Some see the ‘constable’ of Upper Coll more like a bounty hunter
Following a statement issued on behalf of the majority of shareholders of the Upper Coll Common Grazings the headline that appeared on Hebrides News was ‘Upper Coll grazings constable slams ousted committee‘. The accompanying article reads as follows:-
The grazings’ officer installed to temporarily run the common grazings at Upper Coll, Lewis, has hit out at claims made by the former grazings committee who were sacked by the Crofting Commission.
Colin Souter, a retired police chief inspector living in Nairn, was drafted in to manage the village’s communal moorland – land collectively used for by all crofters for grazing livestock – while the commission investigated the deposed committee.
Colin Souter pointed out the appointment of a constable is made by the Crofting Commission.
Once appointed, a constable has the same powers, responsibilities and independence in decision-making, as a grazings committee does, bound only by legislation, he said.
Mr Souter stressed: “This has been explained at length to former committee members at Upper Coll, who remain aggrieved at the commission’s decision to remove them from office.
“That decision to remove is presently the subject of a review by the Scottish Land Court and it will be for that court to determine whether the initial complaints made to the commission about the conduct of the committee and the subsequent disclosures, provided sufficient justification for their removal or if the commission acted inappropriately.”
The grazings’ officer went on: “The appointment of a constable in the interim, was a separate matter and was made to safeguard the interests of the shareholders, to address matters of business brought to the commission in correspondence by the former clerk.”
Based on “discussion with aggrieved shareholders and correspondence,” he queries how much support the former committee has from shareholders.
He added: “As all previous signatories had been officially removed from office, and could no longer sign documents legally, as constable I took control of the finances and records, with the co-operation of the bank and of the former clerk and chairman of the committee, who personally handed over to me, the committee records and accounts.”
The former committee demanded the “return of their bank book” but there is no such thing, suggested the grazings’ constable.
Mr Souter said: “In the absence of any formal handover or briefing from the former committee, there was also an obligation placed upon me – in order to support shareholders competently – to establish the facts surrounding the status and liabilities of the grazings and to confirm the proper conduct of the former committee in its decision-making, to verify business had been conducted to the proper legal standard or to remedy, where required.
“It became clear from a review of the records provided to me by the former clerk and chairman, that the former committee was deficient in its record keeping but more importantly, in its procedures, in particular on matters where majority shareholder support was legally required in order to take action, eg. SRDP applications, where such applications are a scheme, under the 1993 Act.”
He stated: “Quite clearly, action was being taken in relation to matters of finance and spending, where majority support, despite being a legal requirement, was neither evident nor documented.
“Even so, it came as some surprise when some former committee members admitted at a recent shareholders meeting they were entirely unaware of the existence of the Upper Coll grazing regulations, passed by their own forebears in the 1980’s.
“One wonders what yardstick was employed to assist the imposition of their own views, however well-meaning or misguided, on fellow shareholders?
“Perhaps this point will help to explain the dissatisfaction and grievances raised to the Crofting Commission and myself by Upper Coll shareholders about the conduct of the former committee in managing the grazings?”
The interim constable added: “None of the foregoing issues have anything specifically to do with the Crofting Commission.
“The commission does not control the grazings or the bank account or finances at Upper Coll. The shareholders do.”
“As constable, I met with shareholders twice in recent months where I have been extremely open and transparent about my role and in my sharing of information, an approach commended from the floor, at the first meeting.
“The detail I provided to shareholders is evident from the very lengthy minutes produced from the meetings, distributed to all shareholders.
“In the past, I have also sought to protect former committee members from potential public embarrassment by holding part of the meetings in closed session, where disclosures were made.”
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.
Regarding villagers plans to elect a new grazings committee, he said: “I raised this issue in recent correspondence with shareholders, when I indicated my term in office is due to expire in the next couple of months.
“It seems some of the former committee are already set to take control of an agenda which I had set out, intending to hold fresh elections and return a new committee in control of shareholder business at Upper Coll.
“The important point however, for all involved, is that the new committee, whomever is elected and whatever its composition, will have a clearer understanding of the legal framework in which they must operate and their own duties and obligations to their fellow shareholders.
“I cannot help but think it would be a progressive step, in this day and age, to see a few female members on the new committee but that has to be a matter for the Upper Coll shareholders.”
Mr Souter said he has written to shareholders in the last few weeks, during the holiday period, providing a brief statement on recent activity.
He will present a fuller report at a planned meeting in September, when he will share more “extensive detail” with the shareholders at Upper Coll and answer questions “they may have on that range of important issues.”
The grazing’s constable highlighted: “It will be for shareholders to determine which aspects of concern, if any, should be highlighted – perhaps for wider benefit across the crofting community – and find their way into the public domain.”
He said: “As with many others, I do not dismiss the concerns of those former committee members who continue to agitate, for being removed from office.
“It is clearly an important and emotive issue for crofting and one that continues to cause great concern across the crofting community.
However, that also places a “heavy responsibility upon the former committee and others contributing on their behalf” to ensure there is a balanced debate based on the facts of the situation, said Mr Souter.
View from the Crofting Law Blog
Colin Souter thinks he has “independence in decision-making“. A grazings constable, if legally appointed, does not. They have to listen to the shareholders who they represents and act accordingly.
Colin Souter states that his ‘appointment’ was made to “address matters of business“. The shareholders appear to be of the view that rather than conducting the business in question Colin Souter has been on the hunt, through historical records stretching back well beyond the five year ‘audit’ period sought by the Commission, for wrongdoing on the part of former committees. Not the role at all of a grazings constable even if legally appointed. The fact that he was under the wrong impression that this was his role is confirmed when he states that he had to “confirm the proper conduct of the former committee in its decision-making, to verify business had been conducted to the proper legal standard or to remedy, where required“.
It is interesting, but perhaps not surprising, that Colin Souter does not address the legality of his appointment. The Grazings Committee were ‘replaced’ by a ‘Grazings Constable’ that I, and others (including bizarrely the Crofting Commission themselves) consider to be illegal. One would have thought that he would be very concerned by this indeed and somewhat relieved that the shareholders plan to replace such an illegal appointment with a legal one.
Colin Souter questions whether the former committee members have the support they maintain from the shareholders. Well, apparently, a meeting was called and there were only four shareholders who abstained (those included the shareholders who brought the initial complaint about the former committee to the Crofting Commission). They were asked if they objected and they said they would prefer to abstain. So looks like majority support to me with no objections.
Colin Souter states that “as constable” he “took control of the finances and records, with the co-operation of the bank and of the former clerk and chairman of the committee, who personally handed over” to him “the committee records and accounts“. But they did not sign mandates allowing him to be signatory of the cheque book. Serious questions must be asked as to how he obtained the status of what is believed to be the sole signatory.
Colin Souter states that “there is no such thing” as a “bank book” to return to the Upper Coll shareholders. Well in this day and age there may not be an old fashioned bank book but there is likely to be bank statements, a cheque book and (more importantly) control thereof. I think we all know what was meant by the statement made by the shareholders about their “bank book” and denying the existence of any such item does Colin Souter no credit.
However, Colin Souter states that “the commission does not control the grazings or the bank account or finances at Upper Coll. The shareholders do.” If that is the case please do actually hand control of their finances back to them as they quite rightly demand.
Regarding villagers plans to elect a new grazings committee, Colin Souter said: “I raised this issue in recent correspondence with shareholders, when I indicated my term in office is due to expire in the next couple of months. It seems some of the former committee are already set to take control of an agenda which I had set out, intending to hold fresh elections and return a new committee in control of shareholder business at Upper Coll.”
Colin Souter previously stated, on 23 June 2016, that the election of a new committee was “still in the distance“. At the time I asked “Why is the election of a new Grazings Committee in the distance? What is preventing that happening sooner rather than later?” The shareholders are clearly and understandably of the same view and may the force be with them in gaining control of their own destiny once more.
Image Credit: Boba Fett who appeared in Star Wars: Episode V – The Empire Strikes Back; and Episode VI – Return of the Jedi © Lucasfilm Ltd
A rather disingenuous picture painted of the support enjoyed by the former Committee at Upper Coll, from a solicitor who should be interested in presenting ALL the facts, to ensure a fair outcome for ALL the shareholders at Upper Coll, not just those who are vocal in the media.
Mr Inkster has carefully omitted that the recent meeting he refers to, attended by shareholders numbered just 13, only 10 of whom were shareholders. 4 abstentions meant that of the 13 attending the meeting, only 9 were supportive of the former Committee.
My arithmetic may not be what it once was but having the support of just 9 out of the 42 shareholders was never a majority. Readers can draw their own conclusions……..
Colin
I was not supplied with numbers and have no idea as to whether or not the numbers quoted by you are correct. I couldn’t carefully omit detail that I did not have in my possession.
As you should be aware it is not unusual for shareholder meetings to be attended by some and not all those invited.
However, whatever the actual numbers involved the fact is that not one shareholder who attended the meeting disagreed or objected to the course of action proposed. There was it would appear clear majority support of all those who attended the meeting.
I reported on this blog the information I received and that as follows:-
“…the majority of those present at a meeting on 25 August 2016 (there being no objections) have issued a statement that calls on the resignation or dismissal of Convener, Colin Kennedy, and Commissioner, Murdo Maclennan. They state that they consider the Grazings Constable to have been appointed illegally and that they will be holding a meeting to nominate and elect a grazings committee. They want their bank account back (the grazings constable having wrestled control of it away from them).”
The detail supplied by you, if correct, simply confirms this statement and does not detract from it in any way. It was indeed, as you confirm, a decision by a “majority of those present at” the meeting in question.
I expect your readers will conclude, as I have done, that if the former Committee enjoyed the level of popular support you have suggested, in what has undoubtedly been difficult times for ALL shareholders at Upper Coll, then the attendance shown in support of the former Committee would be at a consistent high level. 10/42, being less than a quarter, seems rather low for a meeting on such a critical issue. Might I suggest that the silent majority “voted with their feet”?
I’ve made my observation and am obliged to you for publishing it on your blog. Having made what I think is an important point, I don’t think there’s a need for me to comment further, other than directly to shareholders and answer their questions at the next meeting. Thanks.
Colin
I doubt that readers of this blog would necessarily reach that conclusion.
If any shareholder had been strongly opposed to what was being proposed surely they would have attended the meeting to voice their opposition. That no one at all did so surely speaks volumes.
Colin,
Brian Inkster has just made a range of criticisms of your position and role at Upper Coll. Some of these are pretty serious, I think you will agree. Is this comment here the extent of your response to those criticisms?
What is your response to the criticism that your position is illegal? What is your response to the criticism that, even if your position is not illegal, you have overstepped your legitimacy with the actions you have taken? What is your response to the criticism about your control of the committee’s finances? My reading of this is that you might be open to allegations of financial misconduct?
You are reported as saying: ‘However, that also places a “heavy responsibility upon the former committee and others contributing on their behalf” to ensure there is a balanced debate based on the facts of the situation, said Mr Souter.’
‘a balanced debate based on the facts’
Yet, as far as I can tell from your comment here, the only fact you can muster in your defence in response to all these criticisms is this: not all of the Upper Coll shareholders were present at the meeting that declared its opposition to your position as constable; although of those that were at the meeting, not one objected to that declaration.
Is this it? Do you really have nothing more to say about all of this? When is anyone on the Commission side going to take responsibility for this mess and provide meaningful answers to all these criticisms?
Mr Souter is very keen to point out all the things the grazing committee are supposed to have done wrong but first he needs to tell us where in the Crofting Act it says the role of a Grazing Constable is investigating and finding fault with a previous grazing committee. It doesn’t. Unfortunately looks like he has been misled by the Crofting Commission as to what his role is.
Next, he now knows his position is illegal so he, or better the Crofting Commission, need to tell us why he thinks he has any authority to tell a grazing committee anything. Or even still be in his position. But even if his position was legal, and even if it was a legal power of a grazings constable to investigate and chastise a previous committee, which it isn’t, lets look at one thing he has lambasted the grazing committee for. He said:
“It became clear from a review of the records provided to me by the former clerk and chairman, that the former committee was deficient in its record keeping but more importantly, in its procedures, in particular on matters where majority shareholder support was legally required in order to take action, eg. SRDP applications, where such applications are a scheme, under the 1993 Act.”
He needs to explain where exactly in the 1993 Act it says majority support is “legally required” for an SRDP scheme. Is he getting confused with 19A – Scheme for Development. Or maybe 50 / 50A – forestry scheme, or 50B – use of grazings for another purpose (than grazing). None of these are in any way relevant to an SRDP scheme which should be classified under maintaining and improving the common grazings, a legitimate duty of a grazing committee under 48 and 49 of the act which does not need shareholder support if there is no cost to the shareholder.
When the grazing committee members complained he hadn’t applied for schemes and they would be asking for compensation for loss of income, he is reported as saying that:
“…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.”
So while according to the Grazings Constable’s muddled understanding of crofting law the grazing committee has to get “majority shareholder support” for applying to ‘schemes’ and if they don’t they are in breach of the 1993 Act and get a serious telling off, Mr Illegal Grazings Constable Souter can cheerfully apply to schemes without consulting any shareholder or seeking majority support. And then he can just report what he has done to shareholders.
Nice work Mr Do What I Say Not What I Do Illegal Grazings Constable Souter.
We are told Colin Souter is a retired Chief Inspector. You would expect someone who rose to such high ranks in the police force to understand the rule of law. To have a firm grasp of police powers, of relevant legislation. So you would expect him to at least pause when he finds out that eminent lawyers, Including Donald Rennie, Honorary President of the European Council for Rural Law, have stated categorically that his appointment was unlawful. More importantly it is obvious he DOES read the Crofting Law Blog. For a while you wondered if he didn’t. So since 25th July, when Brian Inkster broke the story on this blog, Mr Souter now knows that even the body that appointed him was fully aware that his appointment is unlawful. He now know he is the Illegal Grazings Constable for Upper Coll.
As everyone agrees his position is unlawful, then, as a policeman he must understand that everything he has done since his appointment has been unlawful. Without legal powers to do so, the Crofting Commission produced a spurious ‘Order’ to dupe the Grazings Constable and the bank into thinking it had the powers to do so. However Mr Souter now knows that he was duped. That he presented himself at a bank with the spurious order, believing himself to have been given the powers to take over the bank account. But as he was an illegal appointee, he must now understand he falsely claimed to the bank to be in a legitimate position. He has therefore without legal authority taken over a bank account belonging to Upper Coll Grazing Committee. And the bank, equally duped, has allowed this, against banking code, to take place.
As a senior policeman you would have thought he might have questioned the powers supposedly invested in him by the Crofting Commission. He must know that creditors cannot access debts from debtors bank accounts unless they apply for a court order. That the police themselves can only access criminal accounts through the powers given them by the Proceeds of Crime Act; that the only other obvious route for legally accessing someone elses bank account is through Power of Attorney, for someone with mental incapacity. Didn’t he ask questions? Was he taken in by Convener Kennedy? Of course there is another route for accessing other people’s bank accounts. Which a retired policeman must know is illegal. Bank Fraud.
We have worked out from the Crofting Commission’s statement last week that they considered the Minister Fergus Ewing’s letter on 21st July. That means the Minister’s letter was written before the Crofting Law Blog broke the story that the Commission knew the appointment of Grazings Constables was illegal when they had themselves removed the committee. Mr Ewing wrote the letter before the story broke in the BBC and on this blog of the cost to the public purse of these extraordinary actions by a public body. Those costs continue to rocket by the way as the Crofting Commission wastes public money on a land court case trying to prevent the Scottish Land Court from telling them something we all now know they already knew through their own Chief Executive’s advisory papers. But which against all sense or good judgement they chose to ignore.:- That the appointment of a grazings constable in those circumstances is illegal. A public body that deliberately and knowingly breaches its own legislation has lost all moral authority to regulate. This is what the Upper Coll shareholders have recognised And good on them for their courage.
So, now he knows all of this additional and shocking information about the public body for which he is ultimately responsible, what VERY urgent action is Fergus Ewing, Minister, now taking to bring down this rogue elephant of a public body? A tranquilisier shot seems the only route left. It is blind, mad, irrational and careering round the crofting areas wreaking havoc, bellowing and raging and refusing to stop, causing real human damage and damage to crofting. The failure of the Scottish Government to deal decisively with a public body led by someone who seems uncontrollable surrounded by Commissioners and Chief Executive about as effective as sheep with scrapie is a national scandal. If ever we needed decisive and effective action from a government Minister to help crofting. It is now.
Brilliant! wouldn’t hold my breath though awaiting the wheels of procedure to start turning, O and yes Donald Rennie is / was a good lawyer..he worked very close with the crofting convener not so long ago, alas! albeit in other life.