Tag Archives: Crofters (Scotland) Act 1993

Crofting VATgate

Hector the Inspector - HMRC Taxman - Crofting VATgate

Who is the VAT Inspector?

In his letter to shareholders at Upper Coll the grazings ‘constable’, Colin Souter (who was illegally appointed in my view, and in the view of others including, ironically, the Crofting Commission themselves) stated:-

Following receipt of legal opinion from Queen’s Counsel, the position of Grazings Committees being able to register for VAT as trading entities in order to reclaim VAT has come under scrutiny. The dialogue with HMRC regarding VAT status remains ongoing and once concluded, I will be able to advise on the outcome.

Why and how on earth was Colin Souter in receipt of legal opinion from Queen’s Counsel on the question of whether common grazings committees could be VAT registered?

A suggestion on this blog that Colin Souter may have instructed the Opinion was met with this response from Mr Souter:-

I should also point out that I have never sought legal advice from Queen’s Counsel in any context, since being appointed as Grazings Constable.

I then asked:-

Perhaps you can enlighten us as to how you came to be in “receipt of legal opinion from Queen’s Counsel” as stated in your letter to the Upper Coll shareholders?

Mr Souter has yet to answer my question.

So who instructed this legal opinion, who paid for it and why?

How did Colin Souter come to be in possession of it and why?

In his dialogue with HMRC is Colin Souter trying to stop VAT registration at Upper Coll Common Grazings and if so why?

It can only be assumed that the attempt to stop VAT registration of common grazings probably lies at the door of the Crofting Commission. Would this not be how a grazings ‘constable’ appointed by them would be in possession of such information?

We are already aware that the Convener of the Crofting Commission, Colin Kennedy, was of the view that common grazings should not receive SRDP funding. This very alarming notion (an issue that did not concern the crofting regulator and/or its convener in any way) was firmly quashed by Fergus Ewing MSP.

It is therefore not a giant leap to think that the Crofting Commission and/or their Convener might be behind this attempt to stop common grazings being VAT registered.

If that should prove to be the case it is scandalous.

Questions regarding whether crofters should be VAT registered or not have absolutely nothing to do with the Crofting Commission. It is a matter between crofters and HMRC.

Public money should not have been spent on the opinion of Queen’s Counsel on such matters. If that has happened Audit Scotland should be investigating the issue. Another one for them to add to the growing list for their next visit to Great Glen House.

But more significantly why is the Crofting Commission and/or their Convener intent on depriving crofters of income? First it was SRDP funding. Now it appears to be VAT.

Under and in terms of the Crofters (Scotland) Act 1993 the Crofting Commission has as one of its functions:-

promoting the interests of crofting

On their website the Crofting Commission state that it:-

regulates and promotes the interests of crofting in Scotland to secure the future of crofting.

This statement links through to a general leaflet on crofting that states:-

The Crofting Commission is working to secure the future of crofting by creating and promoting a well regulated crofting system that positively contributes to the sustainability of rural communities.

By seeking to deprive crofters of SRDP funding and now, possibly, VAT the Crofting Commission cannot be said to be promoting the interests of crofting, securing the future of crofting or positively contributing to the sustainability of rural communities. Quite the contrary.

If Commissioners are acting in such a way, completely contrary to the functions that the Crofting Commission was established to carry out, then those commissioners responsible have no place in that organisation. They should be ashamed of themselves.

They are clearly “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”. As such the Scottish Ministers may remove them from office under and in terms of the Crofters (Scotland) Act 1993. There have been repeated calls over recent months for such action to be taken but if ‘Crofting VATgate’ does fall at the door of the Convener and/or any other Commissioners then this surely is the final straw that broke the camel’s back.

Fergus Ewing MSP, as Cabinet Secretary for the Rural Economy and Connectivity with responsibility for Crofting, should immediately launch an investigation to get to the root of ‘Crofting VATgate’, publicise his findings for the benefit of crofters and take appropriate and decisive action against those responsible.

Brian Inkster

Image Credit: Hector the Tax Inspector © HMRC

Crofters and Lawyers

Crofters and Lawyers - Yes they could instruct Rumpole!

It isn’t just the Crofting Commission who can instruct crofting law advice!

It was reported in The Scottish Farmer this week that, as part of the ‘findings’ of the illegally appointed grazings ‘constable’ to Upper Coll Common Grazings, Colin Souter had said in a letter to shareholders that:-

I have also written to the solicitor, Brian Inkster who was apparently engaged by the former Committee, to provide them with legal advice in their dispute with the Commission. Mr Inkster was paid £600 in fees from shareholders’ funds in April 2016. There is nothing in the 1993 Act which permits shareholders’ funds to be used in this way. In addition, there is no record in the Minutes of the decision to engage Mr Inkster, the brief involved or the paying of his invoice having been put to or approved by individual shareholders. Thus, the spending of shareholders’ money in this way, was outwith the power of the Committee at that time, meaning they acted outside of the law and the legal protection normally afforded. Such arbitrary decision-making is outside of the power of the Committee, where it commits spending and serves only to undermine the trust between Committee and shareholders.

In the first letter received by me from Mr Souter on this topic he boldly states:-

Nowhere in the Act, is it provided that shareholders’ money can legitimately be used to pay for legal services when a Grazings Committee is in dispute with any organisation, body or individual. For such to even be contemplated, I would consider it necessary for at least a unanimous vote by shareholders, to support the move. However, there is no indication in the Minute records of such a meeting, discussion or vote having taken place amongst shareholders. I consider it would be highly questionable, even under such circumstances, faced with the narrow terms of statutory responsibility held by Grazings Committees, that shareholders’ money, held for spending on maintenance or improvement of the common grazing, could legitimately be spent on legal advice from any solicitor.

With acceptance of this point, comes the ethical question of receiving the money, fully understanding the source and yet presenting the cheque for payment, (as an expert in Crofting legislation), with specific knowledge of the restrictions under the Act.

He then went on to ask me, in the circumstances, to send him a cheque for £600!

In the absence of receiving such a cheque from me he wrote again this time seeking the payment once more and also asking me for copies of certain documents that he would be willing to pay me a fee to receive. A bit ironic surely that he can pay solicitors fees all of a sudden when supposedly representing shareholders who he claims cannot!

He also, in this most recent letter, went on to threaten me:-

I offer this additional and final opportunity for you to respond on the matters raised in the initial correspondence and that above, before deciding upon the necessity for further action, which if taken, may well afford the benefit of free publicity but with the detail being made public, may nevertheless impact adversely upon your professional standing.

He concludes with the threat of raising a small-claims action against me presumably in the Sheriff Court.

View from Upper Coll

This is what certain shareholders at Upper Coll have to say about the matter in a letter issued to shareholders in response to the one issued by Mr Souter:-

He questions the legality of grazings committees seeking and paying for legal advice. In our case, Inksters Solicitors, who are well versed in Crofting Law were asked by the Grazing Committee to investigate the legality of the Upper Coll shareholders having to distribute the money received from feu dispositions with such haste by the Crofting Commission. He was given a limit of up to £600 to do so. This was actioned prior to the Grazings Committee being put out of office.

Inksters in their investigations were instrumental in the Crofting Commission performing a U-turn on their directive to Upper Coll (it was found that they were in fact acting outside the law!) and saving countless grazings a considerable amount of money!

It is ironic that Mr Souter finds fault with Upper Coll shareholders employing a legal expert to successfully show the injustices of the Crofting Commission whilst he himself while acting for the Upper Coll shareholders (in his opinion!) seeks the counsel of a QC to enquire as to the legitimacy of the Upper Coll Grazings being VAT registered!!

These shareholders at Upper Coll also make the following general point:-

The constable seems unable to understand that in the spirit of openness and transparency over the years in Upper Coll, all meetings were advertised and open to all shareholders, that all decisions were taken by the majority of those attending and that all these decisions were minuted.

He is also under the mistaken impression that the clerk took actions on his own initiative. That is untrue. The clerk’s actions were always as a result of decisions and actions approved by the majority of shareholders. If the clerk was at fault so were all those present at meetings who asked him to act on their behalf.

The constable seems to place blame on successive committees, when in fact all actions were approved at open shareholder meetings. The clerk, unlike the constable, only took action after being instructed to do so by shareholders.

View from the Crofting Law Blog

Mr Souter clearly has no idea about what his role is and what he should be doing even if he was appointed legally as a grazings constable which he has not been. On one hand (according to him) shareholders cannot seek legal advice, but on the other hand he can take unilateral action on their behalf (and presumably at their cost) with no discussion or agreement from them whatsoever.

He hasn’t a clue about the law and given that he thinks shareholders cannot seek legal advice under and in terms of the Crofters (Scotland) Act 1993 he will presumably not be able to seek such advice himself to assist in his deliberations.

Having said that Mr Souter is apparently in receipt “of legal opinion from Queen’s Counsel” on whether Grazings Committees can register for VAT. It is not clear whether he, the Crofting Commission or some other party instructed this opinion. I will explore this specifically and in detail in future blog posts.

However, he seems able to instruct “agents“. It has been reported that:-

He said shareholders are “well aware” from his reports that all scheme applications due were completed by agents acting on behalf of the grazings and “processed accordingly and no financial loss has been suffered”.

A lawyer is simply an agent, no different surely from instructing any other agent to do work on your behalf that may be required?

In any event a right for crofters to instruct lawyers does not need to be contained in tablets of stone within the Crofting Acts. It is a fundamental human right. Try the Magna Carta for starters.

Shareholders in common grazings have been instructing lawyers to represent and provide them with advice in numerous matters over many years. Is Mr Souter really suggesting that all those lawyers need to repay fees received for work undertaken and advice given?

Is Mr Souter really saying that shareholders could not have a lawyer representing them in an action brought against them in the Scottish Land Court?

Does Mr Souter really think it is okay for the Crofting Commission to hire top QCs in their questionable battles against shareholders in common grazings but that those shareholders cannot be afforded access to lawyers themselves?

Has Mr Souter read the Guidance Notes issued by the Crofting Commission on the Management and Use of Common Grazings? These Guidance Notes contain an “Important note” that reads:-

The following guidance is intended to assist grazings committees with regard to the use of grazings regulations. The guidance does not constitute legal advice, and should not be construed as such. Should a grazings committee and/or shareholder require legal advice on a matter concerning common grazings, independent legal advice should be sought from a suitably qualified solicitor.

So even Mr Souter’s masters, who are not often commended for a common sense approach to matters, acknowledge and accept that shareholders can and should seek their own independent legal advice.

Should Mr Souter carry out his threat and raise court action against my law firm I will have no difficulty in defending it and calling the Crofting Commission in as a party to it. There will be a counterclaim for the time, inconvenience and costs caused to me unnecessarily by Mr Souter.

I do not recognise Mr Souter as having any legal standing or authority. His appointment was illegal and even the Crofting Commission knew this to be the case when making it.

Accordingly, I will not be replying directly to his letters. Instead I will be writing to the Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, who has responsibility for crofting. I will, out of courtesy, copy my letter to Mr Souter.

I will be expressing my concerns to Mr Ewing about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

Brian Inkster

Image Credit: Rumpole of the Bailey © ITV

Cabinet Secretary “wholly disagrees” with Crofting Commission Convener

Fergus Ewing v Colin Kennedy

A clash has begun between Fergus Ewing MSP and Colin Kennedy

Breaking news on BBC Radio Scotland this morning:-

The BBC has seen a letter written by the Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, that says he “wholly disagrees” with the Crofting Commission’s stance on Common Grazings Committees and the distribution of funds received by them.

BBC Scotland reporter Gary Robertson said:-

The Scottish Government is going head to head with the Convener of the public body responsible for crofting.

In a hard hitting letter seen by BBC Scotland the rural affairs secretary, Fergus Ewing, has told the Convener of the Crofting Commission that he wholly disagrees with his handling of a bitter dispute over shared land in the Western Isles.

BBC Scotland reporter Jackie O’Brien has seen the correspondence and Gary Robertson asked her what the background was.

Jackie O’Brien said:-

Well this has been a protracted and slightly complicated dispute involving the way that the ground crofters share is managed through what they call common grazings committees which are made up of crofters.

Now earlier this year two committees on Lewis, one in Mangersta and the other in Upper Coll, were removed from office by the Crofting Commission.

This happened after questions were asked over financial records and some transactions including the fact that the Upper Coll committee had not distributed or as they call it disbursed income from croft house sites to individual crofters but had put all of the money into a crofting township fund instead.

Now the Commisssion in the meantime appointed what they called constables to manage the land whilst committee accounts were investigated.

One of the committees has been reinstated but there is still annoyance and outrage over the way that this whole affair has been handled. Some say it is belligerent and unlawful and there have been calls for the resignation of the Crofting Commission Convener, Colin Kennedy.

Gary Robertson asked:-

So what exactly does Fergus Ewing say in this letter?

Jackie O’Brien responded:-

Well the rural affairs secretary has been trying to calm the waters and has been quite diplomatic on this to date. But there is no sign of it in this letter which I have seen that he has sent to Colin Kennedy.

He confirms that contrary to Mr Kennedy’s views the Crofters (Scotland) Act does not require the immediate disbursement or pay out of funds by a grazings committee. He says that as it currently stand the Scottish Government sees little merit in the Crofting Chairman’s views which he says he wholly disagrees with.

The letter goes on to say that the Government’s view is diametrically opposed to Mr Kennedy’s and that it is not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law.

Gary Robertson then asked:-

Any response from Colin Kennedy himself?

Jackie O’Brien confirmed:-

I did speak to him last night. He is adamant that he has done nothing wrong. He claims that all of the decisions which have been made have been made during/since he has been Convener have been based on papers supplied by the Commission’s executive.

He has also insisted that not a single matter on this has ever had to go to a vote or at board level and he says that all decisions are taken by means of reasoned debate and consensus.

Gary Robertson then asked Jackie O’Brien:-

What is your sense of the implications of this clash?

Jackie O’Brien responded:-

Well the contents of this letter shows the Government is clearly pointing the finger at Mr Kennedy who is an elected Convener. This is backed up by the fact that Fergus Ewing has said in his letter that he is also very concerned about the risk that policy decisions may be taken without a clear mandate from the Crofting Commission’s board. This implies that not everyone on the board supports the way things have been handled.

Now the Commission’s board does happen to be meeting today, and in his letter Fergus Ewing has asked for its position on the matter to be made clear after this meeting. But he warns that if the Commission continues to subscribe to an entirely different view he will then have to consider what action to take. It is not clear what that action could be but that could put further pressure on him to resign.

View from the Crofting Law Blog

The Scottish Government clearly takes the same view regarding the law on the common grazings debacle taken from the outset on the Crofting Law Blog. It is good that they have done so and made their position clear in such strong terms.

The law on the matter has in my view been fairly clear. It is also, it transpires, clear to the Scottish Government.

Why has it been so unclear to the Crofting Commission?

Despite repeated requests from me to the Crofting Commission asking them to justify their position with reference to statute and case law they have failed to do so. They have simply ignored me. If they had papers from their executive that backed up their position in law surely they would have referenced those to me.

The Chief Executive of the Crofting Commission, Catriona Maclean, suggested in a meeting of the Scottish Government Crofting Stakeholder Forum that the law on the matter would follow “in due course” after the Commission had drawn up new guidelines for grazings committees to follow. Putting the cart before the horse was never a good idea!

The Convener of the Crofting Commission, Colin Kennedy, has said to BBC Scotland that the Commission were following advice given in papers produced by their executive. Oh no they weren’t! The Crofting Commission specifically ignored the advice given by the executive and appointed grazings constables in circumstances where they knew that to do so was illegal. How many other times has this happened?

Furthermore, it should not be forgotten that a paper [PDF] was considered by the Crofting Commission at a February 2016 Policy in Development meeting. In that paper it was, somewhat alarmingly, 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.

Thus did the Commission actually have papers from the executive to consider when making some of their decisions or were they simply making it up as they went along?

We also, of course, know that the Commission has chopped and changed its position on the matter, tried to hide the fact they have done so and ultimately made a massive U-Turn. Does that demonstrate having done nothing wrong?

In light of the stance now taken by the Scottish Government against the Convener surely his tenure in office must be in question more so than it ever was. Especially if he continues with the adamant view that he has done nothing wrong when all of the evidence that has so far come to light would perhaps suggest otherwise.

The Crofting Commission are having a board meeting today. On the agenda [PDF] is ‘Grazings committees – a practical approach to the management of common grazings’ with a paper on that topic for discussion. A practical approach would no doubt be a welcome approach from most crofters. But let’s hope the Commission have now got a clear understanding and grasp of what the law actually is when applying a practical approach.

A little bit of humbleness, signs of regret and an apology would not go amiss at today’s meeting in light of the letter from Fergus Ewing.

A statement from the Crofting Commission on the outcome of today’s meeting is awaited with bated breath.

Brian Inkster

A “big step” or a just step?

Lucy Carmichael from the Scottish Government Crofting Policy Team at the Lewis and Harris Crofters meeting in Stornoway on 3 August 2016My last post considered the overwhelming view of Harris and Lewis crofters that the Convener of the Crofting Commission, Colin Kennedy, must go given his role in the alleged abuse of power within the Crofting Commission dubbed ‘The Common Clearances‘.

But despite many calls over several weeks for him to consider his position there is no sign of him stepping down anytime soon. In the absence of him doing the right thing is it time for the Scottish Ministers to force his hand?

This issue was raised at the meeting in Stornoway on 3rd August. This is how the West Highland Free Press reported the view thereon by Scottish Government crofting policy officer Lucy Carmichael and my response thereto:-

Ms Carmichael explained that the way crofting legislation is framed the only recourse available to crofters is to mount a challenge in the land court.

However, that was fiercely disputed by Mr Inkster who said that as the commission is a statutory body under the control of the Scottish Government it was perfectly legitimate for ministers to intervene if they felt it appropriate.

But Ms Carmichael felt that would be a “big step” – a statement which drew a sharp intake of breath from the audience, particularly those in Upper Coll who felt their removal from office was equally a big step and, indeed, unconstitutional.

Mr Inkster said that the commission had knowingly gone against their own legal advice, changed the guidance to common grazings committees and misinterpreted crofting legislation. “It is hard to see under such circumstances that anyone can have any confidence in any new guidance given out by the commission,” he said.

I would point out, if I recall correctly, that Lucy Carmichael also made reference to the Scottish Public Services Ombudsman and the Commissioner for Ethical Standards in Public Life in Scotland as other possible routes of recourse that crofters could take in addition to or instead of action via the Scottish Land Court.

Brian Inkster at the Lewis and Harris Crofters Meeting in Stornoway on 3 August 2016

In my very first blog post on the alleged abuse of power within the Crofting Commission I said, in connection with the removal from office of the Upper Coll Grazings Committee,:-

I would strongly suggest therefore that the Crofting Commission should, in all the circumstances, review this extraordinary decision. If they fail to do so the Scottish Government should maybe question the behaviour involved and perhaps even consider removing the commissioners responsible as “unsuitable to continue” as members. A power that the Scottish Ministers have at their disposal under the Crofters (Scotland) Act 1993. That may be seen by many as a more reasonable and justified use of power than that employed by the Crofting Commission.

46 blog posts on the common grazings debacle later and I am firmly of the view that it would indeed be a more reasonable and justified use of power than that employed by the Crofting Commission.

The evidence is now clear. The Crofting Commission have been exposed to knowingly acting illegally, clearly acting illogically, operating like a kangaroo court, creating conflicts of interest, brazenly deleting its own history and attempting to deny that history. They have been party to intimidation and bullyingobfuscation and manipulation, controlling grazings constablesflouting the will of Parliament and ignoring the law/lawyers. But ultimately they have made a massive U-turn which is nothing more than a clear admission that they got it wrong. They have cost the public purse a huge amount of money.

It is, in light of all of this, not a “big step” to remove a commissioner. It is an obvious step and a just one.

Brian Inkster

Images Credit © BBC Alba

‘Allo ‘allo ‘allo… what’s all this then?

'Allo 'allo 'allo... what's all this then?

‘Allo ‘allo ‘allo… what’s all this then?

Just when you thought events at Great Glen House couldn’t get more farcical than highlighted in my last blog post, I am afraid to say they can.

It turns out that following the Crofting Commission’s decision to appoint a Grazings Constable with the sole function of paying monies considered to be due to a shareholder they appointed into that illegal position one of the committee members that they had just removed from office!

The decision to do so was made by the Convener, Vice-Convener and Chief Executive of the Crofting Commission.

Section 47(8) of the Crofters (Scotland) Act 1993 reads:-

If the Commission are satisfied, after making such inquiry, if any, as they may deem necessary, that any or all of the members of a grazings committee (however appointed under this section) are not properly carrying out the duties imposed on them (or that the grazings clerk is not properly carrying out the duties imposed on him) under this Act, the Commission may remove from office any or all such members or such clerk and may appoint or provide for the appointment of other persons (whether crofters or not) in their or his place.

Having removed from office the entire committee the Crofting Commission could then “appoint or provide for the appointment of other persons (whether crofters or not) in their or his place“.

Other persons” does not mean one of the same persons!

You couldn’t make it up.

Brian Inkster

Image Credit: Monty Python’s Flying Circus © BBC

Keystone Crofting Cops

Croftstone Cops (aka Grazings Constables)

Yes Commissioners… we’ll do whatever you say.

This post will give an insight into the workings of the Crofting Commission when, contrary to their own policies and procedures, they proceeded to appoint grazings constables illegally. It will also highlight how incompetent such appointments are.

All three cases involving the appointment of illegal grazings constables centred around monies that certain shareholders believed should have been paid to them and the Commission’s insistence that such monies should indeed have been paid out.

Minutes of a meeting of the Crofting Commission regarding the proposed removal from office of a grazings committee and clerk and appointment, in their place, of a grazings constable state:-

After discussion, the Commission agreed that the [name of Grazings Committee] would be written to and given 28 days to pay the money due to the shareholder. If after the 28 days have passed, they have failed to pay the money, the Committee and Clerk will be removed and a Constable appointed with the sole function of paying the monies due.

The appointing of the Constable will be decided by the Convener, Vice-Convener and Chief Executive.

Discussion took place about how the Constable would be able to sign cheques on behalf of the Grazing Committee and the Commission agreed that the Order issued to the Grazing Committee advising them that they have been removed from office should be worded clearly enough to maximise the ability of the Constable to access funds. However, the Commission cannot guarantee that the bank will accept the Order.

The Crofting Commission has no power to order payment of monies by grazings committees to shareholders. Indeed their own guidance on such matters states:-

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.

Thus they breached their own policies and procedures and acted without any power to do so in ordering the grazings committee to make payments. That is the case whether or not such payments were legitimately due and payable to the shareholder in question. That would have been a matter for that shareholder to pursue, as they considered appropriate, through the civil or criminal justice system.

It is interesting (and perhaps somewhat alarming) that the Crofting Commission decided that this particular grazings constable would be appointed “with the sole function of paying the monies due“.

Whilst the Crofting Commission have no power under and in terms of the Crofters (Scotland) Act 1993 to appoint a grazings constable to do a specific task ordered by them it is alarming that they would think, under any circumstances, that this would be a sensible approach to take.

A grazings committee and grazings clerk will potentially have many tasks to fulfill. By putting a committee out of office and not making appropriate and legal arrangements to allow those tasks to be continued the Crofting Commission is clearly evading its responsibilities as a regulator and acting in a highly irresponsible fashion.

The Convener of the Crofting Commission was at the ready to put in place a grazings constable who would pay out the monies if the first constable appointed to do so “has any difficulty and backs out“.

The appointment of a grazings constable where a grazings commitee has been removed from office is, however, in itself illegal. In such circumstances the Crofting Commission has no power to appoint a grazings constable and instead under section 47(8) of the 1993 Act:-

may appoint or provide for the appointment of other persons (whether crofters or not) in their or his place

The only ability for the Crofting Commission 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.

An illegally appointed grazings constable whose actions would be null and void should, of course, be let no where near a cheque book! The Crofting Commission however, knowing that they couldn’t guarantee that a bank would accept the position, decided that they would frame an Order as best they could to persuade a bank to do so!

Hopefully, no bank has been daft enough to allow an illegally appointed grazings constable such access. If they have done so the shareholders should have recourse against the bank as well as, of course, against the Crofting Commission. Also as Donald Rennie has stated:-

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.

This farcical state of affairs would, unfortunately, not be out of place in a Mack Sennett comedy. No wonder that there have been calls for the Scottish Government to investigate and for the Convener to consider his position.

Brian Inkster

Image Credit: By Mack Sennett Studios – Publicity still from 1914 film “In the Clutches of the Gang”, via Wikimedia Commons

Grazings Constables were added to the Sump by the Crofting Commission

Do I really need to climb in there with the rest of the mess?

In my last post I looked at how the Crofting Commission’s own policies and procedures made it clear that grazings constables could not be appointed in law when a grazings committee were removed from office.

It should also be noted that in or around April 2016 the Crofting Commission added to ‘The Sump‘ that they would like:-

Clarification in section 47 of the 1993 Act that if the Commission removes a grazings committee from office, the Commission can appoint a constable in its place and a right to suspend (as well as remove) grazings committees for a period of time to be determined by the Commission.

Thus they were looking, as part of ‘The Sump’, for legislative change by the Scottish Government to enable them to do these things.

Despite knowing that they didn’t have the power to do so they had, by this stage, already appointed one illegal grazings constable (Mangersta Common Grazings) and were to go on to appoint two more (at Upper Coll and on the Scottish mainland).

Brian Inkster

Crofting Commission knew they were acting illegally in appointing Grazings Constables

Go to Jail Crofting Commission

Time for the Crofting Commission to feel the full force of the law

The Crofting Commission knew that if they removed grazings committees from office they couldn’t legally appoint grazings constables. Their own policies and procedures dating from 5 August 2015 said so yet they have contravened those on at least three occasions since 9 December 2015.

A Report by the Chief Executive of the Crofting Commission [PDF], 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 their meeting on 5 August 2015 [PDF].

A further paper [PDF] was considered by the Crofting Commission at a February 2016 Policy in Development meeting. In that paper it was, somewhat alarmingly, 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 [PDF] at their meeting on 4 May 2016 [PDF].

Thus the Crofting Commission were fully aware and accepted that if they removed a grazings committee from office they could not legally replace them with a grazings constable. That position accords with my own view on the matter and also the view held by Donald Rennie.

However, despite this they 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.

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 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.

Brian Inkster

Is the Crofting Commission a Tribunal?

Is the Crofting Commission a tribunal?

Order, order. Let the trial commence.

The Scottish Government have been looking for views on draft regulations prepared by them to  remove the Crofting Commission from the list of tribunals in the Tribunals (Scotland) Act 2014.

I have urged the Scottish Government to exercise caution in removing the Crofting Commission from the list of tribunals in the Tribunals (Scotland) Act 2014. I consider that such a move may be premature pending the outcome of an investigation into the Crofting Commission’s decisions to remove grazings committees from office.

The Scottish Government’s call for views as part of their consultation reads:-

The Crofting Commission is currently listed as a tribunal under schedule 1 of the Tribunals (Scotland) Act 2014 (the 2014 Act). The tribunals listed in Schedule 1 of the 2014 Act were taken from a report by the Administrative Justice and Tribunals Council (AJTC), which listed tribunals they considered to be devolved Scottish tribunals. The AJTC was a UK body (with a Scottish Committee) established by the Tribunals, Courts and Enforcement Act 2007.

The AJTC’s remit was defined in statute as having to keep the administrative justice system under review and report on the constitution and working of listed tribunals. At that time Ministers were minded not to remove the Crofting Commission’s status as a tribunal so as to keep it within the supervisory remit of the AJTC.

The AJTC was abolished in 2013 and the successor body in Scotland did not undertake the supervisory role carried out by them.  As there is no longer a supervisory body and the Scottish Minister’s view that the Crofting Commission is not a tribunal in the true sense of the word we are proposing to remove them from the list of tribunals in the 2014 Act.

If there is no longer a supervisory body for tribunals and the Scottish Government previously thought that the Crofting Commission should be supervised it is perhaps no wonder that we are where we are at due to lack of supervision!

The Faculty of Advocates have stated that they agree with the reasoning behind the Scottish Government’s plan to do so. However, I am of the view that the Faculty of Advocates are perhaps at a disadvantage in not seeing at the coalface how the Crofting Commission are actually handling their decision making process and aspects thereof that make them very much a tribunal, but one that appears to be out of control. This is certainly the case with regard to the recent removal by the Crofting Commission from office of three grazings committees.

Last week I submitted my own response to the Scottish Government’s consultation on the matter. It reads:-

Whilst it is stated that it is the “Scottish Minister’s view that the Crofting Commission is not a tribunal in the true sense of the word” recent events would suggest that the Crofting Commission is in many respects acting as a tribunal but without the procedures, checks and balances that one would normally associate with a tribunal.

The Crofting Commission has been using the power vested in it under and in terms of section 47(8) of the Crofters (Scotland) Act 1993 to remove grazings committees from office. There have been three such removals since December 2015.

This has created a lot of controversy with allegations of abuse of power and calls for an investigation of the Commission.

It is submitted that in taking action to remove grazings committees from office the Crofting Commission has been acting as a tribunal.

However, it would appear that no proper procedures, as would be expected from a tribunal, have been followed by them in so doing.

Article 6(1) of the European Convention of Human Rights and Fundamental Freedoms (ECHR) provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Where the Crofting Commission is determining a civil right or obligation it must ensure that its processes are Article 6(1) compliant.  There are three key aspects to this (1) Security of tenure of the members; (2) Absence of bias amongst the members of the tribunal; (3) Absence of procedural unfairness.

It is considered that the manner in which the Crofting Commission has carried out its decision making under the said section 47(8) was non-compliant and, indeed, that the said section 47(8) is not ECHR compliant.

More worrying still is that the Crofting Commission are currently arguing that an appeal of a decision made by it under the said section 47(8) cannot be brought before the Scottish Land Court. If this is correct (and a decision on this procedural technicality is currently awaited from the Scottish Land Court) then the only right of redress may be judicial review via the Court of Session.

Given all of this it would, in my view, be very unwise to remove at this stage reference to the Crofting Commission from the Tribunals (Scotland) Act 2014. It may well be that Scottish Ministers in considering the alleged abuse of power within the Crofting Commission might want to consider the possible benefits of utilising the Tribunals (Scotland) Act 2014 to remedy some of the issues and problems actually highlighted above. Of course there may be other ways of achieving the same result.

In all the circumstances it is considered premature, at the moment, for the Tribunals (Scotland) Act 2014 to be amended in any way that would exclude the Crofting Commission therefrom.

Brian Inkster

Research Credit: I am indebted to Alistair Sloan for researching, at my request, the detail of the Tribunals (Scotland) Act 2014 and the ECHR aspects involved.

The Chief Grazings Constable

he Chief Grazings Constable - Top Cat at the Crofting Commission

The ‘Top Cat’ misunderstands the role of a Grazings Constable

The Convener of the Crofting Commission, Colin Kennedy, was apparently at one time a Grazings Constable.

In 2007 he responded to comments online on the BBC Island Blogging site:-

I was the grazing constable on Arinagour Common Grazing, a post with specific duties, one of which was to advise of any potential problems on the grazings. This I did on two occasions. First one was relative to your property, Second was relative to the First Port Of Coll. Both properties were on the market and for sale. My function was to alert those involved including the Crofters Commission of potential problems regarding the status of the land. I have never stated that any property was on the Common Grazing, however it is my view that various areas of the grazing are now occupied by various people.

That is not a specific duty or function of a Grazings Constable under and in terms of the Crofters (Scotland) Act 1993.

Perhaps this misunderstanding of the role of a Grazings Constable, from the top of the tree at Great Glen House, is why we have purported ‘Grazings Constables’ thinking their role is an investigative one. It isn’t. Other than, perhaps, the five yearly duty to report to the Crofting Commission on the condition of the Common Grazings and crofts with a share in the Common Grazings.

Brian Inkster

Image Credit: Top Cat © Hanna-Barbera / Warner Bros. Animation