Tag Archives: Crofting Commission Policy

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

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

Common Grazings and the Spirit of the Law

Patrick Krause

Patrick Krause

I continue to catch up with news of ‘The Common Clearances‘ since I returned from holiday. With the amount of new news on this topic being generated daily this week that is a difficult task!

On 25 May 2016 Patrick Krause, Chief Executive of the Scottish Crofting Federation, published a piece on the Federation’s website. I now reproduce it here in its entirety with a small comment at the end from myself on the question of the will of Parliament.


The Spirit of the Law
The inexplicable case of a public body confusing legal dogma with good sense 

The Crofting Commission website says “The Crofting Commission regulates and promotes the
interests of crofting in Scotland to secure the future of crofting.” Following the summary
dismissal of two (or more) grazings committees; the foisting of grazings constables upon the
dismembered grazings; the demolition of crofters’ characters; the contradiction and confusion,
it is no wonder that crofters and those with crofting interests are standing agog and are asking
“What is going on in the Crofting Commission?” It is not for me to make any judgement on the
legalities of the fracas that has been taking place over the past month – crofting lawyers are
willingly giving opinion – but I will attempt to explain the essence. Common grazings are the
epitome of communal working, yet this is a spectacularly detrimental exercise in public
relations by the Commission that threatens the very core of crofting communities. I wonder
what the motive is.

One committee was summarily dismissed for not presenting fully audited accounts. Previously
the Commission had issued official guidance that ‘audited’ did not mean fully audited in the
legal (and expensive) sense, but could be taken to mean an independent examination – the
Commission were taking a “light-touch approach”. At the demand by the Commission for five
years annual accounts, the committee presented an independent examination of its accounts,
as is usual for small businesses and social enterprises and is perfectly acceptable to HMRC,
Companies House and the Charities Regulator. They were summarily dismissed for failing the
demand. This subsequent heavy-handed bombshell has naturally caused fear throughout
regulated grazings that they also are in breach for not having fully audited accounts.

A second committee was also summarily dismissed (both grazings then had a constable foisted
upon them by the Commission, which a leading crofting lawyer claims is not legal in these
circumstances), in this case for not distributing income from resumption. Though the only
shareholder asking for his tiny share of the resumption money was an absentee, legally he had
the right to it, we are told by the Commission.

It is hard to understand why this committee was unexpectedly sacked when it had attempted
to pay the absentee, under guidance of the Commission (and the other was also instantly
sacked even though it had seemed to have complied with all the demands of the Commission).
But let’s leave the detail and look at the principle.

The law says that money due as part value of resumption may be paid by the landlord to the
clerk of the committee for distribution by the clerk among the crofters concerned. The law is
not prescriptive in saying when or how the distribution is to take place. The Commission has
added in its regulations the word “immediate”.

For years grazings committees have managed finance in a workable, business-like fashion.
Income generated from anything, such as resumption of land, schemes for development or
through managing agri-environment schemes, is put in the bank. As in any business,
expenditure on carrying out maintenance or improvements is deducted before any profit is
disbursed to shareholders. If a grazings committee was expected to take all income and pay it
out as dividends to shareholders before deducting expenditure, only to then have to recover
from all shareholders their share of the expenditure, it would be a complete nonsense.

Hobbling grazings by making them produce fully audited accounts, when other similar
businesses or voluntary groups don’t, and making them run an unworkable cash-flow, that no
business would, could not have been the intention of the law, but this is what it seems the
Crofting Commission is trying to enforce, presumably at considerable public cost.

The Commission argue that it is only carrying out its interpretation of the law; but why now
and so destructively? If the Crofting Act is wrong (as much of it has proven to be) it could be
put in ‘The Crofting Law Sump’ for future rectification and the Commission could quietly
resolve the issues, rather than turning this into a public, highly-charged stand-off. If it is
enforced, grazings committees cannot comply so will resign (or be dismissed) and the grazings
will leave regulation – unless the Commission then imposes constables on all grazings.

The Commission clearly knows a lot more about regulation than I, and knows what the
consequences of this will be, but are keeping quiet about its objective. How does this fit with
the Crofting Commission Policy Plan in which it says “The Commission regards the shared
management and productive use of the common grazing to be essential for the sustainability
of crofting. To that end it will … work with crofting communities to promote the establishment
of effective grazing committees and will actively support established committees”?

The Convener of the Crofting Commission is implicated in the fracas perhaps more than a
convener ought to be, having had complaints raised against him for behaviour at one of the
grazings meetings and having turned up unannounced at the other. He came to ‘observe’
apparently. The chair would not allow him to participate as he had a conflict of interest, and it
was surely odd that he was allowed to stay at all, this being the case, and it being against the
wishes of crofters present.

The convener has been widely quoted as saying the Commission is to deliver “the express will
of Parliament”. He would do well to go back and look at the passage of the Bill that became the
2010 Act to see what the will of Parliament was. The will of Parliament is not necessarily the
letter of the law, or in this case, the Crofting Commission interpretation of it, if it is bringing
about the demise of regulated common grazings.

Patrick Krause (Chief Executive of the Scottish Crofting Federation)

Comment on the Will of Parliament

Patrick is correct to highlight the fact that the Commission are certainly not delivering “the express will of Parliament”. This is something I will return to in detail in a later blog post with a clear analysis of what the will of Parliament actually is on this issue. This should also, actually, help to spell out the letter of the law on the matter. It should be noted that to date the Crofting Commission has not given any explanation with reference to the law as to why they are taking the stance or actions that they are and have been taking.

Brian Inkster

Update – 20 June 2016: Crofting Commission flouts the will of Parliament