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

11 thoughts on “The Crofting Bat Phone

    1. Brian Inkster Post author

      Yes John

      The MP and MSP seemed more active in this at the early stages. Not sure why they would have gone quiet at the point when evidence begins to go overwhelmingly against the Crofting Commission. Time they should be being vocal and taking action.

      Reply
  1. Linda Brackenbury

    Brian, if I may call you that?

    With regard to Colin Souter, you could try asking Lewis Kermack if he knows him, given that they both hail from the same area and both have one way or another interests in the building/construction/property/selling and buying of houses industry, as is the convener.

    And with regard to the Mangersta common grazings.. don’t you think it just a tad odd that the crofting commission should put Donald Harrison in charge up there?

    Donald Harrison is one of the convener’s oldest friends and regardless of what business Donald Harrison had/has on the Island of Coll, he lives with the convener whilst he conducts his business, whatever that may be.

    Nothing quite like keeping it in the family, of course I could be wrong.. and the reader/s know different.

    Reply
    1. Brian Inkster Post author

      Linda

      You may, of course, call me Brian.

      I had been aware, and eyebrows were raised by many, at the appointment of Donald Harrison as grazings ‘constable’ at Mangersta given his close association with the Convener.

      Conflicts of interest don’t seem to be an issue at Great Glen House.

      Reply
  2. Duncan MacLeod

    A clear conflict of interest if true and as any member of a public body board would know, under the terms of Ethical Standards in Public Life, Convener Kennedy should have declared the interest and removed himself from any involvement in the case. Just like he should not have taken part in decisions on Upper Coll case while there were outstanding complaints against him. But he did not as shown by FOI published in the WHFP. This was also a clear conflict of interest. So the two most controversial decisions and the Convener should have been nowhere near them. And what different outcome would there have been then?

    We can guess this Convener is so devoid of good sense he will not save his own skin or the Commission by beating a hasty retreat.

    We have given up on the supine puppets of the other Commissioners.

    So the only person left is Minister Fergus Ewing. How can he bear to allow this complete disregard for standards in public life, the erosion of trust in a public body, this complete mess that is the public regulator of crofting to continue? The longer it goes on the deeper the damage. The harder it will be for the Commission to rebuild trust. This Convener has dragged a public body into the gutter. Almost nothing but negative publicity since November 2015. Weekly negative publicity for the last 6 months. When will the Minister say “enough is enough”?

    Reply
    1. Brian Inkster Post author

      Thanks Duncan

      I agree with you completely.

      The conflict of interest point, as you say was previously highlighted in the WHFP, is one I will highlight again on this blog in a dedicated post for completeness. Had intended to do so before now so your comment acts as a timely reminder

      Reply
  3. Colin Souter

    Mr Inkster,

    I originally commented back to you via your blog, to ascertain your willingness for any engagement. This followed a repeated refusal by you to acknowledge or respond to my official correspondence. Given recent blog coverage, I must conclude that your desire for an audience in these matters overwhelms any interest in bringing matters for Upper Coll shareholders to a proper conclusion. If that is the case, it is indeed a disappointment.

    I will add that were these matters not so serious, the amount of time spent, in recent days, speculating and opining on my activities as Grazings Constable, would indeed be flattering. I appreciate its your time and you can spend it as you wish.

    I would much prefer that professional courtesies were acknowledged and respected and a more productive dialogue was forthcoming. I will also add that given the nature of the difficulties at Upper Coll and some of the issues disclosed, which were clearly judged to have wider implications across the crofting counties, it is only natural, in my view, that in seeking to apply solutions for Upper Coll, some thought would be given to the impact or benefits that might follow for other areas. Of necessity, this would involve direct ongoing engagement with the Crofting Commission. As stated elsewhere and detailed at the outset, to Upper Coll shareholders, the Commission has provided advice and support to me in my role as Grazings Constable. I have however, strongly guarded my independence in decision-making, throughout my term and will continue to do so. Had the Commission sought to exert influence upon me, then shareholders would have been made aware immediately and I would have complained to the Public Service Ombudsman.

    In relation to VAT, all I can say is that the matter is with HMRC at present for a determination. Should they conclude Grazings Committees are eligibile for registration, no one will be happier than me. I have no wish to damage any crofting interests – with family involved in crofting, I would say far from it. Should HMRC deem, as opined by a very learned and respected crofting QC, that there is no such power to register, it will be apparent to all observers that Grazings Committees have been very poorly served by those crofting experts in the legal profession directly engaging with them, over such a long period. And should HMRC seek repayment of VAT from Committees, perhaps those experts might consider compensating them? (rhetorical). Addressing the VAT position is just one step in putting matters right for Upper Coll. It may also help to clarify that the issue of VAT registration stemmed from its inclusion by the former Committee in the account statements it presented to the Commission. Figures were presented in a way that did not separate out the income streams for which VAT could be reclaimed. This led on to the question of VAT eligibility, and whilst I am now speculating, I can only surmise that as the regulator, the Commission had no choice but to then seek a view from Queen’s Counsel, in response to the views offered by those examining the accounts.

    I won’t be commenting further on your blog, on the questions that you continue to pose or on the very creative inferences you continue to draw, as my answers on these issues are essentially for shareholders at Upper Coll. If however you are serious about the betterment of crofting and the impact of these issues at Upper Coll and on the wider crofting community, I would be pleased to meet with you at any point, to discuss matters of mutual interest.

    Reply
    1. Brian Inkster Post author

      Mr Souter

      I have, of course, engaged with your comments on this blog.

      I have, however, made it clear that allegations and threats by you, which have no standing in law, in personal correspondence is not something I am going to engage in with you. That is a matter I am referring to the Scottish Government to deal with appropriately.

      My desire is one of justice for the crofters so badly treated by the Crofting Commission and yourself. Especially so in circumstances where you now claim that grazings funds cannot be spent on legal advice!

      My main interest is indeed bringing matters for Upper Coll shareholders to a proper conclusion. I would see a first good step in that process you accepting that they do not wish you interfering in their affairs and you stepping aside to allow them to control their own destiny.

      The matter that is so serious is the manner in which the Crofting Commission have gone about dealing with this sorry affair and I will spend my time exposing the terrible injustices carried out by them. I am receiving nothing but support in my endeavours in this regard other than perhaps from you and Lewis Kermack.

      You have shown no professional courtesies to me given that your stance has been one that lawyers cannot provide legal advice to grazings committees due to the lack of anything in the Crofters (Scotland) Act 1993 saying that they can!

      Your role, if you were legally appointed as a Grazings Constable, would not have been to seek “to apply solutions to Upper Coll” it would have been to assist, as Clerk, in the day to day management of the grazings.

      You completely misunderstand your remit and function.

      Thank you for confirming your “direct ongoing engagement with the Crofting Commission”. Please advise us who in the Crofting Commission that has been with and in particular who has supplied you with documentation that no other grazings clerk in the land has seen. Do you not think it odd that you have been given this privileged status?

      You state that you have “strongly guarded” your “independence in decision-making”. Again this demonstrates how you misunderstand your position and your powers, assuming you were legally and not illegally appointed. Decisions should be taken by the shareholders and then acted on by you. You criticise former committees for not doing this although they maintain that they did. It certainly seems as though you have one rule for them and anther one for yourself.

      In relation to VAT why is the matter with HMRC at present for a determination? Did you get the shareholders agreement to so refer it?

      You state that “should HMRC deem, as opined by a very learned and respected crofting QC, that there is no such power to register, it will be apparent to all observers that Grazings Committees have been very poorly served by those crofting experts in the legal profession directly engaging with them, over such a long period.”

      This, once more, demonstrates ignorance on your part of the history and facts involved. I do not believe that any crofting lawyer would ever have provided advice to a grazings committee on matters relating to VAT. Such advice, if required, would have been sought from a lawyer specialising in tax matters and not a crofting lawyer. From a practical point of view it is more likely that accountants would have been involved. However, the fact is that it was not lawyers or accountant that were encouraging or making grazings committees register for VAT it was a condition imposed upon them as part of entry to a woodlands grant scheme. Did you know that? Was the QC told that?

      Thus in effect it was the Scottish Government who told grazings committees that they had to register for VAT. Now in effect you are telling the Scottish Government that they got it wrong! I am sure that will go down like a lead balloon in Holyrood as did the attempt by the Convener of the Crofting Commission to tell them they had got it wrong regarding SRDP funding.

      You claim that should HMRC seek repayment of VAT from Committees, that perhaps those crofting law “experts might consider compensating them? (rhetorical)”. Clearly not, for the reasons given above, but I think that if that happened the shareholders at Upper Coll would have very good cause to knock on your door.

      I have no knowledge of what the VAT position should be. That is not the point. The point is that the Scottish Government effectively told shareholders they had to register for VAT to be part of a woodland grant scheme. You then come along and question that in cahoots with the Crofting Commission. You and they have no remit or basis for so doing. It is not your business. It is a matter between shareholders and HMRC.

      It is noted that it was in fact “the regulator, the Commission” who, apparently, “had no choice but to then seek a view from Queen’s Counsel, in response to the views offered by those [presumably you] examining the accounts”. Thank you for clarifying the Commission’s role in this which shows once more their desire to waste public funds on matters that are of no concern to them and inexplicably seek, as a result, to deprive crofters of funding. This appears to mirror the SRDP funding debacle.

      I have already called upon Fergus Ewing MSP, as cabinet secretary responsible for crofting, to investigate the involvement of the Commission in the VAT matter and your revelations make it all the more compelling that he should do so.

      I note that you “won’t be commenting further on [my] blog, on the questions that [I] continue to pose or on the very creative inferences [I] continue to draw, as [your] answers on these issues are essentially for shareholders at Upper Coll”. Hopefully, having raised further questions as a result of this particular comment by you it might just be incumbent upon you to see fit to actually answer those.

      I am sure that the shareholders of Upper Coll would like some answers from you. You can perhaps start by providing them with copies of the Crofting Commission’s Draft Guidance and the QC’s Opinion(s) in your possession. As ‘Clerk’ to the Upper Coll Grazings (if legally appointed to that role) you are only holding these documents for their supposed benefit and not your own.

      I am, of course, very “serious about the betterment of crofting and the impact of these issues at Upper Coll and on the wider crofting community”. That should be clear from anyone reading this blog. I doubt that meeting with you would assist that goal and whilst I hold the view that your appointment was illegal it would seem very inappropriate for such a meeting to take place.

      Reply
  4. Janice MacDonald

    Thank you Mr. Inkster for taking the time to find out the actual facts and for having a genuine interest in helping in the situation at Upper Coll.

    Mr. Souter. It appears that you can find nothing of any value that the dismissed committee and previous committees have done in Upper Coll. I believe that you had originally said that you were going to look after the interests of shareholders, whilst acting as a one man committee.

    You seem to be no further forward that when you started. Your service has very much been for the commission and not the shareholders.

    Reply
  5. Linda Brackenbury

    Mr.Souter, did someone help you write your post? it certainly reads that way to me, lots of words with nothing being said other than that you wanted to bring Mr.Inkster into something untoward. Statements yes you made a few but are backing nothing you’ve said up..

    Reply
  6. Donald Rennie

    Mr Souter says that he has the opinion of “a very learned and respected QC”. He does not give the name of that QC. No one is therefore in a position to judge whether that opinion is worth listening to. He does not say what questions were asked nor what answers were given. The most obvious question to be asked, given that Mr Souter was appointed illagally, is whether this alleged opinion actually exists or whether it has been invented to frighten the bairns, and accordingly is something to be treated with contempt by grown ups.

    Anyone with the most elementary acquaintance with VAT is aware that registration for VAT may be compulsory or voluntary. Compulsory registraion must take place when the turnover of a business exceeds a pre-set level. Voluntary registration can take place when an entity, such as a grazings committee, intends to establish a business which will in due course make taxable supplies. This is not unique to crofting but applies to businesses generally.

    Let us take the example of a management consultant setting up in business. He has to furnish and equip his office and buy computer and other equipment. He wants to be able to reclain the VAT on these items but it may be some time until he is able to get fees in. For such a person, the lead in time is short, provided that he is up to the job and that the fees come rolling in.

    As Brian has pointed out, the requirement for the Upper Coll crofters to register for VAT was because it was a condition of the grant that they received. The reason for this condition was that they will in due course sell the timber and these sales will require to have VAT added to the sale price. It is therefore appropriate that they should be entitled to reclaim the input VAT while the trees are growing and until they are ready for harvest. The time lapse between the registration for VAT and the liability for payment has to be measured in years but there is no difference in principle between the situation of the Upper Coll crofters and that of the hypothetical management consultant.

    The websites of forestry companies which are accustomed to dealing with applications for grants and with new afforestation make it clear that in these circumstances HMRC will allow voluntary registraion. Why would a trustee for crofters in the position of Mr Souter seek to deprive them of additional income?

    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.

    Reply

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