Monthly Archives: September 2016

Decisive Ministerial intervention in crofting crisis is now required

West Highland Free Press - 16 September 2016In a hard hitting editorial in the latest edition (16 September 2016) of the West Highland Free Press it was made clear by the editor that he considers that the Crofting Commission needs ministerial advice and direction and that Colin Kennedy’s continuing tenure as Convener must be in doubt.

I will reproduce the editorial in question here followed by some of my own thoughts on the matter

The Crofting Commission needs ministerial advice and direction

The self-created crisis within the Crofting Commission has gone past the point where it can be healed internally.  Public and decisive ministerial intervention is now required.

On the most mundane but incendiary points which lit the blaze, the Crofting Commission can be pronounced quite wrong.

Grazings committees should have the right to determine in which manner their income is spent, under the law and to the benefit of the community.

Grazings committees such as those at Upper Coll and Mangersta should not be obliged instantly to distribute funds as dividends and then reclaim the money in order to finance improvements.

Without those commonplace – and previously widely accepted – permissions, west-coast crofting in particular would suffer.

Grazings committees, which are the voluntary foundation of the system, would become almost impossible to establish.  It should be pointed out here that crofting commissioners are paid £8,600 a year for four-and-a-half days’ work a month, and the commissioner’s convener is paid £20,300 for an eight-day month.  Grazings committee member are paid nothing.

Crofting would become even less of a communal activity and even more of a private, individual enterprise.  It beggars belief that a large reason for the recent dictatorial action by the Crofting Commission was the fact that Upper Coll grazings committee made assets available to infrastructure projects which benefited not only crofters but also the wider community.

In the three years of its existence the present Crofting Commission has managed to lose three of its seven members, and its chief executive Catriona Maclean has now packed her bags and moved on to happier pastures.

By any standards, this is a failing institution.  The response of the new crofting minister, Fergus Ewing, has been inadequate.

Last month Mr Ewing wrote a private letter to the commission’s controversial chair, Colin Kennedy.  In that letter the crofting minister told Mr Kennedy that he and the Scottish Government “wholly disagreed” with the Crofting Commission’s actions and attitudes towards grazings committees.

Most importantly, Fergus Ewing wrote that as crofting minister he considers that the law “does not require the immediate disbursement or pay out of funds by a grazings committee”.

In other words, Colin Kennedy’s interpretation of crofting law had been wrong from the start.  As a result all of his subsequent actions had been, at best, invalid.

This private letter was then leaked to the veteran BBC Highland correspondent Jackie O’Brien.  It seems probable that Mr Ewing authorised the leak in order to shore up his credentials with crofters.

That also was unacceptable.  As crofting minister Mr Ewing has a duty to be open and transparent in the exercise of his responsibility.  He is not just another interested observer.

He also has a duty to the crofting community to ensure that its governing body adheres to best practice and does not trample crofters into the ground.  Colin Kennedy’s Crofting Commission is currently preparing “draft guidance” for grazings committees.  We hope that Fergus Ewing is fully involved in that exercise.  We wait to see whether that guidance will follow the Kennedy or the Ewing version of legislation.  There can be no compromise.  It is difficult to see how Mr Kennedy can emerge from the process with his £20,000 part-time post intact.

This unpleasant chain of events should not shake our belief in democracy.  We continue to believe that the entire Crofting Commission should be elected by crofters rather than composed of professional quangoteers and other government appointees.

Many hundred of crofters in large parts of the Highlands and Islands cast their votes ill-advisedly three years ago, and a lot of them will now realise that.

Thanks to the democratic system, they will have the chance to put things right at the elections next spring.  We hope that they, and the many crofters who previously chose not to vote, will take that chance.  In the long as well as the short term, the future of crofting is at stake.

View from the Crofting Law Blog

I must wholeheartedly agree with this editorial in so far as the need for “public and decisive ministerial intervention”. Indeed I suggested that in my first blog post on this sorry saga back on 25 April 2016. There have been calls since by the Crofting Federation and by crofters for the same thing. To see the West Highland Free Press support the same calls is heartening indeed and must add to the pressure on Fergus Ewing MSP, Cabinet Secretary with responsibility for crofting, to do something about it.

The jury is still out as far as I am concerned about the idea of the entire Crofting Commission being elected by crofters “rather than composed of professional quangoteers and other government appointees”. The problems at the Crofting Commission seem to lie at the door of elected commissioners or perhaps an elected commissioner. Two of the government appointees (who by all accounts were very able and capable commissioners) have resigned in recent times and have yet to be replaced.

The calibre of elected commissioners may be very much down to those willing to put themselves up for election rather than the will of the crofting electorate.

With the Crofting Commission in its current mess there is a good chance that there won’t be many level headed crofters volunteering for the task of clearing that mess up come the 2017 elections. Possibly another solution is required. Answers on the back of a postcard please to Fergus Ewing MSP.

Brian Inkster

The T-1000 Grazings ‘Constable’

T-1000 Grazings 'Constable'

No… No.

Like the T-1000 in the Terminator series Colin Souter keeps coming back for more.

I previously blogged about the exchange of views between myself and Mr Souter published at Scottish Legal News. Whilst the original topic had been Crofting VATgate, Mr Souter had turned this into an attack against me providing legal advice to Upper Coll Common Grazings (before the former committee were removed from office by the Crofting Commission).

I responded to those attacks although I had already done so elsewhere with my previous comments simply being ignored by Mr Souter as though they were never written.

Once more that is the approach adopted by Mr Souter in his latest (and last) letter published by Scottish Legal News yesterday. “Last letter” in that Scottish Legal News have not surprisingly now closed debate between me and Mr Souter through their pages.

Whist Scottish Legal News have understandably brought the debate to an end through their own pages I will continue it here as there is a need to correct the misleading statements, once more, made by Mr Souter. I will, as I have done before, quote sections of Mr Souter’s letter (in italics) with my analysis following each section:-

I note Mr Inkster has shared another article published on Scottish Legal News. I have no intention of inflicting this debate upon your readers as a series of articles but will merely address what I believe to be THE crucial point, missed from all of his recent writings.

The Common Grazings is about ALL the shareholders and NOT the Committee. When a Committee takes it upon itself to make decisions, other than those relating to the maintenance of the Common Grazings, without reference to shareholders, it loses its mandate…..and its credibility. I have never disputed the rights of any individual to seek professional legal advice, nor would I do so. The point which I hope will not escape readers attention is that the Committee, in accessing and spending money which belongs to ALL shareholders, has exceeded their authority, if it does not first seek shareholder approval for that spend. And that is the case, as shown in the Minute Book.

The former committee have always maintained that their meetings were open to all shareholders and decisions were not taken in isolation. They were recently reported as stating:-

“The constable seems unable to understand that in the spirit of openness and transparency over the years in Upper Coll, all meetings were advertised and open to all shareholders, that all decisions were taken by the majority of those attending and that all these decisions were minuted.”

I imagine that the former committee would normally have had meetings with much more than 4 shareholders in attendance (that being the number of shareholders out of a total of 42 that Mr Souter proceeded to conduct business with on Tuesday night).

Mr Souter has taken many decisions on his own account without any recourse to shareholders: obtaining the Opinion of a QC on VAT matters via the Crofting Commission; writing to HMRC querying the right of common grazings (anywhere it would seem and not just Upper Coll) to be VAT registered; writing to numerous parties including myself concerning various spurious matters with insinuations and threats; meeting with Western Isles Council over matters decided by shareholders 8 years or more ago; seeking to involve the Crown Office & Procurator Fiscal Service in undisclosed matters.

In all the accusations about shareholders not being consulted over matters has Mr Souter ever thought to actually ask shareholders whether or not they approved decisions previously made?

If any didn’t (I doubt if there would be many decisions, if any, that would fall into that category) then that would be a matter for any such aggrieved individual shareholder to pursue (if excluded illegally from a decision making process that should have legally included them).

This is not something that Mr Souter can pursue in any way on their behalf. He is deluded in the extreme if he thinks he has such power even were his appointment a legal one.

As a continuing course of conduct, failing to consult and seek approval from the wider body of shareholders serves only to undermine the relationship between the Committee and the shareholders. The resulting friction and rift that has opened up over time, can be traced back to an evident lack of willingness on the part of the Committee to consult, seek and record shareholders views to support Committee activity. My conclusion follows a simple analysis of the records of the Grazings, including the Minutes of meetings of both the Committee and of ordinary shareholders. Doubtless, Mr Inkster will challenge the validity of my conclusions. I can only say, on a factual point, that I am better positioned to comment by virtue of possessing the historical Minute Book, which is the place where you would reasonably expect such detail to be entered. Even disregarding the official Minute Book (and why would you?), there is the evidence offered by shareholders themselves at more recent shareholder meetings, confirming my own conclusion.

Again Mr Souter’s conclusions “follows a simple analysis of records” and not what the shareholders say the position actually was. His reference to “the evidence offered by shareholders themselves at more recent shareholder meetings, confirming” his “own conclusion” can immediately be dismissed on the basis that this is what 4 out of 42 shareholders may have told him. I understand that those 4 shareholders did not often attend shareholders meetings although it was of course open to them to do so.

The irony is that Mr Souter keeps saying that all shareholders should be consulted yet he is holding meetings with just 4 shareholders and making decisions that affect all shareholders (sometimes without any meetings at all) when he knows that at least 26 out of 42 shareholders (i.e. a clear majority) do not support him or his actions.

All parties involved have a duty to act responsibly and engage positively to help move towards a point of resolution. The most recent meeting of shareholders on 13 September saw fit to vote and unanimously support my activity in office to date, and a series of continuing actions outlined by me, to the meeting, as just one of a number of votes that took place. Many present stated this was the first opportunity they had had in recent years to vote on matters and hoped it was a sign of things to come. Shareholders also voted on a new set of Grazings Regulations, consulted upon over the last three months and once endorsed by the Crofting Commission will, I believe, go some way to improving the framework under which the grazings operates.

Again Mr Souter omits the all important numbers and actual facts as though they do not exist. The unanimous support he refers to amounts to possibly only 4 out of 42 shareholders. Mr Souter was presented with a petition by 26 out of 42 shareholders which reads:-

“I support the election of a new Grazings Committee to run the affairs of Upper Coll Township. I also request the removal of the illegally imposed Grazings Constable with immediate effect.”

The “many present” is possibly a maximum of 4. Their “first opportunity” may possibly be because it is the first time they have chosen to attend a shareholders meeting.

Mr Souter was critical of me before for not divulging numbers of attendees at a meting called by shareholders when I didn’t actually know the numbers. In that case he claimed “9 out of 42 shareholders was never a majority“. He knows the numbers in this instance and so perhaps it is he who is now painting “a rather disingenuous picture“? Especially when 4 out of 42 is certainly nowhere near a majority. But 26 out of 42 is.

Mr Souter was also of the view that those who didn’t attend meetings called by the shareholders were “voting with their feet“. On 13 September there were 11 shareholders who actually walked out on his meeting. That is voting with your feet if ever you saw it. If you follow Mr Souter’s view on shareholders meetings and actual support then 38 out of 42 shareholders voted with their feet on 13 September against Mr Souter. He must therefore accept, by his own reasoning, that he has no mandate at Upper Coll.

It is a matter for regret that Mr Inkster has failed to correspond with me, to answer my query and to confirm the existence (and provide a copy) of his letter of engagement, for review by Upper Coll shareholders. His claim that I am “illegally appointed” has been rejected by the Crofting Commission in their letter to shareholders of 8 September. It is simply his opinion on the matter but I nevertheless defend his right to hold that opinion.

Mr Souter yet again completely ignores the fact that I have in fact responded to his letters by way of a seven page letter copied to him but directed to his ultimate employer, the Scottish Government. After all Mr Souter does declare on his LinkedIn page that he is “engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity“.

If I take issue with his behaviour in correspondence issued by him to me, as I do, then I am well within my rights to take that behaviour up with his employers, as I have done. That is certainly not a failure to correspond.

I clearly cannot provide someone who has not instructed me with information provided to someone who did! The Law Society of Scotland would have something to say about any solicitor being persuaded to unethically do so.

My opinion that Mr Souter has been illegally appointed is shared by others and indeed rather ironically reflects the policy adopted by the Crofting Commission but mysteriously departed from by them, contrary to legal advice presumably received by them, on at least three occasions.

Any challenge on the question of the legality of the appointment of grazings ‘constables’ to the Crofting Commission has been met by a simple assertion that as it was a “final decision” of the Commission it is one that cannot be revisited by them. Even although they are unable to show where in law it is stated that they cannot revisit decisions and this is something they have been seen to do on other occasions!

Thus, in effect, the Commission are saying that they may well have made an illegal decision but they have no power to reverse or change such an illegal decision!

Should he wish to press the matter further, then he is clearly aware of the legal process to follow.

Indeed I am, which is more than the Crofting Commission appear to be aware of.

The continual misrepresentation of the situation in the press by disaffected former Committee members and the media profile enjoyed along with their followers, is a matter of ongoing disappointment. For my own part, I will continue to invite all shareholders to participate at official meetings and contribute positively to the future of their Common Grazings.

From the other side of the fence the misrepresentation is clearly on the part of Mr Souter and the Crofting Commission. A reading of this latest letter from Mr Souter alone taken together with my responses thereto is evidence enough of that.

Given the nature of the ongoing dispute, this article does not reflect the views of all Upper Coll shareholders.

Indeed. It may possibly reflect the views of 4 out of 42 of them.

Brian Inkster

Image Credit: T-1000 in Terminator: Judgment Day © Carolco Pictures; Pacific Western Productions; Lightstorm Entertainment; Le Studio Canal+ S.A.

 

Constable Propaganda

Constable Propaganda or Crofting Commission Propaganda (Upper Coll Common Grazings)

The real “dictatorial regime” was clear for all to see despite or perhaps because of their propaganda

Colin Souter’s persistent insistence that he can continue to act as ‘committee’ to the Upper Coll Grazings is perplexing indeed in the face of clear opposition to his involvement from the majority of shareholders.

Following the meeting of shareholders called by Mr Souter in Upper Coll last night he issued a press release (he is the only ‘clerk’ in the country known to advise the press of shareholders business in this way). This press release is very much in the tone of propaganda issued on behalf of the Crofting Commission who remain silent on the issue and appear to allow Mr Souter to speak for them.

The Crofting Commission have been under fire for many months now over an alleged abuse of power in removing three grazings committees from office in circumstances thought my most onlookers to be completely unjustified and unreasonable.

I would offer my comments on this latest ‘propaganda’ by quoting sections of it (in italics) with my analysis following each section:-

A third official meeting of shareholders was chaired at Upper Coll last night by the Grazings Constable, Mr Colin Souter.

It is very debatable whether a meeting of shareholders convened by a reputedly illegal grazings constable can ever be an official one. On the illegality of his appointment see:-

Crofting Commission’s appointment of Grazings Constable is illegal

Grazings Constables Risk the Clink

Crofting Commission knew they were acting illegally in appointing Grazings Constables

Grazings Constables were added to the Sump by the Crofting Commission

During his opening remarks, Mr Souter was interrupted by the former Committee chairman, apparently wishing to raise a point of order. Mr Souter responded that he would take the point at the conclusion of his statement to the meeting.

If a point of order was raised at the outset of the meeting should it not have been taken immediately? Mr Souter clearly does not want to let shareholders have their say and is suppressing their right to be heard at a shareholders meeting. That is not the role of a ‘clerk’ even if legally appointed.

In response to that delay, a number of former Committee members and their supporters, many of whom have no shares in the grazings, got up and left the room, in what was declared by those shareholders remaining, to be an obvious pre-planned move. The meeting continued with the remaining shareholders present and worked constructively through a busy agenda.

Mr Souter omits how many left the meeting and how many remained. I understand that 11 people (shareholders or proxies for shareholders) walked out leaving only 4 shareholders (2 full shareholders and 2 half shareholders remaining).

Shareholders vote with their feet at Upper Coll by leaving the meeting arranged by Colin Souter

Shareholders vote with their feet at Upper Coll by leaving the meeting arranged by Colin Souter

Another 4 people remained whose status were not declared but who were not shareholders. No proxies were presented by them at the beginning of the meeting.

The 11 who left the meeting had the clear support of 26 out of 42 shareholders who had signed a petition that stated:-

“I support the election of a new Grazings Committee to run the affairs of Upper Coll Township. I also request the removal of the illegally imposed Grazings Constable with immediate effect.”

Thus Mr Souter decided to proceed with a meeting in the clear knowledge that a very small number of shareholders (perhaps only 4 out of 42) supported him and the meeting in question.”

The meeting continued with the remaining shareholders present and worked constructively through a busy agenda. Shareholders were provided with additional new information and after discussion and debate, voted on a number of issues, many declaring it was the first such opportunity to vote on shareholder matters in the grazings for a number of years and hoped it was an indication of the way forward.

Why were possibly only the 4 out of 42 shareholders present at the meeting “provided with additional new information”? Surely any additional new information should have been provided to shareholders in advance of the meeting. How can decisions be taken on such matters in the absence of actual consultation thereon?

Mr Souter sent a letter to all shareholders on 12 September. Why was this additional new information not included with that letter? No vote should have been taken on such issues in such circumstances. Although any vote was, in any event, very much a minority one given that the majority had expressed their vote on the entire meeting at the outset.

Mr Souter set out his current activities and explained his goals on a number of current matters, some of which are seen as contentious in some quarters and have been the subject of targeted public criticism by supporters of the former Committee, including the Solicitor, Brian Inkster, who had been engaged by the former Committee to support them in their dispute with the Commission, which eventually led to their subsequent dismissal. Mr Souter has since written to Mr Inkster seeking his co-operation to repay the fee he charged, as it had been approved only by the former Committee and not by the wider body of shareholders, who had never been consulted on the matter.

Mr Souter omits to mention that a seven page letter has been issued by me on this subject to Fergus Ewing MSP, Cabinet Minister responsible for crofting, and copied to him. This highlights the serious errors in Mr Souter’s understanding of the position of legal fees, his meddling in VAT affairs, his role as grazings ‘constable’ and his close and unhealthy association with the Crofting Commission and/or their Convener all as set out in:-

Crofters and Lawyers

Crofting VATgate

Inspector Constable

The Crofting Bat Phone

I have expressed my concerns to Mr Ewing about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

Mr Souter also detailed his correspondence with other parties and the approach being followed. The meeting voted unanimously to support his current activity and the work on which he is currently engaged to ensure the Grazings are fully legally compliant in all matters. Shareholders expressed their wish that if necessary he continue beyond the current term which expires in November but it was explained that under the Crofting Act, there is no provision to extend the tenure of a Constable, once appointed by the Commission.

Possibly only 4 out of 42 shareholders does not give Mr Souter a mandate for “his current activity and the work on which he is currently engaged” or indicate any desire by the shareholders for him to “continue in ‘office’ beyond his current term”.

One thing that Mr Souter has got right in law (maybe the first thing so far) is that under the Crofters (Scotland)  Act 1993 there is no provision to extend the tenure of a Constable, if legally  appointed by the Commission, once the period of tenure comes to an end.

During the meeting, shareholders voted to approve the revised draft of Grazing Regulations, which has been the subject of a wide consultation process over the last three months, subject to some final amendments offered from the floor.

It is very concerning indeed that Mr Souter may think he can force through revised Grazings Regulations  (which are believed to possibly seek to retrospectively validate actions taken unjustifiably by the Crofting Commission) on the basis of a meeting with only a minority of shareholders who have appeared to support the Crofting Commission throughout. Some of those shareholders are alleged to have been personally in breach of the existing regulations and Mr Souter has done nothing whatsoever to deal with those allegations. Again this demonstrates that he is not acting in any way impartially.

On the question of impartiality it is very revealing to note that Mr Souter arrived at the meeting with Donna Smith of the Crofting Commission. Donna Smith is part of the Senior Management Team at the Crofting Commission and is expected to become acting/interim Chief Executive when Catriona Maclean’s notice period comes to an end.

Colin Souter arrives for the meeting of Shareholders at Upper Coll with Donna Smith of the Crofting Commission

Colin Souter arrives for the meeting of Shareholders at Upper Coll with Donna Smith of the Crofting Commission

Much has been made by Mr Souter of his independence from the Crofting Commission although the real position has been clear for all to see. It is now publicly apparent, if it was not before, that Mr Souter and the Crofting Commission are indeed working hand in hand.

This is disturbing indeed and would explain why Mr Souter has not taken up on behalf of shareholders their legitimate concerns and claims over the handling of the whole sorry affair by the Crofting Commission.

Once more it adds to the evidence of the alleged abuse of power at the heart of the Crofting Commission.

After the marathon 4-hour meeting, Mr Souter said, “it was obviously a disappointment that a number of those present made a decision to leave the meeting before it had properly got underway but  I respect their right to do so. Those remaining were sufficient in number to continue with business and to their credit, actively contributed to a very positive discussion in a number of areas. I was able at this stage, to explain to shareholders precisely what I am doing and why I am doing it and was reassured to receive the unanimous support of the meeting.

In respecting the right of those to leave the meeting Mr Souter should also respect their views and the views of the 26 shareholders who signed a petition against him. In respecting those views then clearly nothing discussed at the meeting last night was carried as a vote of the majority of shareholders originally attending: given that 11 effectively voted for the meeting to end.

Mr Souter advised he was aware of the recent unofficial meeting held by disaffected former committee members, and it’s outcome, but dismissed it stating, “I would be delighted if all shareholders engaged in the current process, constructively. We are continuing to make good progress to resolve a series of issues raised and a new set of Regulations was a key element in moving forward. There are some outside influences at work here and I do not believe they are contributing positively for the future benefit of the grazings.

The meeting Mr Souter refers to was certainly not “unofficial” but necessary under and in terms of the existing Grazings Regulations. Indeed Mr Souter, if he had any legal standing, should have been ensuring that what he refers to as an “unofficial” meeting happened. It is a great credit to the former committee that they knew the Grazings Regulations better than Mr Souter and what needed to be done legally in terms thereof.

The Grazings regulations state that:-

“Not later than one month before the term of office of the Committee ends they shall give notice to the shareholders of a meeting for the appointment of a new Committee. This meeting must take place before the term of office of the existing Committee ends. At least 10 days’ notice of the meeting must be given; this shall be done by advertisement in each of two successive weeks in one or more newspapers circulating in the Committee district, or by notice posted up for two successive weeks in a public place or places approved by the Commission. The new Committee appointed at this meeting shall take up office immediately upon the retiral of the existing Committee. The Clerk of the Committee shall inform the Commission of the names and addresses of the members and Clerk of the new Committee.”

If we assume, as Mr Souter does, that his appointment as Grazings ‘Constable’, was legal then that appointment, in terms of the Order issued by the Crofting Commission, comes to an end on 10 November 2016.

That being the case then the shareholders must give notice of a meeting to elect a new committee not later than 10 October 2016. Being organised and sensible shareholders they have not left it to the last minute but organised it a good month or so ahead (which they are entitled to do under the Grazings Regulations).

They have carried out all the steps they need to in order to legally form a new Committee. That Committee will take up office immediately on 10 November 2016 or earlier if Mr Souter resigns his position as Grazings ‘Constable’. Something that many consider he should do so in light of the petition from the majority of shareholders calling for that.

When asked about a recent petition allegedly signed by a majority of shareholders seeking his dismissal as an ‘illegally appointed Constable”, Mr Souter responded that the Commission had repeatedly endorsed his appointment, as recently as the day before the unofficial election meeting and offered his view that the conduct of former Committee supporters had perhaps more in common with a dictatorial regime.

It is not a question of endorsement by the Commission. It is a question of democracy in action within a common grazings. If there is any “dictatorial regime” involved surely it is the Commission and Mr Souter who fall into that camp. They are dictating what they consider the position to be to a clear majority of shareholders who think otherwise.

He added, “How many people do you know who would be happy being door-stepped and told to sign a petition, whilst their neighbour is standing over them? It strains credibility! I would be happy to see all of those folks at our next shareholder meeting. There are serious issues being addressed and it’s about time some former Committee members accept their continuing agitation is not serving themselves or the grazings well. They have a duty to fellow shareholders to accept their own shortcomings and that they have learned from them and are willing to move on. Continually misrepresenting the position in public is not helpful and does nothing to heal the rift they have opened up here in Upper Coll, between shareholders.

On the contrary it is unfortunately Mr Souter who continually misrepresents the position. E.g.:-

The Wrong Grazings Committee!

Mr Souter also advised that during the meeting he informed shareholders he has requested the Crofting Commission now facilitate a meeting with the Crown Office & Procurator Fiscal Service to discuss some of the findings from his review of the former Committee records and accounts. He declined to comment further on specifics, stating “it will be for other authorities now to determine whether there is a need for further action”. The date for the next shareholder meeting has not been set.

From the outset the Crofting Commission and then Mr Souter hinted at irregularities within the three Committees that were dismissed with no evidence whatsoever to back this up. Mr Souter appears to have been put into Upper Coll by the Crofting Commission to find something, anything, to justify his illegal appointment in the first place.

Nothing he has produced to date has evidenced this. Declining to comment on specifics now questions once more what he and the Commission are actually up to. This is not his role as ‘Clerk’. If any shareholders feel there has been any impropriety that has affected them it is for them, not Mr Souter, to take whatever action they may deem appropriate. Mr Souter is now, as the Commission did so before him, casting aspersions unjustifiably and without any basis on former committee members.

This is quite appalling. If anything shareholders should be reporting Mr Souter to the Crown Office & Procurator Fiscal Service for his potentially illegal and fraudulent activities including in particular the manner in which he has taken control of the shareholders finances.

One can only hope that Fergus Ewing MSP does now step in to resolve this tragic mess.

Brian Inkster

Image Credits:-

Main image: INGSOC 1984 Propaganda Poster (detail)

Other images: An La – 13 September 2016 © BBC Alba

Crofters, Lawyers, VAT and a Grazings ‘Constable’

Crofters, Lawyers, VAT and a Grazings 'Constable'

Best to instruct a lawyer for legal advice and a chance of justice

I had thought my post on Crofters and Lawyers set the record straight as far as the question of crofters being entitled to engage the services of lawyers was concerned.

I also thought my post on Crofting VATgate and subsequent comments on that topic from Donald Rennie was sufficient to clarify that matter also.

But alas not for ‘Constable’ Souter. He felt it necessary to air his views once more (and ignore the points already made by me to him via this blog) in front of a large number of lawyers by submitting a letter for publication this week in Scottish Legal News. I reproduce here his letter and my response thereto:-

Grazings Constable Colin Souter responds to criticism – 12 September 2016

Colin Souter has written a response to a September 5 article by solicitor Brian Inkster. The views expressed below are not those of shareholders at Upper Coll Common Grazings or of Scottish Legal News.

As the Grazings Constable for Upper Coll, I took over under difficult circumstances, after the former Committee had been put out of office by the statutory regulator (Crofting Commission) for reasons too long to explore in this short piece. Mr Inkster had been engaged by the former Committee for legal advice, whilst they were in dispute with the Commission but apparently without the matter having been put to a wider shareholders meeting to receive the required majority/full vote. I sought to correspond with him in that capacity, having determined that the Crofting Act 1993 does not permit the use of shareholders funds by the Committee for that purpose. Activity may only be funded where it is for the “maintenance or improvement of the Common Grazing”.

I sought Mr Inkster’s co-operation in re-paying the £600 he received as payment. Mr Inkster has refused to acknowledge or respond to my correspondence but is happy to report and comment upon it, and many other related issues, to readers of his on-line blog.

Mr Inkster has presented a series of speculations, opinions and inferences in his VAT article, without demonstrating any desire to obtain a definitive outcome for those involved. I might be forgiven, I hope, for wondering why, if an expert on the subject, Mr Inkster does not already know definitively whether Committees are eligible to register for VAT and if raised as a legal point, surely it is in the interests of all parties to understand if they have somehow incurred a liability with potential for penalties? The fact of the matter, which undermines Mr Inkster’s conspiracy theory is quite simply that the former Committee included VAT in their annual Statement of Accounts presented to the Crofting Commission but set it out in a way that raised more questions than answers and whilst I am now speculating, I think it reasonable to conclude that the Commission, in responding to a review of those accounts, was left with little alternative other than to seek opinion from Senior Counsel to help address the matter. Senior Counsel, much respected in crofting circles, opined that there was no power for Grazings Committees to trade or to register for VAT under the Crofting Act 1993.

With ownership of the issue at Upper Coll and the need to resolve the matter, I brought it to HMRC and await their definitive response on the matter. If they determine the eligibility criteria have been met for registration, I will be delighted and can sign-off on one more point. If the contrary is true, then I have advocated for a “no-penalty resolution” to apply to all Grazings Committees who may be in a similar situation. The suggestion by those who align with Mr Inkster that being registered must mean they are entitled to be registered, clearly ignores the possibility that registration was made in error by those unaware of the legal status of Grazings Committees under the Crofting Act. Not a difficult scenario to envisage, I’d suggest.

I can only hope Scottish Legal News readers will appreciate my need to ensure shareholders interests at Upper Coll are properly protected and that the future framework in place for the management of the Grazings, when my short term in office expires, will be a legally compliant one. Liabilities will have been exposed for discussion and debate, and as far as possible, remedied. Given the circumstances, however, I cannot promise the remedies will satisfy everyone………least of all Mr Inkster.

Colin Souter
Grazings Constable
Upper Coll

Crofters, Lawyers and VAT – 13 September 2016

Brian Inkster addresses yesterday’s response from Colin Souter to criticism the latter had received.

Colin Souter responded yesterday via Scottish Legal News to my concerns regarding the Crofting Commission investigating the legality of VAT registration of Grazings Committees.

My views attacked the Crofting Commission on this issue and called on an investigation by Fergus Ewing MSP, as cabinet secretary responsible for crofting, into what I considered could be dubbed ‘VATgate’.

It seems rather odd that a grazings ‘constable’ purportedly appointed by the Crofting Commission to manage the affairs of one particular common grazings on the Isle of Lewis should be acting as spokesman for the Crofting Commission on the issue. That is surely the responsibility of the Convener of the Crofting Commission.

That Mr Souter saw fit, at the same time, to draw to the attention of many solicitors that he considers them not entitled to be paid for legal services provided to shareholders in a common grazings is bold indeed.

Firstly, it must be remembered that I do not consider Mr Souter to have been legally appointed. Indeed it has been shown that the Crofting Commission acted contrary to its own legal advice in making the appointment. However, having made an illegal appointment the Crofting Commission are of the view that they cannot revisit that ‘final decision’.

On the basis that I do not recognise Mr Souter as having any legal standing whatsoever I am not about to respond to his demands to repay to him fees legitimately paid to my firm by a properly constituted grazings committee following the provision of legal advice to them.

Mr Souter has threatened to raise a small claims action against my firm and I am more than happy to see him in court. He is well aware that in such circumstances the Crofting Commission will be brought in as a party and there will be a counterclaim for the time, inconvenience and costs caused to me unnecessarily by Mr Souter.

A right for crofters to instruct lawyers does not need to be contained in tablets of stone within the Crofting Acts. It is a fundamental human right. The Magna Carta would be a good starting point for Mr Souter to look at!

Shareholders in common grazings have been instructing lawyers to represent and provide them with advice in numerous matters over many years. Is Mr Souter really suggesting that all those lawyers need to repay fees received for work undertaken and advice given?

Is Mr Souter really saying that shareholders could not have a lawyer representing them in an action brought against them in the Scottish Land Court?

Does Mr Souter really think it is okay for the Crofting Commission to hire top QCs in their questionable battles against shareholders in common grazings but that those shareholders cannot be afforded access to lawyers themselves?

Has Mr Souter not read the Guidance Notes issued by the Crofting Commission on the Management and Use of Common Grazings? These Guidance Notes contain an “Important note” that reads:-

The following guidance is intended to assist grazings committees with regard to the use of grazings regulations. The guidance does not constitute legal advice, and should not be construed as such. Should a grazings committee and/or shareholder require legal advice on a matter concerning common grazings, independent legal advice should be sought from a suitably qualified solicitor.

So even the Crofting Commission acknowledge and accept that shareholders can and should seek their own independent legal advice.

Where on earth does Mr Souter get the idea from that they can’t?

I will now return to the original and more important question involved, namely VAT registration of Grazings Committees.

Mr Souter refers to me as “an expert on the subject”. I have, for the avoidance of any doubt, never been and certainly would not profess to be an expert on tax law or any matter concerning, in particular, VAT.

My concern is as an expert in crofting law advising crofters daily on that particular subject. My concern is that the Crofting Commission whose function is to regulate and promote the interests of crofting may instead be actively seeking to deprive crofters of VAT receipts.

VAT registration of Common Grazings was something that the Scottish Government insisted upon as part of entry into Woodland Grant Schemes. Did Mr Souter know that? Did the Crofting Commission advise their QC of that when seeking an opinion on the matter? Is the Scottish Government happy that Mr Souter and the Crofting Commission are challenging their policy on Crofters, Forestry and VAT?

Mr Souter says that he “can only hope Scottish Legal News readers will appreciate” his “need to ensure shareholders interests at Upper Coll are properly protected”. Is seeking to deprive them of VAT receipts protecting their interests?   As Donald Rennie, Honorary President of the European Council for Rural Law, stated on the Crofting Law Blog:-

Let us for the moment assume that Mr Souter was properly appointed a grazings constable. In that office he would be a trustee for behoof of the Upper Coll crofters as beneficiaries. As a trustee his duty would be to protect the assets and income for the beneficiaries. In the event that his blundering and unnecessary interference results in the abilty to reclaim VAT being lost he will be liable to reimburse the crofters for the losses. The measure of damages would be the total expected VAT reclaim lost from the date of his interference until VATable receipts came in.

This is in addition to any other damages claims to which his improper and negligent acts and omissions expose him.

I have written to Fergus Ewing MSP expressing my concerns about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. I have copied my letter to Mr Souter out of courtesy. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

Brian Inkster

Land Court rule that Crofting Convener has no right to purchase his Apportionment

Apportionment Arinagour Common Grazings Isle of Coll

Colin Kennedy’s Apportionment at Arinagour Common Grazings, Isle of Coll with his wind farm development and excavated house site

The Scottish Land Court has issued a decision to the effect that an application by Colin Kennedy, Convener of the Crofting Commission, to purchase his Apportionment at Arinagour Common Grazings on the Isle of Coll is incompetent.

Mr Kennedy pursued a series of Land Court actions with individuals and also had a long running dispute with the Crofting Commission, on a personal basis, over a number of years seeking to secure rights in the Common Grazings and obtain an Apportionment.

An Apportionment was finally granted in his favour by the Crofting Commission on 31 October 2014 although it did not take in areas of the Common Grazings originally desired by Mr Kennedy.

Having obtained the Apportionment, on which he has erected three wind turbines and a shed with plans to construct a croft house, Mr Kennedy then sought to purchase it from the Landlord, Martin Smith. The Landlord refused to sell and Mr Kennedy brought an application to the Land Court to purchase.

I represented Mr Smith at the hearing before the Land Court.

It has long been established in crofting law that there is no right under the Crofters (Scotland) Act 1993 to purchase an Apportionment that is not adjacent or contiguous to another part of the crofter’s croft. Mr Kennedy’s apportionment was a ‘deemed croft’ under the legislation and it was settled law that such a ‘croft’ could not be adjacent to itself.

However, Mr. Kennedy argued that such settled law was overturned by the registration requirements under the Crofting Reform (Scotland) Act 2010. He maintained that under the 2010 Act a ‘deemed croft’ became a ‘croft’ when registered in the Crofting Register as his Apportionment had been.

Lord Minginish , in delivering the Land Court’s decision said:-

Mr Kennedy’s argument was ingenious and not without a certain logic.  But the problem it cannot evade and fails to deal with satisfactorily is the terms of sec 12(3) of the Act, which remain unamended by the 2010 Act.

In so finding the application was refused as incompetent by the Land Court.

The period of appeal to the Court of Session has expired without an appeal being lodged by Mr Kennedy and the Land Court has found Mr Kennedy liable to Mr Smith for the expenses of the application.

Thus Mr Kennedy remains a tenant of the Apportionment at Arinagour Common Grazings.

Brian Inkster

Notes:-

Read the full decision on the Scottish Land Court website: Kennedy v Smith [SLC/81/15]

Download a copy of the case: Kennedy v- Smith [PDF]

Crofting is about People

Crofting is about PeopleThis is a guest post contributed by a concerned Upper Coll Villager:-

I keep on asking how they could have sacked a committee, three of whose members had only been on it for 9 months. They had not been on any of the previous committees. How could they have had time to be responsible for anything?

I have been puzzled at the lack of public support from other villages, apart from the night in Stornoway Town Hall, but I have had it said to me several times that they have all done the kind of things for the good of the community, and for which we had previously been praised, and now they fear themselves being targeted. They have done precisely the same kind of things we are now being chastised for. VAT, small donations, foregoing share of feus in favour of our hospice. Ridiculous.

Crofting is not about a few sheep or a few cattle, it is about people and keeping people in our crofting areas. No one can make any kind of a living off crofting in our area. Nevertheless it is an important mechanism for maintaining “community” and all that means. Over half the townships don’t have a committee as a result of loss of “community”. The Commission instead of encouraging the ones which do exist are hounding them.

I have been told of one committee that has been disbanded until they see what the outcome of our situation is. They don’t want to be made personally responsible or be targeted the way our committee has been. They are all waiting to see what happens to us. This is no longer about Upper Coll but about the whole essence of what constitutes a “live” crofting community.

It is very difficult at times to remember the precise details of events of years ago. As the ”constable” has our minute book we don’t have our memory jogger.

The Gearraidh Ghuirm road construction, our esteemed constable seems to have placed such emphasis on, was to help the new householders get good access to their houses, as the village, whilst encouraging and accepting applications in an area of moorland, which was so useless it hadn’t even been fenced, made it quite clear to the purchasers, while they were getting the fues cheaply, the responsibility for the road was theirs and theirs only.

In a spirit of helpfulness, as was the case with the football and recreational facilities, we had enabled to happen, and for which again we are now many years later criticised, the village facilitated it by making application to the Council for money from it’s Unadopted Roads budget. The cash was provided by the Council and the feu holders. The village’s contribution was mainly “in kind”, material from the gravel pit we have developed ourselves over the years. Our ‘constable’ seems determined to find fault and tries to say by looking at our cashbook accounts of EIGHT years ago that we caused shareholders financial loss. Rubbish and now we have a street of houses, on what was useless ground, and up to 20 children … and we are now being hammered for being resourceful in enabling that to happen.

Now that our great ‘constable’ has highlighted what was a beneficial local practice which we all benefitted from, is there going to be pressure on the landlord to put a stop to it? I hope not, but him poking his nose in could very well have that effect.

I have seen the immense strain this has so unfairly placed on the former committee. Their families, who are not used to being under this kind of legal and media focus are completely perplexed by it all. I feel personally insulted on behalf of myself and the others of us whose forefathers created this village, that these people have demeaned all we have done for so many years, which led us to being widely recognised as a forward looking and well run grazings village.

Ivor Matheson and his ally Kenneth Macleod, who has not one facility for his cattle on his wife’s croft and is dependent on common grazings, have much to answer for. Those in authority who didn’t throw out their nonsensical complaints but used them to enable them to peddle some weird agenda have much more to answer for.

A Concerned Upper Coll Villager

Image Credit:-

Registers of Scotland ‘click your croft’ photography competition 2014.

Heather Gray of Shetland won with her photo ‘Hentin Totties’, which shows a family of all ages working the land.

The competition, run in association with the Scottish Crofting Federation and the Crofting Commission, set out to explore what this traditional way of life means to crofters in 2014.

Miss Gray said: “I suppose my main inspiration for the photo is family. Seeing the extended family from grannies to toddlers coming together and helping out with the yearly crop – it just makes you smile.”

The Scottish Farmer adds balance to the tales of the Upper Coll ‘Constable’

the-scottish-farmer-logoLast week I commented on how the letter from Colin Souter, the Grazings ‘Constable’ at Upper Coll, to shareholders was no ‘gamechanger’.

This week The Scottish Farmer has redressed the balance by publishing the views of the majority of shareholders at Upper Coll which counter the allegations made by Colin Souter against them.

They also published a letter from me on the topic which they asked me to edit down in size prior to publication. I will reproduce here the longer version that I originally supplied them with:-

Sir – I was somewhat bemused by the headline in last week’s Scottish Farmer. The letter from Colin Souter, the grazings ‘constable’ appointed by the Crofting Commission, to shareholders at Upper Coll Common Grazings is certainly no ‘gamechanger’.

Had your reporter sought to verify this sensationalist piece of propaganda via the former committee members at Upper Coll or myself he would have received a very different take on it.

Firstly, it should be made clear that many consider Mr Souter’s appointment as a grazings constable to be illegal. Donald Rennie explained clearly and in detail why in a letter published by you some weeks ago. It subsequently transpired that a report produced to the board of the Crofting Commission by their Chief Executive, Catriona Maclean, made it clear that grazings constables could not be legally appointed where a grazings committee is removed from office by the Commission. It would therefore appear that the board of the Crofting Commission acted contrary to legal advice given to them and appointed a ‘constable’ who has no standing in law.

Also, even if Colin Souter had been appointed legally as a grazings constable that role is not (despite the name) in law an investigative one but one that simply takes on the duties of day to day management of the common grazings on behalf of and in the interests of the shareholders.

Colin Souter, a retired police chief inspector, seems to be under the misapprehension that he has been brought out of retirement to utilise his police skills. He even states on his LinkedIn profile that he is “engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity”. He has no remit of the kind and if he has actually been given such a remit then serious questions should be asked regarding the conduct of the Crofting Commission over and above the fact that, in the first place, they knowingly appointed him when they knew that legally they couldn’t.

It appears that the Crofting Commission are on a fishing expedition. They removed from office the former committee at Upper Coll purely on the basis that they had produced 5 years of financial statements prepared by an accountant rather than 5 years of “audited” accounts as unfairly and unjustifiably demanded by the Commission. This was met by overwhelming incredulity on the part of onlookers. Now the Commission are seeking to justify their actions on other grounds. They have sent in a former police inspector to find something, anything, to make everything alright again for them.

Colin Souter appears to have carried out the bidding of his masters. He has trawled through records of the Upper Coll Common Grazings going back to 2008 if not before looking for misdemeanours. This is well out with the 5 year ‘audit’ period the Crofting Commission initially concerned itself with.

Colin Souter has compiled a list but that list is of no significance. Some of it is petty in the extreme such as highlighting one typographical error on the part of the accountants instructed by the former committee in the financial statements that the Commission had not even been willing to look at. He has claimed that monies were contributed to upgrading a road in 2008 when this is denied by shareholders and even if it were true so what? He decries the spending of £520 on feu design work to allow crofting families in the township to remain in the township by allocating to them house sites on land that was not much use for grazing purposes. Any costs associated with that would be more than recouped when house sites were sold and compensation on resumption received. He does not understand that.

What Colin Souter also does not appear to understand is that a new grazings committee is elected every three years. Most of his accusations relate to the activities of the committee of 2008/09. There have been a further three committees elected since then. Even if what the grazings committee of 2008/09 did was wrong (and there is no evidence to suggest that it was) it does not justify the Crofting Commission removing from office a committee only elected in 2015.

Colin Souter claims there is nothing in the Crofters (Scotland) Act 1993 that permits shareholders funds to be used to pay solicitors. What nonsense. A right for crofters to instruct lawyers does not need to be contained in tablets of stone within the Crofting Acts. It is a fundamental human right. Try the Magna Carta for starters.

It is also of course rather ironic that a grazing ‘constable’ whose legality has been questioned from the outset is stating left, right and centre what he considers the law to be and how he considers former committees to have breached it. Presumably in circumstances where he has not actually sought legal advice on such pronouncements because he doesn’t consider expenditure on legal advice by a grazings committee to be legal!

The situation with the grazings ‘constable’ at Upper Coll has become farcical. I will be expressing my concerns to Fergus Ewing MSP, as cabinet secretary responsible for crofting, about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

Brian Inkster

New Grazings Committee formed at Upper Coll

New Grazings Committee elected at Upper CollAt a meeting in Upper Coll on the Isle of Lewis tonight, 10 September 2016, 17 shareholders (another 5 shareholders gave their apologies) met to form a new Grazings Committee. Four
shareholders were duly elected: Kenneth Macdonald, David Maclean, John Stewart and Scott Macrury.

Shareholders also agreed that another member could be co-opted at a later date.

A Petition signed by 26 shareholders was presented at the meeting stating:-

I support the election of a new Grazings Committee to run the affairs of Upper Coll Township. I also request the removal of the illegally imposed Grazings Constable with immediate effect.

The Factor of the Stornoway Trust was also in attendance and spoke to shareholders about certain public statements made by the ‘constable’. He felt that some of these needed correction. He duly did this.

The Crofting Commission were to be informed of these democratic decisions.

View from the Crofting Law Blog

It is to be hoped that the Crofting Commission accept these democratic decisions and ensure, in light thereof, that the Grazings ‘Constable’ (illegally appointed in my opinion and in the opinion of others including, rather ironically, the Crofting Commission itself) steps aside, hands over all documentation pertaining to the common grazings and returns control of the bank account to the new committee.

If they do not then the Scottish Government should step in once more and ensure that they do.

Brian Inkster

Twitter Hashtags poke fun at Crofting Convener

Twitter Hashtag pokes fun at Crofting ConvenerFollowing revelations this morning that the Convener of the Crofting Commission, Colin Kennedy, requires a comfortable chair at meetings to aid his “posture, conduct and demeanour” followers of @CroftingLaw on Twitter started to have some fun.

In keeping with the headline of the original blog post we got the hashtag #achairfitforaconvener from @Janiceeem56:-

With the accompanying image:-

#achairfitforaconvener

@CrabbitCrofter started the hashtag #convenersthrone:-

With the accompanying image:-

The Crofting Convener's Portable Throne

The Crabbit Crofter clearly thought that a portable chair would save the Crofting Commission some money:-

Meanwhile @_JamieMcIntyre thought we needed to get #faultyfurniture trending:-

This would jokingly reference excuses for things that happened being down to faulty furniture e.g.:-

But there is, of course, a serious side to all of this as highlighted by @AlisonMacleod3:-

But the answer to that has not, so far, changed:-

Brian Inkster

A chair fit for a Crofting Convener

a chair fit for a crofting convener

Is this comfy enough for you sir?

We have just, in the last post, been reminded about the conflict of interest on the part of the Convener of the Crofting Commission, Colin Kennedy, over goings on at Upper Coll.

This was where Colin Kennedy appeared to be instrumental in taking a decision to remove the former grazings committee from office. This was at a point where a formal complaint was still being dealt with by the Crofting Commission concerning his handling, as chairman, of a meeting of shareholders held at the Back Football and Recreation Club, Upper Coll, Isle of Lewis on 10 November 2015.

One of the more bizarre episodes (although there have been and continue to be many) in the whole Common Grazings debacle is how the Crofting Commission initially responded to that complaint.

One of the complaints arising from the meeting in question (and there were several) was that the meeting was chaired by Colin Kennedy in “an arrogant and dismissive manner“. This is how the Crofting Commission responded in writing to that particular element of the complaint:-

All members of the Commission who attended the meeting commented on the quality of the venue. They all complained about the seating arrangements which did not let them get their legs under the table which would have allowed them to sit up straight which may have led attendees to think the panel were being too casual. They also said the lighting was poor and general presentation of the room did not contribute to creating a positive atmosphere. The Commission agree that this is not helpful and have put in place a mechanism to check venues prior to meetings to ensure that they meet requirements. This includes discussing requirements in advance with providers and going to the venue prior to the meeting to check it is laid out as well as possible.

What! A complaint about the manner in which a meeting has been conducted by the Convener is turned around to being down to the meeting room in a crofting township not having adequate seats or lights!

I have, over the years, had plenty of meetings with crofters in village halls or similar venues throughout the crofting counties. They may not always be up to the luxurious surroundings enjoyed by Commissioners at Great Glen House but the facilities are always more than adequate for the purpose required.

The Land Court often have lengthy hearings in such halls and I have never heard a complaint from them about the facilities at hand.

As a crofting regulator you should accept the need to travel to the crofting counties and graciously accept the facilities offered to you. To suggest that those facilities are the root cause of the “posture, conduct and demeanour” of the Convener is surely a joke.

Are the Commission really now checking venues prior to meetings to ensure that they meet requirements? If they had a meeting in the far north reaches of Unst in Shetland, for example, would a scout from Great Glen House be flown up in advance to check that the seats were fit for the Convener? This would be at an additional cost of several hundred pounds to the public purse. If the facilities did not meet the high standards clearly required would a suitable chair then be flown in?

You couldn’t make it up.

Brian Inkster