Tag Archives: Kangaroo court

Book Review: Set Adrift Upon the World – The Sutherland Clearances

Set Adrift Upon the World - The Sutherland ClearancesIn ‘Set Adrift Upon the World’ James Hunter masterly weaves together a fascinating account of the Sutherland Clearances. One that takes you from the Strath of Kildonan and other parts of Sutherland to battles in New Orleans via South Africa and onto the foundation of what is now the Canadian city of Winnipeg.

Along the way you are introduced to characters from the early 1800s that have a familiarity about them as their names remain in use today throughout the Highlands & Islands of Scotland. Heart wrenching accounts are given of the barbarity of evictions that left people homeless and often resulted in the death of the young or infirm shortly on the back thereof. Journeys by foot across frozen Canada conjure up images like those from the Oscar winning film ‘The Revenant’. On a lighter note the intricacies of malt whisky making are explained and we learn what Alison Watt’s favourite painting is in the collection of the National Galleries of Scotland.

The clearances were at the behest of the Marquis and Marchioness of Stafford (later to become the Duke and Duchess of Sutherland) to make way for large scale sheep farming. Those removed from the land would have the option of much smaller crofts on the fringes of the Sutherland Estate that would be unsustainable on their own without other income streams. Much indeed as crofting has become today. Many of those evicted instead moved to Caithness or further afield to Canada for the prospect of larger holdings on which to make a living.

The henchmen in the tale are James Loch, Commissioner to the Marquis of Stafford, and Patrick Sellar, Factor of the Sutherland Estate. The chapter on the trial of Patrick Sellar in the High Court on culpable homicide charges is an infuriating read for anyone concerned with the rule of law. Indeed that is a theme throughout the book where wealth and status invariably lead to injustice for others.

The book often feels more like a fictional novel rather than a factual historical account. That is the beauty of James Hunter’s approach to history and one he himself refers to as storytelling. This makes it a real page turner with you eager to know what happens next even though you know what the ending must be.

It was impossible for me to read this book without unfortunately seeing parallels to ‘The Common Clearances’ of today. That is the removal from office of Common Grazings Committees by the Crofting Commission. A body whose remit is supposedly to regulate not decimate crofting. This is currently happening with unusual regularity, in haste and on what appears to be completely unreasonable and unnecessary grounds. The Crofting Commission are today’s Marquis and Marchioness of Inverness and their henchmen are easily identifiable. Kangaroo courts, ignorance of the law, conflicts of interest, self-interest, corruption, nepotism, historical revisionism, intimidation and bullying have all been referred to as tactics used by the Crofting Commission as part of ‘The Common Clearances’. About the only difference with the Sutherland Clearances so far is the absence of fire. To think these comparisons are being made 200 years after the Sutherland Clearances is hard to fathom. Equally hard to believe is the fact that the Scottish Government of today has so far not intervened in what the Scottish Crofting Federation has referred to as a “calamity”.

As James Hunter points out, Beriah Botfield, a Tory MP, commented in 1830, that no “pursuit of prospective advantage” made it legitimate “to transgress the laws of humanity”.

Brian Inkster

N.B. This book review was written for and first appeared in Scottish Legal News and Irish Legal News.

Buy ‘Set Adrift Upon the World – The Sutherland Clearances’ at Amazon

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.