In our last post we told you about the launch of ‘A Practical Guide to Crofting Law’ by Brian Inkster. You can now watch a video about the launch of this new crofting law book:-
You can read more about the book and buy it online directly from the publisher with a special new publication discount (which will apply for only a short period of time) via croftinglawbook.com
Brian Inkster holding his new crofting law book
A new book on crofting law was launched this past week at a reception held in the main law library of the Royal Faculty of Procurators in Glasgow.
‘A Practical Guide to Crofting Law’ has been written by crofting law expert Brian Inkster.
The book is an introduction to crofting law for those with an interest in it or who may touch upon it. Whether that is lawyers, law students, land agents, crofters, landlords or anyone else with an interest in crofting law.
The book covers the main issues briefly and concisely, aiming to highlight the complexity of crofting law and the pitfalls and traps that await the uninitiated. The aim is that readers will, as a result, be better versed in the basics of crofting law.
Welcoming the publication of the book Patrick Krause, Chief Executive of the Scottish Crofting Federation, said:
This is a book that has been awaited since crofting law was formed, a book that lays out what the, notoriously difficult to navigate, ‘sea of legislation’ is about.
Andrew McCornick, President, NFU Scotland, said:
Brian Inkster is to be congratulated on unravelling the complexities of crofting law into a practical guide that is comprehensive and yet can be easily understood. I am sure this will prove to be a very useful guide to current crofters and those with an interest in crofting.
Katy Dickson, Former Head of Policy, Scottish Land & Estates said:
Brian’s book is an accessible overview of a complex legal specialism which would be a useful addition to the shelf of anyone involved in crofting.
Tavish Scott MSP, Co-Convener of the Scottish Parliament Cross-Party Group on Crofting, said:
This is an extremely helpful guide to crofting law which will help all who have to navigate the Byzantine routes through the law of the land.
Sir Crispin Agnew of Lochnaw Bt QC, Chairman of the Crofting Law Group, said:
Brian’s new book is an invaluable practical guide to demystify crofting law.
The book has been published by Law Brief Publishing. It can be ordered online with a special new publication discount (which will apply for only a short period of time) via croftinglawbook.com
Mairi Gougeon
Hot on the heals of Fergus Ewing MSP being reappointed yesterday as Cabinet Secretary for Rural Economy it was announced today that First Minister, Nicola Sturgeon, had nominated Mairi Gougeon for the new role of Minister for Rural Affairs and the Natural Environment. As such she will report jointly to Rural Economy Secretary Fergus Ewing and Environment Secretary Roseanna Cunningham.
Being SNP MSP for Angus North and Mearns (well outwith the Crofting Counties) I am unsure how familiar Mairi Gougeon will be with crofting law. However, as my law firm, Inksters, has an office in Forfar, within her constituency, I will be more than happy to meet her there (or indeed in Edinburgh) to fill her in on the complexities of crofting law and what reforms are required.
On 28 August 2017 the Scottish Government launched its consultation document [PDF] on the future of Crofting Legislation seeking views on both the form of the legislation and the priorities for change within it.
Launching the document, Fergus Ewing, the Cabinet Secretary for Rural Economy and Connectivity said:
Crofting delivers valuable local benefits and a successful crofting sector helps our rural communities to thrive. It is therefore vital the law that governs it is fit for purpose.
Initial discussions have shown while there is plenty of agreement that the current law needs to change, there are many views on what should replace it.
I would strongly encourage anyone with an interest in the future of crofting – whether crofters, landowners, those living in a crofting communities or in other parts of Scotland – to take part in this consultation and help us improve future legislation.
The Scottish Crofting Federation (SCF) welcomed the Scottish Government’s commitment to continue the process of reforming crofting legislation within this parliamentary session.
Russell Smith, Chair of the SCF, said:-
This is another stage in the long process of crofting law reform and we are pleased that the Scottish Government is taking this forward. Following the 1993 consolidation act there have been several amendments to crofting legislation but this is still unfinished business. The addition of subsequent layers of legislation, and the fact that amendments have introduced further inconsistencies and errors, has rendered current crofting law difficult to access and, in some aspects, unusable.
This consultation is seeking views on the most suitable way to proceed with any crofting law reform and how it might be improved. It opens up opportunities to take a fresh look at crofting legislation and its purpose. At this point we may ask what crofting legislation should achieve and how best it can do this.
It is widely agreed that the law does need to be reformed further and there are suggested a range of options for taking this forward but neither of the two extremes of merely consolidating with little change or starting all over again with a ‘clean sheet’ are going to achieve a desirable result. So, we are being asked to choose between the workable options of amending and then consolidating the law or ‘restating’ it. The consultation document helpfully explains the difference.
Whilst exploring ways to make the legislation fit for purpose we must not lose sight of the fact that crofting legislation was formed to protect crofters’ rights, not to serve lawyers, this principle is inviolable. The crofting act is the heart of crofting and has evolved over 130 years, adapting to work for crofting in a changing world. This is another time of change, but the basic principles of protection must not be lost.
The SCF will be looking at these options in considerable detail and will be both seeking our members’ views and providing information for them. We encourage all crofters, and others with an interest, to attend the events the Scottish Government will be hosting and to respond to the consultation before it closes.
Scottish Government Officials will be holding a number of public meetings where they will deliver a presentation on the purpose of the consultation, an explanation of the options for changing legislation and an overview on how to respond to the consultation. There will be the opportunity to discuss the options available and to raise questions relating to the consultation.
The first such meeting takes place in Lerwick on 13 September with further meetings already scheduled for Oban (19 September), Kirkwall (26 September), Portree (3 October), Fort William (4 October), Glenuig (5 October), Kinlochbervie (10 October), Lairg (11 October) and Gairloch (12 October). More dates and locations will be announced in due course. A full list of the events, which will be updated regularly, may be found on Eventbrite where you may also register your attendance.
The consultation can be completed on Citizen Space or in printed form by contacting your local RPID Area Office. Copies of the Consultation Document will also be available at the public meetings or by contacting The Scottish Government, The Crofting Bill Team D Spur, Saughton House, Broomhouse Drive, Edinburgh EH11 3XG.
The consultation will last 12 weeks and will close at 00:00 on 20 November 2017. Any questions may also be directed to croftingconsultation@gov.scot
It has been suggested that this blog is a good barometer for how well or badly the Crofting Commission are doing. This, we have been told, can be measured by the number of blog posts appearing about the Commission. The more posts there are the worse they are doing: the less posts there are the better they are doing.
Blog posts certainly petered off after the last Crofting Commission elections and the appointment of a new Convener. The Crofting Commission have done nothing since then of controversy that we are aware of. The days of the common clearances, convenergate, SRDPgate, VATgate and Broragate appear, thankfully, to be behind us. So there is, as a result, less to blog about. The new Crofting Commissioners certainly appear to be doing much better than there predecessors.
So, yes, this blog as a Crofting Commission Barometer is not a bad analogy.
There have, however, been events in the world of crofting law that we do need to catch up on.
There are also some issues arising from the tenure of the last set of Crofting Commissioners that we didn’t manage to blog about at the time and, for completeness, will try to fill in when we get the chance.
Keep an eye on the Crofting Law Blog for these updates.
Russell Smith – Chair of the Scottish Crofting Federation
With recent news of crofting commissioner appointments and a new CEO at the Crofting Commission it should also be noted that just before Christmas a new chair was appointed to the Scottish Crofting Federation (SCF).
At their board and council meeting on 16 December 2016, the SCF said thanks to the out-going chair, Fiona Mandeville, who stepped down on completion of her two year tenure. Fiona handed the role to Russell Smith, a crofter from Bonar Bridge in Sutherland.
Mr Smith commented:-
The Federation has achieved a great deal in the past two years, not least the pledges made by the SNP in their manifesto and confirmed recently by the Cabinet Secretary for crofting, Fergus Ewing MSP. The pledges mirror the ‘Five Actions for Crofting’ published by the SCF just before the election.
We have brought crofting very much back on to the Scottish Government agenda with the promise from them to modernise crofting law and make it more transparent, understandable and workable in practice. This will be no mean feat but the law needs to be made to work for crofters not for lawyers. We have won a substantial improvement in the Croft House Grant Scheme and await the government’s action to re-introduce the Croft House Loan Scheme.
Scottish Government will also explore mechanisms to make more publicly owned land available to new entrants, a long running campaign of the SCF, and have promised to introduce a new entrant’s scheme for crofting and to explore the creation of new woodland crofts. At last the National Development Plan for Crofting we asked for is closer to becoming a reality.
So, yes, we have achieved a lot, but there is still much to do. With the prospect of leaving the European Union, one of the few certainties is that support to agriculture and particularly to crofting will have to be fought for. Being the only organisation solely dedicated to representing crofters means that SCF will have to fight hard to avoid being marginalised by big farmers in other parts of the country. Crofters need to stand together under one banner so that our voices can be heard.
Was there an elephant in the room at the crofting cross-party group meeting?
The cross-party group on crofting met last Wednesday at Holyrood.
It was very ably chaired by Tavish Scott MSP. He is one of the three co-conveners of the group, having been elected along with Kate Forbes MSP at the last meeting to replace Michael Russell MSP after Mr Russell became Brexit Minister. Rhoda Grant MSP is the third co-convener of the group.
Fergus Ewing MSP, cabinet secretary with responsibility for crofting, was a special guest at the meeting.
Mr Ewing made it clear at the outset that he couldn’t comment in any respect on the current controversy regarding the convener of the Crofting Commission given the allegations made by him against Mr Ewing which are the subject of an independent investigation.
Mr Ewing outlined all that the Scottish Government is currently doing to assist crofting and its future.
In particular he discussed future crofting law reform. The Scottish Government wants to modernise crofting law and make it transparent, understandable and workable in practice. Mr Ewing made it clear that they very much wanted to listen with no precise timetable in mind.
Mr Ewing stressed the importance of taking time to get it right. I couldn’t endorse that view more and trust that we won’t see the chaos of a huge number of last minute amendments that was encountered in creating the Crofting Reform (Scotland) Bill in 2010. That was possibly partly responsible for many of the issues (not common grazings ones that were not affected by the 2010 legislation) that has led to the current Scottish Government having to tackle crofting law reform so soon again.
After Mr Ewing left the meeting we continued with the topic of crofting law reform. Derek Flyn outlined the background to the crofting law sump report which he described as a “collection of what is wrong with crofting law”.
Michael O’Neil, the newly appointed Head of the Scottish Government Legislation Team, then outlined proposals to take crofting law reform forward.
Mr O’Neil indicated his intention to involve as wide a range of stakeholders as possible. He will get out and about and meet anyone he needs to speak with.
He will refer to the information contained in the crofting law sump and in the Shucksmith Report.
Some questions Mr O’Neil had in mind included:-
A small team has been assembled by the Scottish Government to take crofting law reform forward.
It will be interesting to see this process move forward and we will keep you posted on the Crofting Law Blog as it does.
Bill Barron, the new Chief Executive of the Crofting Commission, was attending his first cross party group meeting. On the agenda was an “update on grazing committee removals and other current Crofting Commission business”. He appeared to dodge being able to provide that update on the basis that it was his fifth day in the job.
However, sitting next to him was the Convener of the Crofting Commission, Colin Kennedy. Mr Kennedy did not offer an update on grazing committee removals and other current Crofting Commission business. Indeed, other than to introduce himself as all attendees did at the outset, Mr Kennedy sat silent throughout the entire meeting. He didn’t speak and no one asked him to speak.
This was, of course, the first crofting cross-party group meeting that Mr Kennedy has attended in this session of Parliament, having avoided the last two. He has thus not expressed the views of the Crofting Commission to the cross-party group since this session of Parliament commenced.
Mr Kennedy has, however, been very vocal in expressing his own personal views (which don’t necessarily coincide with those of the board of the Crofting Commission) in the media over the past few weeks including, in particular, in four successive editions of the Scottish Farmer.
His presence at last week’s cross party group meeting was referred to by some as the elephant in the room. But can the situation simply be ignored?
Brian Inkster has been shortlisted for Solicitor of the Year at the Law Awards of Scotland.
This nomination recognises his endeavours in crofting law over the past year and in particular his quest to see justice done over the alleged abuse of power within the Crofting Commission over the sacking of three common grazings committees.
Brian Inkster has been very vocal in the press, radio and on TV over the issue. He has written 97 blog posts on this topic alone over the past six months.
The Crofting Commission recently accepted their decisions as being wrong and issued an apology to the crofters affected. However, conflict continues within the Crofting Commission with a clear divide between their convener and the other commissioners.
Brian Inkster said:-
I am honoured to be one of only three solicitors in Scotland shortlisted for this award.
Hopefully it will help to highlight further the plight of the ordinary crofter at the hands of a regulator that is out of control.
There is still much more that the Scottish Government needs to do to restore confidence in the Crofting Commission and I will be making my views known on that in the coming months.
Inksters Solicitors who have offices in Glasgow, Inverness, Forfar, Portree, Wick and a visiting base in Lerwick have also been shortlisted for Litigation Firm of the Year and their trainee solicitor, Alistair Sloan, for Trainee of the Year at this year’s Law Awards of Scotland.
The winners will be announced on 24 November at a gala dinner at the Crowne Plaza Hotel, Glasgow.
The dome in the Galleria Vittorio Emanuele II, Milan, Italy
It is over a week since my last blog post. Not because it has been quiet in the world of crofting law but because I’ve been away in Milan. I didn’t quite escape crofting law whilst there as I had a meeting where a translator turned my crofting law advice into Italian. I hope nothing was lost in translation. Not sure what the Italian is for souming!
Last time I was away from the UK I commented that there was ‘no let up on the common grazings crisis whilst on holiday‘. Much the same this time around. Especially due to the fact that the ‘twa Colins’ (as they have become known in the comments section of this blog) are, somewhat incredulously, still in post.
Colin Souter, the Grazings ‘Constable‘ of Upper Coll, still seems to hold that ‘position’ despite the Crofting Commission announcing over three weeks ago that he would be stepping down “as soon as possible“. Why has he not stepped down or been stepped down?
Colin Souter has been uncharacteristically quiet during that period. Whereas Colin Kennedy, Convener of the Crofting Commission, has been uncharacteristically vocal. My last blog post looked at his crofting ‘crusade‘ as revealed in The Scottish Farmer. A week later and The Scottish Farmer have published a letter from Colin Kennedy which starts with an attack on the Scottish Crofting Federation, rambles on a bit and is cryptic in places but seems to be blaming the former Chief Executive of the Crofting Commission, Catriona Maclean, for everything that everyone else has been blaming him for. I will look at that, and the further breaches of the code of conduct by Mr Kennedy arising therefrom, in a future blog post.
Kennedy is the renegade commissioner who is breaking almost all, if not every, ethical standard expected of public office holders. The Editor of the West Highland Free Press wondered a couple of weeks ago how Kennedy had still not received his P45. Patrick Krause, Chief Executive of the Scottish Crofting Federation, writing in the Press & Journal around the same time expected this “Ozymandias with delusions of grandeur” to have been toppled by now.
The First Minister, Nicola Sturgeon, referred to Kennedy’s behaviour as “disappointing” and hinted at the powers the Scottish Ministers had to remove him. Since then he has gone on a personal tirade against those very ministers, his commissioner colleagues and commission staff. How has he been allowed to go on like this? Who is in control? What message does this send out to crofters and the general electorate? Where and how will it all end?
I referred earlier to “former” Chief Executive, Catriona Maclean, because her replacement on an interim basis, Bill Barron, started work at Great Glen House on Monday. I will also look at that in more detail in a future blog post.
However, how can this new interim Chief Executive be expected to effectively operate an organisation where the Convener has gone renegade? Where that convener does not have the support of the other commissioners, the Scottish Ministers, any of the crofting representative bodies or the vast majority of crofters? Could the role be any more of a poisoned chalice?
What else happened over the past week? Well:-
A week is clearly a long time in crofting law!
More detail on some of these stories will appear in future blog posts. Do subscribe to this blog by inserting your e-mail address in the box in the top right of this page and press ‘Subscribe’. You will then receive the latest blog posts directly into your mail box as soon as they are published. You don’t want to miss that baboon-a-gram story 😉
Colin Kennedy wouldn’t comment to BBC Alba as he left the meeting at Brora Golf Club yesterday. However he decided to express his views today via The Herald.
The Herald scooped a highly unusual exclusive. They managed to get a statement from Colin Kennedy, Convener of the Crofting Commission.
Normally Colin Kennedy avoids giving statements on behalf of the Crofting Commission allowing others to do that for him. Today he gave The Herald a personal statement following calls by his fellow commissioners yesterday for him to resign after he walked out of the board meeting at Brora Golf Club.
He told The Herald:-
I have not resigned. My health has suffered in the recent weeks having been put under ridiculous pressure by the Scottish Government minister responsible, and his cohorts. They want me to sweep matters of crofting law under the carpet, because they are inconvenient politically. I refused to do that.
Has Mr Kennedy considered the health of those who have suffered from unfairly being removed from office as grazings committee members?
Mr Kennedy, in my view, seriously misinterpreted the law. He appears to have gone against advice provided to him by officials. I have asked the Crofting Commission on a number of occasions to justify the actions taken by them with reference to statutory provisions and/or case law. They have failed to do so. The best they can do is to say that a decision taken by them is a final one and cannot be revisited by them. That is to say they can, in effect, make illegal decisions and then don’t need to justify them or revisit them.
Numerous posts on this blog give reasoned legal argument as to why Mr Kennedy got it wrong. He has not, even through the pages of The Herald, sought to put forward a reasoned contrary view.
The Scottish Government has clearly taken their own legal advice on the matter and they disagree with Mr Kennedy’s view. They are his superiors and he should be accepting their direction.
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 have been given to Mr Kennedy. He can’t sweep Section 1(3) under the carpet and refuse to do as directed. By doing so he is flouting crofting law and flouting the will of Parliament.
Does that in itself make Mr Kennedy “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”? [Paragraph 9(1)(e) of Schedule 1 of the 1993 Act]
Image Credit: Colin Kennedy leaving the meeting at Brora Golf Club © BBC Alba