Tag Archives: crofting law blog

The Crofting Commission Barometer

Crofting Commission BarometerIt has been suggested that this blog is a good barometer for how well or badly the Crofting Commission are doing. This, we have been told, can be measured by the number of blog posts appearing about the Commission. The more posts there are the worse they are doing: the less posts there are the better they are doing.

Blog posts certainly petered off after the last Crofting Commission elections and the appointment of a new Convener. The Crofting Commission have done nothing since then of controversy that we are aware of. The days of the common clearances, convenergate, SRDPgate, VATgate and Broragate appear, thankfully, to be behind us. So there is, as a result, less to blog about. The new Crofting Commissioners certainly appear to be doing much better than there predecessors.

So, yes, this blog as a Crofting Commission Barometer is not a bad analogy.

There have, however, been events in the world of crofting law that we do need to catch up on.

There are also some issues arising from the tenure of the last set of Crofting Commissioners that we didn’t manage to blog about at the time and, for completeness, will try to fill in when we get the chance.

Keep an eye on the Crofting Law Blog for these updates.

Crofters, Lawyers, VAT and a Grazings ‘Constable’

Crofters, Lawyers, VAT and a Grazings 'Constable'

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.

Brian Inkster

100 Crofting Law blog posts

100 Crofting Law blog postsMy last post, ‘The Chief Grazings Constable‘, was the 100th post on the Crofting Law Blog.

Quite a milestone.

I started the blog on 18th March 2013 because I was finding so much to write about the decrofting debacle. I said then:-

Crofting law appears to be in turmoil in a way that has possibly not been seen since it was introduced in 1886. The time is surely ripe for a crofting law blog to air the issues arising in an open, clear and transparent way.

Three years later and that turmoil has, somewhat unbelievably, got worse with the current common grazings debacle (aka ‘The Common Clearances‘).

There have been 32 blog posts on the common grazings debacle alone and that in the space of less than 3 months since the first one was published on the alleged abuse of power within the Crofting Commission. Coincidentally there is the same number of blog posts on here about the decrofting debacle. Although I had also written seven articles about that issue on inksters.com before starting the Crofting Law Blog. I reckon there will be more (probably a good bit more) than seven further blog posts to write about the common grazings debacle.

So we have the Crofting Commission and Scottish Government to thank (although we probably shouldn’t really be thanking them!) for creating the hot topics that have kept this blog so active.

The other 36 blog posts have covered a good mixture of crofting law matters including the Crofting Register, Scottish Land Court Technology, Crofting Law Sump, Sporting Rights on RaasayCroft House GrantsCrofting Convenergate, flaws in the Crofting Election Consultation, new appointments at the Crofting Commission, Scottish Government, Scottish Land Court and the Crofting Law A-Team.

Our blogs posts have, on the whole, been well received. They have, we would like to think, kept the Crofting Commission on their toes and perhaps even assisted some changes of heart on their part. We keep on blogging to explain the law, highlight injustices, to press for those changes and also as a result of nice comments of support like this one:-

I can’t thank you enough for the help and advice you have given over the last few months and I think the Crofting Law Blog has been an invaluable source of information that was virtually impossible to find anywhere else.

We have found obtaining relevant information from the Crofting Commission about the many complex aspects of crofting law extremely difficult so finding the Crofting Law Blog was a huge help to us.

You all deserve an award.

It seems a shame that such a clear and understandable source of information could not have been provided by the Crofting Commission itself.

A big thanks to all readers of and contributors to the Crofting Law blog over our first 100 blog posts. We will keep on blogging open, clear and transparent information about crofting law. If there is anything in particular you would like us to blog about or if you would like to contribute a post to the blog yourself then do let us know.

Brian Inkster

Crofting Law Comments are back!

Comments for Inksters on Crofting LawSeveral months ago all comments that had ever been made by anyone on this Crofting Law Blog vanished. Any attempts to post new comments failed.

We didn’t know why.

It curtailed our ability to use this blog as an interactive one. Planned blog posts were put on hold pending a fix.

We couldn’t get it fixed. But then we specialise in crofting law and are not WordPress experts. Thankfully through a very useful blogger contact we eventually found such an expert. He fixed it overnight.

All old comments that were previously visible are now visible again. New comments will now come through for moderation. It is likely, however, that any comments made by anyone over the past few months when the comments function was not working have been lost. We are sorry if this is the case.

We are though now back in business at the Crofting Law Blog. Just as well as there have been some interesting crofting law developments of late and we can also now post several outstanding blog posts that had been on hold.

Brian Inkster