Independent Investigation Report - Elfyn Llwyd LLB - October 2024

IN THE MATTER OF YESCYMRU CYF

A COMPANY LIMITED BY GUARANTEE

INCORPORATED ON 4TH APRIL 2022

COMPANY NUMBER 12426443

INDEPENDENT INVESTIGATION BY

Right Honourable ELFYN LLWYD, LLB

(see APPENDIX ONE FOR CV)

REMIT

Remit for YesCymru Independent Investigation

Over the last six months there has been a breakdown in trust within the National Governing Body between Directors and externally by elements of YesCymru membership in the role of the National Governing Body actions but also concern by some members of the Board in actions taken by other Directors and by ordinary members outside of the NGB. To start the process of rebuilding trust and confidence within the organisation it has been decided to launch an independent investigation into the decision-making process of the Board and actions taken by Directors and potentially ordinary members.

Independent Review

The catalyst for the current breakdown can be summarised in three areas,

1. Process
2. Decision Making
3. Professional conduct

Whilst a wide-ranging review of all decisions taken over the past six months is welcome in terms of openness, it is important for the NGB and YesCymru members that all areas of concern are thoroughly examined, which will benefit from a more forensic approach.

In addition to the wide range review, the independent investigation officer will be instructed to examine, report and where appropriate make recommendations on the following specific matters.

Process and Decision Making

1. The decision and process adopted to appoint Co-opted Directors to the National Governing Body of YesCymru and subsequent discharge of Co-opted Directors on the 8^th December 2023
2. The decision and process adopted by the NGB to appoint and eventual termination of the CEO’s contract on the 18^th December 2023
3. The allegations levelled against the Chair of YesCymru that he sought legal advice from YesCymru's retained Solicitors, during the period where the Co-opted Directors were dismissed and CEO position was terminated, without apparent authorisation which could potentially be regarded as in breach of Company Law
4. The process to announce on the 10^th December an Extraordinary General Meeting and the subsequent cancellation of that meeting by the NGB
5. The decision and process undertaken by the then Complaints Officer of YesCymru to investigate a complaint against 7 Directors of YesCymru including the setting up of an investigation/disciplinary panel and resulting temporary suspension of the said 7 Directors
6. The decision and process of the NGB to suspend the Complaints Officer from his post and to disband the investigation/disciplinary panel
7. The decision and process of the NGB to declare the candidacy of one member to become a Director as invalid in the elections to the National Governing Body
8. The appropriateness of the chair of the NGB’s involvement in the nominations process and alleged breach of Bylaw 2.1.

Professional Conduct

1. To ascertain whether there were any:
   • a) breaches of duties
   • b) breaches of the Nolan principles
   • c) breach of confidentiality agreements
   • d) breach of bylaws and / or AoA
   • e) breaches of the law, specifically Companies Act 2006 by any current or ex- Director / Co-opted Director, employee or YesCymru member and if such breaches have occurred, for recommendations to be given as to a course of action.

Formal Complaints

1. To review any formal complaint in place received by YesCymru against individuals and to recommend a course of action to deal with these complaints.

Documents to be made available to the Independent Investigator

1. YesCymru Articles of Association and Bylaws.
2. Minutes of NGB Meetings.
3. Any related documents stored by YesCymru on its Google Drive.
4. Any correspondence internally or externally that is relevant to this investigation.
5. Any recordings of meetings.
6. Any financial documents.

This is not an exhaustive list and the investigator would have the authority within reason without breaking GDPR to request further documentation that is felt necessary for the completion of the investigation.

Confidentiality

Confidentiality Agreements specific to this report must be signed by the independent investigator, members of the Council of Deputies and National Governing Board Members who have access to the reports.

Time Scales

An Interim Report to be submitted to the NGB and CoD within 12 weeks with progress reports at 4 and 8 weeks. The Final Report to include reference to any systemic failures and include recommendations to improve the managerial and operational effectiveness of YesCymru.

Publication

Subject to any potential criminal, civil legal or disciplinary processes the full review report and associated recommendations must be made available to all members as soon as is practicable after submission of the final report to the NGB and COD.

FOREWORD

I was appointed as the Independent Investigator in March 2024 in accordance with the Remit. My appointment was sanctioned by the National Governing Body or Board of YesCymru.

Over several months, I was given a very substantial body of information by the facilitator who set about providing me with Minutes of NGB Meetings, e-mails from members, both ordinary members and Directors sitting on the National Governing Body (NGB), screenshots of text conversations, reports, financial information, legal documentation, letters to and from solicitors and all relevant paperwork.

I have been tasked with the following specific areas of research or investigation:

To review the Process and Decision making of YesCymru with particular regard to the following:

1. The decision and process adopted to appoint Co-opted Directors to the NGB of YesCymru and subsequent discharge of Co-opted Directors on 8^th December,
2. The decision and process adopted by the NGB to appoint and eventually terminate the Chief Executive Officer's contract on 18^th December, 2023.
3. The allegations levelled against the Chair of YesCymru that he sought legal advice from YesCymru retained Solicitors Messrs Geldards, during the period when the two Co-opted Directors were dismissed and the Chief Executive Officer's position was terminated, without authorisation which could potentially be regarded as in breach of Company Law.
4. The process surrounding the calling of an Extraordinary General Meeting on 10^th December 2023 and the subsequent cancellation of that meeting by the NGB.
5. The decision and process undertaken by the then Complaints Officer of YesCymru to investigate a complaint against 7 Directors of YesCymru including setting up of an investigation / disciplinary panel and resulting temporary suspension of the said 7
6. The decision and process of the NGB to suspend the Complaints Officer from his post and to disband the investigation / disciplinary panel.
7. The decision and process of the NGB to declare the candidacy of one member to become a Director as invalid in the elections to the NGB.
8. The appropriateness of the chair of the NGB's involvement in the nominations process and the alleged breach of Bylaw 2.1.

Professional Conduct

1. To ascertain whether there were any:
   • a) breaches of duties
   • b) breaches of the Nolan principles
   • c) breach of confidentiality agreements
   • d) breach of Bylaws and / or Articles of Association
   • e) breaches of the law, specifically Companies Act i by any current or ex Director / Co-opted Director, employee or YesCymru member and if such breaches are found to consider recommendations as to a necessary course of action.

Formal Complaints

1. To review any formal complaint in place received by YesCymru against individuals and to recommend a course of action to deal with these complaints.

I shall now address the specific requests in the Remit under which I was appointed.

REQUEST (1)

The decision and process adopted to appoint Co-opted Directors to the National Governing Body of YesCymru and subsequent discharge of Co-opted Directors on 8th December, 2023

The procedure for co-opting Directors to the NGB is covered by Article 13.4 of the Articles of Association (please see Appendix Two). It reads:

The NGB may at any time co-opt any individual who is qualified to be appointed as a Director to fill a vacancy in their number, but such Co-opted Directors hold office only until the next election of elected members or until removed by the NGB (whichever is the earlier). Such a co-option may be made after the NGB has invited the relevant Regional Council (within the Senedd Region in which a vacancy has arisen) to nominate a person for appointment as a Co-opted Director.

Following this clear process Cinzia Yates was co-opted to the Board on 31^st July, 2023. Similarly, Simon Hobson was co-opted to the Board on 4^th September, 2023.

I have detailed below at my response to Request (2) the conduct of both Co-opted Members, in particular their conduct during several NGB meetings from September 2023 and I shall not, therefore, re-rehearse them here. Suffice it to say that several witnesses have described their conduct as harassing and “persistently raising points of order” which were allegedly showing that the NGB was operating outside the Company Law legislation. The net result, as I detail below is a period of stasis in the NGB which meant that the Board was unable to take decisions on its affairs for the Autumn of 2023 until Christmas of that year.

In the detailed consideration of the behaviour exhibited during this time frame I considered the following extracts from the Company's Code of Conduct which all Directors including Co-opted Directors have signed up to:

BYELAW 3

"DIRECTORS' CODE OF CONDUCT

1. Each Director shall, in exercising their functions as Director, act in the best interest of the Company; and in particular…

c) Seek, in good faith, to ensure that the Company acts in a manner which is in accordance with the Objects,

d) Act with care and diligence which is reasonable to expect of a person who is managing the affairs of another person.

f)  In circumstances giving rise to the possibility of a conflict of interest between the Company and any other party, Directors shall put the interests of the Company before that of any other party, in taking decision as a member of the NGB, and

g) Where any other duty prevents him / her from so doing, disclose conflicting interests to the Company, and refrain from participating in any discussions or decisions, involving any other members of the NGB with regard to the matter in question.

2. All members of the NGB shall indicate their agreement to abide by and sign this Code of Conduct upon election to the They shall also indicate their agreement to abide by the Company's Social Media Policy and its Privacy Policy."

Considering the paralysis that overtook the Company at this period, the dire and urgent need to address the finances, the behaviour of the Co-opted Members, the contents of the above, I can see clearly why a majority of the Board took the view that the Co-opted Members should no longer be members of the NGB. It can be argued that the Board would have been in dereliction of their duty to put the interests of the Company first and foremost had they not had to take such drastic action. Doing nothing was not an option and I remind myself of the fact that the monies accrued, although fast diminishing, was contributed by members of YesCymru.

On 8^th December, 2023 a meeting of the NGB was held, as one witness told me:

“Although Nerys and Adissa had resigned, Phyl and Naomi were now supportive and so we returned a majority in support of action to save the Company. However, due to the difficulties in getting any compromise with the remaining four, or getting anything discussed in meetings, it was decided to remove two of the Co-opted Directors so we could make the necessary decisions and not be paralysed by constant filibustering. Removing them during a vote at an NGB meeting faced the same issues so it was decided to pass a resolution to the same effect.”

This witness also told me:

“...They were knowingly using bogus legal arguments to waste time... and safeguard the job of their friend as CEO. They were risking the existence of YesCymru as a result and the perception of the wider independence movement.”

The resolution was passed and the two Co-opted Directors were discharged on 8^th December, 2023.

One of the discharged Co-opted Directors then telephoned Darwin Gray, Solicitors, Cardiff a firm that had advised YesCymru to insist that they didn't engage with the Chair Barry Parkin as they said that he was not the Chair because of the procedures adopted. This was, of course, bogus.

Geldards, the retained Solicitors of YesCymru were also approached by them with the same message that they should not engage with the Chair as he was unauthorised. This caused a Solicitor from Geldards to e-mail the Chair for an explanation. Again, a bogus point, but this time the intervention cost YesCymru £320.

On 8^th January, 2024 the said Cinzia Yates wrote to YesCymru complaining that she had been treated unfairly and that the procedure adopted was in breach of the Companies Act 2006. In particular, she quoted breaches of the following:

Section 168 Companies Act 2006

"Under S.168 a company may by ordinary resolution at a meeting remove a Director before the expiration of their period of office. The resolution must be proposed at a formal Shareholders' Meeting and cannot be passed as a written resolution."

Section 288 (2)

"The following may not be passed as a written resolution.

(a) A resolution under Section 168 removing a director before the expiration of his period of office.

For information S.288 (I) “In the Companies Acts a “written resolution” means a resolution of a private company proposed and passed in accordance with this Chapter."

Section 1121 (3)

Deals with the consequences of an Officer of a Company acting in default.

My analysis of this complaint, and these sections is as follows:

S.168 relates to a PUBLIC COMPANY. YesCymru is a PRIVATE COMPANY LIMITED BY GUARANTEE.

SS.288(1) and 288(2) do relate to a PRIVATE COMPANY BUT DO NOT RELATE TO A CO-OPTED DIRECTOR IN A PRIVATE COMPANY.

In any event, the Articles of Association of YesCymru state at Article 13.4 that ...such Co-opted Director holds office only until the next election of elected members or until REMOVED BY THE NGB (whichever is the earlier).

I have provided the capitals for clarity. This power of the NGB is unfettered.

S. 1121 (3) Deals with the consequences and liabilities of an officer acting in default.

I do not believe that the termination of the directorships is irregular and therefore no default occurred.

Shortly after, a letter of complaint was sent in by Simon Hobson quoting the same sections. My response is the same.

On 9^th December, 2023 David Hannington-Smith prepared a document setting out a case against the Chair Barry Parkin accusing the Chair of a host of irregularities which he alleged should lead to the NGB terminating his membership of YesCymru. This was a document which had considerable research behind it and was distributed to the following members of the NGB:

Naomi Hughes, Elfed Williams, Gaynor Jones, Geraint Thomas, Ethan Jones, Aled Jones all of whom were provided with this detailed document of nine pages of closely typed material on 11^th December, 2023 the date of the NGB meeting. The document culminated in a Motion for the disqualification of the Chair Barry Parkin on the basis that (a) his continued membership was or is likely to be harmful to the Company (b) that the person's membership is no longer in the best interests of the Company for whatever reason; or (c) the member concerned has acted in breach of any Bylaw, policy or procedure of the Company.

I was surprised to see that, for a person who professes to be a stickler for procedure no notice of this document had been given to the Chair as is required by Article 26.3 of the Articles of Association. Therefore, this procedure fell at the first hurdle, so to speak.

However, it went ahead in the absence of the Chair who was away in Germany at the time. It was put to the NGB and was voted down.

The document refers at length to the fact that the Chair requested legal advice from the retained Solicitors Messrs Geldards on matters that had arisen in the eight or so weeks previous and that no authority had been sought from the NGB for that expenditure. Amongst the matters upon which legal advice was sought were:

• Termination of the CEO's appointment
• Chairing of the meeting during votes for Chair and Vice Chair
• Voting rights of elected and co-opted directors
• NGB meetings in general
• Written resolutions
• Directors' right to nominate the Chair and
• One or two other matters.

In effect, the advice sought by the Chair was directly as a result of the constant barrage of pseudo-technical objections which paralysed the NGB and therefore YesCymru in the previous three months or so. None of the advice gave the Chair any personal benefit. All of the advice was to the benefit of YesCymru and to members. Under Future Relevant Information at bullet point two, it says that no application to Geldards should be made for legal advice without authorisation of the Board. But is that the point here – the Board was in a profound state of stasis and could not agree on anything at all, it seems.

The Chair had a binary choice – let the Company 'whither on the vine' or seek advice to move forward and in so doing ensure that the Company acted within the law. There is at least one precedent for this in the Company's recent history when the then Chair in 2022 did the same thing.

The Chair, it can be said was within the Section quoted by David Hannington-Smith S. 172 Companies Act 2006 "A Director has a duty to promote the success of the Company" within that, presumably, is a duty to prevent the Company becoming bankrupt! Also at that point in the document Mr Smith quotes "The act of asset misappropriation fraud will breach these duties because assets are being used to serve the individual not the Company". That quotation is entirely irrelevant to the case in hand.

Concluding that paragraph it quotes "You are in part responsible for the actions of other Directors if a loss is discovered because of the misappropriation of company assets, you could be ordered to contribute to make them up". Again, I submit that is irrelevant. I state again that there is nil personal gain to the Chair and considerable gain to the Company overall.

Under Conclusions there are a further two, if not more, misleading contentions that Barry Parkin, or the Chair withheld information about his seeking advice. Two or three witnesses told me that they knew beforehand that he was seeking advice to break the deadlock.

"Barry Parkin acted in his own personal interests while incurring to YesCymru. Evidenced by the topics he raised with Geldards shown in the invoice".

For the avoidance of doubt none of the topics raised with Geldards are in any shape or form personal, all without fail, relate to the good governance and best interests of the Company.

I am unconvinced that any merit attaches to this document. It contains generalities and unsubstantiated accusations and I consider that the NGB were right to vote down the Motion.

I conclude this part of stating that I find the process to appoint the Co-opted Directors to the National Governing Body of YesCymru and subsequent discharge of the Co-opted Directors on 8^th December to have been regular and intra vires.

REQUEST (2)

The decision and process adopted by the NGB to appoint and eventually terminate the CEO's contract on 18th December, 2023

After the election of the new NGB at the beginning of 2022 there was one administrative person in place. As one witness told me:

“It fell on the shoulders of the Directors to carry out much of the operational matters such as organising membership, social media, marches, events, etc. There was little time available to think strategically as all efforts were being directed at operational matters. The idea in appointing a CEO was to relieve some of that pressure on the Directors.”

At the time the organisation had a huge momentum behind it and a full-time executive to manage and increase the growth was an obvious choice. The main thrust of the job description was as follows:

"The Chief Executive Office is responsible for developing strategic plans and annual budgets for Board approval and providing effective leadership to support employees and members to achieve the goal of Welsh independence through non-partisan campaigning.

Duties and Responsibilities
This role is responsible for providing high quality leadership for YesCymru and will be hands-on in managing the day-to-day operations of the organisation. The role will develop and implement systems and processes that take the organisation to the next level and is expected to significantly influence the independence debate in Wales and Wales's constitutional future.

A key element of this role is effective communication, both internally with the Board, employees and members but also externally as an advocate for Welsh independence with a mandate to increase membership in both numbers and diversity. Networking with other pro-independence organisations and establishing and building relationships with individuals and organisations who have the knowledge, skills and influence to achieve that mission."

The job was advertised and Gwern Gwynfil and two other applicants attended for interview. The interview panel, along with the then NGB Director Christine Moore and former economics lecturer at Swansea University, Dr John Ball were impressed by Gwern Gwynfil. At interview, Gwern Gwynfil presented himself very well as a person who ran a successful business, had sound financial understanding and had interesting and realistic ideas regarding membership, putting forward his desire to see YesCymru become the biggest membership led political organisation in Wales with 20,000 members.

On any view this was very optimistic. Several witnesses told me that this was a huge task but the consensus among the witnesses was that “there is nothing wrong with ambition.”

By early 2023 there were concerns regarding the CEO's ability to follow directions set out by the NGB but as this was fairly early in the relationship he was given the benefit of the doubt.

A YesCymru Conference organised by the CEO in May 2023 in Aberystwyth was, by all accounts, poorly organised. The CEO took it upon himself to undertake virtually all of the arrangements and had spoken of spending £15k on various bands in a gig he was arranging. The NGB were very concerned at this expenditure and, in the event a smaller scale evening, but still lavish, was arranged at a cost of circa £6k. The CEO had confidently expected 200 – 300 members to attend the two day conference and the evening's events would be a money spinner for the organisation. Unfortunately, only 120 people attended with barely 20 - 30 people attending the evening's entertainment and as one witness said “this was very embarrassing as most of those attending the entertainment were Directors or volunteers, the event was shambolic and a loss maker. This was truly the start of Directors having serious concerns about Gwern Gwynfil's ability to carry out the role of CEO.”

This was soon followed by a poorly managed presence at the National Eisteddfod at Boduan with Director Geraint Thomas taking the lead in the end to ensure that YesCymru's presence on the Maes was a success. Prior to the Eisteddfod the CEO had been requested by the NGB to hire a double plot at the Maes to enable sufficient merchandise to be offered for sale. In the event, a single plot was booked which meant that there was insufficient room to display merchandise. Normally, the income from the sale of merchandise would defray all of the organisation's expenses in attending the Eisteddfod. This was another example of poor management.

Against this background, there were mounting concerns regarding the financial health of YesCymru. The CEO's salary was in excess of £55k with add on costs and the membership was decreasing. All organisations rely on increasing membership to fund activity and in YesCymru's case this was crucial.

By September 2023 Elfed Williams as Chair of the NGB held bi-weekly meetings with Nerys Jenkins the Vice Chair and the CEO to try and get the CEO focussed on strategic directions given by the NGB. Repeatedly, one of the main subjects discussed was membership and the apparent lack of any membership drive. During these meetings the prospect of a membership campaign in November was discussed.

Meantime on 5^th July, 2023 Aled Jones was Co-opted as a Director. He comes from a financial services background and has wide experience of the sector. Consequently, he was appointed to Chair the Finance Sub-Committee. The previous Finance Officer, Ethan Jones, a Director, provided no handover and Aled Jones took up his post without any detailed knowledge of the finances. He was, however, warned by Barry Parkin a Director, that the cash at the bank had decreased over the past months by around £100k. Aled Jones then arranged to meet with Barry Parkin, the organisation's bookkeeper, and Adissa Amanor-Wilks to discuss the financial problems and possible solutions.

Aled Jones warned the NGB on several occasions that the situation was untenable. Staffing costs amounted to 40% of YesCymru's expenditure. A witness told me that there was quite simply a “binary choice” facing the NGB, either increase membership or cut costs, possibly even an amalgam of both. This would be normal in any business facing these very serious problems.

As a confirmation of the dire warnings issued, the YesCymru Annual Report and Unaudited Financial Statements for the Year Ended 30 December 2023 are revelatory.

The Profit and Loss Account discloses that on 30^th December, 2022 YesCymru had a gross profit figure of £215k plus with a net profit of £145k.

At 30^th December, 2023 the gross operating loss was £104k with a net loss of £105k for the year.

This, therefore, confirms the dire predictions of Aled Jones, Elfed Williams, Barry Parkin and the other Directors.

In September 2023 Aled Jones produced a report which said, in effect, if nothing is done regarding increasing income and decreasing costs then YesCymru would become bankrupt in a matter of months. This has been disputed by one or two witnesses, David Hannington- Smith among them but it is patently obvious that the case was accurately set out by Aled Jones and the other Directors. One Director, Cinzia Yates, at the time said that “It didn't matter as the Company is a Private Company limited by Guarantee” and therefore did not have to make a profit!

It was around September / October 2023 when meetings of the NGB became fractious. To put it crudely, there were those who believed that retaining the CEO would lead to financial disaster. The other group were of the view that his services should be retained at all costs. There was a discussion, at this time, of a compromise where the CEO could be offered a less than full-time role – dealing with external communications, media etc and hiving off the managerial / administrative role to another person. We should bear in mind that the CEO had ensured that two other members of staff had been engaged but it is very likely that one or other was grossly underemployed.

Although the NGB was now dividing into what might be called 'opposing camps', to be fair to the CEO it is common ground that he was a very competent media performer / spokesperson for YesCymru but not a 'details person' who could administer and manage the organisation and follow the strictures of the NGB. In the event, the 'job-share' idea was rejected out of hand by the CEO who by this time was actively canvassing Directors and other key members to see his side of things and to ensure his retention.

During this time, the CEO paid a VAT liability of £35k without authorisation by the Board.

The CEO had been made fully aware that there was a membership drive to be initiated in November. This was firstly communicated to him in the latter part of September 2023 and formally agreed by the NGB on 16^th October, 2023. There were three main aspects to the Membership Campaign:

1. New Member November
2. Targeting the Welsh diaspora in the United States
3. Corporate Membership

The witness David Hannington-Smith told me that he undertook a scoping exercise of various Welsh societies / organisations in the United States. I believe that he did so.

However, nothing further came of it.

The ‘New Member November’ part of the campaign did not get off the ground.

As for Corporate Membership, I have been told of two individuals who offered £200 per month to YesCymru. Their offers were never taken up and one individual, somewhat disconsolately told a witness who gave evidence to me that he was very disappointed saying “So you don't want my money, after all!” This was unfortunately because the CEO had not seen fit to contact them or any of the other corporate donors identified. The net effect was that membership figures continued to decrease, likewise the income.

We now come to the most fraught and unpleasant time in the history of the NGB. In the Board Meeting of 30^th October, 2023 there was a proposal to terminate the CEO's contract for obvious reasons. However, one supporter of the CEO told me that his removal was because several Directors 'on the other side' as it were, were more intent on grounds of personal dislike and not poor performance and financial reasons. Having interviewed several witnesses, nothing could be further from the truth as the CEO was lauded by everyone for his skilful appearances on the media. It is true that some said that he was becoming arrogant and his canvassing Board members was utterly wrong. I still conclude that the driving force behind his dismissal was financial and lack of managerial / administrative competence. A witness told me:

“Matters came to a crunch in the NGB Meeting on 30^th October, 2023 with a proposal to remove the CEO. The meeting was one of the most difficult meetings I have ever attended with Cinzia (Yates) and Simon (Hobson) intentionally disrupting proceedings.”

Elfed Williams, the Chair at the time told me:

“In the previous two months I had worked between 10 and 15 hours per week and occasionally more, meeting and speaking to the CEO, fellow directors, answering e-mails, fending off e-mails and accusations from Cinzia... At the end of the meeting on October 30^th I was exhausted and felt that I had put in so much effort into arriving at a solution that would be acceptable and ensure that YesCymru could continue as a viable organisation and we were no further forward that I could not carry on as Chair. Basically, at that point I had been worn down by Cinzia, Simon and Gwern and I could not carry on at that point as Chair.”

Eight witnesses told me that the behaviour of the Directors mentioned was disruptive, harassing even at time bullying, which made attempting to discuss YesCymru business well- nigh impossible. Needless points of order were raised, doubts about procedure and lawfulness of decisions meant that the organisation's decision-making was “paralysed” as one witness told me.

Nerys Jenkins and Adissa Amanor-Wilks followed with their resignations.

After careful consideration of all the available evidence I conclude that the regular pseudo- legal and procedural complaints were designed to keep the CEO in place despite the steadily worsening financial position. I pause at this point and wonder how the actions of these named Directors could ever be in the best interests of YesCymru.

The incoming Chair of YesCymru Barry Parkin, was regularly nominated to act as Chair and was duly elected Chair by a majority of Directors. Some Directors queried the process of electing Barry Parkin to the Chair. This caused Barry Parkin to seek legal advice from the retained Solicitors Messrs Geldards of Cardiff. The particulars are that on 13^th November, 2023 there were two nominations for Chair of YesCymru viz Barry Parkin and Ethan Jones. In his address to the Board Ethan Jones delivered a “blistering attack” upon his rival for the post and subsequently withdrew his nomination. Barry Parkin was elected in line with the Company's Articles of Association and Bylaws.

At a meeting of the NGB on 27^th November, 2023 which is well-recalled by several witness, Cinzia Yates, supported by Simon Hobson and as recalled by one witness:

“They claimed to have had advice from an unnamed, legally qualified colleague from Cardiff University, claiming that YesCymru was operating illegally and were attempting to put YesCymru into 'limp mode' thus further stymieing the work of the Company.” The witnesses say “Both filibustered during the meeting, insulting their NGB colleagues and causing extreme disruption.”

The Chair even had to mute Cinzia Yates several times to allow other Directors to speak. The meeting had to be abandoned. Both Cinzia Yates and Simon Hobson (Co-opted Directors) were subsequently removed from the NGB in accordance with YesCymru's Articles of Association and Bylaws and this happened on 8^th December, 2023.

Due to the persistent disruptions and the complete inertia at the NGB meetings the Chair sought legal advice on the many pseudo-legal objections put forward so regularly by some members of the NGB including the two mentioned above. Fuller and better particulars of the seeking of legal advice will appear in my response to Request (3) of the Remit below.

One further point to note – and this gives a flavour of the toxicity that surrounded meetings of the NGB. Elfed Williams told me, and it is minuted in the Company's Minutes that Ethan Jones had telephoned him stating that he had received a call from a person threatening to release a confidential e-mail sent by Elfed Williams to the press unless Elfed Williams resigned from the Board of YesCymru. During the call, Ethan Jones had encouraged Elfed Williams to comply with this threat. Elfed Williams urged Ethan Jones to disclose the information about the call to the Board, which had not been done to date.

When prompted, Ethan Jones admitted that he had received a call making the threat. Ethan Jones then went on to defend the blackmail attempt and refused to disclose the identity of the blackmailer. In a meeting on 8th January 2024 it was pointed out to Ethan Jones that his conduct was facilitating blackmail by his refusal to disclose the person's identity. It was also pointed out to Ethan Jones that his lack of transparency and openness could be in breach of several Nolan Principles and the Company's Bylaws and he was reminded that he had a legal duty as Director to put the Company's interests before that of his own. If the blackmailer was an acquaintance, then he should also disclose the conflict of interest. Ethan Jones refused to comment.

Also, at this time one of the Directors Geraint Thomas was:

“Finding the situation on the NGB as almost impossible, and I was in an important phase of my private life. I was in the process of selling my business having accepted a job with Plaid Cymru. I received an e-mail, which I disclosed to the NGB and this e-mail came from the CEO Gwern which was a threat from him that he would contact my new employer Plaid Cymru to say that I had a “conflict of interest” as I was also on the Board of YesCymru.”

This, I believe was to pressurise him into supporting his retention as CEO. In the event, the outgoing CEO did contact his employer and had a detailed conversation about it and the employer could see nothing wrong in his continuing with his work for YesCymru as well. The witness said:

“The whole thing was too much for me and I resigned from the Board on 20/1/2024 and cancelled my membership.”

Having received legal advice from the retained Solicitors, the position of the CEO Gwern Gwynfil was terminated by written resolution passed by a majority of Directors.

On 18^th December, 2023 the CEO was dismissed with the appropriate payment in lieu of notice. The dismissal was pursuant to a written resolution drafted by the retained Solicitors Messrs Geldards which mentioned the dire financial circumstances of the Company which necessitated the dismissal and dismissal notice.

The Ordinary Resolution drafted by the Solicitors read:

"IT WAS RESOLVED THAT Due to financial constraints of the Company that the position of CEO be terminated and that the Company, supported by its retained HR Services supplier, terminated the CEO's contract of employment with the Company, in accordance with the terms and conditions of that Contract."

Signed by Phyl Griffiths 17/12, Aled Jones 17/12, Gaynor Jones 18/12, Barry Parkin 17/12, Elfed Williams 18/12.

I see nothing irregular in this procedure. It accords with Articles of Association and Bylaws and I would remind the reader that YesCymru is a private company limited by guarantee.

REQUEST (3)

The allegations levelled against the Chair of YesCymru that he sought legal advice from YesCymru's retained Solicitors Messrs Geldards, during the period when the two Co-opted Directors were dismissed and the Chief Executive Officer's position was terminated, without authorisation which could potentially be regarded as in breach of Company Law

The majority of Directors on the NGB were aware of the fact that the Chair was seeking legal advice from time to time during the troublesome months between September 2023 and January 2024. Naomi Hughes as Vice Chair knew. Also, Phyl Griffiths, Geraint Thomas, Aled Jones, Gaynor Jones, Elfed Williams and Ethan Jones.

In addition, e-mails with Geldards' advices were sent to the CEO on 13^th November, 2023 with an attachment of the actual advice from Geldards. Likewise, I have also been referred to an extract from the Minutes of the NGB Meeting of 27^th November, 2023:

"Barry Parkin stated that, as advised by YesCymru's retained Solicitors, Geldards, the CEO should not take part in Board discussions, unless invited by the Chair, as he is not a Director; questions may be asked of the CEO, but care must be taken that the CEO is not unduly influencing the Directors' decisions. The Chair asked the CEO three times to leave the meeting in accordance with the advice from Geldards."

Further, the Chair told me:

“I asked verbally for clarification whether Co-opted Directors may vote on business other than the election of the Chair / Vice Chair. This was confirmed verbally, and I relayed the advice verbally to the NGB Directors during the NGB Meeting of the 27^th November, 2023.”

Therefore, there was good evidence that the whole of the NGB knew that the Chair was seeking and obtaining legal advice at this time. This was well in advance of the document produced by David Hannington-Smith on 11^th December, 2023. Why did no one on the NGB query the authority point if it was so contentious?

Precedents for payments of this nature:

• Elfed Williams sought legal advice re Louise Aikman
• Barry Parkin as Head of Governance and Compliance consulted Geldards in September and October 2022 re Articles of Association at Companies House
• The CEO personally authorised a £35k VAT and £5k screen payments without reference to the NGB.

A witness stated:

“Procurement had already taken place as Geldards have been appointed as our retained Solicitors. Geldards is therefore an authorised / approved supplier for repeat orders. The point of a retained Solicitor is to have fast access to legal advice in an urgent situation. It is appropriate for both the Head of Governance and Compliance and the Chair or Vice Chair to have access to legal advice in urgent situations.”

There is reference in Bylaw 16 to Procurement Policy at point 11:

"Procurement of greater than £500 and not greater than £3,000 in value must be authorised by YesCymru's Procurement Committee chaired by the Procurement Director."

I have re-looked at the hundreds of pieces of evidence supplied to me and nowhere can I see a reference either to a Procurement Director or Committee.

Finally, I would refer to S. 40 Companies Act 2006 which says regarding incurring expenditure:

"The delegation of authority may be express or implied. It can be implied from the Director's position for instance a Managing Director will have implied actual authority to all such things as fall within the usual scope of that office."

I do not differentiate that to the situation appertaining here, viz the Chair was in control of the NGB, the NGB knew about the expenditure well in advance of the document drawn up by David Hannington-Smith on 11^th December, 2023. All of it was YesCymru business of a vital order, none was personal and the situation was very serious for the Company and time was of the essence.

I am not asked to investigate the further attacks upon the Chair's integrity and for that I am grateful because they were clearly without substance. Accusations of alleged “criminality” should be used very sparingly and always with clear evidence.

In conclusion, I find that the Chair was between the 'devil and the deep blue sea'. Do nothing and YesCymru approaches its end. Act urgently to save the Company and then be vilified for doing so.

What was the Chair to do – he did make it plain that he wanted to unlock the NGB from its paralysis and he made it plain that he was seeking legal advice. No-one on the NGB challenged that at the time. The late challenges came with hindsight and the evidence points to it being driven by acts of revenge because of the dismissal of the CEO.

In the heat of the toxicity around this time, I have to say that I find it very difficult to point a finger of blame at the Chair, and I do not believe that he breached Company Law and I certainly do not believe that there should have been such naked attempts to sully a man with an excellent reputation. This chapter was most unfortunate.

REQUEST (4)

The process surrounding the calling of an Extraordinary General Meeting on 10^th December, 2023 and the subsequent cancellation of that meeting by the NGB

During a very heated NGB meeting on 27^th November, 2023 discussions took place about the efficacy of the current Articles of Association of YesCymru. Some Directors opined that they were not fit for purpose. One Director stated that she had had legal advice from work colleagues including a Professor of Law that the Articles of Association were inappropriate, not fit for purpose, and “verging on not being legal.” Other Directors wished to know more about the source of the legal advice – but no further details were released about that. After a long and heated discussion the following was resolved:

"a) Ask third party independent solicitors' advice if our Articles of Association are legal and fit for purpose for a Company Limited by Guarantee. Proposed by EJ and second by GT; passed unanimously.
b) Hold an EGM (SGM) related to the Articles of Association on 13^th January, 2024, with elections then held on 3^rd February, 2024, with results announced at a GM on 10^th February, 2024. Proposed by DS, seconded by EJ; passed unanimously."

The above is drawn verbatim from the Minutes of the Meeting of the NGB held on 27^th November, 2023.

During the NGB meeting that was held on 2^nd January, 2024 concerns were raised about the forthcoming EGM and the same were minuted as follows:

"EJ - believes that a notification of the EGM has been sent. BP stated that this should have been with an agenda and any resolutions."

28 days' notice must be given for a general meeting like this.

On 10^th of December, 2023, an e-mail announcing the EGM was sent without an agenda. Discussion took place around whether or not the e-mail notification was sufficient:

"DS - members could request additional agenda points up to 14 days before the meeting takes place.

DS - found that there is no requirement for an agenda to call a meeting.

GJ - asked who is leading and organising this.

EJ - stated that this was the CEO and other staff. TW will be asked for an update.

EW - relayed a conversation he had with TW about the election and which system to use. Articles of Association amendments were circulated by EJ prior to the meeting.

EJ - offered 24 hours to review the document.

DS - will write a rationale for the changes and the EGM so that we can share this with members this week.

According to the Bylaws we need at least a 14 day period before the election to accept and publish nominations.

In this case we must open nominations by 19^th of January.

DS - proposes we open nominations on the day of the EGM which also allows time for hustings before the election opens.

DS - to liaise with TW to arrange the elections."

Elfed Williams was concerned about the rather haphazard way in which the procedure was being put together and sought legal advice from the retained Solicitors, Messrs Geldards. The response from Maria Philippe Solicitor, on 5^th of January, 2024 was as follows:

"Hi Elfed

I have reviewed your articles and bylaws and discussed your below queries with my colleague who specialises in Corporate Law.

Unfortunately the meeting has not been validly called as you have breached the Byelaws and you have not complied with the Companies Act 2006.

As the resolution to amend the Articles of Association is a special resolution (requiring not less than 75% of the members to vote in favour), you need to specify in the notice of resolution that it is being proposed as a special resolution and you also need to include the wording of the resolution which will be put to the members at the meeting.

Section 283(6) of the Companies Act states:

(6) Where a resolution is passed at a meeting -

a) the resolution is not a special resolution unless the notice of the meeting included the text of the resolution and specified the intention to propose the resolution as a special resolution, and

b) if the notice of the meeting so specified the resolution may only be passed as a special resolution.

You will therefore need to call a new meeting in accordance with the Byelaw which specifies that a special resolution will be proposed and the exact wording of that resolution. If you will be proposing a new resolution to adopt the new Articles in their entirety then you should include a copy of the new Articles with the resolution. If you are going to propose each amendment as a separate resolution (which would likely make the adoption of the new Articles more complex, especially if you have multiple proposed changes) then you should specify which Article is being amended, what is currently says (… ) and what it is being changed to.

You can get the members to agree to shorter notice however you need a 90% majority of members to sign a form agreeing to the shorter notice, which are you unlikely to receive in the short time frame.

In relation to the resolution proposed by YesCymru Group (Swansea), it is probably easier if you include this resolution in the new notice and deal with all of the matters at one meeting. You may want to inform YesCymru Group (Swansea) that this is what the Board has decided to do given that the first one was not validly called.

Please let me know if you would like me to prepare the notice and draft minutes to adopt the new Articles. Please also let me know if you would like me to review your proposed amendment to the Articles of Association.

Kind regards etc."

It became clear that, through no fault of any individual Director the timescales and procedures surrounding the calling of the original EGM were flawed and therefore the meeting was cancelled by the NGB to avoid further problems.

Unfortunately, however, leaks from the NGB were circulated in a flagrant breach of confidentiality which could only have been designed to harm the interests of YesCymru. This led to a lot of criticism on social media, causing people to cancel their membership. A witness told me:

“This also bled into the South Central group chat with fabrications and bile being spread about the Board by (named individuals).”

In all the negative misinformation certain Directors were exempt from any criticism and this points to the fact that those Directors were the source of the leaks.

What is abundantly true is that this was a very damaging episode which further eroded membership numbers. I can only conclude that those who leaked the confidential information from the Board fully intended this, but for what reason I do not know. I shall leave the reader to speculate.

REQUEST (5)

The decision and process undertaken by the then Complaints Officer of YesCymru to investigate a complaint against 7 Directors of YesCymru including setting up of an Investigation / Disciplinary Panel and resulting temporary suspension of the said 7 Directors

The substance of the complaints above were levelled at the seven signatories to a written resolution signed by the following Director of YesCymru. The complaints came from Cinzia Yates and Simon Hobson the two Co-opted Directors discharged by the NGB on 8^th of December, 2023. A detailed analysis of the evidence surrounding this event is dealt with in answer to Request (1) above and so I shall not repeat the facts here.

Due to the inability of the NGB to make any real decisions, for reasons already referred to, it was decided that the two Co-opted Directors should be dismissed by the written resolution procedure available. This procedure was adopted by the majority of the Directors on the NGB following legal advice which confirmed that as a Private Company Limited by Guarantee it would be intra vires to use this procedure. This contrasts with public companies which come under the auspices of the Companies Act 2006 where such a procedure would not be available to them.

In the event, a written resolution was drafted which simply read:

"Pursuant to chapter 2 of Part 13 of the Companies Act 2006, the Directors of the Company propose that Resolution 1 below is passed as an ordinary resolution (the 'Ordinary Resolution') and

ORDINARY RESOLUTION 1

That in accordance with Article 13.4 Cinzia Afra Yates' appointment as Director of YesCymru Cyf is terminated forthwith."

Also on this resolution there were notes explaining the precise procedure and requesting those who received the Resolution to read the same before signing it.

This Resolution was sent to all members / Directors of the NGB with the exception of Cinzia Yates and Simon Hobson who were compromised in this matter. It was signed by Phyl Griffiths, Aled Jones, Naomi Hughes, Barry Parkin, Gaynor Jones, Elfed Williams and Geraint Thomas. The seven signatories meant that the Resolution was passed and the date was 8^th of December 2023.

Precisely the same procedure was followed dismissing Simon Hobson on the same day. Following this meeting the two were advised of their dismissal from their Co-Directorships.

The two then put in their complaints quoting various sections of the Companies Act 2006 upon which they relied to allege that the dismissal was not effective. As a dismissal by written resolution is specifically dealt with in Request (1) above I will not re-state why I consider their complaints as without foundation.

The then Complaints Officer David Hannington-Smith or Daf Smith then took them up and established a Disciplinary Panel to investigate the Complaints.

As David Hannington-Smith the Complaints Officer said:

“Great efforts were made to ensure the members of the Panel were unbiased and preferably unaware of any other events that had taken place in the previous months.”

I believe that this was a forlorn hope given that numerous leaks from the NGB meetings appeared with striking regularity in Nation.Cymru frequently reported by one Emily Price but not exclusively so.

David Hannington-Smith also said:

“That he sought to ensure that the Panel were suitably qualified as both upstanding members of YC and competent. Efforts involved phone calls with them about their availability and their background, searches of their social media accounts for any content that showed bias one way or the other, and speaking with other YC members and groups they were known to. After interviewing six potential candidates, three members were chosen to be on the Panel: Ian Hunter, Simon Atkinson and Terry Evans.

I presented the evidence I had already gathered to the Panel, along with the Complaints and other available and related documentation. I then left the panel to meet and deliberate over a few days. The Panel then reconvened and asked me to attend. During that meeting they decided the appropriate course of action was to suspend all seven Directors pending further investigation into the matter, and gave me written permission to block the suspended Directors' access to their YesCymru email accounts, so they could be investigated. The Directors were then suspended and their YesCymru access removed, and they were notifiedby the Panel that they were under investigation for two complaints, and the details of those complaints was made clear to them.”

Those seven who were being investigated were not invited for interview by the Panel or given any opportunity to explain their position. If they had, then doubtless the Panel would have appreciated that the Complaints were groundless.

An astonishing e-mail was sent to Barry Parkin, the Chair of YesCymru and one of those complained about.

The e-mail is indeed an extraordinary document and it reads:

"17^th January 2024

Dear Barry Parkin

WITHOUT PREJUDICE

We enclose copies of the complaints made against you by two members together with legal advice on the matter and a WITHOUT PREJUDICE offer. The Panel has reviewed the complaints and decided that it will begin to consider them formally today if that proves necessary.

If you have any immediate comments on the complaints that you would like to make to us, please do so.

Yours sincerely, Ian Hunter, Simon Atkinson, Terry Evans, Disciplinary Panel.

WITHOUT PREJUDICE

The offer expires at 22.00 hours on Thursday January 18^th.

The Panel has received its own legal advice concerning the main parts of the complaints made against all the respondents. It shows unequivocally that, in every respect, the actions that the respondents took in removing the two co-opted directors from office was taken without sufficient regard to Company Law.

We are happy to share this advice with you and it is also attached to this e-mail. In that regard, may we draw your attention to the legal article appended to the advice. This says, towards the end of the first page and following on overleaf:

A director purportedly removed under a non-compliant exercise of the Section 168 power therefore remains a director and is subject to all the duties of a director and entitled to act as such, and to participate in board meetings as normal unless and until he or she is validly removed. If the remainder of the board fails to respect the director's right in this regard, the director could apply to the Court for a declaration that his or her directorship was still continuing, and any necessary injunctions (for example, requiring the other directors to continue to include the director in board meetings).

However, we wish to conclude this matter without further process if that is possible. Should any of the respondents state (both to the Panel and the NGB) that they now accept that the steps which were followed at the meeting where the co-opted members were removed from office were not taken in accordance with Company Law or with regard to the Articles of YesCymru, and if they agree to restore the two co-opted directors to their office, then the matter can be concluded without any form of sanction on the respondent concerned. It follows, of course, that the suspension of their membership would be lifted. This morning we have asked YesCymru to restore respondents' access to all its resources.

The Disciplinary Panel."

I have described this e-mail as extraordinary; I would further add that it displays a huge bias in favour of the Complainants. If, as alleged, the seven directors had acted unlawfully, then it would have been a very serious matter. The Panel, in effect, was saying that it would ignore the alleged wrongdoing as long as the two Co-opted Members were reinstated.

The recipient was given a little over 24 hours to consider the so-called offer. The time-limit is an attempt to put undue pressure on the recipient and it is further evidence of bias. In addition, coming to a conclusion based on paperwork and the instructions of David Hannington-Smith the Complaints Officer and without hearing anything from those complained against is again evidence of bias.

This letter and offer used the time-honoured term 'Without Prejudice'. Anyone with a modicum of legal knowledge would know that once is enough.

The Panel, I surmise, knew that they were acting wrongly and in a blatantly biased way which is why they overused the term so that if litigation arose this would not be disclosed and their behaviour criticized. Unfortunately, I have referred to the word 'blackmail' already in this report. This behaviour comes perilously close.

Not surprisingly this 'offer' was not accepted.

I questioned David Hannington-Smith the Complaints Officer about this e-mail. He had been very closely involved with the Disciplinary Panel from its inception. Curiously, he was unaware of this e-mail although he appeared uncomfortable when I questioned him about it.

If the Complaints Officer had done his job fairly and properly in terms of the legal advice the Chair of YesCymru sourced regarding this dismissal of the two Co-opted Members then there would have been no need for any enquiry or Panel. That also displays bias in my mind.

I also think that the 'suspension' of the seven Directors was uncalled for and excessive. The result, of course, was that for a time the 'opposing' side of the Directors on the NGB would have a free hand in running the affairs of the Company.

This episode is probably the most serious concern in the whole matter. It reflects badly on the Complaints Officer and the Disciplinary Panel.

In conclusion, all three members of the Disciplinary Panel were invited to give evidence. All three declined. Ian Hunter included the following in his response to my invitation:

“...Apparently prejudiced nature of the investigation...I will not participate in the matter.”

Simon Atkinson said that he was:

“Deeply suspicious of the underlying motivation – particularly leading up to the removal of Gwern and the complaints... I do not wish to be involved.”

I thought it important to shed some light on Mr. Atkinson's response to me as it displays bias ab initio and seriously undermines what David Hannington-Smith the then Complaints Officer said to me that:

“great efforts were made to ensure the Members of the Panel were unbiased and preferably unaware of any events that had taken place in the two previous months.”

The suspensions were uncalled for and not in the best interests of the Company. The behaviour of the Disciplinary panel leaves a great deal to be desired and the net effect was to deepen the crisis at YesCymru at Board level.

REQUEST (6)

The decision and process of the NGB to suspend the Complaints Officer from his post and to disband the Investigation / Disciplinary Panel

The response to this request should be read in conjunction with Request (5) above. From all the evidence I have obtained I consider that the Complaints Officer would have been wise, if indeed a Disciplinary Panel was required, to outsource the membership thereof to suitably qualified independent persons. I am not at all convinced that the Disciplinary Panel was free of bias and therefore not capable of reaching an arms-length independent decision.

Further, if the Complaints Officer had advised the Panel of the purport of the legal advice which Barry Parkin as Chair of the Company sourced from the retained Solicitors Geldards, that the process followed by the NGB in dismissing the two Co-opted Directors was lawful and intra vires the Company's Articles of Association and Bylaws then, in that event, the Panel would have concluded that there was nothing to investigate.

It appears, therefore, that the Panel was inadequately briefed and only provided with one half of the story as it were. They in turn concluded that the seven Directors were at fault and issued the ill-advised 'Offer' to the Chair of YesCymru. The Panel came to that conclusion without obtaining any evidence from the respondents, the seven Directors. That was totally inappropriate as was the so-called 'Offer' issued to them.

I believe that the Complaints Officer worked very closely with the Disciplinary Panel and I find it hard to believe him when he tells me that he knew 'nothing about' the said 'Offer' which was highly improper.

The Complaints Officer rushed to judgement and suspended the seven Directors. I believe that this was excessive and uncalled for and based on a narrow view of the evidence.

There is little doubt in my mind that the Complaints Officer by his rash and one-sided actions exacerbated an already fraught situation. In the circumstances, the NGB then voted to dismiss the Complaints Officer by use of the written resolution procedure referred to above and also disbanded the Investigation / Disciplinary Panel. In my submission, they had little choice because the Complaints Officer behaved badly and this was compounded by the extraordinary and very dubious actions of the Panel.

I do not believe that the NGB could be criticised for its actions in response to this unfortunate debacle.

REQUEST (7)

The decision and process of the NGB to declare the candidacy of one member to become a Director as invalid in the elections to the NGB

Routine elections for appointment as Directors of the NGB were held in January 2024.

The provisions governing the procedure to be followed to complete nomination forms and the conduct of the elections generally are set out in the Articles of Association at Article 19 to 19.8.

Nominations are governed by Bylaw 2 of YesCymru's Bylaws. Bylaw 2.4 explicitly states:

"4. Each ordinary Member:

(a) may only nominate one candidate during any single election period."

A notification was sent out on 13^th of January, 2024 giving clear instructions as to how to make an application. These instructions state that a candidate requires 5 nominations from current members, one of whom may be the candidate him / herself. Each member may nominate one person only.

Nominations closed at 8pm 27^th January, 2024.

Nominations from at least two candidates were submitted. One was submitted by Dr Cinzia Yates and was received by YesCymru on 20^th January, 2024.

After the nominations closed it was discovered that the nomination of Dr Yates was invalid because it contained the name of Member no: 147. This then invalidated the nomination because the said Member no: 147 had also nominated another candidate whose nomination form was submitted five days earlier on 15^th January, 2024.

Bylaw 2.4 above explicitly states that an:

"ordinary member may only nominate one candidate during any single election period."

Therefore, YesCymru had no option other than to declare Dr Yates' nomination as invalid on this ground.

On 31^st January, 2024 Dr Yates received the following e-mail from Barry Parkin, the Chair of YesCymru:

"Dr Cinzia Yates

Following the close of applications for the position of Director of YesCymru Cyf, an audit is carried out to ensure that candidates have correctly completed all steps required in their submission to become a Director. I have been informed that you have submitted proof of identification in line with the correct requirements. The notification sent out on the 13^th January gives clear instructions as to how to make your application. These instructions state that each candidate requires 5 nominations from current members, one of whom may be the candidate him / herself. Each member may nominate one person only.

Please refer to the Articles of Association and Bylaw 2 for information regarding standing for election. The application form is split into 2 sections. Section 1 is for candidates to complete and is not part of the nomination process. You have completed this section correctly with your name, region, region you are standing, membership number and email address.

Section 2 clearly indicates that this section is where you enter the name of you nominators. This section again gives clear instructions on closing date and the requirement for five nominations.

Instructions on form:

Nominations for the YesCymru National Governing Body must be received by 8pm on 27^th January 2024. You must secure 5 nominations. You can nominate yourself.

Your nomination is date stamped as being received on the following date: 2024/01/20 2:11:32pm GMT.

Your returned form indicates the following people who have nominated you: Name and membership number:

(Member) no:468
(Member) no:1785
(Member) no:147
(Member) no: 94
(Member) no:19826

I have to inform you that we have received an application from another candidate, who was also nominated by Member no: 147 with a date stamp of 2024/01/15 10:20:16am GMT. As clearly stated in Bylaw 2 a member can only nominate one candidate in an election period and 19.a of the Articles of Association clearly states a candidate must follow the criteria set out for the election.

I therefore, have to inform you that, as your application according to the rules set out for this election have not been fully complied with due to only having four eligible nominators in Section 2 of the form, as Member no: 147 was ineligible to nominate you. It is the responsibility of each candidate to ensure that nominators are eligible to support a candidate before they submit their application. Your application is invalid and therefore you are not eligible to stand to become a Director in this election round.

Yours sincerely..."

The response from Dr Yates was dated 1^st February 2024 and detailed her disappointment and that of her nominator.

She requested the appointment of an independent scrutineer. I do have some sympathy with this request. On reading Article 19.4 it is clear that the Company:

"May appoint an independent person to act as scrutineer in relation to any election and may determine the responsibilities of such scrutineer as it sees fit."

In Bylaw 2.1 it states:

"Both the nomination and Election process shall be conducted by an Independent Scrutineer, appointed by the National Governing Body (“NGB”) who shall follow the provision of this Bylaw."

These two provisions clearly conflict.

I do not believe, however, that the outcome for Dr Yates would or could have been altered by such an appointment.

Dr Yates then queried the timing and I found no merit in that argument. Dr Yates then argues that as she was putting herself forward as a candidate, it was implied that she also self- nominated. I do not accept that argument and it is clearly wrong on the facts.

In all Dr Yates raised issues of process stating that there was no request for details of work background or relevant experience on the forms. No request for political affiliations, no ED Monitoring, no request for 'any other information' on the form. No provision to provide additional materials, no provision to submit a video for information, or job description. Dr Yates says that provision of a statement was voluntary, according to information she had received. She does not include the source of that information. Then she referred to a query about ID.

I find no merit at all in any of these points argued at length. Indeed, they are not even relevant to the fact that Dr Yates did not comply with the rules. Other candidates, apart from two others who were nominated by Member no:147, succeeded in complying without raising any concerns.

On the evidence before me I cannot see how the matter could have been dealt with in any other way. One candidate who submitted his / her papers including a nomination by Member no: 147 was considered valid. This candidate had sent in his / her forms five days earlier than Dr Yates. In my view, the only fair way to deal with it was the way adopted by the Chair on behalf of YesCymru Cyf.

REQUEST (8)

The appropriateness of the Chair of the NGB's involvement in the nominations process and alleged breach of Bylaw 2.1

Throughout the nomination process the Chair of YesCymru Cyf acted impeccably and fairly. That said, it appears on a strict interpretation of the Articles of Association and the Company Bylaws that there was a breach of the Bylaws in not appointing an independent scrutineer to oversee the nomination process and the election process overall.

I come to this conclusion after a careful consideration of the provision of the Articles and Bylaws.

Article 19.4 of the Articles of Association provides:

"The Company may appoint an independent person to act as scrutineer in relation to any election and may determine the responsibilities of such scrutineer as it sees fit."

Bylaw 2.1 provides:

"Both the Nomination and Election process shall be conducted by an Independent Scrutineer appointed by the National Governing Body (“NGB”) who shall follow the provision of this Bylaw."

Note that under the Articles of Association it is permissible to make such appointment. Under the Bylaw, it becomes a requirement. Note the word “may” in the Articles and “shall” in the Bylaws.

Quite properly, the NGB sought legal advice and guidance on this from their retained Solicitors, Messrs Geldards. The response from Ms. Bethan Walsh was:

"The Articles have been drafted in such a way to allow for flexibility hence use of the word “may” instead of “shall”. The byelaws don't necessarily contradict the Articles in these circumstances, rather they provide a more descriptive process. The fact that you have drafted bylaw 2 to state “shall” and not “may” means that there is an obligation to appoint an independent scrutineer. In this instance, you have contravened the process in the bylaws rather than the Articles, which is less serious. If in practice, if it is not proportionate or feasible to appoint an independent scrutineer then the bylaws should be amended to replace “shall” with “may”."

I fully agree with Ms Walsh's advice and conclusions.

To be fair to YesCymru the above would be plain to a person from a legal background but not necessarily so to a lay person.

The answer to the question put to me is that, in the circumstances it was not appropriate for the Chair of the NGB to be involved in the nominations process and an alleged breach of Bylaw 2.1.

PROFESSIONAL CONDUCT

I am asked if I consider whether there are any:

a) Breaches of duties.

Apart from the ones specific to YesCymru Cyf the Companies Act 2006 refers to the Directors' general duties. They include:

• The duty to act within powers.
• The duty to promote the success of the Company.
• The duty to exercise independent judgement.
• The duty to exercise reasonable care, skill and diligence.

Without re-rehearsing this sorry saga, I believe that there were many breaches of these duties by several individuals who were more concerned with sowing dissent in the leadership of YesCymru Cyf than promoting the best interests of the Company. It is my earnest hope and expectation that the current and future Directors of the Company will learn from the bitter experiences that occurred over the last eighteen months or so as I am quite certain that these behaviours will not be easily forgotten.

(b) NOLAN PRINCIPLES which are duties to act with Selflessness, Integrity, Objectivity, Accountability, Openness, Honesty and Leadership.

It goes without saying that the narrative which formed as I perused the vast amount of evidence led me to believe that there were several breaches of the above, and some of which appeared to be intentional with the resultant reputational damage to YesCymru Cyf.

(c) Breach of confidentiality agreements.

The breathtaking regularity of leaks from the NGB was something to behold. All Directors signed a Confidentiality Agreement as did I in the preparation of this Report.

Highly sensitive leaks of a very serious nature made their way regularly into Nation.Cymru. These were often reported on by Emily Price who knew intimately of confidential details of meetings of the NGB – to such a degree as it is not likely that she would know more if she were a sitting member of the NGB. Various members of the NGB came in for regular unfair criticisms and one or two were never criticized which points to them as a highly likely source of these self-serving and very damaging leaks. I would go as far as to say that they were bad actors intent on damaging the standing of YesCymru Cyf.

I know for a fact, as I have seen the evidence, that three or four Members who came onto the Board in Spring / Summer 2023 were plotting to rid the Board of established and experienced Members. One has to ask why. How were their actions in the best interests of YesCymru Cyf. The short answer is that by their actions, they were directly undermining the best interests of the Company.

As for breaches of the Articles of Association and Bylaws apart from my response to Request (8) above I have not identified any, or any specific breaches of the Companies Act 2006 which would have been construed as unlawful.

I do not recommend re-opening all these matters further as that would only serve to hamper the progress of YesCymru Cyf for a further lengthy period. No doubt the Company will learn the lessons from prolonged and bitter toxicity and bad behaviour.

CONCLUSION

In concluding this overview Report and recommendations I would mention that during my visit to Pontypridd for the National Eisteddfod I was thanked by many YesCymru Cyf members and supporters who wished to see a line drawn under this affair. Everybody appreciates the striking momentum behind the expansion of membership of YesCymru up until roughly the Summer of 2022 when matters went into decline and ultimately free-fall from September 2023 onwards.

My point in mentioning my visit to Pontypridd was that I encountered many members and supporters who were eagerly awaiting a return to normality at YesCymru. I do not doubt that the momentum referred to will return in the near future. In this regard, I was impressed by the fact YesCymru Cyf signed up around 200 new members in the National Eisteddfod in Pontypridd. That bodes well for the future progress of the Company.

I hope that the light shed on the proceedings of the Company contained in this Report will enable a period of learning and possibly healing in the ranks of YesCymru Cyf which in itself will contribute to what I believe is potentially a bright and exciting future for YesCymru Cyf and the Movement in Wales generally.

Finally, I thank the NGB for considering me for this appointment and I hope that I have done justice to the Remit which I was given.

APPENDICES

Appendix 1 C.V. Elfyn Llwyd LLB 

Appendix 2 YesCymru Articles of Association 

Appendix 3 YesCymru Byelaws 4, 2, 3

Appendix 4 Interview Invitees

Appendix 5 Recommendations

APPENDIX ONE

Elfyn Llwyd,
Glandwr,
Llanuwchllyn,
Y Bala,
Gwynedd LL23 7TW

CURRICULUM VITAE

Born Betws-y-Coed 1951.

Educated at Ysgol Sir Thomas Jones, Amlwch, Llanrwst Grammar School and Ysgol Dyffryn Conwy, Llanrwst.

1974 Graduated in Law LLB (hons) University College of Wales Aberystwyth.

1976 Christleton College of Law, Chester. Solicitors Final Examinations.

1977 Admitted a Solicitor of the Supreme Court.

1978-1998 Partner in the firm Guthrie Jones and Jones Solicitors Dolgellau, Y Bala and Corwen.

1990-1991 President Gwynedd Law Society. 1998 Called to the Bar Gray's Inn.

1998 Member of Sedan House Chambers, Chester and then Linenhall Chambers, Chester. Area of practice Family and Child Law.

1992-2015 Elected Member of Parliament for the seat of Meirionnydd Nant Conwy and then Dwyfor Meirionnydd.

1998-2015 Plaid Cymru Parliamentary Leader. During Parliamentary career drafted and introduced several bills and amendments, among them numerous measures dealing with aspects of family and child law. First Parliamentarian in UK to call for the initiation of the office of Children's Commissioner. Office was created in Wales in 2005, the first in the constituent parts of the UK to be followed by Scotland, England and Northern Ireland in due course. Successfully campaigned for the creation of the offence of Stalking, drafting appropriate amendments which were accepted by Government became law in 2012. Similarly, campaigned for the creation of the offence of Coercive Control which came on to the Statute Book in 2015.

2011-2015 Vice chair Justice Select Committee, during that time represented the Justice Committee at a conference in Strasbourg and addressed an international conference on behalf of the Committee in the Parliament Chamber in Athens.

2010-2015 Parliamentary Adviser to the Police Federation.

2008-2015 Chair of the All Party Parliamentary Group (APPG) on Family Courts. Vice chair APPG on Justice Unions.

Vice chair APPG on PCS (Public and Commercial Services Union).

Member of the Welsh Affairs Select Committee for two Parliamentary Sessions.

Member of numerous Standing Committees.

Member of the Committee on Standards and Privileges 2005-2009.

1998 Elected to the Gorsedd of Bards (white robes,) at The National Eisteddfod for 'work done in support of the Welsh language and culture'.

2007 Delivered the Annual Lecture at the invitation of the Law Society in Wales at the National Eisteddfod in Mold. Lecture published bilingually by the Law Society in 2007.

2007-2009 Chair, Executive Committee of Bala National Eisteddfod.

2011 Elevated to the Privy Council.

2015 - Awarded Honorary life membership of NAPO (National Association of Probation Officers) 'in recognition of long standing support for NAPO members in Probation and Family Courts'.

2018 Awarded Fellowship University of Wales Trinity St David's.

2019 Invited to deliver the Annual David Lloyd George Memorial Lecture Llanystumdwy, Cricieth.

2019 Chair, Commission of Independence. Report and recommendations published 'Towards an Independent Wales' published September 2020 Lolfa.

Author of many articles in National news media. Many articles dealing with current affairs in publications such as Golwg and Barn. Regular contributor to debates and discussions on BBC and S4C.

2020 Author of a memoir 'Betws a'r Byd' Lolfa 2020.

2015-2021 Council Member Aberystwyth University. Vice chair of Council 2020-2021.

2017 President Cwmni Pum Plwyf Penllyn, a social enterprise company in the Bala area of Gwynedd. 2022 Chair Cwmni Pum Plwyf Penllyn.

2021 Pro Chancellor Aberystwyth University.

1987-1991 Member of the Board of Governors Normal College Bangor.

2000 Member of a Committee at Bangor University to plan the services to be offered at Pontio Arts Centre, Bangor.

2005 Guest lecturer at the Royal Society, Edinburgh on the theme of 'Penal Policy in the UK'.

2022 Member of the Council of the National Eisteddfod.

APPENDIX TWO

Articles of Association of YesCymru Cyf

APPENDIX THREE

YesCymru Byelaws

BYELAW 4

STANDING ORDERS FOR THE CONDUCT OF MEETINGS

BYELAW 2

ELECTION OF DIRECTORS

BYELAW 3

DIRECTORS’ CODE OF CONDUCT

APPENDIX FOUR

The following members of YesCymru were invited for interview:

Simon Atkinson - Declined interview

Ethan Jones - Declined interview

Ian Hunter - Declined interview

Gwern Gwynfil - Did not respond

Iestyn ap Rhobert - Did not respond

Terry Evans - Did not respond

Cinzia Yates - Did not respond in time

--

David Hannington-Smith - Interviewed

Simon Hobson - Interviewed

Geraint Thomas - Interviewed

Barry Parkin - Interviewed

Phyl Griffiths - Interviewed

Nerys Jenkins - Interviewed

Gaynor Jones - Interviewed

Ena Lloyd - Interviewed

Aled Jones - Interviewed

Naomi Hughes - Interviewed

--

Lloyd Bingham (1) - Did not respond in time

Elfed Williams (2) - Interviewed

Andrew Murphy (3) - Interviewed

(1), (2) and (3) acted as facilitators to provide all necessary minutes of meetings, e-mails, screenshots, legal documents, letters and relevant papers.

APPENDIX FIVE

Recommendations

1.i) In relation to Co-opted Members I would recommend that YesCymru should use this power sparingly. In particular, the consideration of whether to Co-opt should always be to meet an obvious deficiency in the Membership of the Board. What I mean is that a certain skill set is missing and found. It could be HR, financial, policy making, skilled at Governance or administration, legal etc.

1.ii) A thorough vetting process should always be undertaken together with a detailed interview before any co-option is made.

2. Incoming Directors of the NGB whether Elected Directors or Co-opted Members should attend a course to familiarise themselves with the tenets of good corporate governance and administration together with detailed information on what is expected of them as Directors such as identifying conflicts of interest, always adhering strictly to the Articles of Association, Bylaws and applicable sections of the Companies Act 2006. Directors should learn that acting in the best interests of the Company is their first and foremost duty. Directors should also be fully advised of the distinction between elected Director and Co-opted Director in terms of duties and rights. Directors should be reminded of their duty of absolute confidentiality and, as we have seen, how breaches of confidences can be hugely damaging to the Company's reputation and its standing.

3. There is a need for better communication between the NGB and the ordinary Membership of YesCymru. Should the Membership feel that, in some way they are 'cut adrift' from the leadership then that inevitably leads to disquiet and foments negative feelings among the Membership.

4. Given the close relationship between the bulk of YesCymru's income and Membership fees, I believe that one Director, assisted by a small dedicated group including Company employees, should concentrate on increasing Membership and initiating and pursuing Membership Campaigns. I recommend that that Director should provide a detailed written report of his / her activities on a monthly basis and that should always include up-to-date Membership figures.

5. In normal times, it would be desirable for any Director who is seeking legal advice from the Company's retained Solicitors to discuss it at Board level before. In abnormal situations, such as the one under consideration in this Report where the Board was split and a stasis had overcome it, I believe and recommend that the Chair should have explicit powers to act and consult the retained Solicitors, as had happened with a previous Chair in 2022. These powers should avail the Chair of actual authority.

With regard to more normal situations, I consider that Bylaw 16 needs to be adhered to more strictly and all Members of the NGB need to be fully conversant with the procedures.

6. As referred to above I recommend that Co-opted Members' roles, responsibilities and rights, such as nomination and voting rights be better defined in the Articles of Association. I accept that good legal drafting sometimes allows for certain 'opaqueness' so that it provides extra latitude for the Company. There are, however, occasions when stricter definition or even prescription is called for to avoid doubt and possible conflict in the future.

7. I recommend that the Company form a sub-committee to prepare a Report to be presented to the NGB on amendments and re-drafts necessary to update the Articles of Association and Bylaws. A starting point would be the very useful suggestion by the retained Solicitor at Geldards to re-look at the use of “may” and “shall” in respect of the appointment of an independent scrutineer.

8. The unfortunate calling of an EGM and the subsequent cancellation was a failure to appreciate Company Law and Again, I recommend that a Director should take the lead in these matters to ensure that all actions are intra vires and decisions taken in accordance with the Articles of Association and the Bylaws and the underpinning framework of the Companies Act 2006.

In the absence of the election of a person from a corporate background of proven ability and good standing, then Co-option of such a Director should be actively pursued (a) obviously to act lawfully and (b) not to rely too heavily on external legal advice whether from retained Solicitors or others. That is not to say that I find any fault with the advice given by the retained Solicitors in this matter, and indeed, their promptness in replying to queries.

9. In relation to disciplinary matters, I recommend that whenever a Disciplinary Panel is called for, it would be prudent if the Company outsourced this function to suitably qualified individuals who are independent of YesCymru Cyf.

Report by
The Right Honourable Elfyn Llwyd, LLB
October 2024