Tag Archives: Scottish Land Court

Crofters, Lawyers, VAT and a Grazings ‘Constable’

Land Court rule that Crofting Convener has no right to purchase his Apportionment

Apportionment Arinagour Common Grazings Isle of Coll

Colin Kennedy’s Apportionment at Arinagour Common Grazings, Isle of Coll with his wind farm development and excavated house site

The Scottish Land Court has issued a decision to the effect that an application by Colin Kennedy, Convener of the Crofting Commission, to purchase his Apportionment at Arinagour Common Grazings on the Isle of Coll is incompetent.

Mr Kennedy pursued a series of Land Court actions with individuals and also had a long running dispute with the Crofting Commission, on a personal basis, over a number of years seeking to secure rights in the Common Grazings and obtain an Apportionment.

An Apportionment was finally granted in his favour by the Crofting Commission on 31 October 2014 although it did not take in areas of the Common Grazings originally desired by Mr Kennedy.

Having obtained the Apportionment, on which he has erected three wind turbines and a shed with plans to construct a croft house, Mr Kennedy then sought to purchase it from the Landlord, Martin Smith. The Landlord refused to sell and Mr Kennedy brought an application to the Land Court to purchase.

I represented Mr Smith at the hearing before the Land Court.

It has long been established in crofting law that there is no right under the Crofters (Scotland) Act 1993 to purchase an Apportionment that is not adjacent or contiguous to another part of the crofter’s croft. Mr Kennedy’s apportionment was a ‘deemed croft’ under the legislation and it was settled law that such a ‘croft’ could not be adjacent to itself.

However, Mr. Kennedy argued that such settled law was overturned by the registration requirements under the Crofting Reform (Scotland) Act 2010. He maintained that under the 2010 Act a ‘deemed croft’ became a ‘croft’ when registered in the Crofting Register as his Apportionment had been.

Lord Minginish , in delivering the Land Court’s decision said:-

Mr Kennedy’s argument was ingenious and not without a certain logic. But the problem it cannot evade and fails to deal with satisfactorily is the terms of sec 12(3) of the Act, which remain unamended by the 2010 Act.

In so finding the application was refused as incompetent by the Land Court.

The period of appeal to the Court of Session has expired without an appeal being lodged by Mr Kennedy and the Land Court has found Mr Kennedy liable to Mr Smith for the expenses of the application.

Thus Mr Kennedy remains a tenant of the Apportionment at Arinagour Common Grazings.

Brian Inkster

Notes:-

Read the full decision on the Scottish Land Court website: Kennedy v Smith [SLC/81/15]

Download a copy of the case: Kennedy v- Smith [PDF]

A chair fit for a Crofting Convener

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Is this comfy enough for you sir?

We have just, in the last post, been reminded about the conflict of interest on the part of the Convener of the Crofting Commission, Colin Kennedy, over goings on at Upper Coll.

This was where Colin Kennedy appeared to be instrumental in taking a decision to remove the former grazings committee from office. This was at a point where a formal complaint was still being dealt with by the Crofting Commission concerning his handling, as chairman, of a meeting of shareholders held at the Back Football and Recreation Club, Upper Coll, Isle of Lewis on 10 November 2015.

One of the more bizarre episodes (although there have been and continue to be many) in the whole Common Grazings debacle is how the Crofting Commission initially responded to that complaint.

One of the complaints arising from the meeting in question (and there were several) was that the meeting was chaired by Colin Kennedy in “an arrogant and dismissive manner“. This is how the Crofting Commission responded in writing to that particular element of the complaint:-

All members of the Commission who attended the meeting commented on the quality of the venue. They all complained about the seating arrangements which did not let them get their legs under the table which would have allowed them to sit up straight which may have led attendees to think the panel were being too casual. They also said the lighting was poor and general presentation of the room did not contribute to creating a positive atmosphere. The Commission agree that this is not helpful and have put in place a mechanism to check venues prior to meetings to ensure that they meet requirements. This includes discussing requirements in advance with providers and going to the venue prior to the meeting to check it is laid out as well as possible.

What! A complaint about the manner in which a meeting has been conducted by the Convener is turned around to being down to the meeting room in a crofting township not having adequate seats or lights!

I have, over the years, had plenty of meetings with crofters in village halls or similar venues throughout the crofting counties. They may not always be up to the luxurious surroundings enjoyed by Commissioners at Great Glen House but the facilities are always more than adequate for the purpose required.

The Land Court often have lengthy hearings in such halls and I have never heard a complaint from them about the facilities at hand.

As a crofting regulator you should accept the need to travel to the crofting counties and graciously accept the facilities offered to you. To suggest that those facilities are the root cause of the “posture, conduct and demeanour” of the Convener is surely a joke.

Are the Commission really now checking venues prior to meetings to ensure that they meet requirements? If they had a meeting in the far north reaches of Unst in Shetland, for example, would a scout from Great Glen House be flown up in advance to check that the seats were fit for the Convener? This would be at an additional cost of several hundred pounds to the public purse. If the facilities did not meet the high standards clearly required would a suitable chair then be flown in?

You couldn’t make it up.

Brian Inkster

Crofters and Lawyers

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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.

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?

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

Croft Wars: The Constable Strikes Back

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Some see the ‘constable’ of Upper Coll more like a bounty hunter

Following a statement issued on behalf of the majority of shareholders of the Upper Coll Common Grazings the headline that appeared on Hebrides News was ‘Upper Coll grazings constable slams ousted committee‘. The accompanying article reads as follows:-

The grazings’ officer installed to temporarily run the common grazings at Upper Coll, Lewis, has hit out at claims made by the former grazings committee who were sacked by the Crofting Commission.

Colin Souter, a retired police chief inspector living in Nairn, was drafted in to manage the village’s communal moorland – land collectively used for by all crofters for grazing livestock – while the commission investigated the deposed committee.

Colin Souter pointed out the appointment of a constable is made by the Crofting Commission.

Once appointed, a constable has the same powers, responsibilities and independence in decision-making, as a grazings committee does, bound only by legislation, he said.

Mr Souter stressed: “This has been explained at length to former committee members at Upper Coll, who remain aggrieved at the commission’s decision to remove them from office.

“That decision to remove is presently the subject of a review by the Scottish Land Court and it will be for that court to determine whether the initial complaints made to the commission about the conduct of the committee and the subsequent disclosures, provided sufficient justification for their removal or if the commission acted inappropriately.”

The grazings’ officer went on: “The appointment of a constable in the interim, was a separate matter and was made to safeguard the interests of the shareholders, to address matters of business brought to the commission in correspondence by the former clerk.”

Based on “discussion with aggrieved shareholders and correspondence,” he queries how much support the former committee has from shareholders.

He added: “As all previous signatories had been officially removed from office, and could no longer sign documents legally, as constable I took control of the finances and records, with the co-operation of the bank and of the former clerk and chairman of the committee, who personally handed over to me, the committee records and accounts.”

The former committee demanded the “return of their bank book” but there is no such thing, suggested the grazings’ constable.

Mr Souter said: “In the absence of any formal handover or briefing from the former committee, there was also an obligation placed upon me – in order to support shareholders competently – to establish the facts surrounding the status and liabilities of the grazings and to confirm the proper conduct of the former committee in its decision-making, to verify business had been conducted to the proper legal standard or to remedy, where required.

“It became clear from a review of the records provided to me by the former clerk and chairman, that the former committee was deficient in its record keeping but more importantly, in its procedures, in particular on matters where majority shareholder support was legally required in order to take action, eg. SRDP applications, where such applications are a scheme, under the 1993 Act.”

He stated: “Quite clearly, action was being taken in relation to matters of finance and spending, where majority support, despite being a legal requirement, was neither evident nor documented.

“Even so, it came as some surprise when some former committee members admitted at a recent shareholders meeting they were entirely unaware of the existence of the Upper Coll grazing regulations, passed by their own forebears in the 1980’s.

“One wonders what yardstick was employed to assist the imposition of their own views, however well-meaning or misguided, on fellow shareholders?

“Perhaps this point will help to explain the dissatisfaction and grievances raised to the Crofting Commission and myself by Upper Coll shareholders about the conduct of the former committee in managing the grazings?”

The interim constable added: “None of the foregoing issues have anything specifically to do with the Crofting Commission.

“The commission does not control the grazings or the bank account or finances at Upper Coll. The shareholders do.”

“As constable, I met with shareholders twice in recent months where I have been extremely open and transparent about my role and in my sharing of information, an approach commended from the floor, at the first meeting.

“The detail I provided to shareholders is evident from the very lengthy minutes produced from the meetings, distributed to all shareholders.

“In the past, I have also sought to protect former committee members from potential public embarrassment by holding part of the meetings in closed session, where disclosures were made.”

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.

Regarding villagers plans to elect a new grazings committee, he said: “I raised this issue in recent correspondence with shareholders, when I indicated my term in office is due to expire in the next couple of months.

“It seems some of the former committee are already set to take control of an agenda which I had set out, intending to hold fresh elections and return a new committee in control of shareholder business at Upper Coll.

“The important point however, for all involved, is that the new committee, whomever is elected and whatever its composition, will have a clearer understanding of the legal framework in which they must operate and their own duties and obligations to their fellow shareholders.

“I cannot help but think it would be a progressive step, in this day and age, to see a few female members on the new committee but that has to be a matter for the Upper Coll shareholders.”

Mr Souter said he has written to shareholders in the last few weeks, during the holiday period, providing a brief statement on recent activity.

He will present a fuller report at a planned meeting in September, when he will share more “extensive detail” with the shareholders at Upper Coll and answer questions “they may have on that range of important issues.”

The grazing’s constable highlighted: “It will be for shareholders to determine which aspects of concern, if any, should be highlighted – perhaps for wider benefit across the crofting community – and find their way into the public domain.”

He said: “As with many others, I do not dismiss the concerns of those former committee members who continue to agitate, for being removed from office.

“It is clearly an important and emotive issue for crofting and one that continues to cause great concern across the crofting community.

However, that also places a “heavy responsibility upon the former committee and others contributing on their behalf” to ensure there is a balanced debate based on the facts of the situation, said Mr Souter.

View from the Crofting Law Blog

Colin Souter thinks he has “independence in decision-making“. A grazings constable, if legally appointed, does not. They have to listen to the shareholders who they represents and act accordingly.

Colin Souter states that his ‘appointment’ was made to “address matters of business“. The shareholders appear to be of the view that rather than conducting the business in question Colin Souter has been on the hunt, through historical records stretching back well beyond the five year ‘audit’ period sought by the Commission, for wrongdoing on the part of former committees. Not the role at all of a grazings constable even if legally appointed. The fact that he was under the wrong impression that this was his role is confirmed when he states that he had to “confirm the proper conduct of the former committee in its decision-making, to verify business had been conducted to the proper legal standard or to remedy, where required“.

It is interesting, but perhaps not surprising, that Colin Souter does not address the legality of his appointment. The Grazings Committee were ‘replaced’ by a ‘Grazings Constable’ that I, and others (including bizarrely the Crofting Commission themselves) consider to be illegal. One would have thought that he would be very concerned by this indeed and somewhat relieved that the shareholders plan to replace such an illegal appointment with a legal one.

Colin Souter questions whether the former committee members have the support they maintain from the shareholders. Well, apparently, a meeting was called and there were only four shareholders who abstained (those included the shareholders who brought the initial complaint about the former committee to the Crofting Commission). They were asked if they objected and they said they would prefer to abstain. So looks like majority support to me with no objections.

Colin Souter states that “as constable” he “took control of the finances and records, with the co-operation of the bank and of the former clerk and chairman of the committee, who personally handed over” to him “the committee records and accounts“. But they did not sign mandates allowing him to be signatory of the cheque book. Serious questions must be asked as to how he obtained the status of what is believed to be the sole signatory.

Colin Souter states that “there is no such thing” as a “bank book” to return to the Upper Coll shareholders. Well in this day and age there may not be an old fashioned bank book but there is likely to be bank statements, a cheque book and (more importantly) control thereof. I think we all know what was meant by the statement made by the shareholders about their “bank book” and denying the existence of any such item does Colin Souter no credit.

However, Colin Souter states that “the commission does not control the grazings or the bank account or finances at Upper Coll. The shareholders do.” If that is the case please do actually hand control of their finances back to them as they quite rightly demand.

Regarding villagers plans to elect a new grazings committee, Colin Souter said: “I raised this issue in recent correspondence with shareholders, when I indicated my term in office is due to expire in the next couple of months. It seems some of the former committee are already set to take control of an agenda which I had set out, intending to hold fresh elections and return a new committee in control of shareholder business at Upper Coll.”

Colin Souter previously stated, on 23 June 2016, that the election of a new committee was “still in the distance“. At the time I asked “Why is the election of a new Grazings Committee in the distance? What is preventing that happening sooner rather than later?” The shareholders are clearly and understandably of the same view and may the force be with them in gaining control of their own destiny once more.

Brian Inkster

Image Credit: Boba Fett who appeared in Star Wars: Episode V – The Empire Strikes Back; and Episode VI – Return of the Jedi © Lucasfilm Ltd

Croft Wars: Return of the Committee

A “big step” or a just step?

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My last post considered the overwhelming view of Harris and Lewis crofters that the Convener of the Crofting Commission, Colin Kennedy, must go given his role in the alleged abuse of power within the Crofting Commission dubbed ‘The Common Clearances‘.

But despite many calls over several weeks for him to consider his position there is no sign of him stepping down anytime soon. In the absence of him doing the right thing is it time for the Scottish Ministers to force his hand?

This issue was raised at the meeting in Stornoway on 3rd August. This is how the West Highland Free Press reported the view thereon by Scottish Government crofting policy officer Lucy Carmichael and my response thereto:-

Ms Carmichael explained that the way crofting legislation is framed the only recourse available to crofters is to mount a challenge in the land court.

However, that was fiercely disputed by Mr Inkster who said that as the commission is a statutory body under the control of the Scottish Government it was perfectly legitimate for ministers to intervene if they felt it appropriate.

But Ms Carmichael felt that would be a “big step” – a statement which drew a sharp intake of breath from the audience, particularly those in Upper Coll who felt their removal from office was equally a big step and, indeed, unconstitutional.

Mr Inkster said that the commission had knowingly gone against their own legal advice, changed the guidance to common grazings committees and misinterpreted crofting legislation. “It is hard to see under such circumstances that anyone can have any confidence in any new guidance given out by the commission,” he said.

I would point out, if I recall correctly, that Lucy Carmichael also made reference to the Scottish Public Services Ombudsman and the Commissioner for Ethical Standards in Public Life in Scotland as other possible routes of recourse that crofters could take in addition to or instead of action via the Scottish Land Court.

In my very first blog post on the alleged abuse of power within the Crofting Commission I said, in connection with the removal from office of the Upper Coll Grazings Committee,:-

I would strongly suggest therefore that the Crofting Commission should, in all the circumstances, review this extraordinary decision. If they fail to do so the Scottish Government should maybe question the behaviour involved and perhaps even consider removing the commissioners responsible as “unsuitable to continue” as members. A power that the Scottish Ministers have at their disposal under the Crofters (Scotland) Act 1993. That may be seen by many as a more reasonable and justified use of power than that employed by the Crofting Commission.

46 blog posts on the common grazings debacle later and I am firmly of the view that it would indeed be a more reasonable and justified use of power than that employed by the Crofting Commission.

The evidence is now clear. The Crofting Commission have been exposed to knowingly acting illegally, clearly acting illogically, operating like a kangaroo court, creating conflicts of interest, brazenly deleting its own history and attempting to deny that history. They have been party to intimidation and bullying, obfuscation and manipulation, controlling grazings constables, flouting the will of Parliament and ignoring the law/lawyers. But ultimately they have made a massive U-turn which is nothing more than a clear admission that they got it wrong. They have cost the public purse a huge amount of money.

It is, in light of all of this, not a “big step” to remove a commissioner. It is an obvious step and a just one.

Brian Inkster

Images Credit © BBC Alba

Is the Crofting Commission a Tribunal?

100 Crofting Law blog posts

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

Quite a milestone.

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

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

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

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

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

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

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

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

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

You all deserve an award.

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

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

Brian Inkster

Reports from a ‘Grazing Constable’

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The ‘Grazings Constable’ was under the false impression that he was a Police Constable come Court Reporter!

One of the more surprising episodes of ‘The Common Clearances‘ has been the issuing of press releases by the ‘Grazing Constable’ (illegally appointed, in my opinion and the opinion of others) of the Upper Coll Common Grazings.

To my knowledge that ‘Grazings Constable’, Colin Souter, has issued three such press releases to date. I now reproduce those here, with my comments on each added.

‘Grazing Constable’ Report #1 – 12 June 2016

I write briefly in connection with the Common Grazings at Upper Coll, having been appointed as Constable in recent weeks, by the Crofting Commission.

I should firstly stress such appointees are independent of the Commission. One of the main functions is to assume the role and responsibilities of the former Committee, representing the interests of the Crofters, whilst moving as swiftly as possible back to a situation of normality, with crofters being collectively in control of managing their own interests.

I am confident readers will appreciate the resolution to current difficulties will not be achieved overnight. I note there has been much interest, speculation and comment made on behalf of individuals who, I acknowledge, feel genuinely aggrieved with decisions the Commission has made.

On the other hand, it is only right and proper that the Commission, as a public body, should not comment on the specifics of any individual case.

Preliminary legal proceedings are currently underway at the Scottish Land Court, where it remains to be decided if the Appeal against Commission decisions will progress to the next stage. An Interim Interdict application at Inverness Sheriff Court to prevent the appointment of a Constable and further action by the Commission, was heard and refused.

It is likely that the process of the Land Court Appeal, if progressed, will take some considerable time to conclude. I will not be formally commenting in the media on the specifics of matters at Upper Coll, nor in relation to any single individual.

I do however wish to publicly acknowledge and thank those individuals at Upper Coll and elsewhere who have already contacted me since my appointment, to firstly share a collective view that there are matters at Upper Coll which need to be addressed and secondly to voice their support for a co-operative resolution over the coming weeks and months. All impartial observers must surely agree it is in the best interests of all parties to co-operate, to ensure the interests of all the crofters at Upper Coll are and continue to be properly protected.

Comment on ‘Grazing Constable’ Report #1by the Crofting Law Blog

Why, I wonder, did Colin Souter feel it necessary to issue such a statement? Was it because the Crofting Commission were staying silent on the matter? Did they sanction/encourage this statement?

How independent can Colin Souter really be? Did the Crofting Commission not provide him with a list of their ‘concerns’ for his investigation?

He has apparently stated to the shareholders at Upper Coll that his role is an investigative one. Nothing in the Crofters (Scotland) Act 1993 gives him such power other than, perhaps, the duty to report to the Crofting Commission on the condition of the Common Grazings and crofts with a share in the Common Grazings.

If investigations were required concerning any alleged financial impropriety on the part of the former grazings committee that would have been a role for the actual boys in blue and not for a retired police Chief Inspector who appears to think he, once more, has powers he once did. He does not.

If legally appointed, which is disputed, Colin Souter simply has to take on the role of committee and clerk. He is responsible to the shareholders. His role is purely administrative.

‘Grazing Constable’ Report #2 – 23 June 2016

On the evening of 22 June the Constable of the Upper Coll Common Grazings chaired a meeting of shareholders at Tong Village Hall. The meeting, which was well attended, discussed a number of issues and during the closed part of the meeting, the Constable, Mr Colin Souter shared a level of detail around issues and concerns which was clearly unknown to many of those present, prior to the meeting.

Mr Souter, a retired police Chief Inspector explained to the meeting that his appointment followed a communication to the Commission by the former Clerk to the Grazing, highlighting that 12 points of business needed to be addressed as soon as possible.

Mr Souter also explained that the Crofting Commission, as a public body, is unable to comment in the media on issues relating to specific individuals and their conduct but that being independent of the Commission, it was appropriate for him to share more information with the shareholders affected. At the meeting, he received further joint intimation in writing from Upper Coll shareholders, of their dissatisfaction with the conduct of the former Committee and will determine in due course whether that should be considered separately from other matters currently under investigation.

The meeting acknowledged the current position as laid out and discussed a constructive way forward, with a revised set of draft local Grazing Regulations being circulated by the Constable to all shareholders at Upper Coll to replace the current Regulations which date back to 1987. Mr Souter is also inviting contributions and comment more widely, from the Scottish Crofting Federation and National Farmers Union Scotland, as representative bodies, in an effort to secure a wide consensus of agreement. He intimated to the meeting that he was, very reluctantly, being forced to consider Court action as a last resort, in order to recover the Committee records from the former Grazings Clerk. A large number of those shareholders present expressed the view that withholding the records was not helping, declaring that it was acting against the interests of the shareholders and instead invited former Committee members to bear the cost of the Court action, should it go ahead.

The meeting closed on a positive note with an expression of thanks to Mr Souter, from the floor, for an open, informative and well-run meeting.

Mr Souter later said, “I appreciate there is a wide body of interest in events here at Upper Coll. I would like to publicly express my own thanks and appreciation to Upper Coll shareholders able to attend the meeting tonight, for their positive contributions and their willingness to begin moving forward to the point where a new Grazing Committee can be elected. Whilst that outcome is still in the distance, it has moved significantly closer, with a clearer path now defined, and shareholders having a better understanding of the concerns and the issues which brought us to where we are now.”

Note to Editor – the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders. On 16 May, some former committee members made an unsuccessful attempt to interdict the Crofting Commission from further action at Upper Coll. This was followed by submission of papers to the Scottish Land Court, seeking to Appeal against the Commission’s decision to remove them from office. The Land Court is currently awaiting submissions on jurisdiction from both sides, to help determine whether it can hear the Appeal. If the jurisdiction argument is won, the case will become sub judice until eventually concluded.

Comment on ‘Grazing Constable’ Report #2 by the Crofting Law Blog

I wonder if Mr Souter thinks that all grazings clerks should be issuing press releases about shareholders meetings held throughout the crofting counties? Local newspapers could have sections devoted to ‘Common Grazings Reports’ instead of, or in addition to, their usual ‘Court Reports’!

Where did the “issues and concerns” that Mr Souter had to share come from? I trust not from the Crofting Commission that he is apparently independent of?

Interesting that the Crofting Commission cannot comment on matters arising to the media but Mr Souter can. Has he therefore become their spokesman and if so how does that enable him to retain the supposed independence that he claims to have?

Mr Souter refers to “matters currently under investigation”. As commented on by me in connection with his first Report, his role is not an investigative one but merely an administrative one and then only if his appointment was legal which I, and others, maintain it is not.

Why was Mr Souter circulating new Grazings Regulations and who had drafted them and on what basis?

It would seem unusual for a Grazings Clerk to seek views from the Scottish Crofting Federation or the National Farmers Union Scotland on Grazings Regulations specific to a particular grazings.

Court action by a potentially illegally appointed ‘Grazings Constable’ to recover documentation he might have no right to hold would have made for interesting debate in the Sheriff Court! A suggestion that those against whom such an action was to be raised should fund the raising of the action is absurd to say the least.

Why is the election of a new Grazings Committee in the distance? What is preventing that happening sooner rather than later?

Is it perhaps in Mr Souter’s personal interest to delay the election of a new Grazings Committee. The longer he remains in ‘office‘ the longer he receives an income from the arrangement – albeit potentially an illegal arrangement that he should not actually be receiving a penny for.

Mr Souter states that “the Upper Coll Grazings Committee was removed from office by the Crofting Commission on 15 April after failing to adequately address concerns raised by the Crofting Commission about the manner in which aspects of its business were being conducted, including the content and presentation of financial information reported to shareholders.”

However, the only reason actually given by the Crofting Commission for the ultimate removal from office of the grazings committee was the failure to produce to them five years ‘audited’ accounts. The grazings committee produced financial statements produced by accountants. The irrationality, inconsistency and departure from legal advice obtained by the Crofting Commission on this point is one I will return to in future posts on this blog.

‘Grazing Constable’ Report #3 – 12 July 2016

Upper Coll shareholders met again on 11 July at a meeting chaired by the Grazings Constable, Colin Souter, who was appointed by the Crofting Commission in May. At this second meeting, shareholders covered a busy Agenda on a range of topics, including the resolution of a long-standing issue on the access of a bull owned by two shareholders, on the common grazings. Shareholders accepted the pragmatic resolution suggested by the Constable, which preserves shareholders rights to graze livestock but at the same time, acknowledges the responsibilities that go with these rights.

Shareholders also voted in favour of a revised set of Grazing Regulations which would encompass key elements of the previous regulations which dated back to 1987. Mr Souter hoped the final draft of the document which had already been subject to wide-ranging consultation would be ready to send to the Crofting Commission for approval, in the next few weeks. During a candid and honest discussion, some of those present, including former Committee members advised they had been entirely unaware of the existence of the 1987 Regulations.

After the meeting, Mr Souter said, “The key to progress here is an acceptance from shareholders that good Regulations make it easier for shareholders and for Committees to interact and minimise the potential for friction or conflict. We are nearly there, in terms of a finished product and whilst there are still a number of other issues for me to resolve with shareholders, we are steadily moving in the right direction. I am grateful for the support shown by shareholders this evening, in voting to move ahead.”

A number of other issues, including finances and areas of activity permissible for a Grazings Committee or Constable on behalf of shareholders, under the 1993 Crofting Act were explored in a closed session. No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

ends

Note – Mr Souter is a retired police Chief Inspector, appointed to the role of Constable at Upper Coll after the previous Committee were removed from office by the Crofting Commission. Following their removal, it was reported to the Commission that shareholder business remained outstanding and unresolved. Whilst he is appointed by the Commission, Mr Souter has successfully gained acceptance that he is independent of the Commission in all his decision-making.

Comment on ‘Grazing Constable’ Report #3 by the Crofting Law Blog

I asked shareholders of the Upper Coll Common Grazings for their views on this latest Report from Colin Souter. Here is a selection of comments received from them:-

The new regs would certainly have to come before shareholders again before being submitted. There will be nothing to stop us bringing in further changes at a full meeting of shareholders at a later date if that is needed.
The Grazings Regulations are at the “discussion” stage and still have much work to be done on them. There was no revised Regulations issued with no mention of changes some of us suggested. They are far from being at a stage for presenting to the Commission.
The constable has thus far refused to protect the interests of shareholders by bringing any scrutiny to bear on the Commission’s own dubious actions of the recent past. This goes to prove that he is not wholly independent of the Commission and shows that he who pays the piper calls the tune.
The majority of shareholders are still of the view that the position of Constable has been illegally imposed on the Upper Coll Grazings. These shareholders do not have any personal prejudice against Mr Souter but it is his position they question.
Shareholders were of the view that the Constable should be working “for” the shareholders and should therefore be working to see that some of the injustices done to the previous Committee are redressed. As he seems to be investigating the work of the previous committee then this “investigative” role should also be targeted at the Crofting Commission’s actions.
The minute of meeting of the 11th should also clearly show that we considered that the Commission had erred greatly in dismissing a democratically elected voluntary committee when they had legal obligations instead to advice and support it in the first instance. We suggested that this is going to be costly to the Commission.
The meaning of “audit” given by the Constable is not one shared by the vast majority of shareholders.
It is felt by the majority of shareholders that the term “financial irregularities” used by the Commission in relation to the Upper Coll Grazings Committee should be withdrawn and an apology issued to the committee by the Commission.
Mr Kennedy’s continued presence as Convenor of the Crofting Commission is in the opinion of the majority of shareholders untenable.

So clearly a different slant on things from the propaganda issued by the ‘Grazings Constable’. This demonstrates the nonsense of the whole situation.

Why is Colin Souter seeking to introduce new regulations? What is wrong with the existing ones other than perhaps the use of the word “audit”, which has caused much of the problems encountered by the former committee in their dealings with the Crofting Commission?

The former grazings committee were actually in the process of amending their regulations prior to being removed from office by the Crofting Commission. Why did the Crofting Commission not allow them to amend the regulations as they wished to do so?

Are the Crofting Commission influencing the new regulations proposed by Colin Souter? Do these new regulations follow the latest template promoted by the Crofting Commission which do not actually reflect the law as set out in the Crofters (Scotland) Act 1993?

Mr Souter refers to his “decision making”. What ability does he actually have to take decisions that are contrary to the wishes of the shareholders?

Mr Souter states:-

No date was set for the next meeting, with Mr Souter indicating he would distribute a final updated draft set of Regulations amongst all shareholders. And once approved by the Commission, every shareholder would receive a personal copy of the revised Regulations.

This suggests that Mr Souter is going to finalise the draft Grazings Regulations without necessarily calling a meeting to approve them. He appears to simply be planning to get the approval of the Crofting Commission. If this is indeed the case it is outrageous.

However, it should always be borne in mind that Mr Souter’s appointment was, in my view and the view of others, illegal and any action taken by him is simply null and void.

Brian Inkster