Lynton and Barnstaple - Operations and Development

It's not so much that the board are always right but rather recognition that, as the Articles confirm, that is where the power to run the charity lies. Much of the angst seems to be because of a belief, as expressed in Anne's latest missive. that changes to the Articles will take away the members' power to determine the direction of the Trust. That appears to assume that the board of an incorporated charity are like the elected committee members of a preservation society accountable to its members for running it in accordance with their wishes. As Trustees of a charity the Trustees are primarily accountable to the public and the Charity Commission for running the charity in pursuance of its charitable purposes ...in this case public education. That will always be the case regardless of who they are and how they're elected.

Change or no change the elected directors will still have the same duties and accountability. The ability of members to direct how the Trustees exercise their powers will still be the same. Those, such as the section 303 process, are limited by law which is possibly the cause of so much of the tension.

The change to the Articles that would seem most helpful would be to better align the charitable purposes with members' expectations. There's nothing in them about restoration of the railway (in contrast to those of EVA and YVT) so at the moment operation of the railway is a means to achievement of the Trust's educational purpose not the primary purpose its members expect. Until that change is made the Trustees, whoever they are, will face that dilemma. Aligning the charitable purposes with members' expectations so the Trustees' duties are more in harmony with them would be a positive way of improving the prospects for an extended L&B.

 

Yes. The only way to force a reluctant board is to get the 5%. Given we have a membership of c3000, then that's 150 signatures required. But getting the signatures is the easiest bit....

 

If the trusts charitable purpose is 'public education' then why is there any need to change the articles to 'vet' any new prospective Trustee, require them to be a member, have the power to remove any Trustee they don't like or a member they have issue with and on top of that enshrine existing long term Trustee's as 'fellows' or 'patrons' of the trust, this smacks of self protectionism, is nothing more than a power grab by the back door and an ego trip for achieving basically nothing over the last 17 years ( lets be honest LYN was achieved by the efforts of Jon Pain who isnt a trustee, the only exception is Charles Summers with his dedication to the carriages but the rest have achieved bugger all apart from upgrades which would have happened anyway, also how is the use of Trust funds in supporting the purchase of a pub in the interest of 'public education'

 

I think the confusion lies in the point of whether the whole board of 9 were allowed to vote on these resolutions or whether the '6' decided on them and added them to the last meeting as a given decision of what was going to happen, as i understand it the special resolution was voted on by all 9 and the ordinary resolutions were merely mentioned at the end of the meeting as a given decision, IF this is correct then can those ordinary resolutions be legitimate! It is widely said that the 6 play fast and loose with the rules and 'cherry pick' what information they need to push their own agenda forwards so its about time they started publishing or sharing the legal or otherwise information they use to back up what they propose

 

Thanks Ian.
So the removal motions are therefore illegal and should be removed

 

Since you ask the question about the pub the obvious answer is, directly, none. However the Trustees have some power to invest Charity funds where that is likely to produce a financial return that enhances its capacity to educate the public.

The only power that would be lost by the proposed change is the power to nominate any member for election. As any elected Trustee would be primarily accountable to the public and the Charity Commission rather than those electing him or her the effect of the change is hardly the emotive power grab suggested. Those elected could still be removed by member resolutions. That member power wouldn't change.

It's manifest that there is discontent, as apparent from your post, over the lack of progress in the fulfilling the members' desire to extend the railway. Desirable though that may be it's not the yardstick against which the Trustees' performance should be judged. If extension is a) financially prudent and b) enhances the capacity to educate the public (unless and until the Articles are amended to broaden the charitable purposes) then simply maintaining and operating what already exists is not necessarily the failure you imply.

 

They're doubly illegal, @ghost . Pace @Lineisclear , the Board motions at that EGM (called under s168 of the Companies Act) are only those that are a corporate decision - ie, a formal motion voted on a properly constituted meeting, which would be minuted as such. The Ordinary Resolutions that 'the six' want to add to the Agenda do not appear to have been voted on, and so are not corporate actions, and therefore cannot ride on the coat-tails of the Special Resolution.

If they're being brought under s303, then they (i) need to have 5%, (ii) bear the costs themselves - neither of which have been done - and (iii) would in any event be inadmissiable as they are defamatory, frivolous and vexatious, in violation of s303 ss5(b) and (c).

 

I'm intrigued @Lineisclear: what is your realtion to the L&B and therefore your locus on this? Are you a member? Or are you simply opining on someone else's railway from your perch at the HRA? If so, is your crusade to remove Members control from HRA member railways' governance a formal HRA policy position? Or are you conflating the two to sound off about your personal preferences?

The reason I ask is that you pop up to make assertions in favour of the L&BRT Board's positions, demonstrate that you actually know very little of the situation (case in point here: there is no divide between 'the six' and the Members on extending the railway, so the distinctions you are attempting to draw here are meaningless), but the common thrust is that you assert that Boards should be insulated from Members because they can't be trusted (but provide no evidence to support this contention).

Indeed, given the well publicised discontent on your own NYMR based, I see reported, on volunteers' disatisfaction with a distant unresponsive Board which has all of the attributes that you are pushing here, I wonder if the evidence is rather in the other direction? But in the same way as I don't wade into NYMR chats knowing virtually nothing of the facts, I'd rather suggest that you may want to consider the same here.

 

Thank you Keith and Toby. Perhaps I could have been plainer - if there is a possibility that it's not legal then there ought to be a way of stopping it or changing before 'the six' steamroller it through and we are faced with a fait accompli which will then be impossible to change (as the officers in the Actors Benevolent Fund found). Any suggestions without engaging a (very expensive) lawyer ? And I know it's expensive - 12 years ago it cost me £16K to establish my right to publish the L & B drawings I had drawn without fear of being sued by the transcriber.

 

[QUOTE="Michael B, post: 2862352, member: 29306"]Thank you Keith and Toby. As perhaps I could have made it plainer - if there is a possibility that it's not legal then there ought to be a way of stopping it or changing before 'the six' steamroller it through and we are faced with a fait accompli which will then be impossible to change (as the officers in the Actors Benevolent Fund found). Any suggestions without engaging a (very expensive) lawyer ?[/QUOTE]

You could write to the Charity Commission, @Michael B . The case number for their investigation is "C-084534: Lynton and Barnstaple Railway Trust".

 

Thank you Lineisclear. Too often you seem to have supported the status quo without offering any suggestion as to how a divisive situation could be remedied. This time I think you have put your finger on the crux of the real problem and we should take note of your suggested amendment.

 

I wasn't aware that membership of the Trust is a precondition for posting on this thread? My interest is in heritage railways' corporate governance. There is no personal preference other than the one that we share that their directors and trustees should comply with the law. As is apparent on here understanding of what that means for both boards and members is sometimes lacking.

 

I didn't say *anywhere* that L&B membership is a preequisite for posting on this thread, @Lineisclear , but thanks for confirming this. Which leaves the questions of whether you're speaking on behalf of the HRA on an HRA-agreed policy position on the governance of their member railways or simply speaking personally? I presume the latter, but it would be helpful if you could confirm this and whether or not your views are those of the HRA?

And I still can't see how your proposition that the Ordinary Resolutions which were not corporate actions under s168 can be included on the EGM Agenda. Frankly, unless you can cite some case law to support your contention that what 'the six' are doing is legal, I'm afraid I'm going to assume that they're not.

 

I fail to see how you can argue that a pub up to its eyes in debt and potentially putting the railway at risk, is financially prudent or in any way enhances the educational aims.
You are ignoring the new powers being grabbed to remove trustees and/or members without appeal and at the whim of the board.
You are also stating that its absolutely fine for members to only have the power to remove a trustee through a resolution, but not to propose a new trustee. Why? Why is a nomination committee necessary? Why limit nominations to just those that the board knows? There are approx 3000 members. Are you seriously asking us to believe that 6 people can have all the answers and shouldn't tap into that vast knowledge bank?

 

The 5% wasnt required if the board voted for them. The argument put forward is that the motions weren't agreed by a full board meeting and hence are invalid. However the 6 will argue that as the 2 trustees were conflicted, then they should not be involved in the meeting. Hence the 6 could meet without them and agree the motions.

 

I don't think anyone is disputing that railway organisations, through their directors and trustees, must comply with all applicable law. However, your prescription consistently seems to be that the best mechanism to ensure that is to vest all such issues in a very small group of people, rather than in a much larger group who collectively have a much greater breadth of knowledge.

Nowhere in all your writing have you provided any evidence that says that corporate governance is better when the members are excluded. I would suggest that there is evidence across a number of railways (not just the L&B) that suggests the complete opposite.

Your oft-stated view is that member power leads to the risk that the members try to run the charity in the member interest, rather than the public interest. Nowhere have you been able to say why your proposed model doesn't open up the equivalent risk that the directors try to run it in the directors' interest instead. I would suggest that that outcome is far more likely (because if that is your intention, it is a smaller number of people you need to get to agree with you: half a dozen, rather than hundreds or thousands); and because by your prescription, all checks and balances on their behaviour are removed.

Tom

 

But 'the six' aren't arguing this, @ikcdab . The simple point is that either the Ordinary Resolutions are pulled, or that there should be the opportunity for others to submit them in good time (by 2 March, in fact).

 

Firstly the proposed changes would entrench the current incumbents in their positions, secondly they would then have the power to decide who will be able to stand for election in the future thus dictating to the members who they can vote for and their choice would be more of the same like them, lets be honest here up until 3 years ago the Trustee's had everything their way then one of theirs was pushed out and the problems started , the new guy started questioning decisions and they didn't like it and these actions are a means to an end to stop any questioning of their decisions

 

Once more I think you are putting your finger on the key point. We need to stand back a little and not focus on the “dancing on the head of a pin” arguments on fine points of procedural and legal issues. Fundamentally, are these proposals healthy or unhealthy? If the latter there should be a vigorous campaign against them. IMHO.