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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

Crofting Commission flouts the will of Parliament

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Hansard and Crofting Law

Clearly no copies of Hansard in Great Glen House!

The Chief Executive of the Scottish Crofting Federation, Patrick Krause, previously highlighted the fact that the Crofting Commission were not delivering “the express will of Parliament”. I indicated that this was something I would return to in detail in a later blog post with a clear analysis of what the will of Parliament actually is on this issue. This I indicated would, actually, help to spell out the letter of the law on the matter.

It must be remembered that to date, despite being called upon to do so, the Crofting Commission has not given any explanation with reference to the law as to why they are taking the stance or actions that they are and have been taking on the issue of ‘The Common Clearances‘.

So here goes. We are concerned, for current purposes, with crofting law enacted by the Houses of Parliament in London prior to the creation of the Scottish Parliament. The will of the Houses of Parliament in London can be found in Hansard, the official report of all Parliamentary debates. Hansard can, in certain circumstances, be used by courts to aid the interpretation of statutory provisions and does, of course, give a flavour of the intention and will of Parliament.

When debating the provisions of the bill that became the Crofting Reform (Scotland) Act 1976, Parliament looked at the question of resumption monies being payable to shareholders in Common Grazings.

An Amendment was tabled by Lord Campbell of Croy to the effect that, as an alternative to apportioning resumption monies amongst the shareholders in a common grazing according to their rights therein, “a lump sum should be made available to the grazings committee who decide on improvements for the benefit of all”. This alternative was suggested by the Stornoway Trust as it was a practice “generally acceptable in their area of Lewis”.

Lord Kirkhill, on behalf of the Government of the day, indicated that there was no good reason to legislate in this way as “there would seem to be  nothing to prevent a voluntary arrangement being made whereby any crofter’s share would be diverted to the grazings committee”.

On this assurance Lord Campbell of Croy withdrew his amendment as being unnecessary.

In a subsequent debate Lord Kirkhill re-emphasised the position stating that:-

This leaves the apportionment to be carried out on the initiative of the landlord with the agreement of the individual crofters. It will not prevent a landlord, such as the Stornoway Trust, agreeing with shareholders in a common grazing that the money should be paid to the common grazing fund.

Indeed Lord Kirkhill goes to pains to spell this sentiment out several times in that debate.

Lord Campbell of Croy said in response:-

We are glad to hear what the noble Lord said at the end of his speech, which was that the system practised by the Stornoway Trust can be continued.

The House of Commons agreed with the House of Lords.

Little did Lord Kirkhill or Lord Campbell of Croy know of what the Crofting Commission had in mind 40 years later. That was to completely ignore the will of Parliament and impose their own will on the crofters of Lewis removing any and all who might argue with them from office.

The Crofting Commission has insisted that the Grazings Committees of Upper Coll and Mangersta, both on the Isle of Lewis, must pay resumption monies to shareholders even where those shareholders want the monies in question retained within the common grazing fund for township improvements.

There is absolutely no basis in law for this and it is clear that the Crofting Commission are flouting the will of Parliament.

If I were an MSP I would not take kindly to that.

Brian Inkster