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

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

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

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

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

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

Rural Economy Secretary, Fergus Ewing, said:-

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

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

Crofting Commission Chief Executive, Bill Barron, said:-

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

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

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

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

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

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

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

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

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

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

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

As far back as April 2016, I stated:-

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

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

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

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

Then in June 2016 the Scottish Crofting Federation reiterated its call on Scottish Ministers to intervene in the crofting common grazings debacle and to instigate an external examination of the Crofting Commission, following revelations of a cover-up. Fiona Mandeville then said:-

We reiterate our petition that the Scottish Ministers intervene and ensure that an impartial examination of the Commission’s recent conduct is carried out by a competent external body.

This is extremely disappointing. It seems that the only way to deal with this is through an external audit of the Commission’s behaviour over the common grazings. And we do mean a full audit.

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

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

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

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

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

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

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

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

Brian Inkster

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

Crofting chaos escalates

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Despite 101 blog posts highlighting the crisis within the Crofting Commission, a review being commissioned by the Scottish Government into their governance and countless calls from all quarters for the current Convener, Colin Kennedy, to step down the chaos within the Crofting Commission just seems to get worse by the day.

Before Christmas it truly escalated with the Convener calling a secret meeting of commissioners in an attempt to purportedly overturn the decisions taken at Brora, including the call for him to resign. He failed. Things did not go well for him either, a few days later, at the scheduled meeting of the board on 14 December. That board meeting was covered by BBC Alba and we reproduce here their full report:-

Iain Maclean (presenter) highlighted the matter at the outset of the evening news headlines:-

This evening, more chaos and controversy surrounding the Crofting Commission as two officials refuse to attend a board meeting, they say that they cannot work with the current board.  Three co conveners, have asked the Scottish Parliament for an intervention in relation to Colin Kennedy.

BBC Alba - Commission Chaos - 141216 - Tavish Scott MSPTavish Scott MSP was interviewed stating that:-

The Crofting Commission has failed now to work for crofters, it’s now a mess, it’s now working in an extraordinary manner, involving people leaving the room and not working with the current Chairman.

Then when it came to the full report the presenter, Iain Maclean, stated:-

We start tonight with more absolute crofter chaos, after two officials have refused to attend meetings.  They maintain that they cannot possibly work with the current board.  This follows from the events that unfolded at the last meeting in Brora.  Let us look at today’s meeting in Inverness with Donald Lamont.

BBC Alba - Commission Chaos - 141216 - Colin Kennedy, Convener

Colin Kennedy, Convener of the Crofting Commission, was reportedly looking “very uncomfortable” at the board meeting in Inverness on 14 December 2016

Donald Lamont, reporting from Inverness, told us:-

Everything seemed very wrong at today’s meeting in Inverness, first of all it was obvious that not everyone was present.  Two officials refused to attend and were not present. This suggests that things are coming to a head for Colin Kennedy, who looked very uncomfortable today.

BBC Alba - Commission Chaos - 141216 - Bill Barron, Interim Chief ExecutiveBill Barron. Interim Chief Executive of the Crofting Commission, was then interviewed. He said:-

It’s very regrettable to me that two of my staff didn’t feel comfortable coming to the meeting. That’s because, one commissioner has made various allegations, criticisms, about what they have done in recent months.  They find that unacceptable and I’m supporting their position on that.

Donald Lamont continued:-

One can understand with this news, some of the commissioners are very angry, David Campbell being one of them.

BBC Alba - Commission Chaos - 141216 - Board Meeting - David Campbell, Commissioner, speaksFootage was then shown of the meeting itself with David Campbell saying to the board:-

This is extremely disturbing, extremely disturbing, the most disturbing thing I’ve come across in my time on this board… that two members of staff, by the sounds of what you said there, feel unable to be present here and by your description are unable to work with this board directly in a public forum… that gives me grave, grave concerns.

Donald Lamont went on to say:-

Few of the commissioners still support Kennedy, but things are far from right amongst the board.  With the Commission’s own situation, it is obvious that the crofters themselves are no longer the priority.

Then back to Bill Barron who elaborated:-

On Friday we accepted that it was one continuous meeting in two valid parts. What happened today was that we approved the vast majority of the  minutes of that meeting. There are two issues still to be ironed out on that.  We also noted that there are some doubts about the way the piece of business that led to the motion against the convener, the way that was called, but the commission decided to take no particular further action on that.

Iain Maclean (presenter) then came back on air to say:-

We now go to Holyrood to our political correspondent Niall O’Gallagher.

BBC Alba - Commission Chaos - 141216 - Niall O'GallagherNiall O’Gallagher, reporting from Holyrood, advised:-

They have now moved their business from the Highlands to Edinburgh in relation to the Kennedy situation.  We had three political figures from Labour, SNP and the Lib Dems come together to say that, the minister concerned, Fergus Ewing, needs to remove Colin Kennedy from the Commission to move forward. Talking to us is Lib Dem, Tavish Scott.

Tavish Scott MSP said:-

The Crofters Commission cannot carry on with the chairman it’s currently got, and the dysfunctional nature of the organisation where the senior staff meant to work together for the crofters are instead fighting like ferrets in a sack.  This has got to change.  The minister would have my full support if he now steps in, makes the changes that need to happen, including getting rid of the current chairman, and getting the organisation back to doing what it’s meant to do and that is serving the crofters.

Niall O’Gallagher then continued:-

Other than questions and concerns about the people involved in the Commission at the moment, there is also questions about the work that they actually do.  The opinion many have of the Commission is not a good one, they are not seen to be working to help the crofters who should be their prime concern.  Talking to us from the SNP is Kate Forbes.

BBC Alba - Commission Chaos - 141216 - Kate Forbes MSPKate Forbes MSP said:-

We need to do something.  Next year will be a very important year, they will have elections.  We need to change the situation now!

Presenter, Iain Maclean, returned:-

Thank you Kate, now back to Niall at Holyrood.  What is happening at parliament this evening?

Niall O’Gallagher then rounded matters off from Holyrood:-

We didn’t get a chance to speak to Fergus Ewing tonight.  The parliament’s view is that they don’t want anyone with bad intentions within the Commission.  We managed to have a few words with Alasdair Allan. Talking on behalf of the government he said that there would be an opportunity to pick new commissioners but that it was not for Holyrood to make any quick impulse decisions.

BBC Alba - Commission Chaos - 141216 - Cross Party MeetingIt was also reported online on BBC Naidheachdan that Professor Donald Meek from Tiree, who attended the meeting at Holyrood, had said that all the uncertainty was doing great harm. He is quoted as saying:-

What I realised this evening, was that I was very familiar with the old Commission.

Whatever was happening with the old Commission, there was never any uncertainty about the Commission’s own situation.

The Commission was somewhat subtle, stable, and although you were now and again not in agreement with the Commission, the Commission was still a guiding stone for crofting affairs.

That is not true now at all, ever since the uncertainty arose  in relation to those leading, those who shouldn’t even be there, so on and so forth.

View from the Crofting Law Blog

It is clear (if it was not already) that all is not well at Great Glen House. Now senior employees of the Crofting Commission are refusing to attend board meetings purportedly due to issues involving the Convener.

Despite attempts by the Convener to reverse or nullify the decisions taken by the board at Brora he has failed to do so.

Indeed Bill Barron, Interim Chief Executive to the Crofting Commission, clarified to the Cross Party Group on Crofting at Holyrood, that six commissioners had asked the Convener to stand down at the Brora meeting and have not recanted on that. The Convener has chosen not to.

Thus the call from all six commissioners, who met after the Convener walked out of the board meeting at Brora, for the Convener to resign still stands.

We now also have it reiterated by MSPs from the SNP, Scottish Labour and Scottish Liberal Democrats that they believe that the Convener should go.

Yet the Convener remains defiantly in place, apparently pending hell freezing over.

Investigations concerning a complaint made by the Convener against Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, appear to still be ongoing. The Scottish Ministers have, it would seem, been paralysed from taking any action concerning the position of convener pending the outcome of those investigations, despite the fact that it remains within their power to do so.

Perhaps the New Year will see this mess unravel and be properly sorted in the way I suggested it should have been back in April 2016. Eight months is hardy a period that would allow Scottish Ministers to be accused of making “quick impulse decisions” as Alasdair Allan MSP suggested might be the case to BBC Alba!

Meantime crofters suffer from a Crofting Commission that cannot, it would appear, be properly regulated itself let alone effectively regulate crofting.

Brian Inkster

Image Credits: © BBC Alba

Gaelic credit: Thanks to Vicki Folan of Inksters for translating the BBC Alba coverage from Gaelic to English

The Crofting Commission has become a three-ring circus

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The Crofting Commission has become a three-ring circus

Every good circus needs a performing elephant!

The title of this post is the title of the Editorial in the West Highland Free Press (WHFP) published on 16 December 2016.

We reproduce that Editorial here as an important addition to the 101 blog posts already published on the fiasco arising from ‘The Common Clearances‘:-

For the last three months the Crofting Commission has not been dysfunctional. it has been non-existent.

As the Crofting Commission is the regulatory body of almost 20,000 crofts occupied by over 30,000 people – including around half of the combined populations of the Western Isles, Skye and the west Highlands – that is plainly unacceptable.

This dire state of affairs originated in the persecution of grazings committees in Lewis and Lochaber by the commission’s convener, Colin Kennedy.

Following a widespread outcry, Mr Kennedy’s edicts were overthrown and he was ordered by the crofting minister, Fergus Ewing, to retreat and apologise.

In September the rest of the commissioners issued their own apology and passed a vote of no confidence in Colin Kennedy, who had stalked out of the meeting.

In the real world, that would have been that. Mr Kennedy would have vacated the convener’s chair. The Crofting Commission would have dusted itself down and continued to do its duties as best as possible.

In the unreal world of the Crofting Commission chaos ensued.

Colin Kennedy has refused to accept the censure of both the Scottish Government and his colleagues on the Crofting Commission. Even more remarkably, the other commissioners and the crofting minister seem prepared to accept this.

As we go to press on Wednesday the Crofting Commission is meeting in Inverness. Following recent form, we have no idea what will transpire. It could be anything from another walk-out to a song and dance act in the grounds of Great Glen House.

It is possible that the commission will settle for a quiet life and accept the status quo – Colin Kennedy included – until its elections next March.

That would mean three months of a non-existent Crofting Commission followed by three months of a dispirited and barely functional Crofting Commission.

Why has the crofting minister allowed this to occur?

View from the Crofting Law Blog

The WHFP have a greater grasp of the situation and have been more vocal than most news papers in calling for a resolution thereof by the Scottish Government over the past few months.

They are as perplexed as I, and many others are, at the dithering on the part of the Scottish Government over it.

Unfortunately a song and dance act in the grounds of Great Glen House did not take place at the board meeting underway as the WHFP went to press that Wednesday. Perhaps that is being saved until the Scottish Government does take the action that it really needs to take 😉

Another walk-out was nearer the mark as will be revealed in our next blog post.

Brian Inkster

Image Credit: Coll-ossus cartoon © A concerned crofter

three-ring circus - definition

Why are the Crofting Commissioners not meeting?

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Why are the Crofting Commissioners not meeting

No commissioners to be seen at Great Glen House this past week

Following the controversial Crofting Commission board meeting in Brora their next one was set down to take place at Great Glen House in Inverness on 9 November 2016. However a few days before the date of that meeting a notice appeared on the Crofting Commission’s website stating that:-

The Board meeting due to take place on 9 November has been postponed, as several Commissioners are not available on that date. A new date is being arranged and will be notified as soon as possible.

This is quite extraordinary. These meetings are scheduled months, perhaps a whole year, in advance. Commissioners know when they are happening and should be available for them. There will always be occasions when a commissioner can’t make the meeting for good reason but the meetings continue regardless with those who can attend.

Meetings of the Crofting Commission  must consist of at least five members. Where there are three or more elected members, the quorum must include no fewer than three such members.

There are currently seven commissioners in post out of the nine possible, with two positions waiting to be filled following the resignations of Susan Walker and William Swann.

So were at least three of the commissioners not able to attend the meeting on 9 November and if so why not?

Commissioners may attend meetings by videoconference or by teleconference if not able to attend in person. Is it really the case that at least three commissioners could not attend in person and could not attend by videoconference or by teleconference?

There does not appear to be anything in the Standing Orders relating to the Conduct of Meetings for the Crofting Commission allowing the postponement or rescheduling of a meeting in advance of it taking place once a date has been fixed.

There are provisions on the day of the meeting if a quorum is not present for the Convener to allow ten minutes before adjourning the meeting and fixing a time, then or afterwards, for it to take place.

As often seems to be the case these days the Crofting Commission appear to be ignoring the rules and making it up as they go along.

It has been suggested by some that the divisions within the board, and the position that has prevailed since the Brora meeting, mean they simply cannot meet and cannot make decisions at board level. At least not whilst the current Convener remains in post.

Bill Barron, on being appointed interim Chief Executive, said:-

I am looking forward to working with everyone at the Crofting Commission and our partners, to ensure that the Commission remains focused on giving a good service to crofters, promoting and protecting the interests of crofting, and providing effective regulation.

Not a good start to his watch for him to allow the first board meeting to be cancelled. There is clearly actually a severe lack of focus on giving a good service to crofters, promoting and protecting the interests of crofting, and providing effective regulation.

Meantime the Scottish Government has formally announced its review into the governance of the Crofting Commission. The latest goings on at Great Glen House, this past week alone, demonstrate how necessary such a review actually is.

Brian Inkster

Crofting Federation call on the Commission’s Convener to be ousted

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Scottish Crofting Federation call on Crofting Commission Convener Colin Kennedy to be oustedOn the back of assertions by Colin Kennedy in the press and on TV that he has no intention of resigning as Convener of the Crofting Commission the Scottish Crofting Federation has called on the Cabinet Secretary for crofting, Fergus Ewing, to oust him. First Minister, Nicola Sturgeon, hinted at their ability to do so at last week’s First Minister’s Question Time. The BBC suggested if he didn’t jump he would be pushed.

Fiona Mandeville, Chair of the Scottish Crofting Federation, said:-

This dreadful humiliation of crofting regulation and complete waste of public money has got to stop.

In his latest statements to the media, Mr Kennedy has said that he intends to stay in place as Convener of the Crofting Commission. He still refutes any wrong doing and claims to have operated within the law, despite the fact that lawyers and the Cabinet Secretary for crofting, who is himself from a legal background, have said he is wrong. That is some arrogance.

To top this Mr Kennedy said on the BBC that he had no knowledge of the fact that his fellow Commissioners have no confidence in him. He must be the only person in Scotland who hasn’t heard that last week the Commissioners unanimously agreed that Mr Kennedy should stand down, following his petulant abandonment of their board meeting. This joins the widespread calls from the Scottish Crofting Federation, crofters and politicians for Mr Kennedy to go. He’s now a laughing stock if it weren’t so serious a situation. He is a lonely figure with his head stuck firmly in the sand.

How much is this whole affair costing the public purse? The resources being used trying to clean up after Mr Kennedy’s bungling must be astronomical. We have the existential crisis of Brexit staring us in the face and the fundamental weaknesses in the whole regulatory framework, yet a phenomenal amount of everyone’s time and energy is being expended on this one deluded despot.

The Cabinet Secretary must end this farce and restore some normality in crofting by demanding Mr Kennedy’s resignation forthwith. It is within his power to do so. Mr Ewing has the support of the Crofting Commissioners, the public, MSPs and the First Minister. If it just takes all the parties to formally give their support, we urge them to make this clear. Crofting is too important to the Highlands and Islands to let this man run rough-shod over the lives of decent people any longer.

Image Credit: Lord Sugar says “You’re fired” on The Apprentice © BBC

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

Crofting Convener seeks to stop SRDP funding for Common Grazings

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I don't believe it - Crofting Commission up to their neck in it

“I don’t believe it!”

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

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

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

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

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

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

Brian Inkster

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

Keystone Crofting Cops

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Croftstone Cops (aka Grazings Constables)

Yes Commissioners… we’ll do whatever you say.

This post will give an insight into the workings of the Crofting Commission when, contrary to their own policies and procedures, they proceeded to appoint grazings constables illegally. It will also highlight how incompetent such appointments are.

All three cases involving the appointment of illegal grazings constables centred around monies that certain shareholders believed should have been paid to them and the Commission’s insistence that such monies should indeed have been paid out.

Minutes of a meeting of the Crofting Commission regarding the proposed removal from office of a grazings committee and clerk and appointment, in their place, of a grazings constable state:-

After discussion, the Commission agreed that the [name of Grazings Committee] would be written to and given 28 days to pay the money due to the shareholder. If after the 28 days have passed, they have failed to pay the money, the Committee and Clerk will be removed and a Constable appointed with the sole function of paying the monies due.

The appointing of the Constable will be decided by the Convener, Vice-Convener and Chief Executive.

Discussion took place about how the Constable would be able to sign cheques on behalf of the Grazing Committee and the Commission agreed that the Order issued to the Grazing Committee advising them that they have been removed from office should be worded clearly enough to maximise the ability of the Constable to access funds. However, the Commission cannot guarantee that the bank will accept the Order.

The Crofting Commission has no power to order payment of monies by grazings committees to shareholders. Indeed their own guidance on such matters states:-

The Commission will not get involved in any matter relating to alleged financial impropriety. This is potentially a civil and/or criminal matter and should be dealt with by the relevant authorities.

Thus they breached their own policies and procedures and acted without any power to do so in ordering the grazings committee to make payments. That is the case whether or not such payments were legitimately due and payable to the shareholder in question. That would have been a matter for that shareholder to pursue, as they considered appropriate, through the civil or criminal justice system.

It is interesting (and perhaps somewhat alarming) that the Crofting Commission decided that this particular grazings constable would be appointed “with the sole function of paying the monies due“.

Whilst the Crofting Commission have no power under and in terms of the Crofters (Scotland) Act 1993 to appoint a grazings constable to do a specific task ordered by them it is alarming that they would think, under any circumstances, that this would be a sensible approach to take.

A grazings committee and grazings clerk will potentially have many tasks to fulfill. By putting a committee out of office and not making appropriate and legal arrangements to allow those tasks to be continued the Crofting Commission is clearly evading its responsibilities as a regulator and acting in a highly irresponsible fashion.

The Convener of the Crofting Commission was at the ready to put in place a grazings constable who would pay out the monies if the first constable appointed to do so “has any difficulty and backs out“.

The appointment of a grazings constable where a grazings commitee has been removed from office is, however, in itself illegal. In such circumstances the Crofting Commission has no power to appoint a grazings constable and instead under section 47(8) of the 1993 Act:-

may appoint or provide for the appointment of other persons (whether crofters or not) in their or his place

The only ability for the Crofting Commission to appoint a grazings constable falls under section 47(3) of the 1993 Act. This is where the crofters who share in a common grazing fail at any time to appoint a grazing committee.

An illegally appointed grazings constable whose actions would be null and void should, of course, be let no where near a cheque book! The Crofting Commission however, knowing that they couldn’t guarantee that a bank would accept the position, decided that they would frame an Order as best they could to persuade a bank to do so!

Hopefully, no bank has been daft enough to allow an illegally appointed grazings constable such access. If they have done so the shareholders should have recourse against the bank as well as, of course, against the Crofting Commission. Also as Donald Rennie has stated:-

if a purported constable takes as much a penny piece from the crofters sharing in the common grazing, with intent permanently to deprive them of that money, he is at serious risk.

This farcical state of affairs would, unfortunately, not be out of place in a Mack Sennett comedy. No wonder that there have been calls for the Scottish Government to investigate and for the Convener to consider his position.

Brian Inkster

Image Credit: By Mack Sennett Studios – Publicity still from 1914 film “In the Clutches of the Gang”, via Wikimedia Commons

Oh yes you did!

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Oh yes you did!

The whole truth and nothing but the truth?

On Monday of this week the Chief Executive of the Crofting Commission, Catriona Maclean, published an open letter. It reads:-

There has been much said recently about the Crofting Commission and its actions, in particular in relation to common grazings.  As the regulator for crofting we cannot comment on specific cases but it is clear that there have been a number of issues raised which many people have expressed concern over and the full circumstances of why action was necessary is not yet in the public domain.

I think it is important to say that the Commission is not on a campaign to review the functioning of every grazings committee.  Be assured, we do understand that most of the nearly 500 grazings committees across the crofting counties are working well, and will continue to do so, helping to safeguard this important community asset.  This situation has identified the passion and value that crofters, and those who represent them, put on common grazing land.  The Commission shares that passion and value and it is good to see its management and potential being discussed openly.

It is also important to emphasise that the Commission has never said “every grazings committee must carry out a full audit of their accounts” or that “without question all grazings committee must distribute every penny of money to all shareholders and that no money can be retained”.  This view has been advanced by others, not the Commission.

We are the regulator of crofting and we must represent the interest of all 15,388 crofters, the majority of whom share in common grazings and when they express concerns we have a duty to investigate.  In most cases these matters are resolved by mutual agreement.  Putting a committee out of office is not a step taken lightly by the Commission and only occurs rarely and after protracted discussion and investigation.

The way the Crofters (Scotland Act) 1993 (as amended) states that common grazings should be managed represents true democracy at its most local level.  It requires the committees, who are appointed by the shareholders to represent them, to discuss plans with the shareholders and to get their approval for improvements.  This ensures that shareholders share both the costs incurred and any benefit or dividend that results.  All the more reason to see grazings being managed well.

Indeed, the Commission has had support from within crofting communities for being willing to grasp the nettle and be an effective regulator, taking the position that grazings should be properly managed.

Some have expressed concern over crofters who are absent, possibly blocking improvements or failing to pay for maintenance.  I would like to assure crofters that there are remedies available within the current law.  The Landlord has the right to make an application to the Scottish Land Court to terminate the tenancy where a person is in breach of their statutory conditions as, following a much more complex process, can the Commission.  Even if that does not happen should a shareholder fail to contribute to costs the Commission can, when asked to intervene, act as arbiter and has the power to suspend and ultimately terminate a share and reallocate it to others.  This would result in shares coming into the hands of active crofters, willing to pay their dues.

People have said “why should an absentee get anything at all?”  The current Act does not differentiate between shareholders who are resident and non-resident and therefore, neither can the Commission. This is for legislators to address when next reviewing crofting legislation.  Equally there has been speculation about the interpretation of the Act.  The Commission is confident they are applying the law correctly but the only place this can be clarified is in the Scottish Land Court.

I would like to reassure committees and shareholders that we are preparing more best-practice guidance for them and, once we have discussed this guidance with our crofting partners, we will make it available to all grazings committees, shareholders and crofters.  In the meantime, Commission staff are on hand to support and provide guidance to crofters, grazings clerks and grazings committees.  More information can be found on our website (www.crofting.scotland.gov.uk).  In addition we will be running an information session on common grazings at our local crofting meetings to be held across the crofting counties later in the year.

As Chief Executive of the Commission I have a genuine interest in the crofting system.  Partly because I have been involved in its administration one way or another for over 20 years, but even more so because – as a daughter of the croft – it is in my psyche and in my heart.  I know how it benefits people and I am committed to seeing the system flourish.

What is important to both myself and Commissioners is that we work together with others to secure the future of the crofting system that we all value.  I sincerely hope that those who have either engaged in this debate or have been reading along with it, will continue to engage in a discussion about what that future will look like and make sure that decision makers hear those views.

For those who feel passionate about the Commission and how it operates – then why not take the chance to be part of it by standing for election when these take place early next year?  This would provide you with the opportunity to be at the heart of shaping the future Crofting Commission to ensure that it, and the crofting system, is the way you want it to be.

What I would highlight, in particular, from this letter is Catriona Maclean’s adamant statement that the Commission has never said “without question all grazings committee must distribute every penny of money to all shareholders and that no money can be retained”.  Oh yes they did!

The Crofting Commission have deleted from their website guidance issued by their Convener, Colin Kennedy, on 25 April 2016. That guidance included the following statement:-

As trustees any money received by the committee belongs to the shareholders and
should be distributed to them as soon as is reasonably practicable. It is NOT the
township’s or the committee’s money and as such it is the duty of the Grazings Clerk
to distribute any money received from whatever source, but in particular
resumptions, according to each individual shareholder’s share entitlement whether or
not they are active crofters.

When the Grazings Committee require monies to maintain the common Grazings
and the fixed equipment or to carry out works for improvements, the committee must
levy and recover the required monies directly from the shareholders for onward
payment to any third parties.

William Swann, who has since resigned as a Commissioner, also reiterated this same stance on behalf of the Crofting Commission when he chaired a meeting that the Crofting Commission held with the shareholders in the Mangersta Common Grazings. It was reported at the time that:-

Commissioner William Swann, who presided over the meeting, made it clear that under the Crofting Reform Act of 1993 any money that comes into the village must be distributed among all the shareholders – including absentees. Any improvement works then needing to be carried out must be financed through a levy charged on the same shareholders.

The Crofting Commission’s attempt at the eleventh hour to change their tune in this way through historical revisionism does them no credit. An apology and an admission that they got it wrong might have.

Brian Inkster

Image Credit: Pinocchio © Disney