I understand that amendments are being recommitted.
Charities Bill, 1957—Recommittal and Report Stages.
I understand the arrangements is that so far as the Opposition have put down amendments they may be discussed as in Committee. I have no wish to have my amendments discussed in Committee.
We are in Committee on these amendments?
That is the understanding.
Bill recommitted in respect of amendments tabled.
I move amendment No. 1:
In page 4, line 14, to delete "for Ireland."
This point was introduced by Deputy Cosgrave on the last occasion. It queries why this Board should be called the Commissioners of Charitable Donations and Bequests for Ireland. It is quite clear that the Board can only refer to an institution established here. I am moving that the words "for Ireland" be left out.
I cannot accept this amendment. In the first instance, I should like to point out to the House that the Bill proposes to continue in existence a Board which is already called "The Commissioners of Charitable Donations and Bequests for Ireland." That is the name of the existing Commissioners. We are not appointing a new set of Commissioners but merely carrying on the existing Board. In the circumstances it seems to me that it would be technically wrong to change the name. Apart from that, there are very practical considerations why we should not change the name.
The Board has a great number of investments, stocks and shares of various sorts, registered in the existing name. If the name were changed, the name used for all those investments would have to be changed. The expense could be quite substantial and I do not think it would be at all sensible to incur it. Furthermore, I imagine a difficulty would undoubtedly arise in the case of property which the Board holds. There are certain charitable lands held in the Board's name. The change of name might not give trouble immediately but, certainly, trouble would arise at some stage in the future when the question of the transfer of these lands or investments came up for consideration. Therefore, for a number of reasons it is impracticable, technically difficult and indeed expensive to make a change in the name.
Apart from all this I should not be favourably disposed to change something that has been there for over 100 years, something which is a tradition. Unless there was an overwhelming reason we should not lightly change a name like this.
I do not agree at all that there is the slightest legal basis for the matters about which the Parliamentary Secretary is talking. The fact that the name of the Board is changed in new legislation does not affect the way in which property is held at the moment. If we are seeking to start a new Bill, the Board should be given a title which will be distinctive without the term "for Ireland" being inserted. The Interpretation Act is still outstanding and regularises the whole matter, in any event.
Surely Deputy McGilligan must ralise that, in the case of stocks and shares held in America, Canada or elsewhere, immediately we change the name of the Commissioners it would be necessary to have these stocks and shares registered in the new name? Those technical and practical difficulties could be got over but why should we have them unless there was some real reason? No such reason has been advanced.
The majority of boards are not distinguished by the words "for Ireland".
Córas Iompair Éireann.
That is one.
The Republic of Ireland.
That is the title of the State. Córas Iompar Éireann is a misnomer because Éire was expected to be the whole of the country——
Bord Fáilte Éireann.
That to my mind is a mistake.
Bunreacht na hÉireann.
I take Bord na Móna. One can swing either way but Section 5 continues the Board notwithstanding what is done here. It will continue the board as a holder of property until they like to change themselves. There is no legal basis for the argument put forward.
Amendment put and declared lost.
I move amendment No. 2:
In page 4, lines 31 to 36, to delete subsection (2) and (3).
I really do not understand the reason for subsection (2) being there, and if subsection (2) is necessary I do not see what subsection (3) has got to do with it. The Interpretation Act, 1937, governs the whole thing. You can repeal the enactments and under the Act—I am speaking generally—anything done prior to the repeal of the enactment still continues. There is no necessity for these subsections.
If Deputy McGilligan's only argument is that there is no necessity for the subsections I think we might as well leave them there. The idea is to continue in existence orders, decisions and so on, of the Board and to treat them as having been made under the relevant provisions of this Act. I do not see what the objection is. If the objection is that they are not strictly necessary, then ex abundanti cautela we should leave them there.
That is a very poor argument. Section 21 of the Interpretation Act, 1937, runs this way —"Where an Act... repeals the whole or a portion of a previous statute"—that is what is done by subsection (1)—then "such repeals", I need not quote the full passage, "shall not (b) affect the previous operation of the statute or portion of the statute so repealed or anything duly done or suffered thereunder". Therefore I see no reason for the subsections, if I cannot be given one reason outside of caution.
These are things done by the Board, under the general umbrella of the existing Acts—orders and decisions of the Board—and we are——
Look at the end of subsection (2) "as if made, given or done under this Act." That is what you are legitimatising.
Yes, as if they were done under this Act.
Yes. Surely the Parliamentary Secretary will agree, in regard to Section 21 of the Interpretation Act, that "anything duly done or suffered" under the previous enactment is carried forward. Surely that is wide enough to cover everything here?
The Deputy means subsection (2)?
No, the section I read out, Section 21 of the Interpretation Act, which says if an Act is repealed then it shall not affect anything duly done under the previous Act.
I am advised that they are not covered as we want them covered. My advice is that it is necessary to do this. If we are advised by our experts and the Parliamentary draftsman, why argue about it? The only argument the Deputy can advance in favour of deleting these two subsections is that they are not necessary. I say I am advised they are necessary.
That finishes it.
If the Deputy has not a better argument than that they are not necessary, surely we can leave them there?
I have given an argument.
The Deputy has not.
Are they not things done under the previous enactment? Against that, I am told the Parliamentary draftsman says it is necessary. Parliamentary procedure could be brought to nullity if a Minister or Parliamentary Secretary said: "The Parliamentary draftsman says this is necessary". That is not an argument.
One can only be advised by experts in any branch of the law. The Deputy is no more a draftsman than I am. The Parliamentary draftsman and the experts advise me that the provisions of the Interpretation Act are not sufficient to guarantee——
Did they tell the Parliamentary Secretary why they are not sufficient? Tell me?
Because these are not things specifically done under the proposed Act. They are done by the existing Board under the existing Acts.
Were they not done by the Board under the previous statute?
But not under this statute.
They were done previously by the Board under the repealed enactment. One cannot argue against a person who says: "I am told this is necessary."
Amendment put and declared lost.
I move amendment No. 3:
In page 5, to delete lines 6 and 7 and substitute "The Board shall continue".
We have already in Section 2 defined the Board as being the Commissioners of Charitable Donations and Bequests for Ireland. Section 5 reads:
The Commissioners of Charitable Donations and Bequests for Ireland (in this Act referred to as the Board) shall continue in being, notwithstanding the repeals effected by this Act, as a body corporate with perpetual succession and a common seal and may in their corporate name sue and be sued.
Why not say "The Board shall continue..."? Is it not defined that "the Board means the Commissioners of Charitable Donations and Bequests for Ireland?
This section deals with the continuance of the Board. I feel it is as well to spell out the full title of the Board.
Even if "the Board" has already been defined?
Even if—yes.
Why not put it everywhere afterwards?
This is the section which continues the present Board in existence.
The Board, which is the Board of the Commissioners of Charitable Donations and Bequests for Ireland. Why not leave it at that?
You possibly could if you wished but we want to do it this way.
It is not a great argument.
It is just as good an argument as the Deputy's.
We know what the Board is. It is already defined.
I know the Deputy's argument.
Why not say "The Board shall continue"?
This is the main section carrying forward the existing Board. I want to make that abundantly clear. We are carrying forward the existing Board.
Could anybody mistake the position? It is "the Board" when you have already defined it.
Mistakes are always possible.
Yes, over there.
Why not put in "the Commissioners of Charitable Donations and Bequests" every time for "the Board"?
This is the principal section.
The Board is defined as meaning the Commissioners of Charitable Donations and Bequests for Ireland.
Amendment, by leave, withdrawn.
Amendments Nos. 4 and 5 might be taken together.
I move amendment No. 4:
In page 5, line 31, to delete "the senior member in order of appointment or such other" and substitute "such".
This point was raised on an earlier Stage. It appears unnecessary to say that if the chairman is absent, the senior member in order of appointment shall be chairman, if you flank it with "or such other member as the Board may select". Why not leave it to the Board to select?
This procedure was specially asked for by the Board. It is desirable that this House should accept the request of the Board in that regard. The Board has been there for over a century. They have well-settled practices, procedure and methods of operation. They know their own business best. This is the way they want to conduct it. This House should be very reluctant not to agree to that request. As I understand it, they want a permanent chairman and, in his absence, they want the senior member to preside. The House will readily realise that on a board of this nature a number of reasons could arise in a particular instance why the senior member would not wish to preside. Therefore, if the senior member, in the absence of the permanent Chairman, does not care to preside, the members present can elect whomever they wish to be chairman for that particular meeting.
How do you become a senior member?
Seniority ranks from the date of appointment, as will be seen in subsection (2) of Section 9.
It is not in the subsection. It does not say such other member shall be chairman if the senior member does not want to act.
This is the way the Commissioners want to operate.
First, it is the Parliamentary draftsman who wants something and now it is the Board.
I am a reasonable man.
The Parliamentary Secretary is not very independent when he must hide behind two officials.
Amendment, by leave, withdrawn.
Amendment No. 5 not moved.
I move amendment No. 6:
In page 5, lines 41 and 42, to delete "if due notice of that meeting was given to all the members".
If due notice has not been given to members, surely there is no meeting? Why provide for a quorum only if all members have got notice? If notice has not been given properly, I suggest there is no properly constituted meeting.
If the Deputy's amendment were accepted, three members of the Board might get together and purport to constitute themselves a meeting. We should guard against that situation.
You have to have a meeting of the Board before you get three of a quorum.
They could reasonably claim to constitute themselves a meeting.
Is there a meeting, if notice has not been given?
It strikes me as odd. The first question that arises under subsection (4) is what is a quorum, if due notice has not been given?
If due notice has not been given, there is no proper meeting.
Then I do not see any necessity for the word.
You must have a meeting lawfully called before you have a quorum.
You cannot have a meeting without notice being given.
This subsection could be read as implying that there was some other way of having a meeting. I should have thought it correct procedure to say that a meeting could be held only if due notice was given. The two things should be separated and not jammed into one.
I think both are contained here. I agree with Deputy Sheldon who says that in order to have a meeting these two elements are necessary: first of all, due notice and then, a quorum. I think the form of words we have here gives exactly that. Provided due notice has been given, three could form a quorum. If due notice has not been given, you cannot have a quorum, and therefore, can have no meeting.
Hear, hear! Therefore, if you have a meeting, you have three as a quorum.
Would this have been taken from the Charities Act in England?
No. It is a from the 1871 Act.
Taken verbatim from it?
Almost.
That is the point. This will arise later on on an amendment I have put down where a section is taken from another Act but a change is made. A piece of telescoping is done. The result is that it is perfectly horrible phraseology. This is terrible. It is possible to read it another way. Surely, when we are passing a Bill, we might have some regard for the language, even if it is not the first official one. Whether this was drafted by an English Parliamentary draftsman or not, I still think it is terrible.
Let me clear up the question in relation to the 1871 Act. It says: "Provided always that such three Commissioners are for such purpose assembled at a meeting whereof due notice shall have been given to all the Commissioners." It is the same idea in essence.
If there is not due notice given, will two form a quorum?
No.
Why?
Because if there is not due notice, there is no meeting.
Hear, hear! That is what I said.
It does not say that.
Therefore, have three as a quorum at every meeting.
Suppose some one said he got no notice, would that invalidate any action taken?
Yes, if he got no notice.
In the old days in relation to Parties, when a secretary wanted a successful division, he did not inform some of his enemies. I am not saying that will happen in this case.
It will be a question of fact as to whether notice was given to all the members or not. We are getting into the realms of fantasy.
Not really. What the draftsman has done is to invert the sentence in the 1871 Act. If it read: "due notice having been given," I would not have any objection.
Amendment put and declared lost.
I move amendment No. 7:
In page 6, line 25, after "Act" to insert "other than any suit or proceedings instituted or taken by or with the consent or authority or at the direction or on the certificate or application of the Board under sections 23, 24, 25, 26 and 27 of this Act or on any application or appeal to the High Court under section 33 or section 43 of this Act."
This is a matter which we discussed at great length on the earlier Stage. I want to repeat very briefly what was said on that occasion. The section reads:
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.
In the course of the arguments, the point was made that if there were any disturbance of this, it meant that a Commissioner, being a judge, could not sit afterwards to hear any charity case. I concede at once that merely the fact that there is a judge on the board and some charity case comes before the judge, he should not be precluded from hearing it. The section also says that a judge "shall not be prevented from hearing and determining any case relating to a charity or any case arising under this Act." That now is introducing this principle—I still think it is a bad one — into a whole variety of things established here. I am referring to Sections 23, 24, 25, 26 and 27 and various applications under Sections 33 and 43. The point is a fairly clear one. It is necessary that justice should not merely be done but should seem to be done.
I decided to put in my amendment leaving unchanged that the judge shall not be prevented by reason solely of being a member of the board from hearing and determining any case relating to a charity. I want to distinguish the new matters that are brought under this Act. The distinction is made by putting in that he is not to be precluded from hearing any case "other than any suit or proceedings instituted or taken by or with the consent or authority or at the direction or on the certificate or application of the Board under the sections mentioned or on any application or appeal to the High Court under the sections mentioned".
I think that is quite a good amendment. A good deal of emphasis was put on the word "solely". It was suggested that we should not attempt to teach judges how to do their business, but before I answer that, I want to point out that the side note is not a proper side note to what is in the section itself. The side note says:
Membership of board not to disqualify Judge from hearing charity cases.
That refers only to the general matter of any charity but it does not refer to the particular matter.
With regard to teaching the judges their business, Deputies who have glanced at two new pieces of legislation which came into the hands of Deputies in the last couple of days proceeding from the Department of Justice will see that in these Acts we teach judges their business. We tell how the judges ought to be addressed. We broke the great line which seems to have been the strong point of the Parliamentary Secretary the last day.
I do not think there is any great validity in the last point made by Deputy McGilligan. I certainly do not propose to persue it now. With regard to this matter of judges as Commissioners, I am afraid I can only repeat substantially what I have said before. I object to writing specifically into this Bill a provision that the judiciary shall or shall not hear certain types of cases. Discussion has taken place here, and I have made the Government's view clear. We regard it as very undesirable that a judge should sit as a member of the Charity Commissioners, hear a case and subsequently sit to determine that case. The Opposition have made their view clear; they strenuously object to these proceedings also. But they go further than we do. They say that not alone should it not happen but we should provide against it. That is the only real difference between us. Now that we have had this discussion and it has been made clear by all concerned that it would not be desirable that this should ever happen, whatever remote chance—I do not admit that there is any—there may have been that it might happen, I think it certainly cannot happen now. I indicated earlier that if we were to write into this Bill a provision of this nature laying down in an Act of Parliamentary protocol for the judiciary, it would be a very dangerous precedent and one which would have to be followed in subsequent Acts of the Oireachtas. For that reason, I think that at this stage Deputy McGilligan might let the situation rest.
Does the Deputy agree?
No. I want to make my point specially in relation to a couple of sections. Section 23 allows the Board, with the previous consent of the Attorney General, to sue for the recovery of any charitable gift intended to be applied in the State which is improperly withheld, concealed or misapplied. Section 25 is in these terms:
"If it appears to the Board desirable that legal proceedings should be instituted with respect to any charity by any person, other than the Attorney General, the Board may authorise ... those legal proceedings."
I am taking the position of a judge who is a member of the Board. He acts under Section 23. A matter comes before the Board of which he is a member, and when he is present, and the Board decides, with his assent, to sue for the recovery of a charitable gift. On a later occasion, when the judge is present and taking part in the discussion, the Board decides to institute legal proceedings. Under the other section, the judge is then entitled to go round to his court, sit, hear, and determine the points at issue, having previously interfered as a member of the Board. I think it is wrong even to permit of the possibility of such a thing happening. We have been told now by the Parliamentary Secretary that this was discussed and opinions were made clear. I rather gathered from his remarks that, because there was a discussion here along certain lines, the judges, even if they were tempted to sit in such proceedings, would not do so. Is that the argument?
It is a gloss on it.
The Parliamentary Secretary knows very little of court proceedings.
Thank you.
One of the things no judge will ever look at is what was said in Parliament. Judges absolutely close their eyes to seeing anything and their ears to hearing anything that goes on in Parliament. If they were to take cognisance of things like that! Do not forget that about five Deputies took part in the discussion and one Deputy sitting behind the Parliamentary Secretary thought it was a most wise and proper and prudent thing that a judge sitting in as a member of such a Board should subsequently officiate as a judge in relation to matters that had taken place at the Board.
I think the Deputy is greatly exaggerating what was said.
He said enough to embarrass the Parliamentary Secretary and he was prevailed upon to leave after a bit. Deputy Sheldon, who did not think my fears were substantiated in the first instance, said that the argument made by Deputy de Valera had made the fears real to him.
He did not convince me that they were well grounded, all the same.
That was Deputy de Valera's argument: Who better to try the case than the man who had been in the boardroom and heard the whole matter discussed in camera there? That was the argument. I put that only as a point against what the Parliamentary Secretary says with regard to judges paying attention to anything said in Parliament or reading anything recorded in Parliament. They just do not do it; they will not do it. We are dealing here with general charity matters going back to the 1867 Act. We are certainly refurbishing old powers in Sections 23 and 26. I think it is undesirable even to leave it to be misunderstood that a judge can sit and hear a case which he previously heard as a member of the Board.
There is one point about which the Deputy may not be aware. The Opposition have changed their ground to the extent that they now admit there is nothing wrong in having judges acting as Charity Commissioners.
What?
There is nothing wrong in having a judge a member of the Board.
I do not think that was ever really contested.
Deputy Dillon clearly made that statement on the Committee Stage: I shall produce the record, if necessary. I have read the record, and I shall read it again, and it clearly proves that Deputy Dillon stated categorically——
That in certain circumstances he would prefer not to have a judge and it would be better not to have certain other things.
That is by the way. He clearly indicated that a judge should not be a member of the Board. The trustees of any charity who wish to take legal proceedings must notify the Charity Commissioners to that effect before they can initiate those proceedings. Every charity matter, therefore, which will come before the court will be notified to the Charity Commissioners. That fact is in itself sufficient to vitiate Deputy McGilligan's argument. If his argument were accepted, any judge who was a member of the Charity Commissioners would be precluded from hearing any charity proceedings at all in so far as every charity proceeding must be reported to the Charity Commissioners before it can go to court. In relation to what Deputy McGilligan said on Committee Stage and so far on this Stage, he agreed that that would be ridiculous.
On the Parliamentary Secretary's explanation, I do not now.
If Deputy McGilligan persists with his amendment, he will force us into the position in which no judge who may be a member of the Charity Commissioners can hear any charitable matter at all.
Any charitable matter which he heard, in the first instance, as a member of the Board. I think he should not hear such a matter.
I am trying to explain to the Deputy that the law as it stands is such and we are carrying it forward in Section 53: before any proceedings can be taken in relation to a charity matter, the Charity Commissioners must be notified. Therefore, the Charity Commissioners will be aware—
That is a different point. Being aware is one thing.
—of every legal proceeding in a charity matter. If Deputy McGilligan's amendment were accepted, no judge who was a member of the Board could ever hear any charitable matter at all. I do not think Deputy McGilligan wants that.
I do now, after that explanation. I make a distinction. If it is right—I was not aware of it— that notification of all such proceedings must be given to the Charity Commissioners, I hold that notification is one thing and active intervention is another thing. There is active intervention in Section 25 inasmuch as the Board may authorise legal proceedings. I think it would be very wrong that Judge X, being a member of the Board, would authorise the institution of legal proceedings and subsequently sit and determine the action. In any event, the answer is that he will not but that he should not be prevented from doing it merely because he is a member of the Board. I think there should not be the slightest possibility left in that such a person could hear such a case.
The difference between us is now crystal clear. Deputy McGilligan says that there should be no possibility of his doing that. I say that there is no possibility of his doing that but I think it would not be desirable to provide that he should not do so. I have already instanced the case of a judge who sends papers to the Attorney General, say in relation to perjury. In that case that judge would not sit to hear the perjury charge.
He could not.
Deputy McGilligan says that he could not. Why could he not? It is not in any Act of Parliament.
I am not so sure about that.
You can be sure about it. It is not.
Or in the common law?
That is a different matter.
Amendment put and declared lost.
I move amendment No. 8:
In page 6, to delete lines 48 to 53, and in page 7, to delete lines 1 to 5, and to insert the following paragraph:
"(c) the auditor may, by giving notice in that behalf in writing to any person, require that person to attend at the office of the Board at such time as is specified in the notice to give evidence on oath in relation to any matter in question at the audit and to produce any books, deeds, accounts, vouchers or other documents in his possession, custody or control which relate to any such matter, and——
(i) any person to whom a notice has been given under this paragraph who refuses or wilfully neglects to attend in accordance with the notice or who wilfully alters, suppresses, conceals or destroys any document to which the notice relates, or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any documents to which the notice relates shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds, and
(ii) any person who in giving such evidence on oath wilfully makes a statement 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 find and such imprisonment;".
The object of this amendment is to provide for the attendance as well as the evidence of any person required by the auditor. Paragraph (c) of sub-section (4) of Section 14 provides that the auditor may call before him and examine on oath any person and it then goes on to provide for false evidence. The new paragraph proposed in this amendment covers the production of any books, accounts and vouchers required by the auditor and also imposes a penalty for refusal to attend or refusal to give evidence. The amendment will bring the law into line with that contained in Section 86 (2) and 3 (f) of the Local Government Act, 1941, as amended by Section 93 of the Local Government Act, 1946. These provisions relate to the auditing of accounts of a local authority.
We shall discuss amendments Nos. 8 and 9 together.
I cannot accept Deputy McGilligan's amendment. First of all, we are not making the offence perjury.
You did in the early draft of the Bill.
We did, but not now. "Material respect" means a respect material to the statement, not to the audit.
In regard to amendment No. 9, this was drafted in the light of the early draft of this legislation which made a person making a statement which was to his knowledge false or misleading guilty of perjury. The only difference, so far as my amendment is concerned, is with regard to the phrase "which is to his knowledge false or misleading in any material respect" and the phrase "material to the examination which he knows to be false or does not believe to be true". I do not think that it is any assistance to say that a statement is false or misleading "in any material respect". A statement can be material without being material to the examination. All that is being aimed at are statements that are material to the examination. We have the words "false and misleading". I do not know what those words are supposed to cover in the Local Government Act. I was told that this phrase was taken from some of the Army Pensions Acts.
The 1949 Act. It is the provision with regard to people coming before the auditor that is taken from the Local Government Acts.
Is the phrase "false and misleading" in both Acts?
Only in the Army Pensions Act.
Surely that is a provision which covers a very large range of matters and I do not know why it is necessary to bring it in here. The draft I have here says that the auditor may call before him any person whose testimony, in his opinion, is necessary to the examination in the matter of the accounts. That has disappeared from the amendment. It said that by giving notice in that behalf to any person he may require that person to attend at any time at the office. Apparently there is a wider power there somewhere and the auditor must have some belief that the person was necessary. I do not know why it has been enlarged.
I do not think it is right to put in the phrase "false and misleading in any material respect". If there is anything in the way of an offence committed, it ought to be only in relation to a false and misleading statement in regard to the examination.
I agree that the word "material" is in respect of the statement in our draft. The whole of the statement need not be false and misleading, as long as some of it is. Therefore, if somebody wilfully makes a misleading statement he should be guilty of some form of offence. We are not making it perjury. We are merely making it a statutory offence punishable under the section.
Why not say so?
We do say so.
I think an objection is being taken to my amendment on the ground that part of the statement may be false or misleading but not material. My amendment provides for any statement material to the examination which is false or is not believed to be true.
Amendment agreed to.
Amendment No. 9 not moved.
I move amendment No. 10:
In page 7, to delete all words after the word "discretion" in line 42 down to and including the word "circumstances" in line 44.
Perhaps amendments Nos. 10 and 11 could be taken together.
I said earlier that the Act referred to in the side heading, the 1871 Act, had referred to the small amount of the charitable devise. Reading through the section, it appeared to me that all these words were not necessary because in any circumstances the Board may, in their discretion, exempt any person from the obligation imposed on him. Why leave in all these words that do not mean anything? Why not leave them out? If you are going to tie the Board, why not go back to the old Act and say: "On account of the small nature of the bequest, the Board in their discretion can exempt"?
I think it is well to indicate the specific circumstances in which the Board may exempt. First of all, with regard to the amount——
Big and small?
Big and small.
Why put it in at all then?
The Board cannot exempt completely at their discretion. They must have regard to the amount or some special circumstances involved. I have already argued on the Committee Stage about whether or not we should use the word "small". Our simple reason for not using it is that it does not add anything to "amount".
I think a lot of the words mean nothing. Does not "at their discretion" cover everything?
No. The Board can only exercise their discretion in relation to either of these two factors, the amount of the bequest or special circumstances involved.
The amount may be either too big, too small or in between. What tie is that on anybody?
The normal situation would be that it would be a small bequest.
Then why not say so?
Because it is is not necessary.
Once you get away from that anchorage, you are adrift.
Is the term not "at their discretion"?
Why not say they can do what they like?
They cannot do what they like. They must act judicially and judiciously.
The Parliamentary Secretary knows what judicially means?
And judiciously.
That is not here. That is an entirely different thing.
Amendment, by leave, withdrawn.
Amendment No. 11, not moved.
I move amendment No. 12:
In page 8, line 20, to add at the end of subsection (4) " prior to the making of such order".
This is merely to anchor the matter a bit more solidly to the activity prior to the making of the order. I realise that subsection (3) says that if the Board give their opinion or advice to a trustee during any period—then there is a reservation—a trustee who acts on or in accordance with the opinion or advice shall be deemed to have acted in accordance with his trust. The reservation is in relation to "not being a period after the making of an order in relation to the matter by a Court of competent jurisdiction". Subsection (4) takes that up and says:
No order made subsequently by a Court shall have any such retrospective effect as to interfere with or impair the indemnity given by this section to a trustee, executor or other person who has acted on or in accordance with such opinion or advice.
The word "retrospective" has been put in there.
Take "subsequently" and "restropective" together.
We agree to give the idemnity in relation to anything done before a court order has been made. It is fairly well fastened by subsections (3) and (4). The words "restrospective effect" seem to me to weaken it a bit.
If Deputy McGilligan would read the whole of subsection (4): "No order made subsequently by a Court shall have any such restrospective effect ...". I think that makes it abundantly clear that it is related to the period before the making of the order by the court. Deputy McGilligan accused me earlier of putting in unnecessary words. I think he himself might have fallen into this error on this occasion.
No. I think this is required. The two subsections (3) and (4), taken together, are not sufficiently clear. What everybody agrees is that the idemnity should cover anything done prior to the making of the order but not subsequently. You have copperfastened it by putting in those seven words at the end of the subsection. However, I have made my point.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 8, line 48, after "constent" to insert "in writing".
I went to the Act referred to. The consent is generally given in writing. If it is ordinarily given in writing, then why not say so?
It would normally be given in writing; but if it is challenged, it will be a question of fact whether or not it was given. The evidence would have to be produced in court whether the Attorney General actually did give his consent.
Amendment, by leave, withdrawn.
I move amendment No. 14:
In page 10, line 28, to delete "if they think fit, may by order" and substitute "may apply to the Court to".
This is on Section 29. Section 29 gives the Board power to frame schemes applying property cy-prés. In subsection (4) you come to a point where a scheme has been made by order of the court and in certain circumstances, the value not being over £5,000, the Board is given power to change a court order. This is not going to happen very often and I do not see why, if the court has made an order, it is thought some modification of it is required and the circumstances make that desirable, one should not apply again to the court instead of leaving the Board power.
It is simply a question of expense in the case of small charities. I am aware of one charity at the moment where the total funds involved amount of £1,600 and an application to the court for a cy-prés scheme cost over £630. This is entirely to deal with that sort of case. It is not correct to say we are allowing for an order of the court to be revoked. We are dealing with a scheme which has been framed by the court and failed. It is only if a scheme framed by the court fails, that the Charity Commissioners can come in. There is no question of overriding the court or of appealing to the Commissioners against a decision of the court or of overruling an order of the court. It is simply a question of where a scheme fails and, as I said before, a scheme is just as likely to fail if drawn up by a court as any other scheme. It is a question of saving small charities the expense of applying to the court for a cy-prés scheme.
And the Parliamentary Secretary gives as an example an application which might cost £630?
I have such a case in mind.
I am talking about average cases. No application for a small scheme would cost £600. Was that expense incurred in recent years?
I am informed it was recently. Subsequent to this debate I shall give the Deputy the facts of the case. The total funds involved were £1,600 and the cost of the cy-prés scheme was over £630.
Surely there must have been a tremendous amount to bring before the court?
I do not care. It is that type of case I want to provide against.
The thing is phrased as a simple matter. A scheme is made; it fails and goes before the Board. If it is as simple as all that, it could not possibly cost £600.
You would be amazed at what lawyers can do when they get at charity funds.
Deputy McGilligan does not seem to have adduced any reason why a scheme made by the court should get better or as good treatment as a scheme made by the testator. It is not a question of a board changing a scheme but of a scheme which has failed either by some matter relating to a benefactor or arising from a court.
Why put in a sub-section about it? Sub-section (2) refers to the Board framing a scheme; subsection (3) refers to the fact that the Board may frame a scheme; and subsection (4) talks about the scheme having been framed. All you have to do is go back to the court. This is all nonsense. I can resurrect a famous case, that of the Sinn Féin Funds, a case which the Government of the time tried to bulldoze through. A constitutional action was fought on it. There was £26,000 in the Fund at the start but by the time the action was completed there was only £1,700.
That proves my point.
It does not prove the Parliamentary Secretary's point. That was a very involved matter and it had to go back to the judge and by the time it was completed, there was hardly any money left because the judge had finally to decide who was entitled to the money. I could give that case to prove you should not go near a court at all.
Wise men, etc. Deputy McGilligan is talking as if schemes made by the courts belong to the courts in some way.
I thought the courts had a certain sanctity.
I do not see how that comes in here. Deputy McGilligan knows that it is to save small charities costs, to avoid trustee funds being frittered away in legal costs. It is following requests of most trustees that this provision was necessary. As well as that, the amended scheme prepared by the Board has failed if some person injured is prevented from going back to the courts to challenge what the Board has done.
An applicant for a new scheme may if he does not wish to avail of subsection (4), go back to the court.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 11, lines 12 to 15, to delete subsection (8).
I do not see any reference in the section to modification of orders. Generally speaking, a Minister is given power to modify what he has done. I do not think that precise power is given here. Why not say that the Board must give notice?
The Board might give notice but it is not desirable to make it mandatory on them to do it in all cases.
I do not want it made mandatory. What I want is to leave that subsection out altogether.
That would be making it mandatory.
Nothing of the sort.
If you were to leave out subsection (8), it might be argued that if the Board amended a scheme, that created a new scheme of which notice would have to be given again. That is why the subsection is necessary.
Where a Minister is given power to make a scheme, he is generally given power to amend or modify. There is no such phrase here.
The equivalent words are there.
Am I told that they are deliberately put there in this way to cover the case of a modified matter? I think the word "modify" should be there.
Surely the power to acts as you think expedient involves the power to modify?
You will have a lot of legal argument on this. The whole matter could be cleared up now by putting in the word "modify". The Parliamentary Secretary must remember that we are passing legislation about a very important matter.
I say that the way in which the section is drafted meets the situation ideally. It is straining the limits of interpretation to argue as Deputy McGilligan is arguing here. We are trying here to be practical in our treatment of an important matter. Notice is given and the Board acts in relation to suggestions and objections they think expedient. They might not do anything. They might decide to modify in a minor way or to modify in a major way. If they modify in a minor way, they may then decide that there is need to give further notice.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 13, lines 20 and 21, to delete "instrument (if any) creating" and insert "terms of".
Amendment Nos. 17 and 18 are consequential on this. The object of these amendments is to cover charitable trusts created by statute or charter. Where a statutory trust, such as the Iveagh Trust, desires to change its investment powers, it must go to the expense of promoting a private Bill. There should be no necessity for this. Such trusts ought properly to come within Section 32 of the Bill so that the trustees may apply to the Charity Commissioners to extend the range of investments authorised by the Private Act or the Charter governing the particular trust. Amendments Nos. 16, 17 and 18 will allow for this. The word "instrument" in the context of the Bill at the moment could suggest that a charter or a statutory trust is excluded. The idea is simply to make it clear that this will not be so.
Amendment agreed to.
I move amendment No. 17:
In page 13, lines 46 and 47, to delete "created by an instrument".
Amendment agreed to.
I move amendment No. 18:
In page 13, line 49, to delete "instrument" and insert "terms of the trust".
Amendment agreed to.
I move amendment No. 19:
In page 14, line 6, after "investments" to insert "specified in subparagraph (ii) or (iii) of paragraph (a) of subsection (3) of section 33 but".
This is to cover what might have been, in fact, a loophole in the Bill as drafted at the moment.
The object of the amendment is to make it clear that the investments contemplated by Section 33 are the investments listed in subparagraphs (ii) and (iii) of Section 32 (3) (a). On looking at Section 33, it occurred to me that it could be argued that the wording of Section 32 (3) was not wide enough to prevent trustees who make an application under Section 33 from investing outside the range of securities specified in Section 32 (3). Let me take a hypothetical case where the trustees apply under Section 33 to invest in a foreign security and the Board inform them that they do not object, as the Board seem entitled to do under Section 33 (2). It could be contended that there way a way out in Section 33 in its existing form. Hence the present amendment. I trust that is clear.
It is rather confusing.
If a trustees applied under Section 33 for permission to invest in some security outside the country and if the Board merely indicated that they did not object, then, as the section stands at the moment, you could argue that once the Board had informed the trustees that they did not object to the investment, the trustees could go ahead with it.
Amendment 19 refers at the very end to subsection (3) of Section 33. My copy of the Bill has no subsection (3) of Section 33.
That should be Section 32.
Is it subsection (2) of Section 33 or subsection (3) of Section 32?
It is an error. It should be "paragraph (a) of subsection (3) of Section 32".
Of Section 32? Let us get it right first.
Subsection (3), paragraph (a), of Section 32 is the one which prevents the court or the Board from empowering or ordering or consenting to or approving of the investment of any fund held upon any charitable trust "in manner other than the following". As the Bill is framed at present, if the Board under Section 33 simply informed the trustees that they did not object to an investment, then, despite Section 32 (3) (a), which is the general preventing provision, the trustees could easily say that they were entitled to go ahead and invest in an outside security.
Did I hear the Parliamentary Secretary say that subsection (3) of Section 32 is the general preventing subsection?
Yes.
Surely not? It is the general permissive subsection.
No.
It says "shall not invest... in manner other than the following" and then you go on to subparagraphs (i), (ii) and (iii) which are surely the other way.
Read the whole section. Section 32 (1) says:
The Board may, in their discretion, invest any fund held by them upon any charitable trust in such manner as they think proper.
That is as general as you can make it. Subsection (2) says:
The Board may, if they think fit, on the application of the trustees of any fund held upon any charitable trust, by order confer upon the trustees, either generally or in any particular instance, power to invest the fund in such manner, on such terms and subject to such conditions as the Board may think proper.
Again, it is a general investment power. Subsection (3) (a) proceeds to limit it to the specific investments set out there.
Yes, but it prevents generally to start off with and then opens up into (i), (ii) and (iii), what can be done.
Yes, but it is subsection (3) (a) that confines the investments to the ones stipulated; in other words, investments authorised by the trust, authorised by law, or debentures, debenture stock, etc., or freehold or leasehold land.
I do not call that a great deal of prevention. This amendment then has to be fitted into Section 33, where the trustees may invest in investments specified, but not authorised. The trustees then have to give notice. That is to be an end of it. They give notice and the Board considers it.
This is only to widen the scope of the Trustee Investment Act?
Yes; in so far as you may invest in certain stocks and shares and in land not now authorised by law.
Say there is a trust and the trustees desire to invest the fund or change the investments by putting the fund into investments of the type mentioned in Section 32, in the relevant paragraphs, although they are not authorised by the instrument, if they want to put them in investments different from what are in (ii) and (iii) of paragraph (a) of subsection (3) of Section 32, that is forbidden still?
Yes.
They cannot?
They cannot by reason of the amendment.
Thank you. That is what I thought.
Amendment agreed to.
I move amendment No. 20:
In page 14, line 7, to delete "instrument (if any) creating" and to insert "terms of".
This is the same as amendments Nos. 16, 17 and 18. It is to bring in statutory or charter trusts.
Amendment agreed to, subject to the substitution of "Section 32" for "Section 33".
I move amendment No. 21:
In page 16, line 39, to add at the end of section 38 "subject to the provisions of section 32 of this Act."
I know I am going to be told that this is really covered. I hope it is but I want to make assurance doubly sure, lest there be any doubt whatever. This goes back to the section we have been discussing, Section 32, which says that the Board may invest in such manner as they think proper—I am simplifying—and secondly, that they may, on the application of the trustees of any fund held upon any charitable trust, invest as they think proper. Then they have:
Notwithstanding anything contained in any enactment (including this Act) ....
That clearly will refer back to those two subsections. We come then to a completely new section, Section 38, which is the investment of proceeds of sale, a different matter in any event. So, if here it is any sale of property to which Section 34, 35 or 37 applies, then the Board may direct the trustees to pay the money to the Board and the Board may invest as they think fit. One is supposed to remember Section 32. This is governed by what Section 32 says. I wish to give a pointer to that and to make it clear and to say that this is all subject to the provisions of Section 32 of the Act. I think it should be done.
I see no necessity whatever to do it. I am surprised at a learned counsel like Deputy McGilligan using the phrase "one is supposed to remember". The stipulation in Section 32 is quite clear. It governs everything else. The words are—"Notwithstanding anything contained in any enactment (including this Act)". There is no question that this governs Section 38. There is no need for any other provision.
I am just wondering why it was necessary to put in amendment No. 19. If the early and later parts of Section 32 are, so to speak, to colour everything in the Act, why put in amendment No. 19?
I thought I made it clear why that amendment is required. Unless we put in Section 33 the words which amendment No. 19 puts in it, if trustees applied to the Board and the Board said: "No, we do not object," it could be argued that subsection (3) (a) of Section 32 does not apply. The Board might be said to be neither ordering, empowering, consenting to nor approving of the investment.
As I read Section 33 (2) as it was before amendment No. 19 was put in, I do not see any necessity for this amendment. However, we put it in.
Amendment, by leave, withdrawn.
I move amendment No. 22:
In page 17, lines 37 to 43, to delete paragraphs (a), (b) and (c) and the words "may make" and substitute "of their own motion may make".
Again, I do not know what is the necessity for setting out (a) and (b) when (c) says in any event they can do it of their own motion. Why not say so simply?
I think it is desirable to indicate the particular circumstances in which the Board may appoint new trustees: on the application of the trustee or trustees of the charity, or, 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. It is important to spell out in this section that while the Board may act of their own motion, these other avenues are open and that a trustee may apply or, if there is no trustee, that anybody interested may apply.
Anyhow, the Board can do it.
But they might not do it.
It is not obligatory to do it on the motion of the trustees?
No.
Why not simply say the Board may, of their own motion, make an order appointing new trustees? It seems to be unnecessary to say: if there are trustees, they may apply.
If there are trustees, the Board may not act unless they apply.
Surely they can.
They can, but normally they would not. We want to make it clear that, where there are trustees, it would normally be on the application of the trustees that the Board would act or, if there are no trustees, it would be on the application of any person appearing to the Board to have an interest. Then we want to have an omnibus provision that the Board may in a specific case act of its own motion.
The Parliamentary Secretary seems to forget the preamble: "Where for any reason the appointment of a new trustee or new trustees of any charity appears to the Board to be necessary..."
"On the application..."
Apart from that, the Board may do it of their own motion.
It is the sort of thing one could argue about forever. I think it is more desirable to put it this way.
It can be done on the application of the trustee or any person or by the Board of their own motion. It is when the Board thinks it is necessary.
Surely it would be as well the trustees should know they can apply?
Whether they know or not or where they do not apply, the Board can do it.
Supposing the Board do not do it, it is important the trustees should know.
If they apply, the Board need not do it.
As Deputy Sheldon points out, this makes it clear to the trustees that they have the power to apply.
Why not say "The trustee——
I think our words are just as good as any ad hoc words Deputy McGilligan could introduce.
If the Board think it necessary, they can make an order appointing one.
Amendment, by leave, withdrawn.
I move amendment No. 23:
In page 18, to delete lines 14 to 18, and to insert the following subsection:
"(4) The Board shall—
(a) 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, and
(b) on the day immediately following the date of the making of the order, give public notice of the making, and of the date of the making, of the order,
in such manner as the Board consider most effectual for ensuring publicity for the proposal or order, as the case may be, and for bringing it to the attention of persons interested."
Amendments Nos. 23 and 24 may be taken together.
In this connection, I have great pleasure in acceding to a point made by Deputy McGilligan. The argument put forward by Deputy McGilligan was that the Board should not alone give public notice of the date of the making of the proposed order but should also give public notice of the actual making of the order.
More than that— give a month's notice.
Yes. That is what we are proposing to do.
No. I do not think you have succeeded. In paragraph (a), you say: "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, and (b) on the day immediately following——"
It is clearly a case of looking a gift horse in the mouth.
I would not like to describe it as a gift horse; there is another term for it. Paragraph (b) says: "on the day immediately following the date of the making of the order, give public notice of the making, and of the date of the making, of the order".
He has 21 days.
Where is that?
There are 21 days in which to appeal.
Twenty-one days running from what date?
The making of the order, 20 days from the notice.
Should full notice not be given of that?
Once the order is made, it is published the next day and there are still 20 days.
If the person knows it. Why give a month's notice of the proposal? Why not give a month's notice of the fact?
People are given time to prepare a case for submission to the Commissioners. Deputy McGilligan did not, on Committee Stage, object to 21 days' notice of appeal.
No; I think that is good.
We are still adhering to the 21 days.
Yes, the order becomes operative only after 21 days but there is a month's notice given of the proposal to make the order. I simply said: give a month's notice that the order has been made and let the 21 days run from that month after the date of the making of the order. That is what I was aiming at.
That is not what the Deputy's amendment achieves.
It was indeed.
Surely what we propose is quite satisfactory? Notice of the making of the order is published immediately after it is made and then anybody concerned has 20 more days in which to lodge an appeal.
Amendment agreed to.
Amendment No. 24 not moved.
I move amendment No. 25:
In page 18, between lines 54 and 55, but in section 43, to insert the following subsection:
"(9) Where any land of which the ownership is registered under the Registration of Title Acts, 1891 and 1942 becomes vested, by order under this section, in any person or persons, the registering authority under those Acts shall, upon production of a copy under seal of the Board of the order and upon payment of the appropriate fee, register that person or those persons in the appropriate register maintained under those Acts as owner (within the meaning of those Acts) of the land."
The object of this amendment is to allow a new trustee or trustees appointed by order of the Board under Section 43 to be registered in the Land Registry where the trust property consists of or includes registered land. The amendment specifies that the document to be produced to the registering authority is a sealed copy of the order of the Board. We propose to follow the precedent of Section 19 of the Labourers Act, 1936, and Section 8 of the State Property Act, 1954. The amendment has been prepared in consultation with the Registrar of Titles.
Amendment agreed to.
I move amendment No. 26:
In page 18, line 58, after "Taxing Master" to insert ", and where costs which are the subject of an order under this section will fall to be paid out of a fund, the Taxing Master shall have regard to that fact in taxing and ascertaining them".
This amendment has been prepared following consultation with the two Taxing Masters. The idea is to stop any extravagant claims for costs that might be made by a solicitor on a solicitor and own client basis. The difference between solicitor and own client costs and solicitor and client costs payable out of a fund is well recognised. The amendment will apply existing practice under the relevant High Court rules to bills of costs subject to an order of the Board.
There is a rule, of course, governing this.
No.
Is there practice covering it?
Yes.
And why put it in?
We are advised by the Taxing Masters.
We have another authority now.
I am being a very reasonable man. I wonder if I have made it absolutely clear to the House that there is a practice covering this under High Court rules. We are applying that practice to the bills which are subject to an order of the Board under Section 44. Deputy McGilligan may be inclined to think that the only person I am not prepared to be advised by is himself.
But the Board of course make the order to have costs taxed. After that is finished you then come on to this.
Amendment agreed to.
NEW SECTION.
I move amendment No. 27:
In page 19, between lines 43 and 44, to insert the following section:
"(1) In determining whether or not a gift for the purpose of the advancement of religion is a valid charitable gift it shall be conclusively presumed that the purpose includes and will occasion public benefit.
(2) Subsection (1) shall not apply where the gift takes effect before the 1st day of January, 1960."
The object of this new section is to provide that in the case of gifts for the advancement of religion that are otherwise charitable it shall not be necessary to prove public benefit or the benefit of the community. The requirement of public benefit in the case of religious trusts meant that the courts had to enquire into spiritual matters in which their competence is at least open to question. Furthermore, the requirement of such benefit does not rest on any sound historical foundation. In proposing this amendment, I was, I may say, very much influenced by the judgment of the late Judge Gavan Duffy in Maguire v. Attorney General reported in the 1943 Irish Reports and also by Professor Newark's article Public Benefit and Religious Trusts in the July 1946 issue of the Law Quarterly Review. Maguire's Case was followed by the late Judge Dixon in In re Sheridan reported in 1957: but the question at issue, namely, the public benefit element in gifts to contemplative or enclosed Orders has not yet come before the Supreme Court. I referred to these Orders and to the English decision of Gilmour v. Coats in my Second Stage speech. On fuller consideration I think it better that the matter be put beyond doubt by establishing a conclusive presumption of public benefit in the case of religious trusts.
The category "advancement of religion" is a well-accepted one listed specifically in the divisions of charity contained in Lord Macnaghten's celebrated judgement in Pemsels Case reported in the 1891 Appeal Cases.
This amendment represents a valuable and desirable restatement and clarification of the law. Acceptance of the amendment means that it will in future be no longer necessary to argue that gifts which are clearly for the advancement of religion must rely on the dual grounds of validity at common law and the element of public benefit. The first ground will, as Judge Gavan Duffy held, suffice. This will ensure that the Statute of Pious Uses, 1634, to which the trouble in this country in regard to public benefit traces its origin will be placed in proper historical perspective. That Act, as the learned Judge stressed, neither codified the law nor superseded the common law of pious uses. Professor Newark in the conclusion to the article to which I have referred points out that an insistence on the requirement of public benefit in the past has led the courts to search for and to pretend to find a public benefit in the form of spiritual advantages which are not properly cognisable in a court of law.
The proposed section will not apply to gifts taking effect before the 1st January, 1960. This is in line with the policy in Section 49 (2) in regard to mixed trusts. We want to interfere as little as possible with rights that people may have under existing law.
While the subsection is not to apply where the gift takes effect before the 1st January, 1960, the two cases are still being quoted, Judge Gavan Dufly and Judge Dixon? They still remain as High Court authorities?
Yes.
On the Second Stage the Parliamentary Secretary said he felt that no Supreme Court was likely to upset those judgments.
I think Deputy McGilligan himself indicated that he could not say whether they would or not. It was recognised that they were only High Court judgments.
But the Parliamentary Secretary felt it was unlikely they would upset those judgments. In any event, we are now putting it beyond any possibility. When the amendment first came to my hands it was not in the present terms. It was in the terms of a gift for a religious purpose or for the advancement of a religious purpose. The words "for the advancement of a religious purpose" have been dropped. Why?
"Religious purpose" would be too narrow. "The advancement of religion" is the correct expression.
Did Professor Newark's article use the same term?
Yes.
How did those words creep in at all?
They crept in as a matter of drafting. On further consideration we realised that "religious purpose" was far too narrow.
Far too wide?
It depends on which way you look at it. A religious purpose might not always be a charitable purpose. It might be one single thing and not necessarily within the concept of "the advancement of religion".
Surely "for a religious purpose" means for any religious purpose?
Yes.
That is very wide.
Yes.
Why narrow it now to the "advancement of religion"?
Narrowing it only in this sense. The "advancement of religion" is broad whereas "religious purpose" might be just one single purpose.
The effect of the section is that there is a presumption of a conclusive type that the purpose includes public benefit. What is wrong about applying that presumption to a gift for a religious purpose?
If Deputy McGilligan decides, for instance, to leave a legacy to me to take me to Rome to see the Pope, that is a definite religious purpose.
Is that what the Parliamentary Secretary had in mind when the amendment came around?
I wanted to exclude a "religious purpose" in the narrow non-charitable sense.
Was that what was in the Parliamentary Secretary's mind —sending him to Rome? The amendment was circulated including the term "for a religious purpose".
I had not got myself in mind at all.
I want to know what was in the mind of the person who got the words "for a religious purpose" put into the amendment.
What anybody had in mind is not particularly relevant here. We were trying to evolve a form of words which would cover certain cases, the cases of the enclosed contemplative Orders with which we are mainly concerned. We evolved one form of words but, on subsequent reconsideration of them, we decided that they were, whichever you like to say, too narrow or too wide, and that they could include things which we did not want to include. We wanted to include only gifts for the broad purpose of the advancement of religion.
Amendment agreed to.
Amendment 28 is in the name of Deputy Sheldon, and as amendments Nos. 30, 31, 32, 33 and 34 are consequential, perhaps they could be discussed together.
I move amendment No. 28:—
In page 19 to delete lines 44 to 51 and substitute—
"46.—(1) In this section—
‘fund' means a common investment fund, ‘scheme' means a scheme for the establishment of a common investment fund.
(2) The High Court or the Board may by order bring into effect schemes upon terms which provide—
(a) for property transferred to a fund by or on behalf of a charity participating in a scheme to be invested under the control of trustees appointed to manage the fund; and".
I am prepared to argue that amendment No. 31 is not necessarily consequential but I would be happy to discuss the amendments together. Amendment No. 31 could stand on its own. This rather complex collection of amendments is designed not to change the intention of the section but to change the drafting. On Committee Stage, I indicated my pleasure at the inclusion of this section in the Bill but also my abhorrence of the terms in which the very good intentions were expressed.
I understood that the origin of this section was the Charities Act passed in England and, having looked it up, I began to see where the trouble arose. If the Parliamentary Secretary had been content to lift the section out of the Charities Act in England, all might still have been well but the Parliamentary Secretary decided to change the wording slightly, to make it a little shorter, to telescope it as he did in subsection (4) of Section 9. By doing so, a horrible-looking mess appears. In the Charities Act in England, the relevant section begins:
The court or the Commissioners——
it is quite easy to change that to "the High Court or the Board"
——may by order make and bring into effect schemes—and then, in parenthesis, it says——
(in this section referred to as "common investment schemes") for the establishment of common investment funds under trusts which provide——
and so on. Not too content with that, to my mind, fair statement of intention, our draft is now switched around a bit and in attempting to cut it even finer the horrible effect is as set out in subsection (1), Section 46:
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)——
so that we have——
We have plurality.
——something which helps to make the thing a bit more confusing to read. The confusion continues because of the attempt to get a too tight definition to make "scheme" serve for "common investment schemes". I should have thought the wording in the English Act reasonable. In paragraph (a) of that Act, there was a reference to "the fund". I should have thought the paragraph would have read better with the words "such a fund" or "a fund" rather than "the fund".
As I mentioned on Committee Stage, there is this confusion as to whether this is one common investment fund for Ireland or a series of them. Obviously from reading the section, there are a number of common investment funds envisaged from the phraseology. Why this fund should come in without any definition of "fund" at all seems to be bad. I attempted to get over it by redrafting the entire section and although I say it myself, I think my effort is better than that of the parliamentary draftsman, if he is the person who is to be blamed for what appears in the Bill. It gets further away from the wording of the English Act but, having decided to depart from the wording of the English Act, I do not see the necessity for staying near or about it.
While I am not particularly advocating the words I have suggested, it would be better to go back to the English Act and to get nearer the words used there. I cannot see that anything has been gained by way of clarity—rather the reverse.
I may be particularly stupid about reading these things but I read this three times just to see what is the scheme mentioned. I must confess of course that I had the advantage of puzzling over it before I read the English Act. There are clearer ways of stating it and, with all respect to the English parliamentary draftsman, I still prefer my own way of defining the "fund" in the section to mean a common investment fund and "scheme" to mean a scheme for the establishment of a common investment fund. By that definition, you get clarity and cut out a number of words. In regard to paragraph (a), Section 1, "for property transferred to the fund", I think "such a fund" or "a fund" would be better.
The Deputy realises that the English Act says "the fund" also.
It does, but the English Act has the advantage of leaving in the phrase "common investment fund".
No, "common investment schemes".
Sorry, "common investment schemes". All I know is that when reading it down, "the fund" did not grate on me in the English Act.
It should have.
I still thought the English Act could be improved by putting in "such a fund" to make it clear beyond doubt, to make it clear that the fund in paragraph (a) is a common investment fund and the section clearly envisaged in time one common investment fund.
Deputy Sheldon is a very reasonable man and since he raised these drafting points on Committee Stage, I have had this section re-examined. Let me say at the outset that the parliamentary draftsman is not my creature; he is the draftsman of this Parliament and it is unfair for Deputy McGilligan or anybody else to accuse me of being weak-willed in accepting a draft prepared for me by the parliamentary draftsman. The position——
The Parliamentary Secretary is responsible to the House.
I am responsible to the House for the Bill as it appears and I want to make it clear that I accept complete responsibility for the form in which it appears. In drafting any Bill, I am advised and I accept the advice of the draftsman of this House. It is hardly a valid criticism to level against me that I am wrong in doing this.
As I said, I had this section reexamined and, quite frankly, I could not see any grounds for the difficulties which Deputy Sheldon sees. I certainly think that our draft is some improvement on the corresponding section in the English Charities Act, 1960. If our section suffers from any defects, then Section 22 of the English Act suffers from exactly the same defects. Deputy Sheldon is, as I said, a reasonable man. I think he must admit he has nothing sounder to go on than a feeling of dislike for the wording of the section. I understood him to say that when he read the whole section it was quite clear there would be a number of common investment funds. There was no suggestion that there should be only one fund for the whole country. That is not intended and that is not what is in the section. The drafting is as good as is required. I am quite satisfied the section will achieve what we want it to achieve. We are all agreed on the desirability of what we propose. Deputy Sheldon will have to advance a more concrete reason than a mere feeling of dislike for the English draft——
The English language.
——in order to make me go against my expert advisers.
It is not quite correct to speak about objecting to the way it appears. It is not quite enough merely to say it even if it may not have to go to court to have anything argued on it. Clearly, it is important that the matter should be said as well as it can be said.
Elegantly.
I would not go so far as to say "elegantly". However, legislation coming from the Irish Parliament ought to be drafted as meticulously as we can manage to make it. I am sure the Parliamentary Secretary has not suggested that my form of words in any way alters the intention. I am not prepared to accept that it is a mere triviality. We should try to word the Bill as well as we can do so.
I do not suggest that this is a triviality. I appreciate the Deputy's desire to improve the Bill. There are a number of ways of drafting and there always will be discussion about any drafting dealing with something difficult and complex. My expert advice is that this section gives me what I want. This House has seen various Finance Bills; and I do not think we can complain that this section is particularly difficult or anything of that nature. I appeal to Deputy Sheldon to let the section stand in its present form. His draft may be excellent. We have examined it but we still think our draft is better.
The Parliamentary Secretary referred to expert advice. Is that the advice of the Parliamentary draftsman?
The Parliamentary draftsman of this House.
Does that mean that the Parliamentary draftsman is an officer of this House? I never heard the description "the Parliamentary draftsman of this House" before.
He is the draftsman of this Parliament.
He is not.
He is.
What office is he in? He is not, so to speak, a member of the Oireachtas staff.
I did not say he was.
He is a member of the Attorney General's staff.
I will not be cross-examined on this. I say he is the Parliamentary draftsman of this House. He is not my draftsman.
Surely the matter may not be argued on these amendments?
Certainly the statement can be argued. There is no draftsman of this House.
I beg leave to withdraw the amendment.
I hope the misleading expression is withdrawn, too.
Amendment, by leave, withdrawn.
Amendments Nos. 29 and 35 might be discussed together.
I move amendment No. 29:
In page 19, line 44 and line 58, to delete "or the Board".
What is the necessity for having the Board brought into this at all? Why not leave it to the court or else leave it to the Board?
It is a simple matter of expense.
Then leave it to the Board. Why not one or the other?
Despite the expense, somebody might wish to go to the court.
Amendment, by leave, withdrawn.
Amendments Nos. 30 to 35, inclusive, not moved.
I move amendment No. 36:
In page 22, between lines 49 and 50, to insert the following subsection:
"(7) (a) The powers conferred by this section on a Court of competent jurisdiction in relation to property given for specific charitable purposes may, where the property does not exceed one thousand pounds in value, be exercised by the Board, and, for the purposes of such exercise, references in the preceding subsections of this section to a Court of competent jurisdiction shall be construed as including references to the Board.
(b) For the purposes of paragraph (a)—
(i) the value of land shall be taken to be fifty times the rateable valuation thereof,
(ii) the value of any periodical payment to which land is subject shall be taken to be fifteen times the annual amount thereof, and
(iii) the value of any other periodical payment shall be taken to be twenty times the annual amount thereof."
This amendment is the result of a recommendation by the Board. The proposal is to allow the Board to frame cy-près schemes under section 48 where the property has been given for specific charitable purposes and does not exceed £1,000 in value. Value will be determined in the same way as it is determined under section 29 (1) in the case of ordinary cy-près schemes made by the Board.
Once again this is a question of expense. I am informed that there are two small funds to which section 48 will apply. Application to the High Court would simply mean that substantial portions of each fund would go in legal expenses. The moneys in both cases were collected for charitable purposes. This amendment deals with funds which are exclusively for charitable purposes.
Amendment agreed to.
Bill reported with amendments.
The Bill was re-committed to deal with these amendments.
I understood this was the Report Stage.
So far as the Chair is concerned, the Bill has been re-committed for the purpose of dealing with these amendments. The House was in Committee.
Question "That the Bill be received for final consideration" put and agreed to.
When is it proposed to take the next Stage?
This is the Charities Bill, 1957. It has taken four years to get to this stage. There is not an awful rush about it. The final stage can be taken some time after Easter.
Is Deputy McGilligan not prepared to give the final stage now?
I have always objected and surely I voiced that objection several times? If a Minister or Parliamentary Secretary wants a piece of legislation in a hurry, he can make a case for it. Has notice been given to Deputies? I do not think this procedure is proper and I object to it.
I took it for granted that we would be given the Fifth Stage now. In my short experience in this House, the Fifth Stage is given as a matter of course after Report Stage.
I object to taking the Fifth Stage now. I do not agree to it. Let us take it after Easter.
If we have dealt with all the technicalities of the Bill on Committee and Report Stages and the principle of the Bill on Second Stage, what objection is there to giving me the final stage?
There is a procedure covering the Fifth Stage of legislation. On the Fifth Stage, speeches can be made covering what is in the Bill.
I accept that.
Let us have that procedure carried out.
Can we have the Fifth Stage now?
I object to it. There was no notice given of the Fifth Stage. How many people who are not here want to speak on it?
I respectfully sugguest to the House that the Fifth Stage be given now.
Was the matter discussed with the Whips? I suggest it was not.
I have no information about that.
I know it was not.
Have we not reached agreement?
No agreement was even looked for.
Have we not general agreement on the principle of the Bill?
On the details of the Bill. We are entitled to the Fifth Stage and I want to speak on the Fifth Stage.
I am not attempting to deny that. I am asking the Opposition to facilitate us by giving the Fifth Stage now.
Why now?
Because I want to get on with the Bill.
Is there any special urgency about it?
There is a very heavy Parliamentary programme.
The Parliamentary Secretary is going to the Seanad.
I want to get the Bill through as expeditiously as I can——
How long did the Parliamentary Secretary delay on the Report Stage? When did we get the amendments we discussed the other day?
I think Deputy McGilligan will agree that when he came in here to the House on the Committee Stage of the Bill and asked to be facilitated, I unhesitatingly agreed to do so. We recommitted the Bill on Report Stage. I think I am entitled to some quid pro quo.
That did not facilitate me but the House. We could have argued the whole of the Committee Stage on the amendments produced very late in the day but we allowed them through without discussion on the ground that we could recommit.
Deputy McGilligan put down amendments subsequent to the Committee Stage which I agreed we would discuss as if we were in Committee.
I do not thank the Parliamentary Secretary for that. We are entitled to that.
I do not think so. I shall have to ask the Chair for a ruling.
One can put down amendments for Report Stage.
But not to be discussed as if in Committee.
Yes.
We agreed to recommit the amendments to the Bill.
When there are substantial amendments, they are generally discussed on recommittal.
If Deputy McGilligan does not want to give me the Fifth Stage, I must ask for a ruling.
It is a matter for the House.
No suggestion of this was made to the Whips. No agreement was looked for. No suggestion was made to Deputies who might want to be here for this. I think it is all wrong.
I have no desire to divide the House on the matter. When Deputy McGilligan says there was no discussion with the Whips, I take it that that was so because everybody assumed we would be given the Fifth Stage.
I would have objected if I had been consulted about it. There was no suggestion made to me that the Fifth Stage would be taken today. It is a matter of accident that we finished so early.
Is it not because we achieved so much agreement that we finished so early?
We have more or less an agreed Bill.
I had something like 30 amendments down and not one was accepted. That is agreement!
May I ask whether Deputy McGilligan is quite adamant?
I object to the Fifth Stage being taken now.
Can we not have it by agreement?
I certainly will not agree.
Could we have the Fifth Stage on Thursday?
The day after to-morrow? I do not think so. Let the Parliamentary Secretary put it down and see whether the Whips will agree? I certainly object.
We can have the Fifth Stage on Thursday.
The Fifth Stage can be put down for Thursday and the permission of the House can be looked for then. I do not agree to taking it on Thursday.
Fifth Stage ordered for Thursday, 30th March, 1961.
The Dáil adjourned at 9.55 p.m. until 3 p.m. on Wednesday, 22nd March, 1961.