One of the more surprising episodes of ‘The Common Clearances‘ has been the issuing of press releases by the ‘Grazing Constable’ (illegally appointed, in my opinion and the opinion of others) of the Upper Coll Common Grazings.

To my knowledge that ‘Grazings Constable’, Colin Souter, has issued three such press releases to date. I now reproduce those here, with my comments on each added.

‘Grazing Constable’ Report #1 – 12 June 2016

I write briefly in connection with the Common Grazings at Upper Coll, having been appointed as Constable in recent weeks, by the Crofting Commission.

I should firstly stress such appointees are independent of the Commission. One of the main functions is to assume the role and responsibilities of the former Committee, representing the interests of the Crofters, whilst moving as swiftly as possible back to a situation of normality, with crofters being collectively in control of managing their own interests.

I am confident readers will appreciate the resolution to current difficulties will not be achieved overnight. I note there has been much interest, speculation and comment made on behalf of individuals who, I acknowledge, feel genuinely aggrieved with decisions the Commission has made.

On the other hand, it is only right and proper that the Commission, as a public body, should not comment on the specifics of any individual case.

Preliminary legal proceedings are currently underway at the Scottish Land Court, where it remains to be decided if the Appeal against Commission decisions will progress to the next stage. An Interim Interdict application at Inverness Sheriff Court to prevent the appointment of a Constable and further action by the Commission, was heard and refused.

It is likely that the process of the Land Court Appeal, if progressed, will take some considerable time to conclude. I will not be formally commenting in the media on the specifics of matters at Upper Coll, nor in relation to any single individual.

I do however wish to publicly acknowledge and thank those individuals at Upper Coll and elsewhere who have already contacted me since my appointment, to firstly share a collective view that there are matters at Upper Coll which need to be addressed and secondly to voice their support for a co-operative resolution over the coming weeks and months. All impartial observers must surely agree it is in the best interests of all parties to co-operate, to ensure the interests of all the crofters at Upper Coll are and continue to be properly protected.

Comment on ‘Grazing Constable’ Report #1by the Crofting Law Blog

Why, I wonder, did Colin Souter feel it necessary to issue such a statement? Was it because the Crofting Commission were staying silent on the matter? Did they sanction/encourage this statement?

How independent can Colin Souter really be? Did the Crofting Commission not provide him with a list of their ‘concerns’ for his investigation?

He has apparently stated to the shareholders at Upper Coll that his role is an investigative one. Nothing in the Crofters (Scotland) Act 1993 gives him such power other than, perhaps, the duty to report to the Crofting Commission on the condition of the Common Grazings and crofts with a share in the Common Grazings.

If investigations were required concerning any alleged financial impropriety on the part of the former grazings committee that would have been a role for the actual boys in blue and not for a retired police Chief Inspector who appears to think he, once more, has powers he once did. He does not.

If legally appointed, which is disputed, Colin Souter simply has to take on the role of committee and clerk. He is responsible to the shareholders. His role is purely administrative.

‘Grazing Constable’ Report #2 – 23 June 2016

On the evening of 22 June the Constable of the Upper Coll Common Grazings chaired a meeting of shareholders at Tong Village Hall. The meeting, which was well attended, discussed a number of issues and during the closed part of the meeting, the Constable, Mr Colin Souter shared a level of detail around issues and concerns which was clearly unknown to many of those present, prior to the meeting.

Mr Souter, a retired police Chief Inspector explained to the meeting that his appointment followed a communication to the Commission by the former Clerk to the Grazing, highlighting that 12 points of business needed to be addressed as soon as possible.

Mr Souter also explained that the Crofting Commission, as a public body, is unable to comment in the media on issues relating to specific individuals and their conduct but that being independent of the Commission, it was appropriate for him to share more information with the shareholders affected. At the meeting, he received further joint intimation in writing from Upper Coll shareholders, of their dissatisfaction with the conduct of the former Committee and will determine in due course whether that should be considered separately from other matters currently under investigation.

The meeting acknowledged the current position as laid out and discussed a constructive way forward, with a revised set of draft local Grazing Regulations being circulated by the Constable to all shareholders at Upper Coll to replace the current Regulations which date back to 1987. Mr Souter is also inviting contributions and comment more widely, from the Scottish Crofting Federation and National Farmers Union Scotland, as representative bodies, in an effort to secure a wide consensus of agreement. He intimated to the meeting that he was, very reluctantly, being forced to consider Court action as a last resort, in order to recover the Committee records from the former Grazings Clerk. A large number of those shareholders present expressed the view that withholding the records was not helping, declaring that it was acting against the interests of the shareholders and instead invited former Committee members to bear the cost of the Court action, should it go ahead.

The meeting closed on a positive note with an expression of thanks to Mr Souter, from the floor, for an open, informative and well-run meeting.

Mr Souter later said, “I appreciate there is a wide body of interest in events here at Upper Coll. I would like to publicly express my own thanks and appreciation to Upper Coll shareholders able to attend the meeting tonight, for their positive contributions and their willingness to begin moving forward to the point where a new Grazing Committee can be elected. Whilst that outcome is still in the distance, it has moved significantly closer, with a clearer path now defined, and shareholders having a better understanding of the concerns and the issues which brought us to where we are now.”

Note to Editor – the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders. On 16 May, some former committee members made an unsuccessful attempt to interdict the Crofting Commission from further action at Upper Coll. This was followed by submission of papers to the Scottish Land Court, seeking to Appeal against the Commission’s decision to remove them from office. The Land Court is currently awaiting submissions on jurisdiction from both sides, to help determine whether it can hear the Appeal. If the jurisdiction argument is won, the case will become sub judice until eventually concluded.

Comment on ‘Grazing Constable’ Report #2 by the Crofting Law Blog

I wonder if Mr Souter thinks that all grazings clerks should be issuing press releases about shareholders meetings held throughout the crofting counties? Local newspapers could have sections devoted to ‘Common Grazings Reports’ instead of, or in addition to, their usual ‘Court Reports’!

Where did the “issues and concerns” that Mr Souter had to share come from? I trust not from the Crofting Commission that he is apparently independent of?

Interesting that the Crofting Commission cannot comment on matters arising to the media but Mr Souter can. Has he therefore become their spokesman and if so how does that enable him to retain the supposed independence that he claims to have?

Mr Souter refers to “matters currently under investigation”. As commented on by me in connection with his first Report, his role is not an investigative one but merely an administrative one and then only if his appointment was legal which I, and others, maintain it is not.

Why was Mr Souter circulating new Grazings Regulations and who had drafted them and on what basis?

It would seem unusual for a Grazings Clerk to seek views from the Scottish Crofting Federation or the National Farmers Union Scotland on Grazings Regulations specific to a particular grazings.

Court action by a potentially illegally appointed ‘Grazings Constable’ to recover documentation he might have no right to hold would have made for interesting debate in the Sheriff Court! A suggestion that those against whom such an action was to be raised should fund the raising of the action is absurd to say the least.

Why is the election of a new Grazings Committee in the distance? What is preventing that happening sooner rather than later?

Is it perhaps in Mr Souter’s personal interest to delay the election of a new Grazings Committee. The longer he remains in ‘office‘ the longer he receives an income from the arrangement – albeit potentially an illegal arrangement that he should not actually be receiving a penny for.

Mr Souter states that “the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders.”

However, the only reason actually given by the Crofting Commission for the ultimate removal from office of the grazings committee was the failure to produce to them five years ‘audited’ accounts. The grazings committee produced financial statements produced by accountants. The irrationality, inconsistency and departure from legal advice obtained by the Crofting Commission on this point is one I will return to in future posts on this blog.

‘Grazing Constable’ Report #3 – 12 July 2016

Upper Coll shareholders met again on 11 July at a meeting chaired by the Grazings Constable, Colin Souter, who was appointed by the Crofting Commission in May. At this second meeting, shareholders covered a busy Agenda on a range of topics, including the resolution of a long-standing issue on the access of a bull owned by two shareholders, on the common grazings. Shareholders accepted the pragmatic resolution suggested by the Constable, which preserves shareholders rights to graze livestock but at the same time, acknowledges the responsibilities that go with these rights.

Shareholders also voted in favour of a revised set of Grazing Regulations which would encompass key elements of the previous regulations which dated back to 1987. Mr Souter hoped the final draft of the document which had already been subject to wide-ranging consultation would be ready to send to the Crofting Commission for approval, in the next few weeks. During a candid and honest discussion, some of those present, including former Committee members advised they had been entirely unaware of the existence of the 1987 Regulations.

After the meeting, Mr Souter said, “The key to progress here is an acceptance from shareholders that good Regulations make it easier for shareholders and for Committees to interact and minimise the potential for friction or conflict. We are nearly there, in terms of a finished product and whilst there are still a number of other issues for me to resolve with shareholders, we are steadily moving in the right direction. I am grateful for the support shown by shareholders this evening, in voting to move ahead.”

A number of other issues, including finances and areas of activity permissible for a Grazings Committee or Constable on behalf of shareholders, under the 1993 Crofting Act were explored in a closed session. No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

ends

Note – Mr Souter is a retired police Chief Inspector, appointed to the role of Constable at Upper Coll after the previous Committee were removed from office by the Crofting Commission. Following their removal, it was reported to the Commission that shareholder business remained outstanding and unresolved. Whilst he is appointed by the Commission, Mr Souter has successfully gained acceptance that he is independent of the Commission in all his decision-making.

Comment on ‘Grazing Constable’ Report #3 by the Crofting Law Blog

I asked shareholders of the Upper Coll Common Grazings for their views on this latest Report from Colin Souter. Here is a selection of comments received from them:-

• The new regs would certainly have to come before shareholders again before being submitted. There will be nothing to stop us bringing in further changes at a full meeting of shareholders at a later date if that is needed.
• The Grazings Regulations are at the “discussion” stage and still have much work to be done on them. There was no revised Regulations issued with no mention of changes some of us suggested. They are far from being at a stage for presenting to the Commission.
• The constable has thus far refused to protect the interests of shareholders by bringing any scrutiny to bear on the  Commission’s own dubious actions of the recent past. This goes to prove that he is not wholly independent of the Commission and shows that he who pays the piper calls the tune.
• The majority of shareholders are still of the view that the position of Constable has been illegally imposed on the Upper Coll Grazings. These shareholders do not have any personal prejudice against Mr Souter but it is his position they question.
• Shareholders were of the view that the Constable should be working “for” the shareholders and should therefore be working to see that some of the injustices done to the previous Committee are redressed. As he seems to be investigating the work of the previous committee then this “investigative” role should also be targeted at the Crofting Commission’s actions.
• The minute of meeting of the 11th should also clearly show that we considered that the Commission had erred greatly in dismissing a democratically elected voluntary committee when they had legal obligations instead to advice and support it in the first instance. We suggested that this is going to be costly to the Commission.
• The meaning of “audit” given by the Constable is not one shared by the vast majority of shareholders.
• It is felt by the majority of shareholders that the term “financial irregularities” used by the Commission in relation to the Upper Coll Grazings Committee should be withdrawn and an apology issued to the committee by the Commission.
• Mr Kennedy’s continued presence as Convenor of the Crofting Commission is in the opinion of the majority of shareholders untenable.

So clearly a different slant on things from the propaganda issued by the ‘Grazings Constable’. This demonstrates the nonsense of the whole situation.

Why is Colin Souter seeking to introduce new regulations? What is wrong with the existing ones other than perhaps the use of the word “audit”, which has caused much of the problems encountered by the former committee in their dealings with the Crofting Commission?

The former grazings committee were actually in the process of amending their regulations prior to being removed from office by the Crofting Commission. Why did the Crofting Commission not allow them to amend the regulations as they wished to do so?

Are the Crofting Commission influencing the new regulations proposed by Colin Souter? Do these new regulations follow the latest template promoted by the Crofting Commission which do not actually reflect the law as set out in the Crofters (Scotland) Act 1993?

Mr Souter refers to his “decision making”. What ability does he actually have to take decisions that are contrary to the wishes of the shareholders?

Mr Souter states:-

No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

This suggests that Mr Souter is going to finalise the draft Grazings Regulations without necessarily calling a meeting to approve them. He appears to simply be planning to get the approval of the Crofting Commission. If this is indeed the case it is outrageous.

However, it should always be borne in mind that Mr Souter’s appointment was, in my view and the view of others, illegal and any action taken by him is simply null and void.

Brian Inkster