Crofting expert highlights ‘abuse of power’ in Crofting Commission

Crofting Law expert, Brian Inkster, has commented on the publicity from last week surrounding a Common Grazings Committee being summarily removed from office by the Crofting Commission.

He said this “highlights a worrying trend concerning alleged abuse of power within the Crofting Commission”. Mr Inkster has pointed out that it is not the first time that he has heard actions taken by the Crofting Commission referred to as being “dictatorial, vindictive and unjustified”.

His comments follow the removal by the Crofting Commission of the Upper Coll Common Grazings Committee on the Isle of Lewis. Action that could have ramifications for crofters from Shetland to Argyle.

The removal was apparently due to the failure of the Grazings Committee to produce “audited” accounts. Instead their accountants had produced unaudited financial statements. But rather than request further information on the back of receiving these accounts the Crofting Commission chose, instead, to summarily remove the Grazings Committee from office.

Whilst guidance had been sought by the accountants from the Crofting Commission as to what they wanted with regard to audited accounts they were apparently advised that this was a matter between them and the Grazings Committee.

The Crofting Commission’s own Common Grazings Regulations Template does not promote the need for audited accounts and indeed their guidance on financial matters states: “A grazing committee shall undertake an annual independent scrutiny of their financial accounts. The committee should satisfy themselves that the level of scrutiny is proportionate to the value of monetary transactions.”

Whilst they acknowledge that “historically, the term ‘audit’ has been used loosely to describe any external scrutiny of account” they take the view that “if the term ‘audit’ is used in the Grazings Regulations, the accounts must be audited by a registered auditor.”

Mr Inkster said: “Surely, if financial statements prepared by accountants were produced that did not meet whatever requirements the Crofting Commission actually had with regard to an ‘audit’ they should have sought further information/detail as necessary rather than summarily removing the Grazings Committee from office?”

It has also been pointed out by Mr Inkster that the Crofting Commission Guidance on Common Grazings Regulations 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.”

Mr Inkster’s view is that if there is any question of alleged financial impropriety, something which is not clear, then it would be for any aggrieved shareholders to take civil and/or criminal action and perhaps only on the conclusion thereof, and depending upon the outcome, for the Crofting Commission to consider the removal of some or all of the committee and/or clerk.

Mr Inkster added that “on any view, therefore, the actions of the Crofting Commission in this instance are extraordinary and it should be of grave concern to all crofters and to the Scottish government that the Crofting Regulator is behaving in this way.

He concluded: “On any reading of the situation it would appear that, at least without further inquiry to satisfy themselves, the Crofting Commission in coming to the decision to remove the Upper Coll Common Grazings Committee from office arguably took a decision so unreasonable that no reasonable person acting reasonably could have made it.

“This is the Wednesbury test (Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223) and that decision could therefore be open for judicial review.”

“If this decision was a correct and proper one to make there must be countless other grazings committees in breach of their own regulations whom the Crofting Commission should also now be seeking to remove from office.

“I would strongly suggest therefore that the Crofting Commission should, in all the circumstances, review this extraordinary decision. If they fail to do so the Scottish government should maybe question the behaviour involved and perhaps even consider removing the commissioners responsible as “unsuitable to continue” as members. A power that the Scottish Ministers have at their disposal under the Crofters (Scotland) Act 1993. That may be seen by many as a more reasonable and justified use of power than that employed by the Crofting Commission.”