Tag Archives: The Scottish Farmer

Not a Grazings ‘gamechanger’

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Not a grazings gamechanger

The new, badly programmed, Robotic Grazings Cop introduced by the Crofting Commission unfortunately did not prove to be a gamechanger!

This week’s front page headline in The Scottish Farmer is Grazings ‘gamechanger’.

The news item by Gordon Davidson states that:-

New evidence has been revealed that appears to justify the Crofting Commission’s unpopular intervention in the financial affairs of a common grazings committee.

Colin Souter, the constable controversially appointed to replace the grazings committee at Upper Coll, on the Isle of Lewis, this week wrote to all its shareholders itemising examples of that committee’s “arbitrary decision making” on how shareholders money was spent.

Quite the contrary is in fact the case.

A proper analysis of the ‘findings’ of Colin Souter demonstrates his complete lack of understanding of (a) what the role of a legally appointed grazings constable is (he, of course, being illegally appointed); (b) crofting law; and (c) duties and responsibilities that a grazings constable has towards shareholders in the common grazings.

It also, alarmingly, exposes the true relationship between Colin Souter and the Crofting Commission. More significantly it also exposes a new scandal to hit the Crofting Commission, namely (assuming that Colin Souter is not solely behind it) their attempt to deprive common grazings of finance by seeking to prevent them being VAT registered.

This follows hot on the heels of revelations that the Convener of the Crofting Commission, Colin Kennedy, was seeking to prevent common grazings from receiving SRDP funding!

This attempt by the Crofting Commission and/or their Convener to meddle once more in matters that have nothing to do with their role as a regulator and seek, in so doing, to deprive crofters of finance is the real story here. That is the story that should have made front page news in The Scottish Farmer had Gordon Davidson been tuned into the actual facts involved or had contacted myself or former committee members at Upper Coll for a truer picture. Instead he appeared to rely only on the word of Ivor Matheson (the aggrieved crofter who originally complained to the Crofting Commission) and the misguided ‘findings’ of an illegally appointed grazings ‘constable’.

In subsequent posts on this blog I will consider some of the more salient ‘findings’ by Colin Souter and expose them for what they really are. I will also look at the cosy relationship that Colin Souter appears to enjoy with the Crofting Commission and the real significance of what could easily be referred to as Crofting VATgate.

Brian Inkster

Image Credit: Robocop © Orion Pictures

Update – 4 September 2016: Crofters and Lawyers + The Wrong Grazings Committee!

Grazings Constables Risk the Clink

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Frank Serpico would never have accepted a job offer from the Crofting Commission

Frank Serpico would never have accepted a job offer from the Crofting Commission!

The Crofting Commission have, as part of the alleged abuse of power on their part over ‘The Common Clearances‘, been appointing Grazings Constables to replace the grazings committees that they have evicted from office.

I have blogged on the illegality of appointing Grazings Constables in such circumstances. This viewpoint has been backed up by Donald Rennie, an eminent expert in agricultural law and Honorary President of the European Council for Rural Law.

In a letter, that was published in both The Scottish Farmer and the West Highland Free Press last week, Donald Rennie highlights the potential difficulties for both the ‘Grazings Constables’ and the Crofting Commission of these illegal appointments.

With the kind permission of Donald Rennie, I now reproduce his letter here, in its entirety:-

I cannot allow the “Open Letter” from the Chief Executive of the Crofters Commission to pass unchallenged, especially as the Commission have exposed the unfortunates imposed as “Grazings Constables” to the risk of personal liability for tampering with the crofters’ money.

Ms MacLean says that there has been speculation about the interpretation of the Crofters (Scotland) Act 1993 and that “The commission is confident that it is applying the law correctly but this can only be clarified by the Scottish Land Court.” Both of these statements are self evidently false.

It is clear from an honest reading of section 47 of the Act that the Commission has no power to appoint a grazings constable in the present situation.

Their only power to appoint a grazings constable is to be found in section 47(3). That subsection applies where the crofters have not used the democratic provisions of the Act to appoint a grazings committee. In that case the Commission may step in and appoint either a grazings committee or a constable. That is not the situation here.

Under section 47(8), if the Commission are satisfied that the members of a grazings committee are not carrying out properly the duties imposed on them by the Act, the Commission may remove from office any or all such members and may appoint or provide for the appointment of other persons in their or his place. In other words, if the Commission remove one or more members of a committee they may appoint substitute members of the committee. They have no power conferred by this subsection to appoint a grazings constable.

The Commission was created by Act of Parliament. If the Act of Parliament does not give them the authority to do something then they cannot legally do it. subsection 8 is the only part of the legislation which permits the Commission to interfere in the democratic process of the operation of grazings committees. There is nothing in this subsection which permits the appointment of a grazings constable and therefore the actions of the Crofting Commission in purporting to appoint grazings constables are clearly illegal.

There is no point in applying to the Scottish Land Court for a ruling. It is a waste of time and money to seek a judgement to confirm the self evident.

Each purported grazings constable is in bad faith in the holding of his purported appointment. Ignorance of the law is no excuse. In addition it has been explained to the so called constables that their appointments are nullities. They cannot therefore claim ignorance of the illegality of their positions.

Section 47(7) is the only provision dealing with the constable’s right to remuneration. It provides that “The term of office of a grazings constable appointed by the Commission under subsection (3) above shall be such as may be specified in the instrument by which he is appointed, and he shall receive such annual remuneration as the Commission may determine; and such remuneration shall be defrayed by an assessment levied in such manner as the Commission may deem reasonable on the crofters who share in the common grazing.” Nothing is said in this subsection about appointment in terms of subsection 8 which reinforces the view that the appointment is illegal.

If a constable is validly appointed, this is the only provision allowing for his remuneration and it states clearly that the remuneration shall be paid by the crofters. The Commission has no power to use its own funds to remunerate the constable and if they purport to do so then it is a matter for Audit Scotland to investigate.

But these purported constables have not been appointed validly under subsection 3. Therefore there is no basis on which they are entitled to remuneration. From this it follows that if a purported constable takes as much a penny piece from the crofters sharing in the common grazing, with intent permanently to deprive them of that money, he is at serious risk.

Comment from the Crofting Law Blog:-

I wholeheartedly agree with everything Donald Rennie says in his letter. The law on the matter is simple and straightforward as set out clearly by him.

I have asked the Crofting Commission to explain where in law they have the power to appoint Grazings Constables in such circumstances. The only response to date has been:-

The Commission’s understanding is that this was a final decision and the Commission has no authority to revisit its own decisions in these circumstances.

This could imply (in the absence of any argument to the contrary) an acceptance on the part of the Commission that they couldn’t in law appoint a Grazings Constable but, having done so, they had no ability to revisit and reverse that decision. However, as Donald Rennie points out, there is no need for the Commission or anyone else to do so “to confirm the self evident”.

In my next blog post I will reveal the fact that, having stated that it has “no authority to revisit its own decisions in these circumstances“, the Crofting Commission went on to do just that and compounded their first illegal decision with yet another one (or maybe two)!

Brian Inkster

Image Credit: Serpico © Artists Entertainments Complex, Inc. Produzion De Laurentiis International Manufacturing Company S.P.A.

Back to the Future of Crofting

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Back to the Future of Crofting

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