Tag Archives: financial statements

The Scottish Farmer adds balance to the tales of the Upper Coll ‘Constable’

Leave a Reply

the-scottish-farmer-logoLast week I commented on how the letter from Colin Souter, the Grazings ‘Constable’ at Upper Coll, to shareholders was no ‘gamechanger’.

This week The Scottish Farmer has redressed the balance by publishing the views of the majority of shareholders at Upper Coll which counter the allegations made by Colin Souter against them.

They also published a letter from me on the topic which they asked me to edit down in size prior to publication. I will reproduce here the longer version that I originally supplied them with:-

Sir – I was somewhat bemused by the headline in last week’s Scottish Farmer. The letter from Colin Souter, the grazings ‘constable’ appointed by the Crofting Commission, to shareholders at Upper Coll Common Grazings is certainly no ‘gamechanger’.

Had your reporter sought to verify this sensationalist piece of propaganda via the former committee members at Upper Coll or myself he would have received a very different take on it.

Firstly, it should be made clear that many consider Mr Souter’s appointment as a grazings constable to be illegal. Donald Rennie explained clearly and in detail why in a letter published by you some weeks ago. It subsequently transpired that a report produced to the board of the Crofting Commission by their Chief Executive, Catriona Maclean, made it clear that grazings constables could not be legally appointed where a grazings committee is removed from office by the Commission. It would therefore appear that the board of the Crofting Commission acted contrary to legal advice given to them and appointed a ‘constable’ who has no standing in law.

Also, even if Colin Souter had been appointed legally as a grazings constable that role is not (despite the name) in law an investigative one but one that simply takes on the duties of day to day management of the common grazings on behalf of and in the interests of the shareholders.

Colin Souter, a retired police chief inspector, seems to be under the misapprehension that he has been brought out of retirement to utilise his police skills. He even states on his LinkedIn profile that he is “engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity”. He has no remit of the kind and if he has actually been given such a remit then serious questions should be asked regarding the conduct of the Crofting Commission over and above the fact that, in the first place, they knowingly appointed him when they knew that legally they couldn’t.

It appears that the Crofting Commission are on a fishing expedition. They removed from office the former committee at Upper Coll purely on the basis that they had produced 5 years of financial statements prepared by an accountant rather than 5 years of “audited” accounts as unfairly and unjustifiably demanded by the Commission. This was met by overwhelming incredulity on the part of onlookers. Now the Commission are seeking to justify their actions on other grounds. They have sent in a former police inspector to find something, anything, to make everything alright again for them.

Colin Souter appears to have carried out the bidding of his masters. He has trawled through records of the Upper Coll Common Grazings going back to 2008 if not before looking for misdemeanours. This is well out with the 5 year ‘audit’ period the Crofting Commission initially concerned itself with.

Colin Souter has compiled a list but that list is of no significance. Some of it is petty in the extreme such as highlighting one typographical error on the part of the accountants instructed by the former committee in the financial statements that the Commission had not even been willing to look at. He has claimed that monies were contributed to upgrading a road in 2008 when this is denied by shareholders and even if it were true so what? He decries the spending of £520 on feu design work to allow crofting families in the township to remain in the township by allocating to them house sites on land that was not much use for grazing purposes. Any costs associated with that would be more than recouped when house sites were sold and compensation on resumption received. He does not understand that.

What Colin Souter also does not appear to understand is that a new grazings committee is elected every three years. Most of his accusations relate to the activities of the committee of 2008/09. There have been a further three committees elected since then. Even if what the grazings committee of 2008/09 did was wrong (and there is no evidence to suggest that it was) it does not justify the Crofting Commission removing from office a committee only elected in 2015.

Colin Souter claims there is nothing in the Crofters (Scotland) Act 1993 that permits shareholders funds to be used to pay solicitors. What nonsense. 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.

It is also of course rather ironic that a grazing ‘constable’ whose legality has been questioned from the outset is stating left, right and centre what he considers the law to be and how he considers former committees to have breached it. Presumably in circumstances where he has not actually sought legal advice on such pronouncements because he doesn’t consider expenditure on legal advice by a grazings committee to be legal!

The situation with the grazings ‘constable’ at Upper Coll has become farcical. I will be expressing my concerns to Fergus Ewing MSP, as cabinet secretary responsible for crofting, 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.

Brian Inkster

The Wrong Grazings Committee!

Leave a Reply
The Wrong Grazings Committee (Grazings Constable gets confused)

Eh by gum, Gromit, no one told me that they appointed a new grazings committee every three years! Pass the cheese please.

It was reported in The Scottish Farmer this week that:-

New evidence has been revealed that appears to justify the Crofting Commission’s unpopular intervention in the financial affairs of a common grazings committee.

This ‘evidence’ was presented in a letter to shareholders in the Upper Coll Common Grazings by the grazings ‘constable’ Colin Souter. A grazings ‘constable’ illegally appointed in my view, and in the view of others including, ironically, the Crofting Commission themselves.

Many of the allegations made by Mr Souter actually, it transpires, relate to decisions made by shareholders when previous grazings committees were in power. Not the latest one which the Crofting Commission summarily removed from office for producing five years of financial statements prepared by an accountant rather than five years of “audited” accounts as demanded unfairly by the Commission.

Actions by past grazings committees cannot be used as evidence to justify the removal from office of a grazings committee that had no part in those actions.

Indeed it would appear that Mr Souter has been spending his time (and presumably as a result the shareholders money) trawling through the history of Upper Coll Common Grazings attempting to find fault wherever he can. His efforts in this regard go way back before the five year ‘audit’ period sought by the Crofting Commission.

Indeed the two main issues highlighted in the report by The Scottish Farmer date back to 2008/09. There have been three new grazings committees at Upper Coll since then!

Gordon Davidson reports in The Scottish Farmer:-

Top of his list was an application lodged with Comhairle Nan Eilean Siar seeking a grant under their Unadopted Road Upgrade Scheme, seeking £10,000 of matched funding to be spent on upgrading the landlord’s Ghearraidh Ghuirm private road.

In doing so, the former committee undertook to spend £20,000, including the CNES grant, of shareholders’ money on upgrading this section of road and also accepted the subsequent road maintenance obligation, in perpetuity – a decision of clear benefit to prospective few [sic – should have been “feu”] buyers, but with no apparent link to the maintenance or improvement of the common grazing.

“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,” noted Mr Souter.

This is what certain shareholders at Upper Coll have to say about this particular matter in a letter issued to shareholders in response to the one issued by Mr Souter:-

He accuses the then Grazings Committee of match funding the improvements to the Gearraidh Ghuirm Road behind Donald Campbell’s Garage. This is grossly untrue. The village did not put any money into this. The Councillors then in office helped facilitate the financial match funding from sources including contributions from residents. The village used some of this money to repair the road going out to the quarry, which in fact was an aid to the shareholders using the quarry and the peat-road! This was in 2008!!

Gordon Davidson also reports in The Scottish Farmer that Colin Souter:-

also found that the former committee had, in 2008/09 sought to earmark areas of common grazings land to be sold off as housing plots, and paid for the feu design work out of shareholders’ grazing funds, again acting outside of the law.

I asked shareholders at Upper Coll about this and was told that it was to allow crofting families in the township to remain in the township by allocating to them house sites on land that was not much use for grazing purposes. Any costs associated with that would be more than recouped when house sites were sold and compensation on resumption received.

Indeed consent to the sale of one such house site was raised as an agenda item at the meeting in November 2015 attended by the Crofting Commission, including Convener Colin Kennedy. This was approved at that meeting by the shareholders present. Of course the resumption application would be advertised in due course giving all and every shareholder the right to object should they wish to do so.

The house site under debate in November 2015 was, rather ironically, allocated to a relation of Ivor Matheson who brought the original complaint against the grazings committee and was so vocal in this week’s Scottish Farmer in support of the actions of Colin Souter which suggest this enterprising initiative on the part of the 2008/09 grazings committee to have been unlawful!

Ultimately shareholder funds are there to be utilised as shareholders want them to be. If all shareholders are happy to divert funds into a scheme on the common grazings that will result in benefit to members of the shareholders families, strengthen the crofting community and ultimately give a financial return what is wrong with that?

I do not believe that even Ivor Matheson would be looking for repayment of his share of the £520 (i.e. £12.38) spent on the feu design work given the benefit that small payment has had to his family.

It is clear that Mr Souter is making assumptions left, right and centre without appraising himself of the true facts. He is meddling in matters that are of no concern of his. He appears to have a goal, possibly at the behest of the master(s) who appointed him, to find fault with the former committee to justify his existence. He forgets he was illegally appointed and, like the Crofting Commission, has not been able to justify with reference to statute or case law the validity of his appointment. He forgets that grazings committees are appointed every three years and he cannot point the finger of blame at the last committee for the actions of their predecessors.

Ultimately, however, Mr Souter has produced a list of petty ‘faults’ most of which can be dismissed out of hand. He has certainly failed to produce the ‘gamechanger‘ that his master(s) may have wished him to find but that he had no remit to ever look for in the first place.

It should also be borne in mind that the initial action by the Crofting Commission against the former grazings committee at Upper Coll that ultimately resulted in the ‘appointment’ of Mr Souter centred around their misinterpretation of the law. A misinterpretation that the Commission have been reprimanded for by Fergus Ewing MSP and apparently has been accepted as such by them.

It has become a farce (although arguably has been for some time). Mr Souter and his master(s) look more ridiculous by the day over their handling of this whole sorry affair. In the process it is not reflecting well on the Scottish Government who have overarching responsibility for crofting.

In the letter of ‘appointment’ from the Crofting Commission addressed to Mr Souter it is stated:-

The appointment is for 6 months from the date of the Order. However the intention is that this should be a short term measure and once any outstanding actions are discharged, that you arrange a meeting of shareholders at which you will resign and a new committee will be elected by the shareholders to manage the grazings in accordance with the Regulations and the Act.

So the Crofting Commission saw the ‘appointment’ as short term and possibly expected it to have come to an end by now. Mr Souter’s duty was “to discharge any outstanding actions“.  It is unclear whether he has in fact even applied himself to such a task and I will look at that in a further blog post. He appears, on the face of it, to have concentrated on a forensic examination of the history of Upper Coll Common Grazings. Something that he had no remit to do even if he had been legally appointed as a grazings constable.

The majority of shareholders at Upper Coll who attended a meeting convened for that purpose (there being no dissenters) have made it clear that they want nothing more to do with Mr Souter. They want to form a new grazings committee.

Mr Souter should respect the wishes of the shareholders who he supposedly represents. He should now do the honourable thing and ‘resign’ from his role as grazings ‘constable’ without further delay. He does not actually need to arrange a meeting of shareholders to do so, he can simply send them a letter or advise the Crofting Commission of his decision to do so and let them advise the shareholders accordingly.

This is what the similarly illegally appointed grazings constable at Mangersta Common Grazings saw fit to sensibly do.

Although arguably Colin Souter cannot resign from an illegal position that gives him no status or authority in the first place.

But the ‘resignation’ (as was the case in Mangersta) may have symbolic significance. It may at least draw a line under his interference in the workings of a common grazings where the vast majority of the shareholders simply wish to get on by themselves with controlling their own destiny and their own finances. They want to do so for the benefit of a community that Mr Souter and his master(s) appear intent on destroying.

Brian Inkster

Image Credit: Wallace & Gromit in The Wrong Trousers © Aardman Animations

Croft Wars: Return of the Committee

Leave a Reply
Croft Wars - Return of the Committee

“Remember, a crofter’s strength flows from the croft. But beware. Anger, fear, aggression. The dark side are they. Once you start down the dark path, forever will it dominate your destiny.”

On the back of revelations that the Scottish Government do not accept the way the common grazings debacle has been handled by the Crofting Commission the shareholders of Upper Coll are fighting back into power.

The Upper Coll Grazings Committee were put out of office by the Crofting Commission for not producing 5 years of “audited” accounts but instead producing 5 years of financial statements prepared by an independent accountant.

The Grazings Committee were ‘replaced’ by a Grazings Constable that I, and others (including bizarrely the Crofting Commission themselves) consider to be illegal.

Now the shareholders at Upper Coll have said enough is enough and the majority of those present at a meeting on 25 August 2016 (there being no objections) have issued a statement that calls on the resignation or dismissal of Convener, Colin Kennedy, and Commissioner, Murdo Maclennan. They state that they consider the Grazings Constable to have been appointed illegally and that they will be holding a meeting to nominate and elect a grazings committee. They want their bank account back (the grazings constable having wrestled control of it away from them).

Their statement reads:-

Return control of Upper Coll Grazings to shareholders vis a vis our democratically elected Grazing Committee.

Return our bank book.

The evidence is overwhelming that the Crofting Commission have acted out-with their powers, their guidelines and legal advice in dismissing the Upper Coll Grazings Committee and imposing a constable, who, while purporting to act for shareholders, seems to see his role as acting for the Crofting Commission in finding fault with democratically taken decisions over many years.

We have evidence that he has been investigating our decisions over many years by contacting, without our knowledge or permission, public and private organisations, in order to try and retrospectively find reasons for the Crofting Commission’s actions, which were out-with their own guidelines and have been the subject to criticism from the highest levels of the Scottish Government and legal profession.

We demand to know what gave the Commission the power to take over our bank account. We demand to know the mechanism which allows any organisation the power to take over and delete democratically appointed signatories to a bank account without the signatories knowledge or permission.

We reject the constable’s view that he has the support of the majority of shareholders. He has mistaken reluctant co-operation for approval.  We agree with all the legal views, apart from the Commission’s, that he has been illegally appointed, and that the Commission made no attempt to elect a committee before they appointed him.

We support the guidelines adopted by the Crofting Commission on 27 April 2015 where they state “it does not appear that the Commission can directly appoint a constable as part of a disciplinary process where a committee is not carrying out its duties.” As a result, we call on the Commission to acknowledge their wrong-doing in imposing a Constable on the Upper Coll Township contrary to their own guidelines and apologise for this to the Upper Coll Shareholders and withdraw the current illegally appointed Constable.

We demand to know what rights an illegally appointed constable has to use village documents, obtained using the threat of legal action, for purposes other than which they were intended, by supplying information to an outside body which states it takes nothing to do with grazings committee’s finances.

We support the views of the Minister for Crofting, and demand that the Commission compensate Upper Coll Grazings for making us disburse monies, when even the Government states it was out-with their power to do so. We also demand that the Commission and/or Constable compensate the village for loss of money through grant schemes such as Agri-environment etc which were not applied for as a result of the dismissal of the Committee.

We support the overwhelming vote taken at the recent meeting in Stornoway of the Scottish Crofting Federation in calling for the resignation of Convener Colin Kennedy. In his refusal to resign we ask the Government to dismiss Mr Kennedy from a position he has used to further his own ends and which he has used to embarrass the Government.

We also call for the resignation or dismissal of our local commissioner Murdo Maclennan as he has done nothing to assist the Upper Coll Grazings when asked to do so on a number of occasions. His contribution in the whole matter has been questionable to say the least.

We support the return to the democracy we had before the dismissal of the Upper Coll Grazings Committee who had complied with all the demands made on them by the Crofting Commission.

We propose a meeting of shareholders on Saturday 10th September at 7pm to nominate and elect a grazings committee. We do this in accordance with the Crofting Commission’s own guidelines as laid out in Annex A for Policy in Development Paper No 6.

We call on the Commission to apologise for the stress caused and the public querying of “financial irregularities” even after they had properly independent accounts presented to them, which showed there was no such “irregularity”.

There is overwhelming evidence that the Commission’s conduct has been improper, outwith their own guidelines and in our case vindictive, draconian, and illegal.

We call on the Minister to help us get our bank account back, support us having an elected grazings committee back in place immediately, define what the role of the Commission is and how it should keep to its own public and legal guidelines to the same detail as it requires of voluntary grazings committees.

It was reported on Hebrides News that a Crofting Commission spokesperson said:-

Following an investigation under the Crofting Act the grazings committee in Upper Coll were removed from office on 14 April 2016.

Subsequently, the Crofting Commission received a request from the former grazings clerk, stating that there were a number of issues that, in the view of shareholders, required immediate attention and asking the commission what they intended to do to resolve the issues highlighted.

The commission discussed this matter at a meeting on 9 May 2016 and considered all of the options available to them.

Given the request for immediate action and in order to protect the interests of all shareholders the commission decided to appoint a constable in terms of section 47(3) of the Act.

The grazings constable is now nearing the end of his appointment following which the shareholders can appoint a committee of their choosing.

The Commission told Hebrides News that it could not give further details as the matter was the subject of court action. Certain committee members who were removed from office at Upper Coll appealed the decision of the Crofting Commission to the Scottish Land Court. There is currently debate before the Land Court as to whether or not the court has jurisdiction to hear such an appeal and a decision on that preliminary technical matter is awaited.

View from the Crofting Law Blog

It seems to me to be very strange indeed that on the back of a massive U-Turn regarding the appointment of a grazings constable at Mangersta, revelations that the Crofting Commission knew themselves that the appointment of a grazings constable, in these circumstances, was illegal and a rebuke from Fergus Ewing MSP over their handling of the affair that the Commission persists with the notion that a ‘constable’ exists at Upper Coll.

All indications are that they so persist in the hope that the constable will unearth some wrongdoing that will possibly justify his appointment in the first place! However, you can never justify a step that by all accounts (including their own) was illegal in the first place.

As recently as 17 August Commissioner Murdo Maclennan stated that:-

We have got a Constable who is working with crofters in the village… and… and… I am finding out he is working well with them.

Clearly a statement that is very much at odds with what the crofters in the village are actually saying.

The Crofting Commission need to put this mess that they have created to bed. Their failure to do so does not sit well with their apparent support of the position of the Scottish Government i.e. that the Commission got it wrong over the question of disbursement of funds – the very issue that resulted in the dismissal of the Upper Coll Grazings Committee and the illegal appointment of a grazings constable.

Does, however, the statement by the Crofting Commission spokesperson that:-

The grazings constable is now nearing the end of his appointment following which the shareholders can appoint a committee of their choosing

mean that the Crofting Commission perhaps do see the matter being put to bed shortly by simply the current term of an illegal appointment coming to its natural albeit illegal end?

In the absence of any early resolution of the matter by the Crofting Commission, and a Land Court action in hand that could rumble on for some time yet, it does not seem unreasonable for the shareholders at Upper Coll to be making the statement they have and taking the action intended to appoint a committee to manage their affairs sooner rather than later.

However, the ‘grazings constable’ of Upper Coll, Colin Souter, appears to be fighting back. I will look at his stance on the matter in my next blog post.

Brian Inkster

Image Credit: Star Wars: Episode VI – Return of the Jedi ©  Lucasfilm Ltd