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An Examination of the UK Charity Action for M.E.

Posted Sep 13 2010 10:02am
1              Introduction

UK charity law is a complex area within which Action for ME, AfME has sought to use what could best be described as linguistic gymnastics to deny members of Action for ME, AfME the right to attend meetings or to speak at those meetings or to vote on policy matters and also most critically to elect a Board of Trustees who would be representative of the membership of AfME.

2              Background

The consequence of this is that AfME policy is made behind closed doors by a self-selecting, self-perpetuating clique who do not involve or consult the charity’s membership, or allow the membership to participate in any meaningful way.   This results in AfME policy reflecting only the views of the highly select few who constitute AfME’s Board of Trustees / Directors who perceive ME to be a biopsychosocial fatigue based illness rather than a physical neurological disease.

It has also meant that AfME have supported the UK CFS/ME National Institute of Clinical Excellence’s, NICE’s biopsychosocial approach to the diagnosis and treatment of ME which involves the psychologically based treatments of Cognitive Behaviour Therapy, and Graded Exercise Therapy, GET. AfME have also supported the Occupational Health Guidelines that take a biopsychosocial approach to ME. This is despite surveys of AfME’s own membership carried out by AfME which report that CBT and GET are at best ineffective, and at worst highly damaging.
AfME also support and have a seat on the PACE trial committee which oversees the work of the researchers who are carrying out a fundamentally flawed research study into the effectiveness of CBT and GET.

This is all despite the fact that AfME members and members of the UK ME community have come out very strongly against the NICE Guidelines, PACE, CBT and GET and the Occupational Health Guidelines.

In addition, AfME have obtained over £500,000 of public money via a grant from the UK Lotteries Board, the Big Lottery Fund to carry out biopsychosocial type research through AfME’s National ME Observatory including an epidemiological study.

AfME are holding a meeting on the 25th of September for the Observatory to report back to AfME’s members who are the beneficiaries of the Observatory’s work as far as the Big Lottery Fund are concerned on the research that has been carried out by the Observatory on behalf of AfME members.

AfME do not want to hold this meeting, they have to in order to for fill the terms of their Lottery Grant.

AfME originally planned not to have any ordinary members of AfME on the Observatory’s Steering or Reference Committees, but were told by the Lotteries board that if they did not do so, then they would not be able to obtain any grant money from the Lotteries Board. AfME hastily set up the required committees in order to meet the Lotteries Board’s terms, but they quickly reduced the status of the committees concerned to talking shops, and then side-lined and ignored them. Any members of these committees that objected to this were brow beaten into silence and or simply removed. AfME “took the management of the Observatory back in-house” thus rendering the committees concerned completely tokenistic.

Furthermore, AfME is backing the highly controversial trial of the Lightning Process, LP in children which Dr. Esther Crawley is seeking Ethics Committee approval for together with Action for Young ME, AYME despite the fact that LP treats ME or any other medical condition as a behavioural disorder to be addressed through a 3 day training course which involves Life Coaching, LC, neuro linguistic programming, NLP and autogenic training, AT which is basically  self-hypnosis.

NLP is a mind over matter technique that its practitioners claim can work wonders by using key linguistic phases to act like a the self-extracting utility files that are used to update computer programmes. The theory is that the self-extracting linguistic programme is installed by the mind in the brain which will reprogram the mind’s software. It is claimed that when the mind’s software is reprogrammed the  mind can reprogram the body’s hardware that thereby effect a cure.

All three of these techniques, Life Coaching, NLP and AT and a very high level of obedience training are used as tools in “Brain Rehearsal” according to the principal that “the brain can’t distinguish between true and created memories” as set on page 14 of the LP training course Workbook. LP uses Brain Rehearsal to recreate a falsely positive set of  past memories as the driving force to create new patterns of behaviour in the present which change the person’s character and personality from being a ‘negative sick self’ into a positive well self in the future. This is done through the continual editing and re-editing of movies the person creates in their own mind based upon the avoidance of the “Pit” of negative thoughts and behaviours on the one hand and the continual reinforcement of ultra-positive attributes on the other.

I consider that there are some quite shocking parallels between the combined effect of the techniques used in LP for “Brain Rehearsal” and the effect of the therapy used by certain child therapists who were determined to “uncover” child abuse and ended up creating a False Memory Syndrome whereby children who were not abused believed they had been.

It is for this reason and a great many others that I do not believe that the LP trial out to go ahead. It should be stopped.

Both the Guidelines of the UK Medical Research Council, MRC and those of the UK General Medical Council, GMC prohibit research trails from taking place in children before appropriate trails have been carried out with adult test subjects.

If Action for ME were a democratically run charity then AfME members would be able to overturn bad, wrong, damaging and unpopular AfME policy and elect a Board of Trustees who would be democratically accountable through the ballot box. Therefore there would be a means of brining AfME policy into line with the views of the membership and AfME would have a mandate for representing its members and the wider ME community to the UK Government, the UK National Health Service and the UK’s Welfare and social care systems.

This sadly is not the case as AfME refuse to allow their members their legal democratic rights.

3              The legal and constitutional issues involved in AfME’s installation of a new Articles of Association

The starting point for unravelling AfME’s claim that members of Action for ME are not members of the company Action for ME and so have no legal or democratic rights under company law is the straightforward legal principal that is enshrined in charity and company law .

Anyone who takes out a membership subscription to a charitable company for the purpose of becoming a member of that charitable company and who pays a membership fee for their membership and who is accepted as a member of that charity company  is logically and legally a member of that charity and also a member of that company.

Action for ME is a charity and it is a company limited by guarantee and having no share capital. This legal type of company is one of the very few that can be registered as a charity under UK law.

AfME was founded under the Companies Act 1985 and AfME’s constitution, its Memoranda and Articles of Association, even the new ones that AfME did not tell their members about are legal documents under company law.

This can clearly be seen as the start of the old and new Articles begins with a set of definitions as laid out by the Companies Act 1985 in the case of AfME’s old Articles and the Companies Act 1985 and 2006 in the case of the new Articles. The Memoranda also carry banners and headings referring to the Companies Acts.

Therefore the Articles, old, new or whatever are a Company law document which relies on the Companies Acts for its legal authority as would be expected for a governing document of a company limited by guarantee and with no share capital which are the type of companies that could be registered as charities in the mid-1980s due to enabling legislation passed by Mrs Thatcher’s Government.
It naturally follows from this that the definition of members and membership that are defined in such a document would define a member in terms of Company Law. In the old articles this was defined as follows :-

2.            The subscribers to the memorandum of association of the company and such other persons as are admitted to membership in accordance with the articles shall be members of the company. No paid employee,         whether in full or part time employment of the company, shall be eligible for membership of the company or the Council. No person shall be admitted a member of the company unless approved by the      Council. Every person who wishes to become a member shall deliver to the company an application for membership in such form as the Council require.”

The Companies Act 1985 defines the subscribers to the Memoranda of Association as being the company’s first members as they are the ones who sign the original documents to set up the company. It is they who incorporate other members into the company and when they do so the new members have the same equal status as the founding members.

The “Council” council referred to is simply another name for the Board of Trustees / Directors, and the reference to an application being made to the company for membership is obviously a membership form.

Therefore a person who is a member of AfME is a member in company law – there is simply no other logical or legal way in which one could read or interpret the documents concerned.

Clause 22 of the old articles stipulates that members have a vote.

Clauses 6 & 7 as well as 37 and  60 -63 deal with the matter of notices, that is agendas of meetings being set out to members so that members can attend meetings.

Clauses 33 to 40 relates to Annual General Meetings.

My point here is that in order to have used the provisions of Clause 50 of the old articles which permits the Council to adopt a resolution in writing through the individual  Trustee / Directors signing a document to adopt the new Articles the Board broke the Memoranda & Articles and the law because Clause 32 states :-

“32.        The Council may from time to time make such regulations as it may consider appropriate for the proper conduct and management of the company and in particular to regulate:-

                (a)          the admission of members, associate members or subscribing members of the company, the rights and privileges of such members, the conditions of membership including any subscriptions to be paid,                           and the terms on which members may resign or have their membership terminated;
                (b)          the co-operation of members of the company with each other and with the company's paid and voluntary staff;
                (c)           the procedure at general meetings and meetings of the Council and committees of the Council;
                (d)          the management of any property that may be acquired;
                (e)          the establishment of local branches.
                No such regulation shall be inconsistent with any provision of the company's memorandum or articles. The Council shall take reasonable steps to bring any such regulations to the notice of members. The  company in general meeting shall have power to alter or repeal any such regulations.”

The power to regulate matters with a Mem & Arts / constitution is not the same as the power to change the Mem & Arts / constitution as any regulations made must be consistent with, that is capable of sitting beneath the provisions of the original document without causing conflict between the old and new provisions.

This is why there is provision within Clause 32 for a General Meeting defined as being either an Annual General Meeting, AGM or an Extra ordinary General Meeting, EGM to repeal any regulations made by the Board if members so wish.

The Companies Acts 1985, 1989, 2001 and 2006 are very clear that the powers of a standard clause such as Clause 32 above cannot be used to introduce a new set of Articles as this is simply not a permitted route for doing so, only an Annual General Meeting or an Extra Ordinary General Meeting, EGM can do this by Special Resolution.

Therefore AfME ought to have called an EGM or an AGM to deal with the matter of the introduction of the new Articles, where members would have a voice and a vote on the matter as well as a right to a copy of the Resolution and draft document itself that would need to be discussed and approved by a vote of members at the meeting.

There is then the matter of AfME not bringing their proposal to change the Articles to members attention as per Clause 32, and this is where AfME are in breach of the relevant clauses of their old Mem & Arts in relation to notices.

I could compile a very long list of the exact ways in which AfME flagrantly broke its old Mem & Arts as well as Company and Charity Law.

However, I think at this stage it is sufficient to say that there were a significant number of multiple breaches of a number of laws therefore AfME acted unconstitutionally and illegally and just as importantly undemocratically installing the new Articles behind members backs and without the knowledge, participation or involvement of AfME members who had, and still have a legal right to be fully informed, consulted and involved in such matters.

4              The constitutional and legal issues involved in AfME’s new Articles of Association

Clause 9(c) of AfME’s new Articles states under the heading of “Notice of General Meetings”, “ “The notice shall be given to all the members of the Charity and to the Board of Trustees members and to the Charity’s auditors.”

It has been AfME’s claim over a number of years that AfME members are not members in company law.

This is not the case, legally Action for ME, AfME is a charitable company and members of the charity are also members of the company because the charity is a company, and the company is a charity – they are one and the same organisation. That is legally why the Board of Charity Trustees of a Charitable Company is also its Board of Directors.

The Articles of Association that AfME illegally installed behind the backs of AfME members do not say that only the Board of Trustees are members, because if this were the case then only the Board would be entitled to receive notice of General Meetings, that is agendas and other associated documentation.

The purpose of the notice is to inform members that a meeting is to take place so that they may attend and participate, and Clause 9 (c) gives the same equal right for members of the charity and the Board as well as AfME’s auditors to receive notices of meetings.

Therefore AfME’s claim that members of the charity cannot attend “company law meetings” because AfME members are not members of the company are not true.

AfME have unconstitutionally and undemocratically and therefore illegally under the Companies Acts and Charity Law disenfranchised AfME members from their legal right to attend General Meetings, GM Annual General Meetings, AGMs and Extra ordinary General Meetings, EGMs of AfME on the basis that AfME members are only members of the charity AfME but not the company AfME.

This was never the case with the old Memoranda & Articles, Mem & Arts, and it is clearly not the case with the new Articles either as Clause 9 (c) shows because the of the specific wording of used that includes members of the charity and draws a distinction between the Board and members of the charity and gives both groups the right to attend General Meetings and receive documentation relating to General Meetings.

Therefore one cannot play both ends against the middle by saying that the only company members of AfME are its Board.

Under the heading of “Members” the following clauses of the new Articles state :-

“2.          The subscribers to the Memorandum and such other persons as are admitted to membership in accordance with the Articles shall be members of the Charity.

3.            No paid employee, whether in full or part time employment of the Charity, shall be eligible for membership of the Charity or of the Board of ‘Trustees.
4.            No person shall be admitted as a member of the Charity unless approved by the Board of Trustees. Every person who wishes to become a member shall deliver to the Charity an application for membership in such form as the Board of Trustees requires.”

This is similar to the provisions of the previous “Members” clause 2 in the old Articles with the proviso that it clarifies that it is membership of a charity that is being referred to within AfME’s constitution in the form of a Memoranda and Articles of Association, Mem & Arts, which is a company law document setting up a company limited by guarantee and having no share capital.
The new Clause 2 reflects the fact that the first members of the charity AfME were those that founded AfME under company law.

It also stipulates that the founding members of the charity can make other members of the charity at a later date by ‘admitting’ people to membership, which is the process set out in Clause 4. This process involves the filling in and return of a membership application, and when that application is accepted, the person is accepted into membership.

There is a disbarment on employees of the charity being members of the charity and its Board of Trustees, but there is no differentiation between members of the charity and members of the company as AfME claim. If AfME’s claim were true then the founding members of the charity could not be members of the company and therefore they could not have formed the first Board of Directors in accordance with AfME’s claim that only the Board of Trustees are members of the company.
In addition, if as AfME claim, members of the charity have no legal status or standing, and consequently, according to AfME, consequently charity members they have no democratic rights, they could not use the powers they do not have in order to admit members of the company to membership as fellow members since, according to AfME, they would not have the power to do so.

Therefore AfME’s claim that members of the charity are not members of the company is not only untrue it is illogical

Clause 27 of the new Articles under the heading of “Votes of members” the states :-

“On a show of hands every member present in person shall have one vote. On a poll every member resent in person or by proxy shall have one vote. Any member is entitled to appoint another person ; a proxy to exercise all or any of the member’s rights to attend and to speak and to vote at a general  meeting of the Charity. “

AfME have claimed that because members of the charity are not members of the company, that members of the charity cannot vote at General Meetings.

This again is untrue as can be seen from Clause 27 as no distinction is made between types of members and therefore all members can vote.

Therefore the combined effect of Clauses 2 & 4 in conjunction with Clause 9 ( c ) and Clause 27 is that members of the charity Action for ME have a right to receive agendas and associated documentation in order to attend and participate at General Meetings, and to vote.

This is confirmed by the contents of Clause 18 of the new Articles which states :-

“A resolution put to the vote of a meeting shall be decided on a show of hands unless before, or on the declaration of the result of, the show of hands a poll is duly demanded. Subject to the provisions of the Acts, a poll may be demanded:
a)            by the chairperson;
b)            by at least two members having the right to vote at the meeting ; or
c)            by a member or members representing not less than one tenth of the total voting rights of all le members having the right to vote at the meeting, td a demand by a person as proxy for a member shah be the same as a demand by the member.”

Therefore clearly members, all members, that is members of the charity AfME  can vote and put forward motions for  discussion and vote upon them. Legally under company law the power to propose motions is part and parcel of the right to vote.

Clause 43 of the new Articles states :-

“No person shall be appointed or reappointed a Board of Trustees member at any general meeting unless
a)            they are recommended by the Board of Trustees; or
b)            not less than thirty nor more than sixty clear days before the date appointed for the meeting, notice executed by a member qualified to vote at the meeting has been given to the Charity of the intention to propose that person for appointment or reappointment stating the particulars which would, on appointment or reappointment, be required to be included in the charity’s register of Board of Trustees members together with a notice executed by that person of such person’s willingness to be appointed or reappointed.”

What this means is that when it comes to making a  new or reappointing an existing Trustee / Director to sit on the Board that either that person can simply be put forward to a General Meeting on the recommendation of the Board and the matter voted upon.

Or alternatively a member, that is a member of the charity as per Clauses 2 & 4 in conjunction with Clause 9 ( c ) and Clause 27 can fill in a nomination form to nominate a fellow member to stand for election to the Board providing that the person concerned is willing to stand.

So that members of the charity can have the opportunity of nominating themselves or fellow members the charity, AfME has to send out nomination forms well in advance of the General Meeting.

The nomination form has to be returned to AfME so that the provisions of the following clause can be enacted.

Clause 44 of the new Articles states :-

“Not less than twenty one clear days before the date appointed for holding a general meeting notice shall be given to all who are entitled to receive notice of the meeting of any person who is recommended by the Board of Trustees for appointment or reappointment as a Board of Trustees member at the meeting or in respect of whom notice has been duly given to the Charity of the intention to propose such person at the meeting for appointment or reappointment as a Board of Trustees member. The notice shall give the particulars of that person which would, on appointment or reappointment, be required to be included in the Charity’s register of Board of Trustees members.”

What this means is that AfME must inform all members that is members of the charity who has been nominated to stand for election to the Board so that members of the charity can vote on who they want to represent them on the Board.

Therefore members of the charity Action for ME have the right to attend General Meetings and AfME are legally required to provide members of the charity with the agenda and associated documentation for the meeting, at which members of the charity AfME can speak, and vote on policy matters and elect a Board of Trustees.

5              The status of the AfME meeting scheduled for the 25th of September

There are only two kinds of meetings that are defined in AfME’s new Articles, Board of Trustees Meetings, and General Meetings. AfME cannot constitutionally hold a style or type of meeting that is not either one of these two alternative as to do so is to act in an unconstitutional and therefore illegal way.

AfME’s meeting of the 25th of September has been billed by AfME as a “Public Meeting” and it is to be presided over by AfME’s CEO and not the Chair of the Board of Trustees. AfME have sent out publicity for this meeting on the basis that it is open to all AfME members. Therefore it is not a closed meeting of the Board of Trustees.

This means that logically under the provisions of AfME’s new Articles of Association there can be only one other type of meeting that AfME can hold, a General Meeting.

Given AfME’s history of denying AfME members a voice, a vote and the ability to elect a Board of Trustees, it is my view that AfME have sought to prevent AfME members from raising legitimate concerns, policy issues and grievances about the unconstitutional and undemocratic way in which AfME is run which members are fully legally entitled to do at General Meetings by unconstitutionally and illegally redesigning a General Meeting as a non-General Meeting.

6              Conclusions

In conclusion AfME’s claim that members of the charity Action for ME are not able to attend General Meetings, or to speak or to vote, or to elect a Board of Trustees because members of the charity are not members of the company Action for ME is untrue, false, illogical and has been used as an illegal instrument to deny AfME’s members the legal and democratic rights that we are entitled to.
Action for ME says it wants to become more democratic and accountable in AfME’s latest edition of InterAction, AfME’s in-house magazine If so, does AfME really intend to change, and are they ready to change, or is this a cynical Public relations exercise designed to stave off justifiable criticism that they are undemocratic, unrepresentative, uncaring, and non-transparent and only represent the views of the very select self-appointed Board of Trustees who patronising make decisions behind closed doors that they presume must be applicable to their members without the consultation or participation of their membership?

AfME’s new watch words which constitute their new values were meant to be “empathy” and “courage” for ME suffers and carers, but as far as I can see there is precious little empathy involved in AfME’s relations with its members, therefore does AfME possess the courage to leave the undemocratic , unconstitutional and illegal wilderness it has cast itself into by refusing AfME members their legal rights under company and charity law to have a voice and a vote on policy matters, and to elect a democratically accountable Board of Trustees?

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