Tag Archives: inquiry

Scottish Farmer confused over Common Grazings Crisis

Scottish Farmer confused over Common Grazings CrisisThe Scottish Farmer seems to be confused by the Common Grazings Crisis.

They think that:-

The furore within crofting circles shows no sign of abating, as the impasse between the governing body, the Crofting Commission, and the industry representative body, the Scottish Crofting Federation, meanders on.

It is not an impasse between the Crofting Commission and the Scottish Crofting Federation. It is an impasse between the Crofting Commission and crofters. In particular the crofters directly affected by the decisions of the Crofting Commission to remove from office the members of three grazings committees.

One minute the ‘findings’ of Grazings ‘Constable’ Colin Souter is front page news. The next minute they are calling him Ian Souter.

The debate regarding the removal of this Ian Souter could they suggest “continue forever” as he has “support within the crofting community“. That will be 4 out of 42 shareholders!

One minute they are running a poll that shows that 96% of readers who took part considered that the Scottish Government should enact an independent inquiry into the workings of the Crofting Commission. The next minute they are running a poll on “should crofting put its house in order without government intervention?

They think “the time has come for a line to be drawn and for a new Upper Coll committee to steer the way forward“. Probably not many disagreements there other than perhaps from Colin/Ian Souter and Colin Kennedy.

They think that “this decision would be much better taken without government intervention“. I’m sure it would have been but time has shown that there is a clear inability on the part of the Crofting Commission to accept its wrongs. If anything in recent weeks they have been going out of their way to make matters worse with the inexplicable quest via Colin Souter to find something, anything, to justify their actions in the first place.

This all on the back of the first government intervention when Fergus Ewing MSP made it clear than the government’s views were “diametrically opposed” to those held by Commission Convener, Colin Kennedy.

Despite this first intervention and rebuke the Crofting Commission, with Colin Kennedy still at the helm, steered into even stormier waters clearly not heeding what Mr Ewing had told them.

The result was undoubtedly going to be the need for Mr Ewing to intervene again. He did so before the latest poll from The Scottish Farmer properly got off the ground.

Again Mr Ewing has told the Crofting Commission they got it wrong. This time he has asked them to “swiftly resolve” the crisis in crofting of their making. He has also told them to apologise to the crofters they have hurt so badly and the expectation is that this apology must come from Colin Kennedy.

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

Yes, it would have been better for there to have been no need for government intervention. But week upon week of the Crofting Commission making the situation worse not better has left little option but for this intervention to take place. It has been very necessary and extremely justified.

I reckon that if Fergus Ewing is forced to intervene a third time (chances are that he will have to) it will be the last time he does so as by that stage heads will have to roll.

Crofting Commissioners should reflect on that when deciding their next move at their board meeting in Brora on Wednesday.

Brian Inkster

Hat Tip: With thanks to Donald Macsween for drawing this to my attention.

Back to the Future of Crofting

Back to the Future of Crofting

But Doc, nothing has changed in 10 years!

If you were to travel back in time 10 years ago to the day you would find a headline in The Scotsman that read ‘MSPs heap pressure on Crofters’ Commission with criticism of bill‘.

It was 5 July 2006 and on that day the Scottish Parliament’s Environment and Rural Affairs Committee released its findings on the Crofting Reform Bill after taking evidence at five meetings that year.

Some salient points from The Scotsman’s report from then:-

Critics of the commission during the evidence-gathering sessions included the National Trust for Scotland, which said the commission’s work is regarded as “inconsistent and ineffective”. The Scottish Crofting Foundation also gave an example of the “long-term regulatory failure” in one township where 11 out of 19 croft holders are absentees despite demand from prospective new entrants.

The report adds: “The committee was struck by the range of negative comments and the depth of frustration and long-standing dissatisfaction expressed by witnesses about the commission’s practice.”

It also said it was “astonished” a proper register of crofts has not been produced despite it being a statutory obligation on the commission for over 50 years.

Rob Gibson, the SNP’s land reform spokesman, said the bill offers no vision for the future of crofting and said successive governments had failed to ensure the commission does it job.

The report in The Scotsman also mentioned Brian Wilson, the former Government Minister, saying of the report:-

The whole thing has turned into an indictment of the Crofters’ Commission and its failure to implement its regulatory role. I think they [the commission board] should now consider their positions.

Fast forward 10 years and not much has changed. It is now called the Crofting Commission as opposed to the Crofters Commission. Similar but perhaps more acute criticism is being laid at its door. Indeed, I was speaking to a crofter just today who said that the Crofting Commission of 2016 is much worse than its predecessor, the Crofters Commission, was 10 years ago.

Headlines in the news over the past few weeks have included:-

Crofting Comission branded as ‘dictatorial, vindictive and unjustified’ by Upper Coll crofters

Row between national body and local crofters on Lewis deepens

Crofting Commission ‘flouting the will’ of Parliament

Crofting commissioner resigns in Lewis grazings row

Pressure grows on Crofting Commission as row over committees continues

Demands intensify for inquiry into operations of Crofting Commission

Crofting Commission “cover-up” blasted

Sleat storm surrounds Crofting Commission

Crofting Commission’s Mangersta U-turn welcomed, but calls for government investigation continue

It was in the wake of the near collapse of the Crofting Reform Bill in 2006 that pressure from the Scottish Crofting Federation led to Scottish Ministers commissioning a Committee of Inquiry on Crofting. This was chaired by Professor Mark Shucksmith. The Committee of Inquiry on Crofting undertook many community meetings throughout 2007 and delivered their final report in 2008.

The Shucksmith Report commented on the Governance of Crofting as follows:-

Crucial issues for the governance of crofting are transparency, source of legitimacy, accountability and the balance of central and local interests. Centralised arrangements,
together with a lack of clear functional boundaries between the key institutions, particularly
between the Crofters Commission and the Scottish Government, cloud the lines of public
accountability for the effective governance of crofting. Recurring themes in the evidence
were that the Commission should be more accountable; have greater area representation;
should enforce regulations more effectively; should be better aligned with other relevant partners; and should have closer communication with local people and Grazings Committees.

All issues that appear to remain today. Perhaps that is because in introducing the Crofting Reform (Scotland) Act 2010 the then Scottish Parliament ignored many of the recommendations actually contained in the Shucksmith Report.

There is currently a major crisis in crofting. The consensus of opinion appears to be that the problems are caused by the Crofting Commission and the decisions taken by them and manner in which they execute those decisions.

A recent online poll conducted by The Scottish Farmer indicated that 96% of readers who took part considered that the Scottish Government should enact an independent inquiry into the workings of the Crofting Commission.

The Scottish Farmer in conducting this poll stated:-

The level of criticism has mounted so quickly that it is now incumbent on the Scottish Government to institute an independent external audit of the commission.

And, if the Crofting Commissioners feel the criticism to be unjust, they too should welcome independent scrutiny of their actions.

One thing is for sure, Scottish ministers cannot continue to sit on their hands on this one. Action must be taken swiftly and decisively!

I sincerely hope that in 10 years from now we don’t look back and say that nothing has really changed and indeed the situation at the Crofting Commission has got worse not better. The Scottish Government has the opportunity to change the future and must now do so.

Brian Inkster

Image Credit: Back to the Future © Amblin Entertainment

You might think that, I couldn’t possibly comment

You might think that, I couldnt possibly comment - Common Grazings Crisis - Crofting Commission - Scottish Government

There comes a point where actions speak louder than words

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

Rhoda Grant MSP asked the Scottish Government:-

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

Fergus Ewing MSP answered:-

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

Rhoda Grant MSP also asked the Scottish Government:-

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

Fergus Ewing MSP answered:-

The Scottish Government has no current plans to do so.

In addition Rhoda Grant MSP asked the Scottish Government:-

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

Fergus Ewing MSP answered:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An inquiry is necessary to answer questions such as:-

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

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

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

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

Brian Inkster

Image Credit: House of Cards © BBC

The Commission is for turning

The Commission is for turning

No longer men or ladies of iron at the Crofting Commission

In a somewhat unexpected U-turn on the issue of ‘The Common Clearances‘ the Crofting Commission today admitted that it:-

regrets the conflicting advice the Mangersta Grazings Committee has been given over a considerable period of time in response to the investigations which took place due to a complaint made by a shareholder.

The Crofting Commission also confirmed that it has written to shareholders of Mangersta Common Grazings to advise that the grazings constable (appointed illegally in my opinion) has concluded his investigations and has stepped down enabling shareholders to appoint a new committee of their choice.

They also in particular stated:-

Following an evaluation of this case the Commission is drafting revised guidance and has reviewed its processes.

Catriona Maclean, Chief Executive of the Crofting Commission, said:-

The Commission acknowledges that Mangersta is an active crofting community and this matter has caused prolonged uncertainty and anxiety under which a line can now be drawn.  We look forward to working constructively with the new committee, once appointed, and other stakeholders in the future.

The dispute – which has massive implications for all crofting communities – centred on the Commission’s insistence that all revenue coming into Grazings Committees, mainly from government grants, should be distributed as personal revenue to individual shareholders.

In response to the Commission’s statement, the former members of Mangersta Common Grazing Committee stated:-

We are pleased and relieved that common sense has finally intervened and that this whole affair has been brought to a conclusion, with recognition by the Commission that we acted with integrity and in good faith at all times.

Latterly, we made our stand on behalf of the whole crofting community since the legal interpretation promoted by the Crofting Commission would, if implemented, spell the death of crofting on a communal basis.

We have never accepted that the funds obtained by the village for agricultural and environmental schemes should be distributed as personal income and we have no intention of doing so.

We continue to believe that there should be an inquiry into the functioning of the Crofting Commission.  Even more important, it is essential that crofting law is clarified on this and other matters where ambiguity may exist.

With crofting at a low ebb in many places, it is regrettable that so much time and resources have been devoted to this unnecessary dispute.  However, we welcome a line being drawn under it and will work constructively with the Commission and anyone else where it is in the crofting interest to do so.

In my next blog post I will look at the manner in which the Commission announced this U-turn and the possible reason for it. I will then, in a further blog post, explore the significance of this U-turn and the possible repercussions thereof.

Brian Inkster

Image credit: Prime Minister Margaret Thatcher (aka ‘The Iron Lady’) addressing the Conservative Party Conference at Brighton on 7 October 1980 with her famous speech in which she said “You turn if you want to. The lady’s not for turning”. (Pa/ PA Photos / TopFoto)

Update – 2 July 2016: Yes Crofting Minister

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