Inkster: Crofting Commission knowingly acted illegally in appointing Grazings Constables

The Crofting Commission knew that if it removed grazings committees from office it could not legally appoint grazings constables. Its own policies and procedures dating from 5 August 2015 said so yet it has contravened those on at least three occasions since 9 December 2015, according to crofting expert Brian Inkster of Inksters Solicitors.

A report by the chief executive of the Crofting Commission, Catriona Maclean, was put before a meeting of the Crofting Commission on 5 August 2015. This report considered the rationale for the commission appointing grazings constables and what requirements need to be considered when so doing.

In considering the situation where the Crofting Commission can remove from office grazings committees under section 47(8) of the Crofters (Scotland) Act 1993, the report by the Chief Executive states: “There is a presumption that the most obvious occasion for the Commission to appoint a constable is in the context of Section 47(8). This is where the Commission has had occasion to remove all members of a grazing committee from office and can appoint other persons in their place. The implication of this subsection appears to be that the Commission may remove individual or all members of a committee and replace an individual or all of the committee. There does not appear to be a direct cross over with Section 47(3) which allows the Commission to directly appoint a constable as a substitute for the grazing committee. The appointment of a constable appears to be where the shareholders fail to appoint a committee and not where the Commission removes a committee from office. Accordingly there would have to be an opportunity for the shareholders to elect another committee and only where they fail to do so, should the Commission consider appointing a grazing constable.”

This paper was approved by the Crofting Commission at its meeting on 5 August 2015.

A further paper was considered by the Crofting Commission at a February 2016 Policy in Development meeting. In that paper it was stated: “There is a degree of irony in that the Commission may be requiring grazing committees to adhere to regulations while not being clear about the procedure it is itself employing in directing this.”

This further paper also reaffirmed the position set out in the earlier one in connection with the position where a grazings committee is removed from office: “The Commission has previously accepted that a grazing constable is not appointed at this stage.”

A complaint workflow was also introduced in this latest paper with no mention of the appointment of a grazings constable in such circumstances but instead, as per the law, the appointment of a new clerk and members of the committee.

This complaint workflow was adopted by the Crofting Commission at its meeting on 4 May 2016.

The Crofting Commission was therefore fully aware and accepted that if it removed a grazings committee from office it could not legally replace it with a grazings constable.

However, despite this it proceeded to remove two grazings committees in Lewis and one on the Scottish mainland and appoint grazings constables in their place on 9 December 2015, 3 May 2016 and 10 May 2016 respectively.

Mr Inkster said: “In so doing they acted contrary to their own policies and procedures and, it is assumed, contrary to the legal advice that they had received. Thus they, as I and Donald Rennie (the Honorary President of the European Council for Rural Law) have maintained, acted illegally. What is now clear is that they acted illegally in the full knowledge that they were so doing.

“In light of this astonishing behaviour on the part of the Crofting Commission serious questions must now be asked by the Scottish government as to how and why this happened. Furthermore, the continuing position in office of whoever took the decisions to appoint grazings constables contrary to accepted policy, procedure and the law must now be in question.”