Lawyer claims Crofting Commission’s appointment of Grazings Constable is illegal

It was revealed last week that the Crofting Commission had removed from office the clerk to and the five members of the Mangersta Common Grazings Committee in Lewis.

This followed revelations that the Upper Coll Common Grazings Committee, also in Lewis, had been removed from office by the Crofting Commission.

The reason for the removal from office of the Mangersta Common Grazings Committee ostensibly relates to the payment of monies to an absentee tenant who had returned uncashed the cheque sent to him by the committee. The Upper Coll Common Grazings Committee was apparently removed from office for producing to the Crofting Commission financial statements prepared by an accountant rather than “audited” accounts.

Members of the now defunct Mangersta Common Grazings Committee have stated: “The actions of the Crofting Commission in both Upper Coll and Mangersta raise issues which are fundamental to the very survival of the crofting system. If their rationale concerning financial management was accepted or carried through, there would be very few viable crofting communities left and even fewer active crofters willing to become members of Grazings Committees”.

Calls have been made from various quarters including politicians and the Scottish Crofting Federation for the Crofting Commission to explain its actions and/or for the committees in both instances to be reinstated. The Scottish Crofting Federation has also requested the Scottish government to carry out “a full review of the situation as soon as possible before the damage is irreversible”.

This week crofting law expert, Brian Inkster, spoke out specifically concerning the Mangersta situation following his appointment by the former clerk and four former committee members to represent their interests.

Mr Inkster said: “It is very clear to me that the Crofting Commission in deciding to remove the clerk to and members of the Mangersta Common Grazings Committee from office took a decision so unreasonable that no reasonable person acting reasonably could have made it.

“This is a settled test in law known as the Wednesbury principle. Furthermore that decision was based on a complaint concerning financial matters that the Crofting Commission had no remit to handle.

“The Crofting Commission’s own guidelines in this respect state:

‘The Commission will not get involved in any matter relating to alleged financial impropriety. This is potentially a civil and/or criminal matter and should be dealt with by the relevant authorities.’

“I have therefore written a letter to the chief executive of the Crofting Commission calling upon the Crofting Commission to issue an apology to my clients and to reinstate them as members of and clerk to the Mangersta Common Grazings Committee without further delay.”

Mr Inkster highlighted that whilst the Crofting Commission purported to appoint a Grazings Constable to administer the Mangersta Grazings Regulations, it does not have the power to do so under section 47(8) of the Crofters (Scotland) Act 1993.

He also pointed out that the only ability that the Crofting Commission has to appoint a Grazings Constable falls under section 47(3) of the 1993 Act. This is where the crofters who share in a common grazing fail at any time to appoint a grazing committee – Mr Inkster added that this clearly does not apply to the present situation.

He concluded: “If the Crofting Commission decide to remove a committee of five and a clerk from office they must appoint, or provide for the appointment of, five committee members and a clerk to replace them. Therefore the Crofting Commission has acted illegally in appointing a Grazings Constable and any actions taken by him are null and void.

“This latest revelation compounds the allegations of abuse of power made against the Crofting Commission and highlights once more the urgent need for the Scottish government to institute an inquiry into their actings.”