SPEAKER_03 0:00

Hello, you're listening to the Philanthropisms Podcast. This is the podcast where we try to put philanthropy in context. I'm your host, as ever, Rodri Davis. And this is the ninth in our partnership series with the European Research Network on Philanthropy, or ERNOP, where we talk to academics whose work's been featured in the latest release of practitioner-focused research notes from Earnop. And this time we're talking to three academics about three really interesting papers. And so first up, we've got Mark Orberg, who is an assistant professor in the Department of Business, Humanities and Law at Copenhagen Business School. And I talked to Mark about a paper he's got on enterprise foundations, so foundations that are owned by nonprofits, which is a model that is relatively common in Denmark and in some other parts of Europe. And that paper is called Enterprise Foundations and Faithful Agency as Drivers of Sustainable Long-Termism in Philanthropy. Then next up we've got uh Michelle Fujial Gartner. And now Michelle these days is uh a bit like me, wears a number of hats, but she is a consultant and a philanthropy researcher and expert, but also keeps one foot in academia. She was at the University of St. Andrews, where she did her PhD, and she now has a part-time role at Carlton University in Canada. Uh, and her paper is called The Changing Nature of Foundation Work: Advancing the Field by Understanding the Foundation Professional Experience. It's essentially looking at the role of people who actually work in foundations, particularly family foundations in the UK. And it's a really interesting paper. And then last but by no means least, we have Una Breen. Now, Una is a professor of law at the Sutherland School of Law at University College Dublin. And her paper is on what it's called regulatory reviews, revolutionary reimagining of charity law or simply restatements of convenience. And it's looking at the nature and role of regulatory reviews of charity law in a couple of different uh comparable jurisdictions. Um without further ado, let's get into the interviews. Uh, I hope you really enjoy them. I, as ever, really enjoyed having the conversations. Um, I will put links in the show notes to places where you can find the relevant research notes and the papers themselves, and I'll be back at the end of the podcast for the usual bit of housekeeping. So, first up, we have Mark Orberg talking about his paper on enterprise foundations. Okay, great. I'm here with Mark Orberg. Hi there, Mark. Hi, thank you for having me. Oh, it's great to have you on the podcast. Um so, yeah, we're here to talk about uh a paper of yours that has been turned into one of the earnot research notes. Um the paper's called uh Enterprise Foundations and Faithful Agency as Drivers of Sustainable Long-Termism in Philanthropy. Um I'll ask you in a minute on what it's all about, but it's a really timely one because it relates to a story that I know lots of people have been fascinated about. Um, the the move to put Patagonia, the company, into uh, well, essentially into sort of non-profit ownership and kind of whether that's unique or whether there are precedents. I'm really interested to talk about this. But yeah, maybe you could just say a bit in your own words about what the paper's about and what some of the sort of key findings in it are.

SPEAKER_02 3:22

Yeah, sure. Um well the paper is about enterprise foundations in different variations and structures. We see them in continental Europe, we see them in the UK, we see them in USA, we have OpenAI, we have Patagonia across the Atlantic. In Europe, we have Nobonordisk, which is the largest company, one of the largest now owned by an enterprise foundation. And a lot of companies, even like every year, more companies are owned by enterprise foundations. And that's why I started looking into it. And the reason why myself and others would see it as interesting is because enterprise foundations are non-profit owners, and there are literature that suggests that they are more long-term and more sustainable and driven by what you could call responsible business. And especially in these days, this is very interesting because if you can find existing company ownership structures that promote sustainability and responsible business, that's that's what we want. That's the holy grail. That's if we already have it, then we don't have to invent something new. So that's a reason for going into the paper. And I compare the US system with the Danish system and the similarities, but also where it's different and how it actually functions both legally and with a lot of examples of foundations and foundation-owned companies that function well and delivers in terms of sustainability and philanthropy.

SPEAKER_03 4:51

Yeah, it's really interesting. Um, and I guess you know, we probably don't want to go too much into the the detail of the legal side, although that that's kind of you know where the interesting stuff is, in a way, because this does come down to how do you kind of uh define those legal structures and and then kind of um how do you make them work in practice. But um maybe you could just say a little bit about um the differences between the context in the US where you know the Patagonia examples happened, and as you said there, the context of Denmark, where there are quite a lot of existing examples of this happening um for quite a long time.

SPEAKER_02 5:24

Yeah, the US uh is very much influenced by there was a tax reform in 69, and it was in practice impossible to have enterprise foundation structures. But then legal developments meant that suddenly it was possible in the US, and now we have Patagonia, we have OpenAI as the two most remarkable examples in the US. But for 150 years at least, we have these enterprise foundations in Europe. You could say Karlsberg is owned by one, Novonordisk, Rolex. In Germany, you have a lot of the big companies, Bosch, Karl Seiss, Mahle, and others. So you have some of the giants in Europe controlled and at least partly owned by enterprise foundations. And in Europe, it's I mean, in the beginning it was mostly rich people making these foundations for philanthropic purposes, but also to make their company and legacy survive for a number of years, perhaps in perpetuity. So I think from the beginning they wanted to integrate philanthropy with business, but they didn't like think about how it was possible. They just somehow did it in uh Switzerland, Denmark, Germany, Norway, IKEA, and Sweden. We have so many of the large dominant companies in continental Europe owned or at least controlled by enterprise foundation structures. And if you want in a nutshell, what is the enterprise foundation? I think the most important thing is that it's non-profit. It has no members, no owners, and then they control a company. But um the reason for them to control the company is to get income, generate income so they can give away grants to public good social uh purposes. And then you of course need someone to ensure that the foundations do not drift away from their mission and they fulfill their distribution purposes, they need to give away money to the public good that they were like that's in their stated purpose. And if they don't, then the regulators in Denmark, the foundation authority in UK it's the charities regulator. I think in Ireland it's called uh the charity regulator. So you have a public authority that will intervene, but only when it's very necessary to check if philanthropy is not fulfilled.

SPEAKER_03 7:43

And is is that one of the differences maybe between the context in continental Europe and certainly in the US? Because there obviously nonprofits are, I think, solely regulated by the tax authority. So there isn't this separate regulation of are you actually fulfilling the public good? And is that the missing piece of the puzzle, maybe?

SPEAKER_02 8:02

Yeah, indeed, that's the main difference. And I think in the coming years, we would expect the US to enact rules because now that it's possible because of recent legal developments, they would need someone to make sure because there's an attorney general who might be able to do something, but they don't have resources, they don't have expertise. So I think there's a big black hole in the US legal landscape, and they would want to sooner or later to make a more optimal legal regime. And they would look to Europe and to uh UK where you have these regulations of charities or enterprise foundations with philanthropic purposes. Yeah.

SPEAKER_03 8:38

And could you say a bit briefly as well about one of the the kind of important differences, I guess, between some of these places, particularly again continental Europe and the UK and the US, in terms of the difference between places that have a common law system and those that have a civil law system? Can you just say a bit about what that difference is and how it relates to this question of enterprise foundations?

SPEAKER_02 8:59

Yeah, the two systems develop in different uh the you took different approaches in common law and in civil law. In common law, you have the trust notion. And in most civil law countries, we don't have the trust concept. It's just it's foreign to us. So instead, we invented similar structures with legal personalities, and that's the foundations. And of course, foundations they need a purpose because they don't have owners, they don't have shareholders, they don't have members. So they need a purpose to which they can give away money and wealth. And then the basic idea in an enterprise foundation is that you have two purposes. You have the business purpose and the public good purpose. Public good purpose is that you're giving away wealth, let's say to uh schools or universities or whatever public good charitable purpose you have stated in your charter. But then the business purpose is different. Of course, it's more or less the way that you're supposed to generate income and make money for your public good purpose. But at the same time, it's elevated to something more. You need in many cases to be a responsible owner. You need to have a more long-term side because you want to be able to generate money also in the future to make sure that you can give away wealth to public goods. And I think that's the most interesting thing about enterprise foundations because we can see in practice, if we look at some of these large companies, some of them perform very well. They do a lot of philanthropic activities as well, and that's the most interesting thing. If you can have capitalism, because the firms that are owned by Enterprise Foundation, they want to make money, they want to generate income. Of course, it's a part of capitalism, but what it looks like is what uh Professor Henry Hansmann from Yale University called the uh when you take the rough or the hard edges of capitalism, what you could call some sort of soft-edge capitalism in practice that is already happening. Because if we can see and we have empirical evidence that the foundation-owned companies perform well but also perform capitalism in a more sustainable way than the comparable companies, then it's immensely interesting how they work and how we can ensure that we have mechanisms, both public and private governance mechanisms, that ensure that they stay on path and that there's not the like the risk of mission drift is as little as possible because you will always have someone who will break the rules, but it's so interesting to see how they most of them, especially the big ones, the enterprise foundations, how they're able to both balance the business side and the philanthropic side, and that's the unique thing that it the balance is there, and we still need better explanations for why it's functioning so well, but we can see it's there, yeah.

SPEAKER_03 11:57

Yeah, and and you obviously some of the examples that you've given there in the European context are companies that have been doing very well for a long period of time, so clearly have made this work and it hasn't disadvantaged them. I just wanted to ask, because you mentioned the example of OpenAI, and I think that's a really interesting one because it does seem there as though this attempt to combine a non-profit structure and a sort of commercial imperative hasn't worked so well for whatever reason. And I just wondered, do you think that is to do with the fact that the US doesn't have the right structures in place in terms of something like the Enterprise Foundation, or is it something different to do with you know the way the technology sector works?

SPEAKER_02 12:33

I think, well, to me, the the problem with open AI, so to take it down to the basics, you have OpenAI, the nonprofit owner, and then you have OpenAI, the company that owns and runs and develops the Chat GBT. And then the question is, of course, if you are controlled by a nonprofit that is actually classified in US tax law as a charity, how does that charity then, as the controlling owner, balance the business needs, also the interests of the co-investors with the philanthropic purpose? How do you measure the philanthropic purpose? How do you make sure that there's not mission drift and you end up doing business with tax exempt dollars? And that's the main problem. And I think without regulators, without some mechanisms, private or public, that can step in when you go outside bounds and call balls and strikes and say you went outside your mission, you have to go back. If you don't have mechanisms to stop mission drift, you will have a problem. Then of course, it's very hard to measure mission drift when it's about what is uh safe and open artificial intelligence that will benefit the whole world. That's very broad, it's very vague, so it's difficult, but I think it's possible to have rules. And I think the US in particular, in terms of these charities like OpenAI, the legal regime is not fit for uh ensuring uh or minimising mission drift.

SPEAKER_03 14:14

Yeah, really, really interesting. And as you say there, I mean it perhaps even more complicated in that context because there is probably a lot of disagreement about whether the development of AI itself is sort of benefiting humanity. So some people would see that as a legitimate social purpose, and other people would disagree. But um, I just wanted to zoom out and and ask um a little bit about your sense of the kind of wider picture in terms of the relationship and the links between practice and academia when it comes to philanthropy, because obviously the purpose of this research notes series is to try and overcome a sort of perceived gap where sometimes the work that's going on in academia doesn't necessarily influence practice as much as it could and vice versa. What's your experience been so far of engaging with practitioners? Have you found it useful to do and kind of have you found it informative?

SPEAKER_02 15:02

Yes, for me it's uh absolutely necessary to talk to practitioners because especially if you want to do like me and compare rules and how they work in different jurisdictions. Of course, I can read about the rules, but to know how they function in real life, I need to ask practitioners, I need to ask professors, I need to ask business leaders or board of directors, uh members of the governing board and enterprise foundations, or I would not get the real picture. So I would usually myself try to talk to the people who both are in charge of philanthropy side and business side of their organizations, because if to me, the most interesting thing is how you get structures that um emphasize the ability to both generate money and then to give away money. So giving away money to the most uh prominent projects or whatever, wherever the need is the highest is very subjective. And it's hard for me as a scholar to say that's part of philanthropy. But making money and being a responsible owner is the most interesting part, and the only way we can write about this as scholars, whether lawyers or economists, I think is with taking examples from real life. Whether you go look at Rolex or Patagonia or OpenAI or Mozilla, the Firefox browser or whatever product and ownership model we have, we have to take a deep dive into those specific models, and then we can categorize them and start to make sense. But the problem is with so many firms under so many different legal regimes, it will take time. But I think we we we're getting there, but without the industry, we we would have no chance to get ahead. Yeah.

SPEAKER_03 16:53

Yeah, absolutely. And and just finally, I wanted to ask, because obviously um often when I'm talking to people about these papers, because of the way academia works, this is relating to work that was done a few years ago and people have sort of moved on and developed. I just wondered what it is that you're focusing on now. Is it kind of more more looking at the area of enterprise foundations, or are there kind of other angles you're interested in as well?

SPEAKER_02 17:13

I think different variations of enterprise foundations would be my focus because it's just like every day we get new examples of enterprise foundation structures across the world, and we see how they're proliferating, and we see so many examples we did not know yet was existing. For me, example, I I thought there was only one or two uh in UK, but then uh we're finding out that there's many more actually charities owning and controlling businesses and uh doing something that is almost the same as the enterprise foundations in continental Europe. So finding the examples, explaining them, looking into the legal regime and the social investment rules, for examples, for charities in England is uh it's very interesting because we can find and argue about which legal regimes would be the best. Of course, it's sometimes dependent on the whatever, like the country or the culture or the social stuff. But in many cases, it's interesting to take the legal structures and legal regimes and rules and see could we transfer them and implant them in another country, what are the pros and cons, and give at least an academic perspective of would this be advisable for us in Denmark, Sweden, Germany, or UK to see like how do we help philanthropy becoming more prominent and also at the same time making philanthropic institutions, non-profit, making it like making them ensuring that they're able to also have business interest because then they can inform that business and say, as owners, we of course want to generate income and give away to the public good, but also as owners, we want to be responsible owners, we want sustainable business development, and I think it's now an integrated part of philanthropy, and I think to me at least it's almost as important as giving away grants. Yeah.

SPEAKER_03 19:26

Yeah, and I mean, I guess uh the point's been made many times that actually arguably you could have a greater impact on the world by effecting a 1% change in how business is done than giving away very large amounts of money. So actually, if you're able to do both effectively, then your impact's going to be hugely magnified. Um just remain to say thanks ever so much, Mark, for coming on the podcast. Really, really interesting to hear about the research. Um, I'll obviously put links in the show notes to places where people can find the research note and the paper, and yeah, definitely recommend reading it. Um and best of luck with all of your research in the future.

SPEAKER_02 19:58

Thank you so much. I really appreciate it. Thank you.

SPEAKER_03 20:10

Next we have Michelle Fujil Gartner talking about her paper looking at people who work in family foundations. Okay, great. Well, I'm here with Michelle Fugil Gartner. Hi there, Michelle. Hi, Rodri.

SPEAKER_01 20:23

How are you doing today?

SPEAKER_03 20:24

I'm good, thank you. Yeah, I think a bit earlier for you than it is for me with the time difference. Um to you. Um but yeah, we're here to talk about a paper that you've got uh featured in the latest um release of Earnop Research Notes. Um the paper in question is The Changing Nature of Foundation Work, Advancing the Field by Understanding the Foundation Professional Experience. So as it suggests, it's all about people who actually kind of work in foundations and trying to understand them a little bit more. So, yeah, maybe the best place to start is if you could tell us a bit about what the paper's about and what some of the kind of key themes and findings in it are.

SPEAKER_01 20:56

Sure, absolutely. So my research is really interested on individual experience working in foundations. Um, that's a lot of pulled out of my own practitioner experience of accidentally finding myself in a foundation. And one of the things I realized that when I was embarking on the research was that we often look at foundations from an organizational level. So the critique, not by me, but uh by another author, has been that we kind of treat them as monoliths and we talk about their actions and behaviors as if they're this one big organization. And so I was quite interested in the individual experiences. And that led me into looking at the idea of the foundation professional and how that role has changed over time. And in this particular paper, these were the findings that were really aligned with the field and as I called in the paper, foundation work. So, how do we understand the foundation work as seen through the experiences of people who work in foundations? And that's really the um the emphasis of the paper.

SPEAKER_03 21:57

And and in terms of what you found, um Did you get any sense of whether there is then meaningfully any such thing as a sort of typical foundation worker? And I should say, are we talking here about foundations in the UK or in the US or any particular kind of foundation?

SPEAKER_01 22:11

That's a really good uh question. So with the literature that I looked at, and it's not as highlighted in this paper, uh, it's very US-centric, right, as one would expect. We have a bit more of a track record on how these roles develop in the US. This particular paper is findings from UK uh UK Family Foundation CEOs. So I wanted to demonstrate that these roles exist in other jurisdictions and that there are similarities and differences to how these roles have developed. And I think your your question was are is there anything sort of the nature of the roles? I think the biggest thing to say is that, and again, these were CEOs, so that had to be a choice in the research to look at CEOs. And often that's the case because foundations aren't always staffed. And so you might have one staff person or one and a half, something like that. So the the most senior ranking staff person. The the reality is that there's no shared education regulation or certification of these roles. I'm not saying that for any sort of judgmental way. It's just when I looked at it, I used the study of professions as sort of a conceptual lens. And so if you think about other professions like accountants or lawyers, that's where you really see some of the variation in sort of foundation professionals. We don't have that group adhesion that you would see in other, you would expect to see in other professions. And that's like a very distinct characteristic of these roles.

SPEAKER_03 23:38

And and on that particularly, because I mean it always strikes me, particularly when you're talking about family foundations, is you know, that that whole thing people say, you know, once you've seen one foundation, you've seen one foundation. And that's very true. And the same is true, I guess, of foundation professionals. Do you think that lack of a sort of formalized or specified career path in into those kinds of roles, do you think, you know, on balance that's a strength or a weakness? And particularly from the point of view of, you know, is it inclusive in the sense of it leaves it more open to a wider range of people, or actually does it end up being exclusionary because it's more dependent on pre-existing networks?

SPEAKER_01 24:12

Yeah, I think this was one of the pieces that really I struggled with explaining and also understanding myself in the research. So in the discourse in society and also in foundation work, we talk about professionalization a lot. And, you know, there's proponents who say professionalization is what we have to do. And I definitely came into that position. I was in that positionality when I came into the research. But what I realized was there's these um amateur traditions in foundation work. And this is just demonstrated by sort of lack of formality of policies, lack of formality of job descriptions, and that really keeps it very close to the philanthropist, too, oftentimes. So there's a balance in that story. And this paper doesn't draw that out specifically, but in those amateur traditions, you could imagine there's good and bad. If you look at the other side of these like emerging professional influences, and then if you look back at the study of professions and to say, well, there was a lot really done that we still hold on to from like 1950s US-UK sociologists, you can see that like professionalization isn't this utopian situation that maybe we talk about it as. And so there's again in that narrative good and bad. And I think one of the things I realized was that people have had the opportunity to come into foundations who may not have otherwise had that opportunity. There is research. Uh, Teresa Odendahl and her team did research talking about women in foundations and how they came into foundations because there were no those barriers weren't already there, but also they were limited because of that. So, again, I re what I think I came out of this research to say is like we need to have those field level and internal foundation discussions and understand what those structures are and be transparent about them before we add like a judgment of we should be here or there. I came out of this research more concerned about the potential over-professionalization or the rhetoric that we should be extra professional. And one of the evidence pieces is that the literature on foundation professional roles have kind of moved into this competency codification realm where we're saying these are the skills, these are the characteristics. And there's a couple of reasons for that. One, there's been gaps in this research, so it makes sense that professional associations have gone in this direction to say we need to assert the legitimacy of these roles. And one of the ways to do that is to sketch out what the role is and who should sit in it. And as you can imagine, that's also limiting. So if you have a sketch of who should be in the role, is that better or worse than these amateur traditions? Again, the paper didn't fully go into that. I just think in terms of reflection and identifying that structure for the field, that's the next question. Like, what do we do with this?

SPEAKER_03 27:02

Yeah, really interesting. And it seems like a similar conversation is going in the world of fundraising as well, where I think that idea between does it need to become more of a sort of professionalized um career path with you know recognized qualifications and all this sort of thing, or actually does that then exclude people and you should be kind of emphasizing the slightly more informal nature or other aspects? Um, I wanted to ask as well, just uh in terms of you know, you focusing on family foundations, particularly in the UK, do you think that this is a phenomenon that's kind of particularly acute there? And is is that in part, you know, is the UK different to the US, for instance? You know, would you say that the foundation sphere there has a slightly more kind of um professionalized feel, or is though the career paths are slightly more set? And also, is there something you know slightly unique about um family foundations where you kind of alluded to already that the line between the individual and the institutional is quite blurry often, if particularly if you've got a heavily involved living donor?

SPEAKER_01 28:01

Yeah, those are both really good questions. So I think what I've come to about the US, well, one, there's yes, there's more people in the field, there's more foundations, there's also more philanthropic uh institutions, so higher education, media, uh professional associations, and so those are actually really influential in in the realm of professionalization, sort of the isomorphic uh forces that play into that. And I think I would just hold that as like those are crucial for professionalization to occur. In the UK, I was surprised that I think the direction of travel is very similar. And actually, post-World War II, I think we see the UK and Canada too, you get more foundations, and I think we see this speed up and rapid redevelopment of how the role changed in the UK. So, yes, post-World II, maybe there was sort of appointed former civil servants and former military in these uh highest senior foundation roles. And we've certainly seen a change in that to people who um come from the charitable sector or have particular experience and they feel like this is their career. So I definitely heard that in the UK setting. So is it a I can't tell you if it's a rapid speed up to join up where the US is, but it definitely feels like that is more they are more aligned than they are different, I think, at the moment. The one thing I would say is that it's just that, and I don't want to say lack, it's just the absence. And and and of course, there are more higher education offerings. There are many research institutes in the UK around philanthropy, and there are emerging professional associations and sort of a major one. So those elements still exist. I guess I would just say, again, without us blindly walking into the the ideal of professionalization, how can those institutions help us really reflect on what are the good pieces of that and what might be the pieces that we accidentally leave behind if we go too quickly into one direction? And I think family foundations are a really good example of where this tension sits because, like you said, you might have a living donor, you might just have family members. This is coming from a place of individuality and how they want to achieve their social purpose in the world. And I think that does, and certainly in the interviews, there were people who felt they were family foundations and people who said, Well, we're very independent, because even though we have a family name, we have independent governors. And so there within that family foundation, there's a spectrum of people who actually identify as family foundations, which is another sort of finding of the whole research. I think it's a really unique setting to say they may not be as interested in professionalization as maybe some other people. I think we have to take that seriously. I think it if it impacts how the role develops and it impacts what we see. Um I think we need to understand it better.

SPEAKER_03 31:00

Yeah, absolutely. Yeah, it's really interesting, and maybe sort of you know, more granularity overall in terms of talking about foundations as a whole. Because I think sometimes again we talk about them as if they're comes some sort of homogeneous mass, and they really aren't at all um, you know, on a case-by-case basis. But also, as you say, when you think about corporate foundations versus family foundations versus, you know, legacy institutions, they're all very different. I just wanted to zoom out and ask a bit, you know, your this research clearly is very much sort of based in engaging with um practitioners and you yourself, you know, as well as the the academic stuff, work as a practitioner. So I just wondered what your sense is of what those links are like overall at the moment. Do you find it kind of easy to step between those two worlds, or do you think there are still kind of pieces of that puzzle that are missing?

SPEAKER_01 31:45

Yeah, I mean, I feel really uh lucky at the moment that my work and my roles interweave academics and practic and practice. I think we have more work to do. I mean, I I feel it on an identity level, the complexity of how this works. So I also realize, you know, um I have a very supportive colleagues and a very supportive team, but I'm also, you know, trying to help people understand what research is, that that we don't always have to say, oh, it's academic in a bad way. Like there's a lot of value into having conceptualization, especially of this emerging field. And so that can really help us in our work. But I definitely think there's more to do. Certainly when you just look at even their the field level in that regard, you know, the the conferences don't really talk to one another. You're not getting the same people at the academic conferences that you are at the practice. How is this information weaving into an impact foundation practice? And I think there's a lot more effort and sightline on how to blend that and how to transfer knowledge. So I see that on the field, in the field. I just feel like the the actual people connectors, the there's they're kind of few and far between. They're in very, very important um placements, but I don't think there's a ton of us, so to speak.

SPEAKER_03 33:01

Yeah, absolutely. And it's you know, as you say, it's a really interesting space to be in, but you know, also a challenge in that there aren't that many of them, and it's sort of not entirely clear always within the field as a whole, kind of where you know, where that work sits. I also just wanted to ask, um, because obviously a lot of this, you know, these papers tend to be slightly backward looking, as with a lot of academia, it's about what you've done, and quite often that's a few years ago. Um, what in terms of your sort of academic work or your um your research interests, are you uh you know looking at kind of more around the same sorts of areas or there are other areas that you're looking to work in?

SPEAKER_01 33:33

Yeah, absolutely. I think there's still, I think in this space, and I really welcome more researchers to come in and think about individual foundation experience, foundation professional experiences and individual foundation experiences. I'm currently looking at putting together a report on working in Canadian foundations, very much built on the uh 1985 Teresa Odendahl uh and her team book on working in foundations in the US. I think, again, more of this type of research is helpful. And so that will be continuing that thread. I'm also quite interested in Anne Heyer's Foundation Triangle. Uh, I wrote a paper for uh Philanthropic Foundations Canada last year where I brought in that conceptualization as a way to understand the findings. And I think both for fields, sort of like jurisdictions, it's really helpful, but also individual foundations. I just feel like if individual foundations are able to express almost in a shared, like a framework, shared language, how they're using their foundation to support civil society, not like what their strategy is, but these sort of higher, you know, what is it, what are we using this tool for? So I'm working on some of uh that uh research right now. So um, and also women in philanthropy. I had a podcast, and I'm really interested in trying to aggregate the experiences they've had in philanthropy in all of their roles. So it's all with the same general vibe uh as this this research is, but slight, slight nuances.

SPEAKER_03 35:00

Yeah, great. Sounds I mean fascinating. And I think that the the whole question of the sort of the role of the the philanthropoids rather than necessarily the the philanthropists is is really interesting and understudied. And I've often thought this from a sort of historical point of view. I I'd really love a book that kind of looked at some of the key figures in the foundations who, you know, not the donors and not the recipients, but the people who've been uh responsible for administrating it. Because actually there's some really kind of major figures who've had an enormous impact without people often really quite knowing who they are or what their names are.

SPEAKER_01 35:33

Absolutely. And there's I think they're sprinkled through certain but, but I agree with you, like, and if I'm you know ever able to turn this research into a book, I'd be very happy to do so.

SPEAKER_03 35:42

Great. Uh listen, Michelle, just uh maybe say, yeah, thanks ever so much for finding time to come on the podcast. It's great to hear about the the research and yeah, certainly wish you all the best with it in the future.

SPEAKER_01 35:51

Thanks so much, Roger. I really appreciate it.

SPEAKER_03 36:01

And finally, we have Una Breen talking about her work looking at regulatory reviews of charity law. Okay, great. Well, I'm here with Una Breen. Hi there, Una. Good afternoon, Rodri. Very nice to hear you. Oh, it's great to have you on the podcast. So, yeah, we're here to talk about a paper that you've got featured in the latest batch of Earnop Research Notes, and it's titled Regulatory Reviews: Revolutionary Reimagining of Charity Law or Simply Restatements of Convenience. Um, so maybe the best place to start, as usual, is for you just to tell us a bit about what the paper's all about and what sort of some of the key themes and findings in it are.

SPEAKER_00 36:36

Well, well, thanks very much for the opportunity to talk about this paper, Rodri. I suppose the research itself came about as the result of an invitation from the Charity Law Association of New Zealand and Australia clans and the Laws Council of Australia to take a topic that I was passionate about and reflect. And this is the one that I prepared for an inaugural lecture for them, turned it into a publication with voluntas, and was delighted when Earn Up said practitioners might be interested in this. So, what does the paper do? Well, the article investigates essentially a decade of charity law review processes across six common law countries. And the aim of the paper is to look at those different regulatory processes, and the anatomy, I guess, of a regulatory process, to put it under the microscope and look at the life cycle of a review of charity law. What do you do at the start? Where do you end up at the end? And is it successful? And one of the key features of this paper is it takes two different cohorts of regulatory reviews, one lot which are statutorily mandated. In other words, the charity legislation itself requires the government to commission a review or to carry out a review, and a second group where there is no similar statutory provision that mandates it, but political circumstances have made it expedient to carry out those reviews. So that's the first comparison of groups. The second interesting comparative factor that we find amongst those two groups is that one group are running independent regulatory reviews. Somebody external to the regulator, external to government, is appointed to carry out the review and reports back to government with a report of findings. And in the other, they're what I call the government-owned reviews, where it is essentially a paper put together by a government department, often with the help of the regulator of issues they are reviewing. And I was very interested to see whether the outcomes of those different factors were different and what were the common themes we found across all six countries. Just for the reader's interest, the countries I was looking at over the past decade of reviews were Australia and New Zealand, England and Wales, Scotland and Northern Ireland. And being an Irish woman, I could not leave Ireland out of the six. So those are the group of countries, common law countries who engaged or were required to engage in a charity review process.

SPEAKER_03 39:19

Yeah, that's really, really helpful overview. And certainly as somebody who in a previous life spent a bit of time actually having to kind of submit on behalf of an organization to charity law reviews. It's really interesting to see that comparative view. You mentioned there that one of the differences is between those reviews that are independent in terms of they might be sort of set by government, but they are run and owned by an independent um body that then makes recommendations to government and those that are owned by the government themselves. In terms of the sort of notable differences between them, what did you find in terms of what they what their likelihood was in terms of making recommendations, particularly about the regulator? I noticed that was one of the things the paper noted.

SPEAKER_00 40:01

That's certainly a key feature of the difference between these two groups, Rodri, is that if you are an independent review panel and the regulator is simply a stakeholder in the process, in the same way that charities might be a stakeholder in the process or the public might be a stakeholder in the process. What you will tend to find in those instances is there is greater scrutiny of the work of the regulator. And that plays all the way through to the recommendations that tend to be made in those reports vis-a-vis the regulator. There will be a greater number of recommendations that focus on regulatory change. It might be cultural change, it might be practice and procedural change, it might relate to the way in which a regulator uses its powers. Where we have a government-owned process instead, what we tend to find in those instances is that the regulator is often a key player, a favoured player almost, in the carrying out of the review of itself, essentially. Often it will be involved in writing the original paper that will inform government discussion. We saw that in Scotland with the targeted regulatory review paper that Oscar produced in 2016. Those recommendations fed into the modernisation paper in 2018. So we see the regulator very much shaping the form that the ultimate public consultation would take on Scottish charity legislation. We see that similarly in New Zealand, where the Department of Internal Affairs and Charity Services were the agencies that drove the shape of the regulation. Far, far less recommendations will target regulatory practice in those cases. They will not scrutinize the regulator in the same way because you don't have that distance from the regulator in the review process. So you can you can bring it down to the quantity of recommendations that are regulatory focused, you can bring it down to the shape of the legislation that may emerge in terms of extra powers for a regulator basis contradistinguished from a rolling back of how certain powers might be used.

SPEAKER_03 42:28

And is there a sort of an overlap between where um uh reviews are uh statutory and kind of mandated by statute and where they're independent? Or can you have statutory and um reviews that are independent and also ones that are owned by government? Is is there any kind of overlap there?

SPEAKER_00 42:47

You can you can mix and match whatever way you like in this area, Rodri. So, for example, if we take the example of England and Wales, the Charities Act 2006 mandated the regulatory review after a period of five years, 2011 being the key date. And if you think back to that process, it was Lord Hodgkin's who was appointed to carry out, Hodgkinson was appointed to carry out that review and had an independent secretariat and produced a report and made recommendations to government, some of which government accepted, some of which government rejected. Um at the same time, on the other side of the line, you can have the government-owned process which has independent review carried out. And Northern Ireland is your example of that. There was no statutory mandate for the review of charity regulation in Northern Ireland. It came about as a result of the results of decisions of the courts challenging the validity of the register of charities in Northern Ireland. It came about because of a political perception that the regulator wasn't playing fair. In certain instances, in the use of its powers. But the Department for Communities, when it put forward terms of reference, appointed an independent uh panel uh to carry out that review. And for the purposes of full disclosure, I chaired that panel in Northern Ireland, and we were independent of government in carrying out our um our work and in producing our report, which we fed back to government.

SPEAKER_03 44:26

Yeah, absolutely. Um and and one of the things you note in the paper, I mean, most of the comparison is about sort of how these things work, but you do note in terms of the content that there are certain issues that everywhere are the sort of almost the sorts of issues that you would sort of expect and maybe in many cases hope are going to be dealt with by these reviews, but actually often they're slightly skirted around. And you highlight particularly um the legal definition of charity itself and the the questions around the legality of charity campaigning. You know, why is it they're such thorny issues? And and you know what is it about the way that people put together these reviews that means that they never quite seem to quite grasp the nettle?

SPEAKER_00 45:03

Well, the first thing is they are what I call the hard nuts to crack. There is no simple answer. It's not a formula. It's much easier in a in a report to give a good recommendation about a quantitative matter. So if we're dealing with, for example, financial reporting thresholds, it's very easy for a panel, whether it's government-owned or independent, to sit down and say, this will be a more proportionate way to go about it. We can get agreement on those functional technical issues. Where we come into difficulty, particularly in multi-issue reviews, where you're given a panopoly of problems to solve, amongst which are perhaps the definition of charity, uh, perhaps it is um the extent to which charity may engage in advocacy without offending the political purposes rule. What we find in those instances are those are very politically sensitive questions. Everybody has a view on it. And civil servants are often very reluctant both to share the power of decision making in that space in the first instance, and even when it is fed back up to the very place we would expect these decisions to be made, when we feed it back up to the parliament, where we expect our politicians to tackle these issues, there is a noted reluctance to actually engage with those issues. And so what we tend to find in the reports, even when those issues are scheduled for discussion, is that they do exactly as you say, they get sidelined. They get um they either get guillotined because there isn't a neat answer, and they get um overlooked because it will be argued the expert evidence went in both directions, and therefore there isn't a clear route, and therefore no action um will be taken. And so these cause difficulties with these particular issues. Some countries are quite clear that they are stepping away from the problem, they don't want to talk about it. So if we look at um the uh terms of reference for the New Zealand charity review back in 2018, it very clearly said, we are not going to talk about charity definition, it's not on the table. And that was a big change from their earlier review, where it was going to be no holes barred, we will look at everything. Fascinatingly, stakeholders ignored that. And the um New Zealand government received many recommendations from stakeholders about what needed to change about the definition. So they were they're quite vocal in making their views known. Um there's wonderful cabinet papers which are fully available to the public that show uh civil servants advising the minister look, the sector is always going to talk about charity definition, ignore it now, you keep away from that. That's not where you want to be. So that's one very, very good example. Um if we move closer to home, if we come back to uh the English review of the Charities Act in 2006, if you go through Lord Hodkinson's report, there's only very superficial coverage of charity definition in that 2012 report. But one thing that Lord Hodkinson does do is he notes the mismatch between the public perception of what a charity is and the legal reality regarding charitability. And he called in his report for much wider um parliamentary debate in this issue. So he throws down the gauntlet. And in total fairness to both sides, um, the public administration committee, which carried out a scrutiny uh after his report came out, took up that gauntlet and they actually engaged with the issue and they recommended to government that legislation needed to be introduced which gave a much better definition of public benefit. What is it to have public benefit? The government rejected that when it got that report, and we see that following right through to the law commission, which in England took up the heavy lifting after both of those reports, after Lord Hodgkinson's report, after the Public Administration Committee report, and got together with the recommendation, said, okay, what legally needs to change? At the very outset of that process, um, one of the law commissioners, Elizabeth Cook, um, made a public statement in which she eschewed um any political controversial issues and charitable definition. So for her, that was too political to be discussed within the confines of the review process. Now, if there is no safe space in public life to discuss these issues, which are political, which evolve over time, we're missing a very important process to keep our charity law up to date. So I find it very interesting. Those tougher nuts advocacy would be the same along similar lines.

SPEAKER_03 50:11

Yeah, really fascinating. And it's sort of, as you say, hard to know where they are to be discussed, if not in those sort of fora. Um, I just wanted to zoom out a little bit to ask you. Obviously, the kind of focus of these Ur Not research notes is about that, those links between practice and academia around the study of philanthropy. Um, as a legal scholar yourself, I mean, obviously you you must sort of keep um in touch with practitioners in the law, and you know, their work both informs yours and presumably yours informs those. Um, what have you found those links to be like in the sort of areas that you're working in?

SPEAKER_00 50:44

I find them to be extremely important, Rodri, because we learn so much from each other. And if we're not learning, we're not connecting in the right spaces. Um, good research informs policy. Policy results in legislation which is grist to the mill for any researcher. We need each other. It I would hope it's a symbiotic relationship rather than a parasitic one. So if we as academics can better understand um the real life difficulties of law reform with a small L and a small or, what changes do we need to make a system work better? Then we can bring our knowledge, applied or otherwise, into that space and have a really interesting conversation. And charity law is one area that always benefits from that, and philanthropy even more so. Um at the moment in Ireland we have um something we're very proud of, and no other European country has it: a government policy on philanthropy, and it's a whole of government approach, and the policy runs through to 2028. And the government's question is how do we encourage philanthropy? How do we grow philanthropy from a relatively low base in Ireland? And that policy space is providing a wonderful opportunity for both practitioners and academics to feed in and to learn from one another, and that's where the real value will come, hopefully, in the future.

SPEAKER_03 52:14

Yeah, it's a really interesting model, I think, around that, the policy and what's happened in Ireland around that. Um I just wanted to ask as well what you're working on now, because obviously a lot of this tends to be slightly backward looking, in that it's work people have done a few years ago. So are they sort of still similar areas, or what's your kind of particular interest at the moment?

SPEAKER_00 52:30

So I I I I am a magpie by heart, so I don't think I will ever lose interest in what's happening in other countries, whatever the issue is. I want to know what's happening there, what do we do here, what's happening elsewhere. So that tends to be a common trend in my work. One project that I'm absolutely fascinated by at the moment and have been delighted to be involved in is the project being run by the European Law Institute on a European enterprise foundation. Um it's been run under the wonderful leadership of Professor Steen Thompson at the Copenhagen School of Business and his colleague, uh Professor Anne Sanders, who's a German academic. And together with a large team, we are looking at what might be known as a Scandinavian concept and enterprise foundations. For those who are not familiar with the term, it's very simply where a charity owns the controlling share in a business and the business profits flow back up to the holding foundation, the charity to carry out its charitable work. We think of Carlsberg, we think of IKEA, we think of Rolex, we think of Bosch, we think of all of the big ones. And my role in this project has been to look closer to home. So I have been looking at Ireland, I have begun looking at England and Wales to see whether we too have enterprise foundations, albeit we don't call them that. And are they hiding in plain sight or are they needles in haystacks? So that's what I have been engaged with, or very much hoping to have a model law produced in the early summer under the auspices of the ELI to facilitate countries that are interested in encouraging enterprise foundations. So I think this is a watch this space um project. It has been fascinating to work with colleagues from all over Europe um on this concept of which I knew nothing two and a half years ago.

SPEAKER_03 54:30

No, it really will interrupt. Coincidentally, one of the other interviews in this podcast, which people might already have listened to, is on a paper about Enterprise Foundation. So it definitely feels like a really interesting space at the moment that people are starting to kind of wake up to. So I'll, yeah, we'll definitely keep an eye out for that. Um just remains to say, Una, thanks ever so much for coming on the podcast. Great to hear about the research and certainly wish you all the best with it in the future.

SPEAKER_00 54:54

Well, thank you, Rodri, for giving me the chance to talk about it. And I'm delighted if anyone has questions or wants to contact me in relation to any of the issues we've discussed today.

SPEAKER_03 55:12

Okay, great. Well, that brings us to a close. Um, just remains to say uh thanks again to Mark and to Michelle and to Una for coming on the podcast. Um, as I said before, I'll put links in the show notes to places where you can find the research notes we were talking about and the papers that they're based on. Um I'll also put links where you can find out a bit more about uh the work of each of these academics and maybe some other things that you might be interested in reading that I've written. If you're interested more broadly in issues around philanthropy and civil society, as ever, check out the Why Philanthropy Matters website at why philanthropymatters.com. You can find all the back episodes of this podcast, including all of the previous Ernok partnership episodes and many more. You can find lots of articles about things to do with philanthropy and civil society, as well as short guides, news updates, and lots and lots of stuff there. There's days worth of uh uh trawling through philanthrop nonsense uh to be had. Um, if you're interested in following me on social media, uh do that on LinkedIn or on Blue Sky these days, the best places to find me. If you've got ideas for people I could talk to on the podcast or topics you'd like to see covered, do drop me a line. You can find contact details at the website. Other than that, just like, uh subscribe or follow, uh, tell your friends about it, tell your colleagues, people you think might want to listen to the podcast, leave us a nice review wherever you get your podcasts, um, and I'll see you next time. Okay, bye.