The Crofting Commission should no longer have the status of a tribunal under the Tribunals (Scotland) Act 2014, according to the Faculty of Advocates.
Faculty has come out in favour of a Scottish Government proposal to remove the Commission from the list of tribunals covered by the Act.
The Commission was afforded tribunal status at a time when it was under the supervisory remit of the Administrative Justice & Tribunals Council (AJTC). The AJTC was controversially abolished in 2013 as part of the UK Government's cull of quangos, and its successor body in Scotland has not undertaken its supervisory role. Ministers propose that, in the absence of a supervisory body and because the Commission “is not a tribunal in the true sense of the word”, the 2014 Act should no longer apply to it.
However the Commission recently had to apologise to crofters at Mangersta on the Isle of Lewis for conflicting advice given to its grazings committee over a period of years.
In its comments, Faculty said: “Within the UK generally, a tribunal is now recognised as a distinct form of judicial body whose work is to adjudicate in disputes between two other parties, with the tribunal acting as an independent decision maker, separate from the machinery of administration which has an interest in the subject matter of the decision.
“The Crofting Commission is an example of an historic body which operates in a manner which has some similarities to what is commonly recognised as a tribunal, but which has a multiplicity of functions where the judicial role is secondary… The Commission can have some of the characteristics of a legislature or an executive body as well as a judicial body. Unlike a typical tribunal, the Commission may be a party to the issue in dispute, seeking to defend its own actions.”