Tag Archives: will of Parliament

Kennedy refuses to adhere to the law

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Colin Kennedy will not bow to the Scottish Government

Colin Kennedy wouldn’t comment to BBC Alba as he left the meeting at Brora Golf Club yesterday. However he decided to express his views today via The Herald.

The Herald scooped a highly unusual exclusive. They managed to get a statement from Colin Kennedy, Convener of the Crofting Commission.

Normally Colin Kennedy avoids giving statements on behalf of the Crofting Commission allowing others to do that for him. Today he gave The Herald a personal statement following calls by his fellow commissioners yesterday for him to resign after he walked out of the board meeting at Brora Golf Club.

He told The Herald:-

I have not resigned. My health has suffered in the recent weeks having been put under ridiculous pressure by the Scottish Government minister responsible, and his cohorts. They want me to sweep matters of crofting law under the carpet, because they are inconvenient politically. I refused to do that.

Has Mr Kennedy considered the health of those who have suffered from unfairly being removed from office as grazings committee members?

Mr Kennedy, in my view, seriously misinterpreted the law. He appears to have gone against advice provided to him by officials. I have asked the Crofting Commission on a number of occasions to justify the actions taken by them with reference to statutory provisions and/or case law. They have failed to do so. The best they can do is to say that a decision taken by them is a final one and cannot be revisited by them. That is to say they can, in effect, make illegal decisions and then don’t need to justify them or revisit them.

Numerous posts on this blog give reasoned legal argument as to why Mr Kennedy got it wrong. He has not, even through the pages of The Herald, sought to put forward a reasoned contrary view.

The Scottish Government has clearly taken their own legal advice on the matter and they disagree with Mr Kennedy’s view. They are his superiors and he should be accepting their direction.

Section 1(3) of the Crofters (Scotland) Act 1993 states:-

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

Directions have been given to Mr Kennedy. He can’t sweep Section 1(3) under the carpet and refuse to do as directed. By doing so he is flouting crofting law and flouting the will of Parliament.

Does that in itself make Mr Kennedy “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”? [Paragraph 9(1)(e) of Schedule 1 of the 1993 Act]

Brian Inkster

Image Credit: Colin Kennedy leaving the meeting at Brora Golf Club © BBC Alba

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.

Carry on Grazings Constable

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Carry on Grazings Constable

You can carry on constable

I have blogged about the (illegal, in my opinion and the opinion of others) appointment of Grazings Constables by the Crofting Commission to replace the grazings committees that they have evicted from office.

In the case of Mangersta Common Grazings the original purported appointment of the Grazings Constable ran for six months from and after 6 December 2015. Thus it expired on 6 June 2016. However, just before the expiry thereof the Crofting Commission sought to extend the ‘appointment’ for a further six months from and after 6 June 2016.

When challenged about the legality of the original appointment, from 6 December 2015, the Crofting Commission responded:-

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.

Thus they appeared to be of the view that if they make any decision (including an illegal one) they cannot change that decision.

They also stated:-

once the appointment of the constable comes to an end, it will be for the shareholders to appoint a committee in the usual manner

However, they went onto compound that illegal decision by actually revisiting it (something they said they could not do) and purporting to extend the appointment of the Grazing Constable for a further period of six months allowing him to carry on in ‘office’!

Even if they did have the power to appoint a Grazing Constable in these circumstances (which is denied) then they certainly do not have the power to extend the appointment.

Section 47(7) of the Crofters (Scotland) Act 1993 which provides for the term of office of Grazings Constables, appointed in circumstances where it is legitimate for the Commission to do so, states that:-

the term of office of a grazing constable… shall be such as may be specified in the instrument by which he is appointed.

Thus it is a one time appointment and cannot be extended.

Yet again the Crofting Commission simply ignore the law and flout the will of Parliament.

The Crofting Commission were called upon by me on 13 June 2016 to set out a detailed legal explanation with statutory and/or case law references if they disagreed with my interpretation of the law. The letter from my law firm, Inksters, to the Commission stated:-

In your said letter you state that “once the appointment of the constable comes to an end, it will be for the shareholders to appoint a committee in the usual manner”. However, that illegal appointment having come to an end we understand that the Commission have purported to extend it for another six months. Please provide us with a copy of the Order purporting to do so. Please confirm where you believe the power to do so in law exists. We can see no such power in law and therefore the extension like the original appointment is illegal and thus null and void. The shareholders are therefore at liberty to appoint a committee in the usual manner. If you disagree with our interpretation of the situation please set out a detailed legal explanation with statutory and/or case law references to back up your stance for our consideration. Your failure to do so may be founded upon.

To date my request has been ignored by them.

However, the recent massive U-turn by the Crofting Commission on Mangersta and the stepping down from ‘office’ of the ‘Grazings Constable’ is as good an admission as any that they did indeed get the law wrong.

That ‘Grazings Constable’ should never have been there in the first place and should not have been allowed to carry on, in any circumstances, beyond the initial ‘appointment’.

Brian Inkster

Image Credit: Carry on Constable © Anglo-Amalgamated Productions / StudioCanal

Yes Crofting Minister

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Yes Crofting Minister

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Brian Inkster

Image Credit: Yes Minister © BBC

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

The Emperor’s New Clothes

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The Emperor's new clothesFollowing my last blog post I exchanged a tweet with the Crabbit Crofter. This unfortunately sums up the Crofting Commission and ‘The Common Clearances‘ quite neatly:-

Credit: Illustration by Vilhelm Pedersen, Hans Christian Andersen’s first illustrator

Crofting Commission flouts the will of Parliament

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Hansard and Crofting Law

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

Common Grazings and the Spirit of the Law

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Patrick Krause

Patrick Krause

I continue to catch up with news of ‘The Common Clearances‘ since I returned from holiday. With the amount of new news on this topic being generated daily this week that is a difficult task!

On 25 May 2016 Patrick Krause, Chief Executive of the Scottish Crofting Federation, published a piece on the Federation’s website. I now reproduce it here in its entirety with a small comment at the end from myself on the question of the will of Parliament.

 

The Spirit of the Law
The inexplicable case of a public body confusing legal dogma with good sense 

The Crofting Commission website says “The Crofting Commission regulates and promotes the
interests of crofting in Scotland to secure the future of crofting.” Following the summary
dismissal of two (or more) grazings committees; the foisting of grazings constables upon the
dismembered grazings; the demolition of crofters’ characters; the contradiction and confusion,
it is no wonder that crofters and those with crofting interests are standing agog and are asking
“What is going on in the Crofting Commission?” It is not for me to make any judgement on the
legalities of the fracas that has been taking place over the past month – crofting lawyers are
willingly giving opinion – but I will attempt to explain the essence. Common grazings are the
epitome of communal working, yet this is a spectacularly detrimental exercise in public
relations by the Commission that threatens the very core of crofting communities. I wonder
what the motive is.

One committee was summarily dismissed for not presenting fully audited accounts. Previously
the Commission had issued official guidance that ‘audited’ did not mean fully audited in the
legal (and expensive) sense, but could be taken to mean an independent examination – the
Commission were taking a “light-touch approach”. At the demand by the Commission for five
years annual accounts, the committee presented an independent examination of its accounts,
as is usual for small businesses and social enterprises and is perfectly acceptable to HMRC,
Companies House and the Charities Regulator. They were summarily dismissed for failing the
demand. This subsequent heavy-handed bombshell has naturally caused fear throughout
regulated grazings that they also are in breach for not having fully audited accounts.

A second committee was also summarily dismissed (both grazings then had a constable foisted
upon them by the Commission, which a leading crofting lawyer claims is not legal in these
circumstances), in this case for not distributing income from resumption. Though the only
shareholder asking for his tiny share of the resumption money was an absentee, legally he had
the right to it, we are told by the Commission.

It is hard to understand why this committee was unexpectedly sacked when it had attempted
to pay the absentee, under guidance of the Commission (and the other was also instantly
sacked even though it had seemed to have complied with all the demands of the Commission).
But let’s leave the detail and look at the principle.

The law says that money due as part value of resumption may be paid by the landlord to the
clerk of the committee for distribution by the clerk among the crofters concerned. The law is
not prescriptive in saying when or how the distribution is to take place. The Commission has
added in its regulations the word “immediate”.

For years grazings committees have managed finance in a workable, business-like fashion.
Income generated from anything, such as resumption of land, schemes for development or
through managing agri-environment schemes, is put in the bank. As in any business,
expenditure on carrying out maintenance or improvements is deducted before any profit is
disbursed to shareholders. If a grazings committee was expected to take all income and pay it
out as dividends to shareholders before deducting expenditure, only to then have to recover
from all shareholders their share of the expenditure, it would be a complete nonsense.

Hobbling grazings by making them produce fully audited accounts, when other similar
businesses or voluntary groups don’t, and making them run an unworkable cash-flow, that no
business would, could not have been the intention of the law, but this is what it seems the
Crofting Commission is trying to enforce, presumably at considerable public cost.

The Commission argue that it is only carrying out its interpretation of the law; but why now
and so destructively? If the Crofting Act is wrong (as much of it has proven to be) it could be
put in ‘The Crofting Law Sump’ for future rectification and the Commission could quietly
resolve the issues, rather than turning this into a public, highly-charged stand-off. If it is
enforced, grazings committees cannot comply so will resign (or be dismissed) and the grazings
will leave regulation – unless the Commission then imposes constables on all grazings.

The Commission clearly knows a lot more about regulation than I, and knows what the
consequences of this will be, but are keeping quiet about its objective. How does this fit with
the Crofting Commission Policy Plan in which it says “The Commission regards the shared
management and productive use of the common grazing to be essential for the sustainability
of crofting. To that end it will … work with crofting communities to promote the establishment
of effective grazing committees and will actively support established committees”?

The Convener of the Crofting Commission is implicated in the fracas perhaps more than a
convener ought to be, having had complaints raised against him for behaviour at one of the
grazings meetings and having turned up unannounced at the other. He came to ‘observe’
apparently. The chair would not allow him to participate as he had a conflict of interest, and it
was surely odd that he was allowed to stay at all, this being the case, and it being against the
wishes of crofters present.

The convener has been widely quoted as saying the Commission is to deliver “the express will
of Parliament”. He would do well to go back and look at the passage of the Bill that became the
2010 Act to see what the will of Parliament was. The will of Parliament is not necessarily the
letter of the law, or in this case, the Crofting Commission interpretation of it, if it is bringing
about the demise of regulated common grazings.

Patrick Krause (Chief Executive of the Scottish Crofting Federation)

Comment on the Will of Parliament

Patrick is correct to highlight the fact that the Commission are certainly not delivering “the express will of Parliament”. This is something I will 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 should also, actually, help to spell out the letter of the law on the matter. It should be noted that to date 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.

Brian Inkster

Update – 20 June 2016: Crofting Commission flouts the will of Parliament