Why Does An Taisce Need a New Constitution?
I'm looking forward to the debate on our Constitution at the 2020 AGM on 19th September. An Taisce Council decided in October 2015 that a full review of the Articles of Association was required to bring An Taisce’s governance structures in line with good practice and to ensure that the non-executive level of the now regulated charity is positioned for the future. I'm writing now to open the discussion on this important topic with you, our members and supporters.
It is sixteen years since An Taisce’s Constitution has been renewed. In that time much has changed both within the organisation and externally. Key external changes include the Companies Act 2014 and the commencement of the Charities Act 2009. The latter now means that, in addition to the existing regime, Charities are subject to a greater degree of regulation in general. Directors retain their existing fiduciary duties under Company Law and Tax Law. But the directors of regulated charities now have significantly more responsibility to the newly established Charities Regulator.
There is a pressing requirement for the articles to assign proper responsibilities to the formally appointed directors of An Taisce and to remove the current problem where there is a possibility of shadow directors and/or de facto directors directing the company.
The proposed Constitution will clarify the roles and responsibilities of Council and Board and bring them into line with good practice and will align non-executive decision making authority with the statutory fiduciary duty under the Companies Act and the Charities Act. It will now be clear in the Constitution that the Board are to be appointed as directors under the Companies Act and that they will be considered to be the Charity Trustees as that term is defined in the Charities Act (by definition a director of a charity that is a company is a Charity Trustee).
In broad terms it is proposed that the Board of An Taisce, which has fiduciary duties under Company and Charity Law, is ultimately responsible for An Taisce and for ensuring that it meets its statutory duties. It does not manage An Taisce but ensures that it is managed in the way that it wishes to be by agreeing a strategy in consultation with Council and ensuring that the executive, through the Chief Executive Officer, accounts to it for delivery.
In the second half of 2019 An Taisce embarked on a transition and a revisioning of its mission to incorporate 21st century challenges. This includes a widening of the original lens described by Robert Lloyd Praeger in 1948 from ‘the protection of built and natural heritage’ to a more encompassing vision including a focus on ecosystem resilience and biodiversity enhancement as essential to sustain human community and wellbeing. This vision is aligned with our international partners and it is guided by a commitment to the UN Sustainable Development Goals and an awareness of the interconnection of the climate and biodiversity emergencies.
A survey of members late last year by the new fundraising committee confirmed that the focus on climate action has climbed to the top of their concerns. Our An Taisce Climate Committee and our Advocacy team has continued to publish scientifically-informed contributions and to promote greater ambition by the Government. Our Environmental Education Unit (EEU) has an extensive range of programmes with a climate or biodiversity-related focus reaching tens of thousands of participants of all ages all across the country. A lot of the credit for the widespread involvement of young people in climate demonstrations in 2019 must go to the contributions of Green-Schools programmes over many years.
Ironically, our current memorandum and articles of association don't even mention environmental education at all. And we would deny membership to a Greta Thunberg on account of her age.
A glance at our 2019 Report reveals the continuing importance of An Taisce in terms of its impact in education and conserving our natural and built environment.
- An Taisce designs and delivers key environmental education programmes from Irish and international sponsors giving it links deep into the community for the promotion of environmental objectives.
- An Taisce advocates for sustainable planning and development and other environmental issues on a National and European level and retains its position as the only independent environmental non-governmental organisation in Ireland with prescribed status under the Planning Acts. This prescribed status means An Taisce is the only independent body in Ireland that can analyse how Irish and EU planning and environmental law is being implemented nationally.
- An Taisce and the Environmental Pillar operate the Environmental Law Implementation Group in a collaborative arrangement with the Dept of the Environment. ELIG has a unique role as an adviser for government departments in matters of environmental law.
- An Taisce continues to hold important heritage properties and nature reserves in trust for the Irish public and this portfolio continues to expand most recently with a 2400 acre cross-border estate.
- An Taisce's local associations are still vibrant in at least 11 counties and they make a significant contribution to the conservation of our heritage against stiff headwinds.
Each of these parts support An Taisce’s position as one of the leading Irish environmental NGOs however each on its own is challenging from a management and budgetary perspective and together these units require coherent policy to ensure that they work more effectively together. All the more so when account is taken of the amount of voluntary work that is essential to the governance and management of An Taisce.
Coherent Strategy and Policy
The concept of policy is not defined in the existing constitution other than through provisions for Policy Committees. Therefore, it is not clear if the term policy refers to the policy of An Taisce with respect to a particular issue or if refers to external policies or both of them. The common meaning of the word policy is “a course or principle of action taken or proposed to be taken by an organisation”. However it is clear from the existing and proposed memorandum of association that the development of policy is but one of a very wide range of instruments intended to be used in pursuance of An Taisce’s main objective. As such it is but one activity which can be applied in An Taisce’s strategy which is commonly understood to mean a plan of action designed to achieve a long-term of overall aim. It seems clear that policy no matter what way it is defined is a component of strategy and not separable from it. For example, An Taisce may adopt a policy on rural housing or renewables. Clearly this cannot be divorced from An Taisce’s overall strategy which should be holistic in nature and compatible with the objects of the company.
Therefore, even if policy is to be given a distinct position in An Taisce’s strategy the same non-executive body should make decisions in relation to it as part of the overall strategy for the company. It is proposed that the Board of An Taisce will clearly be responsible for finessing both policy and strategy, in consultation with Council.
Council Represents You
It is proposed that Council be entrusted with the role of guarding the long-term values of An Taisce as embodied in the updated Objects set out in the Constitution. In that regard it will be given specific responsibilities.
Council will continue to be responsible for the appointment and/or removal of the Board.
Council will continue to monitor the Board and will now have a right to be consulted in respect of strategy and its views must be taken into account before a strategy is adopted by the Board.
Council will also continue to have a consultative and representative role through appointed Delegate Members from Local Associations and Elected Members from the wider membership. Local Associations with more than 40 members will now each benefit from the opportunity to elect a second delegate to Council.
Council will be tasked with seeking out qualified and interested candidates for Board membership and for appointments to other roles such as the Seanad, Environmental Pillar, etc. Through its Nomination Committee, Council will be tasked with developing a talent pipeline to ensure that motivated individuals are available to serve as voluntary An Taisce Board members.
Council, due to its size and relatively infrequent meeting schedule, is not well positioned to develop strategy and the Board which is directly supervising the executive is the best non-executive body to take this responsibility bearing in mind good practice. Importantly there could be a conflict of interest if Council had both decision-making responsibilities and a monitoring function. It is for this reason that there is a clear division of decision-making authority and accountability in the proposal - any blurring of that distinction could cause an actual or perceived reduction in the effectiveness of both Board and Council.
In order to further strengthen the oversight role of Council, a new role, Speaker, will be established to convene and chair meetings of Council whenever Board performance is to be discussed.
If It Ain't Broke...
It is broken. Council meetings have been increasingly preoccupied with conflict arising from the lack of clarity in the current memo & arts. Seldom are environmental policy and local association concerns addressed effectively at Council meetings today.
Won’t Council have less influence on policy in the future?
The proposed Constitution actually gives the Council a greater role in strategy development albeit as a consultee. Currently the Council does not have a formal role in strategy except through approval of the budget but with the proposed constitution it will have a well-defined influential and enhanced role to play.
Unlike now, the right of Council to be consulted by the Board will be enshrined in the proposed new rules of An Taisce as will the obligation on the Board to have regard to the views of the Council. Members of An Taisce should be familiar with the influence a consultee can have and it is likely that the Council’s views will be influential on the Board.
What will Council's role be going forward?
The proposed structure reinforces the Council’s role as the long-term guardian of the objects and values of An Taisce and its important role as a conduit between the organisation and its members. These are important responsibilities and require diligence and effort to ensure that it considers the Board’s reports and proposals and prepares considered and constructive feedback to the Board as well as investing in updating the membership and local associations regularly.
What happens if we do nothing?
While An Taisce could continue to operate under the existing Memo & Arts, there are operational and legal difficulties with this choice. It would continue to raise question marks with An Taisce’s regulators and it creates a barrier to real success.
There needs to be a single authority for strategic decision-making and that should be the Board of Directors and Trustees. From a compliance point of view, the vague division of directors’ duties between Council and Board is risky for the organisation and for the members who serve on Council and Board. Members of Council in particular may be considered to be directors under company law yet could be unaware of their duties, the risks they are assuming and may not be covered by An Taisce’s insurance policies.
Crucially, most local association delegates would be dissuaded from serving on Council if they are obliged to assume the fiduciary duties of a company director and this will harm the important role of Council as the interface between the Local Associations and the central organisation.
It is hard to see how new people could be encouraged to give their time and passion to either body where structural disharmony persists.
Our thanks to Fred Logue, our company solicitor, especially for his advice on our new Constitution over several years. Thanks also to former officers Charles Stanley Smith and James Leahy who architected the proposed Constitution with careful inputs from many people including Attracta Ui Bhroin and many others. And my thanks also for extensive contributions this year from Phil Kearney, John Sweeney, Mark Clinton, Pat Oliver, Michael John O'Mahony, James Leahy, Alison Hough, and Hugh O'Reilly.
If members seem supportive of this idea at our AGM, we’ll put a special resolution on our constitution to a vote requiring 75% support at an extraordinary general meeting in October. Meanwhile, I’m working with the Charities Regulator, the Companies Registration Office and the Department of Enterprise to pave the way for the possible replacement of our Constitution by members at that EGM.
Have your say
Please send me your comments by email to email@example.com or comment directly on the live Constitution doc here if you prefer.