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.
Image Credit: Rumpole of the Bailey © ITV
Very well said.
It appears to me that the twa Colin’s are if not in cahoots, at least rubbing shoulders together.. Colin Souter’s letter/s to yourselves smacks of something the convener himself would write, arrogant in nature.. of he who knows it all! Even going as far as to quote the words of others whether they be real or not..
When we ourselves were going through our own ordeal (and it was) with the Crofting Commission’s convener the police were called many times, until in the end we had to have a permanent policeman on the island.
On occasion I would ask the policeman various questions of law, it could be anything but it was always to do with what was happening to us at the hands of the landlord, invariably the police constables would be unable to answer me, their reasoning being that they did not know certain aspects of the law and they always advised that I talk to a lawyer, they would not interact with me on any level perhaps because I was not the one who was party to the dispute.. they said they were only on the island to keep the peace..
Now it appears to me that Colin Souter knows an awful lot about civil law which as a retired policeman would not have been in his remit, when he was a policeman or am I mistaken.
Civil law is one thing Crofting another..both are complicated, both confuse the smartest among us.. unless of course we are a lawyer.
So where would PC PLOD…be getting his in depth knowledge of all things law-like?
It would seem as if one Colin has been silenced but he is still feeling the need to make himself heard through another Colin
An interesting but misleading commentary. The key point emphasised to shareholders repeatedly throughout my letter, is the spending decisions made without the support of either a majority or all of the shareholders (whichever applies).
Whilst not within the terms of the legislation, it would have been reduced simply to an observation, rather than the serious issue it is, IF the Committee decision to spend shareholders money paying Mr Inkster had been put to and approved by all shareholders. And yet there is no record of such a decision being put to a shareholders or approved by them, in the minute book. This is the key point which Mr Inkster carefully avoids addressing in his article.
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.
Mr Souter
I would remind you of what the shareholders said:-
“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.”
Perhaps before making the statements that you have done you should have asked the shareholders whether they actually approved the spending involved. If any had not done so that would be a matter for them, not you, to take up with the other shareholders involved should they wish to do so.
The law of agency applies when a solicitor is instructed. I will leave you to take your own legal advice (at your own personal cost) on what that means should you deem it necessary to do so.
I for one will now be leaving the matter in the hands of the Scottish Government to deal with unless you accept that you should now do the honourable thing as suggested in my latest blog post.
Thank you for clarifying that you have not sought advice from Queen’s Counsel in any context. 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?