An update by Action for ME member Ciaran Farrell
The UK Regulator of charities, The Charity Commission procedure for
determining complaints is that they receive an initial complaint via their
Contact Centre where an initial view about the matter is taken and if the
matter is clear cut, and initial ruling can be made on the case which is
given directly to the complaint.
The Charity Commission investigated the question of whether or not Action
for ME's Board of Trustees were operating outside their constitutional and
legal jurisdiction by imposing on election candidates in the forthcoming
AfME 2011 Trustee elections any form of selection process which involves a
business style appointments system that would involve CVs and covering
letters, interviews or any form of test or assessment carried out by the
Board, or any committee or sub-committee of AfME's Board of Trustees.
The Commission made an initial finding of fact that AfME were not
constitutionally or legally entitled to do so, and that the only way in
which AfME could constitutionally and legally conduct the Trustee elections
would be to do so in accordance with AfME's Memoranda & Articles of
Association which stipulate a pure electoral process as down in clauses 43
and 44 of AfME's Memoranda & Articles. The Commission therefore issued a
ruling to me to that effect.
I subsequently submitted a detailed email ( that ran to approximately 33
sides of A4) to the Charity Commission containing with 17 attachments as
evidence to prove that there had been wholesale breaches of AfME's Memoranda
& Articles of Association by AfME's Board of Trustees on a series of wide
ranging issues. These included the central matter of the election of
Trustees, the fact that AfME had not held Annual General Meetings, AGMs
since 1996 and the fact that the last two meetings that AfME held one of
which AfME described as an "AGM" were not in reality the meetings that AfME
were constitutionally and legally permitted to hold. I also detailed the way
in which AfME's Board of Trustees drew up and unconstitutionally installed
an entire new set of Articles of Association in 2009 without the knowledge,
consent or participation of AfME's membership stating that as an AfME member
I had only found out about this by looking at the charity Commissions
Website about AfME to see to my shock and horror that AfME had replaced the
majority of their constitution without even informing members that they were
even thinking of re-writing their rulebook.
In response I received confirmation of the Charity Commission's initial
ruling concerning the trustee elections which is the most pressing issue
because it is the most time sensitive together with responses on other
matters.
The next step in the Charity Commission process of resolving a complaint is
for the complainant, myself, to make the charity concerned, AfME, aware of
the Commission's Ruling because the Commission want to give both parties the
opportunity to discuss and resolve the complaint through discussion and
dialogue.
If this approach fails, then the complainant can go back to the Charity
Commission for enforcement action against the charity. It is only at this
stage that the Charity Commission would make direct contact with the
charity.
Therefore the statement made by the Communications Manager of AfME, Ms.
Heather Walker should be seen in this context. She wrote in two Co-Cure
postings, "Action for M.E. has received no communication from the Charity
Commission on this matter and our legal advisers have confirmed that we
operate in a legal and proper way".
The first point I would like to make about this is that I have done what is
to be expected of me as a diligent complainant to the Charity Commission by
informing AfME of the likely findings that the Commission were likely to
made, should I be forced by AfME's intransigence on the matter of the
Trustee elections, to have to make a complaint to the Charity Commission.
Secondly, I have communicated the Charity Commission's ruling to AfME in a
detailed way setting out the constitutional and legal issues in my letter to
Mr. Alan Cook, AfME's Chairperson in my letter of the 6th of June.
Sadly, AfME have not taken these very serious constitutional and legal
issues about the governance of their charity seriously. AfME's staff were
instructed to write back to me to say that Mr. Cook was away and would deal
with the matter when he got back. I have had subsequent dealings with AfME
staff whilst chasing up a response from Mr. Cook that casts doubt on the
veracity of this.
I received a letter yesterday from Mr. Cook in which he tries to make out
that the only matter he needed to respond to me on was to basically thank me
for participating in AfME consultation about Trustee elections which closed
over six months ago and some points which he considers relevant to that
initiative.
The reason why AfME have not heard directly from the Charity Commission as
Ms. Walker correctly states, is that I have not been back to the Charity
Commission for enforcement action - yet. I may very well need to do so
because clearly if AfME's so called legal advice that they operate as Ms.
Walker described in a proper and legal way were true, then the Charity would
not have found against AfME and issues a ruling to me that AfME were acting
in an unconstitutional and illegal way.
It is AfME's refusal to enter into any form of meaningful dialogue about the
situation that prompted me to break my silence in the public interest with a
first initial statement in the popular form of a news report.
I now consider that it would be in the public interest for me to publish my
letter of the 6th of June so that AfME members and members of the ME
community can see and judge for themselves the issues and arguments
involved.
I also consider that it is in the public interest for AfME members and
members of the ME community to be able to make their own judgments about
whether or not AfME's refusal to enter into a dialogue with me over these
constitution al and legal governance issues is a reasonable. Therefore
consequently, if I would be justified in seeking enforcement action for the
Charity Commission.
Letter to Alan Cook
Mr. Alan Cook,
The Chairman,
Action for ME,
P.O. Box 2778,
Bristol BS1 9DJ.
Date : The 6th of June 2011.
Attention : Mr. Alan Cook
Re : AfME Trustee Elections 2011
Dear Mr. Cook,
I write in response to your letter of the 23rd of May and that of Ms. Brooks
of the 13th of May.
Ms. Brooks states in her letter of the 13th of May "As soon as all the
applicants have been considered by the Board, you will receive a letter
communicating the decision on whether you have been provisionally selected
for the next stage which would be confirmation through election by
supporting members."
Yet in your letter of the 23rd of May you state, "The selection panel has
carefully considered all of the applications they received from a large and
very strong field of candidates. I am sorry to have to tell you that we have
decided not to invite you to come for an interview on this occasion." Your
letter therefore does not contain the kind of final decision that would be
expected from the procedure laid down in Ms. Brook's letter as your letter
does not deal in terms of my being, or not being "provisionally selected for
the next stage which would be confirmation through election by supporting
members".
The procedure identified by Ms. Brooks does not specify an "interview" at
any stage of proceedings. The only logical and rational way of interpreting
Ms. Brooks' procedure is that an election candidate is subject to a veto by
AfME's current Board of Trustees, which would take the form of a "yes" or
"no" decision to put a given election candidate up for election, and
therefore entre the name of that candidate onto the ballot paper for that
election, or not.
In my letter to Ms. Brooks of the 14th of March which accompanied my
application to become an AfME Trustee, and therefore to stand for election,
I set out the following in relation to AfME's proposed procedure for the
forthcoming Trustee elections :-
"Within the provisions of AfME's Memoranda & Articles of Association as they
stand, members have a constitutional and legal right under charity and
company law to stand for election to the Board by nominating themselves or
other members. This is done through the use of a nomination form, and when
AfME receive a nomination form, AfME must constitutional and legally entre
the name of the nominated member into a list of candidates which will form
the basis of the ballot paper for the Trustee elections. Therefore a
properly completed nomination form is all that is constitutionally and
legally required to secure a place upon the ballot paper for the Trustee
elections.
AfME's unconstitutional and illegal proposal, on which AfME's Board
conducted an unconstitutional and illegal "consultation" which AfME's Board
appears to want to push through despite the constitutional and legal
consequences of its actions involves subjecting nominees to the
ministrations of a "Nominations Committee" of the Board.
This "Nominations Committee" will unconstitutionally and illegally decide if
in their opinion a given nominee is suitable to have their name placed upon
the ballot paper for the Trustee elections.
This is in violation of members rights under AfME's Memoranda & Articles of
Association. For a full and detailed analysis of the legal and
constitutional issues involved, please my document "Response to Action for
M.E.'s Consultation on Trustee Elections" which I submitted as part of the
consultation process.
Neither AfME's Board, nor a "Nominations Committee" of the Board have the
constitutional or legal right to subject nominees / candidates for the AfME
2011 Trustee elections to a procedure in which they are required to attend
and pass interviews, or to engage in any other activity designed to test the
suitability of election nominees / candidates to be put forward for
election, as this would be unconstitutional and illegal.
Therefore, any such interviews, tests or activities instigated by either
AfME's Board, or its "Nominations Committee" must consequently be of an
entirely voluntary nature. This means that if a given nominee / candidate
does not want to attend any such interview or undergo any such test, then
neither AfME's Board, nor its "Nominations Committee" can deprive that
nominee / candidate of his / her rightful place on the ballot paper for the
AfME 2011 Trustee elections.
Neither can AfME's Board nor its "Nominations Committee" use the passing nor
failing of any such tests or interviews as a means of selecting only their
preferred nominees / candidates for a place upon the ballot paper.
Nor can AfME's Board and or its "Nominations Committee" seek to direct the
choice of AfME members by recommending that the membership elect their
preferred nominees / candidates on the basis of any interviews, tests or
opinions AfME's Board or its "Nominations Committee" has through a system of
recommendations to AfME's membership that they should elect one nominee /
candidate and not elect another nominee / candidate."
I would therefore draw to your attention for emphasis the constitutional and
legal position of AfME's Board and the rights of AfME members to stand for
election in relation to the "interviews" proposed by AfME's Board that
"Therefore, any such interviews, tests or activities instigated by either
AfME's Board, or its "Nominations Committee" must consequently be of an
entirely voluntary nature".
Therefore logically, it presumably must have been in recognition of this
that Ms. Brooks notified me of a change in the procedure to be used for
AfME's Trustee election in view of her statement, "Your comments about the
constitutional governance, the annual general meeting and this year's
conference are noted. Action for M.E does not agree with your view that
there are major problems in these areas." Ms. Brooks' statement is a denial
of the seriousness of the actual constitutional and legal as well as the
disability access situation, but it is however an admission that there are
problems in these areas of a 'minor' rather than a "major" nature which
presumably from her point of view and that of the Board could be overcome by
dropping AfME's unconstitutional and illegal procedure to subjugate election
candidates to an interview by the Board or a Nominations Committee thereof.
This must have logically been in recognition of the fact that participation
in any such "interview" by an election candidate would be on an entirely
voluntary basis and cannot constitutionally or legally be used as a
selection tool for AfME's Board to test or vet the views of election
candidates with the object of selecting for election only those candidates
whose views AfME's Board approve of.
The very fact that I did lay out the constitutional and legal reasons why an
election candidate cannot be subject to testing or vetting by AfME's Board
or its Nominations Committee might be taken to imply that I was in some way
reluctant or unwilling to attend such an interview. This is not the case as
I was perfectly prepared to do so provided that AfME's Board and its
Nominations Committee recognized that they cannot constitutionally or
legally use any such interview as a selection tool to determine who shall,
and who shall not have a place on the ballot paper for the forthcoming
Trustee elections.
I think that it has to be recognized that there is little point or purpose
to a selection interview that cannot actually constitutionally or legally
select, or deselect candidates is to be honest, as waste of everyone's time.
Therefore your letter of the 23rd of May informing me that the Board through
its "Selection Committee" have of their own volition decided not to
interview me was a bit of a disappointment, but it does not in any way
change, affect or alter my status as an election candidate in the
forthcoming Trustee elections.
I now turn to the matter of the unconstitutional and illegal veto which
AfME's Board or its Nominations / Selection propose to operate over which
election candidates shall, and shall not have their names placed upon the
ballot paper for the forthcoming Trustee elections, as outlined in Ms.
Brooks' letter of the 13th of May.
I have been in contact with the Charity Commission concerning the correct
processes and procedures to be used for the election of AfME Trustees for
the 2011 AfME Trustee elections.
At my request the Charity Commission checked the processes and procedures
proposed by AfME for the use in the 2011 Trustee elections with special
reference to the matter of selection interviews by the Board or a
Nominations / Selection Committee thereof and specifically as outlined in
Ms. Brooks' letter in relation to the matter of the operation of a veto.
This was done specifically in order to determine if the processes and
procedures that AfME intent to use are constitutionally and legally correct
in relation to AfME's Governing Document, AfME's Memoranda & Articles which
are currently registered with the Charity Commission as AfME's constitution.
The Charity Commission expects that a Board of Trustees of a charity will
administer their charity in accordance with the provisions of a charity's
Governing Document, which is the legal document that defines a given charity
and provides the Board of Trustees with their legal power to run and manage
a charity. In relation to charitable companies founded under company law,
that charitable company must obey both company and charity law, and both are
breached when a charitable company breaches its Memoranda & Articles of
Association.
When a charitable company breaches its Memoranda & Articles, it is not only
a breach of charity and company law, it is also a "Breach of Trust" as far
as the Charity Commission are concerned. This Breach of Trust is twofold, a
breach of the trust given to the Board of Trustees to govern the charity in
accordance with the charity's Governing Document, by the Charity Commission
as the Regulator of Charities on behalf of the Government and the public,
and of course a breach of the trust AfME's own members place in AfME's Board
of Trustees to run, manage and govern AfME in a constitutional and legal
manner.
The Charity Commission have confirmed that AfME's Board have no
constitutional and therefore legal or lawful means of interposing itself, or
a Nominations / Selection Committee of the Board of Trustees, between
election candidates and the candidate's right to have their names placed
upon the ballot paper for AfME's Trustee elections.
This means that AfME's Board or a Nominations / Selection Committee of the
Board cannot constitutionally or legally set up or use any process or
procedure whereby the Board, or its Nominations / Selection Committee
engages in any form of vetting of election candidates for their suitability
to stand for election, and neither can the Board or its Nominations /
Selection Committee exercise any form of veto over whether or not a given
candidate's name is placed upon the ballot paper for the forthcoming Trustee
elections.
Therefore if the Board continues with its plans of considering all
applicants as to their suitability as per Ms. Brooks' letter of the 13th of
May that, "As soon as all the applicants have been considered by the Board,
you will receive a letter communicating the decision on whether you have
been provisionally selected for the next stage which would be confirmation
through election by supporting members" the Board will have acted in an
unconstitutional and illegal way, and it will in addition be guilty of a
Breach of Trust.
For the avoidance of doubt and to make the matter perfectly clear the
Charity Commission have confirmed that the only constitutional and legal way
in which AfME can conduct the forthcoming Trustee elections would be to do
so by using the processes and procedures set out in AfME's Memoranda &
Articles of Association. The Charity Commission has also specifically
confirmed that AfME must constitutional and legally obey its Memoranda &
Articles of Association, which includes the processes and procedures for the
election of Trustees set out therein, and confirmed the following to which
I have previously set out to AfME in my letter of the 14th of March :-
"Within the provisions of AfME's Memoranda & Articles of Association as they
stand, members have a constitutional and legal right under charity and
company law to stand for election to the Board by nominating themselves or
other members. This is done through the use of a nomination form, and when
AfME receive a nomination form, AfME must constitutionally and legally entre
the name of the nominated member into a list of candidates which will form
the basis of the ballot paper for the Trustee elections. Therefore a
properly completed nomination form is all that is constructional and legally
required to secure a place upon the ballot paper for the Trustee elections."
The Charity Commission have in addition confirmed that this constitutional
and legal state of affairs is no in any way altered, ameliorated, changed or
subject to the results of any opinion surveys such as AfME's fundamentally
flawed consultation exercise on the election of Trustees.
In view of this the only way in which AfME can act in a constitutional and
legal way would be to allow all candidates to go to "the next stage which
would be confirmation through election by supporting members." Should AfME's
Board or its Nominations / Selection Committee decide not to do this, then
AfME's Board will be acting in an unconstitutional and illegal way and would
also be guilty of a Breach of Trust.
For a full and detailed analysis of the legal and constitutional issues
involved, please my document "Response to Action for M.E.'s Consultation on
Trustee Elections" which I submitted as part of the consultation process,
and I enclose a further copy of this document for your reference and
information.
I would therefore very strongly recommend that AfME's Board and its
Nominations / Selection Committee set aside its current plans for the
forthcoming election of Trustees and use the processes and procedures set
out in AfME's Memoranda & Articles of Association as I have outlined above.
Should AfME's Board decide not to follow my recommendation, then I may be
obliged to seek enforcement action on the matter from the Charity
Commission. This in itself would considerably raise the Board's
vulnerability to legal action being taken against it, for which Trustees
would not be covered by any liability insurance the Board or individual
Trustees may have. Such a situation is hardly likely to go unremarked by
the ME community Online should the matter entre the public domain
It would be a shame if matters had to come to such a pass and I hope that
AfME and its Board of Trustees will therefore take a step back and
re-evaluate their plans for the forthcoming Trustee elections.
I now turn to the matter of AfME's fundamentally flawed consultation on
Trustee elections from which AfME's Board falsely and illegitimately claim a
mandate for their actions.
In my letter of the 14th of March I set out the following :-
"AfME announced that it would be recruiting new Trustees/ Directors via
AfME's Web based Newsletter "Keep me Updated" Number 28 on Friday the 18th
of February this year. That publication contained a link to an advertisement
which has subsequently appeared on AfME's Website, and in AfME's member's
magazine, InterAction. I received my copy of InterAction Issue 75 Spring
2011 on Friday the 25th of February. The edition of "Keep me updated"
stated under the heading of "Board meeting" :-
"The Board of Action for M.E. will meet in Bristol, 24 February, to discuss
the strategic direction of the charity and the results of a recent
consultation on the procedures for the election of Trustees."
The words in blue, "election of Trustees" being an active link to the
advertisement for the recruitment of Trustees.
Therefore the Board had already decided how it was going to conduct their
proposed election of Trustees before considering the results of the
consultation about the election of Trustees, due to the production of the
advertisement of the 18th of February which clearly predates the Board
meeting of the 24th of February.
There is an appreciable lead in time to the printing and distribution of
InterAction to members, of a least some two weeks, so the advertisement
calling for Trustees placed within that publication must have been signed
off by the Editorial Board of InterAction which comprises the CEO and the
Vice Chair of AfME's Board, Mr. Tony Golding before the 24th of February
Board meeting.
Therefore logic dictates that AfME's Board had made a decision to push their
plans for the elections of Trustees through, no matter what the results of
the consultation over the matter might have been.
There was a very significant proportion of AfME's membership that considered
that the consultation was not worth taking part in, as it was a forgone
conclusion that AfME would simply push their plans through in any event, so
they simply did not take part in the consultation as it was viewed as a
pointless exercise.
The vast majority of AfME's members simply did not believe that after so
many years of AfME being an undemocratic & unrepresentative charity run by a
self-perpetuating clique, that AfME were really prepared to change, so they
viewed AfME's consultation on Trustee elections as an empty exercise.
That is why only 100 or so AfME members bothered to take part in this so
called consultation out of a total membership of around 6,500.
It is to be noted that AfME's Board have a long history of refusing to
allow their members their legal democratic rights under AfME's constitution,
its Memoranda & Articles of Association, to attend Annual General Meetings
or to elect a Board of Trustees / Directors or to allow members to have a
say on policy issues or the strategic direction of the organization. This is
well known, as is AfME's flouting of charity and company law that results
from it, although AfME has said that it does want to change, but how sincere
is AfME's resolve to transform itself into a respectable, representative and
democratic charity when it is not even prepared to conduct any form of
meaningful consultation?
AfME's "consultation" was also fundamentally flawed in other ways as AfME
did not set out the true current situation about the processes and
procedures that should be used for the election of Trustees as set out
AfME's Memoranda & Articles of Association.
It is a very strong point of administrative law that a body must engage in
proper and meaningful consultation over a legal matter such as changing an
organization's constitution or the organization's fundamental rules, and
this is held to mean two things in particular ; providing a summary of the
salient facts, and taking into account the views of respondents before
taking a decision.
This AfME's Board were constitutionally and legally obliged to do, but
presumably chose not to do as AfME's proposals are designed to hand the
Board complete control over who they may, or may not put up for election, in
violation of AfME's Memoranda & Articles."
Ms. Brooks responded to this in her letter of the 13th of May by asserting
the following , "This is the procedure that was agreed by the large majority
of supporting members who responded to the consultation earlier this year."
InterAction Number 75 Spring 2011 gave the results of AfME's consultation on
Trustee elections. It can be seen from this that only 100 members out of
AfME's membership of about 6,500 responded, and that 20 non-members did so
and their views were integrated into all but one of the figures that Ms.
Brooks quotes as supporting the Board's proposals. No information was given
as to the comments made or the numbers of members and non-members who did
not agree with AfME's proposals. Therefore it is not possible to ascertain
on the basis of this what the true situation was, and consequently what
majority, if indeed any there were for the Board's proposals amongst AfME
members. Non-members cannot constitutionally or legally take part in AfME's
constitutional affairs, by definition, therefore the comments, and votes of
non-members cannot constitutionally or legally be included in the
consultation. This matter alone is sufficient to invalidate the consultation
exercise given the high ratio 20 out of 120 (17%) of non-members that AfME
allowed to take part in the consultation exercise.
The circulation of InterAction goes out to a very much larger number of
recipients than those people who are actual members of AfME. Therefore again
there is the issue of non-members having their voice in terms of comments,
and their votes on AfME's proposals taken into account when this
constitutionally and legally should not have been the case.
There is also an issue about the informal creation of membership categories
by AfME over the years which clouds and confuses the issue of who is and who
is not a members as well as the issue of how many persons within a household
are members, the person within the household who has ME, and or their carer,
or all members of the household containing either of them.
Then there is the matter that AfME's consultation was conducted on the
false premise that AfME's Board were beneficently "giving" their members the
opportunity / right to vote in Trustee elections on the basis that members
had not previously had this right or opportunity. Whereas the constitutional
legal fact of the matter has been that AfME's current and previous Memoranda
& Articles quite clearly states that members have a right to attend AGMs,
EGMs, or General Meetings and can vote on policy matters, and elect a Board
of Trustees, but that AfME's Board have been unconstitutionally and
illegally denying their members the right to vote and to elect a Board of
Trustees.
I cannot emphasise the point that AfME's "consultation" was fundamentally
flawed because AfME did not set out the true current situation about the
processes and procedures that should be used for the election of Trustees as
set out AfME's Memoranda & Articles of Association strongly enough. This
meant that not only were members deliberately kept in ignorance of the true
constitutional and legal position, its consequence was that members were
deliberately mislead into voting for an option which they thought would
increase their rights as members and give them powers that they had not
previously had, when in fact the opposite was true.
This matter alone is sufficient to render AfME's consultation on Trustee
elections null and void.
In any event, only 100 members participating in a consultation of 6,500
members is not a representative figure and clearly cannot be held to
constitute a mandate for AfME's proposals as the response rate, or turn-out
was so appallingly low.
In relation to Administrative Law, as I set out previously :-
"It is a very strong point of administrative law that a body must engage in
proper and meaningful consultation over a legal matter such as changing an
organization's constitution or the organization's fundamental rules, and
this is held to mean two things in particular ; providing a summary of the
salient facts, and taking into account the views of respondents before
taking a decision."
This AfME simply did not do, and so AfME is legally changeable upon this
basis. There are two further aspects of Administrative Law that pertain to
the matter of conducting fair, proper and meaningful consultations.
The first is that there should not be a 'predetermination' for the
consulting body to arrive at a conclusion, or more importantly a decision,
before the consultation period is over and or prior to the body concerned
considering the results of the consultation. Predetermination is also
present when a consulting body consults in such a way as to seek the
endorsement of the consulting body's views, actions or proposals through the
manner in which it consults by setting up that consultation as a means of
delivering a predetermined result. Neither must there be any appearance of
pre-determination as this will alter the balance of the views that will be
tendered by consultees during the consultation as some people will either
not take part on the basis that the matter is a forgone conclusion, or this
perception will shape the views that are tendered by people who participate
in the consultation process.
The second aspect of Administrative law in relation to these matters that
pertains to this situation is that consultations must not be biased in
favour of a given option within a consultation, or answer to a question set
out in the consultation that the consulting body is seeking to obtain a
specific answer to in a particular way, or of the endorsement of the
consulting body's proposals. All options must be fairly set out in a neutral
way in relation to the status quo and any changes that are proposed with
full and proper information about the options, proposals and their
implications, so that consultees can make an informed choice when responding
to a consultation.
Neither should there be any appearance of bias as this will again alter the
balance of the views that will be tendered by consultees during the
consultation as some people will either not take part on the basis that the
matter is a forgone conclusion, or this perception will shape the views that
are tendered by people who participate in the consultation process.
There is very clear evidence that there was predetermination and bias
involved in AfME's consultation on Trustee elections as well as the
appearance of both predetermination and bias as a result of :-
1] The decision to start the recruitment of Trustees for the 2011
Trustee elections very clearly and obviously predates the Board meeting of
the 24th of February where the Board sat to consider the results of the
consultation.
2] The fact that there was only one option available through AfME's
consultation questionnaire which was AfME's proposal combined with the fact
that AfME kept members in ignorance of the true constitutional and legal
position in relation to AfME's proposals and AfME's Memoranda & Articles.
This predetermined the choice members had in a particular way that favoured
AfME's proposals being voted for by members as a result of AfME deliberately
misleading members into thinking that AfME's proposals would further
members rights, when the opposite was true. Therefore AfME consulted on a
false premise in order to gain endorsement of its proposals which
predetermined the outcome of the consultation and was biased in favour of
the acceptance of AfME's proposals on the basis that some change in a
democratic direction was better than the alternative of no change at all.
3] That only 100 members responded to AfME's consultation out of over
6,500 and a very much larger circulation of InterAction indicates as I have
set out previously that most members simply ignored the consultation as they
considered it to be an empty exercise that had nothing to do with them
because AfME would do what it wanted, come what may. This is clear evidence
of the appearance of bias and predetermination.
4] The biased and misleading way in which the results of AfME's
consultation were reported in InterAction Number 75 Spring 2011 which gave
the impression that AfME's plans had been endorsed as a result of the
consultation, and the subsequent use of this misleading information by Ms.
Brooks to make her claim of a "large majority" of supporting members who
took part in AfME's consultation.
Therefore I submit that if AfME had conducted a proper and meaningful
consultation exercise in accordance with the principals of Administrative
Law, as I have outlined above AfME should have done with reference to AfME's
Memoranda & Articles then the result of the consultation would have been
very different.
Consequently AfME cannot use the results of this fundamentally flawed
consultation which AfME deliberately conducted on a false premise as a
mandate for the Board's actions to unconstitutionally and illegally take
away AfME member's rights to stand for election to the Board in a free and
fair election through the unconstitutional and illegal undemocratic
imposition of censorship of candidate's the names from the ballot paper by
the Board.
In any event, the Charity Commission have stated that this "consultation"
has no constitutional or legal status and is therefore to all intents and
purposes merely an opinion survey which constitutionally and legally cannot
be used to supplant the provisions of AfME's Memoranda & Articles of
Association which set out the constitutional and legal processes and
procedures that AfME must follow as a matter of Charity and Company Law.
In conclusion, AfME's Board of Trustees should set aside its "Nominations
Committee / Selections Panel" as well as the unconstitutional and illegal
powers that AfME's Board have unconstitutionally and illegally ascribed to
it along with and its procedure for the pre-selection of election candidates
by appointment by that Committee / Panel and all of its recommendations.
Then AfME's Board should use the processes and procedures for the election
of Trustees set out in AfME's Memoranda & Articles of Association, which are
the only constitutional and legal ones that AfME can use. In practical terms
this means that all applicants or nominees must constitutionally and legally
have their names placed upon the ballot paper for the forthcoming Trustee
elections, including myself.
Should AfME's Board decide not to follow this course of action, then I may
be obliged to seek enforcement action on the matter from the Charity
Commission. This in itself would considerably raise the Board's
vulnerability to legal action being taken against it, for which Trustees
would not be covered by any liability insurance the Board or individual
Trustees may have. Such a situation is hardly likely to go unremarked by
the ME community Online should the matter entre the public domain. As I have
previously stated I would prefer it if matter did not have to come to that,
so I hope that you and AfME's Board will see the common sense and justice in
the constitutional and legal arguments I have set out in this and previous
letters and my document, "Response to Action for M.E.'s Consultation on
Trustee Elections"
I would also like to point out that AfME's chosen venue for its meeting(s)
of the 22nd of October is/are the offices of Allen & Overy, a venue that has
serious disability access issues as I and other disabled people found out
last year at AfME's conference on the 25th of September.
Yours Sincerely,
Ciaran Farrell
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