ASA CONSTITUTIONAL REVIEW

INITIAL CONSULTATION

Background

At its meeting in October 2007 the ASA Board received a paper prepared by the Chief Executive inviting a review of the current ASA Constitution.  The paper recommended, in particular, a Working Group be formed to consider amendments to the ASA Constitutional Laws (as opposed to Technical Laws), to move towards a framework approach that protects members with strong enshrined principles of corporate governance whilst allowing flexibility in the development and amendment of Protocols and Regulations that govern day to day activities of ASA and its members.

The Board agreed to the following recommendations:-

A Working Group to be formed comprising of five people of which two should be ASA Board Members to review all constitutional laws with a view to proposing a move to a framework approach.

The Working Group was tasked to report back to the ASA Board with a view to proposals (if approved) being placed before the 2008 ASA Council Meeting.

The Working Group was duly formed comprising of the following members

      Dr Leigh Robinson
      Mr Roger Hargreaves
      Mr John Carrie
      Mr John Bird
      Mr Andy Gray (ASA Head Of Legal Affairs)

External legal support was provided to the Group in the initial stages of the review by Mr Jonathan Taylor, Bird & Bird solicitors, London.

Agreed Approach

It was agreed that, in order to ensure that the ASA’s constitution was flexible enough to allow it to adapt quickly to external change whilst also maintaining principles of good governance, the existing constitutional provisions (including the ASA laws, the Technical rules and the Judicial rules), and the mechanism for amending them should be restructured along the following lines:

Laws – these would be the “core” principles of the constitution, i.e. those provisions that “regulate the relationship between the ASA and its membership in their capacity as members of the company”.  These can only be added to or amended by the ASA Council at general meeting (in accordance with the procedure set out at Law 25).

Rules – these would consist of the “operational” rules of the ASA constitution which “regulate the terms of which the members participate in the sport”.  The ASA Council would delegate the power to alter, issue and amend these Rules to the ASA Board.  Any decision of the ASA Board to amend these Rules would always be subject to ratification by the ASA Council at general meeting.

Guidance/Protocols – these would be produced and amended by the ASA’s professional staff/committees.

A review of the current Constitution was thus undertaken by members of the Group culminating in the production to the ASA Board at its April 2008 meeting of an Excel spreadsheet containing a skeleton outline of the form of a revised Constitution recommended by the Working Group.  Use was made of a traffic light system to indicate those matters which will remain in the ASA Constitution (noted red) and those noted green and blue which would remain in force albeit with the status of subordinate regulations/guidance materials.

Traffic Light System

As identified on the Excel spreadsheet 

Red – Indicates those principles and intentions which should remain or be transposed to constitutional laws which may only be changed by two thirds majority of the ASA Council.

Green – Indicates those matters which should remain as mandatory but which will assume the status of regulations and which may be changed by a majority decision of the ASA Board and subject always to subsequent ratification by the ASA Council.

Blue – Statements of principle and intention with regard to matters which will assume the status of guidelines/operational protocols (or similar) changes to which may be made by the appropriate ASA personnel to whom delegated authorities are vested by the ASA Board but in respect of which changes do not necessarily require the affirmative decision of the ASA Board.

The Next Stage

There is attached to this Consultation Web Page below a mock-up of the proposed revised Constitution (i.e. those items identified in red in the Excel spreadsheet).  It should be noted that these items have been simply transposed from the existing
ASA Constitution to illustrate the principles and intent which will be put before
ASA Council for consideration in October 2008.  Further detailed refinement (including renumbering and the introduction of appropriate enabling provisions to link together the Constitution with the Regulations) will thereafter be necessary in the event that the changes in principle were to be agreed at Council.

There is also attached an outline set of Regulations of the ASA (green items) which will assume the status of regulations and the guidelines (blue items). 

Again these are attached for illustration purposes only as again further detailed work will be required in regard to refinement of these matters and to ensure that the ASA Constitution and subordinate regulations dovetail together.

In essence, it is the intention that those fundamental items which establish the relationship as regards the ASA members “inter se” ( i.e between and amongst themselves) and with the Association should remain within the Constitution.  For that reason the appointment of an ASA Board and its Constitution, the requirement to hold an annual general meeting and the creation of the office of Trustees with the power to hold property are fundamental constitutional matters.

However, in light of the wish of the ASA Board to consider a more facilitative and framework Constitution the detailed practical arrangements governing the workings the ASA Board (and various committees and the Judicial processes) would be a matter for subordinate regulation, subject to the safeguard that any changes are subject to ratification by the ASA Council.

This Consultation exercise was posted on the ASA website on a dedicated page on 7 May 2008 with a view to engagement in a consultation process for an initial four week period expiring 4 June 2008.  During that period any ASA member is invited to provide feedback with regard to any aspect of the proposed constitutional changes.  Following the closure of the initial consultation period all responses will be reviewed by the Working Group who will take due account of all representations in formulating a Report for consideration by the ASA Board at its meeting on 27 June 2008.  At that time a decision will be made by the ASA Board, based upon the initial Report of the Working Group and comments and representations from the ASA membership, as to whether to put forward the proposed new ASA constitutional framework for consideration at ASA Council in October 2008.  It will of course be open to the Regions and the ASA membership to further consider their responses to the consultation exercise as part and parcel of the democratic process of County Association and Regional Council Meetings during the early Autumn period and prior to the ASA Council Meeting.

Responses to this consultation may be posted on the ASA website by completing the Feedback Form or alternatively by e-mail to the ASA Department of Legal Affairs whose e-mail address is legal@swimming.org or alternative by hard copy correspondence to ASA Department of Legal Affairs (reference ASA Constitutional Review) Harold Fern House, Derby Square, Loughborough, Leics LE11 5AL.

We very hope that you will take this opportunity to contribute to this consultation process.

Andy Gray
ASA Head of Legal Affairs
On behalf of the ASA Constitutional Working Group

1 May 2008.