Tag Archives: crofting communities

My response to the Consultation on the Future of Crofting Legislation

The Consultation on the Future of Crofting Legislation received responses up until 20 November 2017. An analysis of the responses was published on 21 March 2018 and Fergus Ewing MSP, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting, outlined the Scottish Government’s plans for legislative reform to the Cross-Party Group on Crofting on 28 March 2018.

I will come back on this blog to look in more detail at the analysis and Government plans. In the meantime I thought I should publish here my own personal response to the Consultation.

Current Scottish Government crofting policy may be stated as:

The Scottish Government values crofting as a form of land tenure and recognises
the added contribution that crofting continues to make to the rural economy and the
sustainability of rural and remote rural communities.

The Scottish Government is committed to reforming crofting to secure its future,
bring new blood into crofting communities, and ensure it can continue to contribute to
the development of a thriving rural Scotland.

This policy is reflected in the current legislative framework which places a number of
duties on crofters, including the duty to reside within 32 km of the croft; cultivate the
croft, or put the croft to another purposeful use; and not misuse or neglect the croft.
These duties serve to maintain the integrity of rural communities in the Highlands
and Islands.

Question 1: Do you agree with the stated Scottish Government policy on crofting?

Answer 1: No strong views on the question of policy but will refer to it when commenting on the ‘Clean Sheet’ approach to legislative reform below.

Question 2: Please select your preferred option to indicate which you believe to be the most suitable way to proceed with any crofting law reform. Should you wish to suggest another approach that has not been discussed above, then please select ‘other’ and provide details.

The options given were:-

Option 1 – Consolidation Bill
Option 2 – Bill amending existing legislation / Pre-Consolidation Bill
Option 3 – Bill amending existing legislation and restating crofting law
Option 4 – Bill setting out ‘new’ crofting law

Answer 2: Option 2.

The Scottish Government has already given a commitment to legislative change. Option 1 will not achieve that and arguably should not have been an option at all.

The Scottish Government’s Crofting Policy “is reflected in the current legislative framework” and thus there would appear no merit in pursuing a ‘Clean Sheet’ approach when current legislation and policy coincide. There is also a danger that pursuing a ‘Clean Sheet’ approach will result in much debate and little ability to actually fix the problems identified in ‘The Sump’ Report within this Parliamentary term. Thus Option 4 should be discounted.

It would appear that Option 3 may result in less problem areas being tackled than Option 2. Consolidation does not need to happen at the same time as amendments to the law and should not be pursued at the same time if that is going to reduce the number of amendments involved to existing law.

Thus Option 2 is really the only sensible one for the Scottish Government to pursue.

Questions 3 – 9 asked various questions on (1) Absenteeism, Misuse and Neglect; (2) Assignation and Succession; (3) Common Grazings; (4) Crofting Commission Regulatory Functions and Processes; (5) Crofting Registration; (6) Owner-occupier Crofts; and (7) Standard Securities.

Question 10 asked for those seven issues to be listed in order of priority: ‘higher priority’ first to ‘lower priority’ last.

Rather than answering those questions individually, or providing a priority list, I decided to deal with that as part and parcel of my answer to question 11 and simply referred the Scottish Government to that particular answer.

Question 11: Please tell us any other thoughts you have about the proposed Crofting Legislation reform not covered in your earlier answers.

I have not answered questions 3 to 10 as I consider my views on these matters to be covered by ‘The Sump’ Report (November 2014) [PDF] and the Proposals put forward by the Scottish Government’s Crofting Legislation Stakeholder Consultation Group (10 February 2015) [PDF]. These documents prioritise matters but ultimately are of the view that all (not some) of the problem areas identified should be tackled and fixed by the Scottish Government. A new Bill under Option 2 should set out to do just that.

My views on Standard Securities are contained in an article entitled “Is it Time for a Crofting Mortgage Bill?” originally published by The Firm Online on 31 May 2010 and subsequently reproduced in The Crofting Law Group Newsletter. Those views have not changed with the passage of time.

Those were my responses. You can view 97 of the 122 submitted responses (N.B. 97 of those 122 respondents gave consent to publish their responses) via this Scottish Government link: https://consult.gov.scot/agriculture-and-rural-communities/crofting-consultation-2017/consultation/published_select_respondent.

In future blog posts I will look at the analysis of those responses and the Scottish Government’s plans in light of that analysis. I will also publish on this blog my views on Standard Securities from 2010 as ‘The Firm Online’, where those views were originally published, is no longer online.

Either he Jumps or he will be Pushed

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Sally Magnusson – BBC Reporting Scotland

Reporting Scotland took up the Broragate story yesterday following the questions asked by Tavish Scott MSP at First Minister’s Question Time on Thursday.

Sally Magnusson introduced the news item:-

Pressure is mounting on the head of the Crofting Commission to resign after the First Minister warned that the Government would intervene if it didn’t put its own house in order.

This follows a turbulent few months during which the Commission was forced to apologise to crofters in the Western Isles and then passed a vote of no confidence in its own convener.

Craig Anderson – BBC Reporting Scotland

Craig Anderson explains:-

Its feared by many as an idylic lifestyle, part time farming on small parcels of land with tiny rents.

There are almost 20,000 crofts in Scotland protected and regulated by government agency the Crofting Commission.

But the body is imploding. It suspended two local grazings committees in Lewis earlier this year on the grounds of financial mismanagment but was forced into a u-turn when that was ruled heavy handed if not illegal.

Brian Inkster commented:-

It all begins with the common grazings committees having been put out office. There were two put out of office in Lewis and one in Lochaber. It is really how the Crofting Commission has gone about that and the uproar that has caused.

Convener of the Crofting Commission, Colin Kennedy, storms out of the board meeting in Brora

Craig Anderson continued:-

The Scottish Government then called on the commission and its convener Colin Kennedy to apologise to the crofters involved.

Last week he stormed out of commissioners meeting. They issued an apology and then passed a vote of no confidence in Mr Kennedy.

So who’s running the show the First Minister was asked at Holyrood yesterday.

Nicola Sturgeon MSP answered:-

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.

Colin Kennedy and other crofting at Brora before he ended the meeting and walked out

Colin Kennedy and other crofting commissioners at Brora before he ended the meeting and walked out

Craig Anderson pointed out:-

I contacted Mr Kennedy at his home on the Island of Coll by phone earlier today and he told me he had no plans to resign but would make no further comment.

But the implication of the intervention by Nicola Sturgeon is clear: either he jumps or he will be pushed.

Tavish Scott MSP said:-

There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.

What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.

Craig Anderson asked:-

But does any of this really matter to the people who actually live and work in our crofting communities?

Brian Inkster – Crofting Lawyer

Brian Inkster responded:-

People being removed from office unfairly and unjustifiably has a huge affect on small communities. Allegations made about people that have not been proven to be correct. It has split/divided communities, caused lots of problems.

Craig Anderson rounded the news item off:-

There is a saying that a croft is a piece of land surrounded by legislation. It’s an old joke, but never was a truer word spoken in jest.

Image Credits: Reporting Scotland © BBC

Croft Wars: A New Hope

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The dark side ultimately fell at the hands of the rebel crofters where the force was strong

The battle by the rebel crofters against the dark forces of the Crofting Commission took a turn in the direction of justice and rightfulness yesterday.

Fergus Ewing MSP, Cabinet Secretary with responsibility for Crofting, met with all of the Crofting Commissioners in Edinburgh to discuss the dismissal by them of three common grazings committees (two in Lewis and one on the Scottish mainland).

It has been reported that Mr Ewing told Commissioners that he expected them to rescind their decisions to dismiss and issue an apology to the three grazings committees in question.

This implies that it will bring to an end the imposition by the Crofting Commission of the grazings ‘constable’, Colin Souter, on the Upper Coll Common Grazings.

It was also reported that Mr Ewing has instructed government officials to carry out a review of the governance of the Crofting Commission.

Kate Forbes, MSP for Skye, Lochaber and Badenoch, said: –

The Crofting Commission, like any public body, must enjoy the trust of those it is working to serve and, sadly, the disputes over the past few months have been a cause of concern for those who want to support the crofting community.

As such, I support Fergus Ewing’s commitment to moving on, apologising where necessary and putting in place the necessary safeguards so that crofters are not sidelined in the cause of small ‘p’ politics and damaged relationships.

The Scottish Crofting Federation has welcomed the news. Their Chair, Fiona Mandeville, said:-

It has taken a long battle to get to this point, but it is extremely good that it is reported that Mr Ewing has made clear his support to crofters by directing the Commissioners to issue a full, unequivocal, public apology for their mistreatment of common grazings committees. This whole episode has been badly damaging to individuals, to crofting communities and to crofting itself, so we hope an apology may be the first step in a healing process.

As the person who seems to be behind the on-going attacks on crofting committees, it would be appropriate for the Convener of the Crofting Commission, Colin Kennedy to give the apology in his resignation statement.

The Scottish Crofting Federation has been asking for a review of the Crofting Commission, to look critically at its procedures and governance. The news that Mr Ewing has instructed government officials to carry out a review is very promising. This situation must be prevented from happening again by modifying the way the Commission works. It makes no sense at all that the Convener was involved in local meetings, and was making personal statements regarding grazing committee business. Acting as some sort of maverick lawman is not appropriate. The board of the Commission should be, as any board, for strategic direction and governance.

And as for Kennedy’s imposed, and lawyers say illegal, henchman, Constable Souter, he must be removed from Upper Coll immediately. He has no place in crofting, is aggravating bad feeling and is standing in the way of democratic process.

Luke Croftwalker and Han Silo receive their medals for bravery in standing up for the rights of crofters and defeating the dark side of the Crofting Commission

The Crofting Commissioners meet next week (on 28 September) in Brora for a board meeting. It is assumed that it will be decided at that meeting to follow the directions given by Mr Ewing and rescind their previous decisions and issue an apology to the crofters in question. That apology will presumably have to be given by Convener Colin Kennedy who has the particular responsibility of representing the views of the Board to the general public.

Brian Inkster

Images Credit: Star Wars: Episode IV – A New Hope © Lucasfilm Ltd

The cost of the Common Clearances

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In 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

Common Grazings and the Spirit of the Law

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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

Shetland and Orkney should be separate constituencies in the 2017 crofting election

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Tavish Scott thinks Orkney and Shetland should remain separate constituencies in the 2017 crofting elections

Tavish Scott: “The consultation needs to offer something different: separate constituencies for Orkney and Shetland in the 2017 crofting election”

Following my recent blog post on the 2017 Crofting Elections Consultation being flawed there have been calls for Shetland and Orkney to remain separate constituencies in the 2017 crofting election.

The Shetland Times reported online yesterday that Liberal Democrat candidate for Shetland in the Scottish election, Tavish Scott, was of the view that Shetland and Orkney should be considered as separate constituencies in the 2017 crofting election.

Mr Scott said:-

Shetland’s crofting communities face different challenges to those in Orkney, but yet again the Scottish government is proposing to ride roughshod over the needs of local people.

The SNP simply does not understand these differences. Already we have ministers who have imposed a one-size-fits-all approach, failing to take into account the unique nature of crofting in the isles.

Already crofters are spending more time meeting the demands of regulation and waiting for payments that have been delayed by months.

The consultation needs to offer something different: separate constituencies for Orkney and Shetland in the 2017 crofting election.

Diversity between our crofting communities should be encouraged and supported but the SNP does not appear willing to even entertain that idea.

This view was backed up by NFU Shetland Chairman, Jim Nicolson, who said:-

Regarding constituencies, my position is that Shetland remains a constituency on its own.

It’s very, very difficult for whoever is the commissioner. It’s time consuming, expensive, and there are a large number of crofters to represent in Shetland as it is.

Hopefully the consultation exercise will take account of such views resulting, if necessary, in the addition of a further elected crofting commissioner to allow the Western Isles to be split into two constituencies (if there does indeed exist the desire to do so) but not at the expense of unnecessarily and unreasonably combining Orkney with Shetland.

Brian Inkster

Photo Credit: Rob McDougall

Crofting Law Blog

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Tag Archives: crofting communities

My response to the Consultation on the Future of Crofting Legislation

Either he Jumps or he will be Pushed

Croft Wars: A New Hope

The cost of the Common Clearances

Common Grazings and the Spirit of the Law

Shetland and Orkney should be separate constituencies in the 2017 crofting election