Tag Archives: Scottish Ministers

Ewing Exonerated

One Nil to Fergus Ewing. Ding ding, next round!

BBC Naidheachdan have reported that Fergus Ewing, Cabinet Secretary for the Rural Economy and Connectivity with responsibility for crofting, has been cleared of any wrongdoing in the complaint brought against him by the Convener of the Crofting Commission, Colin Kennedy.

This is how they reported it:-

The Secretary for Rural Economy was not breaking any rules in the way he dealt with the Crofting Commission.

This was the outcome of a review by the Secretary of Justice, after the Convener of the Commission, Colin Kennedy, raised several complaints against Fergus Ewing.

Mr Kennedy raised his complaints after a controversial Commission meeting in Brora, Sutherland in September. He questioned decisions made by Mr Ewing in connection with the Commission.

Mr Kennedy was angry that the Commission had to excuse crofters in relation to how they handled the grazing committees disputes.

Since then there has been controversy surrounding Mr Kennedy and there has been pressure on Mr Ewing to ask Kennedy to stand down.

It has not been possible for Ewing to deal with the Commission whilst this review has been underway.

Now the government has confirmed that the review conducted by the Department of Justice is over, and that Ewing did nothing wrong.

The question now is what will Ewing do with all his freedom to make decisions regarding the Commission.

View from the Crofting Law Blog

As highlighted previously on this blog section 1(3) of the Crofters (Scotland) Act 1993 states:-

The Commission shall discharge their functions in accordance with such directions of a general or specific character as may from time to time be given to them in writing by the Scottish Ministers.

Directions were given to Mr Kennedy by a Scottish Minister. It would appear that Mr Kennedy refused to accept those directions and instead lodged a complaint against the Scottish Minister in question.

The Scottish Minister has been completely exonerated in what would appear to have been a vexatious complaint. Will Mr Kennedy therefore now accept those directions which will involve him personally issuing a public apology to the three grazings committees removed from office by the Crofting Commission in Mangersta, Upper Coll and Bohuntin? Or is it a case that ‘hell will freeze over‘ before he does that?

Will Mr Kennedy now accept the Scottish Government’s position on disbursement of common grazings funds and receipt of SRDP funding which has been accepted by his fellow commissioners but which he has been very vocal in disagreeing with?

Mr Kennedy is, in any event, not well known for representing the views of the board of the Crofting Commission to the general public despite it being one of his “particular responsibilities“, as convener, to do so. He is also, as highlighted in my last post, completely at odds with the board and appears to be refusing to follow the doctrine of collective responsibility.

Fergus Ewing did say some time ago that it is not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law. Is it sustainable for the Scottish Government and the Convener of one of its public bodies to take opposing interpretations of the law and to be in continuing conflict over those interpretations?

The governance review of the Crofting Commission was published last week and referred to “notable failures in governance within the Crofting Commission“. The review made reference to “strong personalities, differences of opinion and apparent incongruent individual objectives and priorities” having “impaired effective and efficient governance“. I will look at this governance review in some detail in forthcoming posts on this blog.

Brian Inkster

Gaelic credit: Thanks to Vicki Folan of Inksters for translating the BBC Naidheachdan report from Gaelic to English

New Crofting Commission CEO not Commissioner!

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.

Tavish 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.

Bill 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.

Footage 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.

Niall 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.

Kate 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.

It 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

Crofting Law whilst in Milan

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The dome in the Galleria Vittorio Emanuele II, Milan, Italy

It is over a week since my last blog post. Not because it has been quiet in the world of crofting law but because I’ve been away in Milan. I didn’t quite escape crofting law whilst there as I had a meeting where a translator turned my crofting law advice into Italian. I hope nothing was lost in translation. Not sure what the Italian is for souming!

Last time I was away from the UK I commented that there was ‘no let up on the common grazings crisis whilst on holiday‘. Much the same this time around. Especially due to the fact that the ‘twa Colins’ (as they have become known in the comments section of this blog) are, somewhat incredulously, still in post.

Colin Souter, the Grazings ‘Constable‘ of Upper Coll, still seems to hold that ‘position’ despite the Crofting Commission announcing over three weeks ago that he would be stepping down “as soon as possible“. Why has he not stepped down or been stepped down?

Colin Souter has been uncharacteristically quiet during that period. Whereas Colin Kennedy, Convener of the Crofting Commission, has been uncharacteristically vocal. My last blog post looked at his crofting ‘crusade‘ as revealed in The Scottish Farmer. A week later and The Scottish Farmer have published a letter from Colin Kennedy which starts with an attack on the Scottish Crofting Federation, rambles on a bit and is cryptic in places but seems to be blaming the former Chief Executive of the Crofting Commission, Catriona Maclean, for everything that everyone else has been blaming him for. I will look at that, and the further breaches of the code of conduct by Mr Kennedy arising therefrom, in a future blog post.

Kennedy is the renegade commissioner who is breaking almost all, if not every, ethical standard expected of public office holders. The Editor of the West Highland Free Press wondered a couple of weeks ago how Kennedy had still not received his P45. Patrick Krause, Chief Executive of the Scottish Crofting Federation, writing in the Press & Journal around the same time expected this “Ozymandias with delusions of grandeur” to have been toppled by now.

The First Minister, Nicola Sturgeon, referred to Kennedy’s behaviour as “disappointing” and hinted at the powers the Scottish Ministers had to remove him. Since then he has gone on a personal tirade against those very ministers, his commissioner colleagues and commission staff. How has he been allowed to go on like this? Who is in control? What message does this send out to crofters and the general electorate? Where and how will it all end?

I referred earlier to “former” Chief Executive, Catriona Maclean, because her replacement on an interim basis, Bill Barron, started work at Great Glen House on Monday. I will also look at that in more detail in a future blog post.

However, how can this new interim Chief Executive be expected to effectively operate an organisation where the Convener has gone renegade? Where that convener does not have the support of the other commissioners, the Scottish Ministers, any of the crofting representative bodies or the vast majority of crofters? Could the role be any more of a poisoned chalice?

What else happened over the past week? Well:-

The closing date came and went for applications for the two appointed Crofting Commissioner posts.
Top search terms leading people to this blog were “Colin Kennedy Crofting Commission” and “the Marquis & Marchioness of Stafford”. I have previously drawn comparisons.
Comments on the blog took on a Star Trek theme making a change from Star Wars analogies. The Dark Side have become the Klingons it would appear 😉
Revelations of baboon-a-grams being advertised on the Isle of Coll emerged. We are searching the News of the World archives for more on this story which just might eclipse the Convener’s Throne for amusement value.
It would appear that back issues of the News of the World, Press & Journal and Oban Times also hold other interesting stories about the Isle of Coll. We will see what our research turns up.
Crofting road shows will be taking place to inform crofters about the Crofting Commission elections and other crofting issues.
The Rural Economy and Connectivity Committee has launched a call for written evidence to help inform its short, focussed review of priorities for crofting law reform.
Crofting Election Regulations have been put before the Scottish Parliament but these make no changes, as previously mooted, to the six constituency boundaries.

A week is clearly a long time in crofting law!

More detail on some of these stories will appear in future blog posts. Do subscribe to this blog by inserting your e-mail address in the box in the top right of this page and press ‘Subscribe’. You will then receive the latest blog posts directly into your mail box as soon as they are published. You don’t want to miss that baboon-a-gram story 😉

Brian Inkster

Kennedy says hell will freeze over before he resigns and that the Cabinet Secretary for Crofting should stand down!

Sunday Politics Scotland: Chaos on the Croft

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Sunday Politics Scotland on BBC One Scotland this week looked at the crisis in the Crofting Commission.

Presenter Gordon Brewer introducing the topic said:-

Now Chaos on the Croft.

The body responsible for protecting and regulating Scotland’s crofting is embroiled in some dramatic internal politics of its own.

As Len Cooksley reports pressure is increasing on the head of the Crofting Commission to resign after the Scottish Government became involved.

Len Cooksley:-

Scotland has nearly 20,000 crofts overseen by the Crofting Commission.

After suspending two local grazing committees on Lewis on the grounds of financial missmanagement it was forced into a u-turn.

There were claims the commission were both heavy handed and may have acted illegally.

Now the Scottish Government’s got involved. It called on the commission and its convener, Colin Kennedy, to apologise.

Last week Mr Kennedy walked out of a commissioners meeting. Those that remained issued that apology and then passed a vote of no confidence in Mr Kennedy.

The First Minister gave her take on events in parliament earlier this week.

Nicola Sturgeon MSP:-

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.

Len Cooksley:-

MSPs are watching developments with interest.

Tavish Scott MSP:-

There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.

What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.

Len Cooksley:-

We understand Mr Kennedy has no plans to resign but would make no further comment.

The implication is clear: either he jumps or he’ll be pushed.

Gordon Brewer:-

Well earlier I spoke to Brian Inkster who is a lawyer and blogger specialising in crofting matters.

Gordon Brewer asked:-

Well the crofting commissioners have no confidence in their leader. He won’t resign and the Scottish Government is threatening to get involved. What on earth is going on?

Brian Inkster answered:-

Well it all goes back to December time last year when they decided to put out of office a grazings committee in Lewis. The first one was Mangersta and then subsequently into 2016 they put out two other grazings committees: one in Upper Coll and the other in Lochaber.

Gordon Brewer:-

Right but what I don’t understand is that Mr Kenedy the man who is the commissioner is accused of issuing edicts on things like payments over common grazings and peoples backs are up about this. But how can he do that surely the commissioners have to decide to do this.

Brian Inkster:-

Well the commissioners should be deciding to do it. It looks as though he has been instrumental in pushing these issues forward.

There were three sort of main issues I suppose.

The first one was payment by grazings committees to shareholders in common grazings of monies that had come into grazings funds. His argument was that these monies had to be paid out immediately. So there would be immediate payment to the shareholders and if monies were required back to maintain the common grazings they would issue a levy onto the shareholders.

Nowhere in the law did it say that these immediate payments had to be made and indeed it just didn’t make any kind of logical or common sense approach to deal with it in that way.

Subsequently there were two other issues.

One was that he was seeking to stop common grazings committees receiving SRDP funding – which is really grants from the governmnet to assist in the maintenace and improvement of the common grazings.

And latterly there was an issue around VAT registration where it was being said that common grazings could not be VAT registered whereas historically they always have been.

Gordon Brewer:-

Right, now, what happened? At some point the commissioners had a vote of no confidence.

Brian Inkster:-

That was just over a week ago in Brora. That was on the back of Colin Kennedy walking out of a meeting. He closed the meeting and walked out on the basis that the commissioner for the Western Isles said he was no longer declaring an interest in the Western Isles cases which he had previously done and was now wanting to vote on any issues concerning the Western Isles.

Gordon Brewer:-

On the face of it you would think that if the commissioners have no confidence in him he has to go but he doesn’t does he because he was elected?

Brian Inkster:-

He was elected and there is nothing in the law that says if the commissioners have a vote of no confidence he must go. One would imagine that if all the commissioners are against you, if the Scottish Crofting Federation, NFU Scotland, MSPs across all cross parties and the press are all saying it’s time to go you would think what is the point of clinging on here.

Gordon Brewer:-

The Scottish Government has threatened to become involved. What can they do?

Brian Inkster:-

In terms of the Crofters (Scotland) Act 1993, Scottish Ministers have the power if they consider that a commissioner is unable or unfit to exercise the functions of a member or unsuitable to continue as a member they can then remove a member from office.

Gordon Brewer:-

Now, Brian Inkster, just to give us a little sense of what the background to this is because it is quite complicated. But is the issue underlying all this the use of land and the fact, for example, wind farms wants to come in or housing wants to come in and it is about whether the common ground is allocated to the community the funds from it or to individuals.

Brian Inkster:-

It is linked to the funds that come into a common grazings. On a common grazings, especially as you mentioned wind farming, so in recent times the potential for larger sums of money to come into a common grazings exists. And it is linked to the distribution of those monies and there was an insistance on the part of the convener that those monies had to be paid out as soon as it was received. That there was no ability to hold onto the money to use it to spend on improvements within the common grazings. The Scottish Government said that was not the correct view in law.

Gordon Brewer:-

Alright, we will have to leave it there. Brian Inkster thank you very much indeed for joining us.

Brian Inkster:-

Thank you.

Gordon Brewer:-

Well earlier I spoke to Colin Kennedy. He is the Crofting Commission boss who is in the middle of all of this controversy. I spoke to him on the telephone from Coll.

Gordon Brewer asked:-

Are you going to stay in the post?

Colin Kennedy responded:-

I have no intention of resigning.

Gordon Brewer:-

Why not?

Colin Kennedy:-

As matters stand, I believe the commission have acted wholly within the law at all times and until such times as we have legal advice to the contrary, I will maintain my position.

Gordon Brewer:-

But the Scottish Government has said it has the power to get involved. If they do get involved and say you have to go you will have to go won’t you?

Colin Kennedy:-

That will be the case, yes.

Gordon Brewer:-

So just to be clear on that. If the Scottish Government says look given that your commissioners have voted no confidence in you we don’t think you can stay in post you will have to resign.

Colin Kennedy:-

That may be the case.

Gordon Brewer:-

Why are you so determined? You walked out of the meeting didn’t you, the other week? Why have you fallen out with all of the commissioners?

Colin Kennedy:-

No I didn’t walk out of a meeting.

I formally declared the meeting closed in light of an advancement by a commissioner supported by the deputy accountable officer that they had obtained information from the standards commission which I requested sight of prior to determination which failed to materialise.

Accordingly given the nature of the business at hand I had no alternative other than to formally close the September meeting of the Crofting Commission prior to my departure.

Gordon Brewer:-

Okay, but the commissioners have said they no longer have any confidence in you. Which is not brilliant from your point of view is it?

Colin Kennedy:-

I am unaware of the commissioners having said they have no confidence in me.

Gordon Brewer:-

You are not aware of that?

Colin Kennedy:-

Correct.

Gordon Brewer:-

So as far as you are concerned what? The Crofting Commission is carrying on its work as per normal?

Colin Kennedy:-

Well I would suggest at this moment in time that the Crofting Commission conducted a meeting on 28th September which is in non compliance or in accordance with the standing orders of the Crofting Commission and therefore it would appear in my view to be ultra vires.

Gordon Brewer:-

So right. If they still have confidence in you why would they do that?

Colin Kennedy:-

I couldn’t comment on what they do at informally constituted meetings.

Gordon Brewer:-

So right. You think that they still have confidence in you but that they have held an ultra vires meeting without you for reasons that are inexplicable?

Colin Kennedy:-

Correct.

Gordon Brewer:-

The substance of this is about you, they allege, that you made various determinations about things like payments in the form of edicts – that they weren’t really consulted.

Colin Kennedy:-

Absolutely incorrect.

At no time under my leadership have any decisions been taken without full endorsement of the board and based on legal advice.

And if I could comment prior to those decisions as per the board minute of 15 September 2015, prior to taking any of those decisions a formal request was made to the Chief Executive to obtain legal advice to support the papers presented to the board on which the board took the decisions.

Gordon Brewer:-

Alright Colin Kennedy we have to leave it. Thank you very much for joining us.

Colin Kennedy:-

Thank you.

N.B. For a limited period (29 days) you can watch this episode of Sunday Politics Scotland on iPlayer (at about 54 minutes in)

Either he Jumps or he will be Pushed

First Minister answers questions on “intolerable” Convener

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The First Minister, Nicola Sturgeon MSP, answers questions on the turmoil at the Crofting Commission

The First Minister, Nicola Sturgeon MSP, answers questions from Tavish Scott MSP on the turmoil at the Crofting Commission

At First Minister’s Question Time in the Scottish Parliament today Tavish Scott MSP questioned the First Minister, Nicola Sturgeon MSP, over what could possibly be dubbed Broragate.

Tavish Scott asked:-

Is the First Minister aware of the turmoil in the Crofting Commission caused by the intolerable behaviour of the current convener?

Does she know that other commissioners have asked for his resignation and that the previous Chief Executive, Catriona Maclean, left because of the convener’s behaviour and the pressure that is being placed on commission staff?

In those circumstances will she and her rural secretary now take action to make the commission work for crofters across the crofting counties without the disruptive presence of the convener?

Tavish Scott MSP asks the First Minister questions on the turmoile at the Crofting Commission

Tavish Scott MSP asking the First Minister questions on the turmoil at the Crofting Commission

First Minister Nicola Sturgeon answered:-

Well Tavish Scott raises a very important issue.

The Cabinet Secretary for the Rural Economy has already welcomed the apology from the board of the Crofting Commission but it is disappointing that the convener was not a party to that apology.

It is important that we get to the stage of being able to draw a line under recent events.

The resources spent on dealing with these issues by the commission would in my view be far better used in being an effective regulator in contributing to a sustainable future for crofting.

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required, and I can assure Tavish Scott that the Cabinet Secretary continues to monitor the situation very closely and would be very happy to discuss it further with Tavish Scott.

You can watch this exchange between Tavish Scott and the First Minister on YouTube at about 24:42 in:-

The Crofting Bat Phone

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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

Crofting VATgate

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Who is the VAT Inspector?

In his letter to shareholders at Upper Coll the grazings ‘constable’, Colin Souter (who was illegally appointed in my view, and in the view of others including, ironically, the Crofting Commission themselves) stated:-

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.

Why and how on earth was Colin Souter in receipt of legal opinion from Queen’s Counsel on the question of whether common grazings committees could be VAT registered?

A suggestion on this blog that Colin Souter may have instructed the Opinion was met with this response from Mr Souter:-

I should also point out that I have never sought legal advice from Queen’s Counsel in any context, since being appointed as Grazings Constable.

I then asked:-

Perhaps you can enlighten us as to how you came to be in “receipt of legal opinion from Queen’s Counsel” as stated in your letter to the Upper Coll shareholders?

Mr Souter has yet to answer my question.

So who instructed this legal opinion, who paid for it and why?

How did Colin Souter come to be in possession of it and why?

In his dialogue with HMRC is Colin Souter trying to stop VAT registration at Upper Coll Common Grazings and if so why?

It can only be assumed that the attempt to stop VAT registration of common grazings probably lies at the door of the Crofting Commission. Would this not be how a grazings ‘constable’ appointed by them would be in possession of such information?

We are already aware that the Convener of the Crofting Commission, Colin Kennedy, was of the view that common grazings should not receive SRDP funding. This very alarming notion (an issue that did not concern the crofting regulator and/or its convener in any way) was firmly quashed by Fergus Ewing MSP.

It is therefore not a giant leap to think that the Crofting Commission and/or their Convener might be behind this attempt to stop common grazings being VAT registered.

If that should prove to be the case it is scandalous.

Questions regarding whether crofters should be VAT registered or not have absolutely nothing to do with the Crofting Commission. It is a matter between crofters and HMRC.

Public money should not have been spent on the opinion of Queen’s Counsel on such matters. If that has happened Audit Scotland should be investigating the issue. Another one for them to add to the growing list for their next visit to Great Glen House.

But more significantly why is the Crofting Commission and/or their Convener intent on depriving crofters of income? First it was SRDP funding. Now it appears to be VAT.

Under and in terms of the Crofters (Scotland) Act 1993 the Crofting Commission has as one of its functions:-

promoting the interests of crofting

On their website the Crofting Commission state that it:-

regulates and promotes the interests of crofting in Scotland to secure the future of crofting.

This statement links through to a general leaflet on crofting that states:-

The Crofting Commission is working to secure the future of crofting by creating and promoting a well regulated crofting system that positively contributes to the sustainability of rural communities.

By seeking to deprive crofters of SRDP funding and now, possibly, VAT the Crofting Commission cannot be said to be promoting the interests of crofting, securing the future of crofting or positively contributing to the sustainability of rural communities. Quite the contrary.

If Commissioners are acting in such a way, completely contrary to the functions that the Crofting Commission was established to carry out, then those commissioners responsible have no place in that organisation. They should be ashamed of themselves.

They are clearly “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”. As such the Scottish Ministers may remove them from office under and in terms of the Crofters (Scotland) Act 1993. There have been repeated calls over recent months for such action to be taken but if ‘Crofting VATgate’ does fall at the door of the Convener and/or any other Commissioners then this surely is the final straw that broke the camel’s back.

Fergus Ewing MSP, as Cabinet Secretary for the Rural Economy and Connectivity with responsibility for Crofting, should immediately launch an investigation to get to the root of ‘Crofting VATgate’, publicise his findings for the benefit of crofters and take appropriate and decisive action against those responsible.

Brian Inkster