A crofting law expert has called for a ‘focused and detailed investigation’ into how and why the Crofting Commission handled the Mangersta situation in the manner that they did.
Brian Inkster, of Inkster Solicitors, welcomed the Commission’s U-turn on their stance in respect of Mangersta Common Grazings.
They no longer appear to be insisting that funds held by the grazings committee must be paid out to individual shareholders, the grazings constable has stepped down and the shareholders are free to appoint a new committee.
Mr Inkster, who represented members of the grazings committee who were removed from office by the Commission commented: “Common sense and an apparent recognition of the actual law on the matter have at last prevailed. The Crofting Commission has been at sea on the management of common grazings funds for some time. No one could fathom out how or why they dreamt up a policy that had no basis whatsoever in law or simple logic.
“This U-turn is great news for the shareholders in the Mangersta Common Grazings and the former members of their grazings committee. It is a complete vindication of the position correctly maintained by them throughout.
“It is also good news for common grazings committees throughout the crofting counties who should no longer fear the Crofting Commission insisting on them paying out monies that their shareholders wish to see applied for the benefit of township improvements.
“However, serious questions must now be asked by the Scottish Government about the handling of the entire matter by the Crofting Commission.
“There has been as good an admission as any that the Crofting Commission failed the shareholders of Mangersta. In so doing they failed in their regulatory duties and should be made to account for those failings.”
Mr Inkster said that these were questions that Scottish Ministers could no longer ignore following the recent U-turn by the Crofting Commission.
“The Scottish Ministers must comment properly on them and, if necessary, take appropriate action under and in terms of the Crofters (Scotland) Act 1993,” he said.
“The only way that they will be able to properly pass such comment and take such action is following a focused and detailed investigation into how and why the Crofting Commission handled the Mangersta situation in the manner that they did.
“That case is no longer ongoing and is not subject to court proceedings. The Crofting Commission therefore cannot hide from, prevent or delay an investigation specifically focussed thereon. Fergus Ewing MSP, the Cabinet Secretary responsible for crofting, must now instigate just such an investigation for the future stability, survival and sustainability of crofting in Scotland.”
Mr Inkster is of the view that the Crofting Commission and their Commissioners are answerable to the Scottish Government under and in terms of the Crofters (Scotland) Act 1993 which provides that:-
• The Crofting Commission shall discharge their functions in accordance with such directions of a general or specific character as may from time to time be given to them in writing by the Scottish Ministers. [Section 1(3)]
• The Scottish Ministers may (a) confer functions on; (b) remove functions from; (c) otherwise modify functions of, the Crofting Commission, where they consider it appropriate to do so to ensure that the Crofting Commission carry out their functions efficiently and effectively. [Section 2A(1) and (2)]
• In so doing Scottish Ministers may modify any enactment (including the 1993 Act). [Section 2A(3)(b)]
• The Scottish Ministers may remove a member of the Crofting Commission from office if satisfied that the member is unable or unfit to exercise the functions of a member or is unsuitable to continue as a member. [Paragraph 9(1)(e) of Schedule 1]
• The Crofting Commission must provide the Scottish Ministers with such information in respect of the exercise, or proposed exercise, of the Crofting Commission’s functions as the Scottish Ministers may, from time to time, require. [Paragraph 20 of Schedule 1]
Mr Inkster is of the opinion that an inquiry is necessary to answer questions such as:-
• Why did the Crofting Commission reopen a case investigated, resolved and closed by the Crofters Commission?
• On whose insistence and on what evidence was the case reopened?
• Was there undeclared conflicts of interest by Crofting Commissioners involved in the matter?
• What legal advice was sought by the Crofting Commission on the matter? From whom, when, on whose insistence and on what basis? Was such legal advice followed?
• Why were inconsistencies applied by the Crofting Commission to the handling of this case compared to others being dealt with contemporaneously?
• Why was the removal from office of the Grazings Committee at the time deemed justifiable and necessary?
• Why did the Crofting Commission ignore and not respond to the legal position put forward on behalf of members of the dismissed Grazings Committee?
• Why did the Crofting Commission refuse to revisit their decision (saying that they could not in law do so) but ultimately did just that?
• Why did the Crofting Commission ignore their own guidelines on the investigation of questions of financial impropriety which they had stated were a matter for the civil or criminal courts?
• Why did the Crofting Commission purport to appoint a Grazings Constable when there is no basis in law to do so and then sought to extend that appointment, again when there is no basis in law to do so?
• Why was the particular Grazings Constable in question appointed, on what basis and was a conflict of interest declared by any Commissioners relative to that appointment?
• Was the Grazings Constable really independent and impartial or was he provided with instructions for the discharge of his appointment by the Crofting Commission?
• Why did the Convener of the Crofting Commission, Colin Kennedy, attend a meeting of the shareholders of the Mangersta Common Grazings and refuse to leave when a conflict of interest had been declared by him?
• Why and on what basis in law, when shareholders questioned the legality of the Commissioners proposals at that meeting, were they told that if all shareholders did not accept them, the Commission would not allow shareholders to reform a committee?
• Did the Crofting Commission’s handling of the matter result in the resignation of William Swann as a Commissioner?
• Why did the Crofting Commission issue guidelines on the management of grazings funds, then delete those guidelines and claim that they had never said what they had said in them?
• Why did the Crofting Commission insist that funds had to be paid out by Grazings Clerks to shareholders “immediately” when Roseanna Cunningham MSP, on behalf of the Scottish Government, clarified on 21 June 2016 that “the Crofters (Scotland) Act 1993 does not require the immediate disbursement of funds by a grazings committee”?
• Why did the Crofting Commission insist on common grazings funds being managed in a way that defied logic and was not set out anywhere in law?
• Why did the Crofting Commission not take cognisance of the statement by Minister of State for Scotland, Lord Kirkhill, in the House of Lords on 6 April 1976 regarding the Crofting Reform (Scotland) Bill that “there would seem to be nothing [in the bill] to prevent a voluntary arrangement being made whereby any crofter’s share would be diverted to the grazings committee”?