In our last post we told you about the launch of ‘A Practical Guide to Crofting Law’ by Brian Inkster. You can now watch a video about the launch of this new crofting law book:-
You can read more about the book and buy it online directly from the publisher with a special new publication discount (which will apply for only a short period of time) via croftinglawbook.com
Brian Inkster holding his new crofting law book
A new book on crofting law was launched this past week at a reception held in the main law library of the Royal Faculty of Procurators in Glasgow.
‘A Practical Guide to Crofting Law’ has been written by crofting law expert Brian Inkster.
The book is an introduction to crofting law for those with an interest in it or who may touch upon it. Whether that is lawyers, law students, land agents, crofters, landlords or anyone else with an interest in crofting law.
The book covers the main issues briefly and concisely, aiming to highlight the complexity of crofting law and the pitfalls and traps that await the uninitiated. The aim is that readers will, as a result, be better versed in the basics of crofting law.
Welcoming the publication of the book Patrick Krause, Chief Executive of the Scottish Crofting Federation, said:
This is a book that has been awaited since crofting law was formed, a book that lays out what the, notoriously difficult to navigate, ‘sea of legislation’ is about.
Andrew McCornick, President, NFU Scotland, said:
Brian Inkster is to be congratulated on unravelling the complexities of crofting law into a practical guide that is comprehensive and yet can be easily understood. I am sure this will prove to be a very useful guide to current crofters and those with an interest in crofting.
Katy Dickson, Former Head of Policy, Scottish Land & Estates said:
Brian’s book is an accessible overview of a complex legal specialism which would be a useful addition to the shelf of anyone involved in crofting.
Tavish Scott MSP, Co-Convener of the Scottish Parliament Cross-Party Group on Crofting, said:
This is an extremely helpful guide to crofting law which will help all who have to navigate the Byzantine routes through the law of the land.
Sir Crispin Agnew of Lochnaw Bt QC, Chairman of the Crofting Law Group, said:
Brian’s new book is an invaluable practical guide to demystify crofting law.
The book has been published by Law Brief Publishing. It can be ordered online with a special new publication discount (which will apply for only a short period of time) via croftinglawbook.com
Inksters are back again at the Royal Highland Show this year.
As usual we are sharing a stand on 4th Avenue with the Scottish Crofting Federation and Registers of Scotland (Crofting Register).
Today Brian Inkster was on the stand answering queries, amongst others, from new entrants about finding and securing a croft and from established tenant crofters about the procedures to purchase a croft.
On Friday Martin Minton will be on hand to answer crofting law queries and on Saturday Vicki Macleod Folan will be.
Visitors can hear from the Scottish Crofting Federation about the benefits of joining the Federation and the various services that the Federation provide to its members.
The team from Registers of Scotland can tell you all you need to know about registering your croft in the Crofting Register.
Not forgetting, of course, that Inky the sheep is back and you can get your photo taken with our prize winning sheep.
If you are at the show do come along and say hello at 4th avenue. We are just across from the big red double decker bus (Vintage Bus Bar) and the dining area in front of it.
The Crofting Law Group are holding their annual conference this year at Lews Castle, Stornoway, Isle of Lewis on 9th June 2017.
Chaired by Sir Crispin Agnew of Lochnaw, Bt. QC, the conference will look at the Scottish Government’s proposals for Crofting Law Reform, where things are at and what happens next. Michael O’Neill from the Crofting Bill Team of the Scottish Government will guide delegates through that. There will be views from Patrick Krause Chief Executive of the Scottish Crofting Federation.
Bill Barron, Chief Executive of the Crofting Commission will provide a Crofting Commission Update.
The Conference will look at the question of Common Grazings, what went wrong last year (a recurring theme on this blog!) and what does the future hold with reference to the Crofting Commission’s proposed new Common Grazing Regulations Template. There will be contributions and discussion on this topic from the Crofting Commission’s Solicitor, David Findlay, Solicitor Brian Inkster, Crofters and Landlords. Relevant excerpts of the film ‘Grazing on the Edge’ will be shown and introduced by Janette Sutherland of the Scottish Agricultural College.
Duncan MacPhee, Solicitor, will look at Mortgages for Croft Houses.
There will also be the usual case law update provided this year by Robert Sutherland, Advocate.
Representatives from Registers of Scotland will be on hand to answer any queries concerning the Crofting Register.
For full details and to book your place see Crofting Law Conference 2017 on the Crofting Law Group website.
Brian Inkster has been shortlisted for Solicitor of the Year at the Law Awards of Scotland.
This nomination recognises his endeavours in crofting law over the past year and in particular his quest to see justice done over the alleged abuse of power within the Crofting Commission over the sacking of three common grazings committees.
Brian Inkster has been very vocal in the press, radio and on TV over the issue. He has written 97 blog posts on this topic alone over the past six months.
The Crofting Commission recently accepted their decisions as being wrong and issued an apology to the crofters affected. However, conflict continues within the Crofting Commission with a clear divide between their convener and the other commissioners.
Brian Inkster said:-
I am honoured to be one of only three solicitors in Scotland shortlisted for this award.
Hopefully it will help to highlight further the plight of the ordinary crofter at the hands of a regulator that is out of control.
There is still much more that the Scottish Government needs to do to restore confidence in the Crofting Commission and I will be making my views known on that in the coming months.
Inksters Solicitors who have offices in Glasgow, Inverness, Forfar, Portree, Wick and a visiting base in Lerwick have also been shortlisted for Litigation Firm of the Year and their trainee solicitor, Alistair Sloan, for Trainee of the Year at this year’s Law Awards of Scotland.
The winners will be announced on 24 November at a gala dinner at the Crowne Plaza Hotel, Glasgow.
Sunday Politics Scotland on BBC One Scotland this week looked at the crisis in the Crofting Commission.
Presenter Gordon Brewer introducing the topic said:-
Now Chaos on the Croft.
The body responsible for protecting and regulating Scotland’s crofting is embroiled in some dramatic internal politics of its own.
As Len Cooksley reports pressure is increasing on the head of the Crofting Commission to resign after the Scottish Government became involved.
Len Cooksley:-
Scotland has nearly 20,000 crofts overseen by the Crofting Commission.
After suspending two local grazing committees on Lewis on the grounds of financial missmanagement it was forced into a u-turn.
There were claims the commission were both heavy handed and may have acted illegally.
Now the Scottish Government’s got involved. It called on the commission and its convener, Colin Kennedy, to apologise.
Last week Mr Kennedy walked out of a commissioners meeting. Those that remained issued that apology and then passed a vote of no confidence in Mr Kennedy.
The First Minister gave her take on events in parliament earlier this week.
Nicola Sturgeon MSP:-
I note that crofting commissioners have unanimously called on the convener to resign.
The Scottish Government have requested further information from the convener in relation to last week’s events.
While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.
Len Cooksley:-
MSPs are watching developments with interest.
Tavish Scott MSP:-
There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.
What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.
Len Cooksley:-
We understand Mr Kennedy has no plans to resign but would make no further comment.
The implication is clear: either he jumps or he’ll be pushed.
Gordon Brewer:-
Well earlier I spoke to Brian Inkster who is a lawyer and blogger specialising in crofting matters.
Gordon Brewer asked:-
Well the crofting commissioners have no confidence in their leader. He won’t resign and the Scottish Government is threatening to get involved. What on earth is going on?
Brian Inkster answered:-
Well it all goes back to December time last year when they decided to put out of office a grazings committee in Lewis. The first one was Mangersta and then subsequently into 2016 they put out two other grazings committees: one in Upper Coll and the other in Lochaber.
Gordon Brewer:-
Right but what I don’t understand is that Mr Kenedy the man who is the commissioner is accused of issuing edicts on things like payments over common grazings and peoples backs are up about this. But how can he do that surely the commissioners have to decide to do this.
Brian Inkster:-
Well the commissioners should be deciding to do it. It looks as though he has been instrumental in pushing these issues forward.
There were three sort of main issues I suppose.
The first one was payment by grazings committees to shareholders in common grazings of monies that had come into grazings funds. His argument was that these monies had to be paid out immediately. So there would be immediate payment to the shareholders and if monies were required back to maintain the common grazings they would issue a levy onto the shareholders.
Nowhere in the law did it say that these immediate payments had to be made and indeed it just didn’t make any kind of logical or common sense approach to deal with it in that way.
Subsequently there were two other issues.
One was that he was seeking to stop common grazings committees receiving SRDP funding – which is really grants from the governmnet to assist in the maintenace and improvement of the common grazings.
And latterly there was an issue around VAT registration where it was being said that common grazings could not be VAT registered whereas historically they always have been.
Gordon Brewer:-
Right, now, what happened? At some point the commissioners had a vote of no confidence.
Brian Inkster:-
That was just over a week ago in Brora. That was on the back of Colin Kennedy walking out of a meeting. He closed the meeting and walked out on the basis that the commissioner for the Western Isles said he was no longer declaring an interest in the Western Isles cases which he had previously done and was now wanting to vote on any issues concerning the Western Isles.
Gordon Brewer:-
On the face of it you would think that if the commissioners have no confidence in him he has to go but he doesn’t does he because he was elected?
Brian Inkster:-
He was elected and there is nothing in the law that says if the commissioners have a vote of no confidence he must go. One would imagine that if all the commissioners are against you, if the Scottish Crofting Federation, NFU Scotland, MSPs across all cross parties and the press are all saying it’s time to go you would think what is the point of clinging on here.
Gordon Brewer:-
The Scottish Government has threatened to become involved. What can they do?
Brian Inkster:-
In terms of the Crofters (Scotland) Act 1993, Scottish Ministers have the power if they consider that a commissioner is unable or unfit to exercise the functions of a member or unsuitable to continue as a member they can then remove a member from office.
Gordon Brewer:-
Now, Brian Inkster, just to give us a little sense of what the background to this is because it is quite complicated. But is the issue underlying all this the use of land and the fact, for example, wind farms wants to come in or housing wants to come in and it is about whether the common ground is allocated to the community the funds from it or to individuals.
Brian Inkster:-
It is linked to the funds that come into a common grazings. On a common grazings, especially as you mentioned wind farming, so in recent times the potential for larger sums of money to come into a common grazings exists. And it is linked to the distribution of those monies and there was an insistance on the part of the convener that those monies had to be paid out as soon as it was received. That there was no ability to hold onto the money to use it to spend on improvements within the common grazings. The Scottish Government said that was not the correct view in law.
Gordon Brewer:-
Alright, we will have to leave it there. Brian Inkster thank you very much indeed for joining us.
Brian Inkster:-
Thank you.
Gordon Brewer:-
Well earlier I spoke to Colin Kennedy. He is the Crofting Commission boss who is in the middle of all of this controversy. I spoke to him on the telephone from Coll.
Gordon Brewer asked:-
Are you going to stay in the post?
Colin Kennedy responded:-
I have no intention of resigning.
Gordon Brewer:-
Why not?
Colin Kennedy:-
As matters stand, I believe the commission have acted wholly within the law at all times and until such times as we have legal advice to the contrary, I will maintain my position.
Gordon Brewer:-
But the Scottish Government has said it has the power to get involved. If they do get involved and say you have to go you will have to go won’t you?
Colin Kennedy:-
That will be the case, yes.
Gordon Brewer:-
So just to be clear on that. If the Scottish Government says look given that your commissioners have voted no confidence in you we don’t think you can stay in post you will have to resign.
Colin Kennedy:-
That may be the case.
Gordon Brewer:-
Why are you so determined? You walked out of the meeting didn’t you, the other week? Why have you fallen out with all of the commissioners?
Colin Kennedy:-
No I didn’t walk out of a meeting.
I formally declared the meeting closed in light of an advancement by a commissioner supported by the deputy accountable officer that they had obtained information from the standards commission which I requested sight of prior to determination which failed to materialise.
Accordingly given the nature of the business at hand I had no alternative other than to formally close the September meeting of the Crofting Commission prior to my departure.
Gordon Brewer:-
Okay, but the commissioners have said they no longer have any confidence in you. Which is not brilliant from your point of view is it?
Colin Kennedy:-
I am unaware of the commissioners having said they have no confidence in me.
Gordon Brewer:-
You are not aware of that?
Colin Kennedy:-
Correct.
Gordon Brewer:-
So as far as you are concerned what? The Crofting Commission is carrying on its work as per normal?
Colin Kennedy:-
Well I would suggest at this moment in time that the Crofting Commission conducted a meeting on 28th September which is in non compliance or in accordance with the standing orders of the Crofting Commission and therefore it would appear in my view to be ultra vires.
Gordon Brewer:-
So right. If they still have confidence in you why would they do that?
Colin Kennedy:-
I couldn’t comment on what they do at informally constituted meetings.
Gordon Brewer:-
So right. You think that they still have confidence in you but that they have held an ultra vires meeting without you for reasons that are inexplicable?
Colin Kennedy:-
Correct.
Gordon Brewer:-
The substance of this is about you, they allege, that you made various determinations about things like payments in the form of edicts – that they weren’t really consulted.
Colin Kennedy:-
Absolutely incorrect.
At no time under my leadership have any decisions been taken without full endorsement of the board and based on legal advice.
And if I could comment prior to those decisions as per the board minute of 15 September 2015, prior to taking any of those decisions a formal request was made to the Chief Executive to obtain legal advice to support the papers presented to the board on which the board took the decisions.
Gordon Brewer:-
Alright Colin Kennedy we have to leave it. Thank you very much for joining us.
Colin Kennedy:-
Thank you.
N.B. For a limited period (29 days) you can watch this episode of Sunday Politics Scotland on iPlayer (at about 54 minutes in)
Image Credits: Sunday Politics Scotland © BBC Scotland
Sally Magnusson – BBC Reporting Scotland
Reporting Scotland took up the Broragate story yesterday following the questions asked by Tavish Scott MSP at First Minister’s Question Time on Thursday.
Sally Magnusson introduced the news item:-
Pressure is mounting on the head of the Crofting Commission to resign after the First Minister warned that the Government would intervene if it didn’t put its own house in order.
This follows a turbulent few months during which the Commission was forced to apologise to crofters in the Western Isles and then passed a vote of no confidence in its own convener.
Craig Anderson – BBC Reporting Scotland
Craig Anderson explains:-
Its feared by many as an idylic lifestyle, part time farming on small parcels of land with tiny rents.
There are almost 20,000 crofts in Scotland protected and regulated by government agency the Crofting Commission.
But the body is imploding. It suspended two local grazings committees in Lewis earlier this year on the grounds of financial mismanagment but was forced into a u-turn when that was ruled heavy handed if not illegal.
Brian Inkster commented:-
It all begins with the common grazings committees having been put out office. There were two put out of office in Lewis and one in Lochaber. It is really how the Crofting Commission has gone about that and the uproar that has caused.
Convener of the Crofting Commission, Colin Kennedy, storms out of the board meeting in Brora
Craig Anderson continued:-
The Scottish Government then called on the commission and its convener Colin Kennedy to apologise to the crofters involved.
Last week he stormed out of commissioners meeting. They issued an apology and then passed a vote of no confidence in Mr Kennedy.
So who’s running the show the First Minister was asked at Holyrood yesterday.
Nicola Sturgeon MSP answered:-
I note that crofting commissioners have unanimously called on the convener to resign.
The Scottish Government have requested further information from the convener in relation to last week’s events.
While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.
Colin Kennedy and other crofting commissioners at Brora before he ended the meeting and walked out
Craig Anderson pointed out:-
I contacted Mr Kennedy at his home on the Island of Coll by phone earlier today and he told me he had no plans to resign but would make no further comment.
But the implication of the intervention by Nicola Sturgeon is clear: either he jumps or he will be pushed.
Tavish Scott MSP said:-
There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.
What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.
Craig Anderson asked:-
But does any of this really matter to the people who actually live and work in our crofting communities?
Brian Inkster – Crofting Lawyer
Brian Inkster responded:-
People being removed from office unfairly and unjustifiably has a huge affect on small communities. Allegations made about people that have not been proven to be correct. It has split/divided communities, caused lots of problems.
Craig Anderson rounded the news item off:-
There is a saying that a croft is a piece of land surrounded by legislation. It’s an old joke, but never was a truer word spoken in jest.
Image Credits: Reporting Scotland © BBC
The real “dictatorial regime” was clear for all to see despite or perhaps because of their propaganda
Colin Souter’s persistent insistence that he can continue to act as ‘committee’ to the Upper Coll Grazings is perplexing indeed in the face of clear opposition to his involvement from the majority of shareholders.
Following the meeting of shareholders called by Mr Souter in Upper Coll last night he issued a press release (he is the only ‘clerk’ in the country known to advise the press of shareholders business in this way). This press release is very much in the tone of propaganda issued on behalf of the Crofting Commission who remain silent on the issue and appear to allow Mr Souter to speak for them.
The Crofting Commission have been under fire for many months now over an alleged abuse of power in removing three grazings committees from office in circumstances thought my most onlookers to be completely unjustified and unreasonable.
I would offer my comments on this latest ‘propaganda’ by quoting sections of it (in italics) with my analysis following each section:-
A third official meeting of shareholders was chaired at Upper Coll last night by the Grazings Constable, Mr Colin Souter.
It is very debatable whether a meeting of shareholders convened by a reputedly illegal grazings constable can ever be an official one. On the illegality of his appointment see:-
Crofting Commission’s appointment of Grazings Constable is illegal
Crofting Commission knew they were acting illegally in appointing Grazings Constables
Grazings Constables were added to the Sump by the Crofting Commission
During his opening remarks, Mr Souter was interrupted by the former Committee chairman, apparently wishing to raise a point of order. Mr Souter responded that he would take the point at the conclusion of his statement to the meeting.
If a point of order was raised at the outset of the meeting should it not have been taken immediately? Mr Souter clearly does not want to let shareholders have their say and is suppressing their right to be heard at a shareholders meeting. That is not the role of a ‘clerk’ even if legally appointed.
In response to that delay, a number of former Committee members and their supporters, many of whom have no shares in the grazings, got up and left the room, in what was declared by those shareholders remaining, to be an obvious pre-planned move. The meeting continued with the remaining shareholders present and worked constructively through a busy agenda.
Mr Souter omits how many left the meeting and how many remained. I understand that 11 people (shareholders or proxies for shareholders) walked out leaving only 4 shareholders (2 full shareholders and 2 half shareholders remaining).
Shareholders vote with their feet at Upper Coll by leaving the meeting arranged by Colin Souter
Another 4 people remained whose status were not declared but who were not shareholders. No proxies were presented by them at the beginning of the meeting.
The 11 who left the meeting had the clear support of 26 out of 42 shareholders who had signed a petition that stated:-
“I support the election of a new Grazings Committee to run the affairs of Upper Coll Township. I also request the removal of the illegally imposed Grazings Constable with immediate effect.”
Thus Mr Souter decided to proceed with a meeting in the clear knowledge that a very small number of shareholders (perhaps only 4 out of 42) supported him and the meeting in question.”
The meeting continued with the remaining shareholders present and worked constructively through a busy agenda. Shareholders were provided with additional new information and after discussion and debate, voted on a number of issues, many declaring it was the first such opportunity to vote on shareholder matters in the grazings for a number of years and hoped it was an indication of the way forward.
Why were possibly only the 4 out of 42 shareholders present at the meeting “provided with additional new information”? Surely any additional new information should have been provided to shareholders in advance of the meeting. How can decisions be taken on such matters in the absence of actual consultation thereon?
Mr Souter sent a letter to all shareholders on 12 September. Why was this additional new information not included with that letter? No vote should have been taken on such issues in such circumstances. Although any vote was, in any event, very much a minority one given that the majority had expressed their vote on the entire meeting at the outset.
Mr Souter set out his current activities and explained his goals on a number of current matters, some of which are seen as contentious in some quarters and have been the subject of targeted public criticism by supporters of the former Committee, including the Solicitor, Brian Inkster, who had been engaged by the former Committee to support them in their dispute with the Commission, which eventually led to their subsequent dismissal. Mr Souter has since written to Mr Inkster seeking his co-operation to repay the fee he charged, as it had been approved only by the former Committee and not by the wider body of shareholders, who had never been consulted on the matter.
Mr Souter omits to mention that a seven page letter has been issued by me on this subject to Fergus Ewing MSP, Cabinet Minister responsible for crofting, and copied to him. This highlights the serious errors in Mr Souter’s understanding of the position of legal fees, his meddling in VAT affairs, his role as grazings ‘constable’ and his close and unhealthy association with the Crofting Commission and/or their Convener all as set out in:-
I have expressed 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.
Mr Souter also detailed his correspondence with other parties and the approach being followed. The meeting voted unanimously to support his current activity and the work on which he is currently engaged to ensure the Grazings are fully legally compliant in all matters. Shareholders expressed their wish that if necessary he continue beyond the current term which expires in November but it was explained that under the Crofting Act, there is no provision to extend the tenure of a Constable, once appointed by the Commission.
Possibly only 4 out of 42 shareholders does not give Mr Souter a mandate for “his current activity and the work on which he is currently engaged” or indicate any desire by the shareholders for him to “continue in ‘office’ beyond his current term”.
One thing that Mr Souter has got right in law (maybe the first thing so far) is that under the Crofters (Scotland) Act 1993 there is no provision to extend the tenure of a Constable, if legally appointed by the Commission, once the period of tenure comes to an end.
During the meeting, shareholders voted to approve the revised draft of Grazing Regulations, which has been the subject of a wide consultation process over the last three months, subject to some final amendments offered from the floor.
It is very concerning indeed that Mr Souter may think he can force through revised Grazings Regulations (which are believed to possibly seek to retrospectively validate actions taken unjustifiably by the Crofting Commission) on the basis of a meeting with only a minority of shareholders who have appeared to support the Crofting Commission throughout. Some of those shareholders are alleged to have been personally in breach of the existing regulations and Mr Souter has done nothing whatsoever to deal with those allegations. Again this demonstrates that he is not acting in any way impartially.
On the question of impartiality it is very revealing to note that Mr Souter arrived at the meeting with Donna Smith of the Crofting Commission. Donna Smith is part of the Senior Management Team at the Crofting Commission and is expected to become acting/interim Chief Executive when Catriona Maclean’s notice period comes to an end.
Colin Souter arrives for the meeting of Shareholders at Upper Coll with Donna Smith of the Crofting Commission
Much has been made by Mr Souter of his independence from the Crofting Commission although the real position has been clear for all to see. It is now publicly apparent, if it was not before, that Mr Souter and the Crofting Commission are indeed working hand in hand.
This is disturbing indeed and would explain why Mr Souter has not taken up on behalf of shareholders their legitimate concerns and claims over the handling of the whole sorry affair by the Crofting Commission.
Once more it adds to the evidence of the alleged abuse of power at the heart of the Crofting Commission.
After the marathon 4-hour meeting, Mr Souter said, “it was obviously a disappointment that a number of those present made a decision to leave the meeting before it had properly got underway but I respect their right to do so. Those remaining were sufficient in number to continue with business and to their credit, actively contributed to a very positive discussion in a number of areas. I was able at this stage, to explain to shareholders precisely what I am doing and why I am doing it and was reassured to receive the unanimous support of the meeting.
In respecting the right of those to leave the meeting Mr Souter should also respect their views and the views of the 26 shareholders who signed a petition against him. In respecting those views then clearly nothing discussed at the meeting last night was carried as a vote of the majority of shareholders originally attending: given that 11 effectively voted for the meeting to end.
Mr Souter advised he was aware of the recent unofficial meeting held by disaffected former committee members, and it’s outcome, but dismissed it stating, “I would be delighted if all shareholders engaged in the current process, constructively. We are continuing to make good progress to resolve a series of issues raised and a new set of Regulations was a key element in moving forward. There are some outside influences at work here and I do not believe they are contributing positively for the future benefit of the grazings.
The meeting Mr Souter refers to was certainly not “unofficial” but necessary under and in terms of the existing Grazings Regulations. Indeed Mr Souter, if he had any legal standing, should have been ensuring that what he refers to as an “unofficial” meeting happened. It is a great credit to the former committee that they knew the Grazings Regulations better than Mr Souter and what needed to be done legally in terms thereof.
The Grazings regulations state that:-
“Not later than one month before the term of office of the Committee ends they shall give notice to the shareholders of a meeting for the appointment of a new Committee. This meeting must take place before the term of office of the existing Committee ends. At least 10 days’ notice of the meeting must be given; this shall be done by advertisement in each of two successive weeks in one or more newspapers circulating in the Committee district, or by notice posted up for two successive weeks in a public place or places approved by the Commission. The new Committee appointed at this meeting shall take up office immediately upon the retiral of the existing Committee. The Clerk of the Committee shall inform the Commission of the names and addresses of the members and Clerk of the new Committee.”
If we assume, as Mr Souter does, that his appointment as Grazings ‘Constable’, was legal then that appointment, in terms of the Order issued by the Crofting Commission, comes to an end on 10 November 2016.
That being the case then the shareholders must give notice of a meeting to elect a new committee not later than 10 October 2016. Being organised and sensible shareholders they have not left it to the last minute but organised it a good month or so ahead (which they are entitled to do under the Grazings Regulations).
They have carried out all the steps they need to in order to legally form a new Committee. That Committee will take up office immediately on 10 November 2016 or earlier if Mr Souter resigns his position as Grazings ‘Constable’. Something that many consider he should do so in light of the petition from the majority of shareholders calling for that.
When asked about a recent petition allegedly signed by a majority of shareholders seeking his dismissal as an ‘illegally appointed Constable”, Mr Souter responded that the Commission had repeatedly endorsed his appointment, as recently as the day before the unofficial election meeting and offered his view that the conduct of former Committee supporters had perhaps more in common with a dictatorial regime.
It is not a question of endorsement by the Commission. It is a question of democracy in action within a common grazings. If there is any “dictatorial regime” involved surely it is the Commission and Mr Souter who fall into that camp. They are dictating what they consider the position to be to a clear majority of shareholders who think otherwise.
He added, “How many people do you know who would be happy being door-stepped and told to sign a petition, whilst their neighbour is standing over them? It strains credibility! I would be happy to see all of those folks at our next shareholder meeting. There are serious issues being addressed and it’s about time some former Committee members accept their continuing agitation is not serving themselves or the grazings well. They have a duty to fellow shareholders to accept their own shortcomings and that they have learned from them and are willing to move on. Continually misrepresenting the position in public is not helpful and does nothing to heal the rift they have opened up here in Upper Coll, between shareholders.
On the contrary it is unfortunately Mr Souter who continually misrepresents the position. E.g.:-
Mr Souter also advised that during the meeting he informed shareholders he has requested the Crofting Commission now facilitate a meeting with the Crown Office & Procurator Fiscal Service to discuss some of the findings from his review of the former Committee records and accounts. He declined to comment further on specifics, stating “it will be for other authorities now to determine whether there is a need for further action”. The date for the next shareholder meeting has not been set.
From the outset the Crofting Commission and then Mr Souter hinted at irregularities within the three Committees that were dismissed with no evidence whatsoever to back this up. Mr Souter appears to have been put into Upper Coll by the Crofting Commission to find something, anything, to justify his illegal appointment in the first place.
Nothing he has produced to date has evidenced this. Declining to comment on specifics now questions once more what he and the Commission are actually up to. This is not his role as ‘Clerk’. If any shareholders feel there has been any impropriety that has affected them it is for them, not Mr Souter, to take whatever action they may deem appropriate. Mr Souter is now, as the Commission did so before him, casting aspersions unjustifiably and without any basis on former committee members.
This is quite appalling. If anything shareholders should be reporting Mr Souter to the Crown Office & Procurator Fiscal Service for his potentially illegal and fraudulent activities including in particular the manner in which he has taken control of the shareholders finances.
One can only hope that Fergus Ewing MSP does now step in to resolve this tragic mess.
Image Credits:-
Main image: INGSOC 1984 Propaganda Poster (detail)
Other images: An La – 13 September 2016 © BBC Alba
Best to instruct a lawyer for legal advice and a chance of justice
I had thought my post on Crofters and Lawyers set the record straight as far as the question of crofters being entitled to engage the services of lawyers was concerned.
I also thought my post on Crofting VATgate and subsequent comments on that topic from Donald Rennie was sufficient to clarify that matter also.
But alas not for ‘Constable’ Souter. He felt it necessary to air his views once more (and ignore the points already made by me to him via this blog) in front of a large number of lawyers by submitting a letter for publication this week in Scottish Legal News. I reproduce here his letter and my response thereto:-
Grazings Constable Colin Souter responds to criticism – 12 September 2016
Colin Souter has written a response to a September 5 article by solicitor Brian Inkster. The views expressed below are not those of shareholders at Upper Coll Common Grazings or of Scottish Legal News.
As the Grazings Constable for Upper Coll, I took over under difficult circumstances, after the former Committee had been put out of office by the statutory regulator (Crofting Commission) for reasons too long to explore in this short piece. Mr Inkster had been engaged by the former Committee for legal advice, whilst they were in dispute with the Commission but apparently without the matter having been put to a wider shareholders meeting to receive the required majority/full vote. I sought to correspond with him in that capacity, having determined that the Crofting Act 1993 does not permit the use of shareholders funds by the Committee for that purpose. Activity may only be funded where it is for the “maintenance or improvement of the Common Grazing”.
I sought Mr Inkster’s co-operation in re-paying the £600 he received as payment. Mr Inkster has refused to acknowledge or respond to my correspondence but is happy to report and comment upon it, and many other related issues, to readers of his on-line blog.
Mr Inkster has presented a series of speculations, opinions and inferences in his VAT article, without demonstrating any desire to obtain a definitive outcome for those involved. I might be forgiven, I hope, for wondering why, if an expert on the subject, Mr Inkster does not already know definitively whether Committees are eligible to register for VAT and if raised as a legal point, surely it is in the interests of all parties to understand if they have somehow incurred a liability with potential for penalties? The fact of the matter, which undermines Mr Inkster’s conspiracy theory is quite simply that the former Committee included VAT in their annual Statement of Accounts presented to the Crofting Commission but set it out in a way that raised more questions than answers and whilst I am now speculating, I think it reasonable to conclude that the Commission, in responding to a review of those accounts, was left with little alternative other than to seek opinion from Senior Counsel to help address the matter. Senior Counsel, much respected in crofting circles, opined that there was no power for Grazings Committees to trade or to register for VAT under the Crofting Act 1993.
With ownership of the issue at Upper Coll and the need to resolve the matter, I brought it to HMRC and await their definitive response on the matter. If they determine the eligibility criteria have been met for registration, I will be delighted and can sign-off on one more point. If the contrary is true, then I have advocated for a “no-penalty resolution” to apply to all Grazings Committees who may be in a similar situation. The suggestion by those who align with Mr Inkster that being registered must mean they are entitled to be registered, clearly ignores the possibility that registration was made in error by those unaware of the legal status of Grazings Committees under the Crofting Act. Not a difficult scenario to envisage, I’d suggest.
I can only hope Scottish Legal News readers will appreciate my need to ensure shareholders interests at Upper Coll are properly protected and that the future framework in place for the management of the Grazings, when my short term in office expires, will be a legally compliant one. Liabilities will have been exposed for discussion and debate, and as far as possible, remedied. Given the circumstances, however, I cannot promise the remedies will satisfy everyone………least of all Mr Inkster.
Colin Souter
Grazings Constable
Upper Coll
Crofters, Lawyers and VAT – 13 September 2016
Brian Inkster addresses yesterday’s response from Colin Souter to criticism the latter had received.
Colin Souter responded yesterday via Scottish Legal News to my concerns regarding the Crofting Commission investigating the legality of VAT registration of Grazings Committees.
My views attacked the Crofting Commission on this issue and called on an investigation by Fergus Ewing MSP, as cabinet secretary responsible for crofting, into what I considered could be dubbed ‘VATgate’.
It seems rather odd that a grazings ‘constable’ purportedly appointed by the Crofting Commission to manage the affairs of one particular common grazings on the Isle of Lewis should be acting as spokesman for the Crofting Commission on the issue. That is surely the responsibility of the Convener of the Crofting Commission.
That Mr Souter saw fit, at the same time, to draw to the attention of many solicitors that he considers them not entitled to be paid for legal services provided to shareholders in a common grazings is bold indeed.
Firstly, it must be remembered that I do not consider Mr Souter to have been legally appointed. Indeed it has been shown that the Crofting Commission acted contrary to its own legal advice in making the appointment. However, having made an illegal appointment the Crofting Commission are of the view that they cannot revisit that ‘final decision’.
On the basis that I do not recognise Mr Souter as having any legal standing whatsoever I am not about to respond to his demands to repay to him fees legitimately paid to my firm by a properly constituted grazings committee following the provision of legal advice to them.
Mr Souter has threatened to raise a small claims action against my firm and I am more than happy to see him in court. He is well aware that in such circumstances the Crofting Commission will be brought in as a party and there will be a counterclaim for the time, inconvenience and costs caused to me unnecessarily by Mr Souter.
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. The Magna Carta would be a good starting point for Mr Souter to look at!
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 not 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 the Crofting Commission acknowledge and accept that shareholders can and should seek their own independent legal advice.
Where on earth does Mr Souter get the idea from that they can’t?
I will now return to the original and more important question involved, namely VAT registration of Grazings Committees.
Mr Souter refers to me as “an expert on the subject”. I have, for the avoidance of any doubt, never been and certainly would not profess to be an expert on tax law or any matter concerning, in particular, VAT.
My concern is as an expert in crofting law advising crofters daily on that particular subject. My concern is that the Crofting Commission whose function is to regulate and promote the interests of crofting may instead be actively seeking to deprive crofters of VAT receipts.
VAT registration of Common Grazings was something that the Scottish Government insisted upon as part of entry into Woodland Grant Schemes. Did Mr Souter know that? Did the Crofting Commission advise their QC of that when seeking an opinion on the matter? Is the Scottish Government happy that Mr Souter and the Crofting Commission are challenging their policy on Crofters, Forestry and VAT?
Mr Souter says that he “can only hope Scottish Legal News readers will appreciate” his “need to ensure shareholders interests at Upper Coll are properly protected”. Is seeking to deprive them of VAT receipts protecting their interests? As Donald Rennie, Honorary President of the European Council for Rural Law, stated on the Crofting Law Blog:-
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.
I have written to Fergus Ewing MSP expressing my concerns about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. I have copied my letter to Mr Souter out of courtesy. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.
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