Tag Archives: William Swann

Why are the Crofting Commissioners not meeting?

No commissioners to be seen at Great Glen House this past week

Following the controversial Crofting Commission board meeting in Brora their next one was set down to take place at Great Glen House in Inverness on 9 November 2016. However a few days before the date of that meeting a notice appeared on the Crofting Commission’s website stating that:-

The Board meeting due to take place on 9 November has been postponed, as several Commissioners are not available on that date. A new date is being arranged and will be notified as soon as possible.

This is quite extraordinary. These meetings are scheduled months, perhaps a whole year, in advance. Commissioners know when they are happening and should be available for them. There will always be occasions when a commissioner can’t make the meeting for good reason but the meetings continue regardless with those who can attend.

Meetings of the Crofting Commission must consist of at least five members. Where there are three or more elected members, the quorum must include no fewer than three such members.

There are currently seven commissioners in post out of the nine possible, with two positions waiting to be filled following the resignations of Susan Walker and William Swann.

So were at least three of the commissioners not able to attend the meeting on 9 November and if so why not?

Commissioners may attend meetings by videoconference or by teleconference if not able to attend in person. Is it really the case that at least three commissioners could not attend in person and could not attend by videoconference or by teleconference?

There does not appear to be anything in the Standing Orders relating to the Conduct of Meetings for the Crofting Commission allowing the postponement or rescheduling of a meeting in advance of it taking place once a date has been fixed.

There are provisions on the day of the meeting if a quorum is not present for the Convener to allow ten minutes before adjourning the meeting and fixing a time, then or afterwards, for it to take place.

As often seems to be the case these days the Crofting Commission appear to be ignoring the rules and making it up as they go along.

It has been suggested by some that the divisions within the board, and the position that has prevailed since the Brora meeting, mean they simply cannot meet and cannot make decisions at board level. At least not whilst the current Convener remains in post.

Bill Barron, on being appointed interim Chief Executive, said:-

I am looking forward to working with everyone at the Crofting Commission and our partners, to ensure that the Commission remains focused on giving a good service to crofters, promoting and protecting the interests of crofting, and providing effective regulation.

Not a good start to his watch for him to allow the first board meeting to be cancelled. There is clearly actually a severe lack of focus on giving a good service to crofters, promoting and protecting the interests of crofting, and providing effective regulation.

Meantime the Scottish Government has formally announced its review into the governance of the Crofting Commission. The latest goings on at Great Glen House, this past week alone, demonstrate how necessary such a review actually is.

Brian Inkster

Who are we supposed to believe?

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Whose riddles are the right riddles?

A guest post by the Crabbit Crofter.

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

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

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

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

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

Representing the views of the Board to the general public

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

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

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

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

There have also been numbers of statements –

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

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

Crabbit Crofter

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

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

The cost of the Common Clearances

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In my last post I revealed how much the grazings constables (appointed illegally in my opinion and in the opinion of others, including knowingly by the Crofting Commission itself) were being paid.

But what has been the overall cost of the alleged abuse of power within the Crofting Commission that has been dubbed ‘The Common Clearances‘?

A Freedom of Information request has disclosed that as at 1 July 2016:-

Colin Kennedy, Marina Dennis, William Swann and David Campbell (all Commissioners) together with a member of staff travelled to Stornoway to attend a meeting of the Mangersta shareholders on 16-17 May 2016 at an overall costs including flights, accommodation and subsistence of £2,005.
Donna Smith (Crofting Commission member of staff) and Colin Souter (‘Grazings Constable’) went to visit Upper Coll shareholders on 23 June 2016 at a cost of £852.40.
The cost of the ‘grazings constables’ as disclosed in my last post was £5,886.85.
Thus adding these figures together gives a total cost of £8,744.25.

But that figure is very much the tip of the iceberg.

There was an earlier visit to Lewis by the Crofting Commission to meet shareholders at Upper Coll before the decision was taken to remove the grazings committee from office.

There is the huge number of hours spent by Scottish Government officials, Crofting Commission officials and Crofting Commissioners on the debacle.

There is the legal expenses incurred by the Crofting Commission which reputedly includes the engagement of external counsel.

One of the grazings constables purports to still be in ‘office’ carrying out wholly unnecessary and dubious activities that he will no doubt still be paid for.

All costs that could and should have been avoided and better spent on the legitimate and proper regulation of crofting.

But perhaps more significant is the human cost. Something that cannot be quantified in pounds, shillings and pence. The devastating affect that the Crofting Commission has wrought on crofting communities with accusations of financial impropriety that have ultimately been withdrawn or still remain hanging.

One final observation: Why did the Crofting Commission meet the costs of their Convener, Colin Kennedy, attending the meeting in Mangersta in May 2016? He was not officially supposed to be there, he had a conflict of interest that was acknowledged but he insisted on attending albeit in silence. Was he doing so in a personal capacity rather than an official one? Whatever the position should the Crofting Commission have been meeting his travel and accommodation costs? A question (amongst many others) for Audit Scotland to answer perhaps.

Brian Inkster

You might think that, I couldn’t possibly comment

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There comes a point where actions speak louder than words

To date the Cabinet Secretary for the Rural Economy and Connectivity with responsibility for Crofting, Fergus Ewing MSP, has not said much on the question of ‘The Common Clearances‘.

Rhoda Grant MSP asked the Scottish Government:-

whether it is satisfied with how the Crofting Commission has acted in all matters relating to the dismissal of the Mangersta grazing committee.

Fergus Ewing MSP answered:-

The Crofting Commission is a non-departmental public body that takes regulatory decisions within the bounds of its duties and powers. Such decisions are taken independently and at arm’s length from Scottish Government.

Rhoda Grant MSP also asked the Scottish Government:-

whether it will establish an inquiry into the workings of the Crofting Commission.

Fergus Ewing MSP answered:-

The Scottish Government has no current plans to do so.

In addition Rhoda Grant MSP asked the Scottish Government:-

whether it has confidence in the convener of the Crofting Commission.

Fergus Ewing MSP answered:-

The Scottish Government is confident that the Crofting Commission board is able to deliver the functions of the commission.

That may have been the Scottish Government’s position on 27 June 2016. The massive U-turn taken by the Crofting Commission on 29 June 2016 should change that stance.

That U-turn and the manner in which it was executed demonstrates that the Crofting Commission got it wrong. They handled the whole Mangersta affair very badly indeed from start to finish. In light of this there can be no confidence that the board or their Convener is able to deliver the functions of the Commission.

The watershed moment was reached on 29 June. The Scottish Government can no longer sit on the fence. There has been as good an admission as any that the Crofting Commission failed the shareholders of Mangersta. In so doing they failed in their regulatory duties and should be made to account for those failings.

A day before the U-turn representatives of the Scottish Crofting Federation met with Fergus Ewing MSP. Commenting on that meeting the Chair of the Federation, Fiona Mandeville, said:-

We also had constructive discussion on the Crofting Commission crisis. We are very supportive of a majority elected Commission and fear that the common grazings debacle can jeopardise this. We therefore asked Mr Ewing to consider a procedural review of the Commission. At his request, we will send him a note outlining details of our recommendations forthwith.

In the wake of the U-turn, Fergus Ewing MSP should take heed of that request for a procedural review and actually now instigate it.

The Scottish Government can no longer hide behind suggestions that the Crofting Commission are at “arm’s length” from the Scottish Government.

The fact is that the Crofting Commission and their Commissioners are answerable to the Scottish Government.

Under and in terms of the Crofters (Scotland) Act 1993:-

The Crofting 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. [Section 1(3)]
The Scottish Ministers may (a) confer functions on; (b) remove functions from; (c) otherwise modify functions of, the Crofting Commission, where they consider it appropriate to do so to ensure that the Crofting Commission carry out their functions efficiently and effectively. [Section 2A(1) and (2)]
In so doing Scottish Ministers may modify any enactment (including the 1993 Act). [Section 2A(3)(b)]
The Scottish Ministers may remove a member of the Crofting Commission from office if satisfied that the member is unable or unfit to exercise the functions of a member or is unsuitable to continue as a member. [Paragraph 9(1)(e) of Schedule 1]
The Crofting Commission must provide the Scottish Ministers with such information in respect of the exercise, or proposed exercise, of the Crofting Commission’s functions as the Scottish Ministers may, from time to time, require. [Paragraph 20 of Schedule 1]

So, far from being a body that the Scottish Government should consider to be at arms length from it, the Crofting Commission is one that is directly accountable to and ultimately under the control of the Scottish Ministers.

That being the case the Scottish Government should not, like the Crofting Commission, ignore the law involved. They should apply the law, as set out above, as necessary to make the Crofting Commission accountable for their actions over the Mangersta debacle.

Following the U-turn by the Crofting Commission, former members of Mangersta Common Grazing Committee stated:-

We continue to believe that there should be an inquiry into the functioning of the Crofting Commission.

An inquiry is necessary to answer questions such as:-

Why did the Crofting Commission reopen a case investigated, resolved and closed by the Crofters Commission?
On whose insistence and on what evidence was the case reopened?
Was there undeclared conflicts of interest by Crofting Commissioners involved in the matter?
What legal advice was sought by the Crofting Commission on the matter? From whom, when, on whose insistence and on what basis? Was such legal advice followed?
Why were inconsistencies applied by the Crofting Commission to the handling of this case compared to others being dealt with contemporaneously?
Why was the removal from office of the Grazings Committee at the time deemed justifiable and necessary?
Why did the Crofting Commission ignore and not respond to the legal position put forward on behalf of members of the dismissed Grazings Committee?
Why did the Crofting Commission refuse to revisit their decision (saying that they could not in law do so) but ultimately did just that?
Why did the Crofting Commission ignore their own guidelines on the investigation of questions of financial impropriety which they had stated were a matter for the civil or criminal courts?
Why did the Crofting Commission purport to appoint a Grazings Constable when there is no basis in law to do so and then sought to extend that appointment, again when there is no basis in law to do so?
Why was the particular Grazings Constable in question appointed, on what basis and was a conflict of interest declared by any Commissioners relative to that appointment?
Was the Grazings Constable really independent and impartial or was he provided with instructions for the discharge of his appointment by the Crofting Commission?
Why did the Convener of the Crofting Commission, Colin Kennedy, attend a meeting of the shareholders of the Mangersta Common Grazings and refuse to leave when a conflict of interest had been declared by him?
Why and on what basis in law, when shareholders questioned the legality of the Commissioners proposals at that meeting, were they told that if all shareholders did not accept them, the Commission would not allow shareholders to reform a committee?
Did the Crofting Commission’s handling of the matter result in the resignation of William Swann as a Commissioner?
Why did the Crofting Commission issue guidelines on the management of grazings funds, then delete those guidelines and claim that they had never said what they had said in them?
Why did the Crofting Commission insist that funds had to be paid out by Grazings Clerks to shareholders “immediately” when Roseanna Cunningham MSP, on behalf of the Scottish Government, clarified on 21 June 2016 that “the Crofters (Scotland) Act 1993 does not require the immediate disbursement of funds by a grazings committee”?
Why did the Crofting Commission insist on common grazings funds being managed in a way that defied logic and was not set out anywhere in law?
Why did the Crofting Commission not take cognisance of the statement by Minister of State for Scotland, Lord Kirkhill, in the House of Lords on 6 April 1976 regarding the Crofting Reform (Scotland) Bill that “there would seem to be nothing [in the bill] to prevent a voluntary arrangement being made whereby any crofter’s share would be diverted to the grazings committee”?

These are questions that the Scottish Ministers can no longer ignore following the recent U-turn by the Crofting Commission. The Scottish Ministers must comment properly on them and, if necessary, take appropriate action under and in terms of the Crofters (Scotland) Act 1993.

The only way that they will be able to properly pass such comment and take such action is following a focused and detailed investigation into how and why the Crofting Commission handled the Mangersta situation in the manner that they did.

That case is no longer ongoing and is not subject to court proceedings. The Crofting Commission therefore cannot hide from, prevent or delay an investigation specifically focussed thereon. Fergus Ewing MSP must now instigate just such an investigation for the future stability, survival and sustainability of crofting in Scotland.

Brian Inkster

Image Credit: House of Cards © BBC

Oh yes you did!

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The whole truth and nothing but the truth?

On Monday of this week the Chief Executive of the Crofting Commission, Catriona Maclean, published an open letter. It reads:-

There has been much said recently about the Crofting Commission and its actions, in particular in relation to common grazings. As the regulator for crofting we cannot comment on specific cases but it is clear that there have been a number of issues raised which many people have expressed concern over and the full circumstances of why action was necessary is not yet in the public domain.

I think it is important to say that the Commission is not on a campaign to review the functioning of every grazings committee. Be assured, we do understand that most of the nearly 500 grazings committees across the crofting counties are working well, and will continue to do so, helping to safeguard this important community asset. This situation has identified the passion and value that crofters, and those who represent them, put on common grazing land. The Commission shares that passion and value and it is good to see its management and potential being discussed openly.

It is also important to emphasise that the Commission has never said “every grazings committee must carry out a full audit of their accounts” or that “without question all grazings committee must distribute every penny of money to all shareholders and that no money can be retained”. This view has been advanced by others, not the Commission.

We are the regulator of crofting and we must represent the interest of all 15,388 crofters, the majority of whom share in common grazings and when they express concerns we have a duty to investigate. In most cases these matters are resolved by mutual agreement. Putting a committee out of office is not a step taken lightly by the Commission and only occurs rarely and after protracted discussion and investigation.

The way the Crofters (Scotland Act) 1993 (as amended) states that common grazings should be managed represents true democracy at its most local level. It requires the committees, who are appointed by the shareholders to represent them, to discuss plans with the shareholders and to get their approval for improvements. This ensures that shareholders share both the costs incurred and any benefit or dividend that results. All the more reason to see grazings being managed well.

Indeed, the Commission has had support from within crofting communities for being willing to grasp the nettle and be an effective regulator, taking the position that grazings should be properly managed.

Some have expressed concern over crofters who are absent, possibly blocking improvements or failing to pay for maintenance. I would like to assure crofters that there are remedies available within the current law. The Landlord has the right to make an application to the Scottish Land Court to terminate the tenancy where a person is in breach of their statutory conditions as, following a much more complex process, can the Commission. Even if that does not happen should a shareholder fail to contribute to costs the Commission can, when asked to intervene, act as arbiter and has the power to suspend and ultimately terminate a share and reallocate it to others. This would result in shares coming into the hands of active crofters, willing to pay their dues.

People have said “why should an absentee get anything at all?” The current Act does not differentiate between shareholders who are resident and non-resident and therefore, neither can the Commission. This is for legislators to address when next reviewing crofting legislation. Equally there has been speculation about the interpretation of the Act. The Commission is confident they are applying the law correctly but the only place this can be clarified is in the Scottish Land Court.

I would like to reassure committees and shareholders that we are preparing more best-practice guidance for them and, once we have discussed this guidance with our crofting partners, we will make it available to all grazings committees, shareholders and crofters. In the meantime, Commission staff are on hand to support and provide guidance to crofters, grazings clerks and grazings committees. More information can be found on our website (www.crofting.scotland.gov.uk). In addition we will be running an information session on common grazings at our local crofting meetings to be held across the crofting counties later in the year.

As Chief Executive of the Commission I have a genuine interest in the crofting system. Partly because I have been involved in its administration one way or another for over 20 years, but even more so because – as a daughter of the croft – it is in my psyche and in my heart. I know how it benefits people and I am committed to seeing the system flourish.

What is important to both myself and Commissioners is that we work together with others to secure the future of the crofting system that we all value. I sincerely hope that those who have either engaged in this debate or have been reading along with it, will continue to engage in a discussion about what that future will look like and make sure that decision makers hear those views.

For those who feel passionate about the Commission and how it operates – then why not take the chance to be part of it by standing for election when these take place early next year? This would provide you with the opportunity to be at the heart of shaping the future Crofting Commission to ensure that it, and the crofting system, is the way you want it to be.

What I would highlight, in particular, from this letter is Catriona Maclean’s adamant statement that the Commission has never said “without question all grazings committee must distribute every penny of money to all shareholders and that no money can be retained”. Oh yes they did!

The Crofting Commission have deleted from their website guidance issued by their Convener, Colin Kennedy, on 25 April 2016. That guidance included the following statement:-

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.

William Swann, who has since resigned as a Commissioner, also reiterated this same stance on behalf of the Crofting Commission when he chaired a meeting that the Crofting Commission held with the shareholders in the Mangersta Common Grazings. It was reported at the time that:-

Commissioner William Swann, who presided over the meeting, made it clear that under the Crofting Reform Act of 1993 any money that comes into the village must be distributed among all the shareholders – including absentees. Any improvement works then needing to be carried out must be financed through a levy charged on the same shareholders.

The Crofting Commission’s attempt at the eleventh hour to change their tune in this way through historical revisionism does them no credit. An apology and an admission that they got it wrong might have.

Brian Inkster

Image Credit: Pinocchio © Disney

Crofting Commissioner Resigns over situation the Scottish Government and Crofting Commission need to sort out

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William Swann

More catch up news on ‘The Common Clearances‘ since I returned from holiday. This time the news from last week that William Swann had resigned, the previous week, as a Commissioner at the Crofting Commission.

This was covered in the media last week and this week as follows:-

Crofting Commission Press Release – 9th June 2016

The Crofting Commission today confirmed that William Swann decided to resign from the position of Commissioner on Thursday 2, June.

William Swann, from the Isle of Skye, was appointed as Commissioner by Scottish Ministers in January 2012 and has provided significant contribution to the Commission during his time and was particularly helpful as the chair of the Audit and Finance Committee.

Crofting Commission Chief Executive, Catriona Maclean, commented:

William has provided invaluable knowledge, expertise and guidance to the Commission. The Commission would like to thank William for all of his hard work and we wish him luck with his future ventures.

The Commission remain quorate and I would like to assure all crofters that it is business as usual with a continued focus on securing the future of crofting.

The Skye Times – 10 June 2016

In recent months there has been growing discontent at grass roots level over the decisions by the Commission to remove from office two grazing committees at Upper Coll and Mangersta in Lewis after investigating their financial arrangements.

However, today Mr Swann said he had nothing to add to the resignation announcement made by the Chief Executive.

However, he did say:

The situation is one very much between the Scottish Government and Crofting Commission and something they need to sort out. I hope that things do calm down.

BBC News coverage – 13 June 2016

William Swann quit as a member of the Crofting Commission last week.

BBC Alba has since learned that he had told crofters he would resign if he felt the commission was not dealing with their case in a fair manner.

The commission has been in dispute with the crofters in Mangersta and Upper Coll about how they manage their common grazings committees.

The commission dismissed both committees, whose members are crofters, earlier this year and appointed officials to run the grazings, which are shared areas of land for raising livestock…

Catriona MacLean, of the Crofting Commission… said she could not comment on Mr Swann’s resignation, but said the commission was working effectively and within the law.

The Herald – 14 June 2016

William Swann, who was one of three commission members appointed by the Scottish Government, stood down last week without explanation.

Mr Swann, from Skye was chair of the Audit and Finance Committee. There were reports that he had told crofters on Lewis he would resign if he felt the commission was not dealing with their case in a fair manner.

But spokeswoman said last night:-

The Crofting Commission can confirm that there is no connection between what was reportedly said by William Swann at a meeting with Mangersta shareholders and his decision to resign. William’s reasons for resignation are a private matter for him and we must respect that.

View from the Crofting Law Blog

The most important thing to glean from these various reports is what Mr Swann said himself, namely:-

The situation is one very much between the Scottish Government and Crofting Commission and something they need to sort out. I hope that things do calm down.

It would therefore appear that he resigned due to an issue at the Crofting Commission that he feels needs sorting out between them and the Scottish Government. There have been calls for some time for the Scottish Government to step in and investigate what is going on at the Crofting Commission. Perhaps William Swann’s resignation will be a catalyst to them now actually doing just that.

It should be noted that William Swann chaired the meeting involving shareholders of the Mangersta Common Grazings at which there was reportedly ‘a menacing presence‘.

Brian Inkster

‘A Menacing Presence’

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

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

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

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

Statement by the Crofting Commission

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

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

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

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

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

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

Following the meeting, attendees said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Statement by the Scottish Crofting Federation

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

Fiona Mandeville, chair of the SCF, said

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

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

Ms Mandeville continued:-

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

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

Conclusion

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

Brian Inkster

No let up on the Common Clearances crisis whilst on holiday!

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No let up in the Common Clearances whilst in Morocco

Could I really escape the presence of the Crofting Commission in Morocco?

I have been in Morocco on holiday for the past couple of weeks. The run up to getting away and being away has meant a lull in reporting by me on The Common Clearances.

The last time I was in Morocco coincided exactly with the Scottish Government’s one week consultation period on the Crofting (Amendment) (Scotland) Bill. A bill that arose from the Decrofting Debacle unnecessarily and unjustifiably created by the Crofting Commission. Notice a theme?

I spent that week writing detailed submissions and drafting a better (in my view) bill for the Scottish Government and submitting it to them from Marrakech. A civil servant was to later tell me that my intervention was unhelpful. No doubt the same view is taken in the corridors of Saughton House and Great Glen House over my comments on The Common Clearances.

But it has been said that we provide a clear and understandable source of information at the Crofting Law Blog, something that you cannot get from the Crofting Commission (see ‘A Happy Crofter‘).

I decided, this holiday in Morocco, to actually have a holiday. Now I am back a quick look at the internet tells me there has been no let up in the Common Clearances crisis. As far as I can glean, so far, since I last blogged:-

The Crofting Commission held a meeting in Lewis with shareholders of the Mangersta Common Grazings which was chaired by Commissioner William Swann but “marred by a menacing presence” in that the Convener of the Crofting Commission, Colin Kennedy, turned up unexpectedly to observe proceedings despite having declared a conflict of interest.
Members of the ousted Upper Coll Grazings Committee applied for an interim interdict against the appointment of the Grazings Constable at Inverness Sheriff Court and that was refused.
John Finnie MSP has asked questions about the situation in the Scottish Parliament which have been answered in a fairly neutral manner by Cabinet Minister Fergus Ewing MSP.
Further parliamentary questions have been asked by John Finnie MSP and Rhoda Grant MSP about the issue with answers anticipated to be given by Fergus Ewing MSP on 23 June 2016.
Patrick Krause, Chief Executive of the Scottish Crofting federation, has written about ‘The Spirit of the Law – The inexplicable case of a public body confusing legal dogma with good sense’.
It was reported on Radio nan Gàidheal that another grazings committee has been put out of office by the Crofting Commission, this time on the Scottish mainland.
It was also reported by Radio nan Gàidheal that a grazings committee in South Uist has put themselves out of office to avoid any difficulties that may be encountered with being regulated by the Crofting Commission.
Commissioner William Swann has resigned from the Crofting Commission.
Propaganda about ‘the role of grazings committees in representing shareholders’ has been published by the Crofting Commission.
The former and ousted Convener of the Crofting Commission, Susan Walker, has written in the West Highland Free Press about the situation.
The Upper Coll Grazing Constable (illegally appointed in my view) has issued a letter to the press.

I will try to catch up on all of these developments on this blog in some detail, and share my thoughts on each, over the coming weeks. Do let me know if I have missed anything.

I also have to tell you on this blog about Inksters’ new and enhanced crofting law team (you may have read about that elsewhere before now).

So keep an eye on the Crofting Law Blog over the next few weeks for, as the ‘Happy Crofter‘ put it, an “invaluable source of information that [is] virtually impossible to find anywhere else”.

Brian Inkster

Update – 13 June 2016: The Crofting Law A-Team

Update – 14 June 2016: ‘A Menacing Presence’

Update – 15 June 2016: Common Grazings and the Spirit of the Law

Update – 16 June 2016: Crofting Commissioner Resigns over situation the Scottish Government and Crofting Commission need to sort out