I move: "That the Bill be now read a Second Time."
Charitable organisations impact on the lives of almost everyone in Irish society. So many people work in charitable organisations, fund raise for charitable organisations, donate to charitable causes or are beneficiaries of charitable organisations. The value of charitable organisations and charitable work cannot be emphasised enough, be it in Ireland or abroad. People in Ireland are very favourably disposed to charitable organisations and are renowned as being among the most generous supporters of charitable causes to be found anywhere in the world.
Yet most people in Ireland are probably not aware that the charities sector in Ireland is largely unregulated. No charities legislation has been enacted in over 30 years. There is no body with the specific purpose of supervising the sector or the statutory powers to maintain a register of charitable organisations. As a consequence, there has been a dearth of reliable information on the number of active charitable organisations, what their financial worth is or how they spend their funds.
Much examination of and research into the charities sector and the need for regulatory reform has been undertaken over the past 20 years. This includes the Costello and Burton reports in 1990 and 1996, respectively; the 2002 Law Society report; and the Arthur Cox-led review in 2002.
All this time, the charities sector, as a traditionally largely cash based, voluntary enterprise, has been left vulnerable to potential abuse by unscrupulous individuals and organisations. It is a testament to the commitment and integrity of charitable trustees that incidents of such abuse have been few and far between over the years. Nonetheless, it could be argued that it might take only one major such scandal to undermine public confidence. This would result in a fall off in donations to charities generally, which, ultimately, would affect those who benefit from the superb work these organisations carry out. For this reason, quality regulation of the sector will be of huge benefit both to the charitable organisations and to the donating public.
In this context, the Government is committed to protecting both charitable organisations and the public interest by reforming the law to ensure accountability and to protect against abuse of charitable status and fraud through the Bill we have before us here today. The Bill, together with the Charities Acts of 1961 and 1973 and the Street and House to House Collections Act 1962, as amended, will provide for a composite regulatory framework for charitable organisations. There will be a combination of new legislative provisions and retention of existing charities legislation, with updating, where appropriate.
Key aspects of the Bill will provide for a definition of "charitable purpose" for the first time in primary legislation; a new regulatory authority to secure compliance by charities with their legal obligations and also to encourage better administration of charities; a register of charities in which all charities operating in the State must register; annual activity reports by charities to the new authority; updating the law relating to fundraising, particularly in respect of collections by way of direct debits and similar non-cash methods; a charity appeals tribunal; dissolution of the Commissioners of Charitable Donations and Bequests for Ireland upon establishment of the new authority and the transfer at that stage of its functions to the authority; transfer to the authority of all jurisdictions previously vested in the Attorney General by statute or common law in respect of charities; administrative co-operation by the authority with statutory bodies on relevant regulatory and law enforcement matters, both inside and outside the State; consultative panels to assist the authority in its work and to ensure effective consultation with stakeholders; and a review of the operation of the Bill after fiveyears.
Ba mhaith liom aghaidh a thabhairt ar chodanna éagsúla an Bhille agus mionchuntas níos mó a thabhairt ar na cuspóirí atá i gceist le gach ceann acu sin. Ar ndóigh, níl i gceist go dtabharfaí mion-chur síos ar an méid atá i ngach uile alt. Tugann an meabhrán míniúcháin, mar a foilsíodh leis an mBille, eolas níos mine faoi na forálacha sin. Beidh deis ag Comhaltaí, ar ndóigh, mionscrúdú a dhéanamh ar na forálacha deréir mar a théann an Bille chun cinn sa Teachseo.
The Bill is divided into seven parts, comprising 85 sections and two Schedules. As well as fairly standard provisions such as commencement, regulations, offences, repeals, etc., Part 1 of the Bill contains a number of key new provisions. In section 2 on interpretation, certain words and terms used in the Bill are defined. Of particular interest is the definition of a "charitable organisation" and, conversely, "excluded bodies" for the purposes of the Bill. The latter includes political parties, chambers of commerce, trades unions or employers' representative organisations and terrorist or other unlawful organisations. Sporting bodies, as defined under the Taxes Consolidation Act 1997, for which a separate tax exemption regime exists, will also be "excluded bodies". This will ensure congruence with the approach adopted by the Revenue Commissioners in determining what constitutes a charity for the purpose of granting charitable tax exemption.
To be a "charitable organisation", a body must be engaged exclusively in "charitable purposes". Section 3 — Charitable Purpose — defines "charitable purposes" for the first time in primary Irish legislation. A purpose is regarded as charitable if its aim is the prevention or relief of poverty or economic hardship, the advancement of education, the advancement of religion or anyother "purpose that is of benefit to the community".
The last category, "purpose that is of benefit to the community", is the broadest category. Like the other three categories, it is founded on the original 17th century "Pemsel" categories, although the definition proposed in the Bill reflects contemporary interpretations. There is a particular focus on community welfare and development, volunteerism and civic responsibility, promotion of health, the advancement of conflict resolution or reconciliation and the promotion of religious or racial harmony. Other activities considered to be of benefit to the community include the protection of the natural environment; the prevention or relief of suffering of animals; the advancement of the arts, culture, heritage and sciences; and the integration into society of those who are disadvantaged.
These purposes broadly reflect the categories used by the Revenue Commissioners in determining eligibility for certain tax exemptions and reliefs for charitable organisations. It should be noted, however, that in section 7, determinations of eligibility for certain tax exemption on funds applied for charitable purposes by the Revenue Commissioners are expressly decoupled from determination of charitable status by the new Charities Regulatory Authority. Such determinations will remain exclusively the function of the Revenue Commissioners. It should also be noted that a purpose will only be defined as charitable if it confers a benefit to the public or a section thereof, although a gift for the purpose of the advancement of religion will automatically be considered of public benefit.
Part 2 provides for the establishment of a new independent body, the Charities Regulatory Authority. It outlines the functions of the authority and contains standard provisions relating to the staffing, finance and accountability of the body that are generally consistent with those normally applied to similar statutory bodies. The authority will, in keeping with good regulatory practice, be in a position to engage with the sector on matters of importance. It will also be empowered to co-operate with other regulatory and law enforcement agencies, both within and outside the jurisdiction. The provisions of Schedule 1, which I will summarise later, will also apply to the authority.
The key functions of the authority are listed in section 13. The authority, although with strong regulatory and enforcement powers, will also have a supportive and advisory role for charitable organisations. The latter role will be particularly important to smaller charitable organisations which constitute the majority of such organisations.
The regulatory and enforcement role of the authority is aimed at increasing public confidence in the charities sector. The authority will promote compliance by charitable organisations with their legal obligations and will be empowered to carry out investigations where breaches of the legislation are suspected.
Provision is made for non-binding administrative co-operation on regulatory matters with other regulatory bodies and foreign statutory bodies on law enforcement. The authority will also provide guidance to charitable organisations, encourage better administration of charitable trusts and will be able to engage with the sector through consultative panels.
A major provision in section 13 is the authority's requirement to establish and maintain a register of charitable organisations that will be accessible to the general public. This will have a significant positive impact on public confidence, as the public will henceforth be able to independently verify the bona fides of charitable organisations.
Part 2 contains several standard provisions relating to the financial operations of the authority in sections 15 to 17, inclusive. Sections 18 to 22, inclusive, deal with the chief executive, section 23, the appointment of employees by the authority, and section 25, the provision of a superannuation scheme.
The Bill provides that the Office of the Commissioners of Charitable Donations and Bequests for Ireland will be dissolved on establishment of the authority. Section 24 provides that staff employed in the office of the commissioners on the day before establishment day of the new authority will transfer to the new body on establishment day. There are also standard but important provisions in section 24 which guarantee, save in accordance with a collective agreement negotiated with a recognised trade union, that the tenure, pay scales and other terms and conditions of employment, including superannuation benefits, of such employees shall be no less beneficial than those applicable immediately before establishment day.
Sections 26 and 27 allow for co-operation and information-sharing in suspected offences between the new authority and the Garda Síochána, as well as with other regulatory and law enforcement agencies, including those based outside the State. In a complementary manner, section 31 provides a basis for administrative co-operation by the authority with other relevant regulators. Similarly, section 32 provides a basis for administrative co-operation with foreign statutory bodies on law enforcement matters. The global fight against terrorism, including prevention of the misuse of charities for terrorist financing, provides a specific context for such administrative co-operation arrangements at international and EU levels. The authority will be obliged to inform the Minister of any such arrangements under these sections.
I gcomhréir le dea-chleachtais, foráiltear in alt go gcuirfidh an túdarás, i ngach tréimhse trí bliana, ráiteas straitéise os comhair an Aire don tréimhse trí bliana dár gcionn. Leagfaidh an tAire, chomh luath agus atá sé indéanta tar éis do ráiteas straitéise a bheith curtha faoi bhráid, cóip den ráiteas sin os chomhair an Oireachtais. Chomh maith leis sin, féachfaidh an t-údarás chuige go bhfoilseofar an ráiteas straitéise ar an Idirlíon.
Section 29 contains standard provisions relating to the keeping and auditing of accounts and financial statements by the authority, which shall be subject to the scrutiny of the Comptroller and Auditor General. After the accounts have been audited, as with the strategy statement, a copy of the accounts must be laid before the Oireachtas, as must any report of the Comptroller and Auditor General. An annual report on its performance during the preceding year must be provided by the authority to the Minister under section 30. As with the strategy statement and accounts, the report must also be laid before the Oireachtas and published on the Internet.
Is dóigh liom gur féidir a rá le fírinne go raibh leibhéal ard comh-chomhairliúcháin ann in ullmhú na reachtaíochta seo. I gcomhréir leis sin, tá foráil sonrach sa Bhille féin maidir le próisis comhairliúcháin. Mar a luadh níos túisce, tugtar suntas ar leith don údarás a bheith ag glacadh comhairle le páirtithe leasmhara a d'fhéadfadh éifeacht a bheith á himirt orthu agus a chuid feidhmeanna á ngníomhú ag an údarás. Tá foráil ar leith in alt 33 do chomhairliúchán dá leithéid. Leagtar amach in alt 34 na sonraí maidir le próiseas comhairliúcháin mar sin, a dhéanfar trí bhunú painéil comhairliúcháin ag an údarás le tearmaí tagartha sonracha leagtha síos ag an údarás féin. Faoi alt 35, beidh cumhacht ag an Aire a iarraidh go mbunófar painéal comhairliúcháin ar leith.
The Attorney General has had a role as the protector of charities, which can,inter alia, entail bringing legal proceedings in defence of charitable organisations, participating in proceedings brought by others, or carrying out certain roles under the Charities Act 1961. With a new statutory authority in place with strong powers and a strong supportive and advisory ethos, it has been agreed that such a role would no longer be necessary. Therefore, section 36 transfers all the functions relating to charitable organisations or charitable trusts that were previously vested in the Attorney General to the authority. The former Attorney General, Mr. Rory Brady, SC, took a very proactive and hands-on role in the preparation of this legislation and I express our gratitude to him.
In Part 3, which deals with the regulation of charitable organisations, certain responsibilities are placed on charitable organisations designed to ensure adherence to good administrative practices. It should be noted there is a graduated approach so as not to place an unmanageable administrative burden, which may create undue difficulties for smaller charitable organisations in terms of compliance. This approach is consistent with the proportionate regulation principle of better regulation.
Charitable organisations, apart from charities that are bodies corporate and are already subject to the Companies Acts, will be required to maintain books of accounts. They will have to produce to the authority on an annual basis such information as may be prescribed by regulations made by the Minister. It is proposed that annual accounts will be subject either to audit, for larger organisations, or to independent examination for those organisations with an income or expenditure of less than €100,000 per annum.
In the case of the latter, the authority will have a reserve power to request full audited accounts from any organisation, irrespective of its income or expenditure, where the authority considers it necessary. It will be an offence for an organisation not to comply with these accounting requirements. The authority will be empowered to appoint a person to audit the accounts of a charitable organisation that has not complied and recoup the costs of such an audit from the body in question.
As well as accounting obligations, all registered charitable organisations will be obliged to provide annual activity reports to the authority. In the case of organisations which are already obliged to provide annual reports to the Companies Registration Office, CRO, discussions between the Department and the CRO continue with the aim of ensuring dual reporting is avoided. I expect to address this matter on Committee Stage through the introduction of appropriate amending provisions.
In general, annual reports and accounts submitted to the authority will be made available for inspection by the public. This will allow potential supporters of charitable causes the opportunity to make more informed choices as regards their donations. I do not consider, however, that the same public interest applies to private charitable trusts that do not fundraise from the public. It is not intended, therefore, that information provided by such organisations to the authority will be available to the public generally. To do otherwise might serve to discourage involvement in philanthropy, which is not the intent of the legislation.
Continuing with public confidence measures, section 48 outlines the circumstances under which a person ceases to be qualified to be a charity trustee. These include, for example, where an individual is convicted of an indictable offence, or is adjudicated bankrupt. The person disqualified may appeal to the High Court against such a disqualification. The authority will maintain a register of persons who have ceased to be qualified for the position of charity trustee. It will be an offence for a member of staff or a charity trustee of a charitable organisation to accept a direction from a person who, they are aware, is disqualified from being a charity trustee. A person convicted of acting as a charity trustee when not qualified to do so, or who knowingly acts on the direction of a person not so qualified, will be personally liable for any debts arising to the organisation as a consequence of his or her actions.
Part 3 provides that persons in specific categories of employment, such as auditors or trustees, for example, who have reasonable cause to believe that an offence under the Criminal Justice (Theft and Fraud Offences) Act 2001, has been or is being committed within a particular charitable organisation, will be legally obliged to report this to the authority. In any defamation proceedings that might arise, a defence of qualified legal privilege will apply to any report published by the authority relating to the state and conduct of the affairs of a charitable organisation.
Persons who report suspected breaches of the legislation will not be regarded as having committed a breach of duty towards the organisation, unless such a report is made in bad faith. This also applies to employees of the organisation. There are specific provisions in place to ensure that an employee may not be penalised by his or her employer for notifying the authority in good faith of a suspected breach of the legislation within the organisation.
It is important that a regulatory authority should have strong investigative powers and these are set out in Part 4, sections 57 to 67, of the Bill. The authority may appoint an inspector to carry out investigations. Charitable organisations will be obliged to co-operate with any investigation. They will have to supply all documentation sought by an inspector or by the authority, with the exception of privileged information. The authority will also be empowered to apply to the High Court for permission to enter and search premises. Any report subsequently produced by the authority will be admissible as evidence in any related proceedings.
As stated previously, the Bill is founded on the principle of reasonable and proportionate regulation and enforcement. In this context, the authority will have the option, in certain circumstances, to take intermediate sanctions against an organisation rather than initiate full proceedings. Such circumstances might include a situation where an organisation has failed to comply with its reporting or accounting obligations under the legislation. Intermediate sanctions might include the removal of an organisation from the register until it complies fully with its obligations.
In keeping with its role as protector of charities, the authority may, where it considers that a charitable organisation or its assets are at risk or in need of protection, apply to the High Court for an interim, interlocutory or permanent order to, for example, suspend, remove or even appoint a trustee where it is considered to be in the best interests of the organisation.
In the case of a dispute over a decision of the authority, Part 5 provides for an extra-judicial appeals mechanism to be known as the charity appeals tribunal. This again is in recognition of the fact that the majority of charitable organisations are small and with limited resources. For these, access to the High Court might place a significant strain on resources. This dispute resolution mechanism is intended to be accessible, affordable and user-friendly.
Sections 68 to 72 contain the related provisions. The five-person membership of the tribunal will reflect a balance between persons with a legal background and persons with expertise relating to charities. Its proceedings will generally be in public and the Bill allows for the tribunal to establish its own procedures, subject to ministerial consent. Decisions of the tribunal may be appealed to the High Court on a point of law.
As I stated, it is proposed that the functions currently carried out by the Office of the Commissioners of Charitable Donations and Bequests for Ireland under the Charities Acts 1961 and 1973 will transfer in their entirety to the new authority on the establishment day. Part 6, sections 73 to 78, contains standard provisions to ensure the smooth transfer of business from the board of commissioners to the incoming authority.
The judicial and lay members of the Board of the Commissioners of Charitable Donations and Bequests, selflessly and without remuneration, have provided an extremely valuable service free of charge to the citizens of the State over many years. At this juncture, I would like to put on the record of the House my great appreciation for all the hard work and dedication of the members of the board. It will be some time before the new authority is set up on a statutory footing. I am confident that the board of commissioners will continue to fulfil its existing role during the interim period and will hand over its affairs to the new authority in due course in a smooth and orderly fashion. I thank the members of the board of commissioners, under the chairmanship of the Honourable Mr. Justice Francis Murphy, for their professionalism to date in all these matters and again express my heartfelt appreciation for the commitment and dedication demonstrated by the commissioners in serving the public and the charities sector over many years.
Fundraising is complex because of the wide range of methods it encompasses and the variety of organisations within the sector involved. It has evolved considerably since the passing of the primary legislation on collections, the Street and House to House Collections Act 1962. Part 7 of the Bill contains necessary updates and enhancements to that Act to reflect the modern face of fundraising. For example, in 1962, the primary nature of fundraising was once-off cash-based collections. The concept of collecting promises of money through direct debits or standing orders simply did not arise. In 2007, this method of fundraising has become very prevalent. It is of crucial importance to charities as it provides a steady and secure income for them, enabling them to plan their operations over a longer term and in a more strategic way. Yet, until now, this non-cash method of fundraising has fallen outside the permit system operated by the Garda Síochána under the 1962 Act and thus is potentially open to abuse. To address this, non-cash collections will be brought within a permit system for the first time, which will serve the interests of legitimate charitable organisations and offer reassurance to potential donors.
The meaning of money has also been broadened beyond mere notes and coins. Another development in the area of fundraising has been the practice of selling items for a specific price as part of the street collection process. The 1962 definition of collection did not cover this practice, but this Bill will address this matter.
The Bill will also tighten up particular elements of fundraising that, in hindsight, were perhaps not adequately dealt with in the 1962 Act. For example, it will now be an offence for a person to make a misleading statement when applying for a collection permit. Collection boxes will now have to be sealed and clearly marked to show the object to benefit from the collection and the registration number of the charitable organisation in question. Penalties for breaches of the fundraising provisions of the legislation have been increased significantly from the 1962 levels.
Methods of fundraising used by charities are constantly changing and evolving. In this context, the regulation of the operational aspects of fundraising does not fit well within the rigid constraints imposed by primary legislation. Principally for this reason, the preferred approach as regards the operational aspects of charitable fundraising is to regulate through agreed codes of good practice. These codes are being developed at present with the financial support of my Department in partnership with the sector. However, should this preferred approach fail to deliver a satisfactory outcome, section 85 allows the Minister a reserve power to make statutory regulations on fundraising.
The above provisions, coupled with the power of the authority to require charities to provide information concerning their fundraising activities, for example in their applications for registration as well as in their annual accounts and annual returns, provide a strong though necessarily flexible regulatory regime for fundraising into the future.
The first Schedule to the Bill contains provisions relating to the legal status of the authority, the appointment of members of the authority and the procedures to be followed by it. The authority will have nine members, three of whom will have a legal background, and the remainder will include persons with experience of charitable work. All will be appointed by the Minister, with the approval of the Government. This Schedule sets out the processes relating to the appointment or removal of members of the authority. It sets out how conflicts of interest are to be handled for members and members of staff of the authority. It also allows the authority to establish committees to assist and advise the authority, or indeed to perform functions that might be delegated to it.
As I touched upon earlier, Schedule 2 lists the legislation that is to be repealed by the Bill. In essence, this only applies to certain sections of the Charities Act 1961. These repeals are necessary given the proposed transfer of functions of the Commissioners of Charitable Donations and Bequests to the new authority and, similarly, the transfer of charities-related functions formerly held by the Attorney General.
Before I finish, I would like to refer to two issues that have been the subject of some public comment. First, with regard to addressing in the legislation the question of advocacy towards a political objective by charitable organisations, practical issues arose concerning the protection of charitable status for certain bodies which do good work on the ground, such as those dealing with families of victims of homicide or victims of abuse. It has also been argued that many charitable organisations legitimately engage in advocacy as a means to achieve their charitable purpose, though advocacy in itself is not their principal object. Accordingly, it has been decided at this juncture not to provide for a specific provision in the Bill restricting advocacy by charities.
With regard to the issue of legal forms for charities, Deputies will be aware that charities have the choice of a number of different legal forms, for example, unincorporated, such as a trust or an unincorporated association, or incorporated, such as a company, usually limited by guarantee. The Law Reform Commission, in a report published late last year, recommended a new legal structure for charitable organisations, the charitable incorporated organisation, CIO. This has not been included in the Bill, however, as the underlying purpose of this Bill is to ensure the accountability of the charities sector and to protect against abuse of charitable status and fraud. It is not proposed to delay the regulation of the sector pending consideration of the separate, longer-term question of the CIO issue.
I trust I have provided the House with a helpful overview of the intent and the content of the Charities Bill 2007. I advise Deputies that I will introduce some amendments on Committee Stage.
These will be mainly of a minor technical or drafting nature, although it is intended, as I have indicated, that there will be substantive additional provision to ensure that the potential for dual reporting to both the authority and the Companies Registration Office is minimised for charitable organisations that are currently subject to company law. The Department is also considering a number of technical and other issues raised by the charities sector.
The Charities Bill is a result of a lengthy process, involving extensive consultation across a wide and diverse sector. The approach being adopted has been broadly welcomed by the sector and the public. The input and support from representative bodies and charities practitioners has very much informed the content of the Bill. I should like to formally express my appreciation to the sector for its contribution throughout the drafting and consultation process to date. In passing, I want to pay tribute to my predecessor, the Minister of State, Deputy Noel Ahern, who did a good deal of work as regards preparing this Bill.
The Bill is a comprehensive document and represents a considerable achievement. However, it can only be enhanced by well-intentioned debate and discussion. In this context I am committed to engaging in a full debate and review of the draft legislation in its passage through the Houses.
Finally, I recognise it is important to underpin civil society and I believe that charities deserve a proportionate, modern statutory framework. I consider that this Bill, when enacted, will deliver a regulatory framework worthy of the sector, I commend the Bill to the House and look forward to hearing the views of Deputies.