The Scottish Government should exercise caution in removing the Crofting Commission from the list of tribunals covered by the Tribunals (Scotland) Act 2014, a prominent crofting lawyer has urged.
In a submission in response to a Government proposal, Brian Inkster of Inksters Solicitors states that such a move may be premature pending the outcome of an investigation into the Crofting Commission’s decisions to remove grazings committees from office.
Yesterday the Faculty of Advocates came out in support of the change, on the basis that while it operate in some respects similarly to a tribunal, it had multiple functions in addition to acting as a judicial body (click here for report).
Mr Inkster however commented: “The Faculty of Advocates are perhaps at a disadvantage in not seeing at the coalface how the Crofting Commission are actually handling their decision making process and aspects thereof that make them very much a tribunal, but one that appears to be out of control. This is certainly the case with regard to the recent removal by the Crofting Commission from office of three grazings committees.”
In his own submission Mr Inkster argued: “Whilst it is stated that it is the 'Scottish ministers' view that the Crofting Commission is not a tribunal in the true sense of the word', recent events would suggest that the Crofting Commission is in many respects acting as a tribunal but without the procedures, checks and balances that one would normally associate with a tribunal."
With the Commission having removed three grazings committees from office since December 2015 under its power in s 47(8) of the Crofters (Scotland) Act 1993, leading to allegations of abuse of power and calls for an investigation of the Commission, Mr Inkster submitted that in taking such action the Crofting Commission was acting as a tribunal, but without proper procedures as would be expected from a tribunal, putting it in breach of article 6(1) of the European Convention of Human Rights. Indeed, he suggested, "the said s 47(8) is not ECHR compliant".
Mr Inkster continued: "More worrying still is that the Crofting Commission are currently arguing that an appeal of a decision made by it under the said s 47(8) cannot be brought before the Scottish Land Court. If this is correct (and a decision on this procedural technicality is currently awaited from the Scottish Land Court) then the only right of redress may be judicial review via the Court of Session.
"Given all of this it would, in my view, be very unwise to remove at this stage reference to the Crofting Commission from the Tribunals (Scotland) Act 2014. It may well be that Scottish ministers in considering the alleged abuse of power within the Crofting Commission might want to consider the possible benefits of utilising the Tribunals (Scotland) Act 2014 to remedy some of the issues and problems actually highlighted above. Of course there may be other ways of achieving the same result.
"In all the circumstances it is considered premature, at the moment, for the Tribunals (Scotland) Act 2014 to be amended in any way that would exclude the Crofting Commission therefrom.”