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