Tag Archives: Scottish Parliament

The 2010 Crofting Law Rush

Ready, steady… MSPs didn’t have long to get through 230 crofting law amendments!

In my post yesterday, about the two phase approach being taken to crofting law reform by the Scottish Government, I made reference to the rush over the Crofting Reform (Scotland) Act 2010.

I thought it would be worthwhile to remind readers about that rush which in effect took place at Stage 3 of the Bill going through the Scottish Parliament. In that final stage of parliamentary procedure there were around 230 amendments dealt with in around three hours.

At the commencement of the debate the Presiding Officer stated:-

The first division will be a 30-second division, following a five-minute suspension. Thereafter, there will be a voting period of one minute for the first division after a debate and the voting period for all other divisions will be 30 seconds. We are incredibly tight for time, so, to begin with, I ask no speaker to speak for more than one minute.

It is little wonder that we are having to revisit crofting legislation given the potential lack of scrutiny that these 230 last minute amendments might have received in the very limited amount of time allowed to debate them.

Furthermore the rush to get these amendments through saw an opposition amendment being passed without the objections thereto being noted! The chaos surrounding this in the debating chamber at Holyrood was well documented at the time by Scott Wortley on the Edinburgh University Scots Law News Blog: The Crofting Reform (Scotland) Bill and the curious incident of the unopposed opposition amendment.

Back in November 2016 when Fergus Ewing MSP met with the Cross-Party Group on Crofting at Holyrood he stressed the importance of taking time to get crofting reform right. The two phased approach recently announced by him reinforces that.

Let’s hope that we do not see a repeat of the 2010 fiasco when the next crofting reform bill reaches stage 3 debate at the Scottish Parliament. It looks as though Mr Ewing, as Cabinet Secretary for the Rural Economy and Connectivity, will be doing his very best to avoid that.

Brian Inkster

Crofting Commission dodge answering questions

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Dodging Bullets at the Crofting Commission

The Crofting Commission can stop your questions by simply not answering them!

The Cross-Party Group on Crofting has been waiting patiently on answers to 18 questions that they posed to the Crofting Commission. These were originally sent to the Crofting Commission in July 2016 then modified and sent in October 2016.

Where in law it is stated that the Crofting Commission cannot revisit its own decisions?
Why did the Crofting Commission chose to remove three grazings committees instead of work with them to improve things, if things needed improvement?
Why were grazings shareholders not given the chance to elect a new committee when the Crofting Commission removed their committee, instead of moving straight to the appointment of a grazings constable?
Does a removed committee have a right of appeal to the Crofting Commission?
Where in law it is stated that the Crofting Commission has the power to appoint a Grazings Constable when they remove members of a grazing committee from office?
Where in law it is stated that the Crofting Commission can extend the appointment of a Grazings Constable?
Why is the Crofting Commission ignoring its own guidelines on the investigation of financial irregularities?
Does the Crofting Commission maintain that all funds in a grazings bank account have to be disbursed immediately (including SRDP grants, as Mr MacLennan stated is the bulk of funds in the CPGoC)?
If there are 3 levels of accounting as outlined by Mr MacLennan (examination by external qualified person such as local retired bank manager, prepared by qualified accountant on information supplied, full forensic audit), what are the thresholds at which each is required? Do they apply to balance or income? Who decides what is appropriate (given this was the reason Mr MacLennan gave for the Upper Coll grazings committee being removed by the Crofting Commission?)
Why did the convener of the Crofting Commission involve himself in every one of these three cases and committee removals? Is this the job of a convener?
Did the convener of the Crofting Commission declare his interest in the cases when the commissioners made their decision to move to removal?
Does the Crofting Commission consider value for public money when pursuing cases?
Mr MacLennan emphasised that the Crofting Commission were obliged to act as a shareholder had made a complaint. This does not square with the Commission’s dealings relating to other regulatory matters. We are aware of complaints made by shareholders with regard to absenteeism and neglect of crofts that go many years without commission action so it would be good to know why you are so diligent in pursuing grazings committees with such rigour. Has there been a policy change to target this type of regulatory issue (as there was previously with absentees)?
Following the letter written to the Convener by Fergus Ewing concerning disbursement of common grazings funds to shareholders and SRDP funding there were mixed messages issued to the press by Commissioners. It appeared that the contents of the letter was supported but the Commission (or perhaps certain Commissioners) still thought they had done nothing wrong. Those two statements do not sit well next to one another. Can the Commission clarify their actual stance on the letter in clear terms for the benefit of this Group.
Can the Commission explain why they have been questioning SRDP funding for and VAT Registration by Common Grazings?
The Commission appear to be supporting their ‘constable’ Colin Souter and his behaviour at Upper Coll. Do they actually support a ‘constable’ who is having meetings with 4 shareholders and making decisions affecting 42 shareholders when 26 out of those 42 have signed a petition calling for his removal?
Will the Commission advise the Group what remit was given to Constable Souter and why he appeared to be acting in an investigatory role rather than as an actual clerk.
The latest revelation appears to be matters being decided by Commissioners via ‘brown envelopes’ rather than at board meetings. Can the Commission enlighten us further on this?

There were, in addition, two questions specifically posed to the Crofting Commission via the Cross-Party Group on Crofting by Iain MacKinnon on 1 November 2016:-

I would like to draw your attention to a letter by Colin Kennedy published this month in the Scottish Farmer. In the letter he draws the Scottish Crofting Federation’s attention to ‘the commission mole’ at the time of the ‘Susan Walker debacle’. Presumably he is referring here to the anonymous commissioner quoted by the West Highland Free Press when information was leaked to the paper and other media outlets about a letter signed by five commissioners – including Mr Kennedy – calling a meeting to discuss a potential vote of no confidence in Ms Walker. Mr Kennedy told the Scottish Farmer this month:

‘I can assure the SCF that prior to my becoming convener, the mole was identified and the information was provided to the appropriate persons to take the matter forward.’

At the Cross Party Group on Crofting’s meeting on 15th September last year, Jean Urquhart asked Mr Kennedy about the leak to the press.

He was unable to give her an answer and did not identify any ‘mole’ on that occasion. However, the then chief executive of the organisation was able to respond and this is noted in the minutes as follows:

‘What is being done about the fact that there was a leak to the press from a commissioner, which is a breach of the code of conduct?

While a newspaper claimed their was leak by a Commissioner, as Accountable Officer the CEO has carried out an internal investigation which found no evidence that any Commissioner had breached the code of conduct by leaking information on the matter to the press.’

I would like to hear from the Commission’s representative at the meeting how they reconcile these two statements and to ask again, in light of Mr Kennedy’s claim: what is being done about the leak to the press; and who was the ‘mole’ as described by Mr Kennedy in his letter to The Scottish Farmer.

Six months after the first questions were put to the Crofting Commission their Interim Chief Executive, Bill Barron, addressed them at the Cross-Party Group meeting at Holyrood on 25 January 2017 by stating that he didn’t intend to answer them but would like, instead, “to focus on the future“. He wanted to “draw a line under the rows of last year“. He acknowledged that “things had been done wrong” but there was “no merit in unpicking all of that“.

Mr Barron may have missed the fact that some of the rows of last year continue into this one.

He stated:-

Some of the specific issues raised in your questions have already been clarified by the Commission. For example, we have confirmed that we agree with the Scottish Government’s position that there is nothing in the CAP rules that prevents the Scottish Government approving an SRDP application made by a grazings committee, and that we agree with the Scottish Government’s position regarding immediate disbursement of funds.

These, however, are two points that the Convener of the Crofting Commission, Colin Kennedy, still appears to be taking issue with and possibly still taking a contrary position on compared to his fellow commissioners and the official line of the Crofting Commission. This is all contrary to the doctrine of collective corporate responsibility. Indeed it is interesting to note that following the departure from the Crofting Commission of their former Convener, Susan Walker, Colin Kennedy, then Vice Convener, stated [PDF: Board Minutes – 13 May 2015]:-

I am sure that I speak on behalf of everyone when I say that today we are all equal with collective responsibility. In fact we are all Conveners, working together for the betterment of the Crofting Commission.

However, his publicly opposing views to that of the board clearly conflict with that statement.

The Guide for Board Members of Public Bodies in Scotland [PDF] states:-

While Board members must be ready to offer constructive challenge, they must also share collective responsibility for decisions taken by the Board as a whole. If they fundamentally disagree with the decision taken by the Board, they have the option of recording their disagreement in the minutes. However, ultimately, they must either accept and support the collective decision of the Board – or resign.

Colin Kennedy was not in attendance at the Cross-Party Group meeting on Wednesday night. He has only attended one meeting out of the five that have taken place since the start of the current Parliamentary term.

At the meeting in Holyrood on Wednesday night the Chair of the Scottish Crofting Federation, Russell Smith, asked Bill Barron if Colin Kennedy was still Convener and was still chairing Board meetings. Bill Barron answered both questions in the affirmative. Russell Smith then asked if the Board was working as it should to which Bill Barron replied “it is not easy but it is getting its work done“. How well, under the circumstances, it is getting its work done is, however, very debatable.

On the points raised by Ian MacKinnon the response from Bill Barron was:-

The same [i.e. not answering the questions] holds for Iain MacKinnon’s questions about a leak to the press, which was investigated by the previous CEO in 2015. Colin Kennedy’s more recent public comments about this appear to have been made in a personal capacity, but I can confirm that the Commission has no plans to re-examine this matter. Instead, my priority is to look forward to the upcoming elections and to prepare to give the best possible support to the new Board.

So it is all about looking forward and not looking back. However, you sometimes have to look back to learn from your mistakes before you can move forward and avoid making the same mistakes again.

Perhaps the Scottish Government’s review into the governance of the Crofting Commission will reflect more on the mistakes of the past and what needs to be done to prevent a recurrence of them. The Cross-Party Group on Crofting was advised on Wednesday by Gordon Jackson, Head of Rural Business Development and Land Tenure at the Scottish Government, that this review will be published “shortly“.

Brian Inkster

Image Credit: The Matrix Reloaded © Village Roadshow Pictures, Silver Pictures and NPV Entertainment

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

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

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In an exclusive interview with The Oban Times, published today, Colin Kennedy, Convener of the Crofting Commission, said that “hell will freeze over” before he resigns. He went onto say that Fergus Ewing MSP, cabinet secretary responsible, for crofting, is contravening crofters’ human rights by not allowing access to their own share of European funds. Mr Kennedy said: “The MSP should be standing down himself“.

Mr Kennedy also made reference to alleged “cronyism within the Crofting Commission” and to practices “within the commission that are not fair and equitable“.

The Oban Times further reported Mr Kennedy as saying there is a real crisis in the Scottish Government as it tries to cover its back and leave itself open to legal challenges that could cost it millions.

The conflict between the Crofting Convener and the Cabinet Secretary has now reached an extraordinary stage. It is clear that despite the Crofting Commission stating that they supported the Scottish Government’s stance over SRDP funding of common grazings and ‘immediate’ payment of monies to shareholders this is a view not shared by Colin Kennedy. As convener of the Crofting Commission he should be expressing the views of the Board and not his personally held views.

The Framework Document between the Crofting Commission and the Scottish Government (April 2016 – October 2018) [PDF] sets out the broad framework within which the Crofting Commission will operate and defines key roles and responsibilities which underpin the relationship between the Crofting Commission and the Scottish Government.

Paragraph 21 of this Framework Document states:-

The Convener is responsible to the Scottish Ministers and, in common with any individual with responsibility for devolved functions, may also be held to account by the Scottish Parliament. The Convener shall ensure that the Crofting Commission’s policies and actions support the wider strategic policies of the Scottish Ministers; and that the Crofting Commission’s affairs are conducted with probity.

Current activities would appear to be a breach of that on the part of the Convener.

Under Paragraph 22 the Convener has a particular leadership responsibility on the following matters:-

Ensuring that the Crofting Commission fulfils the aims and objectives set by the Scottish Ministers; 
Formulating the Board’s strategy; 
Ensuring that the Board, in reaching decisions, takes proper account of guidance issued by the Scottish Ministers; 
Promoting the efficient and effective use of staff and other resources; 
Encouraging high standards of propriety and regularity; 
Representing the views of the Board to the general public; and 
Promoting diversity throughout the organisation.

He does not appear to be ensuring that the Crofting Commission fulfils the aims and objectives set by the Scottish Ministers.

He does not appear to be ensuring that the Board, in reaching decisions, takes proper account of guidance issued by the Scottish Ministers (or at least he is disputing that guidance).

He does not appear to be promoting the efficient and effective use of staff and other resources. That was clear from him closing and walking out of the meeting in Brora.

He does not appear to be encouraging high standards of propriety and regularity.

He does not appear to be representing the views of the Board to the general public. He is only representing his own personal views which appear to be in divergence to those of the Board. Perhaps even “diametrically opposed”, being the phrase used by Fergus Ewing MSP to describe how Mr Kennedy’s own views compared to those held by the Scottish Government.

So again he appears to be in serious breach of the Framework Document.

In terms of Paragraph 23 the Convener shall also “ensure… that the board is working effectively”. Recent actions by him cannot mean that it is.

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 have been given to Mr Kennedy. He appears to be ignoring those directions.

The seven principles of conduct underpinning public life (as identified by the Nolan Committee in 1995) are as follows:

1. Selflessness
Holders of public office should take decisions solely in terms of the public interest. They should not do so in order to gain financial or other material benefits for themselves, their family, or other friends.

2. Integrity
Holders of public office should not place themselves under any financial or other obligation to outside individuals or organisations that might influence them in the performance of their official duties.

3. Objectivity
In carrying out public business, including making public appointments, awarding contracts, or recommending individuals for rewards and benefits, holders of public office should make choices on merit.

4. Accountability
Holders of public office are accountable for their decisions and actions to the public and must submit themselves to whatever scrutiny is appropriate to their office.

5. Openness
Holders of public office should be as open as possible about all the decisions and actions that they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands.

6. Honesty
Holders of public office have a duty to declare any private interests relating to their public duties and to take steps to resolve any conflicts arising in a way that protects the public interest.

7. Leadership
Holders of public office should promote and support these principles by leadership and example.

The Scottish Executive took the Nolan Committee recommendations one step further with the introduction of the Ethical Standards in Public Life etc. (Scotland) Act 2000 which brought in a statutory Code of Conduct for Board Members of Devolved Public Bodies and set up a Standards Commission for Scotland to oversee the ethical standards framework.

The Scottish Executive also identified nine key principles underpinning public life in Scotland, which incorporated the seven Nolan Principles and introduced two further principles:-

8. Public Service
Holders of public office have a duty to act in the interests of the public body of which they are a Board member and to act in accordance with the core tasks of the body.

9. Respect
Holders of public office must respect fellow members of their public body and employees of the body and the role they play, treating them with courtesy at all times.

Does the latest outburst in The Oban Times comply with these 9 principles and especially numbers 4, 7, 8 and 9?

A Scottish Government spokesman is quoted by The Oban Times as saying:-

Serious allegations about Scottish ministers were attributed to Mr Kennedy in the press following the Crofting Commission’s meeting in Brora on September 28.

The Scottish Government has requested further information from the convener in relation to these allegations and will give this further consideration, as appropriate. While this matter is ongoing, the Cabinet Secretary for Rural Economy and Connectivity [Mr Ewing] will continue to monitor the situation at the Crofting Commission closely.

Matters have surely today reached the point of no return. The ball is in Mr Ewing’s court.

Brian Inkster

Who are we supposed to believe?

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Whose riddles are the right riddles?

A guest post by the Crabbit Crofter.

Over the last five months “the public” has become more and more confused by the Crofting Commission’s changing statements, retractions, and now silence on the subject of ‘The Common Clearances‘. So whose fault is it the message is so confused?

The Crofting Commission seems to have the right intention. It has a button you can click on its website called Openness. It boldly claims “We aim to provide high quality services and information to all members of the public.” So how is it getting on with its aim?

First. Who should be making sure we were given clear messages about such an important topic? And lo and behold Crofting Commission has a handy Framework Document [PDF]. It became operational just about when everything started to go wrong with the common grazings furore so a shame everyone seems to have forgotten what it says. It covers the period April 2016 to March 2018. The introduction says:-

This framework document has been drawn up by the Scottish Government (SG) in consultation with the Crofting Commission. It sets out the broad framework within which the Crofting Commission will operate and defines key roles and responsibilities which underpin the relationship between the Crofting Commission and the SG.

How handy. It tells us lots of useful stuff. It sets out who is responsible for communicating with the public. Guess who it is? The Convener of the Crofting Commission. The Framework Document states one of the Convener’s “particular responsibilities” is:-

Representing the views of the Board to the general public

So how has Convener Kennedy been getting on with this “particular responsibility”? Since the 2016-2018 Framework Document came into force, there have been:-

various interviews on Radio nan Gaidheal and An La, BBC Alba (TV) with Commissioner MacLennan, including one where he was challenged by the interviewer Donald Lamont on why he hasn’t done more to help Lewis grazing committees. Mr MacLennan explained he couldn’t talk about Mangersta or Upper Coll because he had conflicts of interest. In the Upper Coll case because he had some sort of link with the solicitor representing Upper Coll in the Land Court case.

It could be argued Mr MacLennan as a Gaelic speaker was used for these interviews rather than Convener Kennedy. But, guess what? There have also been:-

An interview in English with Commissioner Swan after the meeting in Mangersta on 17th May on Aithris an Fheasgair, Radio nan Gaidheal.
An interview in English with Chief Executive Catriona MacLean on Radio nan Gaidheal, and An La, BBC Alba, after the meeting attended also by Convener Kennedy (and Commissioner MacLennan) in Stornoway with the CNES Joint Consultative Committee, on 13th June.
Statements at the Scottish Parliament Cross Party Group on Crofting in June by Commissioner MacLennan and Chief Executive Catriona MacLean (in English). Convener Kennedy was notably absent when the big topic of the Commission’s self-inflicted common grazings crisis was on the agenda and obviously politicians and the general public would be demanding a clear statement from the Commission. Strangely Commissioner MacLennan seemed to have forgotten about his reluctance to talk about the issue because of a conflict of interest in the two Lewis cases.
Interviews with Commissioner MacLennan following the board meeting on 17th August, carried on Aithris an Fheasgair and An La in Gaelic and in a BBC Highland report in English. These interviews were almost unintelligible. They left the “general public” in a worse state of confusion than if there had been no interviews at all by anyone.

There have also been numbers of statements –

The famous Convener Kennedy statement on how to manage common grazings finances, now removed from the Commission’s website but available on the Crofting Law Blog.
A statement from Vice Convener MacDonald on 8th June contradicting the previous statement from the Convener but with no explanation if it was his own views or those of the whole board who had agreed to disagree with their Convener on the issue.
The famous Open Letter from Chief Executive Catriona MacLean still available on the Commission website. It contradicts the Convener’s previous statement, but claims no such statement was ever made. So which of the Convener’s or the Chief Executive’s statements was the views of the board? We have to assume the Convener’s since it is his “particular responsibility” to convey the views of the board to the general public.
A report from Jackie O’Brien on Good Morning Scotland (Radio Scotland) who hadn’t managed to get an interview but had got a statement from Convener Kennedy prior to the board meeting on 17th August. The Convener’s statement was extraordinary because it disagreed with his Minister. And it stated the Convener’s position on the matter before he allowed the board to have a democratic discussion. But then the Convener didn’t make any attempt to convey the views of the board to the general public after the board meeting. Why not? Instead we got something almost completely unintelligible from Commissioner MacLennan no-one has been able to decipher yet. So what were the views of the board? Since it is his “particular responsibility” to convey the views of the board to the general public we must assume it was the Convener’s statement before the board meeting.

All of this leaves the general public totally confused. Which of these contradictory interviews and statements from five different people (Vice Convener, two Commissioners, Chief Executive, Convener) over the past 5 months is the opinion of the board? The Framework Document tells us we should only listen to the Convener because he has “particular responsibility” to convey the views of the board to the general public. But he has consistently refused to give interviews. And his two public statements baldly state grazing committees have to pay out all money immediately to shareholders and can keep none. So there you have it. It looks like he is in conflict with his Minister. And with his board. And his Chief Executive. Not to mention crofters. No wonder we are all so confused and angry.

Crabbit Crofter

Guest Blogger Bio: A crabbit crofter who wishes the weather was better & Scotland produced more of its own food. He believes in a just & honest world, full of integrity & decency.

Image Credit: The Riddler – Batman Forever © Tim Burton Productions and PolyGram Pictures

Back to the Future of Crofting

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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

Yes Crofting Minister

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James Hacker: You said yourself how important these select committees are. I cannot be seen to mislead them.
Sir Humphrey Appleby: You will not be SEEN to mislead them.

How the Crofting Commission played out their sudden and surprise U-turn on the question of ‘The Common Clearances‘ would not have been out of place in an episode of Yes Minister. Sir Humphrey Appleby would have delighted in the obfuscation and manipulation displayed by the Crofting Commission in Holyrood on Wednesday night. However, like Sir Humphrey, the Crofting Commission is not immune to making miscalculations or outright blunders.

It was the first meeting, since the latest Scottish Government was formed, of the Cross Party Group on Crofting within the Scottish Parliament.

It was the first time, since allegations of abuse of power within the Crofting Commission over ‘The Common Clearances‘ were made, that the Crofting Commission would meet eye to eye with politicians and other crofting stakeholders in a public forum.

In the preceding week or two damning revelations had been made of historical revisionism and flouting the will of Parliament on the part of the Crofting Commission. This was on top of votes of no confidence against them, the Convener of the Crofting Commission attending meetings despite a clear conflict of interest, a Crofting Commissioner resigning and calls for the Scottish Government to investigate the whole matter.

It looked like the Commission would be in for a very rough time at the Cross Party Group meeting.

They knew that and had to do something quick and decisive to limit the damage being caused to them and that could be wrought on them at that meeting.

Nothing like a massive U-turn, with an attempt to dress it up in other ways, to achieve that.

So Crofting Commissioner, Murdo Maclennan (the Convener, Colin Kennedy, was conspicuous by his absence), announced to the Cross Party Group that he “thought we have a conclusion” on Mangersta and there was “no grazing constable in place at the moment“.

On being pressed for clarification on certain elements of this the Chief Executive of the Crofting Commission, Catriona Maclean, elaborated that:-

there is no constable at present, the case is over and the people of Mangersta will be advised.

So case closed and no further discussion on that then. Please move along ladies and gentlemen.

When the removal of the Upper Coll common grazings committee from office was mentioned that, of course, could not be discussed as it was subject to on going proceedings in the Scottish Land Court.

The third committee that the Crofting Commission have evicted from office was not mentioned at all, other than briefly by me when Commissioner Murdo Maclennan insisted that I declare my interests. I think that perhaps backfired on him as the Commission would rather pretend that episode never happened as there has, to date, been no publicity surrounding it.

So one case conveniently closed, one sub judice and one we can simply forget about. Thus nothing really to talk about.

The extra gloss on this being that new guidelines were being produced by the Commission and all would be well when these were issued and followed. My criticism of this approach is already well known. You have to get the law right first before you write guidelines about how to follow that law. The Commission’s viewpoint is that their interpretation of the law will follow “in due course”. Perhaps this is because their latest massive U-turn means they actually now accept the law to be as I have been setting it out to be on this blog for some time!

The U-turn is great news for the shareholders in the Mangersta Common Grazings and the former members of their grazings committee. It is a vindication of the position correctly maintained by them throughout.

It leaves the Crofting Commission with egg on their face however they try to dress it up. The Emperor’s New Clothes remains a theme, in so far as the Commission is concerned, post the Cross Party Group meeting.

In my next blog post I will reveal how the Crofting Commission not only ignore the law but lawyers who write to them concerning it. In a subsequent blog post I will explore the significance of the latest U-turn by the Crofting Commission and the possible repercussions thereof.

Brian Inkster

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

Crofting Commission flouts the will of Parliament

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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

‘A Menacing Presence’

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It was not the first time that the Crofting Commission had been referred to as ‘The Dark Side’

As indicated previously I am still catching up with news of ‘The Common Clearances‘ since I returned from holiday.

One news item in the saga from last month involved a meeting called by the Crofting Commission with shareholders of the Mangersta Common Grazings (their committee having been removed from office by the Crofting Commission).

There were three press releases relating to the meeting (one with a slightly different slant on it) and that as follows:-

Statement by the Crofting Commission

The Crofting Commission met with shareholders of Mangersta common grazings today, Tuesday 17 May. The meeting was productive and the Commission would like to thank shareholders for their positive contribution.

The Crofting Commission conducted a closed meeting to give shareholders information on the current state of their common grazings finances as determined by the Commission appointed Grazings Constable. The meeting has also provided opportunity to seek an agreement on the best way forward to ensure that the committee’s significant level of funds is distributed to shareholders appropriately. The Commission are committed to achieving a resolution in Mangersta and would like to encourage shareholders to continue to work with us, and hope that this leads to the appointment of a new grazings committee in the near future.

The Commission wants to encourage the good shared management of common grazings across the crofting counties and the most effective way to do this is through properly constituted grazings committees. Clear grazings regulations are the most effective way to safe guard the future common grazing land for the benefit of all crofters.

Statement by the Former Committee members and clerk to Mangersta Common Grazings

The Former Committee members and clerk to Mangersta Common Grazings have expressed “profound concern about the implications for the whole crofting system of the actions now being pursued by the Crofting Commission”.

The statement from the group – who were removed from office on the orders of the Commission – followed a meeting convened by the Commission to explain its position.

Following the meeting, attendees said:

This is no longer about Mangersta or any other specific village which the Commission has intervened in. It is about the very existence of the crofting system on any kind of viable, community basis.

The position of the Commission is that all money coming into a village for agricultural and environmental schemes must be distributed to individual shareholders, no matter where they live or what their contribution to the crofting life of the village is.

They say that these payments should be declared for the purposes of taxation – the phrase used was that they needed to be ‘taxed and cleaned up’. Individual shareholders should then be asked to make payments back into the Grazings Committee for the purposes originally intended.

In terms of crofting, this is completely mad and unsustainable. What Grazings Committee is going to apply for any scheme under these conditions?

When shareholders at the meeting questioned the legality of the Commissioners proposals they were told that if all shareholders did not accept them, the Commission would not allow Mangersta Grazings shareholders to reform a committee.

The statement repeated the call for an inquiry into the operations of the Crofting Commission and also asked for an urgent debate in the Scottish Parliament to seek clarification on the issues involved.

At the outset of the meeting, the chairman, William Swann, over-ruled objections to the unannounced presence of the Crofting Commission convener, Colin Kennedy, who did not participate in the discussion. Mr Swann said that Mr Kennedy has a ‘conflict of interest’ but would not ask him to leave the meeting.

Mr. Swann also refused to respond to questions about the legality of the Commission’s actions in removing the grazings clerk and committee members from office replacing them with a Grazings Constable. He said that only the Scottish Land Court could rule on that matter. The legal advice received by the Mangersta shareholders is that there was no basis in law for the Commission’s actions.

Crofting law expert, Brian Inkster of Inksters Solicitors, who wrote to the Crofting Commission pointing out that, in his view, the appointment of a Grazings Constable in these circumstances was illegal, said:-

The Crofting Commission has not responded with any legal argument as to why they consider their actions to be legal. They have simply stated that they consider their decision to be a final one and they have no authority to revisit their own decisions in these circumstances. So they appear to consider that they can do as they please with no real regard to the law and if decisions are illegal they cannot reverse them!

This is also self evident from the appearance at the meeting unannounced, but with an acknowledged conflict of interest, of convener Colin Kennedy. It is stated in Paragraph 13(2) of Schedule 1 to the Crofters (Scotland) Act 1993 that ‘the convener must, if present, chair meetings of the Commission and any of their committees’. He didn’t chair this meeting, remained silent and allowed Mr. Swann to chair. Yet again the Crofting Commission simply rips up the rule book.

No public body should be allowed to behave like this and now that we have a new Cabinet Secretary with responsibility for crofting, namely Fergus Ewing, he will hopefully put a stop to it.

If Mr. Swann considers that only the Scottish Land Court can rule on the matter then the Crofting Commission should be making an application to the Land Court under Section 53 of the Crofters (Scotland) Act 1993 for confirmation as to the legality or otherwise of their actions. Until such time as they do so, and in the absence of any legal argument to the contrary, my advice to any Grazings Committee who has been dismissed and replaced by a Grazings Constable is to treat any actions by that Constable as being null and void and carrying no legal authority.

The former committee members and clerk reiterated at the meeting that they could see no way forward until the Crofting Commission publicly admit their error and issue an apology for their actions. The statement said:

The Crofting Commission is a statutory body which must act within the law.

This affair has opened up issues which are fundamental to the whole crofting system and there is no confidence in the Crofting Commission, left to its own devices, to act in the best interests of crofting or in accordance with their statutory remit. Urgent intervention is now required.

Statement by the Scottish Crofting Federation

The Scottish Crofting Federation (SCF) has expressed astonishment that the convener of the Crofting Commission attended the Mangersta grazings ‘closed’ meeting unannounced.

Fiona Mandeville, chair of the SCF, said

This could be seen as blatant intimidation. It is an old trick to bring someone along to a sensitive meeting who sits in the background as a menacing presence. Perhaps this was not the intention, but it was very poor diplomacy.

Following the widely reported skirmishes between two Lewis grazings and the Crofting Commission, notice recently went out to shareholders of Mangersta grazings, from the Crofting Commission, inviting them to attend a meeting to try to move towards resolution in the conflict. The letter made clear that Commissioners William Swan, Marina Dennis and David Campbell would be present. There was no mention that Commissioner Colin Kennedy, who has been at the heart of the two conflicts and was the subject of complaints about his aggressive meeting style, would be there.

Ms Mandeville continued:-

Apparently shareholders attending asked that he be removed from the meeting but the chair, William Swan, said that, although Mr Kennedy had a conflict of interest, he would be allowed to stay.

We are simply astonished. At every turn the Commission seems bent on thwarting this process and opening itself to further criticism. We were encouraged to hear of the meeting and felt the Commission was trying for reconciliation, but this latest misjudgement will add to the grave concern felt by everyone who cares about crofting’s well-being.

Conclusion

Given how the Crofting Commission handled the meeting it is hard to see how they could put such a positive spin on it. The Convener, with an acknowledged conflict of interest, should quite simply not have been there. That in itself could have made all the difference and been the start of the Crofting Commission rebuilding their shattered credibility. The opposite has been the case as subsequent events have testified.

Brian Inkster

Crofting Law and the new Scottish Government

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How does the election results affect the future of crofting law?

Today’s Scottish Parliamentary election results saw the SNP form a minority administration with 63 seats. The Scottish Conservatives came second and form the opposition with 31 seats. Scottish Labour were in third place with 24 seats followed by the Scottish Green Party on six and Scottish Liberal Democrats on five.

What does this mean for the future of crofting law?

The SNP Manifesto states:-

Modernising Crofting

Crofting plays a unique role in Scotland’s Highlands and Islands heritage, bringing distinct social, economic and environmental benefits to communities. We will continue to provide public support for the continuation of crofting and to secure thriving crofting communities.

We will also introduce a new entrant’s scheme for crofting, explore the creation of new woodland crofts and publish a National Development Plan for Crofting.

Croft housing grants have been increased and we will continue to target support at those most in need. We will also re-introduce the Croft House Loan Scheme.

Crofters have long been concerned at overly complicated and outdated legislation so we will modernise crofting law and make it more transparent, understandable and workable in practice. We will also ensure new community landowners are not left out of pocket due to registering as the new landlord of crofts within their community owned estate.

So there is a clear commitment to “modernise crofting law and make it more transparent, understandable and workable in practice”. This must mean a new Crofting Bill being introduced during the next parliamentary term.

At the Crofting Law Group Conference in March there was clear cross-party agreement on the need for crofting law reform. So I can’t see any opposition to the introduction of a new Crofting Bill.

The last Minister for Environment, Climate Change and Land Reform (with responsibility for crofting) was Dr Aileen McLeod MSP. She failed to win the Galloway and West Dumfries constituency seat and missed out on getting a South Scotland Regional seat in the list vote. So inevitably there will be a new Minister for Environment, Climate Change and Land Reform.

Perhaps with a new Crofting Bill in the offing and the dreadful problems within the Crofting Commission that the new Minister has to tackle it is time for Nicola Sturgeon to appoint a dedicated Crofting Minister? Preferably one with a seat in the crofting counties.

Who will be the political voices we will now hear speaking up for crofting law reform and investigation of the alleged abuse of power within the Crofting Commission?

Gone from Holyrood are the strong voices on crofting that came from Jamie Mcgrigor (Conservative), Rob Gibson (SNP), Jean Urquhart (Independent) and Dave Thompson (SNP). We will also miss Alex Fergusson (Conservative) who thought that crofting law is a complete mystery but amused us with his analogy of ‘The Crofting Law Hydra‘.

Returned to Holyrood are Tavish Scott (Liberal Democrat) and Rhoda Grant (Labour). Both of whom participated in Crofting Question Time at the Crofting Law Group Conference in March expressing strong views on the “mess” that is crofting law. I can’t see them holding back on the latest “mess” of ‘The Common Clearances‘.

New to Holyrood are Donald Cameron (Conservative) and Andy Wightman (Green Party). Again they both participated in Crofting Question Time at the Crofting Law Group Conference. Donald Cameron said there that it was “time for crofting law to be for the crofters and not the lawyers”. I think that ‘The Common Clearances’ is a clear testament to that sentiment.

Helping the SNP with the Crofting Bill, and routing out the alleged abuse of power at the Crofting Commission, must surely be all SNP MSPs within the crofting counties. Alasdair Allan (Western Isles) has already spoken out about ‘The Common Clearances’ with two ‘sacked’ grazings committees, that we know of, being within his constituency. Other SNP MSPs in the crofting counties include long time politician Michael Russell (Argyll and Bute) and newbie Kate Forbes (Skye, Lochaber and Badenoch), who I had the pleasure of discussing The Crofting Law Sump with at The Future of Crofting Conference in December. Maree Todd took the SNPs only Regional Seat in the Highlands & Islands so I would think she will take an active interest in crofting law which will affect many of her constituents.

The first opportunity for the new MSPs to flex their muscles on crofting matters might be the Cross-Party Group on Crofting at Holyrood. Expect a large attendance.

Brian Inkster