Monthly Archives: September 2016

Conflict of Interest at Upper Coll

conflict-of-interest-at-upper-collOur last post on this blog raised once more the issue of conflict of interest on the part of the Convener of the Crofting Commission, Colin Kennedy, over the Upper Coll affair. This, for completeness, is a good point to remind readers of the detail of that conflict of interest. We therefore now reproduce, with the author’s kind permission, a letter by Dr Iain MacKinnon that first appeared in the West Highland Free Press in July 2016:-

On 9th December 2015 the Crofting Commission removed from office the entire common grazings committee at Upper Coll on Lewis. The minutes of that meeting disclose that its decisions were reached by consensus and that the Commission’s convener, Colin Kennedy, chaired the meeting throughout.

When that decision was made the Commission were in the process of investigating complaints from crofters at Upper Coll about the way in which Mr Kennedy had chaired a meeting in Upper Coll in November to discuss the grazings issue.

In light of this, Mr Kennedy’s decision to participate in the 9th December discussions raises ethical questions. The Scottish Government’s model code of conduct for standards in public life states that when confronted with a potential conflict of interest, members of public bodies must conduct ‘the objective test’ before proceeding. This test is severe. The member must consider ‘not only whether you will be influenced but whether anybody else would think that you might be influenced by the interest’.

Would a member of the public, with knowledge of the relevant facts, ‘reasonably regard the interest as so significant that it is likely to prejudice your discussion or decision making in your role as a member of a public body’? If there is even the possibility that a member of the public would regard the member as conflicted, then that member must withdraw.

In this instance the plain facts of the matter are that Mr Kennedy was the subject of outstanding complaints about his conduct made by members of a regulated grazings committee at the moment when the regulator, led by Mr Kennedy, took a questionable decision to remove that committee from office.

Indeed, as Mr Kennedy had chaired the November meeting between crofters and Commission in Upper Coll, we can only presume that it was on Mr Kennedy’s recommendation that the decision to sack the Upper Coll committee was made.

Mr Kennedy’s central role in the Upper Coll case casts further doubt on his judgement and fitness for public life – was it reasonable for him to have led on such a sensitive and controversial issue when he knew there were complaints outstanding against him?

We now learn that the retired policeman who was imposed by the Commission as grazings constable at Upper Coll regards himself as an independent force there and has taken it upon himself to initiate investigations that crofting lawyers believe are unlawful; in addition, it has been claimed that Mr Kennedy himself has acknowledged engaging in similar, apparently extralegal, behaviour to the current constable at Upper Coll when Mr Kennedy was acting as grazings constable around a decade ago.

The convener’s conduct in relation to Upper Coll is yet another straw on the back of the Commission donkey, already groaning under the weight of a series of related controversies about its competence and fitness for purpose. If the load of straw keeps getting heavier then at some point the accumulated weight will break the Commission’s back; the regulator will have lost the confidence of the electorate of crofters that it is there to regulate – indeed, Alastair Culbertson and Duncan MacDonald’s recent contributions to the debate demonstrate that confidence in the Commission has already evaporated even for crofters beyond Lewis.

To restore confidence in crofting regulation the Scottish Government’s recently announced review of Commission procedures must fully examine not only the organisation’s future working, but also the recent series of serious complaints which have cost it public trust.

If the practical reasoning and ethical standards of Commission members are found to be wanting, it is in the public interest for the Government to take action and to be seen to be taking action against those members upon whom responsibility is found to rest – including, if necessary, their removal from office. (Such actions should not preclude disbanding the Commission at a later date in favour of another form of regulation.)

Further, it is in the interests of the openness and transparency to which the Commission says it is “strongly committed” that the result of this investigation be fully and freely available to the crofting electorate.

Dr Iain MacKinnon

 

Dr Iain MacKinnon is researching the politics of crofting at Coventry University, although this letter is not part of his academic work.

The Crofting Bat Phone

The Crofting Bat Phone

Commissioner Gordon and Batman didn’t have a look in to the lines of communication available between the Crofting Commissioner(s) and their Grazings Constable!

There have been quite a few comments of late about the difficulties of getting a statement from the Convener of the Crofting Commission, Colin Kennedy. He is elusive to say the least and seldom represents the views of the Board to the general public despite this being one of his “particular responsibilities” .

Other Commissioners have been thin on the ground of late as well with no Commissioner replacing the Convener when he failed to attend the Scottish Government Crofting Stakeholder Forum in Inverness on Tuesday. This left the Chief Executive, Catriona Maclean, representing the views of the Commission in front of BBC Alba after the meeting.

Getting clear and unambiguous information out of Commissioners when you can pin them down is also often a challenge.

One person who seems to have direct access without difficulty to Commissioners (which might include, or indeed mean, the Convener) is the Grazings ‘Constable’ of Upper Coll, Colin Souter. He certainly appears to be in possession of information that only Commissioners would have and that well in advance of such information being made available to anyone else outside of Great Glen House.

One example of that became clear at the meeting of the Scottish Government Crofting Stakeholder Forum in Inverness on Tuesday.

I had been aware from the published Agenda that the Board of the Commission had considered a paper at their meeting on 17th August on ‘Grazings Committees – A Practical Approach to the Management of Common Grazings’. There was no mention of that at the Stakeholder Forum so I enquired about it.

I was advised that the Crofting Commission was setting up a Stakeholders’ Working Group to advise on the revision of common grazings regulations and guidance. This paper from 17th August would be considered by that group at a meeting on 20th September. Only after that meeting would the paper in question (possibly after refinement? – but that was not made clear) be circulated to the wider Stakeholder Forum.

So at the moment members of the Stakeholder Forum had no knowledge of or access to what the paper in question said. A stark contrast to the access to that paper apparently afforded to Grazings ‘Constable’ Colin Souter.

In the letter issued by Colin Souter to Shareholders of the Upper Coll Common Grazings on 29th August he states:-

The Board of Commissioners at a recent meeting, considered a submission along the lines I set out at the July meeting, whereby Committees can operate within a defined financial framework which allows retention of funds (from any legitimate source) in the bank, up to a maximum agreed by shareholders, taking account of any commitments under Schemes and projects ongoing and an Emergency Reserve (set at perhaps 3-4 times the 3-year average annual maintenance costs) and exceeding that amount automatically triggers payment to shareholders, three or four times a year. In doing so, the administrative burden is minimised for the Committee and they are seen to be operating within an agreed and better regulated financial framework. Whilst the Commission has a clear role, as regulator, in ensuring feu monies are distributed to shareholders, I understand it does not otherwise seek any direct involvement in other areas of finance affecting shareholders. The proposal tabled is seen as an initiative worthy of testing, for the benefit of Upper Coll and the wider crofting community but it is a choice for shareholders to make.

So even before the Commission has had the first meeting of its new Stakeholders’ Working Group, to advise on the revision of common grazings regulations and guidance, Colin Souter is seeking to impose the guidance so far produced (that no one other than Commissioners, Commission Officials and Colin Souter have seen) upon one particular Common Grazings, namely Upper Coll.

The same is true about his access to an Opinion from Queen’s Counsel which it is presumed was instructed by the Crofting Commission. In his said letter to shareholders at Upper Coll he said:-

Following receipt of legal opinion from Queen’s Counsel, the position of Grazings Committees being able to register for VAT as trading entities in order to reclaim VAT has come under scrutiny. The dialogue with HMRC regarding VAT status remains ongoing and once concluded, I will be able to advise on the outcome.

When I asked about this opinion at the Crofting Stakeholder Forum there was “no comment” from the Chief Executive of the Crofting Commission on behalf of the Board.

It is highly unusual for the Crofting Commission to publish legal advice received by them in any event.

On the topic of legal advice: Colin Souter seems very ready to challenge what he considers to be illegal activities at Upper Coll. It would be very unusual for a clerk in a common grazings (that is effectively what Colin Souter is had he been legally appointed) to appear so sure about crofting law without having sought legal advice. Not that I would give much weight to any advice that Colin Souter is getting given, in my view, a clear misunderstanding on his part as to what the law actually is.

We know that he thinks that legal advice cannot be paid for from grazings funds. So where is he getting his crofting law advice from? Is it likewise coming from Commission officials and/or from Commissioners and/or from a Commissioner? An organisation with a Board that has been shown to ignore the law and lawyers.

Why and how did one grazings clerk (i.e. Colin Souter) get privileged access to all of this information before any other grazings clerk in the land and before the members of the Crofting Stakeholder Forum? In the case of the opinion from Queen’s Counsel this may never be divulged to any other grazings clerks or to any members of the Crofting Stakeholder Forum.

The only explanation can be direct and special contact between him and a Commissioner and/or Commissioners and/or officials within the Crofting Commission.

So much for the assertion that he is acting at arms length and independent from the Commission.

It also again highlights the fact that he is under the control of and acting at the behest of the Crofting Commission. A reader of this blog having referred to him as a “maor” (or ground officer).

Serious questions must be asked by the Scottish Government about this arrangement and, in the circumstances, the validity of any pronouncements by the Crofting Commission and/or their ‘Constable’ over the situation at Upper Coll.

The Crofting Commission will no doubt say that the Scottish Government cannot investigate the situation when it is subject to on going court proceedings. Those court proceedings may touch upon the legality of the appointment of the Grazings ‘Constable’ in the first place.

But even if we take it that the appointment was legal (although that is denied) then the Scottish Government should be looking at the propriety of the relationship that exists between such a legally appointed grazings constable and the Crofting Commission.

Is it correct and proper that he has been given an investigative remit? Is it correct and proper that he is being supplied with the information that he has been? If it is not then who gave that remit and/or supplied that information?

If that was a Commissioner are they therefore, in all the circumstances, “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”? As such should the Scottish Ministers remove them from office under and in terms of the Crofters (Scotland) Act 1993?

Even worse if it were to transpire that it was the Convener who was embroiled in all of this. After all he has, for some time, been the subject of complaints about his handling of the affair at Upper Coll and so should not be involving himself in matters concerning Upper Coll until the relevant complaints process has been completed. To do so would be a clear conflict of interest. But there again that has not stopped him before.

Brian Inkster

Image Credit: The Bat Phone from Batman (TV Series) © Greenway Productions / 20th Century Fox Television

Inspector Constable

 

Inspector Constable

I think I have found a typographical error in the accounts!

The letter from Colin Souter, the purported Grazings ‘Constable’ at Upper Coll, to the shareholders of the Upper Coll Common Grazings demonstrated once more the mistaken belief that he is under that his role is an investigative one.

He states in the letter:-

It has been necessary to research records to establish the facts and finances from historical records in order to ensure shareholders’ interests are properly protected.

Had he been legally appointed he may have required to do that to get up to speed with what went on in the township to then carry out his appointment to:-

administer the Upper Coll Grazings Regulations for a period of six months… with the like powers and duties of a Grazings Committee.

That role does not involve investigating the past eight or more year history of up to four or more grazings committees  with a view to castigating them for minor misdemeanours and accusing them of illegalities with no evidence in fact or law to justify such action.

He may be a retired Chief Inspector of Police but the title of Grazings ‘Constable’ does not give him the same powers and responsibilities he once had when a boy in blue. The Convener of the Crofting Commission, Colin Kennedy, possibly mistakenly believes that it does.

Colin Souter was specifically advised by the Crofting Commission that his:-

principle responsibility as Constable will be to discharge any outstanding actions required to ensure the duties imposed under the Crofting Acts and the grazings regulations are fulfilled.

This was to “be a short term measure” until “any outstanding actions are discharged“.

It would appear that he has not actually sought to discharge those outstanding actions but instead has gone on a fishing expedition to try and justify for his masters his illegal appointment. Did someone in the Crofting Commission give him this illegal remit? If so who and why?

Mr Souter is certainly firmly of the view that this is his role: boldly stating on his LinkedIn profile that his current appointment, via Colin Souter Consulting, is that he is:-

Engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity.

Hmm… He is not appointed to support the Crofting Commission: He is appointed to support the shareholders in the Upper Coll Common Grazings. He is not appointed “in investigative and reporting activity”: He is appointed to “administer the Upper Coll Grazings Regulations”.

So even if he was legally appointed he is acting illegally!

In my next post I will look at the very cosy relationship between Mr Souter and the Crofting Commission and/or their Convener which makes this sorry story all the worse.

Brian Inkster

Image Credit: Inspector Clouseau in The Pink Panther Films © United Artists

Catriona moves on from herding the Commissioner(s)

Herding cat(s) at the Crofting Commission

Or was there just one cat at the board room table?

It was announced by Catriona Maclean, at a meeting of the Scottish Government Crofting Stakeholder Forum in Inverness this morning, that she was stepping down as Chief Executive of the Crofting Commission from early October.

She has taken a promotion within the Scottish Government as Deputy Director of the Food, Drink and Rural Communities Division.

Catriona said:-

I will be leaving the Crofting Commission to take up a promotion as Deputy Director of Food, Drink and Rural Communities Division from late October. I am delighted to have been asked to lead on such a key area of work for the Scottish Government.

The Food and Drink sector covers a wide range of industries and creates both jobs and wealth for Scotland. It also has an impact on health and sustainability and I look forward to working with stakeholders to ensure the sector maximises its impact.

That said, it is not without a great deal of sadness that I leave the Crofting Commission and my staff who are all dedicated to providing an excellent service to crofters. Scottish Government is taking steps to fill the vacancy my departure creates and I am confident that the transition will be as smooth as possible and that continuity of service provision will be maintained.

I would like to take this opportunity to thank staff, Commissioners and stakeholders for the support they have given me in the last 3½ years and wish them well for the future.

It is a shame to see Catriona leaving the Crofting Commission at a critical time when there is still so much to be resolved in connection with the Common Grazings debacle.

It appears clear from documents obtained via Freedom of Information requests that Crofting Commissioners acted contrary to her advice in appointing grazing constables in circumstances where she had advised them it was illegal to do so.

It must have been difficult for her to be in the situation of providing proper and valid executive advice to a board who ignored it. Perhaps no surprise then that she is moving onto bigger and better things when the opportunity arose.

I wish her well in her new role which I imagine comes with the joy of no board to herd!

The Scottish Government now need to act swiftly by putting in an interim Chief Executive at the earliest possible opportunity. That Interim Chief Executive must try and resolve the internal conflict that clearly exists within the board and the issues surrounding Common Grazings that appear to have been created by the Convener. The question of seeking to prevent shareholders receiving SRDP and, possibly also, VAT funding being particularly serious.

There have been many calls for the Convener to step down and crofters will possibly be wishing that today’s news revolved around such a resignation rather than seeing the Chief Executive leaving the organisation.

Brian Inkster

Crofting VATgate

Hector the Inspector - HMRC Taxman - Crofting VATgate

Who is the VAT Inspector?

In his letter to shareholders at Upper Coll the grazings ‘constable’, Colin Souter (who was illegally appointed in my view, and in the view of others including, ironically, the Crofting Commission themselves) stated:-

Following receipt of legal opinion from Queen’s Counsel, the position of Grazings Committees being able to register for VAT as trading entities in order to reclaim VAT has come under scrutiny. The dialogue with HMRC regarding VAT status remains ongoing and once concluded, I will be able to advise on the outcome.

Why and how on earth was Colin Souter in receipt of legal opinion from Queen’s Counsel on the question of whether common grazings committees could be VAT registered?

A suggestion on this blog that Colin Souter may have instructed the Opinion was met with this response from Mr Souter:-

I should also point out that I have never sought legal advice from Queen’s Counsel in any context, since being appointed as Grazings Constable.

I then asked:-

Perhaps you can enlighten us as to how you came to be in “receipt of legal opinion from Queen’s Counsel” as stated in your letter to the Upper Coll shareholders?

Mr Souter has yet to answer my question.

So who instructed this legal opinion, who paid for it and why?

How did Colin Souter come to be in possession of it and why?

In his dialogue with HMRC is Colin Souter trying to stop VAT registration at Upper Coll Common Grazings and if so why?

It can only be assumed that the attempt to stop VAT registration of common grazings probably lies at the door of the Crofting Commission. Would this not be how a grazings ‘constable’ appointed by them would be in possession of such information?

We are already aware that the Convener of the Crofting Commission, Colin Kennedy, was of the view that common grazings should not receive SRDP funding. This very alarming notion (an issue that did not concern the crofting regulator and/or its convener in any way) was firmly quashed by Fergus Ewing MSP.

It is therefore not a giant leap to think that the Crofting Commission and/or their Convener might be behind this attempt to stop common grazings being VAT registered.

If that should prove to be the case it is scandalous.

Questions regarding whether crofters should be VAT registered or not have absolutely nothing to do with the Crofting Commission. It is a matter between crofters and HMRC.

Public money should not have been spent on the opinion of Queen’s Counsel on such matters. If that has happened Audit Scotland should be investigating the issue. Another one for them to add to the growing list for their next visit to Great Glen House.

But more significantly why is the Crofting Commission and/or their Convener intent on depriving crofters of income? First it was SRDP funding. Now it appears to be VAT.

Under and in terms of the Crofters (Scotland) Act 1993 the Crofting Commission has as one of its functions:-

promoting the interests of crofting

On their website the Crofting Commission state that it:-

regulates and promotes the interests of crofting in Scotland to secure the future of crofting.

This statement links through to a general leaflet on crofting that states:-

The Crofting Commission is working to secure the future of crofting by creating and promoting a well regulated crofting system that positively contributes to the sustainability of rural communities.

By seeking to deprive crofters of SRDP funding and now, possibly, VAT the Crofting Commission cannot be said to be promoting the interests of crofting, securing the future of crofting or positively contributing to the sustainability of rural communities. Quite the contrary.

If Commissioners are acting in such a way, completely contrary to the functions that the Crofting Commission was established to carry out, then those commissioners responsible have no place in that organisation. They should be ashamed of themselves.

They are clearly “unable or unfit to exercise the functions of a member” or “unsuitable to continue as a member”. As such the Scottish Ministers may remove them from office under and in terms of the Crofters (Scotland) Act 1993. There have been repeated calls over recent months for such action to be taken but if ‘Crofting VATgate’ does fall at the door of the Convener and/or any other Commissioners then this surely is the final straw that broke the camel’s back.

Fergus Ewing MSP, as Cabinet Secretary for the Rural Economy and Connectivity with responsibility for Crofting, should immediately launch an investigation to get to the root of ‘Crofting VATgate’, publicise his findings for the benefit of crofters and take appropriate and decisive action against those responsible.

Brian Inkster

Image Credit: Hector the Tax Inspector © HMRC

What the Grazings ‘Constable’ didn’t do

What the Grazings Constable didn't do

Was the wrong list entered into the constable’s little black book?

With all the fuss over the apparent failings of successive grazings committees over the years at Upper Coll attention has been drawn away from what Colin Souter should actually have been doing himself assuming that his role as grazings constable was a legal as opposed to an illegal one.

As disclosed in my last post the letter of ‘appointment’ from the Crofting Commission addressed to Mr Souter stated:-

The appointment is for 6 months from the date of the Order. However the intention is that this should be a short term measure and once any outstanding actions are discharged, that you arrange a meeting of shareholders at which you will resign and a new committee will be elected by the shareholders to manage the grazings in accordance with the Regulations and the Act.

This letter also stated that:-

Your principal responsibility as Constable will be to discharge any outstanding actions required to ensure the duties imposed under the Crofting Acts and the grazings regulations are fulfilled.

This in effect was referencing the fact that following their removal from office the former committee highlighted to the Crofting Commission a list of matters that needed attending to.

Whilst the Crofting Commission erred in law (surprisingly knowingly) in appointing a grazings constable to attend to these matters it may be that their intentions in so doing were in good faith and to ensure that the list of matters highlighted to them were in fact attended to. Anyway, that appears to be the remit given to Colin Souter.

However, his report issued to shareholders on 29th August does not mention any such activities. In light of this shareholders at Upper Coll have, not surprisingly, stated:-

This constable has interfered in things he should not have and left undone the things he should have.

They have asked:-

But what has he not done?

And they have provided a list of what that might be:-

  1. Has he processed the IACS for the village?
  2. Has he submitted an application for the Agri-Environment Scheme that could have taken in some funding to the village?
  3. Has he worked out a Summer and Winter Grazings Timetable?
  4. Has he progressed the Croft Registration for 30 shareholders that had been well advanced before the committee were dismissed?
  5. Has he progressed the feu requests from couples desiring to build and live in Upper Coll?
  6. Why has he not been actively pursuing the Crofting Commission for the reimbursement by them of the money paid out by Upper Coll in feu dispositions. An instruction by the Crofting Commission to Upper Coll Grazings Committee that has since been proved illegal!
  7. What efforts has he made to heal the tensions and differences experienced within the village? Surely that should have been one of his first tasks!

If these matters have not been actioned then it would appear that Mr Souter has failed in the remit given to him by the Crofting Commission.

If that is the case then clearly the time has come for him to step aside and let those that know what need to be done do the necessary on behalf of and for the benefit of the shareholders.

If he has in fact dealt with these matters then he should be reporting that fact to the shareholders and resigning as constable as the Crofting Commission indicated should happen in their letter of ‘appointment’.

As indicated in my last blog post such a ‘resignation’ is what the similarly illegally appointed grazings constable at Mangersta Common Grazings saw fit to sensibly do.

Although arguably Colin Souter cannot resign from an illegal position that gives him no status or authority in the first place.

But the ‘resignation’ (as was the case in Mangersta) may have symbolic significance.

As suggested in my last blog post it may at least draw a line under his interference in the workings of a common grazings where the vast majority of the shareholders simply wish to get on by themselves with controlling their own destiny and their own finances.

Let’s hope that common sense prevails. Although, unfortunately, common sense does not often feature in this Common Grazings debacle.

Brian Inkster

The Wrong Grazings Committee!

The Wrong Grazings Committee (Grazings Constable gets confused)

Eh by gum, Gromit, no one told me that they appointed a new grazings committee every three years! Pass the cheese please.

It was reported in The Scottish Farmer this week that:-

New evidence has been revealed that appears to justify the Crofting Commission’s unpopular intervention in the financial affairs of a common grazings committee.

This ‘evidence’ was presented in a letter to shareholders in the Upper Coll Common Grazings by the grazings ‘constable’ Colin Souter. A grazings ‘constable’ illegally appointed in my view, and in the view of others including, ironically, the Crofting Commission themselves.

Many of the allegations made by Mr Souter actually, it transpires, relate to decisions made by shareholders when previous grazings committees were in power. Not the latest one which the Crofting Commission summarily removed from office for producing five years of financial statements prepared by an accountant rather than five years of “audited” accounts as demanded unfairly by the Commission.

Actions by past grazings committees cannot be used as evidence to justify the removal from office of a grazings committee that had no part in those actions.

Indeed it would appear that Mr Souter has been spending his time (and presumably as a result the shareholders money) trawling through the history of Upper Coll Common Grazings attempting to find fault wherever he can. His efforts in this regard go way back before the five year ‘audit’ period sought by the Crofting Commission.

Indeed the two main issues highlighted in the report by The Scottish Farmer date back to 2008/09. There have been three new grazings committees at Upper Coll since then!

Gordon Davidson reports in The Scottish Farmer:-

Top of his list was an application lodged with Comhairle Nan Eilean Siar seeking a grant under their Unadopted Road Upgrade Scheme, seeking £10,000 of matched funding to be spent on upgrading the landlord’s Ghearraidh Ghuirm private road.

In doing so, the former committee undertook to spend £20,000, including the CNES grant, of shareholders’ money on upgrading this section of road and also accepted the subsequent road maintenance obligation, in perpetuity – a decision of clear benefit to prospective few [sic – should have been “feu”] buyers, but with no apparent link to the maintenance or improvement of the common grazing.

“Thus, the spending of shareholders’ money in this way, was outwith the power of the committee at that time, meaning they acted outside of the law and the legal protection normally afforded,” noted Mr Souter.

This is what certain shareholders at Upper Coll have to say about this particular matter in a letter issued to shareholders in response to the one issued by Mr Souter:-

He accuses the then Grazings Committee of match funding the improvements to the Gearraidh Ghuirm Road behind Donald Campbell’s Garage. This is grossly untrue. The village did not put any money into this. The Councillors then in office helped facilitate the financial match funding from sources including contributions from residents. The village used some of this money to repair the road going out to the quarry, which in fact was an aid to the shareholders using the quarry and the peat-road! This was in 2008!!

Gordon Davidson also reports in The Scottish Farmer that Colin Souter:-

also found that the former committee had, in 2008/09 sought to earmark areas of common grazings land to be sold off as housing plots, and paid for the feu design work out of shareholders’ grazing funds, again acting outside of the law.

I asked shareholders at Upper Coll about this and was told that it was 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.

Indeed consent to the sale of one such house site was raised as an agenda item at the meeting in November 2015 attended by the Crofting Commission, including Convener Colin Kennedy. This was approved at that meeting by the shareholders present. Of course the resumption application would be advertised in due course giving all and every shareholder the right to object should they wish to do so.

The house site under debate in November 2015 was, rather ironically, allocated to a relation of Ivor Matheson who brought the original complaint against the grazings committee and was so vocal in this week’s Scottish Farmer in support of the actions of Colin Souter which suggest this enterprising initiative on the part of the 2008/09 grazings committee to have been unlawful!

Ultimately shareholder funds are there to be utilised as shareholders want them to be. If all shareholders are happy to divert funds into a scheme on the common grazings that will result in benefit to members of the shareholders families, strengthen the crofting community and ultimately give a financial return what is wrong with that?

I do not believe that even Ivor Matheson would be looking for repayment of his share of the £520 (i.e. £12.38) spent on the feu design work given the benefit that small payment has had to his family.

It is clear that Mr Souter is making assumptions left, right and centre without appraising himself of the true facts. He is meddling in matters that are of no concern of his. He appears to have a goal, possibly at the behest of the master(s) who appointed him, to find fault with the former committee to justify his existence. He forgets he was illegally appointed and, like the Crofting Commission, has not been able to justify with reference to statute or case law the validity of his appointment. He forgets that grazings committees are appointed every three years and he cannot point the finger of blame at the last committee for the actions of their predecessors.

Ultimately, however, Mr Souter has produced a list of petty ‘faults’ most of which can be dismissed out of hand. He has certainly failed to produce the ‘gamechanger‘ that his master(s) may have wished him to find but that he had no remit to ever look for in the first place.

It should also be borne in mind that the initial action by the Crofting Commission against the former grazings committee at Upper Coll that ultimately resulted in the ‘appointment’ of Mr Souter centred around their misinterpretation of the law. A misinterpretation that the Commission have been reprimanded for by Fergus Ewing MSP and apparently has been accepted as such by them.

It has become a farce (although arguably has been for some time). Mr Souter and his master(s) look more ridiculous by the day over their handling of this whole sorry affair. In the process it is not reflecting well on the Scottish Government who have overarching responsibility for crofting.

In the letter of ‘appointment’ from the Crofting Commission addressed to Mr Souter it is stated:-

The appointment is for 6 months from the date of the Order. However the intention is that this should be a short term measure and once any outstanding actions are discharged, that you arrange a meeting of shareholders at which you will resign and a new committee will be elected by the shareholders to manage the grazings in accordance with the Regulations and the Act.

So the Crofting Commission saw the ‘appointment’ as short term and possibly expected it to have come to an end by now. Mr Souter’s duty was “to discharge any outstanding actions“.  It is unclear whether he has in fact even applied himself to such a task and I will look at that in a further blog post. He appears, on the face of it, to have concentrated on a forensic examination of the history of Upper Coll Common Grazings. Something that he had no remit to do even if he had been legally appointed as a grazings constable.

The majority of shareholders at Upper Coll who attended a meeting convened for that purpose (there being no dissenters) have made it clear that they want nothing more to do with Mr Souter. They want to form a new grazings committee.

Mr Souter should respect the wishes of the shareholders who he supposedly represents. He should now do the honourable thing and ‘resign’ from his role as grazings ‘constable’ without further delay. He does not actually need to arrange a meeting of shareholders to do so, he can simply send them a letter or advise the Crofting Commission of his decision to do so and let them advise the shareholders accordingly.

This is what the similarly illegally appointed grazings constable at Mangersta Common Grazings saw fit to sensibly do.

Although arguably Colin Souter cannot resign from an illegal position that gives him no status or authority in the first place.

But the ‘resignation’ (as was the case in Mangersta) may have symbolic significance. It may at least draw a line under his interference in the workings of a common grazings where the vast majority of the shareholders simply wish to get on by themselves with controlling their own destiny and their own finances. They want to do so for the benefit of a community that Mr Souter and his master(s) appear intent on destroying.

Brian Inkster

Image Credit: Wallace & Gromit in The Wrong Trousers © Aardman Animations

Crofters and Lawyers

Crofters and Lawyers - Yes they could instruct Rumpole!

It isn’t just the Crofting Commission who can instruct crofting law advice!

It was reported in The Scottish Farmer this week that, as part of the ‘findings’ of the illegally appointed grazings ‘constable’ to Upper Coll Common Grazings, Colin Souter had said in a letter to shareholders that:-

I have also written to the solicitor, Brian Inkster who was apparently engaged by the former Committee, to provide them with legal advice in their dispute with the Commission. Mr Inkster was paid £600 in fees from shareholders’ funds in April 2016. There is nothing in the 1993 Act which permits shareholders’ funds to be used in this way. In addition, there is no record in the Minutes of the decision to engage Mr Inkster, the brief involved or the paying of his invoice having been put to or approved by individual shareholders. Thus, the spending of shareholders’ money in this way, was outwith the power of the Committee at that time, meaning they acted outside of the law and the legal protection normally afforded. Such arbitrary decision-making is outside of the power of the Committee, where it commits spending and serves only to undermine the trust between Committee and shareholders.

In the first letter received by me from Mr Souter on this topic he boldly states:-

Nowhere in the Act, is it provided that shareholders’ money can legitimately be used to pay for legal services when a Grazings Committee is in dispute with any organisation, body or individual. For such to even be contemplated, I would consider it necessary for at least a unanimous vote by shareholders, to support the move. However, there is no indication in the Minute records of such a meeting, discussion or vote having taken place amongst shareholders. I consider it would be highly questionable, even under such circumstances, faced with the narrow terms of statutory responsibility held by Grazings Committees, that shareholders’ money, held for spending on maintenance or improvement of the common grazing, could legitimately be spent on legal advice from any solicitor.

With acceptance of this point, comes the ethical question of receiving the money, fully understanding the source and yet presenting the cheque for payment, (as an expert in Crofting legislation), with specific knowledge of the restrictions under the Act.

He then went on to ask me, in the circumstances, to send him a cheque for £600!

In the absence of receiving such a cheque from me he wrote again this time seeking the payment once more and also asking me for copies of certain documents that he would be willing to pay me a fee to receive. A bit ironic surely that he can pay solicitors fees all of a sudden when supposedly representing shareholders who he claims cannot!

He also, in this most recent letter, went on to threaten me:-

I offer this additional and final opportunity for you to respond on the matters raised in the initial correspondence and that above, before deciding upon the necessity for further action, which if taken, may well afford the benefit of free publicity but with the detail being made public, may nevertheless impact adversely upon your professional standing.

He concludes with the threat of raising a small-claims action against me presumably in the Sheriff Court.

View from Upper Coll

This is what certain shareholders at Upper Coll have to say about the matter in a letter issued to shareholders in response to the one issued by Mr Souter:-

He questions the legality of grazings committees seeking and paying for legal advice. In our case, Inksters Solicitors, who are well versed in Crofting Law were asked by the Grazing Committee to investigate the legality of the Upper Coll shareholders having to distribute the money received from feu dispositions with such haste by the Crofting Commission. He was given a limit of up to £600 to do so. This was actioned prior to the Grazings Committee being put out of office.

Inksters in their investigations were instrumental in the Crofting Commission performing a U-turn on their directive to Upper Coll (it was found that they were in fact acting outside the law!) and saving countless grazings a considerable amount of money!

It is ironic that Mr Souter finds fault with Upper Coll shareholders employing a legal expert to successfully show the injustices of the Crofting Commission whilst he himself while acting for the Upper Coll shareholders (in his opinion!) seeks the counsel of a QC to enquire as to the legitimacy of the Upper Coll Grazings being VAT registered!!

These shareholders at Upper Coll also make the following general point:-

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.

He is also under the mistaken impression that the clerk took actions on his own initiative. That is untrue. The clerk’s actions were always as a result of decisions and actions approved by the majority of shareholders. If the clerk was at fault so were all those present at meetings who asked him to act on their behalf.

The constable seems to place blame on successive committees, when in fact all actions were approved at open shareholder meetings. The clerk, unlike the constable, only took action after being instructed to do so by shareholders.

View from the Crofting Law Blog

Mr Souter clearly has no idea about what his role is and what he should be doing even if he was appointed legally as a grazings constable which he has not been. On one hand (according to him) shareholders cannot seek legal advice, but on the other hand he can take unilateral action on their behalf (and presumably at their cost) with no discussion or agreement from them whatsoever.

He hasn’t a clue about the law and given that he thinks shareholders cannot seek legal advice under and in terms of the Crofters (Scotland) Act 1993 he will presumably not be able to seek such advice himself to assist in his deliberations.

Having said that Mr Souter is apparently in receipt “of legal opinion from Queen’s Counsel” on whether Grazings Committees can register for VAT. It is not clear whether he, the Crofting Commission or some other party instructed this opinion. I will explore this specifically and in detail in future blog posts.

However, he seems able to instruct “agents“. It has been reported that:-

He said shareholders are “well aware” from his reports that all scheme applications due were completed by agents acting on behalf of the grazings and “processed accordingly and no financial loss has been suffered”.

A lawyer is simply an agent, no different surely from instructing any other agent to do work on your behalf that may be required?

In any event 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.

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 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 Mr Souter’s masters, who are not often commended for a common sense approach to matters, acknowledge and accept that shareholders can and should seek their own independent legal advice.

Should Mr Souter carry out his threat and raise court action against my law firm I will have no difficulty in defending it and calling the Crofting Commission in as a party to it. There will be a counterclaim for the time, inconvenience and costs caused to me unnecessarily by Mr Souter.

I do not recognise Mr Souter as having any legal standing or authority. His appointment was illegal and even the Crofting Commission knew this to be the case when making it.

Accordingly, I will not be replying directly to his letters. Instead I will be writing to the Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, who has responsibility for crofting. I will, out of courtesy, copy my letter to Mr Souter.

I will be expressing 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.

Brian Inkster

Image Credit: Rumpole of the Bailey © ITV

Not a Grazings ‘gamechanger’

Not a grazings gamechanger

The new, badly programmed, Robotic Grazings Cop introduced by the Crofting Commission unfortunately did not prove to be a gamechanger!

This week’s front page headline in The Scottish Farmer is Grazings ‘gamechanger’.

The news item by Gordon Davidson states that:-

New evidence has been revealed that appears to justify the Crofting Commission’s unpopular intervention in the financial affairs of a common grazings committee.

Colin Souter, the constable controversially appointed to replace the grazings committee at Upper Coll, on the Isle of Lewis, this week wrote to all its shareholders itemising examples of that committee’s “arbitrary decision making” on how shareholders money was spent.

Quite the contrary is in fact the case.

A proper analysis of the ‘findings’ of Colin Souter demonstrates his complete lack of understanding of (a) what the role of a legally appointed grazings constable is (he, of course, being illegally appointed); (b) crofting law; and (c) duties and responsibilities that a grazings constable has towards shareholders in the common grazings.

It also, alarmingly, exposes the true relationship between Colin Souter and the Crofting Commission. More significantly it also exposes a new scandal to hit the Crofting Commission, namely (assuming that Colin Souter is not solely behind it) their attempt to deprive common grazings of finance by seeking to prevent them being VAT registered.

This follows hot on the heels of revelations that the Convener of the Crofting Commission, Colin Kennedy, was seeking to prevent common grazings from receiving SRDP funding!

This attempt by the Crofting Commission and/or their Convener to meddle once more in matters that have nothing to do with their role as a regulator and seek, in so doing, to deprive crofters of finance is the real story here. That is the story that should have made front page news in The Scottish Farmer had Gordon Davidson been tuned into the actual facts involved or had contacted myself or former committee members at Upper Coll for a truer picture. Instead he appeared to rely only on the word of Ivor Matheson (the aggrieved crofter who originally complained to the Crofting Commission) and the misguided ‘findings’ of an illegally appointed grazings ‘constable’.

In subsequent posts on this blog I will consider some of the more salient ‘findings’ by Colin Souter and expose them for what they really are. I will also look at the cosy relationship that Colin Souter appears to enjoy with the Crofting Commission and the real significance of what could easily be referred to as Crofting VATgate.

Brian Inkster

Image Credit: Robocop © Orion Pictures

Update – 4 September 2016: Crofters and Lawyers + The Wrong Grazings Committee!