The Crofting Commission have, as part of the alleged abuse of power on their part over ‘The Common Clearances‘, been appointing Grazings Constables to replace the grazings committees that they have evicted from office.
I have blogged on the illegality of appointing Grazings Constables in such circumstances. This viewpoint has been backed up by Donald Rennie, an eminent expert in agricultural law and Honorary President of the European Council for Rural Law.
In a letter, that was published in both The Scottish Farmer and the West Highland Free Press last week, Donald Rennie highlights the potential difficulties for both the ‘Grazings Constables’ and the Crofting Commission of these illegal appointments.
With the kind permission of Donald Rennie, I now reproduce his letter here, in its entirety:-
I cannot allow the “Open Letter” from the Chief Executive of the Crofters Commission to pass unchallenged, especially as the Commission have exposed the unfortunates imposed as “Grazings Constables” to the risk of personal liability for tampering with the crofters’ money.
Ms MacLean says that there has been speculation about the interpretation of the Crofters (Scotland) Act 1993 and that “The commission is confident that it is applying the law correctly but this can only be clarified by the Scottish Land Court.” Both of these statements are self evidently false.
It is clear from an honest reading of section 47 of the Act that the Commission has no power to appoint a grazings constable in the present situation.
Their only power to appoint a grazings constable is to be found in section 47(3). That subsection applies where the crofters have not used the democratic provisions of the Act to appoint a grazings committee. In that case the Commission may step in and appoint either a grazings committee or a constable. That is not the situation here.
Under section 47(8), if the Commission are satisfied that the members of a grazings committee are not carrying out properly the duties imposed on them by the Act, the Commission may remove from office any or all such members and may appoint or provide for the appointment of other persons in their or his place. In other words, if the Commission remove one or more members of a committee they may appoint substitute members of the committee. They have no power conferred by this subsection to appoint a grazings constable.
The Commission was created by Act of Parliament. If the Act of Parliament does not give them the authority to do something then they cannot legally do it. subsection 8 is the only part of the legislation which permits the Commission to interfere in the democratic process of the operation of grazings committees. There is nothing in this subsection which permits the appointment of a grazings constable and therefore the actions of the Crofting Commission in purporting to appoint grazings constables are clearly illegal.
There is no point in applying to the Scottish Land Court for a ruling. It is a waste of time and money to seek a judgement to confirm the self evident.
Each purported grazings constable is in bad faith in the holding of his purported appointment. Ignorance of the law is no excuse. In addition it has been explained to the so called constables that their appointments are nullities. They cannot therefore claim ignorance of the illegality of their positions.
Section 47(7) is the only provision dealing with the constable’s right to remuneration. It provides that “The term of office of a grazings constable appointed by the Commission under subsection (3) above shall be such as may be specified in the instrument by which he is appointed, and he shall receive such annual remuneration as the Commission may determine; and such remuneration shall be defrayed by an assessment levied in such manner as the Commission may deem reasonable on the crofters who share in the common grazing.” Nothing is said in this subsection about appointment in terms of subsection 8 which reinforces the view that the appointment is illegal.
If a constable is validly appointed, this is the only provision allowing for his remuneration and it states clearly that the remuneration shall be paid by the crofters. The Commission has no power to use its own funds to remunerate the constable and if they purport to do so then it is a matter for Audit Scotland to investigate.
But these purported constables have not been appointed validly under subsection 3. Therefore there is no basis on which they are entitled to remuneration. From this it follows that if a purported constable takes as much a penny piece from the crofters sharing in the common grazing, with intent permanently to deprive them of that money, he is at serious risk.
Comment from the Crofting Law Blog:-
I wholeheartedly agree with everything Donald Rennie says in his letter. The law on the matter is simple and straightforward as set out clearly by him.
I have asked the Crofting Commission to explain where in law they have the power to appoint Grazings Constables in such circumstances. The only response to date has been:-
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.
This could imply (in the absence of any argument to the contrary) an acceptance on the part of the Commission that they couldn’t in law appoint a Grazings Constable but, having done so, they had no ability to revisit and reverse that decision. However, as Donald Rennie points out, there is no need for the Commission or anyone else to do so “to confirm the self evident”.
In my next blog post I will reveal the fact that, having stated that it has “no authority to revisit its own decisions in these circumstances“, the Crofting Commission went on to do just that and compounded their first illegal decision with yet another one (or maybe two)!
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