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No 5 Chambers preliminary opinion on the removal of President Elect as a Trustee of the Landscape Institute

  No 5 Chambers   30 September 2022

  1. I am instructed in this matter to provide a preliminary view, or ‘sense check’ as described in my instructions (described as a ‘briefing note’), regarding the removal of Brodie McAllister (“BMcA”) as elected President of the Landscape Institute (“the LI”). In particular, I am asked “are we right that the removal of an elected President appears to be based on a disproportionate censor, and overreaction to internal communications”?

  2. I have been provided with substantial papers which include a report and appendices (numbered 1 – 7) (“the Advisory Council Report”) and various constitutional documents which I shall refer to as necessary throughout this Preliminary Opinion. Perhaps a little unusually, at this stage I am not instructed to undertake a full and detailed analysis of the Advisory Council Report and its findings. I am simply asked to review the relevant documents and express my preliminary view in answer to the aforementioned question which may or may not lead to instructions to undertake a much more detailed review of the report and the background materials.

  3. I should also note at this point that whilst I have been provided with a significant amount of paperwork, it is by no means a complete suite of all that would be needed in order to definitively interrogate the correctness of the decision made in this case. What is largely missing are the minutes of meetings

    at which decisions have been taken by the Advisory Council (and possibly the Board of Trustees). Those are records that one would wish to see before drawing any definitive conclusions as to the correctness, or otherwise, of the process by which the decision to remove BMcA as a trustee (and prevent him taking up his Presidency) has been made. I understand also, for example, that the Board of Trustees commissioned their own advice which has not been disclosed.

  4. And further, I suspect there may be other documents that ought to be reviewed for completeness. By way of example only, Appendix 5 to the Advisory Council Report purports to be a “Report from IT Consultant regarding the Teams name” and that document says it contains the responses provided by Jonathan Krause to questions asked by the Committee. However, it does not appear to be a document authored by Jonathan Krause and the answers recited stray beyond the questions in some cases which suggests that they are not answers that are likely, in fact, to have been provided to the questions asked. For example, in answer to the question “Is it possible to run several names from a single lap top or would an individual have different names set up on different devices”? The second part of the answer recorded says “if you use the Teams App on your computer and join the meeting via a link you opened in your internet browser, you can join the meeting twice. When this is done, there will be feedback sounds audible to all meeting participants”. That is not an answer to the question posed although it is clearly material to the substance of the whistleblowing complaint. It begs the very serious question whether that answer was in response to the question recorded (or some other question not reproduced) or an addition to the answer provided but not a comment made by Jonathan Krause (yet attributed to him). At the very least one would want to see the actual communications between Jonathan Krause and the COI.

  5. I also have concerns regarding the ‘Statement of Issues’ which in my view strays well beyond the boundaries of what one would normally expect to see in such a document. I would expect there to be the identification of an issue

    and a simple question whether, if proved, that would constitute a breach of any description and then a question what consequences should flow from such a breach (if established). The Statement of Issues provided almost sets up the ‘case against’ BMcA and reads more like a statement of case which one would see in litigation where one party puts forward their stance (ie it looks like a form of apparent predetermination rather than an objective approach to issues that have yet to be investigated).

  6. Putting such issues aside for now, however, and stepping back a little, it is important at this juncture to consider the basis upon which the authors of the Advisory Council’s Report were appointed to undertake the necessary inquiry and the scope of any inquiry that it was tasked with pursuing. For that purpose I shall review briefly the constitution of the LI and relevant rules, policies and guidance that provide for the creation of a committee (in this case the Committee of Inquiry (“COI”)) and consider the scope of the inquiry it was permitted or authorised to undertake.

  7. The LI is a registered charity (registered charity no 1073396), so registered on 20 January 1999, and a Royal Charter Company (company registration no RC000767), the Royal Charter having been granted on 26 June 1997. Paragraph 5(1) of the Royal Charter recites the objects and purposes for which the LI was constituted and those objects mirror the charitable objects of the LI as registered with the Charity Commission. The Royal Charter makes reference to By-laws but those rules are not the only rules that govern the conduct of the LI’s business. There is a Code of Conduct which sets out a series of rules and guidance as to how those rules should be complied with. There are Regulations and a number of specific policies. Hierarchically, the By-laws are the superior rules.

  8. The issue at the heart of the Advisory Council Report was the conduct of BMcA and what consequences, in the event of there having been a breach or breaches of the LI’s governing rules, should flow from the same. Section 10 of the By- laws makes provision for professional conduct and discipline. It makes specific

    reference to the Code of Practice and the need for members of the LI to comply with the provisions of the Code of Practice and it also makes provision for disciplinary orders in the event of breach.

  9. There is, at first glance, a difference, or disparity, in rigour between the disciplinary procedures laid down by the By-laws and the Regulations (if indeed the Regulations could be accurately said to contain any ‘disciplinary procedures’). Section 10.6 of the By-laws says there shall be an Adjudication Pool from which appointees may be selected to form part of various Panels (Investigation & Screening, Disciplinary, Fitness to Practice or Appeal). Section

    10.7 states that the Board (defined as the Board of Trustees of the Institute) shall issue regulations laying down the powers, constitution and procedures governing the aforementioned Pool and Panels. It is clear that the By-laws envisage a panel to specifically investigate and screen issues arising in relation to the conduct of Institute Members which will, if appropriate, then refer matters to the Disciplinary Panel (or Fitness to Practice Panel). That suggests a two-stage process by persons that have been specifically appointed to the Adjudication Pool and then the relevant Panels. There is then provision for an Appeal Panel which adjudicates appeals from decisions of the Disciplinary Panel (or Fitness to Practice Panel). One would ordinarily expect an Appeal Panel to be differently constituted to the Panels whose decisions are being appealed (indeed one would expect each of the Panels in a single process to be differently constituted).

  10. The Regulations do make provision for the Powers of the Council to Remove a Trustee (Regulation 21), which itself is arguably a form of ‘disciplinary’ process, but the process by which that action can be taken does not reflect the rigorous and structured provisions of the By-laws referred to above. Moreover, BMcA was not just a trustee, but a member of the LI to whom the disciplinary processes of the By-laws apply. Indeed, prior to the creation of the COI for the purposes of determining whether BMcA should be removed as a trustee, he had been subject to an earlier investigation by the Investigation and Screening Panel (the first stage of the three-stage disciplinary process referred to above)

    and exonerated by that Panel (albeit certain issues regarding that process were resurrected in the course of the COI’s investigations).

  11. On the face of it, Regulation 21 allows for the removal of a trustee (a very serious step) following a process which is nowhere near as rigorous or clearly structured as the disciplinary procedures contained in the By-laws (no tiers of investigation and no genuine right of appeal) and it is not particularly clear why one would resort to Regulation 21 before the subject (especially where they are a member of the LI as well as a trustee) has been through the process set out in the By-laws and those findings being fed into the Regulation 21 process.

  12. The Advisory Council Report states that the COI was convened to investigate the concerns raised by a whistle blower (para 2.1 of the Advisory Council Report). That concern related to a Microsoft Teams meeting and the use of a form of identification by one of the attendees. The scope of the investigation undertaken by the COI strays well beyond that issue and it is questionable by what authority the COI investigated matters that were presumably not put before the members who voted to convene a COI for the purposes of investigating the whistle blower’s complaint.

  13. It is also questionable whether the Whistleblowing Policy envisages any complaint thereunder being subject to ‘investigation’ under Regulation 21. Paragraph 3.5 specifically states that “if misconduct is discovered as a result of any investigation under this procedure our disciplinary procedure will be used, in addition to any appropriate external measures”. The disciplinary procedure is, in my view, that which is set out in section 10 of the By-laws. That process has clearly not been followed.

  14. I also note that a trustee has been involved in the process that has concluded with the Advisory Council Report, recommending the removal of BMcA as a trustee. Jane Clarke, the Independent Trustee for Whistleblowing, has acted as secretary according to the Advisory Council Report but that has extended to

    “liaising with solicitors on legal matters” which on the face of it risks straying beyond mere secretarial assistance and the full extent of her participation ought to be better explained. Regulation 21 only provides for a committee of Members of Council to investigate and I do not believe that Jane Clarke is such a member.

  15. The Advisory Council Report also contains substantial appendices, the content of which strays well beyond the scope of the purpose for which the COI was established. It is difficult to see how much of that material could have been relevant to what ought to have been a fairly narrow inquiry if restricted to the whistle blower’s complaint (which, for the reasons I have noted above, ought, in my view, to have been subject to the disciplinary process contained in the By-laws in any event). There is also very poor (if not largely absent) cross referencing to those appendices documents and the significance that is said to attach to each of them.

  16. Finally, I note that the Regulations were changed apparently one day after the meeting at which the conclusion of the decision making process to remove BMcA as trustee was held (or arguably one day after any right to have further representations considered expired). The letter dated 1 June 2022 states that a resolution had been passed to remove BMcA on 31 May 2022 (the date of the actual decision) and that there would be a further meeting on 27 June 2022 at which, presumably, the resolution was confirmed as having been passed (absent any challenge from BMcA). On 28 June 2022 two significant additions were made to the Regulations in the guise of Regulation 14.9 and 21.5. They were absent from the previous version of the Regulations (dated 12 October 2016) and were therefore not in effect at the date of the meeting of 27 June 2022 (or of course the earlier date of the resolution being passed). This point ought to be further investigated both as to the process by which the Regulations were amended, presumably to prevent BMcA from taking up his post as President of the LI, and to interrogate whether such a Regulation has retrospective effect and why (because if it does not, then it would not have prevented BMcA from taking up his post).

  17. Further, the letter dated 1 June states that “in the event you are removed as a trustee you will automatically cease to be a member of council by virtue of By-law 23”. By-law does not state that in clear terms. By-law 23 concerns the cessation of a person’s tenure as Member of Council or Trustee. What the letter of 1 June 2022 contends for is presumably related to the end of By-law 23.2 which provides that a Trustee “… who resigns as Trustee shall not be deemed to have resigned from the Council, unless they also expressly resign from their position as a member of the Council or is otherwise disqualified” (my emphasis). On 27 June 2022 when BMcA was removed as trustee (and inevitably when the 1 June letter was penned) there was no obvious provision in the Regulations that automatically disqualified him from being a Member of the Council upon his removal as a trustee. The amendment on 28 June 2022 presumably sought to deal with that omission.

    Next Steps

  18. As will be evident from the foregoing, whilst at this juncture I was not asked to undertake a detailed analysis but rather provide a ‘sense check’, a number of serious questions arise do out of the documents I have seen (and possibly more would arise upon a more detailed consideration of the same together with documents not yet disclosed). I understand those instructing me are already considering ways in which this matter might be ‘moved forward’ and from my discussion with Merrick Denton-Thompson I am aware that the numerical threshold of members that are capable of triggering an EGM has been met. However, for the reasons I discussed with him, I do not really see how holding an EGM will actually provide resolution (ie an outcome that will resolve the perceived unfairness that has manifested itself following the Advisory Council’s Report and the reinstatement of BMcA as President).

  19. In the face of a determined Board of Trustees and Advisory Council that are unlikely to willingly deviate from their positions, I suspect that dialogue with either will prove unfruitful because any satisfactory conclusion will require

    them to ‘row back’ very significantly from their position and will give rise to serious questions as to the credibility of those that have participated in this process. That is, of course, unless they can be persuaded that they have taken a wrong turn and not acted in accordance with the constitutional documents of the LI.

  20. Ultimately, litigation is the only sure way to achieve resolution (one way or another). At this juncture it would be very difficult for me to recommend that course when there is likely to be a significant amount of documentation that I have not seen (although the issues I have raised above could very well be enough to call the process seriously into question). Litigation is also a very expensive process and the potential costs consequences might serve as a substantial deterrent.

  21. However, that does not mean that the matter should be allowed to lie when there are serious questions to be answered. At this stage I would recommend writing to the LI (Board and Advisory Council) asking for disclosure of the documents not seen but relevant to the determination against BMcA, raising the questions of process, asking for an explanation as to how By-law 23 can be interpreted as precluding BMcA from taking up his post as President (presumably reliance will be placed upon the ‘new Regulations’), and asking about the process involved (and supporting documentation) in amending the Regulations (on 28 June 2022) and why those amendments are said to operate retrospectively. It might be said that the letter is written against a background of having taken legal advice which has identified serious concerns about the process and, thus, the conduct of the individuals concerned in the same.

    Conclusion

  22. I hope that this Preliminary Opinion provides the ‘sense check’ required, even if not a direct answer to the specific question posed as recited above, and an overview of issues to which answers are required. If I can be of any further assistance those instructing me should not hesitate to contact me.

ROWENA MEAGER   No 5 Chambers   30 September 2022