Before we go into the different amendments—there are 32 of them and they have only recently been circulated—I made a suggestion already that these might be taken with an explanation to-day but on the understanding that the Bill will be recommitted so that amendments may be moved on Report Stage.
Committee on Finance. - Charities Bill, 1957—Committee Stage.
I am prepared to recommit the Bill for amendments only.
That means there is no amendment down to a section to which I drew attention before. That is Section 13. Section 13 provides that a judge of any court shall not be prevented or disabled from hearing any case relating to a charity even though he is a member of the board and has, so to speak, formed an opinion on it. I want to put down an amendment to that.
I understand that the procedure I suggest will enable the Opposition to put down amendments on matters discussed in Committee.
On every section? What I am proposing was done previously in connection with external investment legislation where there was a big number of amendments. They were accepted temporarily with an explanation from the Minister in charge of the amendments. That legislation went forward as new legislation and it was open to amendment on Report Stage. We have adopted that procedure over and over again.
It is usual to recommit amendments.
The procedure I am suggesting is to recommit the amendments only.
So long as the whole legislation is open to amendment that is all right.
That is so, but not the whole Bill.
We are prepared to facilitate the Government to incorporate in the Bill the wide variety of amendments the Parliamentary Secretary is now submitting, on condition that on next Stage we can submit amendments and discuss them with full freedom. Personally I believe the simplest thing is to recommit the Bill, as amended, in toto, and then there would be no misunderstanding. The Bill has not taken long to go through the House; it is not a controversial measure. The volume of amendments submitted by the Parliamentary Secretary now is such as to change the appearance of the Bill, and I think the Opposition ought to be given a chance of looking at this considerable volume of amendments. The wise course would be to recommit the whole Bill.
I do not want to go that far. I am prepared to have amendments which are put down between now and Report Stage discussed on Report Stage as in Committee, but only amendments put down between now and then.
The whole Bill is open to amendment?
Only amendments discussed in Committee.
I do not want to debate each section. The position is that the amendments will be taken today with an explanation by the Parliamentary Secretary and then the measure is open to further amendment on Report Stage?
The amendments will be recommitted, not the sections.
I want to preserve my point. I have an objection to Section 13.
We are in Committee and the Deputy can deal with the Section now.
There is no amendment to that section. I want to put down an amendment to that section to make it impossible for a member of the Board to sit on a case.
The Deputy is still dealing with procedure.
I want to ensure that when we come to Fourth Stage it will be open to me to amend a section which is not now amended.
That is so.
Sections 1 to 4, inclusive, agreed to.
SECTION 5.
I move amendment No. 1:
In page 5, lines 10 and 11, to delete "and acquire, hold and dispose of land".
This is a drafting amendment which proposes to delete the words "and acquire, hold and dispose of land" in Section 5. Because the power of the Board to acquire, hold and dispose of land is provided for in Section 6, the following section, these words are not necessary in Section 5.
Amendment agreed to.
Question proposed: "That Section 5, as amended, stand part of the Bill."
There is one small point on the section. Could the Parliamentary Secretary say if it is necessary to retain the title "Commissioners of Charitable. Donations and Bequests for Ireland"? Is it necessary nowadays to retain the description "for Ireland"?
We are merely continuing an existing title.
It is a legacy from former times, but is it necessary?
Particularly as "the Board" is defined in the definition section as meaning "the Commissioners of Charitable Donations and Bequests for Ireland".
I am prepared to consider deleting the words.
On that point, I quite appreciate what Deputy Cosgrave said, but surely this Bill is likely to have relationships with similar boards and charities, say, in Northern Ireland or Britain? For the sake of clarity, that is the Board's own title.
Normally nowadays we do not describe these boards or companies as "for Ireland".
The E.S.B. are not the "E.S.B. for Ireland".
We have Bord Fáilte Éireann and Córas Iompair Éireann.
The E.S.B., Bord na Móna.
Aer Lingus.
It is quite clear there are still two systems in operation.
Question put and agreed to.
SECTION 6.
Question proposed: "That Section 6 stand part of the Bill."
Can the Parliamentary Secretary tell us why it is considered desirable to have statutory power for the Commissioners to acquire, hold and dispose of land?
There was some doubt as to their power.
It is described in this legislation as new.
This provision is new.
Does the Parliamentary Secretary say they have not been acquiring land?
We wanted to clear up any doubt. There has been some doubt as to their statutory capacity to acquire land and we are putting the matter beyond doubt.
Question put and agreed to.
Section 7 agreed to.
SECTION 8.
I move amendment No. 2:
In page 5, before subsection (5), to insert the following subsection:
"( ) As soon as may be after the commencement of this Act, and thereafter as occasion requires, the Board shall appoint a member of the Board to be the Chairman of the Board and the Chairman shall hold office for such period as the Board determine when appointing him."
With the permission of the House I shall deal with amendments Nos. 2 and 3 together. It is proposed to allow the Board to elect their own chairman. He will preside at meetings of the Board and, if he is absent, the senior member or such other member as may be selected will preside at the meeting.
At the moment how is the chairmanship regulated?
The senior member acts as chairman.
Why does amendment No. 3 say the senior member or such other member as the Board may select? It is a small point.
I suppose it is to preserve——
I put it to the Parliamentary Secretary that this will create unnecessary difficulty. We are all aware that the senior member may be a bad chairman and that the Board may in their wisdom ordinarily choose some other member to preside in the absence of the chairman. If you say in the Act that the senior member present shall be the Chairman unless the Board chooses somebody else it is manifestly an affront to the senior member to choose somebody else. The Board will have full discretion if the words "the senior member" are omitted and the amendment reads: "At a meeting of the Board, if the Chairman of the Board is absent, such other member as the Board may select shall be appointed Chairman."
I have not very strong views on the matter. This is a suggestion by the Commissioners. I think they can be assumed to know how to regulate their meetings to the best advantage. As they suggested it, I have adopted it. It is preserving one of the traditions of the Board that the senior member does preside. He may not want to preside at a particular meeting. We are giving the Board the power, then, to select some other member.
If you insert "senior member", the senior member will feel rebuffed if he is passed over. If he is a good man he will be appointed. The suggestion will enable the senior member to be appointed. It leaves the whole matter open.
I agree. The conclusion was probably that it is very much their normal practice to appoint a senior member. He can be somebody else. Supposing he is not suitable. It would be well to have other powers. This may have been drafted hastily. It would be much better to leave out the mention of a senior member.
I object to the suggestion that this was drafted hastily. It was not. We are conforming to the wishes of the Commissioners. They are long-established and have their traditions. They have their own way of conducting their meetings. This is their suggestion. I would be loath to go against them.
I think they meant well but they leave themselves in this rather peculiar situation. I do not suppose the Commissioners are Parliamentary draftsmen. Perhaps if the Parliamentary Secretary would go back to them and suggest that there is a possibility of a slight occurring at some stage the point would be considered.
Are you not breaking the rules about seniority in respect of amendment No. 2?
From now on, we are providing for the election of a permanent Chairman. These provisions come into effect only in his absence. If the permanent Chairman is not present, then the senior member normally presides. If he does not wish to preside, the Commissioners will select one of the members present. I understand that the Commissioners have considered the matter carefully and that this is the way they would like to do their business.
They may not have thought of this point.
In view of what has been said here, I have no doubt that they will probably think again about it.
Surely to leave out reference to a senior member here will not prevent the Board from carrying out their business as they have always done?
Let the senior member be appointed if they desire it.
In the absence of the permanent Chairman the senior member will automatically preside except where he would not wish to do so for some reason. Then the members would be free to select some other Chairman. This is the way the Commissioners wanted it. What is the objection to it?
It would be equally free if there were no reference to the senior member.
They preserve their traditions.
That is being broken by amendment No. 2.
I am preserving it in the situation where the permanent Chairman is not present.
Take amendment No. 2. There is no longer a question of seniority. The Board has to appoint a Chairman. You are breaking the old procedure of seniority in respect of a chairman. You carry it forward and allow them to appoint such other member as they like if the Chairman is not there.
The Parliamentary Secretary is illogical.
I am not disposed to go against their wishes. They know what is best.
What Deputy Sheldon said is true. They may not have considered this point.
I understand they considered it carefully and this is exactly what they want.
It is a simple arrangement.
It begins to shake our confidence in the Board.
Amendment agreed to.
Section 8, as amended, agreed to.
SECTION 9.
I move amendment No. 3:
In page 5, to delete subsection (1) and insert the following subsection, namely:—
"( ) At a meeting of the Board, if the Chairman of the Board is absent, the senior member in order of appointment or such other member as the Board may select shall be chairman."
Under subsection (2) of Section 9 force is lent to the importance of seniority. You are making it clear that the person who continues in office is to rank from the date of appointment. Surely that is emphasising the seniority rule very much?
That has always been there.
Surely it is a question of making sure that there will be no doubt as to the continuance of the Board? If this is not included, the seniority of a new person coming in after the implementation of this Bill might be in doubt with regard to the others. It is surely only a continuation.
We should have another look at amendment No. 3 because sub-section (3) shows the importance of being in the Chair in the event of a casting vote. A casting vote might be given to a person whom the Board would not want in the Chair at a particular meeting.
Amendment agreed to.
Section 9, as amended, agreed to.
SECTION 10.
I move amendment No. 4:
In page 5, after subsection (1), to insert the following subsection, namely:
"( ) The Secretary and the other officers and servants of the Board shall hold office on such terms and receive such remuneration as the Minister for Finance determines."
This amendment is designed to cover the position of the Secretary and officers and servants of the Board. These officials are ordinary civil servants. The Office of the Charity Commissioners is a Branch of the Department of Justice.
Have they not been paid salaries already?
Yes, they have.
Is this a change?
It is just to continue——
What is the necessity for the amendment?
It is the modern practice to make this provision in Acts.
Does that mean that the Minister for Finance can make different arrangements for, say, a salary to a member of a board, no matter what he would have as a civil servant—"such as the Minister for Finance determines"?
It is the procedure whereby ordinary Civil Service rules and regulations apply to these offices.
That phrase gives the Minister for Finance power to change salaries.
Normal Civil Service routine will apply.
Amendment agreed to.
Section 10, as amended, agreed to.
SECTION 11.
I move amendment No. 5:
In subsection (1), lines 47 and 48, to delete "signature of a member of the Board or the Secretary" and substitute "signatures of two members of the Board or of a member of the Board and the Secretary".
This is rather casual. I am not suggesting it is likely that the Board would at any time do anything extraordinary. It is a Board of very great importance. It is important that in every respect it should be like Caesar's wife. I am acquainted with some charitable organisations and with trustees. It is very sensibly provided that it takes two signatures to attest the seal. I think that in the case of an important body like this, insistence upon two signatures does not really give any more trouble.
I agree with Deputy Sheldon and I am prepared to accept the amendment.
Amendment agreed to.
Section 11, as amended, agreed to.
Section 12 agreed to.
SECTION 13.
Question proposed: "That Section 13 stand part of the Bill."
I have already asked what was the purpose of retaining this provision?
The House will recall that we had a discussion on this on Second Stage. Under this section, membership of the Board of itself alone shall not disqualify a Judge from hearing and determining a charity matter. As I pointed out on the Second Stage the words "by reason solely" are of vital importance. The Judge Commissioner might be prevented or disabled from hearing a charity case for a number of reasons. He might be a trustee of the charity as, for instance, where he was a member of the board of a charitable institution such as a hospital. In such cases and also in the case of a charity matter which had come before the judge as Commissioner, what I referred to on Second Stage as "the ordinary etiquette of the judiciary" would prevail so as to prevent his acting in as it were a dual capacity.
I should like to deal with the history of the matter. The present Board of Commissioners owe their origin to an Act of 1844. Prior to that, there was another Board set up in 1800. Under the 1844 Act, the members were to be the Master of the Rolls, the Chief Baron of the Court of Exchequer and the Judge of the Court of Prerogative "together with ten other proper and discreet persons." The Probate Act of 1861 removed the Judge of the Court of Prerogative from the Board and allowed for the appointment of a Commissioner in his stead. Subsequently, the offices of Master of the Rolls and Chief Baron ceased to exist.
Since 1922, three persons became both Judges and Commissioners. Two were not judges when they were appointed. The third was a Judge when he was appointed. I found on checking the matter since that I was incorrect in what I said on the Second Stage in this regard. I was under the impression at the time that what had happened in the post-1922 cases was that certain Commissioners had become judges. As I say, there was one exception. However, whether they were judges first and Commissioners afterwards or vice versa does not in any way invalidate my argument that there is nothing inherently improper in having judges as Commissioners.
Prior to 1922, it was always the practice to have a judge of the Superior Courts on the Board and a judge appointed in 1918 continued to serve till two years prior to his death in 1949. The first Commissioners of Charitable Donations and Bequests were established by an Act of the old Irish Parliament of 1800. They consisted of—and I quote—"the lord high chancellor of Ireland, the chief judges, and the other judges of His Majesty's courts of King's bench, common pleas, and exchequer of Ireland, for the time being, the judge or commissary of His Majesty's court of prerogative in Ireland", the Provost of Trinity College and others. These Commissioners were set up to sue for the recovery of charitable donations and bequests withheld, concealed or misapplied and to apply them, when recovered, according to the directions and intentions of the donor or donors or to apply them cy-près. Prior to the Union, a Committee, assisted by two judges, was appointed by the Irish House of Lords in 1764 to sue for the recovery of charitable bequests and donations “withheld, embezzled and concealed.” This Committee was discontinued by the Union and the establishment of the first Board of Commissioners. The preamble to the 1844 Act also mentions the concealment and misapplication of donations and bequests, the object of the Act being to see to it “that the pious intentions of charitable persons should not be defeated.”
The powers of the Board are not very extensive. Moreover, the powers of the Board to sue for the recovery of gifts are practically never used. The usual practice is for the Board to certify charity cases involving the taking of legal proceedings to the Attorney-General. The power to certify cases is contained in Section 5 of the 1867 Act—Section 26 of the Bill —and is analogous to a case where a judge sends the papers to the Attorney-General for a prosecution for perjury.
Would a judge who sent the papers preside at a perjury trial? No, clearly not.
Again, the analogy is not complete. The Board may authorise or direct a person other than the Attorney-General to institute legal proceedings—Section 5 of the 1867 Act and Section 25 of the Bill—but in practice they seldom or ever do so. However, the Board do from time to time themselves seek directions, including the making of a cy-près scheme, of the High Court under Romilly's Act, 1812, but this does not, of course, involve a Judge Commissioner in having to act in two different capacities. To talk about the Commissioners contesting actions is misleading. They do not contest actions. If a case involving the Commissioners goes to the High Court or Supreme Court, the ordinary practice and protocol adopted by Judges would prevail if a Judge Commissioner had already been connected with the case as a Commissioner so as to prevent him from adjudicating on it as a Judge.
Since this matter was raised on the Second Stage, it has been considered fully by the Government. We are satisfied that there is no need to amend or alter Section 13. This is the first time, as far as I can ascertain, in the long history of the present Commissioners and of their predecessors that an issue has been raised about Judges being Commissioners; and there is no record of any difficulty ever arising. There is nothing new or novel in that the Commissioners include amongst them a member of the Superior Courts Judiciary. Judges have been Commissioners since 1800.
The Parliamentary Secretary has entirely missed the point. The point is not whether judges should be commissioners but whether a commissioner who is a judge and who sends the case for legal proceedings should preside as a judge when the case comes for hearing. That is completely wrong. No question is being raised as to whether a judge should be eligible for appointment as a commissioner. That is agreed. They have been there. The original Act insists that three judges should be on the Board. That is not the case any longer. Judges may be commissioners and nobody objects to that. What I object to is the provision in the section which says:
A Judge of any Court shall not be prevented or disabled by reason solely of his being a member of the Board from hearing and determining any case relating to a charity or any case arising under this Act, but may hear and determine it as if he were not a member of the Board.
The Parliamentary Secretary told me that the ordinary run of the law, so to speak, the rules which guide the judges in respect of hearing cases will prevent a commissioner who is a judge from presiding as a judge of the case but why not leave it that he should not be allowed? In addition to everything else, the fact that he is a member of the Board should prevent him from hearing a charity case. He should be prevented from hearing cases in which the legal proceedings have been instituted by the Board of which he is a member. Surely that is completely wrong.
Let us assume that Judge X is a member of the Board. Let us take Section 25. Under Section 25, the Board may authorise legal proceedings. I think it is entirely wrong that Commissioner X, who is a judge, joining with the Board in authorising the legal proceedings, should go down to his court a few weeks later and hear a case upon which he has made up his mind.
No judge would do that.
Why let him even be empowered by law to do it, if he is not going to do it? Why not say a judge shall be prevented by reason of the fact that he is a member of the board from hearing the case?
We want to make it clear in any charity case that just because the judge is a member of the Board, he will not thereby be debarred from hearing any charity case.
Why not? You are not going to run short of judges to hear charity cases. It is not as if there were a limited number of judges. The judges can be transferred back and forward for the purpose of a case. There is an old slogan in the legal world that not merely shall justice be done but it must manifestly be seen to be done——
In any single case——
Let me finish my argument. Is justice likely to attract the public attention as being done if a judge sitting as a member of the Board who authorise legal proceedings sits a week after to hear the proceedings which he has authorised? I think that is completely wrong.
The simple answer to the Deputy is that the situation which he envisages would not arise. When a judge comes to try any case, he will consider the matter and if there is any one of a variety of reasons why he should not try that case, he will not try it. Let us take the case Deputy McGilligan referred to. In a case where the judge referred the papers to the Attorney General, he would almost certainly not try that case if it ever came before him, but there is no statutory provision preventing him from doing so. Why does Deputy McGilligan not insist that we should put the provision into the law——
If he sends the papers to the Attorney General for a prosecution for perjury?
Yes.
A judge would not hear such a case.
But there is no statutory provision to prevent him. Why not insist that there should be?
If a piece of legislation were brought in here to say that a judge shall not be prevented from hearing a case of perjury in circumstances where he has sent the papers to the Attorney General, I would object to it. This is a new proposal, or rather, it is carrying forward an old proposal.
This has always been the law and it never gave rise to difficulty. I consider it completely unnecessary to make any provision regarding the matter. If we are to start making statutory provisions as to why judges shall not hear particular cases, we would never stop. You would have to provide that a judge who is a member of a golf club would be debarred from hearing any case dealing with golf clubs.
That is not the same as a piece of law being brought in to say that a judge should not be prevented from hearing a case connected, say, with the licensing laws of a club because he was a member of that club. There would be a furore in this House in such a case. This is re-enacting something that dates back to 1867. We are inviting judges to sit and hear cases——
We are not.
Why wave this flag at them: "You are not to be prevented by reason solely of being a member"?
"Solely."
I think he should be "solely" in addition to all the other reasons. I do feel that in any charity case, a judge who is a member of the Board and has considered it from the charity angle should not sit on it. Why not say he shall not because he is a member of the Board, be permitted to hear such a case? I think he should be prohibited.
When I looked at this first, I certainly agreed with Deputy McGilligan but I am not sure that I agree with him now. He has just referred to this as being all right in 1867——
It was not, but we had nothing to do with it.
It has been all right up to now. Surely all the section does is to say that because a judge happens to be made a charity commissioner, he may hear charity cases. In other words, he has, because of his particular mental powers, been deemed a sensible person to deal with charities under the Board. I can see that Deputy McGilligan has some sort of case in saying it is undesirable, but some time ago there was a bit of a furore about the senior members of the Board possibly being affronted if they were overlooked in being made temporary chairmen. I can visualise senior members of the Bench being affronted if we do not trust them to use their ordinary commonsense. I think they would have a much better reason to feel affronted than would senior members of the Board on being overlooked as temporary chairmen.
Is it agreed that Section 13 stand part of the Bill?
This is a section on which I propose to look for an amendment. If I say "Yes" now, it does not prevent me putting down an amendment?
No.
Question put and agreed to.
SECTION 14.
I move amendment No. 6:
In page 6, line 24, to delete "and declared".
With your permission, a Cheann Comhairle, I propose to deal with amendments Nos. 6 and 7 together.
First of all, it is proposed to amend Section 14 so as to bring the law into conformity with the modern accountancy practice of the Local Government auditors. Secondly, it is proposed to deal with a point in regard to perjury raised by Deputy McGilligan on the Second Stage. Paragraph (c) of the new subsection (4) will be in substitution of the existing paragraph (d). Where a statement or representation made on examination on oath before the auditor is false or misleading in any material respect to the knowledge of the maker, an offence will be committed under the proposed new subsection (4). This will, I think, cover the Deputy's point.
This is withdrawing the term "perjury". It is no longer used. In amendment No. 7, paragraph (c) is in substitution for paragraph (d) of the Bill. As it stands here, the phrase was used that any person who on such examination on oath wilfully makes any false statement shall be deemed guilty of perjury. Now we have it that a person who on such examination makes false or misleading statements in any material respect shall be guilty of an offence. The offence is not defined so I presume it is something in the nature of perjury. In addition, it is to be a summary conviction and the penalty is to be either a fine of £25 or imprisonment for a term not exceeding six months, or both.
First of all, I am wondering how far this is consistent with what the newspapers show this morning with regard to certain smuggling offences being declared criminal. This is a criminal matter, too. The decision was badly reported this morning but there was considerable questioning in court as to the amount of the fine and the terms of imprisonment which would remove the matter from the region of a summary offence. The Parliamentary Secretary will understand that this is not a summary offence, that a person has the right to look for trial by jury. However, we shall leave that over to see what all this really amounts to.
I am anxious to know what is the purpose of the extension of the phrase, "any person who makes any statement or representation which is false or misleading in any material respect."
Is this some very definite change now from the scheme of the Perjury Act, which is drafted in terms that a person commits perjury if he says something in any judicial proceeding which is material to that proceeding and which he either knows to be false or does not believe to be true? Is "misleading" supposed to be covered by "not believing it to be true"? It is a new term introduced into the law and I want to know what it means.
The form of words here used is the same as in the Army Pensions Act, 1949. I am not particularly wedded to it but I am advised that it is the most suitable form of words to cover what is meant.
It is a big extension of the law of perjury, if it is still meant to keep that. "Misleading" was not a term used.
The Deputy will agree with me that we have no Perjury Act as such.
We have common law perjury. One Act, the British Act, did not apply here. Is the Parliamentary Secretary intending to represent to the House that there can be no prosecution for perjury in this country?
No, but we have not got this clearly defined by statute.
Pardon?
We have no clearly defined statutory perjury.
There were old Perjury Acts in the common law and it is always understood that the English Perjury Act of a particular year embodied the old definitions and the definition there is that perjury requires a person to make a statement which he knows to be false or does not believe to be true. "Misleading" is a very great extension of these two rather precise points.
It must be misleading in a material respect.
No. The statement ought to be material to the proceedings, as the Perjury Act or the perjury phrase is.
Is amendment No. 6 agreed to?
I may then question this matter of "misleading" again, Sir.
Amendment agreed to.
I move amendment No. 7:
In page 6, to substitute the following subsection for subsection (4), namely:
"( ) The following provisions shall apply in relation to an audit under this section—
(a) for the purposes of the audit, the Board shall furnish to the Minister, before the end of the month of June in each year, an abstract of the accounts of the Board in such form as shall be approved by the Minister from time to time;
(b) the auditor shall give to the Secretary six days' notice prior to the holding of the audit at the office of the Board;
(c) the auditor may call before him and examine on oath any person whom he may deem it necessary to examine in the matter of the accounts, and any person who on such examination on oath makes any statement or representation which is to his knowledge false or misleading in any material respect shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding twenty-five pounds or, at the discretion of the Court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment;
(d) on the completion of the audit, the auditor shall certify the said abstract;
(e) the auditor shall, within fourteen days after certifying the said abstract, send it to the Minister together with a report upon the accounts;
(f) the Minister shall transmit a copy of the auditor's report and the said abstract to the Secretary and shall transmit a copy of the said report to the Minister for Justice."
Amendment agreed to.
Question proposed: "That Section 14, as amended, stand part of the Bill."
It is peculiar that the Minister has to get an abstract and the report on the accounts but what is to go to the Minister for Justice is only the report.
That is right.
There seems to be contrariety. The auditor is to send it to the Minister with a copy of the report.
That is the Minister for Local Government.
Very good. Then the Minister is to send to the Secretary a copy of the auditor's report and the abstract and then it comes to the Minister for Justice and he is only to get the report.
Because he is interested only in the administration, not interested in the accounts.
Is that meant? Would it cause much trouble to send him everything?
He will probably get it anyway.
He probably will.
There is one point on the section. If the Parliamentary Secretary gave an explanation of this on Second Reading, I apologise. I did not hear him. I take it that the Vote for Charitable Donations and Bequests will not disappear out of the account and in so far as that part of the money is concerned will be audited by the Comptroller and Auditor General, as as it has been. Why should there be two auditors in respect of this? Why should the Audit Department not deal with this? What is the point of bringing in the Minister for Local Government and the Local Government auditors? I understood, in the Committee of Public Accounts, that our heart is broken and the Comptroller and Auditor General's heart is broken by delays because of there being too much work already on the Local Government auditors. It does not strike me as being a very efficient way to get this done if on this already over-burdened set of gentlemen we now put another burden. Some of the Local Government auditors' audits are a year behind. I can see the Minister for Justice at some future date champing about because he is not getting the report as the Minister for Local Government has not got the report on the accounts. What is the real reason for bringing another Minister into this? There are two in it already—the Minister for Finance and the Minister for Justice. Now a third one comes in.
There is no change, of course. This is the way things have always been done and the Comptroller and Auditor General, of course, is responsible for auditing the expenditure of moneys out of the Department of Justice Vote and that must continue to be so but, then, the accounts of the Board are an entirely different matter. They have always been audited by Local Government auditors. By now, the Local Government auditors are completely familiar with them, with the various funds, and so on. I should not like to be very authoritative about it but I imagine that they would be more suitable people to audit these types of accounts—the accounts of the Board as distinct from the purely Comptroller and Auditor General type of auditing that the Department of Justice Vote is subjected to.
Did the Parliamentary Secretary consider bringing in a completely extern auditor?
I hope he would, personally.
Bringing in——?
Commercial auditors.
Commercial auditors.
It is possible to do it under this section.
Yes. The position there is that the Local Government auditors are now all professional accountants. The policy has been, I understand, to recruit professional, qualified accountants. In fact, all this type of work will now be done by fully qualified accountants.
I am quite satisfied. Thank you.
I am aroused by another point of view from that expressed by Deputy Sheldon. I take this to mean that the auditor would be an outside auditor, a commercial auditor. In any event, whether it is not so intended, it may be. The auditor is merely defined here as the auditor appointed by the Minister to hold the audit. That would certainly leave it open. I would suggest bringing in an outsider. I am sure that Deputy Sheldon from his services on the Public Accounts Committee must know that the Comptroller and Auditor General has very limited functions —very limited indeed. He sees that moneys are properly voted and go into the proper hands.
These are not Government funds. They are private funds.
I know. That is one of the reasons why the Comptroller and Auditor General should not be brought in. Secondly, we are moving in to what we call professional auditors, who have been, so to speak, trained in the Department of Local Government, who have specialised functions and specialised practice. I am sure Deputy Sheldon is aware of the view that prevails in many instances, that, for instance, with all the very heavy State companies it was found better to have outside auditors brought in. These auditors belong to a Department and we are handing these men something new. In any event, whatever may be the intention of the present Government and the present Parliamentary Secretary, it is wide open to bring in a firm of outside auditors. For that reason I accept this.
Question put and agreed to.
SECTION 15.
Question proposed: "That Section 15 stand part of the Bill."
This is another report and this time it is to be sent to the Government. Is there any distinction between sending it to the Government and sending it to the Minister for Local Government and to the Minister for Justice?
This is the report which is laid on the Table of the House.
Yes and it will have to be based on the other reports and accounts. They will be part of it. Is not that so? The report of the proceedings would almost necessarily include abstracts of accounts and reports on the accounts.
No, not necessarily. That is not the practice.
It is possible then, that the report mentioned in Section 15 might be completely indifferent to the audit and the report on the accounts?
Yes.
I know the difference between the report of their proceedings and the report on their accounts but I am suggesting the report on the accounts would ordinarily form part of the report of the proceedings.
It is not an unreasonable suggestion but it is not the practice.
Question put and agreed to.
SECTION 16.
Question proposed: "That Section 16 stand part of the Bill."
What is the meaning of this section? Why is there a prohibition about solicitors' costs? Surely a solicitor's costs would be ruled by ordinary standards?
No, they would not.
Why? This is not a solicitor attached to the Board; this is any solicitor.
These are State funds, moneys paid by the Oireachtas. Section 16 refers to moneys supplied by the Oireachtas and it is a normal provision that these moneys cannot be paid out, unless the approval of the Minister for Finance has been obtained.
This is not a solicitor attached to the Board; this is any solicitor employed by them.
Is this not a sensible provision?
Are solicitors' costs not charged on a certain scale? Surely we can accept that the Board will be responsible enough not to pay more and not to pay less than the appropriate scale charge?
This is an eminently sensible provision which specifies that before any of these moneys, public funds, are paid out, the approval of the Minister for Finance must be obtained. He must get the particulars of the costs and expenses. I cannot see any objection to it as a provision.
Does the same apply to any other expenditure of moneys supplied by the Oireachtas? Have they to be checked by Finance as well?
I should think so.
It has to come through the Comptroller and Auditor General.
This Board is responsible in certain sections and irresponsible in other sections. It is not regarded as very responsible on this point.
It is not a question of the Board being responsible or irresponsible. It is just the normal practice in the expenditure of State moneys.
The Commissioners of Charitable Donations and Bequests cannot hire a solicitor until the Minister for Finance approves?
They can hire him but they cannot pay him.
That is the point.
Could the Parliamentary Secretary say why solicitors are picked on particularly? Is there any reason why the Board should not pay them the same as anybody else employed by them out of moneys provided by the Oireachtas, without having to get the approval of the Minister for Finance before doing so?
The background to this is that there would be a trust fund and it would be necessary for the Board to employ a solicitor; there would be no moneys available in the trust to pay the solicitor and the Board would have to go to the Minister for Finance to get sanction to pay him.
What about counsel appearing in court for the Board?
Would they not go through the solicitor?
That would be part of the solicitor's expenses.
Is that so?
In my opinion, all solicitors' bills should be closely examined because they exaggerate a good deal. I have a personal experience of a solicitor's client who challenged the amount to be paid and it was reduced by half. I know a case where a solicitor claimed £150——
We are not discussing solicitors. We are discussing whether certain payments should be made to a solicitor without reference to the Minister for Finance.
I say they ought to be referred to the Minister. Are we not discussing what expenses he may claim?
Yes.
That is the same thing. I am saying that claims should be closely examined.
We are not discussing solicitors in general.
All solicitors employed by the Board.
The Deputy is not correct there. It is not all solicitors employed by the Board. Where there are moneys available in the charity to pay the solicitor, the Board are authorised to pay him. The provision in question arises where there are no moneys available in the fund and it is necessary for State funds to be expended. In that case, the Board have to seek the approval of the Minister.
The Board can have two standards. When it relates to State moneys, the Minister for Finance must certify and when it relates to moneys otherwise in the possession of the Board, they can do with them as they like. Is that the situation?
This is State money, money voted by this House.
Exactly.
The Commissioners pay the solicitor's expenses out of the moneys available to them.
Normally, the charity fund will be available to pay the costs of the administration of the charity. In the case where there are no funds available and the Commissioners deem it necessary to employ a solicitor, then the Board must go to the Minister for Finance in order to get his approval to pay whatever costs are incurred, and as an ex-Minister for Finance, Deputy McGilligan, I have no doubt, in his heart fully approves of that.
This is limited to the case in which the Board will not have money of its own?
Only where the money is not available in the fund.
When they have moneys other than State moneys, they may pay whatever they like, subject to taxation. In this case, they have to go to the Minister for Finance.
Because it is State money.
The payment of all voted money requires the permission of the Minister for Finance.
No.
Yes. When Deputy McGilligan was Minister for Finance, he took very good care.
He had no money.
That is not the case. Let me give an example. The Attorney General has the right to pay counsels' fees up to a certain amount, without going to the Minister for Finance.
It is delegated right.
Yes.
Question put and agreed to.
Sections 17 to 19, inclusive, agreed to.
SECTION 20.
Question proposed: "That Section 20 stand part of the Bill".
On Second Reading, I suggested this should incorporate what is in the 1871 Act where there is reference to the smallness of the amount. The phrase does occur in the 1871 Act.
Is it not the same thing?
Having regard to the smallness or the amount involved.
If the Deputy likes to put down an amendment, I shall consider it. I think this is adequate. The phrase in the section is: "having regard to the amount". I do not think putting in the word "smallness" adds anything to it. "Smallness" is entirely relative.
You would have to define "smallness".
It was not defined in the 1871 Act and we rely a lot on this old-time law.
Subsequent to the Second Reading, I took advice on this matter. My opinion that the insertion of the word "smallness" would not add anything to the provision was confirmed.
It certainly would be a limitation.
In view of the fact that it is in the discretion of the Board to define "smallness," I do not think there is any point in it.
Why put down any phrase about any amount at all? Why not say: "having regard to special circumstances"? When you do emphasise an amount, surely it is by way of limitation because the smallness of the amount affects exemption from certain obligations.
The only difference of opinion between us is that I do not think putting in the word "smallness" means anything.
Question put and agreed to.
SECTION 21.
Amendments Nos. 8, 9 and 10 may be discussed together.
I move amendment No. 8:
In page 7, to substitute the following subsection for subsection (1), namely:
"( ) Where the trustees of a charity apply to the Board for their opinion or advice respecting the charity or the administration thereof or the property thereof or the application of the property or any question or dispute relating thereto or where the executors of a will containing a charitable devise or bequest apply to the Board for their opinion or advice respecting the devise or bequest or the administration thereof or the application thereof or any question or dispute relating thereto, the Board shall consider the application and may, if they think fit, give such opinion or advice as they think expedient."
It is proposed to enlarge Section 21 by including executors of a will containing a charitable gift amongst the persons to whom the Board may give an opinion or advice. The section as at present drafted is confined to the trustees of a charity. In practice, the Board from time to time give opinions and advice to executors. I should make it clear that the Board do not give an opinion as to whether a trust is or is not a charitable trust and it is not proposed to empower them to do so.
Both subsection (1) and subsection (3) of Section 21 have been redrafted to cover executors. In doing so, the draftsman has availed himself of the opportunity of removing some confusion which could arise by reason of the words "subject to any order subsequently made by a Court of competent jurisdiction" which conclude the present subsection (1). These words do not appear in the proposed new subsection (1). However, the proposed new subsection (3) makes it clear that the immunity of a trustee or executor acting on the advice of the Board will not continue after a Court of competent jurisdiction has pronounced on the matter. Naturally, if the Court makes an order contrary to the advice of the Board, the trustee or executor is bound to act on the Court order. He cannot rely on the Board's advice any further.
The removal of the phrase which now ends subsection (1) of Section 21 is apparently being considered only from the point of view of the immunity given to the members of the Board. As I read Section 21, I thought it meant that the Board could give such opinion as they thought expedient but that opinion was clearly to be subordinate to any order later made by a court of competent jurisdiction.
Striking that out seems to me to have the objective of saying that the Board can give any opinion they like and that it does not matter what a court of competent jurisdiction later says about it. I was rather anxious about that. I can see the point about immunity in relation to a court of competent jurisdiction which is now in the new amendment No. 9, but what is the position with regard to an advisory opinion? As subsection (1) of Section 21 stood, it meant that the Board could give an opinion or advice as they thought expedient but that was subject to a decision of a court of competent jurisdiction——
Subsequently given?
Yes. You made your opinion, subject to an order given later. Removing that looks as if the opinion would still have effect, even if the court afterwards said something different. It certainly looks like that to me.
That is precisely why the new subsection (1) is now proposed. To my mind, anyway, it did not make much sense as it was originally and we decided to tidy it up and make clear exactly what we meant. No matter what way you read subsection (1) at the moment, you are in difficulty. How could you give an opinion subject to an order made subsequently? The order is not in existence when you are giving the opinion and nevertheless your opinion is supposed to be subject to that order.
What is wrong with that? I give an opinion and the court pronounces on that. Surely the opinion ought to be subject to the court order?
But at the time you are giving the opinion, there is no order in existence. How can it be subject to something that does not exist?
You can give the opinion, subject to something that will exist.
To my mind, I think we should avail of this opportunity to amend the section, tidy it up and make perfectly clear what it means. In other words, the opinion of the Board will protect trustees or executors until such time as a court intervenes and from then on the protection disappears, if the trustee or executor acts in contradiction of what the court has decided.
Do I understand that what the Parliamentary Secretary is saying is that the deletion of this phrase in subsection (1) is met by the insertion in the other new subsection?
It is met as far as immunity is concerned. Was this in the 1871 Act?
Yes.
So sometimes we carry forward old law and sometimes we improve it?
We are carrying forward the provision. We are making it a little more explicit.
Was the phrase the Parliamentary Secretary finds hard to explain in the 1871 Act, that is, that the opinion was given subject to a subsequent court order?
It was in the 1867 Act.
Amendment agreed to.
I move amendment No. 9:
In page 7, to substitute the following subsection for subsection (3), namely:
"( ) Where the Board give their opinion or advice in relation to any matter, a trustee, executor or any other person who during any period (not being a period after the making of an order in relation to the matter by a Court of competent jurisdiction) acts on or in accordance with the opinion or advice shall, in respect of his so acting during that period, be deemed, so far as respects his own responsibility, to have acted in accordance with his trust."
Amendment agreed to.
I move amendment No. 10:
In subsection (4), page 7, line 49, after "trustee" to insert ", executor".
Amendment agreed to.
Section 21, as amended, agreed to.
Section 22 agreed to.
SECTION 23.
Question proposed: "That Section 23 stand part of the Bill."
I raised the point already raised in the old Act—the consent of the Attorney General had to be certified, as a small point of security. The phrase used is that "the Board may with the previous consent of the Attorney General..." In the old legislation the consent had to be certified. It is usual in formal matters to have a certificate.
We are not making any change here.
No, but you are making a change from the old law. According to my notes on the old law, the consent had to be certified.
I do not think so.
Very good. We shall see about it later.
Question put and agreed to.
Section 24 agreed to.
SECTION 25.
Question proposed: That Section 25 stand part of the Bill.
This is the section under which the Board, including a judge, can direct that legal proceedings be taken and then the judge can drop down to the court and hear the legal proceedings.
But he would not.
He is entitled to do so under this section.
He is entitled to do that under any Act.
No, he is not.
He is not specifically debarred.
It is specifically provided that he is not to be debarred because of his position on the Board. These are points that ought to be read together, I suggest.
Question put and agreed to.
SECTION 26.
Question proposed: "That Section 26 stand part of the Bill".
Here again the judge may authorise legal proceedings to be taken by somebody other than the Attorney General and then, having instituted or allowed proceedings to be instituted, can go to the court and hear them.
Surely that is a bad principle? Wherever the Parliamentary Secretary has taken that from— and I gather it is a provision that was originally in the Act of 1867—surely, in general, it is a bad principle to provide that where a judge is a member of the body which determines that it is expedient to embark on litigation that judge may be called on to hear the litigation which he himself has taken part in initiating?
I do not profess to be familiar with the historical background that suggested the provision of such a permission in the statute of 1867, but it seems to me that in 1961 the convention is well established in the minds of all of us that a judge in the course of other duties may be required to initiate litigation and thereby disqualify himself from hearing cause. The Parliamentary Secretary says that he would, of course, disqualify himself. Is it not an extraordinary thing for us to legislate here expressly that he need not disqualify himself? Surely, if we refer to the matter at all, we should emphasise that he ought to disqualify himself? It seems to be most unfortunate that, by implication, we should suggest by the terms of our legislation that we do not think it necessarily inappropriate that a judge should preside over the control of litigation that he himself has initiated.
We have been over this ground fairly often. I just want to repeat that I do not think it is my business to teach the judiciary their business.
That is what the Parliamentary Secretary is doing.
They are entrusted by the Oireachtas with the administration of justice. They have their own rules of procedure governing their conduct. All we are doing here is saying that, simply because a judge is a member of the Charity Commissioners, he shall not, for that reason alone, be debarred from hearing any charity matter. There will be cases coming before a judge in the normal way, administration suits, and various cases in which charity matters will be involved. We want to make it perfectly clear that in these cases, where the Charity Commissioners do not enter into the picture at all, nothing will prevent the judge from trying the particular case. Deputy Dillon and Deputy McGilligan suggest it is dangerous to do that, though I think Deputy McGilligan now agrees that this is the sensible way to approach the matter; if I understand him correctly he said he would be prepared to exclude specifically cases where the Charity Commissioners actually institute proceedings so as to prevent a Judge Commissioner hearing such cases.
Certainly.
I think Deputy McGilligan now agrees that it is sensible that we should allow the judge in cases where the Charity Commissioners have not entered at all to try such cases. The only argument left then is that it is dangerous.
The only argument made is that where the Charity Commissioners inaugurate proceedings, the judge should not preside.
That is one part of it. If we are to lay down rules saying when judges may not try cases, we should require a great number of provisions. That is not necessary. The judiciary are there. They have the trust and confidence of the Oireachtas. It is not for us to teach them their business. They have their own rules and these rules are a sufficient protection.
That is all so easy, but it completely misses the point. Here is a new piece of legislation in the year 1961 and we are deliberately putting in a phrase that a judge shall not be prevented or disqualified solely by reason of his being a member of the Board——
I think I have persuaded Deputy Dillon.
——from hearing any case relating to a charity or any case arising under this Bill when it becomes law. What case will arise? Cases in which the judge will be taking part as a commissioner—yet we incite that man to come forward and hear the case. This is new legislation.
It is not a new provision.
That does not matter. If any other piece of legislation comes forward in which we say that, nothwithstanding a judge being interested in certain things, that shall not debar him from hearing the cases in which certain matters arise, I would object to it also.
Why did the Deputy not insist that in all the Courts of Justice Bills going through this House a special provision be put in governing the conduct of judges generally?
Because we were not putting in any phrase saying positively that a judge shall not, because of certain things, be disqualified. If that had occurred, we should have had an argument about it. Here we are carrying forward a stipulation from 1867 and we are saying a judge shall not be disqualified. Remember the phrase: "from hearing any case relating to a charity or any case arising under this Act." Surely that is a reference well ahead to those sections under which the Board may institute, or authorise others to institute on their behalf, certain proceedings. These would be cases arising under this Act.
I fail to understand why Deputy Dillon and Deputy McGilligan should suggest that we should have less faith now in 1961 in Irish judges than the British had in 1867 in their judges.
Does the Deputy think that is a point?
It is a point. It is as good a point as the point Deputy McGilligan has made. May I repeat what was said since we seem to be rehashing the whole thing? Deputy Dillon, on an amendment, shared the horror of Deputy McGilligan that we might hurt the feelings of a senior member of the Board by stipulating that it might not be possible to have him as chairman. Now he does not seem to mind the feelings of the judiciary being hurt by suggesting they might act improperly. I cannot see how anyone could seriously say that a judge who was involved as a party would blandly hear the case.
He is entitled to.
Major de Valera
Surely the point is that a judge who acts in the capacity of a member of the Board is already functioning quasi judicially. The whole point in having the Commissioners is to have a body which will institute these proceedings. Functioning quasi-judicially is probably the best way of describing it. The judge has certain duties and they impose on him the duty of approaching these matters at the high level of a trustee and somebody exercising the equivalent of a judicial discretion. Therefore, generally speaking, if this body of which he is a member initiate or are a party to judicial proceedings, it will be more in the nature of having a case stated, seeking advice and direction in the same spirit in which that body originally considered the matter at issue. The circumstances are very different from those in which a body might have an interest.
In those circumstances, I cannot see that there is any danger. I cannot see that there is any contradiction in having the same provision as that which exists in the old Act and which is being carried into this piece of legislation. I did hesitate in order to consider the point made by Deputy McGilligan that this is new legislation. The phrase "for the Act as a whole" is included and, on further consideration, I think the same principle will rule. Quite apart from Deputy Sheldon's point, with which I sympathise, I think there is no contradiction, that the going from the Commissioners to the Courts is merely a stage in what might be considered as the one judicial process. For that reason, I think Deputy McGilligan and Deputy Dillon are over-anxious in this matter.
May I say that Deputy Major de Valera has done more to convince me of the rightness of Deputy McGilligan's argument than Deputy McGilligan himself.
Deputy de Valera accepts the point of view that the judge who participates in the initiation of this litigation is going to hear the case when it comes before him as a judge?
Major de Valera
I accept the position that it is a possibility.
The whole argument of Deputy de Valera was: who is better entitled to hear the case than the man who had sat in a judicial way as a Commissioner?
Major de Valera
You could nearly shove it that far. It is not the Minister's argument but I am merely logically following up Deputy McGilligan's argument.
Deputy de Valera thinks it is proper?
Major de Valera
I think it is unobjectionable, even in the extreme case.
It is proper that the man who would judicially consider the matter at the level of Commissioner is also the right man to decide the matter in Court? I am glad Deputy de Valera intervened.
Major de Valera
Deputy McGilligan is being the advocate on this point.
Because Deputy de Valera has accepted as proper procedure what I am objecting to as improper procedure.
Deputy de Valera says he quite agrees it is possible for a judge, having considered this matter at the level of a Commissioner of Charitable Donations and Bequests, to consider the matter again in court as a judge. He says he foresees that that is possible under this section and that, on the whole, it is not objectionable. The section is not being amended by the Parliamentary Secretary on the grounds that the possibility envisaged by Deputy de Valera is utterly unthinkable. Is that not so?
It would not happen.
The Parliamentary Secretary said it was utterly unthinkable and that it was unnecessary for us to provide against it. It is probably a revelation to the Parliamentary Secretary to realise it is not only possible but that some of his own colleagues think that in certain circumstances it could be desirable.
All I want to say is that if there was no reference to the matter at all in the Bill, this issue probably would not arise because we could all proceed on the legitimate assumption that where a judge participated in the initiation of litigation as a member of the Commissioners of Charitable Donations and Bequests he could be assumed to disqualify himself from providing that he himself would preside over any such litigation in the Court. What I demur to and what Deputy McGilligan demurs to is that under a new law made in 1961 by Dáil Éireann we go out of our way to employ a phrase which Deputy de Valera interprets as meaning that it is not only reasonable to suggest that a judge might preside over such litigation but that in certain circumstances it might be desirable that he would.
I do not think in any circumstances would it be desirable that a judge should preside over litigation for the initiation of which he had himself been in part responsible. That is the simple point. I do not think we ought to say in a statute of Dáil Éireann, expressly or by implication, that we think the view expressed by Deputy de Valera is acceptable. I do not want to widen the scope of this discussion, but I think the more the judiciary are asked to undertake extraneous work apart from their judicial functions, the more dangers of this kind we create. There has been a tendency growing not only here but in Great Britain and elsewhere to invite judges to undertake all sorts of extraneous work as chairmen of commissions and so on.
I suppose Deputy Dillon would regard it as undesirable that the Lord Chancellor should be a member of the British Government?
I regard it as that but we have not got the custody of the King's conscience in this country now. These archaic forms had their advantages and disadvantages. I do not think we wish to widen the discussion to that extent now. I think this is an appropriate occasion on which to suggest that one of the great treasures of our system of judiciary is the detachment of the judiciary from every other branch of government and every activity other than the dispensing of justice. The more we involve them by the statute law of this House in other matters, whether they be commissions, inquiries or anything else, the more we expose them to legitimate comment on the way in which they have discharged their duty.
I believe it is accepted in our system that the administration of justice is above criticism. The more we sustain and support that view, the better it is for society. In so far as we impose on judges the duty to do something other than the dispensation of justice, the more we create occasions on which they may be subjected to legitimate criticism in the discharge of their duties. The one thing we want to treasure and protect is public confidence in the absolute detachment of a judge when administering justice. I am not speaking as a member of the Bar; I am speaking as a plain and ordinary citizen. I cannot doubt that it must create misapprehension in the minds of many ordinary people that the proposition should be defended that it could be proper for a judge acting as a Commissioner of Charitable Donations and Bequests to initiate litigation and that, when that litigation came to trial, the judge who participated in its initiation should himself hear the case. I am sure there is no rational person who would approve of that.
The Parliamentary Secretary says he defends this provision on the ground that it is unthinkable that such a thing could ever arise. Deputy de Valera rises behind him and says not only is it not unthinkable but that in certain circumstances it might be desirable.
Major de Valera
Justifiable.
Even justifiable. I want to direct the attention of the Parliamentary Secretary to the fact that our apprehensions are not so ill-founded as the thought they were. Deputy de Valera is a member of the legal profession. For years he has been a member of this House and has long experience of public life. I think the Parliamentary Secretary would agree with me that we in Dáil Éireann should not legislate on the lines which appear to be acceptable to Deputy de Valera, that we should preserve the concept of a judge who participated in the initiation of litigation certainly not presiding over it when it comes to trial. Because there appears to be an express assertion in this Bill that we think it is proper that he should in certain circumstances do that, I demur at the terms of the Bill. I think a form of words should be found which would preserve the right of a judge who happens to be a member of the Commissioners of Charitable Donations and Bequests to hear cases involving general charitable questions, which would expressly state that that did not include litigation initiated or participated in by the Commissioners of Charitable Donations and Bequests, of which, for the time being, a particular judge happened to be a member.
Major de Valera
I think Deputy Dillon and Deputy McGilligan have rather—I shall not say misrepresented what I said—pushed what I said too far. I thoroughly agree that the preservation of the integrity of the judiciary is of paramount importance wherever it is involved. There is no difference between us on that principle. In this case, the argument I was making—and I was making it merely as a supplementary argument without derogating from what the Parliamentary Secretary and Deputy Sheldon said; I agree with both of them—was that even if Deputy McGilligan's fears were founded, and even if this thing could happen, it could be justifiable in a particular case. Let me be absolutely blunt. There could be no question of agreeing in the ordinary way to a judge being a party to litigation, or initiating legislation, and then hearing it. That would be completely wrong in the ordinary way, but there is a very great difference here in the nature of this body.
That is what we want to provide.
Major de Valera
There is a great difference. My only point was that even in the extreme case, it would be justifiable——
That is great!
Major de Valera
——even in this particular and limited case, for the simple reason that it would be virtually a continuation of the judicial process.
Start it on the Board and continue it on the Bench —that is what we are against.
Major de Valera
Let us argue that out.
In no case should that be allowed.
Major de Valera
It is not a question of anyone here having a vested right. Supposing the Commissioners of Charitable Donations and Bequests found an unclear point of law which it was desirable should be cleared up. It may be that the point of law was not unclear, but that it was arguable, and that it would be for the benefit of all to have it judicially decided, thus saving a great deal of expenditure or a great deal of energy. Surely in that case, if the Commissioners were in some way to bring it forward for judicial decision, there would be no objection to the judge deciding it. There would always be appeal from him on the matter. I am talking now about a point of law.
It was considerations of that nature I had in mind, when I said, in answering Deputy McGilligan, that even if the matter were pressed to the extreme point to which he was pressing it, it could be still justified. I am not saying that I would be any more in favour of it than Deputy Dillon. As Deputy Sheldon said, it would inevitably happen that any judge interested in a matter would not hear it. That is a fundamental safeguard. The safeguard is in the sense of the fitness of things of the judges themselves, and that is where the safeguard has been heretofore. Therefore, I think it is unnecessary to press the matter as far as the Opposition are pressing it.
How far are we pressing it? What we are pressing is that there should not be incorporated in this statute words which suggest—and I mean no disrespect to the Deputy— that his view would in any circumstances be accepted. We are using words in the Bill which the Deputy, I think correctly, interpreted as meaning that if in their deliberations a point of law arises which the Commissioners think would be advantageous to get settled, it would not be inappropriate for the judge who directed their attention to the obscurity to frame proceedings, then leave the offices of the Commissioners and go down, sit in court, have these proceedings brought before him and, in his judicial role, give a judicial decision on the very matter which, on the previous day, he had determined was one of obscurity requiring definition. That seems to me manifestly unbecoming.
Major de Valera
I agree that would not be desirable. I completely agree that could not be justified.
I do not think it could.
Major de Valera
I do not think it could happen.
It is because of these positive words stating that there is no reason why a judge as a member of the Commissioners of Charitable Donations and Bequests should not hear a case initiated by the Commissioners of Charitable Donations and Bequests that I demur. If the words were not here at all, I would be prepared to rest on the assumption that, in practice, it never could happen. What I demur at is the employment of positive words which appear to indicate in the statute, as it would appear when it left this Oireachtas, that we would agree to the possibility of such a thing arising in any circumstances.
I think the Deputy said that he could envisage its happening in certain circumstances which would be unobjectionable to him. It could not arise in any circumstance which would be unobjectionable to me. I would object to it in any circumstance.
Major de Valera
I would object to it in certain circumstances.
I object to the positive words. The Parliamentary Secretary says that if we do not put in some words, we may raise questions on all sorts of matters relating to charities coming before the judges. I sympathise with that difficulty.
Major de Valera
That is the kernel.
If we must use positive words to provide against that danger, all I would ask is that words be added which would indicate that in respect of litigation to which the Commissioners of Charitable Donations and Bequests are themselves a party, where a judge is a member, he shall not be eligible to try the matter, notwithstanding the general power in the earlier subsection. That is all. It would be well to clarify that because it is to be borne in mind, and it is often forgotten, that it is not our expressed intentions that are considered by the courts in interpreting the statutes of the Oireachtas. It is what the Statutes are deemed to say by their contents.
I do not believe the majority of us consider it would be proper for a judge to preside over the proceedings initiated by the Commissioners or to which the Commissioners would be a party. I see the difficulty that you do not want any doubt as to his competence to try in relation to charities in general. If you feel it necessary to allay those doubts by express statutory provision, you ought to circumscribe that express statutory provision so as to prevent a matter coming before the courts at the instance of the Commissioners of Charitable Donations and Bequests being put in the list of a judge who is himself a member of that body.
We are on Section 26 but we appear to be discussing Section 13. I think the kernel is that Deputy McGilligan's and Deputy Dillon's difficulty is whether or not the word "solely" makes any difference to the section. It probably would be better and more appropriate if on the next stage Deputy McGilligan had an amendment to tidy up the words in whatever way he thinks would be preferable.
I would say that the word "solely" is the governing factor. If the word "solely" were left out then the matter would be left wide open. A judge who was a commissioner would apparently be given the right to try a case in which he was an interested party as a commissioner. The introduction of the word "solely" prevents that happening. The purpose of the word "solely" is to make it clear that his membership, per se, is no bar. But, membership plus interest would be a bar, even under Section 13. I am not a lawyer. I do not know always the precise meaning a court would apply to sections of Bills passed in this House. I feel Deputy McGilligan should introduce the form of words which he thinks would clarify the position.
I could not agree more with Deputy Sheldon as to the importance of the word "solely." I intended to say to Deputy Dillon and Deputy McGilligan that it is the keyword in Section 13. It is obviously inserted with the intention of indicating that there could be other circumstances. The circumstances are obviously the sort envisaged by Deputy McGilligan and Deputy Dillon. However, there could be other circumstances which would prevent a judge who is a member of the Board from trying a charity case.
The reality of the situation is that if we did not have this section it could be suggested that a Judge Commissioner could not hear any charity case. We want to make it clear that in any case with charity implications the judge will not have to step down from his bench and refuse to adjudicate simply because he is a member of the Commissioners of Charitable Donations and Bequests. We all agree, I think, that where the Commissioners have taken some specific action in relation to a case, then the Judge Commissioner would refuse to try the case when it came before him in his judicial capacity. It is not necessary to make any provision in that regard. If we were to make that sort of provision we should have to make it for all sorts of cases and not merely for the charity case.
The type of person we want on the Board of the Commissioners of Charitable Donations and Bequests is rare. It is important that we get the very best people as Commissioners. These are people who because of their training, experience and, in the case of judges, their actual judicial capacity, are very valuable and very rare. It is important that we should have such people for this purpose. Similarly, it is important that just because a judge is a member of the Commissioners of Charitable Donations and Bequests he should not be debarred from hearing the great number of ordinary charity cases. The way out of the dilemma is to make the provision as we have made it, emphasising the word "solely" which clearly indicates that there are other considerations which a judge would take into account in relation to the trying of a charity case.
Possibly the best answer on this point is that if the stage has arrived when we do not trust a judge or when we fear a situation would arise where a judge would be unscrupulous enough to sit in the boardroom of the Commissioners of Charitable Donations and Bequests and take a certain action and then, with a prejudiced mind, try that case in court, all is lost, anyway; and there is not much point in trying to make any statutory provision in the matter. I say the situation does not arise; and there is never any danger of its arising in this country. We have an excellent, independent judiciary who know their job and have their traditions, protocol and etiquette. I am quite convinced that the tradition and constitution of our judiciary is sufficient guarantee.
On the argument that you need not set out to prevent something that is not being done, if any Minister came here with an amendment to the Courts of Justice Bill that had in it a phrase to the effect that no judge shall be prevented, solely because he has an interest in the subject matter of a case, from hearing and trying that case—herein determined as if he had no such interest— I should object to it fiercely.
So should we all.
In 1961 we are introducing that phrase. He goes on to say he may hear them as if he were not a member of the Board. That is wrong.
I would oppose Deputy McGilligan on that. There is no question of the Charity Commissioners having a vested interest. The Charity Commissioners are acting purely in the capacity of trustees or in a quasi-judicial capacity. There is no question of a member of the Board of the Commissioners of Charitable Donations and Bequests having a vested personal interest in any proceedings coming before the court. He could not benefit. Therefore, this analogy of Deputy McGilligan is entirely off the point.
The point surely is that what the Board can do is to initiate litigation. Deputy McGilligan now wants us to take an unprecedented step and to give directions to the judiciary as to what cases they may properly try and what cases they may not. I am open to correction but I understand there is no statutory rule as to what case a judge may or may not try.
I do not think there is any statutory provision whereby a judge can be prevented from trying a murder case in which his own son is involved. The idea is unthinkable because it would be a breach of the oath he took when taking office. I agree very much with the Parliamentary Secretary that if we are to take seriously the whole tradition of the judiciary and the oath which they have taken to try cases which may come before them without fear, favour or affection, or whatever the exact phrase may be, we are adequately protected. We must never give any impression either to ourselves or to the public that the Board of Charity Commissioners can possibly have a vested interest in any proceedings whatever because they cannot.
That argument goes to the conclusion that if the Charity Commissioners have no vested interest they should try every case because no interest arises. Deputy Booth agrees with Deputy de Valera. If there is no question of a vested interest there is nothing, therefore, to prevent a judge who is a member of the Commission hearing the case as a judge.
A judge while he has no personal vested interest in the proceedings would not come to a case with an unprejudiced mind. That is the main objection to a judge. In fact, it is the only objection to a judge who is a member of the Board subsequently trying a case simply because he might be influenced by certain arguments which were put before him as a Charity Commissioner and which were not put before him in court. It is not a question that he might be prejudiced in his own interest but be prejudiced by arguments which were put before him other than in court.
That is putting the whole point of the argument. Justice has to be administered in the court by judges and shall be heard in public. A judge can be a commissioner and hear all sorts of arguments of the type that might be used in the boardroom. With those in his mind he can send me on a case stated. I think that is wholly objectionable.
It could not possibly happen and the Deputy knows it.
Question put and agreed to.
Sections 27 and 28 agreed to.
SECTION 29.
I move amendment No. 11:
In subsection (2), page 9, to delete paragraph (a) and insert the following paragraph, namely:
"( ) any of the circumstances specified in subsection (1) of section* exist in relation to any charitable gift, and"
* This is the section proposed to be inserted by amendment 26.
It might be possible to discuss amendments Nos. 11 to 18, inclusive, together.
They seem to hang together.
And also amendments Nos. 26 and 31.
They all hinge on amendment No. 26.
Amendment No. 26 is the main one.
In addition to amendment No. 26, what is the other?
Amendment No. 31.
This will require a lot of explanation, I think.
The main amendment is 26 and the other amendments are consequential thereon.
Amendment 26 proposes to insert a new section to deal with the cy-près doctrine in charity law. The section will not alone consolidate in statutory form the existing law but will also amend that law. As I explained on the Second Stage, the expression cy-près is of French origin and it has now by professional usage come to mean “as near (as possible)”. The doctrine has been called the “doctrine of approximation” and it has a number of other applications as well as its peculiar application in charity cases. It arises, for instance, in connection with the rule against perpetuities; and, where a gift would be void by reason of that rule, it is in certain circumstances construed as nearly as possible to the intentions of the testator.
In the law of charities, in order that the cy-près doctrine may be applied there must be a general charitable intent and it must be found unlawful, impracticable or impossible to carry out the direction of the donor. I gave in my Second Stage speech a simple example. A person leaves by his will money for the building of a church in a particular district. On his death it is found that a church has already been built in that district. As there is a general charitable intention, the money may be applied cy-près for the repair and maintenance of the church.
There are certain defects in the existing law as to cy-près application of charitable funds. The position has been examined both by the Nathan Committee in Britain and by the Newark Committee in the North. Both these Committees made certain recommendations. We have examined these recommendations in consultation, of course, with the Charity Commissioners and the section in this amendment is the result. Similar provisions to those proposed were enacted in Section 13 of the British Charities Act, 1960.
Subsection (1) sets out the circumstances in which the original purposes of a charitable gift may be altered to allow for cy-près application. Paragraphs (a) and (b) make no change in the existing law. Paragraph (c) relaxes the old rule requiring impossibility or impracticability and will allow conjunction of funds not only where that is the only possible or practical method of proceeding but also where it is a more effective method of proceeding, though continuation in isolation be possible. At present the court has no jurisdiction to direct a cy-près scheme though it thinks that the mode of application specified by the testator is inexpedient or even harmful. In a leading case decided in 1910, the then English Master of the Rolls put the matter as follows:
"If the charity can be administered according to the directions of the founder, the law requires that it should be so administered."
Paragraph (d) will allow cy-près application where the charitable purposes of the gift apply in respect of an area which has ceased to be a unit for some other purposes.
What is the 1910 case?
I will get you the reference.
I thought the Parliamentary Secretary had it.
For instance, the gift might be for the poor of a particular local government area which has been abolished and replaced by another area. The paragraph will also allow for cy-près application where the gift is for an area or class of persons which has ceased to be suitable or practicable. Thus “unsuitability” is being substituted for “impossibility,” regard being had to the spirit of the gift.
What is the word that is substituted?
"Unsuitability" is being substituted for "impossibility." Paragraph (e) deals with three types of cases. First of all, cy-près application will be possible where there is adequate alternative provision. At present, a gift for, say, the maintenance of a road cannot be applied cy-près, even though the local authority is bound to maintain the road. Secondly, a gift for what has become an illegal or useless charity may be applied cy-près. This is the present law. Thirdly, a gift may be applied cy-près where the original purposes have ceased in any other way to be a suitable or effective method of using the property, regard being had to the spirit of the gift. At present, it would appear that there is no power to provide for a different mode of application of charity funds that would be more expedient and beneficial to the community than the original mode specified by the donor or testator.
Subsection (2) proposes that subsection (1) shall not affect the conditions which must be fulfilled in order that property given for charitable purposes may be applied cy-près, except in so far as those conditions require a failure of the original purposes. In other words, before cy-près application can be made, the requisite condition (apart from failure of purposes) must be satisfied. This condition is a general charitable intent or what is known as an ‘out-and-out’ gift, that is to say, a gift made with the object of parting with the whole interest in the property given and with no expectation of ever getting the property back. There are certain technical differences between the general charitable intent case and the out-and-out gift case. In either case, there may be cy-près application. ‘General charitable intent’ arises where there is an initial impossibility and the ‘out-and-out’ case arises where there is a supervening impossibility. The law will remain the same as it is at the moment, and general charitable intent or out-and-out gift will continue to be required wherever either is required at the moment. This is the object of subsection (2).
Subsection (3) reproduces the existing law by providing that original purposes shall include alterations by scheme. All cy-près schemes are inherently subject to future schemes.
Subsection (4) proposes to impose a duty on charity trustees to keep their trusts effective by having the property applied cy-près, where the case permits or requires that this be done. Trustees are, of course, legally bound to carry out the trust and it is no more than reasonable that this obligation should extend to the duty of making a cy-près application where such is necessary to give effect to the charitable intention of the settlor.
Subsection (5) makes it clear that the proposed section will apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of the Act. Therefore, if the present law prevents a cy-près scheme being made, in a particular case, the trustees may apply for a scheme under the law as amended by the section. For Deputy McGilligan's information, the case I referred to was Re Weir Hospital [1910], 2 Chancery Reports, page 124.
With regard to amendment No. 26——
Amendment No. 26 is the principal——
Which is brought in by amendment No. 11. What about the rest of these amendments?
They are all consequential on No. 26.
We will have to look at those later on.
Amendment No. 11 agreed?
This is the heavy matter which is introduced by these amendments. We will have to have a look at what has been said.
Amendment agreed to.
I move amendment No. 12:
In subsection (2), page 9, lines 47 to 49, to delete "of the charitable gift to such charitable purposes as they deem best having regard to the directions and intentions of the donor" and insert "cy-près of the property comprised in the charitable gift”.
Amendment No. 27 is partly affected.
Amendment agreed to.
I move amendment No. 13:
In subsection (3), page 10, to delete paragraph (b) and insert the following paragraph, namely:
"( ) any of the circumstances specified in subsection (1) of section * exist in relation to the charitable gift,"
* This is the section proposed to be inserted by amendment 26.
Amendment agreed to.
I move amendment No. 14:
In subsection (3), page 10, lines 7 and 8, to delete "of the charitable gift to such charitable purposes as they deem best having regard to the intentions of the donor" and substitute "cy-près of the property comprised in the charitable gift”.
Amendment agreed to.
I move amendment No. 15:
In subsection (4), page 10, to delete paragraph (b) and insert the following paragraph, namely:
"( ) circumstances exist in relation to the scheme, being circumstances whose existence in relation to a charitable gift would enable the property comprised in the gift to be applied cy-près, and”.
Amendment agreed to.
I move amendment No. 16:
In subsection (4), page 10, lines 17 to 19, to delete "of the charitable gift to such charitable purposes as they deem best having regard to the directions and intentions of the donor" and insert "cy-près of the property comprised in the charitable gift”.
Amendment agreed to.
I move amendment No. 17:
In subsection (5), page 10, to delete paragraph (b) and insert the following paragraph, namely:
"( ) circumstances exist in relation to the scheme, being circumstances whose existence in relation to a charitable gift would enable the property comprised in the gift to be applied cy-près.”
Amendment agreed to.
I move amendment No. 18:
In subsection (5), page 10, lines 34 to 36, to delete "of the charitable gift to such charitable purposes as they deem best having regard to the directions and intentions of the donor" and insert "cy-près of the property comprised in the charitable gift.”
Amendment agreed to.
Question proposed: "That Section 29, as amended, stand part of the Bill."
I take it that none of these amendments touches subsection (4) of Section 29?
Yes. Nos. 15 and 16.
Has (b) gone out in subsection (4)?
Yes, (b) has gone out.
Is the position still the same, that the Board may change a scheme framed by the court?
Yes.
I have argued that I think that is undesirable. Why is it necessary to retain that? Why could you not go back to the court? Where a scheme has been framed by the court and certain things arise, and a charitable gift is not over £5,000, it gives the Board power to revoke the scheme.
As I said, there is no reason why the scheme framed by the court could not fail and become impossible just as any other scheme could.
Why not bring the case to the court's notice?
This applies only where the fund is under £5,000. It is a question of expense.
You are giving power to the Board to override a scheme by the court——
Oh, no.
——to apply cy-près to the proposals of the charity.
Only in a case where the scheme framed by the court has failed or become impossible.
I suggest that this is an innovation. Is it?
It is.
It is completely new that you have a court order and on the failure of something, a cy-près application can be made by the Board.
In limited cases.
Even so. However, we shall deal with that later.
Question put and agreed to.
Sections 30 and 31 agreed to.
SECTION 32.
I move amendment No. 19:
In subsection (3) (a) (ii), page 13, line 10, after "or" to insert "where the fund exceeds £500."
I might suggest that this amendment and amendment No. 20 could be taken together because I do not think one makes sense without the other. I mentioned this point on Second Reading and I then put in these amendments. I was considerably fortified in my opinion by discovering that the House of Lords had just passed very similar legislation. They did it in a very complex way and it must give great joy to the legal profession. Hardly two lines make sense when read together. The general intention is the same. It all arises out of this very sensible step that power should be given to widen investment.
Now, in giving such power certain safeguards should be employed. One of them, which is in amendment No. 19, is that there should be a restriction put in of £500. That is an ad hoc figure which I would not mind moving up or down. I just thought of one figure and that seemed a reasonable one. The idea was that where a fund was as small as £500, it should not be open to the risks of investments in equities in whole or in part. Admittedly, the proposals which the Parliamentary Secretary has now brought forward for common investment funds will probably alter the situation completely, but as there is no compulsion to have common investment funds in one case, there is still the desirability of some such provision as I suggest.
If I may go on to discuss Amendment No. 20 with Amendment No. 19, what I want to do there is that where the sum exceeds £500, then not more than 50 per cent. shall be invested in equities and not more than 20 per cent. in any one company. That is just to secure diversification and to prevent the collapse of one company from adversely affecting a trust or a charity. I think it is a sensible provision and there I am very much fortified by discovering that very much the same provision has been made by recent legislation in England. Admittedly, there they were more complex about it. They just seek for diversification without specifying any particular percentage and they make provision for all sorts of advice to be taken and very often it is not clear whether anyone needs to have any qualifications to give the advice.
Rather than leave it in that open way, that some person could be called upon in respect of any particular charity to say that this amount or that amount of its funds may be invested in equities, it would be better to make a provision in law whereby some percentage will be inserted and some percentage both in relation to type of investment and in regard to any particular company.
I find myself unable to accept these amendments. At the outset I should like to make a point to Deputy Sheldon. The proposal at present in Britain is to enable trustees to invest in the manner set out, without going to the court. It is an extension of the powers of trustees generally. It will not be necessary for a trustee in England to go to the court. There is that essential difference between our proposal and the proposal at present before the British Parliament. Subsection (3) of Section 32 provides for the authority of either the court or the Board, so that in that regard there is no similarity between what we are doing and what is proposed in Britain.
Apart from that, I think it is not necessary for us to fetter the court or the Board in the manner proposed by Deputy Sheldon. In the first case, with regard to the £500 limitation which he proposes to insert, I think, as he himself has indicated, the provisions which we propose about amalgamating small charitable funds will go a long way to meet his point. Even apart from that, the whole value of this proposal is that charities will be able to avail of the high returns and the capital appreciation which they can get from equity stocks. That being so and assuming, as we must assume, that the court and the Commissioners will act, not alone judicially but judiciously, I think we need not put in any limitation such as suggested by Deputy Sheldon. I think we can leave it to the court or the Commissioners, acting on proper advice, to ensure that there is no danger of the funds being recklessly invested.
The trouble is that, if you make a limitation of this sort and write it into the Statute, you do not know what difficulties it will subsequently cause for trustees. There might be some particularly desirable investments which trustees of a particular charity might like to make and this limitation which Deputy Sheldon would have us put into the Bill would prevent that desirable form of investment.
As I say, I think the fact that we are making it all subject to the authority and permission of the court or the Board is sufficient protection.
Did the Parliamentary Secretary say the permission "of the court or the Board"?
"Or the Board," yes.
That type of argument goes too far. It is going too far for anybody introducing a Bill to say: "We are putting this into the hands of people. We must accept that they are responsible and reasonable people. Therefore, we need not fetter them." Why fetter them as you have done in two subparagraphs of subsection (3) of this section? You do not say "any stock, any shares of any company." You impose certain limitations. You say it must be a company incorporated in the State.
That is national policy.
Can we not trust a body of Commissioners who are reasonable people to carry out national policy? Secondly, we allow them to invest in the ordinary shares of a company "maintaining in the State...a register of its shareholders." Is that national policy, which is carried forward in certain things that we are trying to get away from? Finally, it says: "Provided the ordinary stock or shares of any such company are quoted on the Dublin Stock Exchange or the Cork Stock Exchange." If they are reasonable people, you need not put that in. This sort of argument: "We either trust the Commissioners or we do not," goes much too far. If you are going to trust the Commissioners, then do not accept Deputy Sheldon's point, which is a very reasonable one. I do not agree with his proposal in regard to the £500 but the other one, that not more than 50 per cent. of any fund may be invested in ordinary stock or shares and not more than 20 per cent. in any one company, is not unreasonable. I do not know whether it is a sound direction to give but it is not an unreasonable direction to ask the Commissioners to see to it that they shall not put all their eggs in one basket. That is all the amendment asks.
I have some anxiety about this question of investing in ordinary stock of a company, even though it be a company incorporated here or maintaining a register of its shareholders resident in the State and quoted on either stock exchange. It is a very wide clause, and a very complete innovation in regard to trust funds. We may be in the mood to do all these things, but this may go too wide altogether. It is one of the points which may have to be thought over on the next Stage. If there is ordinary stock open for investment, if you are to put any limitation on them, just to say: "Do not put more than 50 per cent. in ordinary stock and do not have more than 20 per cent. in any one company" is not an unreasonable limitation.
If the stock is good enough for 50 per cent. of the funds, is it not good enough for the whole of them?
Supposing it is not?
Then do not invest the 50 per cent. in it.
Supposing the Commissioners may have the idea that they would not think of investing in it—very good, leave it to them. Why bother about this quotation on the two stock exchanges? If they are reasonable people, they will have a look to see if the shares are being quoted. If you put in that limitation, I say it is not unreasonable to say the other thing.
There are two different points here. Deputy Sheldon is concerned primarily with the security of the funds, but the limitations generally are to make sure that charity funds will be invested in accordance with national policy in relation to trustee investment. An Act was passed in 1958 covering the investment of trustee funds generally and directing that broadly they be invested at home. These provisions here are in the main to secure that the similar provisions apply to charity funds. That is why these limitations are put in. They are not concerned with the security of the funds.
I can only repeat in reply to Deputy McGilligan what I said to Deputy Sheldon, that is, that we think it better to give the power generally and then to make sure that trustees will have to apply either to the court or the Board. That is enough protection. As I said in answer to Deputy McGilligan, surely if a stock or share investment is good enough to merit your investing 50 per cent. of your funds in it, it is generally good enough for all of your funds. If it is not good you do not invest them at all and, if you regard it as good for any of your funds, you might as well put them all in. Special considerations may apply in different cases, however.
I have heard everything now. Does the Parliamentary Secretary really expect me to take that as an argument? Is that the way he invests his money, picks one company and shoves the lot in?
The Deputy is attributing to me an affluence which I do not possess.
Supposing he became affluent, I wonder would he get the opinion of the Charitable Commissioners or the courts as to how he would invest his own if that is what he is prepared to do with charity money. We are handing over to the courts and to the Board the direction of the investment of charitable moneys. Having done that, there is a moral obligation on us to do one of two things. One is to say: "In seeking higher returns from the funds we think there should be a prudent limit put as a safeguard." If we are not going to say that then we should say: "If it turns out you were wrong in investing all the funds in one company, that, having so invested them, that company disappears, we will undertake on behalf of the State to give you power to reimburse the charity."
If the courts are to be given this power to do what they like with all the funds, if we are giving them carte blanche, I think we are going much too far and we are leaving charities open to a very grave risk. It is not just a question of taking your funds out of gilt-edged securities and putting them into some company which will give a bigger return. Security comes into it just as much; in fact, I would say security is of more importance in regard to charitable funds than it would be to a man in regard to his own money. Very few people, certainly not people who were seeking to provide for their old age, would rashly put all their money into one company even if they thought there were prospects of a good return. We are the guardians of these charities and it is incumbent on us to see that some safeguard is provided.
We are not handing over to the courts anything new. The High Court has always had jurisdiction in charity matters and, indeed, can authorise a charitable trust to invest in anything it wishes. Let us be clear on this: we are limiting the power of the court in this section. The position in Great Britain is that if a trustee goes to the court and gets its authority, he can invest all his funds in anything he likes. There is no limitation in Great Britain on what the courts may authorise a trustee to do. In that regard, rather than, as Deputy Sheldon says giving it carte blanche, we are in fact limiting the court's power, though admittedly the limitation is directed more to a policy of national investment than to security of the funds.
Let me point out en passant that there is also the stipulation that the securities must be securities quoted on the Stock Exchange. The Stock Exchange have very rigid rules about the companies that will be granted quotations. I do not disagree at all with Deputy Sheldon as to what the canons of good investment require, either in our personal capacity or as trustees. A prudent man would certainly take advice and take precautions with regard to the spread of his investments, and so on. I think a prudent trustee must do likewise, and I am quite certain that the court and the Commissioners will be mindful of those requirements and will be properly advised in regard to them.
The only difference between Deputy Sheldon's view and mine is that I do not want to write down in black and white in this Bill the limitation he suggests. While I agree with the motive behind his suggestion, I do not want to put it into the Bill and find subsequently that some unfortunate trustee of a charity is debarred from making some particularly desirable or lucrative investment simply because of the straitjacket we have put him into under this Bill. While agreeing with everything Deputy Sheldon says about the necessity for prudence and the spreading of risk, I prefer to proceed by giving the powers, with the general limitation we have, and then leaving it to the court or the Board to look after the matter.
Surely language ought to bear some relation to the matters being discussed. The Parliamentary Secretary refers to a straitjacket. Deputy Sheldon mentions not more than 50 per cent. in one company.
That is not the amendment.
What is the amendment?
Fifty per cent. of the funds in ordinary shares.
And 20 per cent. in any company.
Can we regard that as a straitjacket? I thought that was a wise enough provision. I have not before my mind the names of the Commissioners but this is completely new, this matter of moving out from trustee investments. It cannot be said that any of the Commissioners have any experience in investing trustee funds outside trustee investments.
Of course they have.
This is giving the trustees power to invest in ordinary stock. Have they any experience of investing Commissioners' moneys?
Of course they have.
What are the professional capacities of the Commissioners?
There are a Bishop, a Judge, several distinguished lawyers.
How many lawyers? I mean practising lawyers. I do not mean people who have Law Degrees.
I would say about four.
And there are 13 members?
Eleven.
A Bishop, a Judge, four lawyers. What are the others?
The Judge was an eminent lawyer.
How many can be called business people used to investment?
We have the Governor of the Central Bank. Would he qualify?
I think so. We can put no handicap on him. What experience have these other people outside trustee securities? I am not sure it would not be wise to have some handicap in this regard. It was interesting to hear the Parliamentary Secretary saying the courts were being fettered. Earlier this morning we could not say a word that might suggest criticism of them, but now it is a virtue of this Bill that we are not allowing the courts the same freedom they used to have with regard to investment.
The Charity Commissioners have vast experience in handling funds for investment in all types of investments. The reality is that the Board, Court, or anybody else, have expert, competent advisers to call upon and if they are in any doubt as to the suitability of an investment the natural thing to do is to get proper advice. I do not know, but I am quite sure that the Board have a firm of stockbrokers to act for them and are professionally advised in every way necessary and desirable.
Amendment, by leave, withdrawn.
Amendment 20 not moved.
Section 32 agreed to.
SECTION 33.
I move amendment No. 21:
In page 13, to delete paragraph (2) and insert the following paragraph, namely:
"( ) the trustees desire to invest the fund, or vary the investment of the fund by investing it, in investments not authorised by the instrument (if any) creating the trust and not for the time being authorised by law as investments for trust funds,"
The object of this amendment is to exclude from the ambit of the section investments authorised by the trust instrument or authorised by law for trustees generally. As the section is at present drafted, trustees of a charity fund held subject to a prior limited interest would be forced to apply to the Board in order to be able to make investments authorised for ordinary trustees. This was not the intention.
I do not understand. Does the provision not still apply in regard to giving notice of the proposal to the Board?
Yes.
How does the amendment weaken the force of that?
It does not.
What is the purpose of the amendment then? I thought something had crept into the Bill which was not intended.
As Section 33 is at present drafted, if a trustee desires to invest or vary his investments, inside either investments authorised by the instrument or authorised by law, then he has to go to the Board. It is not our intention that he should have to do that. It is only if he wants to go outside such investments that we propose to require him to apply to the Board.
Amendment agreed to.
Section 33, as amended, agreed to.
Sections 34 to 37, inclusive, agreed to.
SECTION 38.
Question proposed: "That Section 38 stand part of the Bill."
This is a complete discretion to the Board. Why is it so absolute in stating that in case certain moneys arise these moneys are to be invested in such a manner as the Board think fit?
It is all covered by Section 32 which says: "Notwithstanding..."
It does not say so.
It does; yes.
It does, at the top of page 13 (a).
May I suggest that the ordinary private drafting would be to say: "The moneys shall be... subject to Section 32."
I am advised that it is covered in this way.
We shall have to look at that.
Question put and agreed to.
Sections 39 and 40 agreed to.
SECTION 41.
I am not moving Section 41. Amendment 22 involves the deletion of the section. The new section proposed in that amendment will allow the Board to appoint new trustees wherever such is desirable or necessary. If the existing trustees do not fill vacancies, the Board will be able to do so for them so that there will be no necessity for the Board to apply to the High Court for the appointment of new trustees.
I take it we are not discussing amendment No. 22 at the moment?
No.
By way of anticipation, what is the big change made by amendment No. 22?
Amendment No. 22 is much wider.
What are the special features of amendment No. 22 that are not to be found in Section 41 generally?
Section 41 deals only with cases where trustees do not move to fill vacancies themselves.
Section 41 deleted.
Sections 42 and 43 agreed to.
NEW SECTION.
I move amendment No. 22.
In page 17, before Section 44, to insert the following section:
(1) Where for any reason the appointment of a new trustee or new trustees of any charity appears to the Board to be necessary, the Board—
(a) on the application of the trustee or trustees of the charity, or
(b) if there are no trustees of the charity, or they cannot be found, on the application of any person appearing to the Board to have an interest, or
(c) in any case, of their own motion,
may make—
(i) an order under the seal of the Board appointing a new trustee or new trustees of the charity either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee, and
(ii) an order under the seal of the Board vesting the property of the charity for such estate as the Board may direct in the persons who on the appointment are the trustees, and the order shall have the same effect as if the persons who before the appointment were the trustees (if any) had duly executed all proper conveyances of the land for such estate as the Board direct, or if there is no such person, or no such person of full capacity, then as if such person had existed and been of full capacity and had duly executed all proper conveyances of the land for such estate as the Board direct.
(2) Every trustee of a charity appointed under this section shall, as well before as after the property of the charity becomes by law vested in him, have the same powers, authorities and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument (if any) creating the trust.
(3) The Board may order the costs and expenses of and incidental to any application or order under this section to be paid or raised out of the property of the charity or the income thereof or to be borne and paid in such manner and by such persons as the Board may consider just.
(4) The Board shall, not less than one month before the date on which they propose to make an order under this section, give public notice of the proposed order in such manner as the Board consider most effectual for ensuring publicity thereof and for bringing the proposal to the attention of persons interested.
(5) (a) Any person appearing to the High Court to have an interest may, within twenty-one days after the date of the making of an order under this section, appeal to the High Court against the making of the order and on such appeal the High Court may make such order confirming, annulling or varying the order under this section and such order as to costs as it thinks fit.
(b) The Board and the trustees (if any) of the charity shall be entitled to be represented and heard on any appeal under this subsection.
(c) An order under this section shall, if no appeal is brought against it, become operative on the expiration of the period of twenty-one days mentioned in paragraph (a) of this subsection, and an order against which an appeal is brought shall become operative—
(i) if and so far as it is confirmed by the Court, from the date of the final determination of the appeal, and
(ii) if the appeal is withdrawn, from the date of the withdrawal.
(6) An order under this section shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.
(7) Nothing in this section shall give power to appoint an executor or administrator.
(8) Where a body corporate is appointed by order under this section to be, or a body corporate appointed under this section becomes, sole trustee of a charitable trust the terms of which provide for or require the appointment of more than one trustee, then during such time as the body corporate holds the office of trustee of the trust—
(a) the terms of the trust shall be deemed to provide for or require the appointment of one trustee only, and
(b) one trustee only shall be deemed to have been originally appointed under the terms of the trust.
The section proposed in the amendment will authorise the Board to appoint new trustees of a charitable trust wherever this is necessary. The Board will be able to appoint such trustees either to fill up the original number or to replace an existing trustee or trustees or to deal with the situation where there are no trustees or they cannot be found. Specific provision is being made for the giving of public notice of a proposed order under the new section and also for an appeal to the High Court. The section will allow for the replacement of two or more trustees by a body corporate so as to discharge all the original trustees. This is not possible under existing law because of Section 10 (2) (c) of the Trustee Act, 1893.
The position is different in England and in the North, as the Trustee Acts have been amended in both jurisdictions to cover the matter. Where charitable funds are vested in two or more trustees, it is often desirable to allow the trustees to be discharged in order that a body corporate may act, if such will make for the better administration of the charity. There are a number of cases at the moment where charity trustees want to be relieved so that they can hand over to bodies corporate. The Charity Commissioners and others have drawn this matter to our attention. It is proposed in a later amendment to validate certain appointments of bodies corporate as sole trustees of charitable funds although these appointments have not legally discharged the original trustees. In other words we will validate what has been done.
There is only one small point in this. There is a right of appeal to the High Court given. That is under subsection (5) of the amendment. It states that they "may, within 21 days after the making of an order under this section ..." but the only way in which the person can get to know it is not with respect to the date on which the order is made— and it is from that date that the 21 days run—but from the day on which the Board propose to make an order and of that time notice has to be given. I am looking now at subsection (4): "The Board shall not less than one month before the date on which they propose to make an order under this Section, give public notice of the proposed order in such manner as the Board consider most effectual." One swings over from that to the application to the High Court within 21 days after the date of the making of the order which may not be the date included in subsection (4). If it is possible to give notice of the proposed order why would it not be possible to give notice of the order, the date on which it was made, and let the 21 days run from that? Twenty-one days after the making of an order—that date may not be known to a person who may be an interested party in the matter.
I will have to look at that.
I would like to welcome this proposal. This provision will be a very great help in many cases. It was brought to my notice the other day where, because of the lack of some such provision, 14 death certificates had to be sought over a period of 50 years in order to clear up a trust. This provision will in future obviate that type of search and delay.
There are just one or two minor points which arise mainly because of my own ignorance of legal phraseology. In subsection (2) the phrase "as well before as after the property of the charity becomes by law vested in him" appears. What is the meaning of "as well before as after"? Is this related to what the Parliamentary Secretary said with regard to invalidating something which may have taken place in an interim period?
On the question of publicity, this is left entirely to the Board. It is usual where publicity is provided for to stipulate at least one type of publicity which must be used; for instance, notice must appear in one national newspaper. How will the Board be aware that interested parties may or may not turn up? Could they be held at fault later if someone did turn up who claimed that the publicity given had not been sufficient because he was not aware of it at the time? That in itself would surely be proof that the publicity was not sufficient. I am thinking of it not so much as a safeguard for persons who might turn up later but rather as a safeguard for the Board so that they could say a minimum provision had been laid down and they had complied with it. From the point of view of the Board some such provision might be safer.
Frankly, subject to correction, I think the phrase "as well before as after" means that the trustee might have to deal with something that happened the property before he became a trustee. I understand the phrase is designed to cover that eventuality. With regard to the suggestion about advertisement, I shall examine that to see whether it might not be desirable to make some such provision. The suggestion is a useful one.
Amendment agreed to.
SECTION 44.
I move amendment No. 23:
In page 17, to delete subsection (2).
Section 44 is designed to apply to both contentious and non-contentious business. The reference in subsection (2) to scales of costs is inappropriate inasmuch as all costs for non-contentious business are regulated by the Solicitors' Remuneration General Orders and not by the High Court Rules. These latter are confined to contentious business. This point was raised by the Incorporated Law Society and, after consultation with the Board and the Attorney General, it was agreed that Section 44 should be amended by the deletion of subsection (2).
Amendment agreed to.
Section, as amended agreed to.
NEW SECTION.
I move amendment No. 24:
In page 17, before section 45, but in Part III, to insert the following section:
(1) For the avoidance of the difficulties which arise both in giving effect to the intentions of donors of gifts for the celebration of Masses in perpetuity or over long periods and in administering such gifts and in order not to frustrate the intentions of such donors, it is hereby enacted, notwithstanding that a gift for the celebration of Masses, whether in public or in private, is a valid charitable gift, that a gift taking effect after the commencement of this Act for the celebration of Masses for a period of more than fifty years shall be construed and have effect as if the gift provided—
(a) for the celebration of Masses in accordance with any terms and conditions of the gift for a period of fifty years, and
(b) for the application, after the expiration of the period of fifty years, of so much of the subject of the gift as should then remain for the celebration of Masses during such period and on such terms and conditions as should be determined after such expiration by the person to whom the gift is given or his successor in title and, if the gift is administered by the Board, for the vesting in the appropriate person, on such expiration, of so much of the subject of the gift as should then remain.
(2) In the application of this section to a gift for the celebration of Masses for a purpose or purposes specified in the terms of the gift, references in subsection (1) to the celebration of Masses shall be construed as references to the celebration of Masses for that purpose or those purposes.
(3) In the application of this section to a gift which is administered by the Board, the reference in paragraph (b) of subsection (1) to the person to whom the gift is given or his successor in title shall be construed as a reference to the appropriate person.
(4) In this section "the appropriate person" means in relation to a gift for the celebration of Masses—
(a) if and to the extent that the Masses are celebrated by a priest who is a member of a religious order, institute or society, the major superior for the time being of the order, institute or society in the State, and
(b) if and to the extent that the Masses are celebrated by any other priest, the archbishop or bishop for the time being of the diocese in which the Masses are celebrated.
The object of this amendment is to deal with what are known as Foundation Masses—that is to say Masses in perpetuity or over long periods. The Canon Law on this subject has recently been altered. To avoid risk and uncertainty in the fulfilling of perpetual obligations, it has been decreed that future Foundations of Masses are to be so understood that the Masses will be celebrated for fifty years from the date of the Foundation unless a shorter period has been determined by the founder. At the end of fifty years the capital and income still remaining is to be applied for the celebration of Manual Masses for the founder's intentions.
Since the decision of the old Irish Court of Appeal in O'Hanlon v. Logue (1906), gifts for Masses, whether celebrated in public or private, are charitable and accordingly the rule against perpetuities does not apply. The proposed new section will put a time limitation on Foundation Masses. Gifts for Masses in perpetuity or for a period of more than fifty years will be construed and have effect as if the gift provided for the celebration of the Masses for a period of fifty years and thereafter for the celebration of Masses during such period and on such conditions as shall be determined by the person to whom the gift is given or his successor in title.
Will that include a simple condition to say Masses for another 25 years if at the end of the 50 years there is money over?
At the end of 50 years it is left entirely to the discretion of the celebrant.
And the trustee could have Masses said for another 25 years.
No. At the end of 50 years the obligation is finished. Irrespective of the terms of the original gift, the obligation is fulfilled if the Masses are celebrated for 50 years. Thereafter it is at the discretion of the celebrant.
That discretion could evolve in the saying of Masses for another 20 years.
The celebrant could decide to continue to say Masses periodically.
It does not prevent the saying of Masses after the 50 years period.
No, but it is no longer obligatory.
It is discretionary.
Yes. Where the gift is administered by the Board, the remaining capital and income at the end of the 50 years will become vested in the Archbishop or Bishop of the diocese or in the major superior of the religious order, as the case may be.
The proposed section will avoid difficulties which can and do arise in regard to gifts for Foundation Masses. Furthermore, the section will prevent the frustration of donors' and testators' intentions, as gifts for such Masses are not acceptable except in accordance with Canon Law. What we propose is in effect the application of the cy-près principle to gifts for Foundation Masses. If there is a gift or bequest for Masses in perpetuity or for more than fifty years, the direction of the donor or testator will be given effect to in the way that is practicable and possible.
I should add that for the section to apply the gift must take effect after the commencement of the Act. There is no retrospection.
This will bring the law into accord with Canon Law.
Yes. The position at present has been that bequests for Masses could fail because the bequests are not in accordance with Canon Law. The intention is to make it possible to have effect given to these bequests.
Amendment agreed to.
NEW SECTION.
I move amendment No. 25:
In page 17, before Section 45, but in Part III, to insert the following section:
(1) The High Court or the Board may by order make and bring into effect schemes for the establishment of common investment funds (in this section referred to as schemes) upon terms which provide—
(a) for property transferred to the fund by or on behalf of a charity participating in the scheme to be invested under the control of trustees appointed to manage the fund; and
(b) for the participating charities to be entitled (subject to the provisions of the scheme) to the capital and income of the fund in shares determined by reference to the amount or value of the property transferred to it by or on behalf of each of them and to the value of the fund at the time of the transfers.
(2) The High Court or the Board may make a scheme on the application of any two or more charities.
(3) A scheme may be made in terms admitting any charity to participate, or restricting the right to participate in any manner.
(4) A scheme may make provision for, and for all matters connected with, the establishment, investment, management and winding up of the common investment fund, and may in particular include provision—
(a) for remunerating persons appointed trustees to hold or manage the fund or any part of it, with or without provision authorising a person to receive the remuneration notwithstanding that he is also a charity trustee of or trustee for a participating charity;
(b) for restricting the size of the fund, and for regulating as to time, amount or otherwise the right to transfer property to or withdraw it from the fund, and for enabling sums to be advanced out of the fund by way of loan to a participating charity pending the withdrawal of property from the fund by the charity;
(c) for enabling income to be withheld from distribution with a view to avoiding fluctuations in the amounts distributed, and generally for regulating distributions of income;
(d) for enabling moneys to be borrowed temporarily for the purpose of meeting payments to be made out of the fund;
(e) for enabling questions arising under the scheme as to the right of a charity to participate, or as to the rights of participating charities, or as to any other matter, to be conclusively determined by the decision of the trustees managing the fund or in any other manner;
(f) for regulating the accounts and information to be supplied to participating charities.
(5) A scheme, in addition to the provision for property to be transferred to the fund on the basis that the charity shall be entitled to a share in the capital and income of the fund, may include provision for enabling sums to be deposited by or on behalf of a charity on the basis that (subject to the provisions of the scheme) the charity shall be entitled to repayment of the sums deposited and to interest thereon at a rate determined by or under the scheme; and where a scheme makes any such provision it shall also provide for excluding from the amount of capital and income to be shared between charities participating otherwise than by way of deposit such amounts (not exceeding the amounts properly attributable to the making of deposits) as are from time to time reasonably required in respect of the liabilities of the fund for the repayment of deposits and for the interest on deposits, including amounts required by way of reserve.
(6) Except in so far as a scheme provides to the contrary, the rights under it of a participating charity shall not be capable of being assigned or charged, nor shall any trustee or other person concerned in the management of the common investment fund established by the scheme be required or entitled to take account of any trust or other equity affecting a participating charity or its property or rights.
(7) Property held upon any charitable trust may be transferred to common investment funds established under this section unless the power to do so is excluded by a provision specifically referring to schemes in the terms of the trust.
(8) A common investment fund shall be deemed for all purposes to be a charity.
(9) The High Court may by order amend or vary the terms of, or wind up, a scheme and the Board may by order amend or vary the terms of, or wind up, a scheme made by order of the Board.
The proposed new section will allow for the making by the High Court or the Board of schemes to establish common investment funds. These schemes may be made on the application of any two or more charities. The section makes detailed provision as to what the scheme may contain in regard to the constitution and management of the common investment fund.
A strong case has been made to us for the necessity of allowing for the pooling of investments on behalf of different charities, and the present proposal is as recommended by the Board. Where a trust fund is small, it is not a practical matter to obtain a wide spread of investments. Both the amount of work and the expense involved are too substantial to make up for any increase in income. By permitting trustees to pool a number of trust funds, a better range of investment is available. Each fund will receive its appropriate share of the total income of the pool. This is obviously better business management for a body which is a trustee for a number of small charitable trusts. By joining the trusts together for the purpose of investment each individual trust does better than it would if the investment of its funds were dealt with as a completely separate matter.
This is a very welcome provision and it influenced very much my willingness to withdraw my previous amendments because it will provide more safety for the small fund. The only comment I want to make is that the drafting, for once, appears to me to leave something to be desired. In general, the drafting in the Department of Justice is extremely good and the various aids that are given by way of marginal notes are very useful. In this case, in relation to subsection (1), I would not go so far as to say it is ambiguous, but it is not terribly clear. I take it from subsection (2) it is not envisaged that there shall be a common investment fund for Ireland. It assumes that there will be a number of common investment funds. In paragraph (a) of subsection (1) there is a reference to "the fund." It is only when you read all through it that you realise it is one particular fund out of many. I think the expression "a fund" might be better.
I suggest a new start be made by beginning the section with a definition subsection in which both "schemes" and "fund" would be defined. That would then enable the whole section to be tidied up and made a good deal more clear. The present way of defining "schemes" by putting in a phrase in parenthesis absolutely prevents one defining "fund" without getting into a terrible tangle. It might be better to redraft the beginning and define both "fund" and "schemes" in relation to this section. To say "for property transferred to the fund" is bound to be slightly confusing. You do not mean a common investment fund for the whole country but a particular one about which you are talking at the time. In the same way, right on down, you get slightly confused. Perhaps the Parliamentary Secretary would take a note of that and see if more clarity could be got.
As usual, with any suggestion from Deputy Sheldon, it will receive our most careful attention.
What about the answer to the question he asked? Is it intended that there should be one big charitable fund or a number of them?
A number of them.
With regard to subsection (4) (a), remunerating people, is it expected that that will have to be done?
It is quite possible it will have to be done in certain cases.
How did this arise? Did it come from the Commissioners?
The particular form in which it now is has been worked out in consultation with the Commissioners.
Section 32 gives power to the Board to invest funds here in such manner as they think proper. That does not preclude them investing in a common fund. Did that idea of a common investment fund originate with the Commissioners?
I could not say who first thought of it. It certainly has been recommended by a number of different institutions.
By the Commissioners?
Yes, amongst others.
Again, in subsection (4), there is a reference to "the common investment fund" which is a bit confusing.
Amendment agreed to.
NEW SECTION.
I move amendment No. 26:
In page 17, before section 45, but in Part III, to insert the following section:
(1) Subject to subsection (2), the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be applied cy-près shall be as follows:—
(a) where the original purposes, in whole or in part—
(i) have been as far as may be fulfilled; or
(ii) cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift; or
(b) where the original purposes provide a use for part only of the property available by virtue of the gift; or
(c) where the property available by virtue of the gift and other property applicable for similar purposes can be more effectively used in conjunction, and to that end can suitably, regard being had to the spirit of the gift, be made applicable to common purposes; or
(d) where the original purposes were laid down by reference to an area which then was but has since ceased to be a unit for some other purpose, or by reference to a class of persons or to an area which has for any reason since ceased, either to be suitable, regard being had to the spirit of the gift, or to be practical in administering the gift; or
(e) where the original purposes, in whole or in part, have, since they were laid down—
(i) been adequately provided for by other means; or
(ii) ceased, as being useless or harmful to the community or for other reasons, to be in law charitable; or
(iii) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the gift, regard being had to the spirit of the gift.
(2) Subsection (1) shall not affect the conditions which must be satisfied in order that property given for charitable purposes may be applied cy-près, except in so far as those conditions require a failure of the original purposes.
(3) References in the foregoing subsections to the original purposes of a gift shall be construed, where the application of the property given has been altered or regulated by a scheme or otherwise, as referring to the purposes for which the property is for the time being applicable.
(4) It is hereby declared that a trust for charitable purposes places a trustee under a duty, where the case permits and requires the property or some part of it to be applied cy-près, to secure its effective use for charity by taking steps to enable it to be so applied.
(5) This section shall apply to property given for charitable purposes, notwithstanding that it was so given before the commencement of this Act.
Amendment agreed to.
NEW SECTION.
I move amendment No. 27:
In page 17, before section 45, but in Part III, to insert the following section:
(1) Property given for specific charitable or non-charitable purposes which fail shall be applicable cy-près by a Court of competent jurisdiction as if given for charitable purposes generally, where it belongs—
(a) to a donor who, after such advertisements and inquiries as are reasonable, cannot be identified or cannot be found; or
(b) to a donor who has executed a written disclaimer of his right to have the property returned,
but in applying cy-près property given for specific non-charitable purposes regard shall be had to the wishes of the trustees or other persons in charge of the property.
(2) For the purposes of this section property shall be conclusively presumed (without any advertisement or inquiry) to belong to donors who cannot be identified, in so far as it consists—
(a) of the proceeds of cash collections made by means of collecting boxes or by other means not adapted for distinguishing one gift from another; or
(b) of the proceeds of any lottery, competition, entertainment, sale or similar money-raising activity, after allowing for property given to provide prizes or articles for sale or otherwise to enable the activity to be undertaken.
(3) A Court of competent jurisdiction may by order direct that property not falling within subsection (2) shall for the purposes of this section be treated (without any advertisement or inquiry) as belonging to donors who cannot be identified, where it appears to the Court either—
(a) that it would be unreasonable, having regard to the amounts likely to be returned to the donors, to incur expense with a view to returning the property; or
(b) that it would be unreasonable, having regard to the nature, circumstances and amount of the gifts, and to the lapse of time since the gifts were made, for the donors to expect the property to be returned.
(4) Where property is applied cyprès by virtue of this section, the donor shall be deemed to have parted with all his interest at the time when the gift was made; but where property is so applied as belonging to donors who cannot be identified or cannot be found, and is not so applied by virtue of subsection (2) or (3)—
(a) the scheme shall specify the total amount of that property; and
(b) the donor of any part of that amount shall be entitled, if he makes a claim not later than twelve months after the date on which the scheme is made, to recover from the charity for which the property is applied a sum equal to that part, less any expenses properly incurred by the charity trustees after that date in connection with claims relating to his gift; and
(c) the scheme may include directions as to the provision to be made for meeting any such claim.
(5) For the purposes of this section, purposes shall be deemed to fail where any difficulty in applying property to those purposes makes that property, or, in the case of property to be applied for charitable purposes, the part not applicable cy-près under section*, available to be returned to the donors.
* This is the section proposed to be inserted by amendment 26.
(6) In this section, except in so far as the context otherwise requires, references to a donor include references to persons claiming through or under the original donor, and references to property given include references to the property for the time being representing the property originally given or property derived from it.
(7) This section shall apply to property given for charitable or non-charitable purposes, notwithstanding that it was so given before the commencement of this Act.
This section proposes to make property which would not be applicable cy-près in the ordinary way so applicable where the property would be the subject of a resulting trust in favour of the donors. The section will apply both to property given for specific charitable purposes and also to property given for specific non-charitable purposes. In either case, the Court will apply the property cy-près as if it were given for charitable purposes generally; but in the case of property given for non-charitable purposes regard must be had to the wishes of the trustees or other persons in charge of the property.
The proposed section will apply in the following cases:
(1) where the donor cannot be identified;
(2) where the donor has disclaimed in writing;
(3) where the donation was by an essentially anonymous method, e.g. by placing money in a collecting box;
(4) where the amounts due under a resulting trust would be too small to justify expense in repaying them; and
(5) where it would be unreasonable, having regard to the nature, circumstances and amounts of the gifts, and to the lapse of time since the gifts were made, for those entitled under a resulting trust to expect the property to be returned.
Where the donor cannot be identified or found after advertisement and enquiry, he will still be entitled to recover his donation from the charity if he comes forward within a year of the making of the cy-près scheme.
The section will apply to property whether given before or after the commencement of the Act and will, it is hoped, do away with difficulties which have arisen and can arise under existing law where anonymous and untraceable donations are given for a charitable or non-charitable purpose which fails. I should like to make it clear that the section is designed to provide for cy-près schemes where the section in the previous amendment will not apply. The latter section applies only where there is a general charitable intent and it is, of course, confined to charitable gifts, whereas in this case we are dealing with non-charitable purposes as well.
How does property given for a non-charitable purpose come within the scope of this legislation at all?
There was the famous case of the Gillingham bus disaster, where money for the victims was collected by means of collecting boxes. Subsequently, it could not be applied for that purpose. Therefore, in a case like that, we propose cy-près application for charitable objects.
That was certainly intended for charitable purposes. Under this, property given for non-charitable purposes may be applicable cy-près by the court. That brings in all property for purposes which fail, no matter what the purposes are.
In the limited circumstances set out here, where the owners cannot be identified. There was another famous case of making a film of the life of Our Lord. The film was never made. We are just being practical in providing that such money may be disposed of cy-près for charitable purposes.
The ordinary resort there is to give the money back to the subscribers, if they can be found.
But they cannot be found.
There were a number involved in the film case but there were not so many in the Gillingham bus disaster. The limited application may be all right but the section, as I read one part of it, means that property given for non-charitable purposes which fails can then be applied cy-près. That is very wide.
The kernel of the thing is to deal with funds which are there and with which nothing can be done, funds which were subscribed for some particular purpose—for some benevolent purpose, as Deputy Sheldon said. It need not necessarily be a charitable purpose. There have been a number of cases where these funds are in existence and cannot be applied for any purpose and the original donors cannot be ascertained. I think it is a manifestly sensible provision that we should enable funds of that sort to be applied cy-près after all the precautions, and so on, are complied with.
Is there any provision in existence setting out an obligation on the Commissioners to seek the original donors before they move to have the cy-près scheme established?
Yes, advertisement. That is in the section.
What is the extent of the advertisement?
That is court application only? It is not the Board?
Is there a statutory provision with regard to the extent to which the original donors must be sought?
It is still open to the original donor to come along within a year and reclaim his property.
Can the Parliamentary Secretary indicate if there are many cases at present under the jurisdiction of the Commissioners in which this impasse has arisen?
There would be about two cases. As the Deputy will appreciate, cases of this type are likely to arise at any time.
This legislation is retrospective. It will affect perhaps two or three cases—no more than that?
Two.
And these two or three are the only ones that have arisen over ten years?
I would say that is all.
Amendment agreed to.
SECTION 45.
I move amendment No. 28:
In subsection (2), page 18, line 2, to delete "the instrument relating to".
With the permission of the House, I propose to deal with amendments Nos. 28, 29 and 30 together. They arise in this way. Section 45 will apply to a mixed trust, whether or not there is an instrument creating the trust. In some cases, there might be no instrument at all. As section 45 is framed at the moment, it refers only to a trust where there is an instrument. So it is proposed to delete the references to the instrument and make the necessary consequential change.
It is simply taking out the word "instrument" anywhere it occurs in the surrounding words?
Yes.
Where the gift "provides"?
Is that clear? Can a gift make or provide or must it be an instrument for the making of an apportionment? That is purely a drafting question.
It can. The gift is a trust.
I still do not get it.
The gift might be set out in writing in an instrument or it might be an oral gift the terms of which were spoken. We want to provide for either case.
"Gift" means "a donation, devise or bequest". "Donation" could mean a verbal donation.
It could, yes.
Amendment agreed to.
I move amendment No. 29:
In subsection (2), page 18, line 4, to delete "the instrument relating to the gift makes, or provides" and to insert "the terms of the gift make, or provide".
Amendment agreed to.
I move amendment No. 30:
In subsection (2), page 18, line 8, to delete "in that instrument".
Amendment agreed to.
Question proposed: "That Section 45, as amended, stand part of the Bill."
I should like to elaborate a little on what I said on Second Stage. I do this in order to clear up any misapprehension as to what the section is designed to do. The section has two objects. First of all, it will apply to an imperfect trust provision that causes the gift to fail completely. This is the Diplock type of case, where the gift is for charitable or benevolent purposes. In such a case, the trust will in future be construed to be a trust for charitable purposes. Secondly, the section will apply to an imperfect trust provision that causes the gift to fail as a charitable trust but not as an ordinary trust.
Two examples from decided cases will, I hope, illustrate this second type of trust. A bequest to the College of Surgeons was held by the former Irish Court of Appeal in 1918 not to be one for charitable uses as the College of Surgeons had two main objects, one of which was charitable and the other non-charitable. In a case reported in 1945 the late Judge Overend held that a gift for the purposes of the Carmelite Order was invalid as a charitable gift but was a valid non-charitable gift. According to the decision, which followed a Supreme Court case in 1935 in regard to the Jesuit Order, the Carmelite Order has purposes some of which are not charitable.
Section 45 will validate, as charitable gifts, gifts similar to those with which the 1918 case and the 1945 case were concerned. The non-charitable purposes will be excluded in construing and giving effect to the gift and the gift will be a gift for the charitable purposes of the body concerned. I think this is quite clear from subsection (1) of the section and this, I should stress, was the intention. Subsection (1) covers both (a) a gift for mixed purposes, charitable and non-charitable, that fails completely because of uncertainty or the rule against perpetuities, and (b) a gift for charitable and definite non-charitable purposes that fails as a charitable gift but not as an ordinary gift. The subsection is, therefore, not confined to the cure of what are in reality drafting errors.
Where a donor or testator wishes to have his gift applied to both the charitable and non-charitable objects of a particular body there will be nothing to prevent his framing his gift accordingly. Subsection (2) specifically excludes from the ambit of subsection (1) those gifts in which an apportionment is made or provided for between the charitable and the non-charitable objects. I dealt with apportionment cases when I was speaking on Second Stage. The law as to apportionment has not given rise to any real difficulty of interpretation and the leading decisions are fairly clear and easy to follow.
A charitable gift is not liable to legacy or succession duty and where it involves a perpetual endowment it is not void. The rule against perpetuities and remote vesting does not apply to charities. Furthermore, uncertainty cannot arise. If there is a charitable intention, it is immaterial whether or not the objects of the donor's or testator's bounty are particularly defined. The intention will be carried out by means of a scheme. In the case of a non-charitable gift, where the objects are vague or indefinite, the gift will fail for uncertainty.
Charitable gifts are at present subject to Section 16 of the 1844 Act. This section renders invalid any such gift in so far as it consists of land or in so far as it is payable out of land. The section is now being repealed in the Schedule to the Bill. Paradoxically, the gift to the College of Surgeons in the 1918 case and portion of the gift to the Jesuit Order in the 1935 case would have been ineffective if they had been charitable gifts. The reason for this is that they were payable out of realty and thus came within the 1844 Act section.
In conclusion, I should like to mention that, from specific inquiries I made, I was quite satisfied that mixed charities would prefer to receive their gifts free of legacy and succession duty so that they would have to apply them to their charitable objects exclusively, rather than to receive them less legacy and succession duty, and be free to apply them to both the charitable and the non-charitable objects. Moreover, gifts which, without Section 45, would fail completely because of uncertainty or perpetual endowment will in future be valid charitable gifts.
We must have time to read that before we can properly understand it.
Question put and agreed to.
SECTION 46.
Question proposed: "That Section 46 stand part of the Bill."
Has the Parliamentary Secretary nothing to say in elaboration of this new arrangement? This is a new provision.
As the Deputy will recall, I dealt with it on the Second Stage.
This is in relation to an endowment for a tomb. Is this to correct an abuse which exists of excessive sums for this purpose?
No; we are saying that, provided the gift does not exceed £60 a year in the case of income, or £1,000, it will be a valid charitable gift. Thus, it will not fail because of the rule against perpetuities.
It has been held in the past that a lesser sum——
It is not charitable. You are now free to spend £1,000 on your tomb or memorial, irrespective of whether you thus create a perpetual fund or not.
I take it that the Parliamentary Secretary will make provision for a mausoleum.
Question put and agreed to.
SECTION 47.
Amendment No. 31 was taken with amendment No. 26.
I move amendment No. 31:
In page 18, to delete subsection (2) and insert the following subsection, namely:
"( ) Where any of the circumstances specified in subsection (1) of section* exist in relation to a charitable gift which is the subject of an application under this section, the Court may, if it thinks fit, on such application, frame a scheme for the application cy-près of the property comprised in the charitable gift.”
* This is the section proposed to be inserted by amendment 26.
It is consequential on amendment No. 26, the cy-près section.
Amendment agreed to.
Question proposed: "That Section 47, as amended, stand part of the Bill".
This is the case in which Deputy de Valera thinks it would be highly proper——
I think he got his orders to leave.
This is really a matter of principle—that of providing against a probable event. Subsection (1) of Section 47 provides:
In every case of a breach or supposed breach of any trust for charitable purposes or whenever the direction or order of the High Court is considered necessary for the administration of any trust for charitable purposes, the Board or, with the consent of the Attorney General, any person may apply to the Court for such relief as the nature of the case may require and the Court may make such order thereon as the Court thinks fit.
This is the re-enactment, apparently, of sections from Acts dating as far back as 1812. On the face of it, when we positively legislate to declare that a judge who is a member of the Commissioners of Charitable Donations and Bequests may consider any case in his court relating to charitable matters, surely we ought not to express as an addendum "exclusive of such matters as may arise under Section 47 of this Act."
This is the same old argument—rules for the judiciary as would properly be appropriate to a Courts of Justice Bill. Certainly, it is not something one would insert casually at the end of a section in a Bill dealing with charities. I agree with Deputy Dillon that it would be a fundamental question of principle and would have to be brought into the House and discussed as such—not something that would be casually inserted here as an addendum to a section.
I think the Parliamentary Secretary missed the whole point. If Section 13 did not appear in the Bill I should agree with him. Then the matter need not be raised at all. However, we are legislating in this Bill for the judiciary. It is because we are positively legislating thus that I think it necessary to introduce this reservation. Section 13 provides:
A Judge of any Court shall not be prevented or disabled by reason solely of his being a member of the Board from hearing and determining any case relating to a charity or any case arising under this Act, but may hear and determine it as if he were not a member of the Board.
That is legislation controlling the conduct of the judiciary. It is considered necessary to insert that section. To listen to the Parliamentary Secretary one would imagine it was not either necessary or desirable. He says it is not desirable to legislate with regard to the conduct of the judiciary in a Bill of this kind. Yet he does it in Section 13. Surely what I have just read out proves it?
It is not attempting to control or to instruct them on how to conduct their affairs.
It is a declaration by the Oireachtas that they are quite at liberty, although members of the Commissioners of Charitable Donations and Bequests, to consider, to hear and to determine any case arising under this Bill when enacted—"but may hear and determine it as if he were not a member of the Board". If we consider it expedient to enact that section we should add to it "exclusive of matters arising under Section 47" or, if you want to put it this way: "exclusive of litigation to which the Commissioners are themselves a part". That is all.
My objection to that is that it would be a bad precedent to establish. It would be fair if there were a necessity for it. My case is that there is no necessity so long—as I indicated previously when Deputy Dillon was, I think, absent—as present conditions continue. If we have not got an independent judiciary in this country on whom we can rely to administer justice without fear or favour, in accordance with the oath they took when assuming office, then all is lost and the type of addendum Deputy Dillon wants will not solve the situation.
This is all nonsense. Nobody is suggesting that the judiciary is anything but what we know it to be. All we are pointing out is that it is considered expedient to insert Section 13 from the Act of 1867. I do not know the history of Section 23 of the Act of 1867 which affirmatively declares that a judge of any court shall not be prevented or disabled by reason solely of his being a member of the Board from hearing and determining any case "relating to a charity or any case arising under this Act..." Those are the relevant words—"or any case arising under this Act, but may hear and determine it as if he were not a member of the Board."
It is extraordinary that from that general advice we should exclude the matters which we provide in this Bill may be brought to the High Court at the instance of the Commissioners themselves and that we should also exclude from the general provision under Section 13 matters which come before the High Court to which the Commissioners are themselves a party. I think that far from making any reflection on the judiciary, such provision simplifies things very materially and makes it manifest to everybody, not only to those in the profession but to ordinary people, that the Oireachtas had due regard to what it was doing. While wishing to preserve the power of a judge to hear charity matters in general, even though he was a member of the Board of Commissioners of Charitable Donations and Bequests, they recognised and provided against the possibility of his being asked to hear a case which the Board of which he is a member had initiated. That seems to me to be a thoroughly sound principle.
Might I direct the attention of the House to the word "solely". The people who framed Section 13 had this whole situation carefully and clearly in their minds. The use of the word "solely" is convincing proof of that. I feel that everything that could be said on either side of the House has been said. The original argument the Opposition put forward was that a judge should not be a member of the Charity Commissioners at all.
We never said that.
I think that was said.
I should like the quotation.
It has now been narrowed down to the simple case of a Judge Commissioner subsequently determining in his court a case with which he was in some way concerned as a Charity Commissioner. That is the net issue.
That is the point.
That being so, my argument is all the more convincing. My argument is simply that a judge would not hear such a case. Therefore, all the fuss and excitement which the Opposition have started concerns something which does not arise. It is non est. It will not happen. If we are down to the one moot point of a judge coming into a court with a mind already prejudiced by the fact that he sat in the boardroom of the Charity Commissioners, there cannot really be any further argument. Our judiciary conduct themselves and behave in such a way that that problem simply will not arise. I think that anything that can be said on either side about this has been said and the only solution for the Opposition is to put down an amendment and let the House decide.
That is what we propose doing. The Parliamentary Secretary, who is not a lawyer professionally, says this cannot happen. Deputy de Valera, who was a practising lawyer for some time, says it can and should happen. That is the difference.
Did it ever happen?
It is a provision that is now being put in in 1961 no matter what happened before. It is an old provision. It could only have applied to things under the 1867 Act. On the point of a case arising under this Bill, Deputy de Valera was quite clear. The judge is there as a Commissioner and also, not forgetting the judicial point of view, he hears things. Deputy de Valera talks about a case stated and thought it was proper that it should go to the man who was already conversant with the matter. I know he has been sent out but one cannot dismiss him from the debate. That is the position we are up against.
Not merely should justice be done but it should seem manifestly to be done. That will not be the case if a judge goes to hear something and it gets to be known that he really heard the case as a commissioner. That can happen. If a new Courts of Justice Bill were brought in tomorrow which included a phrase that a judge of any court should not be prevented or disabled by reason solely of his being a member of the Board, he having heard some previous matter, from sitting and hearing and determining that matter, there would be murder in this House if any such proposal was brought in.
On the question of justice being done or appearing to be done, I would be completely reluctant to do anything of the nature suggested by the Opposition to indicate to the people of Ireland that it was necessary for us in this House to instruct our judiciary as to how to do their business or give any impression that we had not an independent judiciary who are fully capable themselves of taking care of this matter.
It is a silly mischievous thing on the part of the Parliamentary Secretary to suggest that anybody in this House reflects on the integrity of the judiciary. The integrity of the judiciary is universally recognised. What is at issue here is the form and substance of our own legislation.
Would the Deputy pardon me? I indicated that I understood the original argument was that a judge should not be a member of the Commissioners.
Perhaps the Parliamentary Secretary would allow me to elaborate the point I am making. I am repudiating his unfortunate suggestion that the integrity of the judiciary is being called to question.
I did not say that.
That is a fantastic suggestion. What is being called to question is the form and substance of the legislation with which we are now concerned. Our case is that if it is expedient to re-enact in Section 13 the provisions of the 1867 Act that a judge of any court shall not be prevented or disabled by reason solely of his being a member of the Board from hearing and determining any case relating to a charity or any case arising under this Act, but may hear and determine it as if he were not a member of the Board, we should have regard to the material not alone that is in existence in the legislation of 1867 but to the fact that there are new provisions in this Bill. A new situation arises out of that fact. We merely wish to reiterate the principle which the Parliamentary Secretary says he thinks should be so obvious that it does not require stating but with which Deputy de Valera says he does not agree.
Our contention simply is that if Section 13 is necessary, then, in the light of subsequent additions to this corpus of legislation relating to charitable donations and bequests, it should be made clear that while Section 13 is put in in order to prevent any ambiguity about the capacity of the judge to hear matters relating to charities generally, it is not to be interpreted as going so far as to say that it would be proper for him to hear matters in which the Commissioners themselves—of which he is a member —were directly involved. That is a desirable principle.
I have said repeatedly, and I said to-day, that I very much doubt the desirability of expanding the extralegal duties of members of the judiciary because the more we draw them away from their ordinary business of dispensing justice and impose on them other duties, the more we expose them to the possibility of criticism and comment which would never arise if they confined themselves exclusively to the administration of justice.
I think that is true and it is a bad tendency which has been growing both here and in Great Britain of asking judges to undertake a wide variety of extra-judicial duties which bring them into the arena of comment and criticism which is not appropriate for judicial persons. However, that is a very much wider issue and I want to maintain a very narrow point, which is that if Section 13 is necessary, some conditions of limitation are also necessary, in view of the provisions of the Bill which we are now passing into law.
I want to make it clear that I did not infer that the Opposition were casting doubts on the independence of the judiciary. They have indicated on a number of occasions that they had no desire to do so, but what I would say is that if we were to put in a provision of the type which the Opposition is seeking to put in, either here or somewhere else, it would reflect in the public mind on the independence of the judiciary.
When I said a moment ago that the Opposition had originally argued that a judge should not be one of the Commissioners at all, Deputy McGilligan said that that had never been suggested. I want to quote from the Dáil Debates, Volume 184, No. 4, Column 607, where Deputy Dillon said:
Why not? I have got the uncomfortable feeling that the judge ought not to be a member of the Commissioners of Charitable Donations and Bequests. It is reasonable to suggest that in the circumstances it would be much better for a judge not to be himself a Commissioner of Charitable Donations and Bequests. Any rational Deputy will agree with me. I do not think it is an unreasonable stipulation to say that if a man is a member of the Board and attains to judicial office, he should relinquish his position as a Commissioner of Charitable Donations and Bequests.
I merely—
That is founded on Section 13 as at present framed.
I merely want to establish the truth of what I said a moment ago. Deputy Dillon did suggest earlier on in the debate on Second Reading that the judge should not be a member of the Commissioners of Charitable Donations and Bequests. I am merely concerned with rebutting the immediate denial of that which came from Deputy McGilligan. My recollection was correct. If Deputy Dillon has changed his mind, I am not blaming him.
I think it would be better not to put the judge on the Board.
I am merely putting the record straight. We had all this before on the Second Stage. I still say to the Opposition that their fears in this matter are groundless, that all our experience and all our knowledge of the judiciary goes to prove and to satisfy us that a provision of the type suggested by the Opposition is not necessary and, as I said, might in fact be harmful, if we were to put it in.
I object to a judge being a Commissioner because of Section 13. As long as it is there, there are two ways out. Limit Section 13 to this, that a judge may sit on cases other than those which he has heard as a Commissioner. The alternative is not to have a judge among the Commissioners at all. With regard to this hint about the independence of the judiciary, of course the meaning does not arise in this connection at all. Perhaps the Parliamentary Secretary means the integrity of the judges who may be members of this body. Deputy de Valera thought it was not really consistent with integrity but that it was proof of their integrity that they should be members, hear the evidence and hear the matter as judges. That is completely wrong.
Question put and agreed to.
SECTION 48
Question proposed: "That Section 48 stand part of the Bill."
Before we pass from this, I should like to refresh my memory. What is the exemption under Section 20?
I am not clear about what Deputy Dillon is referring to.
The proviso—the duty of executors to publish, unless exempted under Section 20?
The Board may, at their discretion, having regard to the amount——
That is an old power.
Yes.
It is merely the reenactment of an old power. The note refers to Section 19 of the 1867 Act and Section 16 of the 1871 Act, "except proviso". What does that mean?
It means that the proviso is not re-enacted in this section.
What is the proviso? It is in the note to Section 48.
The proviso is not in Section 48.
Section 20 reproduces the section of the 1871 Act with reference to the proviso of the small amount of the gift. That is gone now.
It is. The proviso which was in the original Section 16 is enacted in Section 20. That is Section 16 of the 1871 Act.
There is nothing that appears to be a proviso in Section 20. In this it says "discretion".
Section 20 is in fact the proviso of Section 16 of the 1871 Act.
That is right.
That is what the note says. The note says that Section 20 corresponds to the "1871 (c. 102), Section 16(proviso)".
What was Section 16 dealing with, if the proviso was in Section 20?
Section 16 of the 1871 Act is as follows:
Where any person shall be bound to publish any devise or bequest under and by virtue of the nineteenth section of the Charitable Donations and Bequests Act (Ireland), 1867, such person shall (save in case of exemption as hereinafter provided, and so far as the same shall extend), within four months next after obtaining probate of the will containing such devise or bequest or administration with such will annexed, deliver at the office of the Commissioners, or forward to them by post, three papers (not being the Dublin Gazette) containing successive publications of the said devise or bequest, pursuant to the provisions of the said section; and every such person who shall neglect to deliver or forward such copies of such papers as aforesaid shall be liable to a penalty not exceeding five pounds, to be recovered by the Commissioners, who may sue for the same by civil bill in the court of proper jurisdiction: Provided always, that it shall be lawful for the Commissioners, at their discretion, having regard to the small amount of any devise or bequest, or other special circumstances, to exempt such persons from such publication under the nineteenth section of the said Act, either wholly or to such extent and upon such terms as they shall think fit.
The original Section 16 had this proviso that the Charity Commissioners could exempt from publication. Now we have taken what was formerly a proviso of Section 16 and made Section 20 out of it in our Bill so that the section with which we are now dealing, Section 48, is the same as the original Section 16, without the proviso because the proviso is now given effect to by means of Section 20 in our Bill.
It is interesting, now that the Parliamentary Secretary has the Act of 1871, to see that the word "small" amount does occur.
It does, yes.
And it is not in Section 20. I mentioned that earlier and I was told that the word "small" did not occur.
I did not say it did not occur.
You said that you were not aware that it did occur.
It does occur. I think I admitted all the time that it did occur. My argument was that the omission of "small" did not make any difference.
Question put and agreed to.
Sections 49 to 51, inclusive, agreed to.
NEW SECTION.
I move amendment No. 32:
In page 19, before Section 52, to insert the following section:
Where, before the commencement of this Act, a body corporate has been appointed sole trustee of a charitable trust, then, during such time before and after such commencement as the body corporate has held and continues to hold the office of trustee of the trust—
(a) the terms of the trust shall be deemed to have provided for and required and to provide for and require the appointment of one trustee only, and
(b) one trustee only of the trust shall be deemed to have been originally appointed under the terms of the trust.
This amendment proposes to validate certain appointments which have been made of a body corporate in place of two or more trustees. Section 10 (2) (c) of the Trustee Act, 1893, provides that "except where only one trustee was originally appointed, a trustee shall not be discharged under this section from his trust unless there will be at least two trustees to perform the trust". I have already mentioned this matter in connection with the new section contained in amendment No. 22. In future, the Board may, under that section, appoint a body corporate in substitution for two or more trustees; and the appointment will discharge the existing trustees. There are a number of cases, however, where two or more trustees of a charity have renounced their trusteeship in favour of a body corporate and we propose that they shall be legally and properly discharged from the trust.
This does not project itself into the future at all?
Not this section, but the section inserted by amendment No. 22 does.
In different circumstances, though. This has nothing to do with amendment No. 22, has it? This is about a body corporate being appointed sole trustee?
Yes, in respect of an appointment already made.
And then, in respect of that, prior to the commencement of the Act, certain things were to happen. Amendment No. 22 is not related to bodies corporate or anything like that. It is the power of the Board to appoint new trustees.
And also to appoint a body corporate.
That is Section 44?
Subsection (8) of the new section in amendment 22 deals with the question of appointment of bodies corporate as sole trustees.
That is the equivalent of amendment 32 for the future?
Subsection (8) of the new section proposed to be inserted by amendment No. 22 reads as follows:
Where a body corporate is appointed by order under this section to be or a body corporate appointed under this section becomes, sole trustee of a charitable trust the terms of which provide for or require the appointment of more than one trustee, then during such time as the body corporate holds the office of trustee of the trust—
(a) the terms of the trust shall be deemed to provide for or require the appointment of one trustee only, and
(b) one trustee only shall be deemed to have been originally appointed under the terms of the trust.
Amendment agreed to.
Section 52 agreed to.
Section 53.
When you call Section 53, is that Section 52 in the Bill? Are we dealing with Section 52 as appearing in the Bill?
Section 53.
I think the new section has become Section 52 and the Section 52 at the foot of page 19 becomes Section 53.
It is the practice to keep to the old numbers.
Are we dealing with Section 52 at the foot of the page or Section 53 over the page?
Over the page, on page 20.
Section 53 agreed to.
SECTION 54.
Question proposed: "That Section 54 stand part of the Bill."
I think this entertaining section requires some clarification.
How did the debt of £17 13s. 5d. arise?
It is not known. It has been there in the accounts of the Board for a long time and we are simply getting rid of it.
It has appeared since 1873. Can you get back to the date when it appeared first? Is there any evidence about how it accrued?
There is not, no.
Is it quite clear that it is a legal payment?
It is, yes.
How do you know?
Because it has been there since 1873.
Not knowing what it was for or how it arose, you are just going to pay it out?
I do not know if I have got the Deputy's question correctly.
Whom is it paid to?
I answered a question and I may have misunderstood the question. What is the Deputy's question about the legality of payment?
I asked if you had assured yourself if payment was legal and you said "yes".
Which payment?
The £17 13s. 5d.
There is no payment involved. We are merely wiping it out of the accounts. It is purely a bookkeeping transaction.
You are not. You are transferring it to the funds. How much is there in the Embezzled Charities Recovery Fund?
About £1,000.
Is it maintained at that level?
Yes.
What tidy-minded person suddenly discovered this money, after 88 years of peace and quiet?
I did.
Indeed, it is like you. Men have strange monuments. This is £17 13s. 5d. paper and copper.
It is a noble reform.
Question put and agreed to.
Schedule and Title agreed to.
Bill reported with amendments.
Report Stage ordered for Wednesday, 1st March, 1961.