Tag Archives: illegal grazings constable

Colin Kennedy and the Holy Grail

The Scottish Farmer today gives space for Colin Kennedy, Convener of the Crofting Commission, to tell them about his “crofting crusade!”. This follows hot on the heals of a huge press offensive on his part over the past week with appearances/articles in Sunday Politics Scotland, The Oban Times and BBC Radio Highlands & Islands.

The story is the same: He is right and everyone else is wrong.

He has again stressed that his sole motivation is:-

to uphold crofting law, and defend the statutory rights of ordinary crofters

It has been shown that this is very much his own interpretation of crofting law and not one supported by the Scottish Government or by his fellow commissioners.

He has, however, again rounded on the Scottish Government and the cabinet secretary responsible for crofting, Fergus Ewing MSP, with The Scottish Farmer reporting Mr Kennedy as:-

bluntly accusing him [Mr Ewing] of perpetrating a cover-up of ScotGov’s historic role in a quagmire of maladministration.

He labours on about his views on the illegalities of common grazings obtaining SRDP funding which, as has been pointed out many times before, is not any business of the crofting regulator but a matter for the Scottish Government, the EU and crofters.

Mr Kennedy claims that:-

The commission has taken legal advice from Sir Crispin Agnew QC and it is my understanding that a grazing committee does not merit claiming subsidies, as only individual shareholders with grazing rights are eligible, provided that they comply with the provisions of the legislation for such activity.

Does Mr Kennedy have the approval of the Board of the Crofting Commission to discuss in public this legal advice obtained by the Commission? If not he is breaking that code of conduct again that he was keen to discuss on BBC Radio Highlands & Islands. This is, of course, true in relation to much that he has said over the past week.

Obtaining such a legal opinion was probably outwith the remit of the Crofting Commission in any event. It is understood that Mr Kennedy was instrumental in having it obtained. It is further understood that whilst the Board may have considered this legal opinion when produced they did not use it as a base for any decisions made.

The Scottish Government stated that it “wholly disagrees” with the views on SRDP funding held by Mr Kennedy. This would appear to include the legal opinion that he still clings to.

Those views, like his ones on VAT registration, were potentially all about depriving crofters of funding and had nothing to do with upholding crofting law and defending the statutory rights of ordinary crofters.

Mr Kennedy again showed the huge divide between himself and the Crofting Commission Board and the fact that he was not in fact supporting decisions taken by the Board such as accepting the Government’s position on SRDP and disbursement of funds.

Mr Kennedy proceeded, in his interview with The Scottish Farmer, to attack the former Upper Coll Grazings Committee stating that they:-

have a lot to answer on behalf of shareholders.

Again this is completely at odds with the position taken by the Scottish Government and the Board of the Crofting Commission who have issued an apology to the grazings committee in question.

Mr Kennedy’s position in such circumstances is completely untenable.

On the subject of Colin Souter, the grazings ‘constable’ at Upper Coll, Mr Kennedy denies any involvement in his appointment or that he is “his man“. He points the finger on Chief Executive, Catriona Maclean, for the appointment “without reference to the agreed board process“.

However, Freedom of Information requests reveal evidence that Mr Kennedy’s version of events may be one painted through rose tinted glasses. His memory again may not be serving him well.

A document produced by the Crofting Commission states:-

Following the Board meeting on 9th May the Convener, Vice Convener, and CEO met by phone to agree who should be appoint4ed [sic] to the post of Grazings constable in the Upper Coll Common Grazings.

So Mr Kennedy was very involved in the selection process.

The selection committee considered four potential candidates for the job and concluded that:-

Mr Souter has experience in working with crofters and grazings committe4ss [sic] through his time in the Police. An ex-chief inspector and force negotiator who comes from south Usit [sic] Mr Souter has both the skills and experience to deal with this matter and therefore he was selected to be appointed constable.

So Mr Kennedy was in fact party to and appointed Mr Souter to the post in question.

There is also evidence of direct communication between Mr Souter and Mr Kennedy. For example an e-mail from the former to the latter on 24 May 2016 which reads:-

Hi Colin

In looking to progress a meeting with the shareholders at Upper Coll, in the near future, I wanted to ensure the venue was appropriate and given you’ve been out there, I wondered if you had an idea on the best venue option and perhaps a secondary one, if circumstances require?

Kind Regards

Colin

Colin Souter

No evidence was produced from the Freedom of Information request as to whether or not recommendations were given by Mr Kennedy to Mr Souter on the comfort of the chairs at possible venues in Upper Coll. But this exchange does prove that there was indeed direct communication between the two as previously suggested on this blog.

Furthermore Mr Kennedy was taking a direct interest in matters by requesting to see minutes of meetings held by Mr Souter at Upper Coll, all as disclosed from information obtained through Freedom of Information.

Mr Kennedy in discussion with The Scottish Farmer refers to the whole grazings committee issue being “a can of worms” but stressed that to his knowledge it was only a problem specifically on Lewis. He is reported as having “quipped“:-

as previously stated in the board room things are often done differently in Lewis.

What about in Lochaber? Has Mr Kennedy also forgotten about the grazings committee he and his fellow commissioners put out of office there? Has he forgotten about how instrumental he was in ensuring the appointment of a grazings ‘constable’ there who would do his bidding?

It has, however, been commented on before that Lewis appeared to be a particular target for the convener. It is unclear why. But perhaps that will eventually come out in the wash.

Mr Kennedy is quoted by The Scottish Farmer as saying:-

But now I’ve put my head on the block in trying to get to grips with the truth. I know people are queuing up to get me out but I am not letting this rest. I’m not going to jump, so I will probably be pushed. If that happens my solicitor is standing by.

That solicitor will have a difficult hill to climb. The evidence seems to me to be firmly stacked against Mr Kennedy and has been since my first blog post on ‘The Common Clearances‘. Subsequent events and revelations from Freedom of Information requests has just fortified that position.

Mr Kennedy’s version of events, as given to the press this past week, appears to show a selective memory with many gaps to fill. I and others who post comments attempt to fill those as best we can on this blog.

Mr Kennedy, like Mr Souter, appears to be searching for a justification for his discredited actions. I doubt that he will ever find it.

Brian Inkster

Image Credits: Monty Python and the Holy Grail © Python (Monty) Pictures

Has the Convener lost his memory?

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The Convener of the Crofting Commission, Colin Kennedy, gave an interview to Gordon Brewer on Sunday Politics Scotland by phone from the Isle of Coll. This followed on from my own interview with Gordon Brewer at the BBC studios at Pacific Quay in Glasgow.

What struck me from Mr Kennedy’s responses to Gordon Brewer’s questions was that he appeared to have lost his memory. I will look at some of those responses and explain why:-

Mr Kennedy’s assertion that the Commission have acted wholly within the law at all times and have not received legal advice to the contrary

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.

View from the Crofting Law Blog on Mr Kennedy’s assertion that the Commission have acted wholly within the law at all times and have not received legal advice to the contrary

Has Mr Kennedy forgotten that he had deleted from the Crofting Commission’s website his own guidelines on “immediate” payment of funds when it was shown that the law did not insist upon that.

Has Mr Kennedy forgotten already that Fergus Ewing MSP, Cabinet Secretary responsible for crofting, wrote him a letter which stated that Mr Ewing saw “little merit” in and “wholly disagrees” with his interpretation of the law?

Indeed Mr Ewing referred to the Scottish Government’s position as being “diametrically opposed” to Mr Kennedy’s position. He went onto say that it was “not sustainable for the Scottish Government and one of its public bodies to take opposing interpretations of the law”.

The Board of the Commission (including Mr Kennedy) subsequently accepted and supported the Government’s position in this regard.

Has Mr Kennedy also forgotten the meeting that he and other commissioners had with Mr Ewing at Holyrood?

At that meeting Mr Ewing told Mr Kennedy that the action taken by the Crofting Commission to remove grazings committees from office was wrong, that the decisions should be rescinded and an apology given to the grazings committees in question.

Following Mr Kennedy walking out of the Board Meeting at Brora the remaining commissioners accepted Mr Ewing’s position and the apology was issued.

First Minister, Nicola Sturgeon, referred to it as being “disappointing” that Mr Kennedy was not a party to that apology.

Mr Kennedy being unaware that the commissioners have no confidence in him

Gordon Brewer said:-

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 responded:-

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.

The Crofting Law Blog’s view on Mr Kennedy being unaware that the commissioners have no confidence in him

Mr Kennedy has been known to go into hiding but he must be on a different planet if he is suggesting that he does not know what was discussed at the Special Meeting in Brora.

It was headline news following that meeting.

Perhaps commissioners didn’t use the exact words “no confidence” at their meeting but calling on Mr Kennedy to resign is a vote of no confidence if ever there was one.

Mr Kennedy’s understanding of the Commission’s Standing Orders

Gordon Brewer asked:-

So as far as you are concerned what? The Crofting Commission is carrying on its work as per normal?

Colin Kennedy replied:-

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.

The Crofting Law Blog’s view on Mr Kennedy’s understanding of the Commission’s Standing Orders

Is Mr Kennedy not familiar with the Commission’s Standing Orders? Surely the Convener should be?

The relevant provisions for present purposes are:-

6.4 The Chief Executive will call a Special Meeting of the Commission when required to do so by the Convener of the Commission. A Special Meeting will also be called by the Chief Executive if in receipt of a written request stating the business of the meeting from another member of the Commission and seconded by a majority of the Commission. The meeting will be held within 21 days of the receipt of the requisition by the Chief Executive.

6.5 Where the Convener requires a Special Meeting, and considers that there is particular urgency, the Chief Executive may call the meeting without giving the
7 days’ notice normally required at 6.1 above, provided every effort is made to contact members to give as much notice as possible prior to the meeting.

These provisions were followed and a Special Meeting duly convened.

The Crofting Commission have stated:-

When the Convener left the board meeting on 28 September in Brora the remaining commissioners requested a Special Meeting. This was held in line with the Crofting Commission’s Standing Orders.

Crofting Commissioners should be commended for doing so and allowing important business that Fergus Ewing MSP had requested them to deal with to so be dealt with.

The Convener was content to abandon the scheduled meeting and not deal at all with the business of the day.

Mr Kennedy’s views on the inexplicable

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.

The Crofting Law Blog’s take on Mr Kennedy’s views on the inexplicable

What can you say!

Mr Kennedy’s assertion that decisions have been based on legal advice and papers presented to the Board

Gordon Brewer pointed out:-

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 retorted:-

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.

The Crofting Law Blog’s view on Mr Kennedy’s assertion that decisions have been based on legal advice and papers presented to the Board

I am unsure what the board minute of 15 September 2015 is. I have located one from 16 September 2015 but that does not appear to be of any relevance to the matter at hand.

However, has Mr Kennedy forgotten that the Chief Executive provided clear advice to the Board that they could not appoint a grazings constable where a grazings committee was removed from office?

Despite that advice the Board went onto appoint three grazings constables in three such circumstances which appears to be a contravention of the legal advice received on at least three occasions.

General comment from the Crofting Law Blog on Mr Kennedy’s memory

It would appear that when analysed Mr Kennedy’s responses in each instance are somewhat flawed. The accurate position in each instance can actually be found in the archives on this blog.

Perhaps Mr Kennedy should refresh his memory by reading through the blog before he gives his next press interview.

However, the flaws in his responses highlight a serious divide between him and the Scottish Government and one that you would think the Scottish Ministers cannot tolerate for much longer.

Brian Inkster

Image Credit: Sunday Politics Scotland © BBC Scotland

Few tears should be shed

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The latest edition (30 September) of the West Highland Free Press contains a strong editorial concerning the events in Brora last week. It is entitled Crofting Commission: No tears for the end of the Colin Kennedy era. We reproduce it here as an important part of our archive on ‘The Common Clearances‘:-

By walking out of a Crofting Commission meeting in Brora yesterday (Wednesday) because everything was not going his own way, Colin Kennedy abandoned the convenership in the same disgracefully arrogant manner with which he has held the position for the last 15 months. Few tears should be shed.

Last week crofting minister Fergus Ewing instructed the crofting commissioners to make a full public apology to the Lewis grazings committees which earlier this year, they summarily and possibly illegally dismissed from office.

In other words, according to the crofting minister, throughout this whole sorry affair the Crofting Commission has been completely wrong in both its legislative interpretation and procedural actions.

The commission was wrong to consider that the locally-elected grazings committees at Upper Coll and Mangersta had been constitutionally at fault. It was also wrong to sack them.

There can be few graver charges laid at the door of crofting’s regulatory body. Its punishment is to publish a humiliating confession of its sins, and to submit to a review of its practices by Scottish Government officials.

More than anybody else, Mr Kennedy spearheaded the assault on the grazings committees. In doing so he at least demeaned and possibly also subverted his office.

If one thing was certain following Mr Ewing’s intervention before Wednesday’s meeting in Brora, it was that Colin Kennedy could no longer stay on as convener. All that remained was the manner of his leaving. It could have been gracious or it could have been petulant. It was of course the latter.

The remnants of the Crofting Commission was left to compose its letter of apology. Once that task was completed, before dusting itself down and attempting to resume normal and responsible service, it must tie up another loose end from Mr Kennedy’s convenership.

The commission should instantly remove its constable, Colin Souter, from Upper Coll. The imposition of Mr Souter on that part of Lewis was a grossly insulting over-reaction. He should never have been sent there in the first place.

In the words of the Scottish Crofting Federation’s Fiona Mandeville, Constable Souter “has no place in crofting, is aggravating bad feeling and is standing in the way of democratic process”.

Colin Souter’s continuing presence on the east side of Lewis is reminiscent of the Highland authorities’ response to the 19th century land war. It has no place in the 21st century.

Colin Kennedy was elected to the Crofting Commission by the crofters of the south-west Highland constituency. He was then elected to the convenership by his fellow commissioners following their vote of no confidence in the government-appointed chair, Susan Walker. He is walking proof of the fallibility of democracy.

But if free votes have bad outcomes, they can also correct their mistakes.

If Mr Kennedy hangs around, stands and is re-elected by the voters of Lochaber, Argyll and Bute, Arran and Cumbrae and the Small Isles next March, that will be their right and their responsibility. We hope, however that the crofters of the south-west Highlands have enough decency and sense to choose an alternative.

Other commissioners should and doubtless are taking long hard looks at their positions.

They have all been complicit, to one degree or another, in this fiasco. Murdo MacLennan was returned from Lewis with the biggest vote of all. For all of his experience and affability, Mr MacLennan has not defended the crofters of his own constituency from his convener’s excesses.

If, as we have often suggested, the size of the Western Isles crofting constituency was property respected and it had two or three elected commissioners, Colin Kennedy might have found some opposition within the commission’s ranks – and the grazings committees of Upper Coll and Mangersta might not have been dragged through the mire.

As things stand, Murdo MacLennan is the only Western Isles representative on the Crofting Commission. In this important instance, however reluctantly and for whatever reasons, he has failed his voters. If he also stands for re-election, he might not expect many voters from Upper Coll next spring. Whether or not the crofters of the rest of Lewis stick with him is their decision. We suggest that it is time for a change there also.

It may not be his worst offence, but Colin Kennedy’s Crofting Commission has given ammunition to those who will suggest that crofters are incapable of managing their own affairs.

Crofters themselves can refute that charge. Six months from now they will once again be asked to vote for crofting commissioners.

In the elections of 2012 the turnout was low. In both the Western Isles and in Skye and the West Highlands, only half of crofters bothered to vote.

That turnout should increase significantly next spring. Crofters everywhere know by now how much is at stake. The least they can demand of their commissioner candidates is that they refrain from mounting concerted attacks on grazings committees.

Souter to step down “as soon as possible”

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Colin Souter was about to escape the life in a goldfish bowl he had created for himself as grazing ‘constable’ at Upper Coll.

The Crofting Commission announced today that Colin Souter is to step down as Grazings ‘Constable’ at Upper Coll on the Isle of Lewis “as soon as possible”.

The official statement reads:-

The Crofting Commission confirmed today that it has written to shareholders of Upper Coll Common Grazings to advise that the grazings constable will be stepping down as soon as possible.

The move follows the submission of a report from the constable, which was considered at a special meeting yesterday. The report will also be circulated to shareholders.

In the letter, the Commission encourages shareholders to work together in appointing a new grazings committee in line with crofting legislation.

This follows on from the direction given to Commissioners by Fergus Ewing MSP last week. The decision was made by Commissioners at a Special Meeting in Brora yesterday in the absence of the Convener, Colin Kennedy, who had walked out on the earlier convened meeting that morning.

Mr Souter’s appointment was seen by me, and others as illegal. Ironically a report by the executive of the Crofting Commission to their board also considered this to be the case.

Mr Souter was also criticised for taking on an investigative role and seeking to find some sort of fault at Upper Coll rather than assuming the role of grazings clerk with the day to day management function that goes with that role.

He sought to impose the views of a minority on the majority. He liked to report his ‘findings’ on a regular basis to the press.

Whilst Mr Souter claimed he was independent from the Crofting Commission it was clear that they were working hand in hand and indeed, on the face of it, Mr Souter was simply a Commission puppet.

The vast majority of shareholders at Upper Coll will be relieved by this latest news.

However, they may not be celebrating just yet. At least not until they see how long “as soon as possible” turns out to be.

A new committee has already been elected by the shareholders and the Crofting Commission would do well to simply accept that committee rather than insisting on further procedure, possibly involving Mr Souter, to achieve the very same end result.

Brian Inkster

Image Credit: Police Academy © Warner Bros

Croft Wars: A New Hope

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The dark side ultimately fell at the hands of the rebel crofters where the force was strong

The battle by the rebel crofters against the dark forces of the Crofting Commission took a turn in the direction of justice and rightfulness yesterday.

Fergus Ewing MSP, Cabinet Secretary with responsibility for Crofting, met with all of the Crofting Commissioners in Edinburgh to discuss the dismissal by them of three common grazings committees (two in Lewis and one on the Scottish mainland).

It has been reported that Mr Ewing told Commissioners that he expected them to rescind their decisions to dismiss and issue an apology to the three grazings committees in question.

This implies that it will bring to an end the imposition by the Crofting Commission of the grazings ‘constable’, Colin Souter, on the Upper Coll Common Grazings.

It was also reported that Mr Ewing has instructed government officials to carry out a review of the governance of the Crofting Commission.

Kate Forbes, MSP for Skye, Lochaber and Badenoch, said: –

The Crofting Commission, like any public body, must enjoy the trust of those it is working to serve and, sadly, the disputes over the past few months have been a cause of concern for those who want to support the crofting community.

As such, I support Fergus Ewing’s commitment to moving on, apologising where necessary and putting in place the necessary safeguards so that crofters are not sidelined in the cause of small ‘p’ politics and damaged relationships.

The Scottish Crofting Federation has welcomed the news. Their Chair, Fiona Mandeville, said:-

It has taken a long battle to get to this point, but it is extremely good that it is reported that Mr Ewing has made clear his support to crofters by directing the Commissioners to issue a full, unequivocal, public apology for their mistreatment of common grazings committees. This whole episode has been badly damaging to individuals, to crofting communities and to crofting itself, so we hope an apology may be the first step in a healing process.

As the person who seems to be behind the on-going attacks on crofting committees, it would be appropriate for the Convener of the Crofting Commission, Colin Kennedy to give the apology in his resignation statement.

The Scottish Crofting Federation has been asking for a review of the Crofting Commission, to look critically at its procedures and governance. The news that Mr Ewing has instructed government officials to carry out a review is very promising. This situation must be prevented from happening again by modifying the way the Commission works. It makes no sense at all that the Convener was involved in local meetings, and was making personal statements regarding grazing committee business. Acting as some sort of maverick lawman is not appropriate. The board of the Commission should be, as any board, for strategic direction and governance.

And as for Kennedy’s imposed, and lawyers say illegal, henchman, Constable Souter, he must be removed from Upper Coll immediately. He has no place in crofting, is aggravating bad feeling and is standing in the way of democratic process.

Luke Croftwalker and Han Silo receive their medals for bravery in standing up for the rights of crofters and defeating the dark side of the Crofting Commission

The Crofting Commissioners meet next week (on 28 September) in Brora for a board meeting. It is assumed that it will be decided at that meeting to follow the directions given by Mr Ewing and rescind their previous decisions and issue an apology to the crofters in question. That apology will presumably have to be given by Convener Colin Kennedy who has the particular responsibility of representing the views of the Board to the general public.

Brian Inkster

Images Credit: Star Wars: Episode IV – A New Hope © Lucasfilm Ltd

Grazings ‘Constable’ must stand aside or be removed

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The Scottish Crofting Federation has written to the cabinet secretary for crofting, Fergus Ewing MSP, expressing deep concern that crofters’ democratic rights are being flouted by a constable appointed, perhaps illegally, by the Crofting Commission.

Chair of the Scottish Crofting Federation, Fiona Mandeville, said:-

The majority of shareholders of the Upper Coll grazings have voted, yet this constable, whose legality of appointment is refuted by lawyers, is completely ignoring them. The shareholders have demanded that the constable, Colin Souter, who was appointed by the Crofting Commission, stands down so that they can reinstate a democratically elected grazings committee. Why is he still there?

Democracy is the very foundation of grazings committees. A lack of democratic procedure by the removed Upper Coll committee is something that the constable has been trying, unsuccessfully, to find evidence of. The shareholders have the legal right to elect their own committee and Souter is standing in their way. He must stand aside or be removed.

Judging by the press releases Souter issues, he clearly has misunderstood the role of a grazings clerk, or that of an appointed constable fulfilling the duties of clerk – were his appointment legal. He seems to be either completely out of control, or under the control of the Crofting Commission, an organisation that has lost all credibility. In addition Souter and his masters are attempting to undermine the viability of crofters’ collaborative enterprises by questioning their entitlement to SRDP and registration for VAT. Are they trying to bring to an end 130 years of crofting? The only recourse is for the Scottish Government to take control of the situation and to remove him.

This incredible situation is extremely harmful, not only to the crofting community of Upper Coll, but to crofting itself. We can understand that the Scottish Government is reluctant to interfere with a democratically elected Commission, but this constable is not democratically elected, claims to be independent of the Crofting Commission who appointed him, and is flouting democracy. There is nothing to stop the Scottish Government from doing the right thing, and it must do it now.

The T-1000 Grazings ‘Constable’

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No… No.

Like the T-1000 in the Terminator series Colin Souter keeps coming back for more.

I previously blogged about the exchange of views between myself and Mr Souter published at Scottish Legal News. Whilst the original topic had been Crofting VATgate, Mr Souter had turned this into an attack against me providing legal advice to Upper Coll Common Grazings (before the former committee were removed from office by the Crofting Commission).

I responded to those attacks although I had already done so elsewhere with my previous comments simply being ignored by Mr Souter as though they were never written.

Once more that is the approach adopted by Mr Souter in his latest (and last) letter published by Scottish Legal News yesterday. “Last letter” in that Scottish Legal News have not surprisingly now closed debate between me and Mr Souter through their pages.

Whist Scottish Legal News have understandably brought the debate to an end through their own pages I will continue it here as there is a need to correct the misleading statements, once more, made by Mr Souter. I will, as I have done before, quote sections of Mr Souter’s letter (in italics) with my analysis following each section:-

I note Mr Inkster has shared another article published on Scottish Legal News. I have no intention of inflicting this debate upon your readers as a series of articles but will merely address what I believe to be THE crucial point, missed from all of his recent writings.

The Common Grazings is about ALL the shareholders and NOT the Committee. When a Committee takes it upon itself to make decisions, other than those relating to the maintenance of the Common Grazings, without reference to shareholders, it loses its mandate…..and its credibility. I have never disputed the rights of any individual to seek professional legal advice, nor would I do so. The point which I hope will not escape readers attention is that the Committee, in accessing and spending money which belongs to ALL shareholders, has exceeded their authority, if it does not first seek shareholder approval for that spend. And that is the case, as shown in the Minute Book.

The former committee have always maintained that their meetings were open to all shareholders and decisions were not taken in isolation. They were recently reported as stating:-

“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.”

I imagine that the former committee would normally have had meetings with much more than 4 shareholders in attendance (that being the number of shareholders out of a total of 42 that Mr Souter proceeded to conduct business with on Tuesday night).

Mr Souter has taken many decisions on his own account without any recourse to shareholders: obtaining the Opinion of a QC on VAT matters via the Crofting Commission; writing to HMRC querying the right of common grazings (anywhere it would seem and not just Upper Coll) to be VAT registered; writing to numerous parties including myself concerning various spurious matters with insinuations and threats; meeting with Western Isles Council over matters decided by shareholders 8 years or more ago; seeking to involve the Crown Office & Procurator Fiscal Service in undisclosed matters.

In all the accusations about shareholders not being consulted over matters has Mr Souter ever thought to actually ask shareholders whether or not they approved decisions previously made?

If any didn’t (I doubt if there would be many decisions, if any, that would fall into that category) then that would be a matter for any such aggrieved individual shareholder to pursue (if excluded illegally from a decision making process that should have legally included them).

This is not something that Mr Souter can pursue in any way on their behalf. He is deluded in the extreme if he thinks he has such power even were his appointment a legal one.

As a continuing course of conduct, failing to consult and seek approval from the wider body of shareholders serves only to undermine the relationship between the Committee and the shareholders. The resulting friction and rift that has opened up over time, can be traced back to an evident lack of willingness on the part of the Committee to consult, seek and record shareholders views to support Committee activity. My conclusion follows a simple analysis of the records of the Grazings, including the Minutes of meetings of both the Committee and of ordinary shareholders. Doubtless, Mr Inkster will challenge the validity of my conclusions. I can only say, on a factual point, that I am better positioned to comment by virtue of possessing the historical Minute Book, which is the place where you would reasonably expect such detail to be entered. Even disregarding the official Minute Book (and why would you?), there is the evidence offered by shareholders themselves at more recent shareholder meetings, confirming my own conclusion.

Again Mr Souter’s conclusions “follows a simple analysis of records” and not what the shareholders say the position actually was. His reference to “the evidence offered by shareholders themselves at more recent shareholder meetings, confirming” his “own conclusion” can immediately be dismissed on the basis that this is what 4 out of 42 shareholders may have told him. I understand that those 4 shareholders did not often attend shareholders meetings although it was of course open to them to do so.

The irony is that Mr Souter keeps saying that all shareholders should be consulted yet he is holding meetings with just 4 shareholders and making decisions that affect all shareholders (sometimes without any meetings at all) when he knows that at least 26 out of 42 shareholders (i.e. a clear majority) do not support him or his actions.

All parties involved have a duty to act responsibly and engage positively to help move towards a point of resolution. The most recent meeting of shareholders on 13 September saw fit to vote and unanimously support my activity in office to date, and a series of continuing actions outlined by me, to the meeting, as just one of a number of votes that took place. Many present stated this was the first opportunity they had had in recent years to vote on matters and hoped it was a sign of things to come. Shareholders also voted on a new set of Grazings Regulations, consulted upon over the last three months and once endorsed by the Crofting Commission will, I believe, go some way to improving the framework under which the grazings operates.

Again Mr Souter omits the all important numbers and actual facts as though they do not exist. The unanimous support he refers to amounts to possibly only 4 out of 42 shareholders. Mr Souter was presented with a petition by 26 out of 42 shareholders which reads:-

“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.”

The “many present” is possibly a maximum of 4. Their “first opportunity” may possibly be because it is the first time they have chosen to attend a shareholders meeting.

Mr Souter was critical of me before for not divulging numbers of attendees at a meting called by shareholders when I didn’t actually know the numbers. In that case he claimed “9 out of 42 shareholders was never a majority“. He knows the numbers in this instance and so perhaps it is he who is now painting “a rather disingenuous picture“? Especially when 4 out of 42 is certainly nowhere near a majority. But 26 out of 42 is.

Mr Souter was also of the view that those who didn’t attend meetings called by the shareholders were “voting with their feet“. On 13 September there were 11 shareholders who actually walked out on his meeting. That is voting with your feet if ever you saw it. If you follow Mr Souter’s view on shareholders meetings and actual support then 38 out of 42 shareholders voted with their feet on 13 September against Mr Souter. He must therefore accept, by his own reasoning, that he has no mandate at Upper Coll.

It is a matter for regret that Mr Inkster has failed to correspond with me, to answer my query and to confirm the existence (and provide a copy) of his letter of engagement, for review by Upper Coll shareholders. His claim that I am “illegally appointed” has been rejected by the Crofting Commission in their letter to shareholders of 8 September. It is simply his opinion on the matter but I nevertheless defend his right to hold that opinion.

Mr Souter yet again completely ignores the fact that I have in fact responded to his letters by way of a seven page letter copied to him but directed to his ultimate employer, the Scottish Government. After all Mr Souter does declare on his LinkedIn page that he is “engaged to support Scottish Government NDPB Crofting Commission, in investigative and reporting activity“.

If I take issue with his behaviour in correspondence issued by him to me, as I do, then I am well within my rights to take that behaviour up with his employers, as I have done. That is certainly not a failure to correspond.

I clearly cannot provide someone who has not instructed me with information provided to someone who did! The Law Society of Scotland would have something to say about any solicitor being persuaded to unethically do so.

My opinion that Mr Souter has been illegally appointed is shared by others and indeed rather ironically reflects the policy adopted by the Crofting Commission but mysteriously departed from by them, contrary to legal advice presumably received by them, on at least three occasions.

Any challenge on the question of the legality of the appointment of grazings ‘constables’ to the Crofting Commission has been met by a simple assertion that as it was a “final decision” of the Commission it is one that cannot be revisited by them. Even although they are unable to show where in law it is stated that they cannot revisit decisions and this is something they have been seen to do on other occasions!

Thus, in effect, the Commission are saying that they may well have made an illegal decision but they have no power to reverse or change such an illegal decision!

Should he wish to press the matter further, then he is clearly aware of the legal process to follow.

Indeed I am, which is more than the Crofting Commission appear to be aware of.

The continual misrepresentation of the situation in the press by disaffected former Committee members and the media profile enjoyed along with their followers, is a matter of ongoing disappointment. For my own part, I will continue to invite all shareholders to participate at official meetings and contribute positively to the future of their Common Grazings.

From the other side of the fence the misrepresentation is clearly on the part of Mr Souter and the Crofting Commission. A reading of this latest letter from Mr Souter alone taken together with my responses thereto is evidence enough of that.

Given the nature of the ongoing dispute, this article does not reflect the views of all Upper Coll shareholders.

Indeed. It may possibly reflect the views of 4 out of 42 of them.

Brian Inkster

Image Credit: T-1000 in Terminator: Judgment Day © Carolco Pictures; Pacific Western Productions; Lightstorm Entertainment; Le Studio Canal+ S.A.

Constable Propaganda

16 Replies

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

Grazings Constables Risk the Clink

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:-

Crofters and Lawyers

Crofting VATgate

Inspector Constable

The Crofting Bat Phone

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.:-

The Wrong Grazings Committee!

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.

Brian Inkster

Image Credits:-

Main image: INGSOC 1984 Propaganda Poster (detail)

Crofters, Lawyers, VAT and a Grazings ‘Constable’

Crofting is about People

4 Replies

This is a guest post contributed by a concerned Upper Coll Villager:-

I keep on asking how they could have sacked a committee, three of whose members had only been on it for 9 months. They had not been on any of the previous committees. How could they have had time to be responsible for anything?

I have been puzzled at the lack of public support from other villages, apart from the night in Stornoway Town Hall, but I have had it said to me several times that they have all done the kind of things for the good of the community, and for which we had previously been praised, and now they fear themselves being targeted. They have done precisely the same kind of things we are now being chastised for. VAT, small donations, foregoing share of feus in favour of our hospice. Ridiculous.

Crofting is not about a few sheep or a few cattle, it is about people and keeping people in our crofting areas. No one can make any kind of a living off crofting in our area. Nevertheless it is an important mechanism for maintaining “community” and all that means. Over half the townships don’t have a committee as a result of loss of “community”. The Commission instead of encouraging the ones which do exist are hounding them.

I have been told of one committee that has been disbanded until they see what the outcome of our situation is. They don’t want to be made personally responsible or be targeted the way our committee has been. They are all waiting to see what happens to us. This is no longer about Upper Coll but about the whole essence of what constitutes a “live” crofting community.

It is very difficult at times to remember the precise details of events of years ago. As the ”constable” has our minute book we don’t have our memory jogger.

The Gearraidh Ghuirm road construction, our esteemed constable seems to have placed such emphasis on, was to help the new householders get good access to their houses, as the village, whilst encouraging and accepting applications in an area of moorland, which was so useless it hadn’t even been fenced, made it quite clear to the purchasers, while they were getting the fues cheaply, the responsibility for the road was theirs and theirs only.

In a spirit of helpfulness, as was the case with the football and recreational facilities, we had enabled to happen, and for which again we are now many years later criticised, the village facilitated it by making application to the Council for money from it’s Unadopted Roads budget. The cash was provided by the Council and the feu holders. The village’s contribution was mainly “in kind”, material from the gravel pit we have developed ourselves over the years. Our ‘constable’ seems determined to find fault and tries to say by looking at our cashbook accounts of EIGHT years ago that we caused shareholders financial loss. Rubbish and now we have a street of houses, on what was useless ground, and up to 20 children … and we are now being hammered for being resourceful in enabling that to happen.

Now that our great ‘constable’ has highlighted what was a beneficial local practice which we all benefitted from, is there going to be pressure on the landlord to put a stop to it? I hope not, but him poking his nose in could very well have that effect.

I have seen the immense strain this has so unfairly placed on the former committee. Their families, who are not used to being under this kind of legal and media focus are completely perplexed by it all. I feel personally insulted on behalf of myself and the others of us whose forefathers created this village, that these people have demeaned all we have done for so many years, which led us to being widely recognised as a forward looking and well run grazings village.

Ivor Matheson and his ally Kenneth Macleod, who has not one facility for his cattle on his wife’s croft and is dependent on common grazings, have much to answer for. Those in authority who didn’t throw out their nonsensical complaints but used them to enable them to peddle some weird agenda have much more to answer for.

A Concerned Upper Coll Villager

Image Credit:-

Registers of Scotland ‘click your croft’ photography competition 2014.

Heather Gray of Shetland won with her photo ‘Hentin Totties’, which shows a family of all ages working the land.

The competition, run in association with the Scottish Crofting Federation and the Crofting Commission, set out to explore what this traditional way of life means to crofters in 2014.

Miss Gray said: “I suppose my main inspiration for the photo is family. Seeing the extended family from grannies to toddlers coming together and helping out with the yearly crop – it just makes you smile.”