Tag Archives: Scottish Parliament

The Future of Crofting Conference

The Future of Crofting Conference 2015Brian Inkster will be speaking about ‘The Sump‘ at The Future of Crofting Conference in Inverness on 4 December 2015. This conference is a joint venture involving the Scottish Parliament Cross Party Group on Crofting, the Highland Council and the Scottish Crofting Federation.

Conference details are:-

Where: Highland Council Chamber, Inverness.

When: Friday 04 December 2015 09.00 – 16.00 (registration opens 08.30).

Background: In the wake of the near collapse of the Crofting Reform Bill in 2006, pressure from the Scottish Crofting Federation led to Scottish ministers commissioning a Committee of Inquiry on Crofting (CoIoC). This was chaired by Professor Mark Shucksmith. The CoIoC undertook many community meetings throughout 2007 and delivered their final report in 2008.

This was the most comprehensive study of crofting since the Taylor Commission, which reported in 1954.

The Scottish ministers used this report to formulate a further bill, its passage through Parliament culminating in the passing of the Crofting Reform (Scotland) Act 2010. Before the 2010 Act was published a conference called ‘The Future of Crofting’ was held in Stornoway in January 2010, hosted by the Comhairle nan Eilean Siar.

The Scottish Parliament Cross Party Group on Crofting agreed at a meeting in April 2015 that it is time to hold a further ‘Future of Crofting’ conference to look at what progress has been made since the CoIoC. The Highland Council have generously offered to host this with funding assistance from HIE.

Conference agenda: the conference offers expert speakers on the CoIoC, including Professor Shucksmith, and on the state of crofting law, regulation and development. There will also be ‘a view from the fank’ – a reflection by crofting activists. The format will give plenty of time for open discussion to gather views from the floor, which will be collated and presented by the Cross Party Group on Crofting, on behalf of the conference, to the Scottish Government.

You can download the conference programme here: Programme – The Future of Crofting Conference – 4 Dec 2015.

The conference is free and as there are limited places, advance registration is essential.

To register please email Maria Scholten.

Crofting Convenergate?

Crofting Convenergate

Infamy, infamy they’ve all got it in for me!

We recently blogged on the change of Convener within the Crofting Commission. There was reference in that post to what has been called a “witch-hunt” and “a bad smell”. Three letters written by Dr Iain MacKinnon to the West Highland Free Press give more detail on what one might refer to as ‘Crofting Convenergate’. We publish them here in their entirety and as they were written (the West Highland Free Press edited the second of the three letters a little prior to publication).

Letter 1:  3 May 2015

The anonymous Crofting Commissioner quoted in last week’s Free Press claimed discontent with Susan Walker’s convenership of the Commission has “been going on for some time”.

If that is so, then why did the five alleged complainants not wait for the scheduled Commission board meeting on 13th May to raise their no-confidence motion: what sudden calamity made their ‘emergency meeting’ such an imperative? The anonymous commissioner was silent on this, as they were on any details about Susan Walker’s failings.

The Free Press then claimed they had been told: “The commissioners did not want to go on the record at this stage”.

This remarkable statement suggests the complainants have agreed collectively to leak the story anonymously while anticipating going ‘on the record’ in the future.

This would be an astonishing course of action. The conspirators must be aware there are proper procedures available to them for resolving such disputes. Instead they must have decided collectively to throw the organisation that they represent – and crofting regulation generally – into public disrepute.

This matters because section 2.1. of the Commission’s Code of Conduct states commissioners “have a duty to act in the interests of the public body of which they are a member and in accordance with the core functions and duties of that body”.

The code then states: “You have a duty to promote and support these principles by leadership and example, and to maintain and strengthen the public’s trust and confidence in the integrity of the public body and its members in conducting public business.”

The code also demands that commissioners must respect their fellows, “treating them with courtesy at all times”. The anonymous briefings clearly breach this part of the code.

If they have been jointly briefing against Susan Walker the five complainants appear to be in breach of the Commission’s Code of Conduct and liable to investigation by the Standards Commission for Scotland which polices ‘The Ethical Standards in Public Life Act’.

Additionally, “promoting the interests of crofting” is a requirement for commissioners under Part 1 of the Crofting Act and, if they are shown to have acted against this, then under Schedule 1 they can be found unsuitable to continue and dismissed.

If, as is alleged, five anonymous commissioners want to declare ‘no-confidence’ in Susan Walker, they are free to do so. However, if they have also unnecessarily called an ‘emergency meeting’ and then systematically leaked that news to the media for maximum publicity, then they have undoubtedly weakened “the public’s trust and confidence in the integrity” of the Crofting Commission and they have brought their own positions within it into disrepute.

If this is the case, the Crofting Minister must consider whether such people are fit for public office. If it turns out that, in fact, the anonymous briefings have been instigated by one or two individuals, without the consent of other complainants, then those complainants who have been used in this way need to think carefully about the ugly, cowardly whispering campaign of which they are now part.

Letter 2: 18 May 2015

I would like to add to the tributes offered to former Crofting Commission convener, Susan Walker. My primary reason for writing is as it was two weeks ago – not as a friend and one-time colleague of the former convener, but as someone concerned about the future well-being of crofting tenure.

The whispering campaign against Susan Walker began in the media at the end of last month. Since then, her work on behalf of crofting throughout the Highlands and Islands has been praised by the Scottish Crofting Federation and the chairs of the Scottish Parliament’s Rural Affairs Committee and Cross-Party Group on Crofting.

It is worth reflecting on the breadth of that support. It includes the crofting representative body, the senior parliamentarians on crofting issues and also the Scottish Government itself. All appear to believe that “the new enlightened way in which the Crofting Commission functions” has been in part the result of Susan Walker’s leadership, and had given grounds for optimism for a tenure system that had previously been described, almost universally, as “failing”.

Her critics, on the other hand, appear to comprise her disaffected former colleagues and one or two newspapers. One of these newspapers is the Free Press – with one columnist dismissing her as a ‘trusty’ in the pocket of Government.

While the Free Press’ editorial two weeks ago gave an admirably clear argument for a fully elected Crofting Commission, it also acknowledged that the newspaper publicised the conspiracy against Susan Walker without knowing what she is said to have done wrong.

So what has Susan Walker been doing right these last three years? The contrast between Taynuilt and North Ballachulish indicates the Commission’s wider change in attitude under her leadership. In 2005, when ten houses were proposed on croft land in Taynuilt, the old ‘failed’ Crofters Commission folded to the developer’s demands with barely a whimper. By contrast, under Susan Walker’s leadership the new Commission has taken its opposition to the current plan for ten houses on a croft in North Ballachulish all the way to the Land Court.

This principled opposition was not the result of new legislative requirements but of a new determination within the Commission itself. The wide-ranging praise Susan Walker has received in recent weeks suggests this step-change has been noted throughout the organisation’s work.

The commissioners responsible for the covert briefings against her have breached standards required for public life and brought the Commission into disrepute. They have lost the trust of government and have surely failed the trust of those who elected them to turn around the mess they inherited. It would be a real service to crofting if the Free Press were to disclose their identity.

The media coverage no doubt greatly reduced the opportunity for a mediated process within the commission to resolve the conflict and allow Susan Walker to continue the good work she had started. The unstinting dedication for the good of crofting that she brought to her role will leave the commission with her.

Letter 3: 23 June 2015

The Minister for Crofting, Aileen McLeod, this week told the Crofting Commission she is “very pleased to support their proposal on the selection of a new convener”.

However, files I obtained from the Commission last week through Freedom of Information legislation reveal that the conduct of Commissioners has been privately criticised by the Minister, with an unnamed official expressing Dr McLeod’s disappointment “at events being played out through the media” following the conspiracy against former Commission convener Susan Walker at the end of April.

A full two months after the conspiracy against Walker began, no credible information has yet been forthcoming from any Commissioner or from Government about the nature of the problems Walker is supposed to have created. The Commission is even refusing to name those Commissioners who organised the proposal of no-confidence against her – removing all but one signature from the copy they sent me of the letter in which some Commissioners put that proposal forward.

Dr McLeod’s disappointment does not stand alone. Crofters, crofting administrators, the Scottish Crofting Federation and a senior Member of the Scottish Parliament have all criticised the behaviour of the Commissioners involved in the move against Walker.

One crofter, summing up his views on social media, concluded that the Commission is in “chaos” and “disarray”, and presently not fit for purpose.

According to the FoI files, even the chief executive of the Crofting Commission, Catriona Maclean, has privately criticised the way Commissioners have handled this affair and she has gone further, with one internal note suggesting the Commission may have underplayed the level of division within their board during discussions with Government. Writing shortly after the convener’s resignation she said that, while the Commission “wanted to reassure the Minister [for Crofting] that they were keen to move forward in a united and positive way”, her own view is that there are “still differences of opinion on the merits of what happened”. In a later commentary she specified disagreement between board members which will require “a focus on healing”.

Such is the sorry state of the crofting regulator. It seems everybody knows it, yet no-one in Government or the Commission is willing to admit it, and, so far as their public statements go, it appears there will be no attempt to investigate what has really gone wrong at the Commission – and to investigate why at least one Commissioner seems to be allowed to break the organisation’s code of conduct with impunity.

Indeed, this despicable soul may even be elected convener and become the new face of crofting regulation – the files show that this was a well-orchestrated manoeuvre, and those in charge had a clear outcome in mind. The files also suggest that, in fact, the campaign against Walker had two main instigators – with at least one of them male.

Allowing the Commission to elect their own convener in such circumstances is not simply a humiliation for the Scottish Government, and for the Crofting Commission as an organisation; it undermines the credibility of crofting regulation as a whole.

Dr Iain MacKinnon

 

Dr Iain MacKinnon is researching the politics of crofting at Coventry University, although the letters on ‘convenergate’ are not part of his academic work.

Main image credit: Carry on Cleo

Crofting Commissioners do the Hokey Pokey

Crofting Commissioners do the Hokey Pokey

Shake it all about

The Crofting Commission have announced the election of Colin Kennedy as their new Convener.

The secret ballot, overseen by the Crofting Commission’s Chief Executive, came following the delegation of the selection of the new Convener to Commissioners by Scotland’s Crofting Minister Dr Aileen McLeod.

Ian George Macdonald was voted in as Vice Convener, a position previously held by Colin Kennedy.

These elections follow on from a period of conflict within the Commission which resulted in the resignation of former Convener, Susan Walker, who was appointed to that position by the Scottish Government.

Back in April it was reported by The Herald that at least 5 commissioners had requisitioned a special meeting of the Crofting Commission in order to move a motion of no confidence in Susan Walker. The report claimed that there had been growing concern amongst her fellow commissioners over her style of leadership with it being alleged that she had assumed the role of an executive chair, rather than that of primus inter pares – first among equals. It was also suggested that she had been closer to officials in Edinburgh and Inverness, than to her commissioner colleagues.

What some have called a “witch-hunt” resulted in Susan Walker resigning both as Convener of the Crofting Commission and as a commissioner.

Following her departure Crofting Minister Dr Aileen McLeod said:-

“I would like to thank Susan for all of her hard work and for making such a positive contribution to crofting during her time as commissioner and convener. I have been impressed by her vision and passion for crofting and Scotland’s crofting communities, as well as her expertise and her many achievements since taking office.”

Colin Kennedy will now take up the post of Convener until 31 March 2017, covering the remaining tenure for the current Board.

Mr Kennedy said:-

“I would like to thank the Commissioners for voting me in to the role of Convener.  I am looking forward to working with the Board and staff in delivering the express will of Parliament contained in crofting legislation and effectively regulating crofting.”

It will be good to see the Crofting Commission actually “delivering the express will of Parliament contained in crofting legislation”. In recent years they have been putting their own interpretation on crofting legislation which many have argued was not how Parliament intended it. Indeed the Scottish Land Court recently ruled the Commission’s interpretation in one particular case to be wrong and clarified for the Commission what Parliament actually intended.

It is to be hoped that the Crofting Commission under Mr Kennedy’s stewardship will actually follow the express will of Parliament and no longer seek to interpret the Crofting Acts in weird and wonderful ways.

Mr Kennedy is, of course, no stranger to crofting legislation having been involved in a number of high profile personal battles in the Scottish Land Court over the years regarding crofting issues on the Isle of Coll.

Mr Kennedy originally stood for election to the board of the Crofting Commission after becoming disillusioned with its management. He said, at the time, that the eight crofters on the Isle of Coll had been treated ‘appallingly’ by the Commission, accusing the organisation of applying the legislation differently in one part of the country to another. If elected, he said he would strive to ensure Scotland’s Crofting Acts would be applied evenly across the board.

The Scottish Crofting Federation (SCF) has cautiously welcomed the election of the new Crofting Commission Convener, warning of a long way to go to restore confidence in the Commission.

SCF Vice-Chair Russell Smith said:-

“Following a long period of silence since the early departure of Susan Walker from the leadership of the Crofting Commission, we are pleased to see that something is being done to get the commission back on to a road to recovery. Electing a replacement convener will at least allow the commissioners to get on with their job.

“Crofters welcomed the fact that the new Commission had a majority of elected commissioners when it took over the regulation of crofting in 2012. So, it is even more disappointing that the fracas that led to Ms Walker’s resignation was allowed to happen.

“The fact that there have been no reasons given for the alleged vote of no confidence or that there has been no visible attempt to deal with the commissioner who breached the Code of Conduct by going to the press, leaves a bad smell. There are, understandably, questions still about how the commission operates. It is for the new convener to rectify this.

“However, we were gratified that the minister for crofting, Dr Aileen McLeod, allowed commissioners to elect their own convener this time, and we hope that this practice continues.

“There are some very experienced and competent people still on the commission and we hope that they are able to pick up the pieces. It is the intention of the SCF to continue to work closely with the commission for the furtherance of crofting.”

So it’s in, out and shake it all about at the Crofting Commission. But will they turn it around?

Crofting law is a complete mystery

Crofting Law is a mystery

Can Daphne solve the mystery of crofting law via the Crofting Law Blog?

Yesterday I blogged about proceedings that morning at the Rural Affairs, Climate Change and Environment Committee of the Scottish Parliament. They were taking evidence on the Scottish Government’s amendments to the crofting community right to buy at Stage 2 of the Community Empowerment (Scotland) Bill. I highlighted a potential issue concerning time limits being imposed upon the Scottish Land Court.

Also worth a mention from yesterday’s proceedings were a few quotes from participants about the incomprehensible nature of crofting law.

When introducing themselves at the outset Alex Fergusson (of Crofting Law Hydra fame) said:-

I am the MSP for Galloway and West Dumfries, and crofting law is a complete mystery to me.

Then, after some discussion on the definition of crofting community, Alex Fergusson said:-

That is me. I am exhausted

Earlier in the proceedings Peter Peacock of Community Land Scotland said:-

It is said that only three people understand crofting law—one is mad, one is dead and nobody can remember who the third one is.

I hope that Alex and Peter will read this blog. We will try to demystify crofting law for Alex and trust Peter will come to realise that our three main bloggers are not mad, dead or unmemorable!

Read the Official Report of the Rural Affairs, Climate Change and Environment Committee – 18 February 2015 [PDF]

Brian Inkster

Image Credit: Scooby-Doo © Cartoon Network Studios

Should the Chairman of the Land Court be hung, drawn and quartered?

"should my friend the new chairman of the Land Court, Lord Minginish, be hung, drawn and quartered"

It would be unusual to penalise the Chairman of the Land Court!

The Rural Affairs, Climate Change and Environment Committee of the Scottish Parliament were today taking evidence on the Scottish Government’s amendments to the crofting community right to buy at Stage 2 of the Community Empowerment (Scotland) Bill.

Eilidh Ross MacLellan will be looking at the relative crofting provisions in a little more detail in a future blog post. In the meantime I will just draw your attention to a particular highlight from today’s proceedings.

It was pointed out that Section 92 of the Land Reform (Scotland) Act 2003 allows the Scottish Land Court four weeks from the hearing date to give its reasons in respect of a valuation appeal. A proposed amendment will extend that period to eight weeks. Should that extended timescale not be sufficient, the Land Court is to notify all parties of the date on which it will provide a written decision.

Derek Flyn gave his view on this:-

What sanction is available to parties if the Land Court does not do as instructed in the legislation? No sanction is included. If there is no result within the eight-week period and no information about when the written statement will be produced, should my friend the new chairman of the Land Court, Lord Minginish, be hung, drawn and quartered?

A good point. Derek went on to say:-

How the Land Court goes about its business should be in its rules and regulations. If it is in the bill, nothing will be able to be done about it if it goes wrong. It will just cause a legal problem that will go into the courts and stay there.

Hopefully the Scottish Government will endeavour to avoid such legal problems.

It was decided to ask the Minister about this one.

I trust Lord Minginish will not be in jeopardy of any penalties, especially of the medieval variety, by the time the Bill becomes an Act.

Read the Official Report of the Rural Affairs, Climate Change and Environment Committee – 18 February 2015 [PDF]

Brian Inkster

Crofting Gobbledygook

Scottish Land Court

Will the Scottish Land Court have to decipher the Crofting (Amendment) (Scotland) Act 2013?

The Scottish Parliament has voted to pass the Crofting (Amendment) (Scotland) Bill. In due course, it will receive Royal Assent. Owner-occupier crofters will be able to decroft, and the Scottish Government will breathe a sigh of relief that the decrofting debacle has been buried.   However, this bill has been far from the Scottish Government’s finest hour. The bill has added a further layer of complexity to a legislative framework I have previously, publicly, labelled a mess and a shambles. The Act will result in the Crofting Commission processing applications once again, but the decrofting provisions are now so incomprehensible that it can only be a matter of time before they are challenged in the Courts. Then we shall hear accusations that solicitors are getting fat on the ever-diminishing bank accounts of crofters.  The time and effort taken by myself and by other professionals in this field indicate that we have an interest in clarifying legislation to avoid crofters facing high legal costs. Yet the Scottish Government saw fit to ignore all submissions and suggestions, however helpful they may have been. The quality and clarity of the Bill could have been far improved, had the Scottish Government accepted help from those best placed to provide it. Sooner or later, we will all simply stop responding to consultations and will have no heart to contribute to the parliamentary process.

Furthermore, this Bill has given birth to a fresh debate over wider crofting legislation. I have long been of the view that crofting legislation should be left alone for a time, to bed in, and to allow a body of case law to become established. However, in light of the 2013 Bill I have changed my view, and I have called for an overhaul of all crofting legislation. The numerous problems which have become apparent with the Crofting Reform (Scotland) Act 2010, coupled with the prospect of yet more impenetrable sections (when a few simple sections would have achieved the same effect), made me despair that the current framework could ever work. There are simply too many problems to overcome; the decrofting uncertainty was merely the tip of the iceberg. I do not suggest another evidence-gathering committee in the mould of Professor Shucksmith, but it is both possible and desirable to deconstruct the legislation and rebuild it so that it makes sense and is, to use a phrase so beloved of government, ‘fit for purpose’.

Rob Gibson MSP appeared to have taken offence at my labelling of the legislation as a “mess” and a “shambles” but I stand by my remarks, and I refute his comment that crofting law is merely “complex”. Most areas of law are complex, and solicitors are trained to operate in such an environment, but crofting law since the Crofting Reform (Scotland) Act 2010 – which his Government must take responsibility for and cannot be blamed on inheritance – has become incomprehensible, not merely complex. I urge Mr Gibson to listen to the suggestions offered by experienced professionals, rather than taking the defensive stance we saw in the debating chamber yesterday afternoon.

Eilidh I. M. Ross

Crofting (Amendment) (Scotland) Bill is passed

Scottish Parliament - Stage 3 Debate - Crofting (Amendment) (Scotland) Bill

The Crofting (Amendment) (Scotland) Bill was passed by the Scottish Parliament today. The official press release from the Scottish Government reads:-

Decrofting legislation to tackle the difficulties owner-occupier crofters are facing when applying to decroft their land has been passed by the Scottish Parliament.

Decrofting land can enable a house to be built on the land and facilitate croft land being passed from one generation to the next. It was the intention of the Scottish Government and the Scottish Parliament that tenant and owner-occupier crofters be treated similarly under the Crofting Reform (Scotland) Act 2010.

The issue came to light recently that owner-occupier crofters were unable to apply to the Crofting Commission to decroft land and the Scottish Government brought forward a bill to amend existing legislation.

The Environment and Climate Change Minister Paul Wheelhouse said:

“The Scottish Government has been working extremely hard with the Scottish Parliament, the Crofting Commission and other stakeholders to resolve these issues as quickly as possible.

“I hope the legislation passed by the Scottish Parliament today offers owner-occupier crofters, lenders and others the reassurance that action has been taken and decrofting of land can continue, where it has no negative impact on crofting as a whole.

“I gave an undertaking to this Parliament during Stage 1 of the Bill that my officials will investigate, in consultation with stakeholders, what the best method might be for dealing with the outstanding issues. Stakeholders should therefore expect contact from my officials to arrange a discussion on the next steps for crofting.

“I would like to thank members for the cross-party support this Bill has received as the Parliament worked together to resolve this issue.

It is good to see the Bill passed and the decrofting problems faced by owner-occupier crofters hopefully now behind them. It is, however, a pity that the Bill was not simplified somewhat in its drafting rather than remaining a sledge hammer to crack a nut. It is also a pity that issues raised about it by crofting law experts were not properly addressed during the passage of the Bill through the Scottish Parliament. But the conclusion I came to in my last blog post was that the Scottish Government knows best about crofting law.

Let us hope that we see a different approach from the Scottish Government when they engage with stakeholders to discuss the “next steps for crofting” as Paul Wheelhouse said, again, today that they would be doing.

Brian Inkster

How many owner-occupier crofters?

How many owner-occupier crofters?Several posts on the Crofting Law Blog in recent times have concerned the number of owner-occupiers who are not owner occupier crofters:-

But what about the number of owner-occupier crofters? The Crofting (Amendment) (Scotland) Bill, after all, affects them and has nothing whatsoever to do with owner-occupiers who are not owner-occupier crofters. The Scottish Parliament seems keen to get to the bottom of exactly how many owner-occupiers exist but, on the face of it, they are happy to accept a fairly wild estimate as to the number of owner-occupier crofters in existence. The two are surely linked. Increase one and you decrease the other and vice versa as we saw in ‘What happened to the six non owner-occupier crofters?‘. So if the Scottish Government is able to refine and clarify the number of owner-occupiers (even if it is taking them some time to do so) can they not also do the same with owner-occupier crofters?

Throughout the progress of the Crofting (Amendment) (Scotland) Bill the best estimate we seem to have, in the evidence given to the Scottish Parliament, is 3,000 to 4,000 owner-occupier crofters. So we have a possible margin of error of 1,000 or 25%.

If the actual number is say 3,000 does this add 1,000 to the number of owner-occupiers who are not owner-occupier crofters? Thus could that figure be 1,808 rather than 808?

I hope this point can be clarified before we have a Crofting (Amendment) (Scotland) Act 2013 so that we know how many crofters are actually affected by that Act.

Brian Inkster

Inksters’ submissions on the Crofting (Amendment) (Scotland) Bill

Crofting Law - Brian Inkster and Eilidh Ross

Brian Inkster and Eilidh Ross

Solicitors at Inksters have lodged submissions on the Crofting (Amendment) (Scotland) Bill with the Scottish Parliament.

Brian Inkster has submitted his views on the Bill in three parts. These have been published on this blog as five separate blog posts:-

Submissions (Part 1): A sledge hammer to crack a nut

Submissions (Part 2): An alternative Crofting (Amendment) (Scotland) Bill

Submissions (Part 3): Crofting is not a perfect word + The Crofting Law Hydra + Are owner-occupier crofters a sub-set of owner-occupiers?

Eilidh Ross has also submitted her views on the Bill: The Crofters (Scotland) Act 1993 is a mess

Since the deadline for providing submissions expired another decrofting problem has reared its head. Brian Inkster has blogged about it: Owners of croft land who are aliens to the Crofting Commission.

The Rural Affairs, Climate Change and Environment Committee are due to produce their Report on the Bill this forthcoming week. It is to be hoped that they take on board the Inksters’ submissions and the latest decrofting problem when compiling that Report.