UPDATE 28 MARCH 2013

Paul Wheelhouse has confirmed in a written answer to Claire Baker MSP (S4W-13541) that the Estates Charter remains in force and that it is “standard practice for the principles behind the Estates Charter to be taken into account when managing the Scottish Ministers’ estate.”

UPDATE 28 February 2013

Alex Salmond, at the beginning of First Ministers Questions today announced that the Raasay lease to South Ayrshire Stalking has now been bought out for £9000 and the lease returned to Raasay Crofters’ Association and extended for one year during which discussions will take place about longer term arrangements. He said that the Environment Minister, Paul Wheelhouse” will be meeting the community on Raasay tomorrow and will “underline the Government’s continuing support for furthering the land reform agenda.” This is, of course, very welcome but it leaves important questions still unanswered.

Paul Wheelhouse claims that “It is regrettable that the original decision to award the sporting rights contract was made without ministerial involvement.” as if the decision is the fault of civil servants (I have been informed that, contrary to my assumption, the decision to put the lease out to tender was taken by staff at the Portree office of Scottish Government and not in Edinburgh). Is this the case? Should the Minister have been involved but was kept out of the loop? I don’t think so. I think that Ministers have failed to pay attention to their crofting estates, failed to uphold the 1999 Charter (see below) and have allowed civil servants the freedom to exercise their “desires”. The reason this fiasco happened is because of the failure of Scottish Ministers.

Remember – in Paul Wheelhouses’s letter (see below), he makes it clear that the lease “was advertised on the open market as per normal Scottish Government estate management practice” (my emphasis). In other words, the award of the lease was not a mistake. It was a consequence of the prevailing management regime put in place by Scottish Ministers.

If the £3000 lease was justified last week on the basis of “best value” and the constraints of the Scottish Public Finance Manual, what Ministerial rules justify the payment of £9000 to the tenant to buy them out?

The Scottish Parliament’s Rural Affairs Committee should conduct a short inquiry into exactly how this decision was taken, on what basis, what long-term plans Scottish Ministers have in place for the management of their crofting estates, and what has happened to the 1999 Estates Charter.

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ORIGINAL BLOG 26 Feb 2013

The Scottish Crofting Federation is the latest in a long line of individuals and organisations who have criticised the decision of Scottish Ministers to grant a lease of the shooting rights on Raasay to an absentee company from South Ayrshire (see previous blog). The Federation has called for Ministers to “reverse its decision to deprive the community on the Isle of Raasay of their shooting and fishing rights.”  Jim Hunter, a member of the Land Reform Review Group has called for a radical rethink. The Free Church is up in arms. Rhoda Grant MSP has lodged a series of Written Questions to Scottish Ministers and Jean Urquhart MSP has tabled a Parliamentary Motion (S4M-05704) that has attracted 24 signatures from Liberal Democrats, SNP, Conservatives and Labour.

In 1995, the lease for the fishing and shooting on Raasay was assigned from the Highlands and Islands Development Board to the nascent Raasay Crofters’ Association when Michael Forsyth was the Conservative Secretary of State for Scotland. Eighteen years later, a devolved SNP Scottish Government has awarded the lease to a company in South Ayrshire.

This decision, relating to a few thousand pounds might seem inconsequential to many readers and they would be right to regard it as such. This should be a most inconsequential decision – a routine exercise of political power to advance community wellbeing and development on a fragile island economy. The fact that it has caused such a fuss is because the decision flies in the face of community wellbeing and reveals a number of significant flaws in the politics and administration of public land.

In a conversation on twitter on Saturday, Paul Wheelhouse MSP, the Minister responsible for public land and land reform, said in response to the fuss that “I remain active on this so maybe u can have a little faith.” I still have a little faith that this can be sorted out but it is worth exploring the context within which this appalling decision was taken.

In a revealing letter sent to MSPs on Friday, Mr Wheelhouse blames civil servants for the decision and writes that “it is important to note there had been no Ministerial involvement in either the decision of subsequent award of contract.” I would not expect there to be any Ministerial involvement in the decision but it should always be remembered that such decisions are taken in the name of Scottish Ministers and that Ministers are responsible for decisions taken in their name. Mr Wheelhouse is thus responsible for the decision because Scottish Ministers set the policy framework within which such decisions are taken. And this framework is interesting. In the letter, he states that,

The lease was advertised on the open market as per normal Scottish Government estate management practice

Why is it normal estate practice to adverse shooting rights on public land to all and sundry across the UK when the Raasay Crofters’ Association have been responsible for building up this successful enterprise for 18 years?

Why?

Wheelhouse goes on,

Whilst the Scottish Government is not obliged to accept the highest offer, as I said above, there was a desire in the decision made by officials to secure the highest rental value for the sporting rights.”

A desire?

What has desire got to do with anything? Why, if Scottish Ministers are not obliged to accept the highest offer, do civil servants have the freedom to exercise their “desires”?

Why?

Alex Salmond defended the decision at First Ministers Questions on Thursday by claiming that “there are difficulties relating to upholding the Scottish public finance finance principles and best value

What are these principles and what exactly are the difficulties?

The Scottish Public Finance Manual states clearly under Management of Assets that land should be “properly and well-managed” and that rents charged under leases should be the subject of external assessment. (1)

The Best Value Guidance makes clear that the duty of best value includes the duty to have regard to sustainable development. You can read for yourself what is says about sustainable development principles (promoting good governance, achieving a sustainable economy etc.).

The Public Finance Manual presents NO difficulties in extending the lease to Raasay Crofters’ Association under an agreed scheme of re-valuation. (It is worth stressing that the value of the lease is the result of the efforts and enterprise of the Raasay Crofters Association and not Scottish Ministers).

In a BBC interview on 21 February, Paul Wheelhouse claimed that “there was a substantial difference between the winning bid and the one submitted by the community” The winning bid as I understand it was £3000 per year. The Raasay Crofters’ Association bid was £1150 – a difference of £1850 per year. So the people of Scotland are now better off to the tune of 0.037 pence each per year. If you want to save up this valuable windfall for a 40p chocolate bar it will take you 1081 years to do so.

The Wheelhouse letter goes on to say that

I am keen, where possible, to allay concerns and to ensure that procedures are in place to guarantee Scottish Government decisions have the community interests at their heart, given our strong support for community empowerment and community ownership.”

and

to ensure that community and, indeed, conservation interests are always fully taken into consideration in any similar situations in future, I have instructed my officials that any decision that would result in a local community failing to secure a renewal of a sporting lease where they had been the sitting tenant should be referred to Ministers.”

But there should be no need to do this. In 1999, the Land Reform Policy Group chaired by Lord Sewel recommended that all public bodies with rural landholdings should be subject to new requirements to increase “local community involvement in the management of their land.” This was implemented in August 1999 when the Scottish Executive committed themselves to “lead by example on landownership” and  launched the Estates Charter. Deputy Justice Minister Angus Mackay said,

The Estates Charter sets out ten commitments for staff to adhere to in the management of Ministers’ landholdings. Paramount among these is the right of local communities to be involved in decisions which affect land on which they live and work.”

Given the importance of this document at the time, I took the liberty of publishing it on the site of the Land Programme of the Caledonia Centre for Social Development which, today, is the only place you will find this Ministerial statement online (in itself quite a revealing  state of affairs).

Of these ten commitments, fully half have been breached in this decision (Nos. 1,2,4, 7 and 8). Number 8 (Ministers shall “Take account of the local community perspective when considering offers for sporting rights on the Scottish Minister’s Estates.”) in particular has been flagrantly breached.

Were Scottish Ministers aware of this Charter? Does it still have effect? If it does, why was it breached? If not, why not? Indeed why is there no strategic plan in place after nearly thirteen years of devolution to ensure the sustainable development of Scottish Ministers’ landholdings?

There are three broad lessons to learn from this fiasco.

ONE
Land reform should be an ongoing process. Lord Sewell himself concluded his introduction to his final report in Jan 1999 by saying that “It is crucial that we regard land reform not as a once-for-all issue but as an ongoing process …. These present recommendations are therefore by no means the final word on land reform; they are a platform upon which we can build for the future.”

Land reform involves a constant, energetic and determined process of administration, policy and law-making to challenge vested interests and make landownership in Scotland more democratic. We have barely started.

And yet, in the face of this pressing need to maintain momentum, a Scottish Minister in 2007 instructed civil servants that “enough has been done on land reform“. By this time the momentum had already begun to falter but this was the killer blow. (2)

Is it surprising then, that civil servants respond in the way that they did when faced with the Raasay decision?

TWO
All other European countries have maintained their structure of local government in the form of kommunes and municipalities. Much decision-making is taken at this very local level by democratically accountable bodies. Scotland’s parish councils were wound up in 1930 and Town Councils in 1975. Networks of local offices of the Department of Agriculture have been centralised and decisions such as the granting of a lease are now in the hands of Scottish Government officials in Edinburgh.

Decision-making over natural resources needs to be placed in the hands of local, democratic bodies if stupid decisions like this are to be avoided.

THREE
Scottish Ministers have made a mistake. That’s OK – all Governments do so on occasions. What Ministers now need to do is to admit they made a mistake and to seek to resort the lease to the Raasay Crofters’ Association. They also need to act now to say exactly what their strategic plans are for these estates and how they intend to manage them. Does the Estate Charter still hold? How can communities expect to be treated?

Because this is not the first time there has been a fiasco on crofting estates. In 2010 the West Harris Trust eventually acquired the estate under the provisions of the Transfer of Crofting Estates Act but it was anything but an easy exercise. In their submission to the Land Reform Review Group they relate the problems. I recommend you read it. In it they describe how the negotiations “were needlessly lengthy and tortuous due to a civil service culture geared to complying to every imaginable negative scenario rather than dedicated to community empowerment.” The submission notes that the process took three long years – approximately one year longer than it had taken the neighbouring North Harris Trust to purchase the former Loch Seaforth Estate “from an octogenarian landlord living in Switzerland who held the land through a company registered in Panama“.

This is a mess arising as a consequence of having halted the programme of land reform in 2007. If Scottish Ministers do not act swiftly to clear it up this mess, they leave themselves open to judicial review on the grounds of failure to follow the Scottish Ministers Estates Charter and inappropriate application of the Scottish Public Service Manual. Meanwhile, the Scottish Parliament’s Rural Affairs Committee should launch a short inquiry into the whole story.

(1) The SPFM also states in Section on “Gifts” that the assignation or sale of a lease at less than market value can be regarded as a gift (para 5). However, even if Raasay Crofters’ Association were to be offered the lease at less than market value (and remember the market value has been substantially created by the Association), this would not be treated as a gift since, according to para 5, a gift must be “given or donated without expectation of receiving anything in return and generally without preconditions.” Such a situation should not arise were the lease simply to be extended based on independent valuation  because it would (or should) be part of a development plan for the island in pursuit of best value & sustainable development. If Scottish Government is relying on this section of the SPFM it tells us a lot about how they view the process of rural development.

(2) See Poor Had No Lawyers – footnote 24, last paragraph Chapter 25.

16 Comments

  1. Well said. The ‘landlord mentality’ so brilliantly illuminated by British Home Secretary Sir William Harcourt in 1883, still stalks the crofting communities. Harcourt referred to Highland landlords as “vicious and avaricious”.
    It seems that the Home Government is hell-bent on wrapping themselves in the web of that reputation.
    Political ineptitude and administrative sloppiness seem to be the order of the day.
    As the song has it, “When will they ever learn….”
    Good on you.
    Ron MacLeod (I live in Surrey, B.C. My mother and father like so many before them were driven off the Isle of Raasay by poverty).

    Reply

  2. How can a group from Ayrshire now benefit from 18 years of effort in building a sustainable enterprise with the tacit blessing of the Scottish Government – beggars belief!

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  3. I have written to South Ayrshire Stalking asking that they consider relinquishing their lease. I don’t see how they would be able to run a business against the backdrop of such hostility. Every self-respecting Scottish hillwalking club would surely consider it its patriotic duty to come to Rassay during the stag stalking season if this goes ahead. Hopefully South Ayrshire Stalking will conserve their reputation, and do the decent thing.

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    • delightful, i may join a hill walking club. 🙂

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    • Well done Alastair. This would be the neatest solution. There are no shortage of hunting opportunities in Scotland and plenty that are easier to access than the Island of Raasay.

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    • Are mountain bikes welcome as well :-).

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    • Hillwalking conducted in a manner calculated to disrupt a legitimate (however politically controversial) business would almost certainly not be in the exercise responsible access rights. Hence it would be an illegal trespass at risk of being interdicted. Just so that self-respecting hillwalking clubs and their members know …

      Reply

  4. This is clearly a wrong decision and should be rescinded immediately,but why does the SG own and run the Raasay estate centrally. It should be in community hands and run locally. I gather it was offered to the islanders but refused. Now it should be put under local control with stalking rights, with appropriate support to islanders.

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  5. News of this came as a surprise, even a shock. It appears to fly in the face of what we’ve been led to believe is the progressive nature of community ownership in Scotland.

    Makes me think that ‘Best Value’ is still being interpreted solely for its monetary value.

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  7. How ironic that, a few months back in Applecross, there was criticism of trustees justifying renting sportings to members of their own family because the rent was fixed by independent valuation. But now, just across the Inner Sound on Raasay, another set of trustees are being criticised for putting sportings out to tender instead of doing it by valuation a la Applecross!

    The other thing that gets me each time I read about this saga is that, if I were reading Wikipedia articles, I would be logging on to interline “[citation needed]” each time I read that Raasay Crofters Association is “very successful” or that they’ve added value to the Raasay sportings. I’m not saying they’re not/haven’t, but have these assertions been independently evaluated?

    Anyway, that the Raasay decision is “wrong” in the sense of being politically embarrassing in zeitgeist retrospect is undeniable. Whether it’s wrong in terms of breaching established protocols, we don’t have enough information to judge and far from clear.

    There’s a lot of misunderstanding about “Best Value”. Folk tend (understandably) to think it means “highest offer is not necessarily best offer”. (That’s only one tiny element of a much broader concept.) Nor is it a synonym for the supremacy of sustainable development. But even if it were, how do we know South Ayrshire Stalking’s bid was not equally, if not more, compatible with SD than RCA’s? The mere fact you’re local crofters doesn’t automatically make you more “sustainable” than stalkers from elsewhere.

    Turning to the Scottish Public Finance Manual, it’s a bit unclear about when it’s acceptable to proceed on the basis of “we want to deal with you but can only do so on the basis of independent valuation” or “we cannot make any preference so have to put it out to tender”. But from my experience of these things in the past, I can absolutely agree with the judgement call that the correct interpretation in the case of the Raasay sportings was to put them out to tender.

    So contrary to Andy’s assertions, there’s no definite right or wrong here.

    What’s required is a mature debate about whether the SPFM (or definition of “Best Value”) should be amended to explicitly take in a concept like “Aspirations of local communities [or, indeed, any other government priority] score highly. Where this applies, disposal should be to the community at valuation rather than to anyone else by public tender”.

    Thus Raasay has been positive in provoking that debate but meantime surely the lesson of Applecross was that it’s not helpful of outsiders who may not know the full facts to make threats about disrupting the stalking on the island.

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  8. Couldn’t disagree more. Actually the decision to tender was completely wrong and as Andy points out flew entirely in face of he Management Criteria established by Ministerial precedent in The Estates Charter and still extant in my view unless it has been replaced by an inexpicable code of their own from the current crop of Ministers which would only compound their culpability…
    In its Management Commitments and Principles
    The Charter states simply enough;

    “In our management of these estates officials will continue to seek to maintain good communications and relationships with tenants, and seek to increase local community involvement in the management of the land concerned. ..,”

    How could putting the rights out to tender possibly ‘seek to increase local community involvement” in land management on Raasay – far less the subsequent decision to outsource them?

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    • Thank you Allan. For the benefit of readers, Allan Wilson was MSP for Cunninghame North from 1999 to 2007 and was Deputy Minister for Environment and Rural Development from November 2001 to October 2004.

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  9. Fair enough about the Charter but there seems to be some doubt as to whether it was retained in force by the SNP administrations and, if it is still in force, it doesn’t appear to sit very comfortably with the SPFM.

    Both questions need to be bottomed out so I’ll amend the penultimate paragraph to say “What’s required is a mature debate about whether the Charter is still in force and, if it is, whether the SPFM (or definition of “Best Value”) needs to be amended to explicitly accommodate it and take in a concept like … [etc.]”

    But given that we don’t know if the Charter is still in force (even Allan admits the possibility it’s not), we still can’t say that the decision to tender was definitely wrong (in terms of compliance with protocols, not politically).

    And on the subject of the Charter, Management Commitment and Principles No 9, when was the last time the rents for crofts on Raasay were reviewed?

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  10. Sorry, just to add, I didn’t mean to imply that putting out to tender was undoubtedly required here. I’m saying it’s unclear but I could entirely understand how a civil servant could come to the conclusion that it was – especially if he/she were unaware of the Estate Charter.

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  11. Very glad to see that RCA got their deer & troots back.

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  12. Alex. Sutherland

    As an aside it is worth noting that the biggest fright that a deer will ever get is being shot at. It is an oft repeated myth that hill walking/moutaineering spoils stalking. It doesn’t hold back the cull on any of the NTS estates such as Glencoe, Kintail or Laws. A knowledgeable stalker will know where people are likely to be and very often uses that to his advantage.

    Reply

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