of taxation – the phrase used was that they needed to be ‘taxed and cleaned up’. Individual shareholders should then be asked to make payments back into the Grazings Committee for the purposes originally intended.

In terms of crofting, this is completely mad and unsustainable.  What Grazings Committee is going to apply for any scheme under these conditions?

When shareholders at the meeting questioned the legality of the Commissioners proposals they were told that if all shareholders did not accept them, the Commission would not allow Mangersta Grazings shareholders to reform a committee.

The statement repeated the call for an inquiry into the operations of the Crofting Commission and also asked for an urgent debate in the Scottish Parliament to seek clarification on the issues involved.

At the outset of the meeting, the chairman, William Swann, over-ruled objections to the unannounced presence of the Crofting Commission convener, Colin Kennedy, who did not participate in the discussion. Mr Swann said that Mr Kennedy has a ‘conflict of interest’ but would not ask him to leave the meeting.

Mr. Swann also refused to respond to questions about the legality of the Commission’s actions in removing the grazings clerk and committee members from office replacing them with a Grazings Constable. He said that only the Scottish Land Court could rule on that matter.  The legal advice received by the Mangersta shareholders is that there was no basis in law for the Commission’s actions.

Crofting law expert, Brian Inkster of Inksters Solicitors, who wrote to the Crofting Commission pointing out that, in his view, the appointment of a Grazings Constable in these circumstances was illegal, said:-

The Crofting Commission has not responded with any legal argument as to why they consider their actions to be legal. They have simply stated that they consider their decision to be a final one and they have no authority to revisit their own decisions in these circumstances. So they appear to consider that they can do as they please with no real regard to the law and if decisions are illegal they cannot reverse them!

This is also self evident from the appearance at the meeting unannounced, but with an acknowledged conflict of interest, of convener Colin Kennedy. It is stated in Paragraph 13(2) of Schedule 1 to the Crofters (Scotland) Act 1993 that ‘the convener must, if present, chair meetings of the Commission and any of their committees’. He didn’t chair this meeting, remained silent and allowed Mr. Swann to chair. Yet again the Crofting Commission simply rips up the rule book.

No public body should be allowed to behave like this and now that we have a new Cabinet Secretary with responsibility for crofting, namely Fergus Ewing, he will hopefully put a stop to it.

If Mr. Swann considers that only the Scottish Land Court can rule on the matter then the Crofting Commission should be making an application to the Land Court under Section 53 of the Crofters (Scotland) Act 1993 for confirmation as to the legality or otherwise of their actions. Until such time as they do so, and in the absence of any legal argument to the contrary, my advice to any Grazings Committee who has been dismissed and replaced by a Grazings Constable is to treat any actions by that Constable as being null and void and carrying no legal authority.

The former committee members and clerk reiterated at the meeting that they could see no way forward until the Crofting Commission publicly admit their error and issue an apology for their actions.  The statement said:

The Crofting Commission is a statutory body which must act within the law.

This affair has opened up issues which are fundamental to the whole crofting system and there is no confidence in the Crofting Commission, left to its own devices, to act in the best interests of crofting or in accordance with their statutory remit. Urgent intervention is now required.

Statement by the Scottish Crofting Federation

The Scottish Crofting Federation (SCF) has expressed astonishment that the convener of the Crofting Commission attended the Mangersta grazings ‘closed’ meeting unannounced.

Fiona Mandeville, chair of the SCF, said

This could be seen as blatant intimidation. It is an old trick to bring someone along to a sensitive meeting who sits in the background as a menacing presence. Perhaps this was not the intention, but it was very poor diplomacy.

Following the widely reported skirmishes between two Lewis grazings and the Crofting Commission, notice recently went out to shareholders of Mangersta grazings, from the Crofting Commission, inviting them to attend a meeting to try to move towards resolution in the conflict. The letter made clear that Commissioners William Swan, Marina Dennis and David Campbell would be present. There was no mention that Commissioner Colin Kennedy, who has been at the heart of the two conflicts and was the subject of complaints about his aggressive meeting style, would be there.

Ms Mandeville continued:-

Apparently shareholders attending asked that he be removed from the meeting but the chair, William Swan, said that, although Mr Kennedy had a conflict of interest, he would be allowed to stay.

We are simply astonished. At every turn the Commission seems bent on thwarting this process and opening itself to further criticism. We were encouraged to hear of the meeting and felt the Commission was trying for reconciliation, but this latest misjudgement will add to the grave concern felt by everyone who cares about crofting’s well-being.

Conclusion

Given how the Crofting Commission handled the meeting it is hard to see how they could put such a positive spin on it. The Convener, with an acknowledged conflict of interest, should quite simply not have been there. That in itself could have made all the difference and been the start of the Crofting Commission rebuilding their shattered credibility. The opposite has been the case as subsequent events have testified.

Brian Inkster

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