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