Decision of the Scottish Land Court

Calum Maclean & others (Appellants) v The Crofting Commission (Respondents)

Case reference SLC 54/16
before
Lord Minginish, Chairman, and John A Smith
21 September 2016

Note:

[1] This is an appeal by five former members of the Upper Coll Grazings Committee, Isle of Lewis, against the respondents’ decision to remove them from office under and in terms of sec 47(8) of the Crofters (Scotland) Act 1993 (“the Act” or “the 1993 Act”). The appeal is brought under sec 52A of the Act.

[2] On receipt of the appeal it was placed before the Chairman for consideration, in terms of Rule 59 of the Court’s Rules, of whether the grounds of appeal demonstrated a basis upon which the decision appealed against might realistically be expected to be changed or set aside. At that stage the Chairman formed doubts as to the Court’s jurisdiction to hear the appeal and, by his order of 19 May 2016, ordained the respondents and, if so advised, the appellants, to lodge written submissions on that question. Both parties lodged written submissions in response to that order, the appellants arguing that the Court had jurisdiction and the respondents arguing the opposite. The Court was on the point of considering its decision on the question when the respondents asked for and were given (as were the appellants, if so advised) time to lodge further submissions. Both parties have now confirmed that they are happy for the matter to be decided on the basis of their written submissions and without a formal hearing.

Legislation

Scottish Land Court Act 1993 (as amended)

1 The Land Court

(6) Without prejudice to any jurisdiction conferred on it by any other enactment or under or by virtue of an Act of the Scottish Parliament, the Land Court shall have jurisdiction to hear and determine all matters, whether of law or fact, which arise under the Crofters (Scotland) Act 1993 or the Small Landholders (Scotland) Acts 1886 to 1931 and, subject to subsection (7) below, the decision of the Land Court in anysuch case shall be final.

Crofters (Scotland) Act 1993 (as amended)

47 Appointment, etc., of grazings committee or grazings constable

(1) The crofters who share in a common grazing may from time to time, at a public meeting of which public notification has been given, appoint a grazings committee of such number as the meeting shall decide; and a person may be appointed to be a member of a grazings committee notwithstanding that he is not a crofter.

(3) If the crofters who share in a common grazing fail at any time to appoint a grazings committee, the Commission may, after making such inquiry, if any, as they may deem necessary, appoint a grazings committee, or may appoint a person to be grazings constable; and a committee or constable so appointed shall have the like powers and duties as a grazings committee appointed under subsection (1) above.

(8) If the Commission are satisfied, after making such inquiry, if any, as they may deem necessary, that any or all of the members or the clerk of a grazings committee (however appointed under this section) are not properly carrying out the duties imposed on them (or that the grazings clerk is not properly carrying out the duties imposed on him) under this Act, the Commission may remove from office any or all such members or such clerk and may appoint or provide for the appointment of other persons (whether crofters or not) in their or his place.

(9) A grazings committee shall pay such annual remuneration to the grazings clerk as they may determine; and they may recover from the crofters sharing in the common grazing all expenditure incurred by them in paying such remuneration.

52A Appeal to Land Court: general

(1) An appeal shall lie to the Land Court, on one or more of the grounds mentioned in subsection (3) below, against –

(a) any decision, determination or direction of, or

(b) the imposition of a condition by,

the Commission on an application made to them under this Act.

(2) The appeal –

(a) is to be made at the instance of the applicant or of any person with an interest in the application, and

(b) must be brought within 42 days after the Commission dispose of the application.

53 Jurisdictional provisions

(1) Without prejudice to any jurisdiction exercisable by it under any enactment, the Land Court shall have power to determine, either on the application of any person having an interest or on a reference made to it by the Commission, any question of fact or law arising under this Act including, without prejudice to the said generality –

(a) the question whether any holding is a croft;

(b) the question who is the tenant of any croft;

(c) any question as to the boundaries of a croft or of any pasture or grazing land a right in which forms part of a croft;

(d) the question whether any land is or forms part of a common pasture or grazing to which this Act applies;

(e) the question –

(i) whether any of the grounds mentioned in subsection (2A) of section 50 of this Act as grounds for refusing consent applied for under subsection (1) of that section is made out, or;

(ii) whether conditions subject to which any such consent is given are reasonable.

Provided that the Land Court shall not have power under this subsection to determine –

(i) any question of a kind reserved by this Act to a court other than the Land Court;

(ia) any question that may be raised under section 14(1) of the 2010 Act (including a question that could have been raised under that section had an application been made before the end of the period mentioned in section 12(5) of that Act);

(ii) (other than on a reference made to it by the Commission) any question arising by virtue of an application to the Commission under this Act; or

(iii) any other question (other than a question of law), if it is a question decided by the Scottish Ministers or the Commission in the discharge of any of their respective functions under this Act.

Authorities

Crofters Commission v Gunn 1990 SLCR 36
Crofters Commission v Westminster (Liverpool) Trust Co & Ors 2000 SLCR 115
Hughson v Sumburgh Co Ltd 1936 SLCR 48
Konig v Germany (1978) 2 EHRR 170
MacKinnon v Duke of Argyll 1947 SLCR 35
Pepper v Hart [1993] AC 593
Ringeisen v Austria (No 1) (1971) 1 EHRR 455
Stran Greek Refineries and Ors v Greece (1994) 19 EHRR 293

Texts

Hon Lord Reed & Professor Murdoch, Human Rights Law in Scotland, 3rd ed. (2008)

Background

[3] What caused the Chairman’s doubts was whether the decision appealed against was a decision of the Commission “on an application made to them under [the Act]”, in terms of sec 52A(1). It is necessary, therefore, to consider how this whole matter was initiated.

[4] On 29 June 2015 Mr Ivor Matheson, one of the shareholders in the common grazings, filled in and submitted to the Commission a form headed “COMMON GRAZINGS REQUEST: SECTION 47(8) INQUIRY”. This generic form is provided by the Commission for use where someone wants them to conduct an inquiry as to whether any or all of the members of a grazings committee are properly carrying out the duties imposed upon them under the Act. It is a short (two sides of A4) and skeletal form. It quotes sec 47(8), it has a section for the name address and contact details of the person completing it and then a section for the reasons for the request to be stated which is preceded by the following wording:

1 DETAILS OF REQUEST FOR INQUIRY

Please provide details, including dates, of the reasons why you consider the Grazings Committee/Clerk are not properly carrying out the duties imposed upon them under the Act.

It would be helpful if you could provide any documents/evidence of any action you have taken to date, to resolve the situation.”

[5] The form is then to be signed and dated and the address to which it is to be sent is provided. Although the part quoted is introduced with the numeral 1, there is no part 2.

[6] On 9 July 2015 Mr Kenneth MacLeod, another of the shareholders, filled in and submitted a similar, but not identical, form. The way in which it differed from Mr Matheson’s was that it contained a little more information including the following statement “Once we receive the form we will consider whether it is appropriate to initiate an inquiry under these provisions”.

[7] In the space for reasons for requesting an inquiry Mr Matheson and Mr MacLeod listed various grievances but made no request for any remedy beyond an inquiry. In particular they did not ask the Commission to remove the committee from office.

Submissions

For the respondents

[8] The respondents’ submissions were prepared by Mr David Findlay, their in-house solicitor.

[9] His starting point was the same point as had caused the Chairman’s doubts: that the respondents’ decision had not been made “on an application made to them under [the] Act”. Instead it had followed upon an inquiry under sec 47(8). That had been instigated by the completion of the foresaid request forms. The purpose of these forms was to facilitate the commencement of an inquiry, should the respondents, in the exercise of the discretion conferred on them by that subsection, decide to do so. The subsection made no reference to an “application”. It was up to the respondents to decide if an inquiry should be carried out. The exercise of that discretion did not constitute the making of a decision granting or refusing an application. Even if we were to hold that a request for an inquiry was an application, there was only an indirect connection between that application and the respondents’ eventual decision to remove the appellants from office, whereas in terms of sec 52A(1) there was a strong connection between the right to appeal and the right to make an application for a particular decision affecting the applicant’s private rights.

[10] In Mr Findlay’s submission the Crofting Reform etc. Act 2007 (“the 2007 Act”, which introduced sec 52A into the 1993 Act) fell short of creating a general right of appeal to this court from all Commission decisions and administrative acts, such as removing members of a grazings committee from office under sec 47(8). The Commission had a range of responsibilities falling into three broad categories; (a) deciding applications directly affecting an individual’s interests or rights, (b) administrative functions, such as regulating the management of common grazings, maintaining the Register of Crofts and devising and managing township reorganisation schemes, and (c) policy functions, such as in the development of a policy plan.

[11] It was very significant that, in addition to sec 52A, the 1993 Act made specific provision for other rights of appeal, such as sec 23(6) (landlord’s right to apply to the Land Court for a variation of the terms and conditions of let fixed by the Commission), sec 26K(1) (appeal against a decision of the Commission that the duties of a crofter or owner-occupier crofter were not being complied with), sec 26K(3) (appeal against a decision terminating a crofter’s tenancy or directing an owner-occupier crofter to submit proposals for the letting of his croft) and sec 38A (appeals against a township reorganisation scheme prepared by the Commission). Parliament had considered it appropriate to make discrete provision for situations such as these which were not covered by sec 52A and which related to the Commission’s administrative functions, such as township reorganisation or making findings of breach of duty. In those circumstances, for the Court to have jurisdiction over this matter, there would have to be similar discrete provision in the legislation in relation to sec 47 but there was not. That made clear that the Court had no jurisdiction over this matter.

[12] These discrete provisions for situations outwith sec 52A included provisions as to how the appeals could be disposed of; for example, sec 38A(3), to do with reorganisation schemes. It was doubtful how well suited the disposal provisions of sec 52A(4) were in the current situation. This was another pointer away from this case being covered by sec 52A.

[13] Section 52A had been enacted in response to European Convention of Human Rights (“ECHR”) concerns about the Commission’s decision-making powers in situations involving the determination of civil rights and obligations; Article 6 had been thought to require a right of appeal. But that requirement did not extend to situations such as the present, where individuals’ private rights and obligations were not engaged. In particular, the fact that the Grazings Clerk was paid was not sufficient to engage such rights. What he was paid was such remuneration as the Committee determined (sec 47(9)) and there was no continuing right to receive any remuneration at all.

[14] Legal effect had to be given to the express wording of the statute. The wording was not ambiguous or obscure, nor did it lead to absurd results so there was no justification for going behind it to discover legislative intent in a Pepper v Hart exercise. The scheme of the Act, with a general but not all-embracing right of appeal under sec 52A and bespoke appeal provisions for certain other situations, was perfectly workable. To the extent that particular decisions made by the respondents were not appealable under the Act, they were amenable to judicial review. That would apply in the present case. So the appellants were not left without a remedy, even if it was a less convenient remedy than appealing to this court.

[15] Mr Findlay then dealt with sec 53 of the Act which provides, broadly, that this court has power to determine any question of fact or law arising under the Act. He pointed out that, although this is a wide jurisdiction, it is qualified by a proviso which has as one of its exclusions “any question arising by virtue of an application to the Commission under this Act”. Mr Findlay made two points in relation to this; firstly that it reinforced his interpretation of the word “application” in sec 52A and, secondly, that the legislative intention behind sec 53 was to confer jurisdiction on this court when a question of fact or law was still open and required to be determined. What sec 53 did not do was create a means by which decisions already made by the Commission could be challenged. It did not confer on us a power to reduce Commission decisions. Reference was made to Crofters Commission v Westminster (Liverpool) Trust Co & Ors, in which the Court, in holding that it had no jurisdiction to review the merits of an apportionment order, said:

“Once an order has been granted, and acted upon, the question of setting it aside raises issues which go beyond the simple matter of whether it should have been granted in the first place. The fact that this Court does not have a jurisdiction in this area is not an oversight by Parliament. On the contrary, section 53 recognises that matters of review of decisions of administrative bodies raise issues which are outwith the special area of expertise of the Land Court.”

[16] In summary, where the Commission made a decision which was not susceptible to appeal under sec 52A or the other, bespoke, appeal provisions of the Act, the only means by which it could be challenged was by judicial review in the Court of Session: sec 53 did not provide an alternative.

For the appellants

[17] The appellants’ submissions have been drafted by Mr Robert Sutherland, advocate. After setting out the history of the respondents’ present power to remove members of a grazing committee from office and commenting generally on the various roles of the Commission, which he characterised as regulatory, administrative and policy-making (the present case being an example of its regulatory function), he took as his starting point on the question of jurisdiction sec 1(6) of the Scottish Land Court Act 1993 although we do not understand him to be saying that it adds anything to our jurisdiction so far as challenges to Commission decisions under the Crofters (Scotland) Act 1993 Act are concerned. Nevertheless, for completeness, we have set out its terms above. The rest of his submissions were confined to secs 52A and sec 53.

[18] Under the former, the question was whether the use of the word “application” restricted the scope of the section to situations where the Act specifies that an application may be made to the Commission or whether it was wide enough to cover any situation where the Commission have before them any request to exercise their regulatory functions. In favour of a wide interpretation, he referred to a Scottish Parliament Information Centre briefing on the 2009 Crofting Reform (Scotland) Bill (10/1, 8 January 2010) which describes the right of appeal under sec 52A as “a right of appeal against any decision, determination or direction of the Commission” without reference to the need for any particular procedural trigger.

[19] Mr Sutherland also argued that sec 2D of the Act, which provides that the Commission must have regard to any plan approved or published under sec 2C and that this court may have regard to any such plan when considering an appeal against “(a) any decision, determination or direction of, or (b) the imposition of a condition by, the Commission on an application made to them under [the] Act” (being the same wording as appears in sec 52A(1)) was relevant. He submitted that this extended the Court’s jurisdiction to cover policy aspects of the Commission’s actions and whether the policy has been properly applied.

[20] Mr Sutherland submitted that the Court’s jurisdiction under sec 52A was in any event a broad, supervisory one, in the nature of a judicial review. Prior to its enactment a challenge to the actions of the Commission would most likely have been made by invoking the Court of Session’s inherent supervisory jurisdiction. Section 52A removed the need for that. Its purpose was to confer on the Land Court the supervisory jurisdiction over the Commission which would otherwise be vested in the Court of Session alone. It was meant to cover the whole regulatory functions of the Commission, which indicated that the word “application” was not to be given a narrow, technical meaning.

[21] Mr Sutherland submitted that the history of the power to remove members of a grazings committee from office was also relevant. It had first been introduced by sec 24(4) of the Small Landholders (Scotland) Act 1911 and it was then vested in the newly created Land Court. The legislation contained no procedural provisions indicating the circumstances in which it was to be exercised but there were examples in the cases of it being invoked by an application to the Court by holders of rights in the common grazings; Hughson v Sumburgh Co Ltd, MacKinnon v Duke of Argyll. In 1955 the power had been transferred to the Commission by sec 24(8) of the Crofters (Scotland) Act of that year. It was exerciseable only where the Commission were satisfied that the members of the committee were not carrying out their duties properly. Whether they were doing so was a mixed question of fact and law. This historical context supported the view that in broadening the Court’s jurisdiction to a supervisory one, the intention (in 2007) had not been to restrict the new appeal provisions to cases where the 1993 Act specifies that a person may make an application to the Commission.

[22] A further reason for interpreting sec 52A widely was that the decision of the respondents engaged the Article 6 ECHR rights of the appellants, in the determination of their civil rights and obligations, to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The concept of “civil rights and obligations” had an autonomous interpretation in ECHR case law and it was not necessary for both parties to proceedings to be private parties; Ringeisen v Austria (para 94). Domestic characterisation of a dispute as being in the public law sphere carried relatively little weight; it was the substantive character of the right that mattered; (paras 89-90, 92), Stran Greek Refineries and Ors v Greece (para 39). The fact that the functions of an administrative or regulatory body were involved was not determinative of the issue; in other words, did not remove it from the ambit of Article 6.

[23] In the present case, the ground for removal of the appellants from office was that they had failed to carry out their duties. That impugned their reputation and therefore engaged their civil rights. That distinguished them from the position of trustees performing a public office; it involved them in a private capacity, as individuals. Their right to perform their functions, administering property and other interests as committee members, was also a civil right. In the case of the first appellant, removal from his post as Grazings Clerk interfered with his right to remuneration, which was also a civil right. In those circumstances, sec 52A was to be interpreted broadly, so as to give the appellants the right to a fair and public hearing by an impartial and independent tribunal established by law.

[24] Turning to sec 53(1), in terms of para (iii) of the proviso to the section the Court had jurisdiction to determine a question of law if it was one decided by the Commission in the discharge of any of their functions under the Act. Questions of fact were excluded (Crofters Commission v Gunn, page 41) but not questions of law. Crofters Commission v Westminster (Liverpool) Trust Co & Ors was distinguishable on that basis: it had to do with the agricultural aspects of a decision made by the Commission. The language of the proviso did not limit the Court’s jurisdiction to questions of law which remained open (undecided) but referred specifically to questions decided by the Commission in the discharge of any of their functions under the Act. Questions of law so decided by the Commission were therefore within the ambit of sec 53(1).

[25] The decision that the appellants were not carrying out their duties was a question of law decided by the Commission in the exercise of one of their functions under the Act. In the event that we decided that we had no jurisdiction under sec 52A we should hold that we had jurisdiction under sec 53(1).

Discussion

[26] The first thing to be said is that the Act contains no express or specific or discrete right of appeal against a decision under sec 47(8). If it did, there would be no doubt about jurisdiction, nor any need to rely on sec 52A, which failing, sec 53. This may be thought to be a striking omission when the sanction of removal from office is so serious and the Act contains several other discrete appeal procedures. Thus under sec 26A of the Act, dealing with reports from grazings committees or certain other persons to the Commission that a crofter or owner-occupier crofter is not complying with certain prescribed duties, the Commission must investigate the matter (sec 26A(4)) unless they consider the complaint to be frivolous or vexatious (sec 26A(5)). Where they investigate a matter and decide that a duty is not being complied with they must, unless there is good reason not to, take enforcement proceedings in terms of secs 26C to 26J, culminating, if all else fails, in the termination of the crofter’s tenancy or the ordering of letting proposals for the owner-occupier crofter’s croft, with every decision along the line being appealable to this court under sec 26K. The position relating to grazing committees could not be more different. There is no provision for the making of complaints or the submission of information to the Commission, no duty on the Commission to investigate any information which does come their way, no compulsion on the Commission to take particular steps if the they find duties have not been discharged and no right of appeal against such a finding if it is made nor against the sanction of removal from office if imposed.

[27] It is because there is no such bespoke right of appeal that this appeal is brought under sec 52A, which was probably intended to give a right of appeal against any decision, determination, direction or imposition of a condition by the Commission where none of the bespoke appeal provisions apply. The question is whether the terms of the section are wide enough to achieve that result.

[28] In answering that, the starting point is whether the requests made by Mr Matheson and Mr MacLeod were applications made under the 1993 Act. In our opinion they were not because there is no provision for such an application in the Act. The Act contains many provisions for applications to the Commission, usually for consent to something (e.g. assignation of a tenancy under sec 8, division of a croft under sec 9 and decrofting of croft land under secs 24 and 25). But it contains no provision whereby anyone can apply to the Commission for an inquiry into the functioning of a grazings committee. It does not, of course, prohibit such a request – as we have seen the Commission have produced a form for the purpose – but when such a request is made it is not an application under the Act.

[29] Mr Sutherland argued that sec 52A had to be given a wide interpretation for ECHR reasons. The first question which arises here is whether Article 6 of the Convention is engaged. Only if it is do we get to the second question, which is whether it is possible to interpret sec 52A in a way that gives effect to it.

[30] This is not a private law dispute between individuals but a dispute between individuals and an administrative and regulatory body. As such it has administrative and public law elements. Deciding whether such cases involve the determination of civil rights and obligations and therefore engage Article 6 is often problematic, as the learned authors Hon Lord Reed and Professor Murdoch point out at para 5.13 of their textbook on Human Rights Law in Scotland. In the ensuing discussion the learned authors identify (at para 5.14) four conditions which must be satisfied before a case can be said to involve a determination of civil rights and obligations. These are: (i) there must be a genuine claim or dispute, (ii) the dispute must relate to a right or obligation in domestic law, (iii) the right must be broadly civil in character, and (iv) the outcome of the dispute must be decisive for the right or obligation.

[31] The dispute here involves a challenge by the appellants to the respondents’ decision to remove them from office. The right involved is their right to continue in office. Whilst we note that the right to stand for election and to sit in the legislature is excluded from the category of civil rights (Reed and Murdoch, para 5.24), we are prepared to hold that, having been elected to office, the appellants had a right to serve out their terms. But it was not an unqualified right. Domestic law, in the form of sec 47(8), qualifies it by giving the respondents power to remove them from office if the respondents are satisfied that they are not carrying out their duties properly. When that is done there is no right to continue in office. The Article 6 right to a fair and public hearing by an independent and impartial tribunal established by law is not an absolute right in and of itself. It only comes into play where another substantive right is in issue. Because of the qualification on the substantive right in issue in this case we do not consider that it can be said that the dispute relates to a right or obligation recognised in domestic law.

[32] Nor do we accept Mr Sutherland’s submission that there were rights to reputation or property involved, even in the case of Mr MacLean, the remunerated Grazings Clerk. Mr MacLean’s right to remuneration only subsisted while he remained in office, so it is subsumed in the larger question of his entitlement to continue in office. So far as a right to reputation is concerned, although their removal from office does, of course, have serious implications for the appellants’ reputations, that is not what the case is about. The case is about whether they were lawfully removed from office. If they were, they have to accept the consequences. If not, there may be remedies available to them by way of apology on the part of the respondents or resort to the ordinary courts although these matters too are not straightforward where a statutory body exercising a statutory function is involved.

[33] For the foregoing reasons we have decided that Article 6 of ECHR is not engaged. The question whether we could interpret sec 52A widely enough to give effect to it therefore does not arise. It is, nevertheless, worth noting a result which would follow from the broad interpretation Mr Sutherland invites us to give the word “application” for the purposes of sec 52A. It would allow for an appeal by persons in the position of the present appellants because the decision to remove them was being treated as having resulted from an application under the Act. But such an application is not the only means by which an inquiry into the conduct of a grazings committee culminating in the removal from office of its members can be initiated. The Commission might equally well be moved to carry out an inquiry because of things appearing in the local press or information reported to the Commission or coming to its attention in any of a number of other ways. If an inquiry initiated in these circumstances led to removal from office of the members there would be no appeal under sec 52A because there would be no question of the decision appealed against having been made on an application under the Act. It does not seem likely to us that Parliament intended the existence of a right of appeal to depend on the means by which the inquiry came to be conducted.

[34] For the foregoing reasons, we do not consider that sec 52A covers this appeal. What, then, of sec 53(1)?

[35] In our view it would be quite wrong – where there are other express provisions in the Act providing various appeal routes – to interpret sec 53(1) so as to create another means of challenging a decision of the Commission. Mr Sutherland is quite right to say that para (iii) of the proviso does not exclude from our jurisdiction questions of law decided by the Commission. That acknowledges not only the fact that such decisions may be set aside on appeal but the more fundamental point that simply because the Commission decides a question of law in a particular way in the discharge of its duties that does not preclude the same question being answered differently by the Court should it come before it in a competent process. What it does not do, in our opinion, is create that competent process.

[36] As Mr Sutherland pointed out, the case of The Crofters Commission v Westminster (Liverpool) Trust Co & Ors, supra, is not directly in point, since it concerned a question of fact rather than law. However, we would observe that when the Court grappled with what was then para (ii) of the proviso to sec 53(1) in that case it was doing so in the absence of appeal provisions such as were introduced by the 2007 Act in the form of sec 52A and by the Crofting Reform (Scotland) Act 2010 in the form of sec 26K. We consider that the existence of the new appeal regime makes it very much easier to conclude that para (iii) is not intended to confer on the Court an additional appellate jurisdiction.

[37] It is also worth looking at what adopting Mr Sutherland’s interpretation would involve. The form of challenge which it would permit would not be subject to any time limit, all the Court could do would be to answer the question put to it and, where the Court answered the question differently from the Commission, there would be no mechanism for compelling the Commission to give effect to the law as decided by the Court. In our view, therefore, the attempt to bring that sort of challenge to Commission decisions within the jurisdiction of the Court under sec 53(1) not only subverts the scheme of the Act, which provides appeal rights and procedures where a right of appeal in intended, but is unworkable.

[38] Finally, in relation to sec 53(1), in the present case, the question whether the appellants had failed in their duties is a mixed question of fact and law, not just a question of law, and is, therefore, excluded for that reason in any event.

[39] For all of these reasons we hold that sec 53(1) does not apply.

Decision

[40] Our conclusion is, therefore, that the 1993 Act provides no right of appeal to this court (or any other) against a decision to remove office-bearers under sec 47(8) and that, consequently, we do not have jurisdiction to hear this appeal. It is a conclusion we reach with regret because we doubt whether it was intended when the 2007 and 2010 reforms were enacted. The need for appeal provisions for sec 47(8) seems to have gone unnoticed. It will be of little consolation to the appellants that the omission can be put right in the next round of crofting law reform. In the meantime, however, it appears that their only recourse is an application to the supervisory jurisdiction of the Court of Session by way of judicial review.

Expenses

[41] Following our usual procedure, we have ordained parties to lodge motions and submissions on expenses within 21 days.