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.
Surely, if commissioners acting as public officers in a public office acted knowingly illegally – and it is pretty clear from the above that they did – then that is an offence. What is the Procurator Fiscal doing about this?
The behaviour of the commission is more mystifying with every detail that is uncovered. But underlying what is the true motive. A conspiracy theory looks more and more plausible.
It looks to me like a combination of incompetence and arrogance – having made a mistake, they feel they cannot admit error and back down.
Congratulations for sterling work. This latest revelation eclipses all that came before.
The summation of your recent posts highlights the most shocking abuse of power you have yet uncovered. You have established: 1. Commissioners knew they were acting illegally when they imposed grazing constables. 2. The Crofting Commission is currently using public money arguing in the Scottish Land Court that the Upper Coll appeal shouldn’t be allowed to be heard. 3. The appeal is against the removal of the grazing committee which led to the imposition of a grazing constable. 4. In other words the Crofting Commission is fighting tooth and nail to prevent its actions, which we now know it knew to be illegal. to be declared as such by the Land Court. Because it did not expect to be in this position.
We know the Crofting Commission deliberately went ahead with removing whole committees and imposing grazing constables in the full knowledge it was illegal. We know they believed there was nothing in the legislation would allow an appeal. In fact the Mangersta committee were told they had no right of appeal against the removal of the committee and imposition of a grazing constable.
So add all this up together and it looks like they went ahead against the advice from their Chief Executive because they believed no-one would be able to challenge them or stop them. This is completely shocking abuse of power by a public body. And why did the Chief Executive not refuse to follow orders and call in the support of Government for her position? The Minister has powers to direct a public body and to remove members. They have ultimate control of public bodies. Why did she not ask the Minister to use those powers? Why has the Minister not already used those powers?
It is also extraordinary the Commission has not stood down the Upper Coll Constable while the Land Court appeal is considered as the whole matter is sub-judice. But they have allowed him to carry on. As it has now been proven the Commission knows his position is illegal, he must be immediately removed from his position and all of his actings cancelled.
The Minister has an urgent duty to act decisively on this now. Public trust in a public body is seriously eroded. Thousands and thousands of public money has been wasted on this whole episode and all its ramifications including special meetings and Land Court action and loads of staff time. It must mean essential work the Commission should of been doing has not been done.
The Commissioners and the Chief Executive have a duty as a public body to act prudently and efficiently and manage and reduce risk. But the Commission has deliberately exposed the Commission to enormous risk. And completely unacceptable waste of public money and erosion of public trust. There is a very strong argument all the Commissioners supported this action must now be removed from public office. And if that is all of them so be it. At the very least the Convener who led them into such disaster must go. Why are Commissioners not calling for his removal? Then they might be able to rescue something before they thankfully go next year. And good riddance.