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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

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

The deleted Crofting Commission post

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Rebel Crofters store the data from the Crofting Commission

The Crofting Commission did not bank on the Rebel Alliance of Crofters having the technology to store and retrieve data

In the last post on this blog reference was made to the Crofting Commission deleting its history. The possible purpose for this historical revisionism will become apparent in subsequent posts on this blog. For now we reproduce, for posterity, that deleted post from 25 April 2016 (the Crofting Commission clearly not being technologically savvy enough to completely cover their tracks):-

COMMON GRAZINGS THE RIGHTS OF CROFTERS AND THE DUTIES OF
GRAZINGS COMMITTEES AND THEIR GRAZINGS CLERKS

It seems to me like a very good time to remind shareholders in Common Grazings
what their rights are and what the duties of the Grazings committee and their
Grazings clerk are. The following is a brief overview of the key points that everyone
involved should understand. Many people reading this may think that this is not what
happens in their village and may feel that it is overly bureaucratic but this is what is
contained in the Crofting Acts. If this process is not what is now required then the
only way to address it would be to ensure that any new Act reflects current
requirements. Until then the Commission have a responsibility for regulating crofting
within current legislation.

Shareholders

  • Crofters who share in a common grazing have certain rights over the land. These
    rights, or pertinents, include the grazing of stock, access to a house or pier or
    foreshore, an area for laying up a boat, the right to collect seaware, the right to cut
    peat, the right to use heather and grass for thatching. These rights, shared with
    others, are over the whole area comprising the common grazing. There are also
    certain common Grazings used as arable machairs, particularly in the Western Isles,
    where the crofters may have a right of cropping. The crofting acts state that the only
    way this can be changed is:-
  • If the landlord resumes an area of the Grazings for a reasonable purpose and
    the shareholders are compensated for their loss and obtain a share of the
    development value of the resumed land.
  • An individual gets an apportionment when his souming may be adjusted.
  • If shareholders enter into a forestry project in terms of section 50 or 50A of the
    crofting Act.
  • If the land court has agreed to a scheme for development under section 19A
    which is binding on all parties.
  • If the majority of the shareholders voting and the Grazings committee or
    constable have obtained the Commission’s consent to use part of the
    Grazings for some other purposeful use under section 50B.
  • Through Compulsory purchase by an acquiring authority with powers of
    compulsory purchase under section 37 of the Act, subject to compensation
    and share in the development value as with resumption.
  • By a reorganisation scheme.
  • Any other local Grazings arrangement is not binding on shareholders who, if they
    choose to do so retain the right to graze stock equivalent to their souming over the
    whole Grazings and the committee and clerk should ensure that any shareholder
    wishing to use the Grazings is accommodated.

Grazings Committees

The most important thing that shareholders in a common Grazings need to
understand is that the Grazings committee act as trustees of the shareholders. The
Land Court has stated that:-

..they (that is the Grazings committee) have clear duty to act as trustees of
the WHOLE shareholders in the Grazings and therefore it is their duty to act
impartially and judicially, keep in view what is their paramount consideration
– how the common Grazings can best be administered to the greatest
advantage of ALL of the tenants sharing in the Grazings….

The general responsibilities of the Committee are to:-

  • Make regulations (which require the consent of the Commission and) which
    should in the spirit of their primary duty to accommodate the requirements of
    all shareholders. Regulations cannot themselves curtail the right of any
    shareholder to graze his souming across the whole Grazings other than in the
    circumstances detailed under the paragraph entitled ‘Shareholders’ or to meet
    any specific environmental designations.
  • Hold an annual general meeting and the clerk should give the meeting an
    account of the work of the committee and of the financial position. At this
    meeting the committee should answer the questions of the shareholders
    whom they represent.
  • MAINTAIN the Grazings and any fixed equipment. That is clearly any existing
    fixed equipment such as fences. They can do this without reference to the
    shareholders and they should claim back any costs INCURRED from each of
    the shareholders whether they are actively using the Common Grazing or
    not.
  • Should the committee wish to carry out any IMPROVEMENTS to the Grazings
    they cannot do so unless they have served notice on each shareholder and
    told them how much the shareholder’s proportion of the cost will be. This
    gives the shareholder the opportunity to make representations against any
    such proposal to the Commission.

Financial management

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.

The rights of crofters have been detailed above and there is no explicit provision
in the crofting acts for the Grazings committee or clerk to be involved in the
administration or coordination of schemes falling within the provisions of
IACS regulations. So any involvement or concern regarding this should be directed
to the scheme administrators. Notwithstanding that fact, as the committee are acting
on behalf of the shareholders, any monies received and lodged in the Grazing
Committee Bank Account belongs to shareholders and must be distributed to each
shareholder in accordance with their share entitlement. It is important that all monies
are distributed to all shareholders timeously in order to assist correct financial
accounting by each individual shareholder should they require to make an annual
return to the HMRC.

There is nowhere in the Crofting Acts that allows a Grazings Committee to retain and
spend shareholders’ money on projects, village improvement works, or make gifts or
donations no matter how altruistic the purpose for which that money is to be spent.
Should townships wish to do this they should set up a separate, appropriate,
mechanism to do so and gather in any necessary funds from those willing to
participate.

Finally, I would like to say that the Crofting Commission is keen to see, wherever
possible, that crofting communities regulate themselves. It may be that shareholders
in your Common Grazings were unaware of the law and your committee has not
been being run in line with the requirements of the Crofting Act. If this is the case it
is important that shareholders and the committee hold a meeting to discuss this and
work together to ensure your Grazings Committee functions within the requirements
of the Crofting Acts.

Colin N Kennedy
Convener
Crofting Commission

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

Update: Is this why the post was deleted?: Oh yes you did!

Common Grazings and the Spirit of the Law

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Patrick Krause

Patrick Krause

I continue to catch up with news of ‘The Common Clearances‘ since I returned from holiday. With the amount of new news on this topic being generated daily this week that is a difficult task!

On 25 May 2016 Patrick Krause, Chief Executive of the Scottish Crofting Federation, published a piece on the Federation’s website. I now reproduce it here in its entirety with a small comment at the end from myself on the question of the will of Parliament.

 

The Spirit of the Law
The inexplicable case of a public body confusing legal dogma with good sense 

The Crofting Commission website says “The Crofting Commission regulates and promotes the
interests of crofting in Scotland to secure the future of crofting.” Following the summary
dismissal of two (or more) grazings committees; the foisting of grazings constables upon the
dismembered grazings; the demolition of crofters’ characters; the contradiction and confusion,
it is no wonder that crofters and those with crofting interests are standing agog and are asking
“What is going on in the Crofting Commission?” It is not for me to make any judgement on the
legalities of the fracas that has been taking place over the past month – crofting lawyers are
willingly giving opinion – but I will attempt to explain the essence. Common grazings are the
epitome of communal working, yet this is a spectacularly detrimental exercise in public
relations by the Commission that threatens the very core of crofting communities. I wonder
what the motive is.

One committee was summarily dismissed for not presenting fully audited accounts. Previously
the Commission had issued official guidance that ‘audited’ did not mean fully audited in the
legal (and expensive) sense, but could be taken to mean an independent examination – the
Commission were taking a “light-touch approach”. At the demand by the Commission for five
years annual accounts, the committee presented an independent examination of its accounts,
as is usual for small businesses and social enterprises and is perfectly acceptable to HMRC,
Companies House and the Charities Regulator. They were summarily dismissed for failing the
demand. This subsequent heavy-handed bombshell has naturally caused fear throughout
regulated grazings that they also are in breach for not having fully audited accounts.

A second committee was also summarily dismissed (both grazings then had a constable foisted
upon them by the Commission, which a leading crofting lawyer claims is not legal in these
circumstances), in this case for not distributing income from resumption. Though the only
shareholder asking for his tiny share of the resumption money was an absentee, legally he had
the right to it, we are told by the Commission.

It is hard to understand why this committee was unexpectedly sacked when it had attempted
to pay the absentee, under guidance of the Commission (and the other was also instantly
sacked even though it had seemed to have complied with all the demands of the Commission).
But let’s leave the detail and look at the principle.

The law says that money due as part value of resumption may be paid by the landlord to the
clerk of the committee for distribution by the clerk among the crofters concerned. The law is
not prescriptive in saying when or how the distribution is to take place. The Commission has
added in its regulations the word “immediate”.

For years grazings committees have managed finance in a workable, business-like fashion.
Income generated from anything, such as resumption of land, schemes for development or
through managing agri-environment schemes, is put in the bank. As in any business,
expenditure on carrying out maintenance or improvements is deducted before any profit is
disbursed to shareholders. If a grazings committee was expected to take all income and pay it
out as dividends to shareholders before deducting expenditure, only to then have to recover
from all shareholders their share of the expenditure, it would be a complete nonsense.

Hobbling grazings by making them produce fully audited accounts, when other similar
businesses or voluntary groups don’t, and making them run an unworkable cash-flow, that no
business would, could not have been the intention of the law, but this is what it seems the
Crofting Commission is trying to enforce, presumably at considerable public cost.

The Commission argue that it is only carrying out its interpretation of the law; but why now
and so destructively? If the Crofting Act is wrong (as much of it has proven to be) it could be
put in ‘The Crofting Law Sump’ for future rectification and the Commission could quietly
resolve the issues, rather than turning this into a public, highly-charged stand-off. If it is
enforced, grazings committees cannot comply so will resign (or be dismissed) and the grazings
will leave regulation – unless the Commission then imposes constables on all grazings.

The Commission clearly knows a lot more about regulation than I, and knows what the
consequences of this will be, but are keeping quiet about its objective. How does this fit with
the Crofting Commission Policy Plan in which it says “The Commission regards the shared
management and productive use of the common grazing to be essential for the sustainability
of crofting. To that end it will … work with crofting communities to promote the establishment
of effective grazing committees and will actively support established committees”?

The Convener of the Crofting Commission is implicated in the fracas perhaps more than a
convener ought to be, having had complaints raised against him for behaviour at one of the
grazings meetings and having turned up unannounced at the other. He came to ‘observe’
apparently. The chair would not allow him to participate as he had a conflict of interest, and it
was surely odd that he was allowed to stay at all, this being the case, and it being against the
wishes of crofters present.

The convener has been widely quoted as saying the Commission is to deliver “the express will
of Parliament”. He would do well to go back and look at the passage of the Bill that became the
2010 Act to see what the will of Parliament was. The will of Parliament is not necessarily the
letter of the law, or in this case, the Crofting Commission interpretation of it, if it is bringing
about the demise of regulated common grazings.

Patrick Krause (Chief Executive of the Scottish Crofting Federation)

Comment on the Will of Parliament

Patrick is correct to highlight the fact that the Commission are certainly not delivering “the express will of Parliament”. This is something I will return to in detail in a later blog post with a clear analysis of what the will of Parliament actually is on this issue. This should also, actually, help to spell out the letter of the law on the matter. It should be noted that to date the Crofting Commission has not given any explanation with reference to the law as to why they are taking the stance or actions that they are and have been taking.

Brian Inkster

Update – 20 June 2016: Crofting Commission flouts the will of Parliament