Tag Archives: shareholders

Time for Kennedy to go

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The Scottish Crofting Federation has called for the resignation of the convener of the Crofting Commission, Colin Kennedy, following the exposure of the Commission having taken action on grazing committees against legal advice.

“It is clearly time for Kennedy to go”, said the Chair of the Scottish Crofting Federation, Fiona Mandeville. She continued:-

We’ve asked many times for an explanation but to no avail. Documents obtained through Freedom of Information are unequivocal; the board of the Crofting Commission, headed by Colin Kennedy, chose to ignore policy and legal advice and proceeded to impose, what lawyers are saying are illegal, constables upon grazing shareholders whose committees the Commission had removed from office. So much anguish has been caused by this whole debacle and now, as suspected, we can clearly see that Kennedy led the Commission down this destructive route.

The commissioners have behaved as a board would be expected to in closing ranks and taking joint responsibility. But it would do no good for crofting were all commissioners to resign. Kennedy was closely implicated in the sackings of the committees and, as convener, is accountable. He must do the honourable thing: leave.

Fiona Mandeville concluded:-

It is time to review not only what went wrong and how to put procedures in place to prevent this sort of thing happening again, but to also look at the wider purpose of the Crofting Commission. There have been a few calls for the disbanding of the Commission, a natural reaction to the grief it has caused. But our members are still supportive of having an independent body that oversees crofting. This convener got too inflated over legislation, spouting ‘the express will of Parliament’. But with him gone we can work with the Commission again, picking up on the excellent progress made with the five priorities for crofting. It is time to consider reinstating the responsibility for crofting development with the Commission; it was supposed to have been moved to HIE, though this transition never happened. If the Crofting Commission takes crofting development back with crofting regulation we would see a more rounded, holistic body representing Scottish Government working for crofting.

Reports from a ‘Grazing Constable’

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The ‘Grazings Constable’ was under the false impression that he was a Police Constable come Court Reporter!

One of the more surprising episodes of ‘The Common Clearances‘ has been the issuing of press releases by the ‘Grazing Constable’ (illegally appointed, in my opinion and the opinion of others) of the Upper Coll Common Grazings.

To my knowledge that ‘Grazings Constable’, Colin Souter, has issued three such press releases to date. I now reproduce those here, with my comments on each added.

‘Grazing Constable’ Report #1 – 12 June 2016

I write briefly in connection with the Common Grazings at Upper Coll, having been appointed as Constable in recent weeks, by the Crofting Commission.

I should firstly stress such appointees are independent of the Commission. One of the main functions is to assume the role and responsibilities of the former Committee, representing the interests of the Crofters, whilst moving as swiftly as possible back to a situation of normality, with crofters being collectively in control of managing their own interests.

I am confident readers will appreciate the resolution to current difficulties will not be achieved overnight. I note there has been much interest, speculation and comment made on behalf of individuals who, I acknowledge, feel genuinely aggrieved with decisions the Commission has made.

On the other hand, it is only right and proper that the Commission, as a public body, should not comment on the specifics of any individual case.

Preliminary legal proceedings are currently underway at the Scottish Land Court, where it remains to be decided if the Appeal against Commission decisions will progress to the next stage. An Interim Interdict application at Inverness Sheriff Court to prevent the appointment of a Constable and further action by the Commission, was heard and refused.

It is likely that the process of the Land Court Appeal, if progressed, will take some considerable time to conclude. I will not be formally commenting in the media on the specifics of matters at Upper Coll, nor in relation to any single individual.

I do however wish to publicly acknowledge and thank those individuals at Upper Coll and elsewhere who have already contacted me since my appointment, to firstly share a collective view that there are matters at Upper Coll which need to be addressed and secondly to voice their support for a co-operative resolution over the coming weeks and months. All impartial observers must surely agree it is in the best interests of all parties to co-operate, to ensure the interests of all the crofters at Upper Coll are and continue to be properly protected.

Comment on ‘Grazing Constable’ Report #1by the Crofting Law Blog

Why, I wonder, did Colin Souter feel it necessary to issue such a statement? Was it because the Crofting Commission were staying silent on the matter? Did they sanction/encourage this statement?

How independent can Colin Souter really be? Did the Crofting Commission not provide him with a list of their ‘concerns’ for his investigation?

He has apparently stated to the shareholders at Upper Coll that his role is an investigative one. Nothing in the Crofters (Scotland) Act 1993 gives him such power other than, perhaps, the duty to report to the Crofting Commission on the condition of the Common Grazings and crofts with a share in the Common Grazings.

If investigations were required concerning any alleged financial impropriety on the part of the former grazings committee that would have been a role for the actual boys in blue and not for a retired police Chief Inspector who appears to think he, once more, has powers he once did. He does not.

If legally appointed, which is disputed, Colin Souter simply has to take on the role of committee and clerk. He is responsible to the shareholders. His role is purely administrative.

‘Grazing Constable’ Report #2 – 23 June 2016

On the evening of 22 June the Constable of the Upper Coll Common Grazings chaired a meeting of shareholders at Tong Village Hall. The meeting, which was well attended, discussed a number of issues and during the closed part of the meeting, the Constable, Mr Colin Souter shared a level of detail around issues and concerns which was clearly unknown to many of those present, prior to the meeting.

Mr Souter, a retired police Chief Inspector explained to the meeting that his appointment followed a communication to the Commission by the former Clerk to the Grazing, highlighting that 12 points of business needed to be addressed as soon as possible.

Mr Souter also explained that the Crofting Commission, as a public body, is unable to comment in the media on issues relating to specific individuals and their conduct but that being independent of the Commission, it was appropriate for him to share more information with the shareholders affected. At the meeting, he received further joint intimation in writing from Upper Coll shareholders, of their dissatisfaction with the conduct of the former Committee and will determine in due course whether that should be considered separately from other matters currently under investigation.

The meeting acknowledged the current position as laid out and discussed a constructive way forward, with a revised set of draft local Grazing Regulations being circulated by the Constable to all shareholders at Upper Coll to replace the current Regulations which date back to 1987. Mr Souter is also inviting contributions and comment more widely, from the Scottish Crofting Federation and National Farmers Union Scotland, as representative bodies, in an effort to secure a wide consensus of agreement. He intimated to the meeting that he was, very reluctantly, being forced to consider Court action as a last resort, in order to recover the Committee records from the former Grazings Clerk. A large number of those shareholders present expressed the view that withholding the records was not helping, declaring that it was acting against the interests of the shareholders and instead invited former Committee members to bear the cost of the Court action, should it go ahead.

The meeting closed on a positive note with an expression of thanks to Mr Souter, from the floor, for an open, informative and well-run meeting.

Mr Souter later said, “I appreciate there is a wide body of interest in events here at Upper Coll. I would like to publicly express my own thanks and appreciation to Upper Coll shareholders able to attend the meeting tonight, for their positive contributions and their willingness to begin moving forward to the point where a new Grazing Committee can be elected. Whilst that outcome is still in the distance, it has moved significantly closer, with a clearer path now defined, and shareholders having a better understanding of the concerns and the issues which brought us to where we are now.”

Note to Editor – the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders. On 16 May, some former committee members made an unsuccessful attempt to interdict the Crofting Commission from further action at Upper Coll. This was followed by submission of papers to the Scottish Land Court, seeking to Appeal against the Commission’s decision to remove them from office. The Land Court is currently awaiting submissions on jurisdiction from both sides, to help determine whether it can hear the Appeal. If the jurisdiction argument is won, the case will become sub judice until eventually concluded.

Comment on ‘Grazing Constable’ Report #2 by the Crofting Law Blog

I wonder if Mr Souter thinks that all grazings clerks should be issuing press releases about shareholders meetings held throughout the crofting counties? Local newspapers could have sections devoted to ‘Common Grazings Reports’ instead of, or in addition to, their usual ‘Court Reports’!

Where did the “issues and concerns” that Mr Souter had to share come from? I trust not from the Crofting Commission that he is apparently independent of?

Interesting that the Crofting Commission cannot comment on matters arising to the media but Mr Souter can. Has he therefore become their spokesman and if so how does that enable him to retain the supposed independence that he claims to have?

Mr Souter refers to “matters currently under investigation”. As commented on by me in connection with his first Report, his role is not an investigative one but merely an administrative one and then only if his appointment was legal which I, and others, maintain it is not.

Why was Mr Souter circulating new Grazings Regulations and who had drafted them and on what basis?

It would seem unusual for a Grazings Clerk to seek views from the Scottish Crofting Federation or the National Farmers Union Scotland on Grazings Regulations specific to a particular grazings.

Court action by a potentially illegally appointed ‘Grazings Constable’ to recover documentation he might have no right to hold would have made for interesting debate in the Sheriff Court! A suggestion that those against whom such an action was to be raised should fund the raising of the action is absurd to say the least.

Why is the election of a new Grazings Committee in the distance? What is preventing that happening sooner rather than later?

Is it perhaps in Mr Souter’s personal interest to delay the election of a new Grazings Committee. The longer he remains in ‘office‘ the longer he receives an income from the arrangement – albeit potentially an illegal arrangement that he should not actually be receiving a penny for.

Mr Souter states that “the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders.”

However, the only reason actually given by the Crofting Commission for the ultimate removal from office of the grazings committee was the failure to produce to them five years ‘audited’ accounts. The grazings committee produced financial statements produced by accountants. The irrationality, inconsistency and departure from legal advice obtained by the Crofting Commission on this point is one I will return to in future posts on this blog.

‘Grazing Constable’ Report #3 – 12 July 2016

Upper Coll shareholders met again on 11 July at a meeting chaired by the Grazings Constable, Colin Souter, who was appointed by the Crofting Commission in May. At this second meeting, shareholders covered a busy Agenda on a range of topics, including the resolution of a long-standing issue on the access of a bull owned by two shareholders, on the common grazings. Shareholders accepted the pragmatic resolution suggested by the Constable, which preserves shareholders rights to graze livestock but at the same time, acknowledges the responsibilities that go with these rights.

Shareholders also voted in favour of a revised set of Grazing Regulations which would encompass key elements of the previous regulations which dated back to 1987. Mr Souter hoped the final draft of the document which had already been subject to wide-ranging consultation would be ready to send to the Crofting Commission for approval, in the next few weeks. During a candid and honest discussion, some of those present, including former Committee members advised they had been entirely unaware of the existence of the 1987 Regulations.

After the meeting, Mr Souter said, “The key to progress here is an acceptance from shareholders that good Regulations make it easier for shareholders and for Committees to interact and minimise the potential for friction or conflict. We are nearly there, in terms of a finished product and whilst there are still a number of other issues for me to resolve with shareholders, we are steadily moving in the right direction. I am grateful for the support shown by shareholders this evening, in voting to move ahead.”

A number of other issues, including finances and areas of activity permissible for a Grazings Committee or Constable on behalf of shareholders, under the 1993 Crofting Act were explored in a closed session. No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

ends

Note – Mr Souter is a retired police Chief Inspector, appointed to the role of Constable at Upper Coll after the previous Committee were removed from office by the Crofting Commission. Following their removal, it was reported to the Commission that shareholder business remained outstanding and unresolved. Whilst he is appointed by the Commission, Mr Souter has successfully gained acceptance that he is independent of the Commission in all his decision-making.

Comment on ‘Grazing Constable’ Report #3 by the Crofting Law Blog

I asked shareholders of the Upper Coll Common Grazings for their views on this latest Report from Colin Souter. Here is a selection of comments received from them:-

The new regs would certainly have to come before shareholders again before being submitted. There will be nothing to stop us bringing in further changes at a full meeting of shareholders at a later date if that is needed.
The Grazings Regulations are at the “discussion” stage and still have much work to be done on them. There was no revised Regulations issued with no mention of changes some of us suggested. They are far from being at a stage for presenting to the Commission.
The constable has thus far refused to protect the interests of shareholders by bringing any scrutiny to bear on the Commission’s own dubious actions of the recent past. This goes to prove that he is not wholly independent of the Commission and shows that he who pays the piper calls the tune.
The majority of shareholders are still of the view that the position of Constable has been illegally imposed on the Upper Coll Grazings. These shareholders do not have any personal prejudice against Mr Souter but it is his position they question.
Shareholders were of the view that the Constable should be working “for” the shareholders and should therefore be working to see that some of the injustices done to the previous Committee are redressed. As he seems to be investigating the work of the previous committee then this “investigative” role should also be targeted at the Crofting Commission’s actions.
The minute of meeting of the 11th should also clearly show that we considered that the Commission had erred greatly in dismissing a democratically elected voluntary committee when they had legal obligations instead to advice and support it in the first instance. We suggested that this is going to be costly to the Commission.
The meaning of “audit” given by the Constable is not one shared by the vast majority of shareholders.
It is felt by the majority of shareholders that the term “financial irregularities” used by the Commission in relation to the Upper Coll Grazings Committee should be withdrawn and an apology issued to the committee by the Commission.
Mr Kennedy’s continued presence as Convenor of the Crofting Commission is in the opinion of the majority of shareholders untenable.

So clearly a different slant on things from the propaganda issued by the ‘Grazings Constable’. This demonstrates the nonsense of the whole situation.

Why is Colin Souter seeking to introduce new regulations? What is wrong with the existing ones other than perhaps the use of the word “audit”, which has caused much of the problems encountered by the former committee in their dealings with the Crofting Commission?

The former grazings committee were actually in the process of amending their regulations prior to being removed from office by the Crofting Commission. Why did the Crofting Commission not allow them to amend the regulations as they wished to do so?

Are the Crofting Commission influencing the new regulations proposed by Colin Souter? Do these new regulations follow the latest template promoted by the Crofting Commission which do not actually reflect the law as set out in the Crofters (Scotland) Act 1993?

Mr Souter refers to his “decision making”. What ability does he actually have to take decisions that are contrary to the wishes of the shareholders?

Mr Souter states:-

No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

This suggests that Mr Souter is going to finalise the draft Grazings Regulations without necessarily calling a meeting to approve them. He appears to simply be planning to get the approval of the Crofting Commission. If this is indeed the case it is outrageous.

However, it should always be borne in mind that Mr Souter’s appointment was, in my view and the view of others, illegal and any action taken by him is simply null and void.

Brian Inkster

The Commission is for turning

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No longer men or ladies of iron at the Crofting Commission

In a somewhat unexpected U-turn on the issue of ‘The Common Clearances‘ the Crofting Commission today admitted that it:-

regrets the conflicting advice the Mangersta Grazings Committee has been given over a considerable period of time in response to the investigations which took place due to a complaint made by a shareholder.

The Crofting Commission also confirmed that it has written to shareholders of Mangersta Common Grazings to advise that the grazings constable (appointed illegally in my opinion) has concluded his investigations and has stepped down enabling shareholders to appoint a new committee of their choice.

They also in particular stated:-

Following an evaluation of this case the Commission is drafting revised guidance and has reviewed its processes.

Catriona Maclean, Chief Executive of the Crofting Commission, said:-

The Commission acknowledges that Mangersta is an active crofting community and this matter has caused prolonged uncertainty and anxiety under which a line can now be drawn. We look forward to working constructively with the new committee, once appointed, and other stakeholders in the future.

The dispute – which has massive implications for all crofting communities – centred on the Commission’s insistence that all revenue coming into Grazings Committees, mainly from government grants, should be distributed as personal revenue to individual shareholders.

In response to the Commission’s statement, the former members of Mangersta Common Grazing Committee stated:-

We are pleased and relieved that common sense has finally intervened and that this whole affair has been brought to a conclusion, with recognition by the Commission that we acted with integrity and in good faith at all times.

Latterly, we made our stand on behalf of the whole crofting community since the legal interpretation promoted by the Crofting Commission would, if implemented, spell the death of crofting on a communal basis.

We have never accepted that the funds obtained by the village for agricultural and environmental schemes should be distributed as personal income and we have no intention of doing so.

We continue to believe that there should be an inquiry into the functioning of the Crofting Commission. Even more important, it is essential that crofting law is clarified on this and other matters where ambiguity may exist.

With crofting at a low ebb in many places, it is regrettable that so much time and resources have been devoted to this unnecessary dispute. However, we welcome a line being drawn under it and will work constructively with the Commission and anyone else where it is in the crofting interest to do so.

In my next blog post I will look at the manner in which the Commission announced this U-turn and the possible reason for it. I will then, in a further blog post, explore the significance of this U-turn and the possible repercussions thereof.

Brian Inkster

Image credit: Prime Minister Margaret Thatcher (aka ‘The Iron Lady’) addressing the Conservative Party Conference at Brighton on 7 October 1980 with her famous speech in which she said “You turn if you want to. The lady’s not for turning”. (Pa/ PA Photos / TopFoto)

Update – 2 July 2016: Yes Crofting Minister

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

The deleted Crofting Commission post

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Rebel Crofters store the data from the Crofting Commission

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

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

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

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

Shareholders

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

Grazings Committees

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

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

The general responsibilities of the Committee are to:-

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

Financial management

As trustees any money received by the committee belongs to the shareholders and
should be distributed to them as soon as is reasonably practicable. It is NOT the
township’s or the committee’s money and as such it is the duty of the Grazings Clerk
to distribute any money received from whatever source, but in particular
resumptions, according to each individual shareholder’s share entitlement whether or
not they are active crofters.

When the Grazings Committee require monies to maintain the common Grazings
and the fixed equipment or to carry out works for improvements, the committee must
levy and recover the required monies directly from the shareholders for onward
payment to any third parties.

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

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

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

Colin N Kennedy
Convener
Crofting Commission

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

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

Crofting Commission deletes its history

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No… the Crofting Commission never said that!

The ‘Crabbit Crofter‘ brought to our attention today the fact that the Crofting Commission have been deleting/changing their website in so far as guidelines concerning ‘common grazings the rights of crofters and the duties of grazings committees and their grazings clerks’ are concerned.

In April 2016 the Crofting Commission published guidelines on this topic by their Convener, Colin Kennedy, who stated:-

It seems to me like a very good time to remind shareholders in Common Grazings what their rights are and what the duties of the Grazings committee and their Grazings clerk are.

This came almost immediately on the back of us publishing a post on this blog concerning alleged abuse of power within the Crofting Commission linked to what has become known as ‘The Common Clearances‘.

The Crabbit Crofter reveals that those guidelines have now been deleted from the Crofting Commission’s website:-

It is extraordinary that a public body in Scotland in this day and age is resorting to historical revisionism and we shall return in a subsequent post to the significance of this in light of what the Crofting Commission is now claiming their current and past position on ‘The Common Clearances‘ to be.

Brian Inkster

Update – Read what the Crofting Commission tried to hide: The deleted Crofting Commission post and why: Oh yes you did!

Whose best practice?

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Even a five year old knows the importance of experience and knowledge when it comes to best practice!

It was reported online today in Farming UK that NFU Scotland has asked the Crofting Commission to bring forward a simple guide to best practice for grazing committees.

Sutherland crofter Sandy Murray, who chairs the NFU’s Crofting Highlands and Islands Working Group said:

It is in the best interests of all, that any Common Grazings Committee operates with up-to-date regulations and within the law.

The Crofting Commission is best placed to deliver guidance and clarification to any committee. If changes are needed, then a grazings committee meeting can be held as soon as possible, all stakeholders notified and steps taken to ensure that their grazing regulations are fit-for-purpose and up-to-date.

NFUS has called on the Commission to draw up simple and accessible best practice guidance on how grazings committees should be operating – clearly mapping out what they must do, should do and could do.

The Commission should then send this to all grazings committees and clerks along with the new common grazings regulations template and guidance – as available on the Commission website.

The Union supports active crofters and the active use of common grazings. In order to help achieve this we believe that there are real benefits in Common Grazings being regulated and having grazing committees in office, for the benefit of the common grazing and the shareholders.

The problem is that the Crofting Commission’s idea of best practice is very different from what crofters consider it to be and is also often at odds with what any sensible interpretation of the law says it is.

The NFU approach is not the answer to the problem. Crofters should be very wary at the moment of any guidance and clarification issued by the Crofting Commission and should take independent legal advice thereon.

It is hoped that the Scottish Crofting Federation meeting that was held in Ullapool yesterday results in more positive steps being taken that actually resolve ‘The Common Clearances’ and the alleged abuse of power within the Crofting Commission. More news on that to come.

Brian Inkster

When the costs of administering a Common Grazings Fund would exceed the income

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Neglect of common grazings now actively being encouraged by the Crofting Regulator!

The Crofting Commission have, in statements and guidance issued surrounding ‘The Common Clearances‘, stressed the importance of funds received by Grazings Committees requiring to be immediately paid out to shareholders.

As indicated in previous posts on this blog examples of the “nonsensical” and “totally impractical” stance by the Crofting Commission have been given by Donald Macsween on his blog Air An Lot.

A comment from Donald Murdie today on the Crofting Law Blog gives more practical examples of the need for funds to be maintained for the benefit of the common grazings.

Also today on Twitter I had an exchange of tweets on this topic with Rebecca Hutton. She pointed out that:-

Still not cleared things up re grazings regs saying to maintain a grazings fund. For example, we get £10 for island rent which would mean spending £22.55 to send out cheques of 24p each!!

Indeed. If you were to follow Crofting Commission stipulations who would meet the deficits that could arise in Common Grazings bank accounts?

Another question that the Crofting Commission are unlikely to answer in a hurry.

Brian Inkster

Crofting Commission Statement on ‘Common Clearances’

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Crofting Commission meeting arranged for Common Grazings Shareholders that no one knows anything about - will anyone be there other than the Commission

Will any crofters be at a meeting that no one knows anything about?

The Crofting Commission issued a statement at its Board meeting today on ‘The Common Clearances‘. Needless to say they didn’t actually refer to the situation as ‘The Common Clearances’. Their statement is as follows:-

The Commission wish to reassure shareholders that it is committed to assisting all common grazings committees and clerks to self-regulate within the provisions of crofting legislation and will work with them to do so.

To support this, it is important that all shareholders have the fullest information about the differing roles and duties of the grazings committee and the grazings clerk.

The committee are responsible for managing the rights of all crofters within the common grazings in accordance with their own, approved regulations.

The role of the clerk is to receive and pay-out all shareholders monies in accordance with their approved regulations as set out in the Crofting Act 1993.

With this in mind the Commission has arranged to meet with the shareholders in both Upper Coll and Mangersta Common Grazings in mid-May to advance the process which has already begun in these townships.

The stated commitment to assist all common grazings committees and clerks to self-regulate within the provisions of crofting legislation and the statement that they will work with them to do so does not sit well with the summary dismissal of two grazings committees without any apparent attempt to do that.

The role of the clerk is not simply “to receive and pay-out all shareholders monies in accordance with their approved regulations as set out in the Crofting Act 1993”. I will look at this in more detail in a future post. For now I would refer you again to Donald Macsween’s very astute blog post on the “nonsensical” and “totally impractical” stance by the Crofting Commission on the financial management of grazing funds.

Apparently the Crofting Commission “has arranged to meet with the shareholders in both Upper Coll and Mangersta Common Grazings in mid-May”. This has come as news to shareholders in both townships who have not, as yet, actually been contacted by the Crofting Commission concerning such a meeting!

In a statement issued today former members of the Mangersta Common Grazings Committee said:-

The Commission just blunders on. We were astonished to see from their web-site that they had ‘arranged to meet with the shareholders’ in both Upper Coll and Mangersta grazings in mid-May.’

We wish it to be known that we have heard absolutely nothing about any meeting, far less agreed to participate in it. If and when the Commission proposes a meeting, we will take legal advice on the appropriateness of attending.

We can only express astonishment at the continuing unprofessional and misleading behaviour of the Crofting Commission. One would have thought that the basic courtesy of consulting about a possible meeting and the form it might take would not have been beyond them, before making a public announcement about a meeting nobody else knows anything about.

The purpose of the meeting which no one knows anything about is apparently “to advance the process which has already begun in these townships”. That sounds very much like there is no going back on the part of the Crofting Commission and the intention is to finish what they have started even if it is illegal.

Calls made from various quarters, including politicians and the Scottish Crofting Federation for the Crofting Commission to explain their actions and/or for the committees in both instances to be reinstated, appear to be falling on deaf ears. The Scottish Crofting Federation has requested the Scottish Government to carry out “a full review of the situation as soon as possible before the damage is irreversible”. Perhaps the Scottish Government needs to send a representative to the Crofting Commission’s meeting which no one knows anything about if they can manage to find out the date, time and location thereof.

Brian Inkster

Abuse of power within the Crofting Commission?

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Is there an abuse of power within the Crofting Commission?

The publicity last week surrounding a Common Grazings Committee being summarily removed from office by the Crofting Commission highlights a worrying trend concerning alleged abuse of power within the Crofting Commission. It is not the first time that I have heard actions taken by the Crofting Commission referred to as being “dictatorial, vindictive and unjustified“.

The facts appear to be that two shareholders in the Upper Coll Common Grazings lodged complaints with the Crofting Commission to the effect that the Grazings Committee were not conducting its duties in a proper manner. This resulted in the Crofting Commission calling a meeting of shareholders on 10 November 2015 where the Crofting Commission were represented by Colin Kennedy (Convener), I. G. MacDonald (Vice-Convener) and Linda Gourlay (Staff Member).

Following that meeting formal complaints were lodged with the Crofting Commission by a number of those attending accusing the Convener of “unfair and biased conduct” while chairing the meeting. It is unclear whether the complaints procedure involved was finalised/exhausted before the Crofting Commission removed the Grazings Committee from office.

The Crofting Commission gave the Grazings Committee three months to implement five main action points and a further month to get the last five years accounts externally audited.

All points requested of the Committee were dealt with including lodging timeously accounts prepared by external accountants. However, the issue appears to be the definition of “audited”. The grazings regulations of Upper Coll Common Grazings state that the Clerk shall arrange to have the accounts “audited” annually. In normal parlance that might mean simply having financial statements prepared by an external accountant as indeed most businesses do. A detailed and forensic audit would arguably be completely out of proportion for any Grazings Committee to be expected to carry out given the time and expense of such procedure. Furthermore, you are perhaps unlikely to find a firm of accountants in Stornoway able or willing to undertake such a task especially in the short time frame dictated by the Crofting Commission.

It is very interesting to note that in the Crofting Commission’s own Common Grazings Regulations Guidance [PDF] it is stated:-

A grazing committee shall undertake an annual independent scrutiny of their financial accounts. The committee should satisfy themselves that the level of scrutiny is proportionate to the value of monetary transactions.

Surely that means the preparation of external financial statements and not an expensive forensic audit? Furthermore the onus is on the committee to satisfy themselves not for the Crofting Commission to dictate.

However, the Common Grazings Regulations Template [PDF] provided by the Crofting Commission does not appear to even state the need therein for such an annual independent scrutiny.

The said Guidance on Common Grazings Regulations do make reference to the question of an audit. They state:-

Historically, the term ‘audit’ has been used loosely to describe any external scrutiny of accounts, however if the term ‘audit’ is used in the Grazings Regulations, the accounts must be audited by a registered auditor.

This appears to recognise the fact that ‘audit’ can mean “any external scrutiny of accounts” but then perhaps bizarrely states that “if the term ‘audit’ is used in the Grazings Regulations, the accounts must be audited by a registered auditor”. From what authority and on what basis can the Crofting Commission make such an assertion when at the same time recognising that ‘audit’ can mean “any external scrutiny of accounts”? Furthermore, why would they seek to insist upon this for historical Grazings Regulations using this term when their preferred template does not?

It is understood that the accountants acting for Upper Coll Common Grazings Committee sought guidance from the Crofting Commission as to what they wanted with regard to audited accounts. They were apparently advised that this was a matter between them and the Grazings Committee! With no guidance given as to what was expected how could they know what to produce to pass the muster of the Crofting Commission?

The Crofting Commission should perhaps have, at least, directed the accountants to their own Guidance on Common Grazings Regulations which state:-

… an auditor is required to build up a body of evidence and express an opinion on the accounts. The opinion given in an audit depends on the nature of the accounts that have been prepared.

• If receipts and payments accounts have been prepared, the opinion will state whether or not the accounts ‘properly present’ the receipts and payments for the common grazings for the financial year.

• If fully accrued accounts have been prepared, the opinion will state whether the accounts provide a ‘true and fair view’ of the financial affairs of the common grazings.

Surely, if Financial Statements prepared by accountants were produced that did not meet whatever requirements the Crofting Commission actually had with regard to an ‘audit’ they should have sought further information/detail as necessary rather than summarily removing the Grazings Committee from office?

It should also be noted that the said Guidance on Common Grazings Regulations states:-

The Commission will not get involved in any matter relating to alleged financial impropriety. This is potentially a civil and/or criminal matter and should be dealt with by the relevant authorities.

Thus if there is any question of alleged financial impropriety (and it is not clear that there even is) then it would be for any aggrieved shareholders to take civil and/or criminal action and perhaps only on the conclusion thereof, and depending upon the outcome, for the Crofting Commission to consider the removal of some or all of the committee and/or clerk.

On any view, therefore, the actions of the Crofting Commission in this instance are extraordinary.

Patrick Krause, Chief Executive of the Scottish Crofting Federation, has stated [PDF]:-

The press made us all aware of the grievance raised by the Lewis Upper Coll grazings committee against the convener of the commission, Colin Kennedy, a few weeks ago. On the face of it, this looks like an appalling attempt by the commission to nullify the complaint. Whatever is actually behind their decision, it is a staggeringly clumsy exercise in public relations. We are struggling to maintain, and to form new, grazings committees as it is.

Hopefully, this is not the reason behind the decision to remove the Grazings Committee from office. If it is then it is very worrying indeed. Whatever the thinking involved it does however remain worrying and should be of grave concern to all crofters and to the Scottish Government that the Crofting Regulator is behaving in this way.

The Crofting Commission’s ability under the Crofters (Scotland) Act 1993 to remove a grazings committee involves “making such inquiry, if any, as they may deem necessary”. Not much process potentially involved there then! However, they must be “satisfied” that the members of the grazings committee “are not properly carrying out the duties imposed upon them”.

On any reading of the situation it would appear that, at least without further inquiry to satisfy themselves, the Crofting Commission in coming to the decision to remove the Upper Coll Common Grazings Committee from office arguably took a decision so unreasonable that no reasonable person acting reasonably could have made it. This is the Wednesbury test (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223) and that decision could therefore be open for judicial review.

If this decision was a correct and proper one to make there must be countless other grazings committees in breach of their own regulations whom the Crofting Commission should also now be seeking to remove from office.

I would strongly suggest therefore that the Crofting Commission should, in all the circumstances, review this extraordinary decision. If they fail to do so the Scottish Government should maybe question the behaviour involved and perhaps even consider removing the commissioners responsible as “unsuitable to continue” as members. A power that the Scottish Ministers have at their disposal under the Crofters (Scotland) Act 1993. That may be seen by many as a more reasonable and justified use of power than that employed by the Crofting Commission.

Brian Inkster