Tag Archives: Inksters Solicitors

Law Awards of Scotland recognise Crofting Endeavours

Law Awards of Scotland - Finalist - Solicitor of the Year - Brian InksterBrian Inkster has been shortlisted for Solicitor of the Year at the Law Awards of Scotland.

This nomination recognises his endeavours in crofting law over the past year and in particular his quest to see justice done over the alleged abuse of power within the Crofting Commission over the sacking of three common grazings committees.

Brian Inkster has been very vocal in the press, radio and on TV over the issue. He has written 97 blog posts on this topic alone over the past six months.

The Crofting Commission recently accepted their decisions as being wrong and issued an apology to the crofters affected. However, conflict continues within the Crofting Commission with a clear divide between their convener and the other commissioners.

Brian Inkster said:-

I am honoured to be one of only three solicitors in Scotland shortlisted for this award.

Hopefully it will help to highlight further the plight of the ordinary crofter at the hands of a regulator that is out of control.

There is still much more that the Scottish Government needs to do to restore confidence in the Crofting Commission and I will be making my views known on that in the coming months.

Inksters Solicitors who have offices in Glasgow, Inverness, Forfar, Portree, Wick and a visiting base in Lerwick have also been shortlisted for Litigation Firm of the Year and their trainee solicitor, Alistair Sloan, for Trainee of the Year at this year’s Law Awards of Scotland.

The winners will be announced on 24 November at a gala dinner at the Crowne Plaza Hotel, Glasgow.

Sunday Politics Scotland: Chaos on the Croft

Sunday Politics Scotland - Crofting Commission Crisis - Gordon BrewerSunday Politics Scotland on BBC One Scotland this week looked at the crisis in the Crofting Commission.

Presenter Gordon Brewer introducing the topic said:-

Now Chaos on the Croft.

The body responsible for protecting and regulating Scotland’s crofting is embroiled in some dramatic internal politics of its own.

As Len Cooksley reports pressure is increasing on the head of the Crofting Commission to resign after the Scottish Government became involved.

Sunday Politics Scotland - Crofting Commission Crisis - Crofter and tractor

Len Cooksley:-

Scotland has nearly 20,000 crofts overseen by the Crofting Commission.

After suspending two local grazing committees on Lewis on the grounds of financial missmanagement it was forced into a u-turn.

There were claims the commission were both heavy handed and may have acted illegally.

Now the Scottish Government’s got involved. It called on the commission and its convener, Colin Kennedy, to apologise.

Last week Mr Kennedy walked out of a commissioners meeting. Those that remained issued that apology and then passed a vote of no confidence in Mr Kennedy.

The First Minister gave her take on events in parliament earlier this week.

Sunday Politics Scotland - Crofting Commission Crisis - Nicola Sturgeon MSP - First Minister

Nicola Sturgeon MSP:-

I note that crofting commissioners have unanimously called on the convener to resign.

The Scottish Government have requested further information from the convener in relation to last week’s events.

While the Government would not ordinarily intervene in the internal operations of an independent statutory body the legislation does give Scottish Ministers power to act if required.

Len Cooksley:-

MSPs are watching developments with interest.

Sunday Politics Scotland - Crofting Commission Crisis - Tavish Scott MSP

Tavish Scott MSP:-

There is no doubt that there has been a fall out amongst commissioners and that has been caused by the behaviour of the convener of the Crofting Commission.

What this organisation needs now is a new convener, a reconstituted board and the ability to get back what it is meant to do and that is work for crofters right across Scotland.

Len Cooksley:-

We understand Mr Kennedy has no plans to resign but would make no further comment.

The implication is clear: either he jumps or he’ll be pushed.

Gordon Brewer:-

Well earlier I spoke to Brian Inkster who is a lawyer and blogger specialising in crofting matters.

Sunday Politics Scotland - Crofting Commission Crisis - Brian Inkster - Inksters Solicitors

Gordon Brewer asked:-

Well the crofting commissioners have no confidence in their leader. He won’t resign and the Scottish Government is threatening to get involved. What on earth is going on?

Brian Inkster answered:-

Well it all goes back to December time last year when they decided to put out of office a grazings committee in Lewis. The first one was Mangersta and then subsequently into 2016 they put out two other grazings committees: one in Upper Coll and the other in Lochaber.

Gordon Brewer:-

Right but what I don’t understand is that Mr Kenedy the man who is the commissioner is accused of issuing edicts on things like payments over common grazings and peoples backs are up about this. But how can he do that surely the commissioners have to decide to do this.

Brian Inkster:-

Well the commissioners should be deciding to do it. It looks as though he has been instrumental in pushing these issues forward.

There were three sort of main issues I suppose.

The first one was payment by grazings committees to shareholders in common grazings of monies that had come into grazings funds. His argument was that these monies had to be paid out immediately. So there would be immediate payment to the shareholders and if monies were required back to maintain the common grazings they would issue a levy onto the shareholders.

Nowhere in the law did it say that these immediate payments had to be made and indeed it just didn’t make any kind of logical or common sense approach to deal with it in that way.

Subsequently there were two other issues.

One was that he was seeking to stop common grazings committees receiving SRDP funding – which is really grants from the governmnet to assist in the maintenace and improvement of the common grazings.

And latterly there was an issue around VAT registration where it was being said that common grazings could not be VAT registered whereas historically they always have been.

Gordon Brewer:-

Right, now, what happened? At some point the commissioners had a vote of no confidence.

Brian Inkster:-

That was just over a week ago in Brora. That was on the back of Colin Kennedy walking out of a meeting. He closed the meeting and walked out on the basis that the commissioner for the Western Isles said he was no longer declaring an interest in the Western Isles cases which he had previously done and was now wanting to vote on any issues concerning the Western Isles.

Sunday Politics Scotland - Crofting Commission Crisis - Brian Inkster and Gordon Brewer

Gordon Brewer:-

On the face of it you would think that if the commissioners have no confidence in him he has to go but he doesn’t does he because he was elected?

Brian Inkster:-

He was elected and there is nothing in the law that says if the commissioners have a vote of no confidence he must go. One would imagine that if all the commissioners are against you, if the Scottish Crofting Federation, NFU Scotland, MSPs across all cross parties and the press are all saying it’s time to go you would think what is the point of clinging on here.

Gordon Brewer:-

The Scottish Government has threatened to become involved. What can they do?

Brian Inkster:-

In terms of the Crofters (Scotland) Act 1993, Scottish Ministers have the power if they consider that a commissioner is unable or unfit to exercise the functions of a member or unsuitable to continue as a member they can then remove a member from office.

Gordon Brewer:-

Now, Brian Inkster, just to give us a little sense of what the background to this is because it is quite complicated. But is the issue underlying all this the use of land and the fact, for example, wind farms wants to come in or housing wants to come in and it is about whether the common ground is allocated to the community the funds from it or to individuals.

Brian Inkster:-

It is linked to the funds that come into a common grazings. On a common grazings, especially as you mentioned wind farming, so in recent times the potential for larger sums of money to come into a common grazings exists. And it is linked to the distribution of those monies and there was an insistance on the part of the convener that those monies had to be paid out as soon as it was received. That there was no ability to hold onto the money to use it to spend on improvements within the common grazings. The Scottish Government said that was not the correct view in law.

Gordon Brewer:-

Alright, we will have to leave it there. Brian Inkster thank you very much indeed for joining us.

Brian Inkster:-

Thank you.

Gordon Brewer:-

Well earlier I spoke to Colin Kennedy. He is the Crofting Commission boss who is in the middle of all of this controversy. I spoke to him on the telephone from Coll.

Sunday Politics Scotland - Crofting Commission Crisis - Colin Kennedy - Convener Crofting Commission

Gordon Brewer asked:-

Are you going to stay in the post?

Colin Kennedy responded:-

I have no intention of resigning.

Gordon Brewer:-

Why not?

Colin Kennedy:-

As matters stand, I believe the commission have acted wholly within the law at all times and until such times as we have legal advice to the contrary, I will maintain my position.

Gordon Brewer:-

But the Scottish Government has said it has the power to get involved. If they do get involved and say you have to go you will have to go won’t you?

Colin Kennedy:-

That will be the case, yes.

Gordon Brewer:-

So just to be clear on that. If the Scottish Government says look given that your commissioners have voted no confidence in you we don’t think you can stay in post you will have to resign.

Colin Kennedy:-

That may be the case.

Gordon Brewer:-

Why are you so determined? You walked out of the meeting didn’t you, the other week? Why have you fallen out with all of the commissioners?

Colin Kennedy:-

No I didn’t walk out of a meeting.

I formally declared the meeting closed in light of an advancement by a commissioner supported by the deputy accountable officer that they had obtained information from the standards commission which I requested sight of prior to determination which failed to materialise.

Accordingly given the nature of the business at hand I had no alternative other than to formally close the September meeting of the Crofting Commission prior to my departure.

Gordon Brewer:-

Okay, but the commissioners have said they no longer have any confidence in you. Which is not brilliant from your point of view is it?

Colin Kennedy:-

I am unaware of the commissioners having said they have no confidence in me.

Gordon Brewer:-

You are not aware of that?

Colin Kennedy:-

Correct.

Gordon Brewer:-

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

Colin Kennedy:-

Well I would suggest at this moment in time that the Crofting Commission conducted a meeting on 28th September which is in non compliance or in accordance with the standing orders of the Crofting Commission and therefore it would appear in my view to be ultra vires.

Gordon Brewer:-

So right. If they still have confidence in you why would they do that?

Colin Kennedy:-

I couldn’t comment on what they do at informally constituted meetings.

Gordon Brewer:-

So right. You think that they still have confidence in you but that they have held an ultra vires meeting without you for reasons that are inexplicable?

Colin Kennedy:-

Correct.

Gordon Brewer:-

The substance of this is about you, they allege, that you made various determinations about things like payments in the form of edicts – that they weren’t really consulted.

Colin Kennedy:-

Absolutely incorrect.

At no time under my leadership have any decisions been taken without full endorsement of the board and based on legal advice.

And if I could comment prior to those decisions as per the board minute of 15 September 2015, prior to taking any of those decisions a formal request was made to the Chief Executive to obtain legal advice to support the papers presented to the board on which the board took the decisions.

Gordon Brewer:-

Alright Colin Kennedy we have to leave it. Thank you very much for joining us.

Colin Kennedy:-

Thank you.

N.B. For a limited period (29 days) you can watch this episode of Sunday Politics Scotland on iPlayer (at about 54 minutes in)

Image Credits: Sunday Politics Scotland © BBC Scotland

Crofters and Lawyers

Crofters and Lawyers - Yes they could instruct Rumpole!

It isn’t just the Crofting Commission who can instruct crofting law advice!

It was reported in The Scottish Farmer this week that, as part of the ‘findings’ of the illegally appointed grazings ‘constable’ to Upper Coll Common Grazings, Colin Souter had said in a letter to shareholders that:-

I have also written to the solicitor, Brian Inkster who was apparently engaged by the former Committee, to provide them with legal advice in their dispute with the Commission. Mr Inkster was paid £600 in fees from shareholders’ funds in April 2016. There is nothing in the 1993 Act which permits shareholders’ funds to be used in this way. In addition, there is no record in the Minutes of the decision to engage Mr Inkster, the brief involved or the paying of his invoice having been put to or approved by individual shareholders. Thus, the spending of shareholders’ money in this way, was outwith the power of the Committee at that time, meaning they acted outside of the law and the legal protection normally afforded. Such arbitrary decision-making is outside of the power of the Committee, where it commits spending and serves only to undermine the trust between Committee and shareholders.

In the first letter received by me from Mr Souter on this topic he boldly states:-

Nowhere in the Act, is it provided that shareholders’ money can legitimately be used to pay for legal services when a Grazings Committee is in dispute with any organisation, body or individual. For such to even be contemplated, I would consider it necessary for at least a unanimous vote by shareholders, to support the move. However, there is no indication in the Minute records of such a meeting, discussion or vote having taken place amongst shareholders. I consider it would be highly questionable, even under such circumstances, faced with the narrow terms of statutory responsibility held by Grazings Committees, that shareholders’ money, held for spending on maintenance or improvement of the common grazing, could legitimately be spent on legal advice from any solicitor.

With acceptance of this point, comes the ethical question of receiving the money, fully understanding the source and yet presenting the cheque for payment, (as an expert in Crofting legislation), with specific knowledge of the restrictions under the Act.

He then went on to ask me, in the circumstances, to send him a cheque for £600!

In the absence of receiving such a cheque from me he wrote again this time seeking the payment once more and also asking me for copies of certain documents that he would be willing to pay me a fee to receive. A bit ironic surely that he can pay solicitors fees all of a sudden when supposedly representing shareholders who he claims cannot!

He also, in this most recent letter, went on to threaten me:-

I offer this additional and final opportunity for you to respond on the matters raised in the initial correspondence and that above, before deciding upon the necessity for further action, which if taken, may well afford the benefit of free publicity but with the detail being made public, may nevertheless impact adversely upon your professional standing.

He concludes with the threat of raising a small-claims action against me presumably in the Sheriff Court.

View from Upper Coll

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

He questions the legality of grazings committees seeking and paying for legal advice. In our case, Inksters Solicitors, who are well versed in Crofting Law were asked by the Grazing Committee to investigate the legality of the Upper Coll shareholders having to distribute the money received from feu dispositions with such haste by the Crofting Commission. He was given a limit of up to £600 to do so. This was actioned prior to the Grazings Committee being put out of office.

Inksters in their investigations were instrumental in the Crofting Commission performing a U-turn on their directive to Upper Coll (it was found that they were in fact acting outside the law!) and saving countless grazings a considerable amount of money!

It is ironic that Mr Souter finds fault with Upper Coll shareholders employing a legal expert to successfully show the injustices of the Crofting Commission whilst he himself while acting for the Upper Coll shareholders (in his opinion!) seeks the counsel of a QC to enquire as to the legitimacy of the Upper Coll Grazings being VAT registered!!

These shareholders at Upper Coll also make the following general point:-

The constable seems unable to understand that in the spirit of openness and transparency over the years in Upper Coll, all meetings were advertised and open to all shareholders, that all decisions were taken by the majority of those attending and that all these decisions were minuted.

He is also under the mistaken impression that the clerk took actions on his own initiative. That is untrue. The clerk’s actions were always as a result of decisions and actions approved by the majority of shareholders. If the clerk was at fault so were all those present at meetings who asked him to act on their behalf.

The constable seems to place blame on successive committees, when in fact all actions were approved at open shareholder meetings. The clerk, unlike the constable, only took action after being instructed to do so by shareholders.

View from the Crofting Law Blog

Mr Souter clearly has no idea about what his role is and what he should be doing even if he was appointed legally as a grazings constable which he has not been. On one hand (according to him) shareholders cannot seek legal advice, but on the other hand he can take unilateral action on their behalf (and presumably at their cost) with no discussion or agreement from them whatsoever.

He hasn’t a clue about the law and given that he thinks shareholders cannot seek legal advice under and in terms of the Crofters (Scotland) Act 1993 he will presumably not be able to seek such advice himself to assist in his deliberations.

Having said that Mr Souter is apparently in receipt “of legal opinion from Queen’s Counsel” on whether Grazings Committees can register for VAT. It is not clear whether he, the Crofting Commission or some other party instructed this opinion. I will explore this specifically and in detail in future blog posts.

However, he seems able to instruct “agents“. It has been reported that:-

He said shareholders are “well aware” from his reports that all scheme applications due were completed by agents acting on behalf of the grazings and “processed accordingly and no financial loss has been suffered”.

A lawyer is simply an agent, no different surely from instructing any other agent to do work on your behalf that may be required?

In any event a right for crofters to instruct lawyers does not need to be contained in tablets of stone within the Crofting Acts. It is a fundamental human right. Try the Magna Carta for starters.

Shareholders in common grazings have been instructing lawyers to represent and provide them with advice in numerous matters over many years. Is Mr Souter really suggesting that all those lawyers need to repay fees received for work undertaken and advice given?

Is Mr Souter really saying that shareholders could not have a lawyer representing them in an action brought against them in the Scottish Land Court?

Does Mr Souter really think it is okay for the Crofting Commission to hire top QCs in their questionable battles against shareholders in common grazings but that those shareholders cannot be afforded access to lawyers themselves?

Has Mr Souter read the Guidance Notes issued by the Crofting Commission on the Management and Use of Common Grazings? These Guidance Notes contain an “Important note” that reads:-

The following guidance is intended to assist grazings committees with regard to the use of grazings regulations. The guidance does not constitute legal advice, and should not be construed as such. Should a grazings committee and/or shareholder require legal advice on a matter concerning common grazings, independent legal advice should be sought from a suitably qualified solicitor.

So even Mr Souter’s masters, who are not often commended for a common sense approach to matters, acknowledge and accept that shareholders can and should seek their own independent legal advice.

Should Mr Souter carry out his threat and raise court action against my law firm I will have no difficulty in defending it and calling the Crofting Commission in as a party to it. There will be a counterclaim for the time, inconvenience and costs caused to me unnecessarily by Mr Souter.

I do not recognise Mr Souter as having any legal standing or authority. His appointment was illegal and even the Crofting Commission knew this to be the case when making it.

Accordingly, I will not be replying directly to his letters. Instead I will be writing to the Cabinet Secretary for the Rural Economy and Connectivity, Fergus Ewing MSP, who has responsibility for crofting. I will, out of courtesy, copy my letter to Mr Souter.

I will be expressing my concerns to Mr Ewing about this illegal ‘constable’ being allowed to wreak havoc by the Crofting Commission. Mr Ewing has already had to rein in Convener Colin Kennedy. Now it is time for him to rein in another Colin.

Brian Inkster

Image Credit: Rumpole of the Bailey © ITV

Crofting Convener must go

Crofting Convener must go - says Lewis and Harris Crofters MeetingThe overwhelming message that came out of the Lewis and Harris Crofters’ Meeting was that the Convener of the Crofting Commission, Colin Kennedy, must go.

Over 80 people attended the meeting, organised by the Scottish Crofting Federation, in Stornoway Town Hall on 3 August.

I will reproduce some of the reports of the meeting that have appeared in the media.

“Lack of Trust” in the Crofting Commission – BBC Naidheachdan

On Wednesday night, more than 80 people gathered at a meeting in the Stornoway town hall to discuss the impact of unrest/conflict between the Crofting Commission and the Grazing Committees.

They put forward a vote of no confidence in the commission, and agreed that Colin Kennedy should resign from his position as the convener of the Crofting Commission.

The Commission had no official representation at the meeting.

Iain MacIver who is himself a Township Clerk said:-

The turnout tonight shows the interest in crofting, and how worried people are of the situation as it is now that they understand it.

It is easy to see that people are very angry about the way in which some of the villages were dealt.

They want to see how the Commission works, and how the law works, lessons to be learnt so that crofting stands in a better position.

The lack of trust vote shows the feelings that are there, but at the end of the day it is up to the government what they are going to do.

I think that the thing that worried people most, was if the people going forward were to be idle in their roles as Town Clerk , and also the Commission itself with the situation as it is now.

But we hope in the coming months that people will gain confidence and be given the right guidance so that crofting can be strengthened, instead of weakened, and that the Government endeavours to make this happen, and that they won’t ruin it as people suspected they would.  That was the consensus this evening.

Crofters make it clear: The Commission can stay but the Convener has to go – Scottish Crofting Federation

A meeting attended by eighty crofters in Stornoway concluded that a Crofting Commission is good for crofting, but it is currently not fit for purpose so the convener, Colin Kennedy, must go.

A crofting meeting organised by the Scottish Crofting Federation held in Stornoway last week, attended by eighty crofters from townships all over Lewis and Harris, gave a clear message to the Scottish Government: the convener of the Crofting Commission must step down; the Upper Coll grazings committee must be re-instated; the current Crofting Commission must be sorted out by Scottish Government but, nonetheless, a Commission is essential to crofting.

Vice-chair of the Scottish Crofting Federation (SCF), Russell Smith, said:-

It was a loud and clear message coming out of a very lively but thoughtful discussion. This is not knee-jerk reaction; the attack on common grazings committees by the Crofting Commission has been on-going now for several months so crofters have had plenty of time to think about this. It is not surprising that there is a call for the convener of the Commission to stand down and for deposed committees to be re-instated. It is perhaps more notable that, despite what is widely regarded as very poor behaviour, the Crofting Commission is still wanted, albeit following a thorough review and improvement of procedures. I think that this is a very sensible approach.

The meeting heard presentations from representatives of the removed Lewis grazings committees, SCF, Inksters Solicitors and Scottish Government, not only on the topic of the Crofting Commission but also on CAP, support to crofting and advocacy for crofting. The meeting, that sometimes became quite heated, was well-chaired by SCF member Donald MacSween.

Mr Smith continued:-

We can understand the Scottish Government’s reluctance to interfere with a majority-elected body, but the meeting was united in its view that the Scottish Government does have to intervene in this circumstance. The procedures of the Commission clearly need to be investigated and modified to stop this sort of thing happening again. The Crofting Commission may well be an ‘arms-length government body’, but the Scottish Government still has a responsibility to make sure that the Commission operates in a fair and reasonable manner – and does possess the powers to intervene, for example by removing a Commissioner, if it sees fit.

Following discussions a vote was called on the motion:-

this meeting has no confidence in the existing Crofting Commission and supports the SCF call for the resignation of the convener Colin Kennedy.

The motion was passed by an overwhelming majority.

Anger in Stornoway aimed at commission – West Highland Free Press

The sense of anger at the recent actions of the Crofting Commission was laid bare at a public meeting in Stornoway last week attended by over 80 people, which delivered an overwhelming vote of no confidence in the organisation and called for the resignation of its convener Colin Kennedy….

As the meeting was drawing to a close a vote of no confidence in the existing commission was passed as well as a call for the resignation of its convener. An overwhelming majority supported the moves with only five of those present against – three of whom are the crofters in Upper Coll who raised the original complaint against the committee, including a father and son.

The Crofting Commission’s Response – Island News and Advertiser

The Crofting Commission is committed to working positively with grazings committees and crofters. At present, the Commission is undertaking an examination of the circumstances of the recent cases, so that any lessons learnt can inform future procedures and decision-making.

A majority of the Crofting Commissioners are elected by crofters, with no involvement on the part of Commission staff in the process, so any consideration of their position is a matter for the individual Commissioner.

It should not be forgotten that consideration of the position of Crofting Commissioners is also a matter for Scottish Ministers and I will look at that further in my next post.

Brian Inkster

Image Credit: © BBC Alba