“Two for the Price of One?”
An ‘In My View’ article by Nigel Ward
IN THE PUBLIC INTEREST
Readers may recall an article of mine in the ‘In My View’ series, entitled “Whitby Regatta – limited or not?”, in which I outlined my concerns regarding the present legal position of the town’s oldest and best-loved annual event.
Efforts made by the Finance & General Purposes (F&GP) Committee of Whitby Town (Parish) Council to elicit the truth underlying the extraordinary circumstances in which the time-honoured Whitby Regatta Committee appears to have been supplanted by Whitby Regatta Limited seem for the moment to have ground to a halt.
I now find myself able to shed a little more light
But let me first make clear that I am not, as has been suggested by the mischief-makers (read ‘cover-up merchants’), in any sense against the Regatta – quite the contrary; I am a keen supporter and I have made it my business to make a donation every year during my time as a resident of Whitby, and oft times in the past when I attended as a visitor.
The Whitby Gazette reported on the intentions of the F&GP to approach Whitby Regatta Limited (WRL) with a list of pertinent questions, including:
- Why is Whitby Regatta a company and not a charity?
- Who made the decision?
- What consultation took place with the former regatta committee?
- What involvement it will have with future regattas?
- Were the rowing club and other groups associated with event consulted?
The Gazette also published a statement from Whitby Regatta Limited (WRL), to my mind a deeply disingenuous statement, and I published my paragraph-by-paragraph response to that statement in the article mentioned above.
I now have a copy of the Whitby Regatta 2012 Program (price: £2.50), on the frontispiece of which appears the following announcement under the heading “Welcome to Whitby Regatta – http://www.whitbyregatta.co.uk/ ” (which is, of course, the website URL for the Whitby Regatta Committee (WRC) – not Whitby Regatta Limited (WRL), and signed off by ‘Jane Kenyon – President’, which is a misrepresentation. It should, of course be signed off as ‘Jane Kenyon – Director’, which is actually her true position.
Curiously, it also bears the Scarborough Borough Council logo.
It is an extraordinary statement. I feel it is very much in the public interest to reproduce it here, interpolating my own comments within square-brackets and in bold type, [thus]:
“May I on behalf of the Whitby Regatta Committee warmly welcome you all to the 172nd Whitby Regatta.”
“Whitby Regatta is the oldest Regatta on the Northeast coast and this jubilee year we celebrate the traditions of the Regatta and our community of Whitby. The Regatta has always been Whitby’s own community event and the Committee of volunteers endeavour each year to make the event different [Without the intervention of a newly-formed commercial Limited Company whose registered Objectives do not include running the Regatta] but always reflect the family fun, community spirit and the traditions of our ancient seaport.”
“We celebrate the traditions of the sport of rowing, welcome our armed forces with both static displays and demonstrations and are privileged to have the fantastic red arrows with us Sunday 19th of August. Always assured of a warm Whitby welcome the red arrows delight in their display across the sea. As much as we all delight and admire them this year we are mindful of the tragedy that beset them last year with the sad loss of one of their team just after visiting Whitby. Whitby Regatta is funded by sponsorship, community support and a great deal of goodwill. We charge no gate entry – but we do ask you to give as generously as you can when our collectors pass by with their collecting tins [This solicitation of donations is fine for a Charity, but without a Solicitation Statement it is illegal for a Limited Company – the problem is that neither WRC nor WRL is a Charity]. We live in difficult financial times – and the effect of these times is felt by the regatta just like every family, business and service. This year we have funded the visit of the Red Arrows from the regatta savings account [Are there two separate accounts – one for Whitby Regatta Committee and one for Whitby Regatta Limited?] but if we are to continue our long relationship with them we are going to have to attract a sponsor or sponsors prepared to help us financially to do so. Like all of us, we can only use savings once and they have carefully been acquired over years by the committee to protect the event in difficult times [Does this mean that WRC’s ‘savings’ have now been acquired by WRL?].We believe that these are difficult times but we also want you to enjoy the best show we can provide.”
“Finally we would like to put on record our thanks to Scarborough Borough Council, North Yorkshire Police, County Highways, Ambulance and Fire Services, and our local business community without whose support and assistance we would not be able to continue to perpetuate our very special WHITBY REGATTA.”
“Finally, we wish you all a very happy weekend – have fun and the true spirit of Whitby Regatta ENJOY!”
President [Jeremy Holderness, Chief Executive and Monitoring Officer of the North Yorkshire Police Authority stated, in a legal document dated 5th July 2012, a Decision Notice confirming that Cllr Jane Kenyon is now a Director of Whitby Regatta Limited (as has Gill Wilkinson at SBC) – and no longer President of the Whitby Regatta Committee. Are we now to assume, therefore, that she has subsequently now resigned her Directorship in WRL and reverted to her status as President of the WRC? Probably not. But if so, why is that resignation not registered with Companies House? Is she, in fact, ‘riding two horses’ – one a non-existent ‘Charity’ and the other a commercial Limited Company? Or is she now caught in another lie – both to the Monitoring Officer and to the general public?]
What does it matter? Surely the Regatta will take place – as it has for the past 171 years – and no harm has been done?
Well; it does matter – in a number of important ways:
- Which of the two legal entities – the WRC or WRL – is legally responsible in the event of an accident resulting in a claim on any Public (and ‘Employee’) Liability Insurance? (Not mush use for the WRC to have cover if WRL is legally liable – or vice versa).
- Which of the two legal entities is legally liable in respect of unlawful solicitation of donations? (A Limited Company requires a Solicitation Statement, which WRL appears not to hold). It is noteworthy that nowhere in the 100 pages of the Whitby Regatta 2012 Program is there any mention of Whitby Regatta Limited or the alleged change of status from the WRC to the WRL. As far as public perception is concerned, the Regatta is presently conducting ‘business as usual’ – though nothing could be further from the truth.
- Does the WRC retain its title in the name, logo and assets (eg: the trophies), or have these been somehow ‘annexed’ by WRL?
- If, as Councillor Kenyon’s “Welcome to Whitby Regatta” message asserts, Councillor Jane Kenyon is still the President of the WRC, what does NYPA Monitoring Officer Jeremy Holderness intend to do about it, since she has clearly misled him, judging by his statement “Hence, whilst the legal status of this organization has changed, the circumstances of councillor Kenyon’s relationship with it have not?”. Or are we intended to accept that Councillor Kenyon, as Chair of the NYPA, may lie to her Monitoring Officer with impunity? This would appear to be the case, since Jeremy Holderness has stated that “Councillor Kenyon has been reminded of her obligation to bring to my attention any matter which requires an amendment to the Declaration of Interests.” Has she already forgotten that obligation?
- The opening sentence of WRL’s statement to the Whitby Gazette reads: “In 2011, following advice taken from a local solicitor and Company[sic] House, a committee decision was made to apply for the Whitby Regatta to become a ‘Company Limited by Guarantee.” I have underlined the word “become” because it signifies quite clearly that the author of the statement shares Jeremy Holderness’s view that the WRC no longer exists – though Councillor Kenyon clearly states otherwise – “The Regatta has always been Whitby’s own community event and the Committee of volunteers endeavour each year to make the event different . . .” (I have underlined “has always been” to make clear the distinction between that position and “become” in the previous citation – one speaks of the past, the other of the present and the distinction between the two). Someone is telling ‘porkies’. Guess who!
- According to Councillor Kenyon’s current entries in her various Registers of Interests, she is NOT the President of the Whitby Regatta Committee (WRC) – she is a Director of Whitby Regatta Limited (WRL). Are the Monitoring Officers unconcerned by the fact that the “Welcome” message gives the lie to her Declarations? Under the terms of Localism Act 2011, failure to properly declare an interest is a Criminal Offence that Councillor Kenyon has already committed at least once in respect of the Regatta – a fact confirmed by both SBC’s Gill Wilkinson and NYPA’s Jeremy Holderness. Is Councillor Kenyon accountable under the law or not? I think we should be told.
The August Full Council Meeting of Whitby Town (Parish) Council has passed without reference to the F&GP Committee’s request to WRL for clarification, and the F&GP Committee itself is not scheduled to meet again until after the Regatta. My information is that WRL has sent a letter to the Council, stating only that it is giving consideration to the F&GP’s questions and will respond in the fullness of time.
Meanwhile, a very long-serving Regatta volunteer informs me that the membership (largely made up of members of the Whitby Friendship Amateur Rowing Club and the Whitby Fishermans Rowing Club) are gravely concerned and have sought legal advice on many of the following points:
- On what authority did the founding directors register Whitby Regatta Ltd (WRL)? One would have expected this to have been a resolution properly carried by the existing Whitby Regatta Committee (WRC) in full public (or at the very least) full membership session, at which WRC disbanded, passing its functions, assets (and liabilities, if any) to the new Limited Company. Yet according to Councillor Kenyon, WRC continues to exist in tandem with WRL and largely unaware of the ramifications of what has transpired.
- What is the purpose of the WRL, given that the Objects as defined in the Articles of Association are commercial, not charitable, and make no reference to the running of the Regatta?
- What function does WRL fulfill, given that the running of the Regatta continues as in years past? Why was WRL created in the first place, given that its existence benefits neither the Regatta (as a discreet event), nor its membership, one iota?
- With whom rests the responsibility to obtain adequate licences, permits etc, and to secure adequate Public & Employee Liability Insurance – and has these been satisfactorily achieved?
- What is the legal position in respect of soliciting donations?
- Will it be the WRC invoices or the WRL invoices that are acceptable for accountancy purposes?
- To whose account will the revenue of the forty-five pages of advertising in the Program be credited?
- Who authorised the transfer of the name and logo of Whitby Regatta from the people of Whitby as represented by their Regatta Committee, to a commercial company that has commercial objectives, can pay its Directors salaries and has in fact no declared objectives in respect of the actual running of the Whitby Regatta?
- Who now holds the legal ownership of the trophies?
- Who now holds the legal ownership of the Bank accounts – in which, we are assure by Councillor Kenyon – the accumulated profits (ie savings) of the Regatta are deposited?
- Why has WRL not offer a transparent overview of its affairs by publishing accounts, given that it has been in existence for well over a year?
How can it be asserted (as it is in Councillor Kenyon’s “Welcome” message), that the existence of this commercial Company protects the Regatta organisers, when it is made clear in her own words that the Regatta is still being run by the Whitby Regatta Committee in its traditional unincorporated form, and that it is the members of the Committee who bear the full burden of responsibility for any debts (even unto the point of bankruptcy) – though the principal assets – the “Whitby Regatta” name and logo, and the trophies – have apparently been annexed by WRL?
Councillor Kenyon is bound by her Oath of Acceptance of Office (as a Councillor at both NYCC and SBC) to uphold the principles of transparency and accountability in accordance with the Constitutions of those authorities and in accordance with the Code of Conduct, infractions of which are a criminal matter.
In the public interest, I now call upon Councillor Kenyon for full clarification.