The Institute at Council

Cllr Roger Lloyd might yet turn out to be the hero of the hour so far as Lytham Institute is concerned.

Fylde's Finance and Democracy Committee was set to vote to change the Institute's purposes and its governance arrangements last Monday.

But in a groundbreaking move - after his polite request for the matter to be debated by the full Council was turned down - he has used the Council's procedure rules to force a Special Meeting of the full Council to debate his concerns.

Together with ten assenting colleagues, he also called for the Finance and Democracy meeting to be prevented from taking the decision it had been recommended to take.

Now both matters will come to a head at a Special Council meeting on 9 March 2020.

This is the first time that a Special Council has been called since the Council returned to using the Committee System in 2015. We also think it is the first time the 'Referral'  procedure has been used as well.

This article has the background, the analysis, and the story up to date.

SYNOPSIS
The Introduction gives a brief recap of the background leading to the last week or so.

Next, we herald something of a  'Bombshell Report' about the Institute that was due for debate at Fylde's Finance and Democracy Committee.

We look at Why it was on the agenda of Finance and Democracy Committee and not the Tourism and Leisure Committee which deals with such matters.

We follow that to Explain about trusts and trustee status, with more information about an important correction  we made to our last article.

Then we look at How the Finance and Democracy Committee was being advised to consult on the proposals for change, before looking at the details of What the proposed changes were and what they might mean.

We look first at Fylde's Proposals to Change the Purposes of the Institute, then at their Proposals to change its Governance Arrangements to set out how the Trust would be administered in the future.

We look at the present governance arrangement where Fylde Council is the sole Trustee, before introducing Various types of Charity Structure and some traditional compositions to Produce a board of Trustees, before setting out  the Particular Matters of Governance that will need to be addressed and decided. Then we reach our own view, and we're not impressed with Fylde's plans.

Next we report some Questions and Answers at the most recent Council meeting, where Cllr Lloyd requested a separate Council meeting to discuss his concerns, and Cllr Mrs Buckley sidestepped his question.

Her refusal Produced something of  a Reaction, because Cllr Lloyd and his colleagues used Fylde's procedures to force a Special Meeting of the Council to address the four specific concerns he had outlined. He also successfully prevented the Finance and Democracy Committee from taking a decision when it met the following week.

Next, we report What happened at that Finance and Democracy meeting where (unusually in our view) the whole item was referred to full council to consider and determine.

Finally, we look at What Happens Next? now that Cllr Lloyd's Special Council Meeting is scheduled to debate both the four matters he is concerned about and the matter referred to it by the Finance and Democracy Committee.

The Special Council on 9th March could be an interesting meeting, and we imagine there might be a bigger public gallery than usual.

 INTRODUCTION

On 10 January 2020 we published 'Lytham Institute Update' covering the period from July 2019 to January 2020. It detailed a lot of what had taken place about Lytham Institute during that time.

But if you pause for a moment, and helicopter up for a wider view, it's difficult to avoid the impression shared by many, that this matter has been, and is still being, shamefully handled by Fylde Council.

For years there has been no promotion of the services and facilities that are available for hire at the Institute by the Council.

• There is no officer to promote and increase the use of the Institute.
• There is no budget for promotion.
• There isn't even a leaflet explaining how to hire it and what the charges are for heaven's sake.

So if any potential new user wants to hire it (and we know of someone just in the last month or so who did want to hire it) they face a labyrinthine trail of questions just to find out who they need to ask about it.

And even if they are determined, and they get that far, for a Council that's self-evidently keen to rid itself of the building, readers will be able to imagine the enthusiasm with which they are likely to be greeted.

It's also difficult to avoid forming the view that the arrangements which resulted in Lytham Library moving to the Assembly Rooms were orchestrated or at least unofficially supported behind the scenes by Fylde's senior officers and the Conservative ruling group members who wanted rid of the Institute and the services it was created to provide.

We provided the details that support this view in the 'Hidden Agenda' section of 'The Friends Advance'

We've searched Fylde's agenda and minutes archive in depth, and been able to find no resolution of a committee or council that the Institute has ever been declared (as the Chief Executive has written) "surplus to service delivery requirements"

Requests under the Freedom of Information Act for minutes of meetings that were held with the County Council were met with blank statements that no minutes of these meetings were taken.

Yes really!

It's now clear that, from their acts, omissions, and utterances, Fylde's Conservatives and senior officers saw the removal of the Library from the Institute, into the willing arms of Lytham Town Trust, as being the essential precursor to declaring the Institute effectively redundant - which they hoped would justify its disposal.

The Lytham Town Trust were in need of a new income stream because hirers of the Assembly Rooms had dramatically declined. As we said in 'Friends Re-United' in June 2019 when we looked at Lytham Town Trust.

'We're told that in 2016, community use of the Assembly Rooms had reduced to only around 30% of its former use. (and even then, that 30%, included hires by commercial undertakings for things like sales and fairs - which were retailing and not 'community use').'

So, as far as disposal-minded Fylde was concerned, moving the Library out of the Institute solved two 'problems'.

It removed a large part of the income (£22,000 pa) paid by LCC (as the library authority) that went toward the Institute's upkeep and, at the same time, it reduced the services the Institute provided, making it's disposal more easy to argue, both in terms of service delivery and in terms of cost.

But for Lytham Town Trust, it must have been a financial lifeline guaranteeing them an income of around £20,000 a year.

No-one would have known this better than Cllr Tim Ashton. He wore the hats of being a County Councillor and a Fylde Borough Councillor.

He was also the man who largely put together the 'Business Case' on behalf of those campaigning for the Library to remain in the Institute - a case that was subsequently 'beaten' by the unexpected 'Business Case' submitted by Lytham Town Trust - on whose board Cllr Ashton also served as a Director.

In March 2019, trying to speed things along, Cllr Ashton told Fylde Council.

"....As a council we can no longer hide behind the LCC 'user rights agreement' where we're waiting for the County Council to withdraw that user right.

We all know, and we have to accept, that the new library service will go ahead in the Assembly Rooms..."

As if it were needed, his statement here provides yet further confirmation of Fylde trying to hide its real intention to rid itself not only of the Library in the Institute, but of the Institute itself.

But as we all now know, any plan to sell off the Institute for re-development was stymied when the LSA Civic Society secured an expert Barrister's opinion that Fylde did not own the Institute as their corporate property to be disposed of at will, they held it under charitable trusts for the people of Lytham and surrounding areas, and this restricted what they may do with it.

Fylde was 'dragged kicking and screaming' into having to accept the fact that it was (and always had been) a charitable trust, and they were required to register that charitable use with the Charity Commission, and to operate within the Commission's requirements.

So for the time being, Fylde became the sole Trustee of the Institute, operating within the original Trust instrument of 1917.

But behind closed doors there were still moves being made at Fylde that were to the further detriment of the Lytham Institute Trust.

In one instance, instead of putting decisions before the Councillors, officers allowed their colleagues to use what they claimed to be 'delegated powers' to take decisions about income and spending by the Trust. These moves worsened the Institute's financial position for the current year by around £30,000.

We are entirely convinced the power we were told that the Council relied on to execute these delegations was improperly applied - and we would not be surprised if the execution of these supposed 'delegated powers' was employed to prevent elected councillors from knowing what was taking place until it had been completed by officers, and was a fait accompli. (As indeed happened).

We challenged Fylde about the use of these delegated powers when knowledge of them became public at the time, and are still in the process of trying to resolve that matter.

In another development, we've also heard that in recent times, the Friends Group has begun following two strands of activity, one is to remain with its existing role as a campaigning and monitoring organisation keeping watch on the administrative process by which the Council (as Trustee) might want to change the purposes of the Institute that are set out in the 1917 trust deed, and what might become a new or updated set of purposes and a new Governing Document for the Institute in future.

The Friend's other strand is to explore what options there might be for the Friends to have a greater say in the future management and operation of the Institute.

 THE 'BOMBSHELL' REPORT

In our last article we noted Fylde was at a crossroads on the Institute and we said:

'Unless they change their mind about the building (and the purposes for which it was established) being surplus to their requirements, we think we're heading for further conflict over the building.

If they don't change tack, and they maintain their claim that it is no longer required, then the most likely course of action we can see is the Council will try to dispose of the Institute to another charity."

Just over a week or so ago, an agenda for a Finance and Democracy Committee was published. It had a report about Lytham Institute as its last item.

As we'll now explain, it caused something of a stir amongst those who have been campaigning for the Institute.

Readers can follow this link to download a full copy of the report that was to have been debated by the Finance and Democracy Committee, but we have provided some highlights below.

 Why Finance and Democracy Committee Anyway?

The first surprise was that this was on F&D's agenda at all.

Fylde's Tourism and Leisure Committee holds responsibility for cultural, recreational and community development pursuits in Fylde, and it was that same Tourism and Leisure Committee who just approved the 2020/2021 Fees and Charges for people wanting to hire the Institute.

So it must be seen as a property and services they are responsible for, and, indeed, we'd have expected Tourism and Leisure Committee to be dealing with it, not the Finance and Democracy Committee.

Readers can follow this link to download a copy of the Tourism and Leisure Committee's Terms of Reference to see why we say this.

But the attempted justification for sending the report to Finance and Democracy Committee that is set out in the report itself (the mere existence of which implicitly admits it to be an unusual move) says:

'This report is brought before the Finance & Democracy Committee which has the remit of managing land and property not specifically held for the purposes of another committee, or which is surplus to operational requirement. As the substantive interest in this property now falls within this definition the report is made to this committee to act as the Trustee to progress the proposal, consultation and approval of the required schemes.'

So either it is now being argued that the Institute is no longer considered to be held for the purposes set out in the Tourism and Leisure Committee's Terms of Reference. (We find this difficult to believe since the most recent Tourism and Leisure Committee meeting approved the fees and charges for the Institute that are to be used for the year April 2020 to March 2021).

Or, someone thinks the Institute is surplus to Fylde's operational requirements.

This is the more likely logic being used here, because - as the report effectively says, the substantive interest in the property means that it is surplus to Fylde's operational requirement.

Translated out of Fylde's doublespeak, what's really being said, is that because the County Council Library occupied 41% of the institute's floor area, and LCC more recently introduced a Computer Training Suite which increased their use to 61% of the building, then after LCC withdrew from the Institute the *majority* of the building is no longer doing what it used to do, so the whole building is no longer required by Fylde and is surplus to Fylde's requirements.

This is entirely false logic (we'd like to use a stronger word beginning with 'b' and ending in 'ollocks' but we'd probably better not).

It fails to take account of the fact that the charitable objects that govern the Trust's scope which (as Fylde's report says) are:

“to maintain the said premises and the buildings now or hereafter erected thereon for public use under the provisions of the Public Libraries Acts 1892-1901 and the Museums and Gymnasiums Act 1891 or any acts re-enacting or amending the said acts or any of them”.

The purposes of the Public Libraries Acts were the provision of “public libraries, public museums, schools for science, art galleries and schools for art”.

The purposes of the Museums and Gymnasiums Act 1891 were the provision of “museums for the reception of local antiquities or other objects of interest” and gymnasiums."

And, despite the County Council's lending library having moved elsewhere in Lytham, these cultural, recreational and community services are currently still being delivered to the people of Lytham and surrounding areas from the Institute (by hirers of the building), to our knowledge, they include

• Occasional public meetings (several of which we have attended and reported at the invitation of the Friends of Lytham Institute),
• Regular and well attended dog training classes (Tuesday Thursday, and Fridays)
• Youngsters martial arts classes (Weds 4:30-8:30 and Sats 9am-Noon)
• Music appreciation classes, ((Thurs 2-4pm for 30 weeks a year)
• Yoga teaching (Mon 6-9pm, and occasional one off events)
• And perhaps most especially, the incredibly important archive of local history operated by volunteers from the Lytham Heritage Group. This archive is open to the public every Wednesday and meets the test of being a really valuable reference library and a public museum.
• The Lytham St Anne's Civic Society also use a room on the first floor to store local historic records, documents, and artefacts, (another use within the 'museum' categorisation)

These uses are consistent with the requirements of the document that currently governs the trust, and there is something on almost every day.

So we cannot see how the Council can reasonably claim that the property from which all these important services are provided - services that are all set out as being the remit of the Tourism and Leisure Committee is "surplus to Fylde's operational requirements"

Nor can we see how it can possibly be the case that the Tourism and Leisure Committee should not be dealing with this matter.

 Trust and Trustee Status

In our last article we said:

"Fylde really must get used to the idea that the Trust and the Council are separate legal entities with their own separate governance requirements."

This was not wholly correct, and we apologise to any readers who might have been misled by it.

As soon as we were advised, we added a correction to our previous article and said we would explain more in a future article - which we now do.

Many people connected with this matter (including ourselves) had believed that when a Council was a Trust, each of the individual councillors was a Trustee responsible for taking decisions on behalf of the Trust.

From a clarification provided to us by the Council, (for which we were grateful) it became clear that this is only technically correct where a charity has the status of being Incorporated or is a Charitable Company.

We suspect the popular misconception arises because many existing charities do hold this Incorporated or Charitable Company status, and are therefore separate legal entities. We introduced and explained the status differences in our article 'Friends Re-United' of June 2019.

But Fylde does not yet hold either status for Lytham Institute Trust, so the position at present is that the Lytham Institute Trust is not, as we had said, 'a separate legal entity' from the Council. It is the Council itself that is the Trustee, and at present, individual councillors are not individual trustees.

Some might think this is a rather academic argument anyway (because the Council's decisions can only be taken by individual councillors voting collectively as the Council), but the distinction is important in other regards, and we are pleased to be able to clarify and correct our previous statement where it was incorrect.

 Consulting on Possible Changes

The report to Finance and Democracy said that Fylde had drafted its own idea of what the new purpose and objects of the Institute should be.

It also rapidly glosses over the sort of changes it wants to make to how the Trust is administered. (We'll get to both those aspects in a minute).

It also says Fylde intends to "conduct a suitable consultation exercise before proceeding with the scheme application. "

As a short aside at this point, we do have to say we dislike the use of the term 'consultation exercise' because the 'exercise' bit implies what's being done is an exercise that has to be gone through before you dismiss what respondents have said and go ahead with what you were going to do anyway.

Maybe that's what's in Fylde's mind, but what's needed is a proper, serious consultation, not an exercise.

Fylde's report went on to say how they would consult people. They planned to consult

• Current occupants of the Institute (direct engagement)

We suspect this means the Lytham heritage Group and the LSA Civic Society (who have exclusive use of rooms within the building and are thus 'occupants')

• Current customers using the Hewitt Lecture Room (direct engagement)

It's not clear to us whether Fylde believes its 'customers' are the people who have hired other rooms within the building for meetings, events or activities, (such as the Friends Group who hold their members meetings there) or whether they mean the 'end users' who attend the functions for which the building is used (for example, the individual 'Friends', or people attending the classes, and those attending public meetings).

• Interested local community groups and organisations (direct engagement)

We'd like to think this means local organisations such as clubs, associations and so on who might want to use the building for some purpose, but we can't help wondering if the 'interested' bit is intended to mean groups that might have an interest in taking the Institute off Fylde's hands - if that can be achieved.

• The general public (online representations).

This at least is pretty clear, albeit that the Trust is intended to cater for beneficiaries in Lytham and the surrounding area, not the people living in, say, Australia.

Although it's not clarified exactly how this would be undertaken, 'direct engagement' might, at one end, mean Fylde will meet with consultees and discuss the proposals with them, and at the other end it might mean ringing or emailing them and asking them if they have any comments to make.

But in our view, this proposed 'consultation exercise' is altogether premature anyway.

That's because unknown officers at Fylde have drafted some very high level (and in some parts difficult to follow) proposed new purposes for the Institute, and some vague possible ideas for new Governance arrangements of the trust (more on these later).

But what we think is missing, is that before The Council arrives at it's preferred decision about what the future purposes and governance arrangements should be for Lytham Institute Trust, they need to CONSULT ON THE OPTIONS that COULD become Fylde's preferred decision.

We argue it is the beneficiaries of the trust - the people for whom the trust exists (and to whom the trustees are responsible) - who should have the various options and possibilities explained to them (not just a single one) and, having considered those options, they should be able to express their view and influence what Fylde will choose as its preferred option.

From what we can see, the Charity Commission has a similar idea. They call this process making a 'Scheme' and their guidance on approaching the making a new scheme begins

• "We will only make a Scheme to amend a charity's governing document where there is no other option available to the trustees to make the required changes; and
• the Scheme will make only those changes that cannot be made in any other way

So those must be the first matters that councillors need to be informed about and consider.

The Commission's more detailed guidance on consultation for a scheme begins....

"B4.2 THE TRUSTEES' CONSULTATION

Before we make a decision as to whether a Scheme should be made, we will usually expect the trustees to have carried out a genuine and appropriate consultation exercise to take into account the views of the charity's stakeholders about the proposals, and properly inform their own decision as to whether a Scheme is required.

[That's our highlighting above].

Our policy is that consultation should be carried out in all but exceptional cases. Although it is not a legal requirement, it is part of our usual Scheme making process and helps to ensure that the trustees have properly established the case for making the changes in the interests of the charity and for showing that the criteria have been met before we commit staff time and resources to proceeding.

Only where the changes are so minor, or the particular circumstances of the case are such that consultation is clearly unnecessary, we will consider a Scheme application without any consultation having taken place."

So there are a few points to note here.

To date, Fylde has not consulted anyone on this matter.

Fylde's report to the Finance and Democracy Committee has jumped straight into saying what changes it wants to see to the trust.

The Charity Commission says the Council should first have carried out a genuine consultation to see if there is support for the idea of having a new scheme.

Apart from getting a potentially better result in the first instance, the Commission clearly doesn't want to spend it's time considering a new scheme if it's not necessary, and not what local people want.

That is also confirmed in the Guidance that says

"We require the trustees to give full details of the consultation carried out and any responses to it, including an explanation of how this informed their decision-making and details of any potential opposition to the scheme or controversy about it.

Where opposition or controversy is identified, we will expect to see details of any steps taken by the trustees to address this where possible.

We will take this information into account when deciding whether a Scheme should be made.

This information might also be useful in determining if the Scheme could be contentious meaning that giving public notice of our intention to make a Scheme is necessary (see B10.5)."

We don't think Fylde has understood these requirements properly, not least because they have not consulted anyone prior to producing their preferred options for a new Scheme.

Fylde's approach to this in the Finance and Democracy Committee agenda was not a balanced report of the pros and cons of various alternatives, it was a sales-pitch for a new scheme its officers had come up with without consulting local people.

It didn't even give the Councillors (who collectively ARE the Trust) the options and possibilities to consider. And it certainly has not consulted the people in Lytham and surrounding areas for whom the Council is (or should be!) holding the Institute in trust.

That last statement from the Commission says it all really

"Only where the changes are so minor, or the particular circumstances of the case are such that consultation is clearly unnecessary, we will consider a Scheme application without any consultation having taken place."

The changes proposed by Fylde's officers are not 'minor' and that's why we say the Finance and Democracy report was premature.

The Commission's Guidance about consultation goes on to say:

"It is for the trustees to decide what form the consultation should take and this will vary depending on the changes being proposed.

As there is no legal requirement to carry out a consultation exercise, we do not prescribe any particular format for the consultation.

However, by way of illustration, where the changes are relatively minor, for example an uncontroversial change of name or a straightforward extension of the beneficiary class of an almshouse, the trustees would need to carry out a very basic level of consultation.

Where the proposed changes are more significant, for example the change of use of a charity's property, we would expect the consultation to be more vigorous including some (or all) of the following:

• publication of proposals on appropriate websites and in local media (which should clearly explain what is involved)
• open days and exhibitions
• public meetings (open and accessible to the general public)
• meetings with staff and volunteers and any beneficiaries who would be directly affected by the proposals, such as the residents of almshouses, church members or users of the village hall
• meetings (or focus groups) with user and other interest groups
• meetings (or focus groups) with people who have particular needs, such as people with disabilities and people from minority ethnic groups
• questionnaire based surveys (postal or face to face)
• local parish referenda
• formal written consultation exercises

However the consultation is carried out, it should be clear that this is being carried out on behalf of the charity. For instance, where a Local Authority is trustee of a recreation ground, it would not be sufficient for the Local Authority to present the results of a consultation it carried out in its role of Local Authority rather than as trustee of the charity."

Those examples are much more like the sort of consultation that needs to be undertaken, not the altogether useless plan Fylde has - to open an online consultation on the Council's (as opposed to the Trust's) website and expect people to find it - and then, (if their other online consultations are anything to go by) to complete a constraining questionnaire offering only limited choices as options.

Fylde just loves that sort of questionnaire because it can structure it to more or less get the outcome that it wants by tailoring the questions and restricting the answers that people can give to a, b, c, or d or whatever.

The crucial parts of a successful and meaningful consultation require that those being consulted understand the background to the matter on which they are being consulted, and what options are available for them to consider.

They also need to be able to ask questions, to discuss the options to their full understanding, and to receive feedback that helps inform their decision.

In our view this leads toward a consultation process that is an interactive (and ideally, face to face approach), with time for the consultee to reflect before submitting consultation responses.

It's just the sort of process you would have seen in an old style Fylde Committee Meeting where Councillors would have been presented with a comprehensive and balanced report (rather than a sales pitch), where the committee members can debate the issues and options, before arriving at a recommendation to send to a meeting of the full council.

The inbuilt delay of a week or two before a Council meeting took place provided important time for reflection and consideration, and indeed, for public opinion to make its view known to Councillors.

But in this case, it is the people in Lytham and surrounding areas that need the comprehensive and balanced report, and the opportunity to debate and clarify the issues and options before responding to the Council's invitation to comment.

We have no confidence or faith in the process that Fylde's officers were recommending the Finance and Democracy Committee to adopt.

 But What About the Proposed Changes Themselves?

If anything, we think they are even worse.

It is simply not good enough that a single set of proposals were (once again) being presented as though they are a fait accompli for the Councillors to agree.

The process to making a new Scheme actually has two parts.

One part looks at why and what the Trust should be able to undertake, (what its purpose or objects and its powers should be), and the second part looks at the mechanics of how the Trust should be administered (How many trustees, how meetings are called, voting arrangements, arrangements for removal and recruitment of trustees, and that sort of thing).

We'll look at what Fylde's officers proposed for each of these in turn.

 Changes to Purpose and Objects

The report to Finance and Democracy Committee said what officers had proposed as the new purposes had been drafted 'based on the Charity Commission example for community centres'.

Two points to note here. Firstly it is 'based on' an 'example for a community centre'.

So it's neither the actual example, nor do we know whether a community centre is the most appropriate, or closest possible way to, update to the objects set out in the present Trust instrument.

We imagine there are other 'examples' that could be cited which reflect original purposes better, but no such examples have been provided as alternative comparators.

For another comparator, we looked at the wording Fylde had agreed with the Charity Commission when Lowther Gardens Trust went through exactly the same process in 2011 as the Institute is about to go through now. Those words for Lowther said:

"To promote for the benefit of the inhabitants of Lytham and the surrounding area the provision of facilities for recreation or other leisure time occupation of individuals who have need of such facilities by reason of their youth, age, infirmity or disablement, financial hardship or social and economic circumstances or for the public at large in the interests of social welfare and with the object of improving the condition of life of the said inhabitants. "

However, based on the 'Community Centre' example officers recommended to the Finance and Democracy Committee that the Institute's future purposes should be:

Paragraph 1

"To further or benefit the residents of Lytham and the neighbourhood, without distinction of sex, sexual orientation, race or of political, religious or other opinions by providing facilities in the interests of social welfare for learning, recreation and leisure time occupation, including cultural and art exhibitions, with the objective of improving the conditions of life for the residents."

Comparing the two statements above highlights some differences.

We've no great problem with what is included for the Institute although we rather like the opening of the Lowther one and it's more active expression 'To Promote...'

We might also have preferred it to say: '...by providing facilities for social welfare, learning, ....' rather than its present 'by providing facilities in the interests of social welfare for learning....'  (allowing for social welfare itself to be part of the purpose).

What we don't see in it is the specific inclusion of the archive, museum and science aspects that were so important in the original.

But most especially, we don't see any mention of the Trust being able to operate a library - which was one of its principal foundations.

Whilst we recognise that the much smaller modern lending library now located in the 'Assembly Rooms' is said to meet the needs of a community the size of Lytham, there is very limited scope at that location for a computer training suite as was part of the former service in the Lytham Institute, nor indeed is there decent space for public access to online services and family history research computers.

It is not beyond the range of possibilities that the present public access archives run by Lytham Heritage Group could form the basis of a community-run Reference Library focusing on local and family history, or even if it were needed, a community-run lending library like the one that operates in Warton.

So we think it is really important that there should also be some specific mention of the Trust being able to operate a library.

As a final point, Fylde's officer's drafting of their own 'purposes', don't seem to have given much consideration to, or at least we don't see that much use has been made of,  the desires expressed by local people for the future of their Institute as set out in the Friends of Lytham Institute's 'Possible Future Uses' report.

To us, some notable non-references in Fylde's draft purposes are the capacity to provide for

• an integral 'coffee shop' of some sort.
• social and medical information and help
• public services such as the Registrar
• Work related skills and training facilities

and we're sure there are more on the 'Friends' list that should be considered within the umbrella of wording that will constrain what the Trust may and may not undertake.

Whatever the final wording, the real point here is that there should be debate about what the options and possibilities are.

Paragraph 2 says

"In furtherance of these objects but not otherwise, the trustees shall have power to maintain or manage or co-operate with any statutory authority in the maintenance and management of the Lytham Institute building or other appropriate premises for activities promoted by the charity in furtherance of the above objects."

We're quite concerned about this paragraph, not least because we don't fully understand just what it means, nor what its implications might be.

It almost seems to us to be teeing-up the Institute for another group or person to become the trustee.

It also suggests to us that Fylde has some future arrangement(s) in mind that it has not yet disclosed.

The part that says "....or other appropriate premises for activities promoted by the charity in furtherance of the above objects" could well be a 'rearguard action' lurking in the recesses of Fylde's mind to transfer the services currently provided from the Institute to 'other appropriate premises' (perhaps even such as the Assembly Rooms), as a precursor to disposal once again.

That might not be what it means either, but without it being made more clear, uncertainty will prevail.

So we think this paragraph needs a lot more explaining and debate before it goes any further..

 Changes to Governance Arrangements

This part of the officer recommendations is even more vague than the 'objects and purposes' part. The officer recommendation for this matter actually says:

"That the administrative parts of the scheme should include the ability for the council to appoint additional trustees; and if it does, the scheme should provide the normal administrative provisions for trust meetings, appointment and removal of trustees, as well as a provision as to how the council is to be represented at trust meetings if further trustees were appointed"

We have absolutely no faith in this as a way forward.

It is not a draft or preferred governance arrangement, it is only an outline statement of principle. And there is far too little detail.

What it really says is 'We need a new Governance arrangement and we'll decide what we want, so you don't need worry your pretty little head about it'

Yeah right! (as one of our readers would respond).

But before we get into the Governance arrangements themselves, we think there needs to be a decision taken about broad-brush structure of the Trust.

 Councils as Sole Trustees

At present Fylde Council is the sole trustee, and the Charity Commission are not keen on that because, as they say:

• "...local authorities often fail to appreciate that they are not free to deal with the property of a charity in the same way as they can deal with their corporate property held for statutory purposes. This can result in property being treated in a way which is inconsistent with the charitable trusts. For instance, where the property in question is a recreation ground, a lease may be granted on preferential terms to a (non-charitable) sports club;
• conflicts often arise between the interests of the local authorities and their council tax and rate payers on the one hand, and those of charities and their beneficiaries on the other hand (Party political interests may even play a part in decisions made);
• local authorities sometimes give the administration of charities less attention than would bodies of individual trustees constituted solely for the purpose of administering them. Much of the day-to-day administration of the charity may be delegated to a committee, or even to officers in the exercise of their Local Government Act powers; and
• in the event of local government reorganisation, a successor authority might not appreciate that property transferred to it from a predecessor authority is held on trust for charitable purposes, with the result that it mistakenly treats it as part of its corporate property."

Readers will note that last bullet point is exactly what happened to Lytham Institute (until the Civic Society stepped in).

So something other than the present governance arrangements will be what both FBC and the Charity Commission will want to achieve.

 Alternative Charity Corporate Structures

This is not an area of our expertise, but we understand there are four main types of charity structure:

• Charitable incorporated organisation
• Charitable company (limited by guarantee)
• Unincorporated association
• Trust

Which one is right for any particular charity's circumstances depends on whether it should have a corporate structure or whether it should have a wider membership.

Readers wanting more details of this can follow this link to the Charity Commission's own guidance on this matter of alternative overarching corporate structures.

 Traditional Board Compositions

That said - and separate from the corporate structure of the Trust - a decision will need to be made about the classes of people from which trustees should be drawn. And in our researches on this we came across what we thought was a simple and useful guide on this matter. It said:

"Governance models can be very helpful for trustees in understanding their responsibilities and the pros and cons of different governance arrangements.

Some models of governance focus on the membership or composition of the board. Three traditional models exist:

• Where trustees are recruited for their status, influence, contacts or public standing.
• Where trustees are recruited for their specialist skills or knowledge.
• Where trustees are recruited because they are representative of those with a stake or interest in the charity’s work.

In the first model, the charity will benefit from committed and influential people to fundraise and raise its profile.

In the second model, the charity will benefit from individuals who are highly skilled in relevant areas; and

in the third, the board is likely to be in tune with the needs of the charity’s beneficiaries.

In reality, an effective trustee board should draw on elements of all three of the models. An effective board should be able to draw on a range of skills, knowledge, qualities, attributes and backgrounds to be effective."

To us, that points toward a governance model where trustee representation is required to be drawn from at least those three areas, and for us it would be something like a quarter each from the Council, Expert professionals, Hirers and occupants of the Institute, and the beneficiaries for whom the trust exists.

That (or something like it) sounds like a really good idea to us.

 The Rules of Engagement

Once the Corporate Structure and Board Composition have been established, the actual governance arrangements needs to be set, and decisions need to be taken that address at least the following....

Readers will see the issues above are fundamental and crucial to the operation of the Trust, and we believe all of them should be explained to and debated by councillors, advised by balanced officer reports that inform councillors of all the options available, and the implications that might flow from them, in meetings that are (at least) open to the public to attend and hear.

We don't think the lily-livered platitudes of the Finance and Democracy Committee report went anywhere near setting out what is required to be considered.

It was Fylde's 'mushroom management' system in operation (Keep them in the dark and feed them a load of....)

To us it looked as though, once again, Fylde was trying to 'appear to be discussing the matter' when in reality they were leaving everything to be decided behind closed doors where scrutiny of the available options (rather than preferences that were already decided) could not arise.

 QUESTIONS AND ANSWERS AT THE LAST COUNCIL

It looked to us as though this same thought had occurred to others as well, because there was a Fylde Council meeting on the same day that the agenda for the Finance and Democracy Committee was published on Fylde's website.

And on the Council Meeting agenda, Cllr Brian Gill and Cllr Roger Lloyd had submitted questions to be answered. They were posed at the meeting of the full Council on 10th February.

Cllr Gill sought reassurance that better quality buildings would grace Lytham in future, and he asked why some of the £400,000 in the Lytham regeneration fund was not being allocated to bring the Institute back to its former glory; counteracting what he said was a distinct lack of investment by the council over recent years.

Cllr Lloyd's question addressed the matter of transparency and public trust, and he asked for delegated decisions to be temporarily removed from officers in respect of Lytham Institute, and for a separate council meeting to decide how the council should proceed with the Institute in its new charitable role.

We're going to look at his question in more detail in a moment, but suffice to say here that Cllr Karen Buckley answered him.

Cllr Mrs Buckley answers....

Reading from a pre-prepared script, she first side-tracked his question with an unnecessary and overtly party political rant about it being Labour at the County Council who had closed the Library at Lytham Institute and the Conservatives who had reopened a new library in the Lytham Assembly Rooms. She then went on to say:

"...I agree with him about the importance of decision making being open and transparent, and yet I don't share the sentiment behind his question which suggests that decisions relating to the Institute will not meet this standard."

[It struck us as interesting that her phrasing referred to future decisions, not past decisions, ("will not" rather than "have not") - but maybe it was just a slip of the tongue]  She continued....

"The joint Charity Commission and Local Government Association Guidance entitled 'Councillors' guide to a council's role as charity trustee' states:

"Where a local authority is a trustee of a charity, it is the corporate body, acting in accordance with its usual procedures which is the trustee. Whilst ongoing management can be delegated to officers, responsibility for decision making and oversight rests with councillors".

Further, in accordance with the Charity Commission's Operational Guidance at OG56 B1, Paragraph 4.1 states:

"It is up to the Local Authority to decide, within the scope of Local Government law, what structures should be used to reach decisions in its name as trustee. An alternative to requiring all the decisions to be reached by the full body of councillors, for example, is to set up a separate committee to discharge its responsibilities as trustee."

A report on the Institute was brought to Finance and Democracy Committee on 22 July last year, and a decision was made to register the Lytham Institute as a charitable trust, and then seek immediate advice and discussion with the Charity Commission on the governance and future management of the trust, and open discussion with community groups and interested stakeholders, to determine the most effective use of the Institute to fulfil the required objectives of the trust."

[Readers might like to note the cunning way she has sought to transmogrify the Commission's example of setting up a specific committee to discharge the responsibilities of the Trust (for example, by forming a Committee of councillors  called the Lytham Institute Committee),  with her own idea of dumping it into the lap of the existing Finance and Democracy Committee because she thinks it is surplus to service delivery requirements.]  She continued......

"Following the implementation of the first of those decisions, a further report was published last week for the next Finance and Democracy meeting on 17th February, that has outlined the process for updating the purpose of the trust, and making an administrative scheme.

Councillors will make a decision on consideration of that report.

Cllr Lloyd can be reassured that the Council is acting in its role as a trustee in demonstrating that it will follow the guidance from the charity commission, and will make decisions through its usual procedures by councillors.

Thank you Mr Mayor."

The Mayor then asked if Cllr Lloyd has a supplementary question to ask.

He said he thought his question asking for a separate meeting of the full council had not been answered, and he would like an answer. Cllr Buckley replied:

"I just refer to the answer that I've given. Its basic that the Committee that...., the report will go before the Committee of Finance and Democracy Committee. That is within the Charity Commission's guidance - for the decision to be made by full council or a committee using its usual procedures.

Usual procedures have been used in this case, and that the report will go to the next F and D which is next Monday. "

And with that she sat down.

We think Cllr Lloyd was being both respectful and politically generous is asking for a separate meeting of the full council.

We also think the reply from Princess Karen was evasive and disingenuous.

 'BOMBSHELL' REACTION

The out-of-hand dismissal of Cllr Lloyd's request for a separate Council meeting was not altogether unexpected to seasoned council watchers like us, any more than his generosity in asking for it in that way was.

But the thing that was wrong, and the thing that Cllr Buckley did not address at all, was the fact that the matters he wanted debated by Council were not at all the matters set out on the agenda for the next Finance and Democracy Committee meeting.

To understand this, we need to examine the wording of what he asked.

His question had (as usual) been submitted in advance of the Council meeting and was published in the agenda under 'Members Questions.' It said:

“Lytham Institute has recently been registered as a charity, with Fylde Borough Council as the sole trustee.

There was widespread community concern in Lytham at the closure of the Library including as we all know a great deal of public mistrust at the apparent lack of openness and transparency at the time. We as councillors can help change that public perception.

This transparency is what local people expect and need. It would be helpful if we as councillors ensure that future decisions on the Institute will only be considered at council or committee level, similar I believe as to how the planning committee operates today.

So I ask the council in the spirit of this transparency that councillors should urgently consider introducing a process to temporarily suspend the delegation of decision making over the Institute to officers, at least until the process to conclude a new governance document is completed.

This would not prevent officers from preparing reports and giving advice to members. The temporary suspension would demonstrate the councils intention to deal openly with the Institute. It is this very openness and transparency that is needed to gain the support of the community again in Lytham.

Therefore I would ask that a separate meeting of the full council be held to determine how the council should proceed with the Institute in its new charitable role. Its role should include.

1. Gathering of the evidence needed to inform the Councils future debates regarding the Institute.
2. Considering and identifying the circumstances that make it necessary to alter the present purposes of the Institute
3. Ensuring that the council meet the criteria for making a scheme
4. Considering what similar purposes that the charity and property should have in the future.”

Those last four items are very specific matters.

He wanted more information to be provided and to have all the options and alternatives explained to councillors before they took a decision.

In essence, the difference is that Cllr Lloyd wants the Council to hear more information and options about the process to change the purpose and governance arrangements of the Trust, but Cllr Buckley's report intentionally skips over that. It assumes that the single proposal made by the Councils officers is the right one, and the Finance and Democracy Committee is expected to agree with it. (Readers can follow our earlier link to download a full copy of the F and D report and see for themselves.)

Her approach here is sadly typical of much that is wrong at Fylde today.

Like the Annual Budget, and the Corporate Plan (both of which are crucially important issues), it is true to say that the final approval is voted on by the full Council.

But they only hear the one option that has been prepared and debated behind closed doors. The options and alternatives that have been discussed elsewhere never see the light of day.

In effect, if the F&D meeting had gone ahead, there would have been no properly informed real debate.

Officers had not put forward any options or alternatives (to inform those from outside of the closed doors what they might do differently).

It would simply have been a 'Rubber stamp vote', and in doing so it would have denied the broad spectrum of knowledge and experience that councillors outside those who designed this one set of proposals might have contributed.

By now, readers will have noticed that we are speaking of the Finance and Democracy Committee in the past tense.

That's only partly because it has already taken place.

In fact, other moves were afoot to circumvent Princess Karen's unwillingness to hold a separate council meeting.

In what was a groundbreaking, first-ever move since Fylde changed back to a Committee System of working in 2015, Cllr Roger Lloyd exercised his right as a member of the Council to call for Special Meeting of the Council to debate the matters he had raised when he asked Cllr Mrs Buckley to hold one, and she did not agree to do so.

Supported by four or more assenting colleagues, and in accordance with the powers available under Fylde's Constitution, he submitted a formal request for a Special Council meeting to be held.

The relevant wording from Fylde's Constitution says:

"(b) If five or more members want to call a special meeting, they must give a written request for a special meeting to the Mayor. If the Mayor refuses to call a meeting or fails to call a meeting within seven days of the written request, the five members may call a special meeting themselves."

And not content with that, Cllr Lloyd secured the assent of nine or more other councillors to invoke what is known as the 'Referral' process. The specific wording for that says:

"(i) Referral should only be used where members of the council, after due deliberation, consider that it is in the interests of the inhabitants of the borough that a pending decision should be made at a meeting of the council rather than by a committee or sub-committee.

(ii) If, during the referral period, referral of a pending decision is requested by any ten members of the council then, notwithstanding anything in the scheme of delegation or elsewhere in the constitution, no committee or sub-committee may exercise any delegated authority to make that decision, but may instead make a recommendation to a meeting of the council."

The effect of invoking the referral process stopped Cllr Buckley's Finance and Democracy Committee from taking the decision it was being recommended to take by officers.

The most that could have happened is her Committee could have formulated a recommendation of its own to send for a meeting of the full Council to consider.

The steamroller had shuddered to a halt, (even if that halt might only be temporary).

 What Happened at Finance and Democracy Committee?

We had expected (as the 'Referral' wording above leads one to expect) that the Committee would have considered and debated the agenda item (at least as far as they could with the limited information available to them), and would have selected a form of words to *Refer* to the Council as their recommendation.

To us, the phrase 'but may instead make a recommendation to a meeting of the council' implies that this is what was supposed to happen.

So we were surprised when it did not happen. In fact Cllr Buckley told the meeting:

"....The final item on the agenda this evening is Lytham Institute.

Members will be aware that there's been a request, a referral request, on this item, to take this item to a Council meeting.

There's also been a separate request for a Special Council Meeting, all within the constitutional rules and requirements.

That meeting will be on the 9th of March. This item stands referred therefore to that meeting on the 9th of March.

Just so that it's clear, I will propose that.... I understand that's all been done in accordance with the...., as I say, with the rules and the Constitution, the Mayor has agreed that date, so I will propose from the chair that this item stands referred to the Council meeting on the 9th March, and if I can have a seconder?

Thank you Councillor Silverwood. Thank You.

Can I take the vote? All those in favour?.

Thank you, that's everybody. Thank you very much, that's the end of the meeting."

We don't think she was wholly correct to assume and say that the item (automatically) stands referred to Council (rather than have her committee make a recommendation to Council), and we're still cogitating on that - but such ruminations are really only for 'protocol anoraks' like us, so we won't labour it here.

We do accept she made an alternative proposition which was seconded and voted through, so we've no doubt about the decision itself, but we wonder why she did it this way.

The only thing we can come up with is that there might be something in the Finance and Democracy Report that she wants to change, and would find that impossible if her committee had recommended that Council approves it as it was.

Referring the whole report will permit the Council to debate it from scratch, and also to make amendments to it.

 WHAT HAPPENS NEXT?

So now, as readers will understand, we have a Special Council Meeting on 9th March that will see both matters on the agenda.

We imagine arguments are bouncing around amongst Fylde's protocol officers about whether the four matters Cllr Lloyd raised will appear on the agenda of the Special Council meeting BEFORE or AFTER the item that has been referred from Finance and Democracy Committee.

That's significant, because each of the two matters more or less emasculates the other.

If the first decision is that (say), more information needs to be provided before a decision can be taken, then the decisions that the Finance and Democracy Committee have referred to Council might have to be deferred because they cannot realistically and sensibly be seen to have been made with insufficient information.

Alternatively, if the Finance and Democracy referral is first on the agenda and resolved, then the decision will have been taken, so there would be little point asking for further and better particulars - assuming that's what Cllr Lloyd plans to do.

We hope and expect that Cllr Lloyd's issues will be taken first, not least because in the matter of queuing, their origin predates the Finance and Democracy meeting.

We also think that whether or not councillors feel they have sufficient information to come to a proper decision is a matter that plain logic dictates should be resolved before someone asks them to actually take that decision.

But as we've seen before in 'difficult' meetings (as this might become), all sorts of tactics can be brought into play.

A vote of the Conservative majority to change the order of business on the night could reverse whatever is on the published agenda anyway (so long as the Mayor - who will be chairing the meeting agrees).

Or, the so-called 'guillotine motions' could be deployed by a majority group to bring any debate prematurely to an end, (or even stop any debate taking place at all).

And it's not beyond the bounds of possibility that the majority party could invoke a suspension of the Council's Standing Orders (the rules of debate that govern proceedings within Council meetings) for some purpose.

Usually - as we have seen before - Fylde's majority Conservative group is not shy of doing this sort of thing when the needs arises.

But up to now it has done so with relative impunity, because few - if any - individuals holding different views would want to risk the expense of challenging the reasonableness or validity of such decisions via a Judicial Review.

But this time it's different.

Whilst these are still all possible tactics, we would have to question the wisdom of using any of them when the Charity Commission is actually overseeing how Fylde deals with this matter.

And we know the Commission is already aware of public disquiet about how Fylde has already dealt with the Institute.

We imagine (as seems likely from his question at the previous council meeting), Cllr Lloyd's arguments to Council on 9th March are going to be that councillors have not had enough information on which to base the decisions that the Finance and Democracy Committee wants them to take.

In that case, even if,  (and actually, especially if), whatever he asks the Council to consider is voted down by the Conservative block vote as usual, we don't think it will go down well with the Charity Commission either.

Given what they have already said about consultation, we can't imagine the Charity Commission will be excited to hear that a significant number of Fylde's councillors feel they have been denied enough information to make a proper decision on the objects, powers and governance that the majority political party intends to press the Charity Commission to agree.

So Council on 9th March has the potential to be an interesting meeting.

It's not yet clear how things will work out, but the last time we saw a clever strategic move like this was when former Councillor Charlie Duffy formally proposed that Fylde's Planning Committee be renamed the "Large Planning Application Rubber Stamping Committee" (Readers in need of a smile can follow this link to our earlier article and remind themselves about what happened at that meeting.)

But the meeting to be held on 9th March 2020 will certainly be important for the future of Lytham Institute, and because of that, we wouldn't be surprised to find quite a few of the Friends of Lytham Institute - who we've met previously at their public meetings - passing through the seaward entrance of the Town Hall just before 7 o'clock on 9th March to hear what's said in the meeting, and what each of their Councillors has to say about it.

There's a public gallery separate from the councillors, where anyone can sit and hear the debate.

Unfortunately people will have to come in person, because we've been told Fylde won't be able to video and webcast the Council meeting as they usually do (because apparently the staff that man Fylde's video equipment are sub-contracted from Blackpool Council, and Blackpool is having its big budget meeting on the same day so they can't come, and no one at Fylde Council knows how to work their own video camera).

Yes, really.

So, if any of our readers want to see groundbreaking democracy in action, or if they have an interest in what happens to Lytham Institute, we urge them to attend the Special meeting of Fylde Council on

7pm Monday 9th March at the Town Hall, St Annes

We hope to be there ourselves to report what happens.

POSTSCRIPT:
As we published this report, Fylde's Agenda for the 9th March Special Council meeting was not available. We expect it to be published on Monday  2nd or Tuesday 3rd of March. Readers wanting to see the agenda (and what we expect will be further information) can follow this link to Fylde's website page that should lead to the Agenda it when it is published.

Dated:  28 February 2020