Amendments Nos. 16 to 18, inclusive, are related and may be discussed together by agreement.
Charities Bill 2007: Report Stage (Resumed).
I move amendment No. 16:
In page 11, to delete lines 21 and 22 and substitute the following:
"(4) It shall be presumed, unless the contrary is proved, that a gift for the advancement of religion is of public benefit.
(5) The Authority shall not make a determination that a gift for the advancement of religion is not of public benefit without the consent of the Attorney General.".
I acknowledge that the automatic presumption of public benefit for religious gifts has been of concern for some Members throughout the debate on the Bill. The current wording of the Bill maintains the legal status quo as it restates a similar provision in the Charities Act 1961. However, there were some concerns that this provision might be abused by unscrupulous organisations that might present themselves to the new authority as being religious in nature while their real motivation might not be so respectable. There was also debate in the House during the previous Stage on religious cults.
On foot of legal advice and in consultation with other Departments, it has been decided to make the presumption of public benefit for religious organisations a rebuttable one. This means that the charities regulatory authority will in any case where concerns might arise have the right to request further information and clarification when a body applies for registration on the basis of advancements of religion, or, in other words, carry out a public benefit test. The legal advice to me was that it is not appropriate for the authority alone to make the determination that a religious organisation does not have a public benefit. Therefore, the consent of a higher authority, the Attorney General, who has a constitutional role as protector of the public interest, should be required. The further legal advice was that the decision made with the consent of the Attorney General should not be appealable to the charity appeals tribunal and the amendment reflects the legal advice.
From discussions on previous amendments, Deputies will be aware that I am introducing a provision whereby any organisation that currently enjoys a charitable tax exemption will be regarded as registered for the purposes of the Bill. Thus, this amendment will not affect existing legitimate religious charities, as it is not the Bill's purpose to impact negatively on them.
The Government amendment will enable the authority to pursue any concerns about a religious organisation, including those believed to be involved in the types of activity referred to in Deputy Wall's amendment No. 17. While that amendment is well-intentioned, it is not necessary in light of the broader scope provided for the authority under the Government amendment. I commend amendments Nos. 16 and 18 to the House.
In addressing amendment No. 17 to this issue, my colleague, Deputy Wall, was concerned about the original text on page 11, lines 23 and subsequent. He was particularly concerned about the loose language used in determining whether a gift is of public benefit. Subsection 3(5) states: "A charitable gift for the purpose of the advancement of religion shall have effect, and the terms upon which it is given shall be construed, in accordance with the laws, canons, ordinances and tenets of the religion concerned." This is a serious matter and one of the fundamental issues I mentioned in my early comments on Report Stage.
Subsection 3(5) means that, if one can get inside the definition of a religion, it automatically follows that one can draw up ordinances. I do not intend to waste time, but some of the bodies describing themselves as religions are oppressive, dangerous and in breach of human rights. The suggestion that they would be able to define their own structures is unacceptable.
It was to this matter that Deputy Wall addressed his amendment, the function of which was to include the provision "provided that for the purposes of this section, "religion" shall not include any organisation or cult which in the opinion of the Authority is primarily economic in nature or employs oppressive psychological manipulation of its adherents". None of the Deputies in the Chamber or those listening to us on radio would have a difficulty in identifying a qualifying body.
One must make a choice between the wording of Deputy Wall, on whose behalf I will move his amendment, and that of the Minister of State in amendments Nos. 16 and 18. My difficulty lies with the proposed clause (4) in amendment No. 16, which states: "It shall be presumed, unless the contrary is proved, that a gift for the advancement of religion is of public benefit." However, we will still be left with the definitional question. I appreciate that drafting in this regard is complex. We all respect the importance of religion and autonomy in describing practice and inviting people to accept principles of transcendence is a fundamental right of religion and religious diversity. I have no difficulty in this regard, but Deputy Wall has noted the fact that a body qualifying as a cult in terms of psychological manipulation and oppression can secure attachment of the economic assets and income of adherents and members.
The value of accepting amendment No. 17 over amendments Nos. 16 and 18 lies in the fact that the former clearly leaves the issue of religion intact while explicitly stating the exclusionary condition, which is important. I cannot accept amendment No. 16. I have made my case for amendment No. 17. While I realise that amendments Nos. 16 and 18 were an attempt by the Minister of State to address the issue raised on Second and Committee Stages, I will press amendment No. 17.
I agree with Deputy Higgins. It has proven difficult for the Minister of State to draft wording to address this issue properly. As Deputy Higgins stated, no one wants an organisation that supports a cult over human rights and uses charitable funding other than in the public interest to be a registered charity. While the Minister of State and the Department have tried to draft wording to address this issue, I am concerned that their amendments will not solve the problem. I support Deputy Higgins.
I agree with my colleagues in that we are all trying to address the same issue. While I will not dwell on it or the slight difference in opinions, I will make some specific points. The wording to which Deputy Higgins referred is derived from the Charities Act. The Government amendments are my efforts to deal with a specific problem.
It is important to bear in mind that we must strike a balance between supporting current charities without making the legislation overly cumbersome. Given that the majority of religious activities are charitable in nature, we must be careful not to place them under unnecessary burdens while protecting people from cults and so forth. We have seen to this in the rebuttable presumption of public benefit. It is open to the authority to challenge a religion on these grounds.
The issue is of concern to this side of the House as much as it is to my colleagues on the opposite side. Without going through the amendments' contents, the wording is a balance to ensure that life for existing religions is not made too difficult. We will press the two amendments.
Deputy Higgins has another two minutes in which to speak if he wishes to avail of them.
No, we are irreconcilable on this issue. We might as well proceed and dispose of the matter.
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Andrews, Barry.
- Andrews, Chris.
- Ardagh, Seán.
- Aylward, Bobby.
- Behan, Joe.
- Blaney, Niall.
- Brady, Áine.
- Brady, Cyprian.
- Brady, Johnny.
- Byrne, Thomas.
- Calleary, Dara.
- Carey, Pat.
- Collins, Niall.
- Conlon, Margaret.
- Connick, Seán.
- Cregan, John.
- Cuffe, Ciarán.
- Curran, John.
- Dempsey, Noel.
- Fahey, Frank.
- Finneran, Michael.
- Fitzpatrick, Michael.
- Fleming, Seán.
- Flynn, Beverley.
- Gallagher, Pat The Cope.
- Gogarty, Paul.
- Gormley, John.
- Grealish, Noel.
- Hanafin, Mary.
- Harney, Mary.
- Haughey, Seán.
- Healy-Rae, Jackie.
- Kelleher, Billy.
- Kelly, Peter.
- Kenneally, Brendan.
- Kennedy, Michael.
- Killeen, Tony.
- Kirk, Seamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lenihan, Brian.
- Lenihan, Conor.
- Lowry, Michael.
- McDaid, James.
- McEllistrim, Thomas.
- McGrath, Michael.
- McGuinness, John.
- Mansergh, Martin.
- Martin, Micheál.
- Moloney, John.
- Moynihan, Michael.
- Mulcahy, Michael.
- Nolan, M.J.
- Ó Cuív, Éamon.
- Ó Fearghaíl, Seán.
- O’Brien, Darragh.
- O’Connor, Charlie.
- O’Dea, Willie.
- O’Flynn, Noel.
- O’Hanlon, Rory.
- O’Keeffe, Edward.
- O’Rourke, Mary.
- Power, Seán.
- Roche, Dick.
- Sargent, Trevor.
- Scanlon, Eamon.
- Smith, Brendan.
- Treacy, Noel.
- Wallace, Mary.
- Woods, Michael.
- Allen, Bernard.
- Barrett, Seán.
- Broughan, Thomas P.
- Bruton, Richard.
- Burke, Ulick.
- Byrne, Catherine.
- Carey, Joe.
- Clune, Deirdre.
- Connaughton, Paul.
- Coonan, Noel J.
- Costello, Joe.
- Coveney, Simon.
- Crawford, Seymour.
- Creed, Michael.
- D’Arcy, Michael.
- Deasy, John.
- Deenihan, Jimmy.
- Doyle, Andrew.
- Durkan, Bernard J.
- English, Damien.
- Enright, Olwyn.
- Feighan, Frank.
- Ferris, Martin.
- Flanagan, Charles.
- Flanagan, Terence.
- Gilmore, Eamon.
- Hayes, Brian.
- Hayes, Tom.
- Higgins, Michael D.
- Howlin, Brendan.
- Kehoe, Paul.
- Kenny, Enda.
- Lynch, Ciarán.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McEntee, Shane.
- McGinley, Dinny.
- McGrath, Finian.
- McHugh, Joe.
- McManus, Liz.
- Mitchell, Olivia.
- Morgan, Arthur.
- Naughten, Denis.
- Noonan, Michael.
- Ó Caoláin, Caoimhghín.
- Ó Snodaigh, Aengus.
- O’Donnell, Kieran.
- O’Dowd, Fergus.
- O’Keeffe, Jim.
- O’Mahony, John.
- O’Sullivan, Jan.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ring, Michael.
- Sheahan, Tom.
- Sheehan, P.J.
- Sherlock, Seán.
- Shortall, Róisín.
- Stagg, Emmet.
- Stanton, David.
- Timmins, Billy.
- Tuffy, Joanna.
- Upton, Mary.
- Varadkar, Leo.
I move amendment No. 17:
In page 11, line 26, after "concerned" to insert the following:
", provided that for the purposes of this section, ‘religion' shall not include any organisation or cult which in the opinion of the Authority is primarily economic in nature or employs oppressive psychological manipulation of its adherents".
Amendments Nos. 16 to 18, inclusive, were discussed together and, effectively, amendments Nos. 16 and 18 are alternative to amendment No. 17. I will not divide the House on the amendment.
I move amendment No. 18:
In page 11, between lines 40 and 41, to insert the following:
"(8) There shall be no appeal to the Tribunal from a determination of the Authority to which subsection (5) applies.”.
Amendments Nos. 16 and 18 seek to address the issue which amendment No. 17 addressed. I remain convinced that amendment No. 17 was the better formulation and I ask the Minister of State, when bringing this legislation to the Seanad, to consider the arguments made. I do not want to call a vote for no reason as amendment No. 16 has been carried and amendment No. 18 is related. Amendment No. 17 sought to make a protection which is still necessary and I urge the Minister of State to carry that message back.
I ask those conducting conversations in the lobby to resume them outside if they wish. We cannot have them in the Chamber.
We considered the amendment and I will think about it again. I am convinced amendments Nos. 16 and 18 address the issue.
I move amendment No. 19:
In page 12, lines 3 and 4, to delete "in the community".
This amendment deletes the reference "in the community" as it was not considered necessary to have such a reference because all the purposes in section 3(8) must be of benefit to the community by definition.
I move amendment No. 20:
In page 12, between lines 10 and 11, to insert the following:
"(h) the advancement of environmental sustainability;”.
This amendment is principally to remove doubt that organisations which are engaged exclusively in the advancement of environmental sustainability on a not-for-profit basis should be regarded as charitable for the purposes of the Act.
Amendment No. 21 has already been discussed with amendmentNo. 14.
I move amendment No. 21:
In page 12, between lines 17 and 18, to insert the following:
"(l) the advancement of human rights, social inclusion, social justice and civic participation.”.
I move amendment No. 22:
In page 13, between lines 3 and 4, to insert the following:
"8.—This Act shall not apply to a trust the only property of which consists of—
(a) shares in a qualifying company established for the purposes of section 110 of the Taxes Consolidation Act 1997,
(b) shares in a company whose business consists solely of the leasing of plant and machinery, or
(c) dividends paid in respect of such shares that are not kept by the trust for more than 6 months.”.
Deputies will be aware that securitisation is a flagship industry that raises Ireland's profile among the international financial services industries globally. In recent years several major financial institutions have located in Ireland on the basis that Dublin is seen as an EU market leader in the securitisation area. Since Committee Stage it has been brought to my Department's attention by the Department of Finance that the current draft of the Bill could be interpreted in such a way as to oblige the type of charitable trust that is central to the way in which securitisation operates in Ireland to register with the new charities regulatory authority.
I understand a particular concern is that in such circumstances, a legal risk might be created with regard to these trusts and this risk could act as a very significant impediment to conventional securitisation activities. I am advised that securitisation represents an important funding mechanism for the domestic banking sector. If the effect of the Bill was to reduce the scope for using securitisation as a funding mechanism in Ireland, the domestic banks could find themselves at a competitive disadvantage vis-à-vis their foreign competitors. The ultimate result could be higher funding costs that are spread on to Irish customers.
The danger to the existing business is particularly important as it could have detrimental effects, not just on the 1,000 or so persons employed directly in securitisation in Ireland, but in employment in other parts of the international financial services industry here, as well as the wider economy. These effects would be higher costs for borrowing by businesses or persons taking out mortgages.
It was not the intention of the Bill to capture such activities or place the Irish financial services industry at any disadvantage to its competitors overseas, which might have the potential to lead to job losses in this country. Securitisation does not involve fund-raising from the public and the entities themselves are largely inactive for the duration of their existence. Members will be aware that in the current uncertain financial environment in particular, it is essential that established funding mechanisms continue to be fully available to financial institutions and no legal uncertainty is created regarding their usage. I accordingly propose this amendment.
The Minister of State is indicating banks and those bringing money into the country will be at a disadvantage if the amendment is not introduced. In what way would it affect the banks and how would the money be brought into the country? I do not understand why it is necessary to bring in the amendment. In what way can money be illegally brought to the country?
Securitisation involves an institution, such as a bank, selling non-liquid pools of assets such as mortgages or loans so as to create space on its balance sheet for new loans.
In a traditional securitisation transaction, an institution sells the assets to another company called a special purpose vehicle, SPV, which has been set up specifically to facilitate the transaction and which is legally independent from the originator. The money received from the sale enables the originator to make fresh loans, buy new assets or whatever. The funds to purchase the assets are raised by selling bonds or securities to investors such as pension funds, insurance companies etc. The income stream from the mortgages and loans is used to pay interest on the bonds and eventually to redeem them.
Securitisation allows financial institutions to raise finance at a rate generally cheaper than traditional borrowing. It allows them to convert assets that generate long-term income into cash that could be used for further activity, such as the making of new loans. It also can remove assets from the balance sheet, thus improving returns on debt or equity and reducing their capital requirements from a financial regulation perspective.
I understand that the use of charitable trusts in securitisation is based on commercial law considerations. For the securitisation process to work, the SPV must be independent. The directors of the SPV have a contract to perform a certain task, such as issue the bonds and pay money to the originator company, but the SPV cannot be a subsidiary or in any way affiliated to the originator company. One way used by many financial institutions to achieve this is to make the SPV wholly-owned by a charitable trust, the stated aims of which are to do nothing other than to own the SPV and to distribute any profits that might arise to the charity. The choice of charities to benefit from the trust is made by the SPV trustees.
Members will understand this is a complex financial mechanism that uses a charity base. It was not the intention of the charities legislation to address this financial institution and while the issue arose inadvertently from the drafting of the legislation, the consequences to the financial services industry are quite significant. I understand that approximately 1,000 direct jobs are affected by this.
I move amendment No. 23:
In page 13, line 27, to delete "5" and substitute "10".
This amendment arises from consultations with the Garda Síochána in the context of increases in the penalties and pertains to the maximum terms of imprisonment on conviction for an offence under legislation serving as a greater deterrent, especially for serious breaches. My Department has reflected on this matter in consultation with the Office of the Attorney General. We are satisfied the existing penalties on summary conviction are adequate. However, in the case of conviction on indictment, I propose to increase the maximum term of imprisonment from five years to ten years, which is broadly equivalent to the Criminal Justice (Theft and Fraud Offences) Act 2001. Although the ethos of the Bill remains a supportive one, it is important that it includes an adequate deterrent to discourage abuse of charities by unscrupulous individuals, particularly in respect of serious fraud, money laundering or terrorism.
I understand the penalties on summary conviction for those who break the law are 12 months in prison, a fine of €5,000 or both. The Minister of State and I both know that no judge will want to send someone to jail for 12 months when it might be more effective to pay a fine. I propose the fine amount should be increased from €5,000 to €10,000, as judges will not be inclined to send people to jail. However, such individuals would be hurt in their pockets. In the event of a serious offence, judges will implement the law well and will deal with those who must be dealt with. I ask the Minister of State to consider this proposal.
The Minister of State should indicate to Members what he would categorise as an offence that would merit either of these penalties. Does this pertain to the concern that many organisations, which may be cloaking themselves as charities, only provide minimal amounts of the sums they collect to the actual charity involved? Is this the type of offence that is envisaged? I refer to cases in which perhaps 5% of the sums collected go towards a charity and in which sharp practice might be implied. Is this the type of situation to which such offences will be applied?
One must realise the charities industry is very substantial. As a nation, we give a great deal of money to charities, as does the State. In particular, we are ensuring there is an appropriate penalty for serious fraud or embezzlement. It does not simply pertain to issues such as the percentage given in or whatever but to how a charity might be structured or run fraudulently or corruptly. This is the reason the more serious penalty is appropriate. Moreover, it mirrors the fines and penalties as laid out in the Criminal Justice (Theft and Fraud Offences) Act.
Deputy Ring made an interesting point in respect of the summary penalties of a fine of €5,000, as well as up to 12 months imprisonment. While I will not rule his proposal in or out, I will examine how it sits in comparison to similar items of legislation, as we did for the increased indictment penalty. If I deem the figure to be inappropriate, I will take the opportunity to amend the provision in the Seanad. However, I will examine it in the context of other legislation.
I thank the Minister of State.
For further clarity, in common with other householders, plastic bags are delivered to Members' doors on a regular basis from people who wish to collect clothes and similar items. There is some concern among the public that some of the organisations involved are not acting appropriately and that the clothes, shoes, books and so on that are being donated are not going to charities. Is this the kind of illegal practice that will be targeted by this type of legislation?
I will return to the specific issue raised by the Deputy because it was a source of a great deal of concern on both Second and Committee Stages. While this issue will be addressed, the provision under discussion has a wider application. As many of the so-called charities involved are not and will not be registered, they will be dealt with in a somewhat different manner and Members will come to the relevant amendment shortly. However, this amendment pertains to general provisions for any fraudulent or corrupt activity. These provisions are not specific to the issue raised by the Deputy, which will be dealt with in a few moments.
I move amendment No. 24:
In page 13, to delete lines 45 to 48.
I am advised this reference no longer is required since the enactment of section 177 of the Criminal Justice Act 2006.
Amendment No. 25 is in the name of Deputy Ring. As amendment No. 26 is a technical alternative, amendments Nos. 25 and 26 will be discussed together.
I move amendment No. 25:
In page 14, to delete lines 18 to 41 and in page 15, to delete lines 1 to 7 and substitute the following:
"(a) to establish and maintain a register of charitable organisations,
(b) to encourage, facilitate and monitor compliance by charities with the provisions of this Act, including by way of issuing (or as it considers appropriate approving) guidelines, codes of conduct, and model constitutional documents,
(c) to carry out investigations in accordance with this Act,
(d) to take remedial or protective action in relation to the findings of such investigations,
(e) to give information or advice, or to make proposals to the Minister on matters relating to the Authority’s functions,
(f) to do any other thing consistent with its responsibilities under this Act.”.
I tabled this amendment to avoid confusion. Charities are in favour of the regulator and welcome regulation, which has been sought for many years. People are pleased this Bill has at last been introduced. The Minister previously stated the Bill will be reviewed within five years. It is important to do so in case Members do not get the legislation right as this is the first time such legislation has been introduced in Ireland. It has been welcomed by all charitable organisations throughout the State.
As for the regulator, charities should be able to do their job. They should be able to raise the necessary funding that they should not be obliged to raise, were the State doing its job. The regulator's role is to regulate and ensure that everything is above board. It must ensure that charities produce annual accounts at the end of the year and are doing what they are meant to do. However, the regulator should not interfere with the administration and management of charities. While I do not object to the regulator providing advice to them, it should not be telling them how to run their businesses on a day-to-day basis. The charities should run their own affairs. The regulator's job is to intervene if a problem arises in how a charity is being run or if the law is being broken. It is not to interfere with them on a day-to-day basis, which is the reason I tabled this amendment.
I accept the comments made by Deputy Ring that the regulator should not be dealing with the charities on a day by day basis. However, at the outset, the charities expressed some concern that this process would be cumbersome. Consequently, much of what is being done in respect of the establishment and enactment of this legislation is to facilitate charities. There will be a bedding-in period and assistance will be offered to those charities in that context. The list of general functions outlined in the Bill is comprehensive and appropriate. I do not believe the acceptance of the amendment would improve the Bill. In fact, it places too strong an emphasis on the enforcement role over the supportive role and leaves out certain key functions of the authority. For those reasons, I do not propose to accept Deputy Ring's amendment.
The Government's amendment to section 13(1) is a technical amendment. It is considered that the role of the authority in regard to the management of the property of charitable organisations is already adequately provided for under section 13(1)(c).
How stands amendment No. 25, Deputy Ring?
I appeal to the Minister to be wary of putting too many regulators in place. People are concerned about the appointment of regulators with no powers and who are not answerable to the House. That is the one thing that concerns me. I had great difficulty convincing my party that we need another regulator because we are opposed to having too many regulators. I urge the Minister even at this stage to use an existing regulator rather than appointing a new regulator for this purpose. I would prefer if the Department took on the role.
If charities find themselves in difficulty, I urge the Minister to ensure the regulator does not overstep his or her role. That is not the purpose of the regulator. His or her purpose is to regulate charities and ensure they do the job they were set up to do. I tabled the amendment because it is not the job of the regulator to try to run the business of charities on a day to day basis. I will withdraw the amendment on the basis that the Minister will give me a commitment that the regulator's job is to regulate charities to ensure they collect money from honest, decent people and that the money goes to charity. The regulator should not tell charities how to do their business and that is the concern charities have.
I thank Deputy Ring for withdrawing the amendment. We will be working in close co-operation with charities during the bedding-in period over the first year or two. I remind the Deputy that a five-year review of the legislation is built into it. The emphasis of the legislation and the set up of the charities regulatory authority is intended to be easy for charities to use. That is evident in the specific provisions we have made throughout the legislation. We are not trying to be overly prescriptive. We are conscious that many of the charities involve a small number of people and we do not want the regulation to be a burden on them that detracts from their primary purpose.
I move amendment No. 26:
In page 14, line 37, to delete "of charitable trusts and the property".
Amendment No. 27 arises out of Committee proceedings while amendments Nos. 28 and 29 are related. Amendments Nos. 27 to 29, inclusive, may be discussed together.
I move amendment No. 27:
In page 18, line 44, to delete "2001" and substitute "2007".
Amendments Nos. 27 to 29, inclusive, are technical with the purpose of updating on the basis of legal advice the reference to employment legislation that pertains to any staff transferring in due course from the Office of the Commissioners for Charitable Donations and Bequests to the new charities regulatory authority.
I move amendment No. 28:
In page 18, line 47, to delete "1973 to 2001" and substitute "1973 to 2005".
I move amendment No. 29:
In page 18, line 47, to delete "1977 to 2001" and substitute "1977 to 2007".
I move amendment No. 30:
In page 26, between lines 18 and 19, to insert the following:
"(2) A once-off spontaneous collection to meet the needs of a specific community or personal tragedy or similar event which involves fundraising of not more than €50,000 over a period of not more than three months shall not require to be registered under this Act.".
I recently had a poignant example of what Deputy Wall intended in submitting the amendment on behalf of the Labour Party when the house of an elderly neighbour caught fire. A local community response was instigated and a number or residents went around from door to door to collect money to replace cookers and beds affected by smoke damage and to find an alternative house for the neighbour to rent. One could describe that as an act of neighbourliness or an act of charity. Under the proposed legislation, it would be described as an act of charity because money was collected for a specific purpose within a specific period that arose from a moment of need.
If the amendment is not accepted, a situation could arise under the requirements of the charities legislation that would prevent those neighbours who took that positive step from acting in the way they did. I worked in the voluntary sector for a number of years and I am aware that regulation sometimes inhibits organic, positive community actions. The amendment tabled by Deputy Wall provides for localised flexibility that would allow communities to take positive action in their areas to help people out on a one-off basis. I urge the Minister to support the amendment.
I support the amendment. People in this country are very decent and honourable and they look out for their neighbours. I have seen that in my constituency when serious tragedies occurred in the past. Collections were made when, for one reason or another, the State was unable to do the job it was required to do.
I agree with the thrust of the amendment. On Committee Stage we made a strong case and we were told that one-off collections would not be affected by the legislation. I hope that will be the case. That is important because one never knows when a problem will arise. I accept there may be concerns that one-off situations may run on and that they should be regulated, but in almost all cases when people collect money in order to do a good deed for their neighbour such problems do not arise. I am familiar with many such cases, for example, when a person had to go abroad for hospital treatment or, as Deputy Ciarán Lynch outlined, when someone's home burned down and he or she did not have house insurance and the State was not able to pick up the tab. Something has to be done in those circumstances. I support the Labour Party amendment.
I gave the amendment much consideration because a number of people raised the issue. The potential impact of the legislation on collections in aid of local or international tragedies has already been discussed on Committee Stage. The Bill does not change the current situation on spontaneous collections. What has applied up to now in regard to such collections will continue to apply. As it stands, spontaneous collections made within a workplace, an office or private club do not require a collection permit. However, I suggest that public cash collections have the potential to give unscrupulous people licence to defraud the public. People are entitled to know that their generous contribution to a spontaneous collection is properly accounted for, as is the case with a normal public collection that has a permit. The key point is that after the enactment, when whatever is collected has been handed over to a charity, the public will be in a much better position than it is currently to verify that the contribution goes towards the charitable purpose intended.
If accepted, the amendment would give rise to important questions such as how such a collection could be monitored and by whom and the very fact that a collection would be exempt and could be outside the remit of the Garda. If a collection is not monitored, how can we be sure it does not generate more than €50,000 or know how much is raised? In summary, the proposed amendment would overly complicate matters and as the Bill does not affect the current position in regard to such conditions, I do not propose to accept it.
I move amendment No. 31:
In page 26, line 22, after "Minister" to insert the following:
", provided that no fee shall be charged in respect of a small charitable organisation, being an organisation which comes within a threshold prescribed by the Minister".
The purpose of the amendment is to ensure an exemption from fees for small charitable organisations. As the section stands the authority is obliged to charge a fee to all organisations with no provision for any possible opt out.
We spoke strongly about this matter on Committee Stage. I thought we were given a commitment by the Government that the regulator would be paid for by the State and that under no circumstances would charities pay for the regulator or his or her staff; the State would pick up the tab. I would be disappointed if that were not the case. Charities are doing a job the State is not doing and we would not have them if everybody were well off. It would be very wrong if the regulator and his staff had to be paid for by charities themselves. I hope it will not be the case.
While I accept the points made, there is provision to enable the regulatory authority to impose fees. It is not obliged to do so. The advice to me stipulates it would be remiss not to include such an enabling clause, although it will ultimately be a matter for the Minister to make a decision should the authority request that the clause be invoked. I do not propose to provide in primary legislation that one category of charity be automatically exempted from this clause. I am not accepting the amendment.
I move amendment No. 32:
In page 26, line 28, to delete "A charitable organisation" and substitute "Subject to section 39, a charitable organisation”.
I move amendment No. 33:
In page 26, to delete lines 39 and 40 and substitute the following:
"(b) in the case of an application by, or on behalf of, a charitable organisation that—
(i) is established in the State,
(ii) is established in a state (other than an EEA state), or
(iii) is established in an EEA state and that has a principal place of business in the State,
specify the name of the charitable organisation and its principal place of business in the State,
(c) in the case of an application by, or on behalf of, a charitable organisation that—
(i) is established in an EEA state, and
(ii) does not have a principal place of business in the State, specify the name of the charitable organisation and its principal place of business in that EEA state,".
Amendments Nos. 34 and 78 are related and are to be discussed together.
I move amendment No. 34:
In page 28, to delete lines 6 and 7 and substitute the following:
"(o) contain such other information (if any)—
(i) as the Authority may reasonably require to enable it to perform its functions under this Act, and
(ii) as may be prescribed by regulations made by the Minister, and".
The Bill already specifies the information the organisations must provide at the time of application for entry onto the register of charities. However, it may be the case that the authority might consider it necessary, from time to time, to obtain additional information to help it make a determination, and this provision allows for that. Accordingly, amendment No. 34 enables the authority to request additional information at the time of application. Amendment No. 78 provides a similar power to the authority to request any additional information it needs at any time to enable it to fulfil its statutory role.
We do not want it to be like the planning process, whereby the planning authority seeks further information on the day planning permission is expected to be granted. We want people to be dealt with in a reasonable time once information is submitted. When an application is received by the regulator, necessary information should be sought within a very short period rather than at the end of the timeframe in which the application should be dealt with. I hope the Minister of State will deal with this. It is a matter of regulation and not of making it difficult for charities to do their jobs. I hope there will be a specified period in which applications must be dealt with, in addition to an appeals mechanism for applicants who want to appeal a decision.
While I accept the Deputy's point, I reiterate strongly that the emphasis of the Bill is not to make life difficult for charities but to facilitate them every step of the way. This should be evident from the amendment we made this morning, if nothing else, which deemed existing charities registered with the Revenue Commissioners to be transferred automatically to the new authority. One should not consider the requirement to provide additional information as awkward and a cause of trouble for charities. Rather, it is better that the regulatory authority seek additional information and give a charity that might have been remiss in submitting documentation an opportunity to comply rather than reject its application. The legislation is to facilitate such charities. While the legislation is substantial, it is not in any way intended to make the work of the charities more complicated.
Amendment No. 36 is a technical alternative to amendment No. 35. Amendments Nos. 39 and 40 are related and they are all to be discussed together.
I move amendment No. 35:
In page 28, to delete lines 9 to 11 and substitute the following:
"(6) Subject to subsections (7), (9) and (10) and section 39, the Authority may, as soon as practicable after it receives an application in accordance with this section, grant the application and enter in the register—”.
Government amendments Nos. 35, 39 and 40 are required for the removal of any doubt that only charitable organisations shall be entered onto the register of charities. Under the existing wording of the Bill, a possible interpretation could be taken that, once an organisation applies in the correct manner, it could be registered irrespective of whether it was charitable or not. These amendments remove any potential for non-charities to be entered onto the register.
Amendment No. 35 clarifies that an organisation may only be entered onto the register when certain conditions have been satisfied. Amendment No. 39 provides that the charity will only stand registered when the authority has performed its statutory functions under this subsection. Amendment No. 40 provides explicitly that applications from non-charities must be refused. It also requires the authority to notify applicants as to whether their application has been successful and of the right of appeal against a refusal to register by the authority.
Deputy Wall's amendment, No. 36, proposes to impose a set deadline on the authority making a determination to the charitable status of an organisation. It is too restrictive. The authority would be potentially subject to applications from across the EEA and beyond. While the authority would be required to expedite its business in a professional manner, there may be valid reasons an application might not proceed within the two months, for example, where additional information is requested and must be obtained from a charity based outside the jurisdiction. I expect most applications will be considered within a two-month period but the priority is that the authority be allowed adequate time to make the right decision and not be forced to make a premature one because of a statutory time limit. Therefore, I cannot accept amendment No. 36.
We cannot disagree with what the Minister of State is saying but we wanted to ensure that only genuine charities are registered. We do not want people to use a loophole in the law to avoid tax or collect money under false pretences. I welcome and support the provision in this regard.
I am concerned about the two month timeframe. There must be rules and regulations and charities should not be permitted to approach politicians stating the regulator has not dealt with their applications and that it is seeking further information. I feel strongly about this. The regulator's job is to regulate and assist charities, not to be a hindrance to them or prevent them from doing their job. I hope what the Minister of State proposes will work and that he will reassure me in this regard.
I move amendment No. 37:
In page 28, to delete lines 12 and 13 and substitute the following:
"(a) in the case of a charitable organisation that—
(i) is established in the State,
(ii) is established in a state (other than an EEA state), or
(iii) is established in an EEA state and that has a principal place of business in the State,
the name of the charitable organisation, its principal place of business in the State,
(b) in the case of a charitable organisation that—
(i) is established in an EEA state, and
(ii) does not have a principal place of business in the State,
the name of the charitable organisation and its principal place of business in that EEA state,".
I move amendment No. 38:
In page 28, line 14, to delete "premises" and substitute "premises (if any)".
I move amendment No. 39:
In page 28, to delete lines 24 to 26 and substitute the following:
"and a charitable organisation shall stand registered for the purposes of this Act upon the performance by the Authority of its functions under this subsection in relation to the charitable organisation.".
I move amendment No. 40:
In page 28, between lines 26 and 27, to insert the following:
"(7) The Authority shall refuse an application under this section unless it is satisfied that the applicant is a charitable organisation.
(8) Where the Authority makes a decision to grant an application under this section, it shall, as soon as may be thereafter, notify the applicant in writing of the decision.
(9) Where the Authority makes a decision to refuse an application under this section, it shall, as soon as may be thereafter, notify the applicant in writing of—
(a) the decision and the reasons for the decision, and
(b) the entitlement to appeal the decision under section 42(1).”.
I move amendment No. 41:
In page 28, line 29, to delete "charitable trust" and substitute "charitable organisation".
This is a technical amendment. The term "charitable organisation" is broader than "charitable trust" and is therefore more appropriate.
Amendments Nos. 42 and 45 form a composite proposal and may be discussed together.
I move amendment No. 42:
In page 29, to delete lines 14 to 45.
Amendments Nos. 42 and 45 are technical drafting amendments on foot of the advice of the Parliamentary Counsel. The original provisions have been moved for presentational purposes. It is considered that these provisions would sit better in their own section, coming after the sections dealing with registration and determinations of charitable status. There is no substantive difference to the original text, which makes it an offence to assist in the activities of a non-registered charitable organisation, save where the organisation has submitted a map location and is waiting a decision from the authority.
They are technical amendments and I agree with them.
Amendments Nos. 43, 68, 76 and 77 are related and may be discussed together by agreement.
I move amendment No. 43:
In page 29, after line 48, to insert the following:
"(17) The Authority shall, as soon as may be after the registration by it in the register of a charitable organisation that is a company, notify the registrar of companies in writing of such registration.".
These amendments were drawn up following discussions with the Department of Enterprise, Trade and Employment and the Company Registrations Office. I thank the Tánaiste and Minister for Enterprise, Trade and Employment, Deputy Coughlan, and officials from both bodies for their engagement in bringing this matter to a conclusion.
I am very aware of the importance in the sector of minimising the potential of dual reporting requirements for companies to the new charities regulatory authority. This legislation was consciously framed to avoid placing excessive, additional administrative burden on charities while ensuring that the new authority shall have adequate information to enable it to perform its statutory role. These amendments will collectively minimise as far as possible the potential for incorporated charities having to file the same document with two separate regulatory bodies.
In framing these amendments we have deliberately avoided interfering with company law which is wider and more complex than this Bill. However, the complexity of company law and the various exemptions that apply to certain categories of company means that it is theoretically possible that a very small number of incorporated charities may have to provide certain documentation to both bodies for a limited time. If such a scenario should emerge it has been agreed with the Department of Enterprise, Trade and Employment that any such anomalies would be fully addressed in the short term. All companies are required to prepare accounts under company law although some companies do not have to file the accounts with the CRO. An auditor's certificate is sometimes sufficient for certain categories of company.
Under these amendments the Companies Registrations Office will forward the company law annual return and any accounts information attached thereto that it receives from incorporated charities to the new authority, thus removing any potential additional burden for such charities. Any such charities that are exempt from attaching audited accounts to their annual return to the CRO will be required to attach these to their annual report to the authority, as will other non-incorporated charities. The new authority will, as of necessity, be particularly interested in the charitable activities of registered organisations which is not a subject of statutory interest to the register of companies. Therefore, all charities, irrespective of their legal structure, will be required to submit an annual report on their charitable activities to the new authority.
I am committed to prior consultation on the nature of these annual reports. I wish to be helpful and am hopeful that they can be structured in such a way as to ensure that small charities, in particular, are not over-burdened in this context. I reiterate that we will have prior consultation on the preparation of those reports.
I welcome the Minister of State's last comments. This issue was raised again on Committee Stage and we were very strong about it, particularly in the case of small charities. The less paperwork there is, the easier it is for such charities to operate. What we want is accountability and it is with that the Bill is concerned. We do not need over-regulation but we must have accountability.
I am pleased that other Departments and the Minister of State are concerned about this and that these charities will not be required to register with two or three different agencies. The smaller charities do not have the manpower or the resources to do so and the bigger charities do not want all that paperwork either.
I take the Minister at his word. It is important and I have heard him speak clearly on this today. He said that paperwork will be at a minimum and that is what we want. We had a long discussion on the matter on Committee Stage and we do not want to have over-regulation. That is what is going on in this country and people are sick and tired of regulation. There must be a certain amount of it but in this country we are over-regulated. We want accountability.
Regarding dual filing I am glad the Minister of State has spoken to the other Departments and agencies and that this will not be required except in cases where it is very necessary, for instance in respect of tax clearance certificates. That is acceptable.
I echo the comments made by Deputy Ring. I welcome the intent in the Minister of State's response that shows a common sense approach is to be taken here. Obviously, there are different kinds of charitable organisations. Some deal with millions of euro every year while others deal with tens and twenties of euro. The requirement to furnish annual reports is an easy task for a charitable organisation that has a bureaucracy in place. It is not so for voluntary organisations.
What is required here is a simple measurable means by which an organisation is virtually directed as to what information is needed when it furnishes its annual report. I am sure the Minister of State will take this point on board. In referring to an earlier amendment, the Minister of State said that it might be difficult for an organisation to go through the registration process because it does not facilitate enough information. It would be wise if the Minister took on board that, when looking for annual reports, depending on the size of an organisation, there might be a presciptive direction given to organisations. We look for articles of association, trading and simple bank accounts.
I move amendment No. 44:
In page 29, after line 48, to insert the following:
"39.—(1) A charitable organisation in respect of which—
(a) there was, immediately before the commencement of section 38, an entitlement to an exemption under section 207 or 208 of the Taxes Consolidation Act 1997,
(b) the Revenue Commissioners had issued a number (commonly referred to as a “CHY number”) for the purposes of such exemption, shall, subject to section 41, be deemed to be registered in the register for so long only as there continues to be an entitlement to such exemption.
(2) The Revenue Commissioners shall, in respect of a charitable organisation to which subsection (1) applies, provide the Authority with all such information relating to the charitable organisation as— (a) the Authority requests, and (b) is in its possession or procurement.
(3) The Authority may require a charitable organisation to which subsection (1) applies to provide the Authority with all or any of the information that that charitable organisation would be required to so provide if it were an applicant under section 38.
(4) A charitable organisation to which subsection (1) applies shall pay to the Authority such fee (if any) as may be determined by the Authority sufficient only to defray the costs incurred by the Authority in the performance of functions in relation to that charitable organisation under this section.
(5) The Authority shall, as soon as practicable after receiving information under subsection (2) or (3) in respect of a charitable organisation enter in the register—
(a) in the case of a charitable organisation that—
(i) is established in the State,
(ii) is established in a state (other than an EEA state), or
(iii) is established in an EEA state and that has a principal place of business in the State, the name of the charitable organisation, its principal place of business in the State,
(b) in the case of a charitable organisation that—
(i) is established in an EEA state, and
(ii) does not have a principal place of business in the State,
the name of the charitable organisation and its principal place of business in that EEA state,
(c) the address of each premises in the State at which it operates or carries on its activities,
(d) the names of the charity trustees,
(e) a number from which it will be possible to identify the charitable organisation (in this Act also referred to as the “registration number”),
(f) the objects of the charitable organisation or charitable trust concerned, and
(g) such other particulars as the Authority considers appropriate.”.
Amendment No. 45 was discussed already with amendment No. 42.
I move amendment No. 45:
In page 29, after line 48, to insert the following:
"40.—(1) Any person who—
(a) advertises on behalf of, or causes another person to advertise on behalf of, a charitable organisation that is not registered,
(b) invites, or causes another person to invite, members of the public to give money or property to a charitable organisation that is not registered, or
(c) accepts, or causes another person to accept, a gift of money or other property on behalf of a charitable organisation that is not registered,
(2) A charitable organisation that is a body corporate and is not registered shall be guilty of an offence if it—
(a) advertises, or causes another person to advertise on its behalf,
(b) invites, or causes another person to invite, members of the public to give money or other property to it, or
(c) accepts, or causes another person to accept, a gift of money or property on its behalf.
(3) This section shall not apply in respect of a charitable organisation to which subsection (4) of section 38 applies—
(a) during the period referred to in that subsection, or
(b) where the organisation has made an application under that subsection, during that period and any further period beginning on the expiration of the first-mentioned period and ending when the Authority notifies the charity trustees in writing of its decision in relation to the application referred to in that subsection.
(4) The charity trustees of a charitable organisation in respect of which there is a contravention of this section shall each be guilty of an offence.".
I move amendment No. 46:
In page 31, lines 1 and 2, to delete all words from and including "refuses" in line 1 down to and including "or" in line 2.
I move this drafting amendment which is required because appeals under subsection (1) of this section are now dealt with in the new appeal section that is the subject of another Government amendment, No. 56.
Amendment No. 47 was already discussed with amendment No. 8.
I move amendment No. 47:
In page 31, between lines 17 and 18, to insert the following:
"(c) contrary to public policy,”.
Amendments Nos. 49 and 56 are related and may be discussed together.
I move amendment No. 49:
In page 31, to delete lines 28 to 36.
These drafting amendments transfer certain appeal provisions that were previously spread throughout the Bill into a single section for ease of reference. They also give the right of appeal to the Minister against decisions of the authority to register a person. The Minister must normally lodge the appeal within 21 days. This was provided for on the basis of legal advice.
I move amendment No. 50:
In page 31, line 38, to delete "has ceased to be" and substitute "is not".
This is a technical amendment to section 40 for the purpose of clarity, in which the term "has ceased to be" is replaced with "is not". The term "has ceased to be" implies that the organisation was at one time a charitable organisation which may not have been the case.
Amendments Nos. 51 and 52 are related and may be discussed together.
I move amendment No. 51:
In page 32, to delete lines 1 to 6.
Amendment No. 51 deletes the existing provision under which the authority required an order from the High Court to remove incorporated charities from the register where the charity is convicted on indictment of an offence. On legal advice this is a latter amendment replaced by a new provision, subsection 10, under which the authority shall be in a position to remove a charity without recourse to the High Court. It is considered that this will allow the authority to remove such charities promptly and to help ensure the accuracy and integrity of the register. Amendment No. 52 is required purely in order to update the reference in other subsections.
I move amendment No. 52:
In page 32, lines 13 and 14, to delete all words from and including "If" in line 13 down to and including "or (8),” in line 14 and substitute the following:
"If, upon an application under subsection (8), the High Court”.
I move amendment No. 53:
In page 32, between lines 18 and 19, to insert the following:
"(10) If a registered charitable organisation that is a body corporate is convicted on indictment of an offence, the Authority may remove from the register all of the information entered in relation to that organisation, and that organisation shall, thereupon, cease to be registered.
(11) Where, in relation to a charitable organisation, the Authority is satisfied that there has been a contravention of—
(a) section 43, 44, 45 or 47, or
(b) a direction under section 45 or 46,
the Authority may remove from the register all of the information entered in relation to that organisation, and that organisation shall, thereupon, cease to be registered.
(12) If a registered charitable organisation fails to comply with a direction of the Authority under section 48, the Authority may remove from the register all of the information entered in relation to that organisation, and that organisation shall, thereupon, cease to be registered.”.
This amendment sets out specific circumstances under which the authority may remove an organisation from the register. A previous amendment deletes the existing provision under which the authority required an order from the High Court to remove incorporated charities from the register where the charities are convicted under indictment of an offence. On legal advice this is hereby replaced by a new provision, section 10, under which the authority shall be in a position to remove a charity without recourse to the High Court. It is considered that this will allow the authority to remove such charities promptly and help to ensure the accuracy and integrity of the register. The authority may also remove an organisation that fails to comply with the annual report, accounts or auditing requirements of the Bill or directions from the authority in regard to such matters. It would not be correct to continue to register an organisation that fails to comply with these fundamental provisions. In addition, the authority may also remove from the register any organisation that fails to comply with a request to provide information requested by the authority under the new section 48.
A serious issue must arise before a decision is taken to remove an organisation from the register. I am concerned about the recommitted amendments. While I am not a legal person, I hope they are in order and do not make it easy for the regulator or someone else to remove a charity from the register. This must only be done where serious offences or breaches in the law have taken place. Organisations should not be removed from the register on a technicality or because a Minister, Government or someone else does not like it. I seek reassurance from the Minister of State in that regard.
Charitable organisations should only be struck off the register for profound and identifiable reasons. If a charity which is struck off has a board of directors, will some form of tracking be used to ensure the organisation does not submit a new application to be included in the register under a different name? While I take on board Deputy Ring's concern to ensure organisations are not removed from the register on the basis of prejudice, if a rogue group operating on the pretext of being a charity is removed from the register, how will we ensure it is not included on the register again under a different guise?
On a general point, I reiterate that the purpose of the legislation is to support charities. However, the Government also acknowledges that the legislation regulates an area that has not previously been regulated. We have all referred to bogus and rogue operations which may or may not be charitable. If the legislation is to be effective in this regard, it must include provisions to deal with such bodies. Without dwelling on the issue in detail, removal from the register is not the only sanction available in the legislation. If less important issues arise with regard to charities, section 67 makes intermediate sanctions available.
On a previous point about allowing the authority a longer period to access information, the purpose of virtually all the provisions of the legislation is to assist the authority in dealing with charities in an equitable and fair manner, as opposed to striking them out or making life difficult for them. Nevertheless, the authority must have available to it the sanction of striking off a charity in the event that it is engaging in criminal activity or a criminal conviction is secured. However, striking out charities will not be the norm and intermediate steps are available for other breaches.
I move amendment No. 54:
In page 32, line 20, to delete "subsection (7) or (8)” and substitute “subsection (8) or (10)”.
This is a purely technical amendment proposed on the advice of the Office of the Attorney General. The provision prevents a charity which has been removed from the register of charities from applying again for charitable status before the expiration of one year or such shorter period as the Minister may determine.
I move amendment No. 55:
In page 32, between lines 29 and 30, to insert the following:
"41.—(1) Where the Authority, after consultation with the Garda Síochána, is of opinion that a body that is deemed to be registered in the register by virtue of section 39 is or has become an excluded body by virtue of its promoting purposes that are—
(b) contrary to public morality,
(c) contrary to public policy,
(d) in support of terrorism or terrorist activities, or
(e) for the benefit of an organisation, membership of which is unlawful,
it shall by notice in writing inform the body that it is no longer deemed to be so registered.
(2) Where the name of a charitable organisation that is deemed to be registered in the register by virtue of section 39 is changed in contravention of section 39(2), the Authority shall by notice in writing inform the charitable organisation that it is no longer deemed to be so registered.
(3) If a body corporate that is deemed to be registered in the register by virtue of section 39 is convicted on indictment of an offence, the Authority may, by notice in writing, inform the body that it is no longer deemed to be so registered.
(4) Where, in relation to a charitable organisation that is deemed to be registered in the register by virtue of section 39, the Authority is satisfied that there has been a contravention of—
(a) section 43, 44, 45 or 47, or
(b) a direction under section 45 or 46,
the Authority may by notice in writing, inform the charitable organisation that it is no longer deemed to be so registered.
(5) If a charitable organisation that is deemed to be registered in the register by virtue of section 39 fails to comply with—
(a) a requirement of the Authority under section 39(3), or
(b) a direction of the Authority under section 48,
the Authority may by notice in writing, inform the charitable organisation that it is no longer deemed to be so registered.
(6) Upon the service of a notice under this section, the body to whom it applies shall cease to be registered in the register.
(7) Where the Authority is of opinion that a body that is deemed to be registered in the register by virtue of section 39 is not a charitable organisation, it shall apply to the High Court for a declaration that the body is not a charitable organisation.
(8) If the High Court, upon an application under subsection (7), grants a declaration that the body in respect of which the application is made is not a charitable organisation, the body shall cease to be deemed to be registered in the register.
(9) If a charity trustee of a body that is deemed to be registered in the register by virtue of section 39 ceases to be qualified for the position of charity trustee by virtue of section 49, the Authority may apply to the High Court for an order authorising the Authority to declare that the body is no longer deemed to be so registered, and, upon such an application, the High Court may make such an order if it considers it appropriate in all of the circumstances.
(10) Upon the making of a declaration pursuant to an order under subsection (9), the body to which the declaration applies shall cease to be deemed to be registered in the register.
(11) A body to which a declaration referred to in subsection (8), or a declaration pursuant to an order under subsection (9), applies shall not, before the expiration of one year, or such shorter period as the Minister may determine, from the date of the declaration be eligible to apply to be registered, and the Authority shall not, before such expiration, perform any functions in relation to that organisation under section 38(6).
(12) Where, in accordance with this section, a body ceases to be deemed to be registered in the register, the Authority shall—
(a) subject to paragraph (b), remove any information in the register relating to the body, and
(b) enter in the register a statement that the body has ceased to be deemed to be a registered charitable organisation and a statement of the reasons therefor.”.
I move amendment No. 56:
In page 32, to delete lines 30 to 44 and substitute the following:
"42.—(1) A person whose application under section 38 is refused by the Authority may appeal the refusal to the Tribunal, not later than 21 days, or such longer period as the Tribunal may, for good and sufficient reason, determine, after service on the person of a notification in writing of the refusal by the Authority.
(2) A person who has been removed from the register in accordance with subsection (1), (2), (10) or (11) of section 40 may appeal the decision to remove the person from the register, not later than 21 days, or such longer period as the Tribunal may for good and sufficient reason determine, after service on the person of a notification in writing of the decision by the Authority.
(3) A body that, in accordance with subsection (1) or (2) of section 41, is no longer deemed to be registered may appeal the notice referred to in that subsection, not later than 21 days, or such longer period as the Tribunal may for good and sufficient reason determine, after service on the person of the notice.
(4) A body that, in accordance with subsection (7) or (8) of section 41, is no longer deemed to be registered may appeal the notice referred to in that subsection, not later than 21 days, or such longer period as the Tribunal may for good and sufficient reason determine, after service on the person of the notice.
(5) The Minister may appeal a decision of the Authority to register a person under section 38, not later than 21 days, or such longer period as the Tribunal may, for good and sufficient reason, determine after the person is so registered.
(6) Upon an appeal under subsection (1), the Tribunal may make a determination —
(a) requiring the Authority to register the appellant in the register, or
(b) affirming the decision of the Authority.
(7) Upon an appeal under subsection (2), the Tribunal may make a determination—
(a) requiring the Authority to restore the appellant to the register,
(b) requiring the Authority to restore the appellant to the register subject to such conditions as the Tribunal may specify, or
(c) affirming the decision of the Authority.
(8) Upon an appeal under subsection (3) or (4), the Tribunal may—
(a) revoke the notice under section 41,
(b) revoke the notice under section 41 subject to such conditions as the Tribunal may specify, or
(c) affirm the decision of the Authority.
(9) Upon an appeal under subsection (5), the Tribunal may make a determination—
(a) granting the relief sought by the Minister, or
(b) affirming the decision of the Authority.
(10) The Authority shall comply with a determination of the Tribunal under this section.".—
Amendments Nos. 58 and 59 are technical alternatives to amendment No. 57 while amendment No. 60 is related. Amendments Nos. 57 to 60, inclusive, may be discussed together.
I move amendment No. 57:
In page 32, to delete lines 47 to 50 and substitute the following:
"(2) A body (other than a registered charitable organisation) that, in any notice, advertisement, promotional literature or any other published material, describes itself or its activities in such terms as would cause members of the public to reasonably believe that it is a charitable organisation shall, subject to subsection (6), be guilty of an offence.”.
Section 42 makes it an offence for charitable organisations which are not registered to hold themselves out as a charity. Concerns were raised on Committee Stage as to whether this section was adequate to address practices such as door to door collection of second-hand clothes and bric-a-brac which are a concern to many people. The Department has received numerous complaints from members of the public concerning such collections, with which Deputies will be familiar. While it will be within the remit of the regulatory authority to make members of the public aware of how to determine the veracity of organisations which may ostensibly appear to be charities, this power, by itself, was not sufficient.
The current provisions state that referring to an organisation when it is not a charity is an offence. In practice, however, such organisations are careful not to refer to themselves as charities. Nevertheless, they may convey a false impression through the language used in their promotional literature. Therefore, having consulted the Office of the Attorney General, I propose amendment No. 57 to make it an offence to cause members of the public to reasonably believe that an organisation is a charity, irrespective of the terminology used by the organisation in leaflets, etc. This amendment strengthens the existing provision and greatly limits the scope for non-charitable organisations to suggest to members of the public that they are charitable in nature. This will, in turn, help members of the public to distinguish between genuine charitable collections which are not profit-based and non-charitable collections and make informed decisions about which collections they choose to support.
Deputies Wall and Ring have suggested alternative approaches in amendments Nos. 58 to 60, inclusive. However, the formula I have developed in close consultation with the Office of the Attorney General addresses this issue more satisfactorily. Accordingly, I propose amendment No. 57.
I am pleased the Minister of State has gone a long way on the issue of clothing collections. RTE will this week broadcast a programme on these types of collection. It is a scandal that people, in their generosity, place clothes outside their homes in the belief that they will be collected by a charity whereas the recipients, businesses in eastern Europe, are making millions of euro from the practice. I am pleased the amendment will make it an offence for organisations which are not deemed to be charities to give an impression that they are charities in material delivered to homes. I hope this law will be enforced.
I have never encountered such annoyance and aggravation as I have on this issue. People have washed and cleaned clothes in the belief that they were destined to a charity only to find they are destined for thugs and criminals who are making a great deal of money out of what is big business.
I am disappointed the Minister of State did not deal specifically with mass cards. When people buy mass cards signed by a priest in shops or from individuals, they do so believing they are supporting the church. Instead, it is not clear where the money goes. The religious orders have found that in many cases the signatures on mass cards purport to be those of priests who are dead. This practice is wrong and needs to be stopped. The Minister of State or his officials will probably argue the matter is one for the church. They have informed me, for example, that it is difficult to deal with the issue in legislation. It should be addressed because it is wrong that people are paying good money in the belief that they are supporting a charity or the church when, in some cases, we do not know where the money is going.
I hope the Minister of State will discuss this issue with the Attorney General before resubmitting these amendments to the Seanad. Perhaps it will be possible to draft legislation with the assistance and support of the church, which is also annoyed about the practice. When people pay for a mass card, they hope a mass will be said. In some cases, we do not know who signed the card, whether the priest named on it is alive or whether the mass will ever be said. People are generous and decent and want to support the church and charities but this issue annoys them. I am disappointed the Minister of State was unable to address the issue. However, I support the amendment on clothes which I hope will deal with the cowboys, of whom we have many.
I shall respond to the two amendments as well and begin by welcoming the Minister's amendment which is long overdue. There are two types of robbery for which people are committed. One gets robbed blindly, unknown to oneself, and one is robbed in the course of doing something only to discover one is doing something else one never intended. In the latter situation, there is a particular violation where people believe they are being charitable and find they are being conned. It is quite upsetting because essentially it is a robbery of a person's goodwill, quite apart from the possession he or she will have lost.
Ireland's reputation for giving is one of the things of which we can be very proud. In the midst of the last great depression experienced in this country in 1985 when the Live Aid concerts took place, Ireland was the highest per capita donor to that programme. I was living abroad at the time, like many of my generation all over the world in different countries, watching the Live Aid concerts. It made us feel very proud how much money Ireland had given to the Live Aid project. This is something that is innate in us. Even as we enter another depression, we can be sure that level of charity and goodwill will continue. I welcome specifically both the intent and outcome of the Minister’s amendment to this Bill.
As regards Deputy Ring's amendment, that is a unique Irish action, the granting and usage of mass cards. Ironically, it is something the Catholic Church regulates quite extensively. One cannot get a card signed in every church and not every priest can sign a card. I believe papal permission must be granted before a priest may engage in this and only certain religious orders have it. The Catholic Church has been very mindful of the whole practice of having mass cards signed.
It has been reported that "signed" mass cards are now available in petrol stations. One can get €20 of petrol and a signed mass card going out the door. Surely that is something the Minister should be looking at. I question the practice of buying mass cards in such a fashion, because in the event, people are knowingly complying with a very deceptive practice. There is a particular context in which mass cards operate, as a charity, however, because much of the money collected goes to India and other overseas missions. It is for particular religious orders which provide a strong charitable service in the local communities and missions abroad. Obviously, Deputy Ring's amendment will not be passed, but I ask the Minister of State to give this further consideration when it moves onto the next stage.
I support the Minister's amendment in relation to these activities involving the collection of clothes etc. We are very fortunate to have people in our community who give their time voluntarily working in cancer support shops and other places without reward and who collect clothes from households and so on. Anybody who is doing things that damage such charities needs to be put off the road — and I mean put off the road. I hope the penalties involved in this will be sufficient to make certain that it becomes less attractive for people to break the law as a result of the passing of this legislation.
We have spent a great deal of money over the years trying to deal with the Traveller problem, getting children off the street. In the middle of winter in the 1970s and 1980s one saw unfortunate little children sitting beside their mothers on the street. We spent a fortune and got to the stage where that does not happen in that community, by and large, any more. However, it has been replaced, unfortunately, by some ethnic groups which are involved in these scams. What annoys me most is that in some instances, not alone do they have children delivering notices about a collection the following Friday, but they have their unfortunate wives sitting on cold streets with babies collecting money without any sign or light of the male members of the family. These women are dropped at different locations early in the morning and picked up in the afternoon. The same people are involved in these scams and I am very pleased the Minister is at long last doing something about this.
It should be a message that this society, through the supplementary welfare allowance scheme, deals with people who do not qualify for benefits, where there is a need to support children and feed them. That system is still in place despite our difficulties and that is why the health authorities, through the HSE, have officers to help people in need of assistance. One sees young children being used to deliver these leaflets and their younger siblings sitting beside the mothers in the middle of winter, freezing cold, and not a sign of the fathers in all of this. They are the people organising the scams in particular, so I am very pleased to see this amendment. It will do so much to encourage more volunteers into these genuine charitable shops such as those of the Irish Cancer Society, Oxfam, UNICEF and many others. We are only too pleased to support these organisations which do tremendous work on a voluntary basis.
I am very sorry the Minister of State has not supported my colleague, Deputy Ring's amendment. This is another situation that needs to be sorted out and here is an opportunity to do this. We will not get an item of legislation again that can deal with this issue. The fact that Deputy Ring tabled the amendment — I have been lobbied as well — shows there is great concern in the community about this issue. It is not going to cost anybody any money. This is only going to ensure that genuine people who pay their money to have masses said whether for an anniversary, the death of a close relative, a friend or whatever are guaranteed the money they pass over will ensure the masses are said. This reflects the Roman Catholic community. I appreciate that is the only community which is involved in this, but it is important. I am a member of the Roman Catholic community and like to see a mass card being handed to a relative in an hour of need. It is great comfort to people.
To think that people have got to the stage of selling these in shops and garages and handing them out with €15 of petrol is horrifying. It is totally disrespectful to the whole concept of a mass being said for a deceased person. I suggest to the Minister of State that there is an easier way to solve this problem. One should not be allowed to purchase a mass card from anybody other than a priest who would sign it in ink, or from a church or an office attached it. If I go into Clarendon Street church, for example, there is an office there and I know that if I purchase a mass card the community there will say the mass. This is equally true of the Holy Ghost fathers, for example. An amendment can be framed which will solve this problem. It will not make it inconvenient for people to purchase a mass card. It is not too difficult to either go to a church where there is an office or else the mass card should be signed in ink by a priest. If it is stamped in an office attached to a church, that is for convenience, but one knows the mass will be said. God help us all, however, if we go as far as the selling of mass cards as a commercial operation. I appeal to the Minister of State, even at this late stage, if he has to go back to the Seanad with the legislation, to consider drafting an amendment such as the one put forward by Deputy Ring. I have put forward my ideas, which I believe are workable. We should deal with the issue once and for all now that we have the opportunity through this legislation. It would be a shame to lose this opportunity.
I thank the Members opposite for their comments. Deputy Lynch mentioned this long-awaited amendment. Amendment No. 57 was a long-awaited amendment because it was difficult to deal with the issue and there was much discussion, backwards and forwards, with regard to how to police something that is unregulated. I acknowledge there was a long wait. We consulted extensively on the matter and got much legal advice. It did not prove easy to come up with this formula.
The issue of bogus collections is something that exercised Members both here and on Committee Stage. The issue is that those doing these collections are not charities and are not saying they are charities and they would not, therefore, fall under the remit of the legislation. The approach we took is that they need not say they are a charity, but if they give the impression they are a charity through their literature and the style of what they are doing, they can be found guilty of an offence. This approach allows this amendment and I am glad it is being accepted on all sides.
With regard to the issue of mass cards, it did not prove possible, having regard to the legal advice to the Department, to include specific provisions with regard to the sale of mass cards in shops. If the Deputy wants me to have another look at the issue and to refer it again to the legal expertise in advance of taking it to the Seanad, I will do that. However, I have been given legal advice on the issue and do not expect significant change.
I wish to make a further point. We need to make a distinction between selling mass cards and what is happening on the other side. The sale of the card is a normal transaction, but if it gives the impression that it is for a charitable cause, it may fall under the same part of the legislation as door to door collection. Therefore, if the mass card sale is designed in such a way that the funds being paid go to a charity, it may also fall under the same provisions as for door to door collections.
In terms of the Deputy's specific request, I will not promise we will make a change, because we have had extensive consultation. However, I will ask the legal people to have a look at it one more time before it goes to the Seanad. I will do that for the sake of completeness and bearing in mind the contributions made here. I assure the House, if it was an easy thing to do and if we had found an appropriate form of words that would satisfy all legal advice, the provision would be included. I am as anxious as anybody else the issue should be addressed, but unfortunately, it was not.
Deputy Ring asked whether we had been in contact with the church. The Department has been in contact with the church on the issue. It is doing a public awareness campaign, led by Bishop Colm O'Reilly, encouraging the public not to support the buying of mass cards in petrol stations and whatever. Unfortunately, we cannot accept the amendment.
I welcome the promise that the Minister of State will return to the Attorney General to see if there is any way to cover the issue. Deputy Barrett covered the issue well and got to the nub of the matter. The church has a role to play. We need to take the Del Boys out of the sale of mass cards. I agree with the Minister. We are not complaining about the shops, but about people paying for a mass that is not being said. The church has a role to play and it must be stronger about saying to congregations that they should only buy cards that are signed by priests they know.
Deputy Barrett got to the nub of the matter. Mass cards should only be signed on the day people pay for it and should be signed by a priest they know. We should stop the Del Boy situation where people sell signed mass cards to shops that then sell them on to customers and nobody knows whether the masses are ever said. That is an abuse of the church. I am glad the Department was in contact with the bishops and am delighted Bishop O'Reilly and the church will come out strongly on this. It is not right that people pay money under false pretences. The situation is similar to that with the collection of clothes. I am glad the Minister of State intends to get further advice on the issue. I welcome that and hope he brings forward the necessary amendment to deal with this when he brings the legislation to the Seanad.
I accept the comments made by Deputy Ring. While I will refer the mass card issue again to legal advice, it has already gone through extensive legal advice without making the type of progress the Deputy seeks. However, I will seek legal advice on the issue again before the Bill goes to the Seanad.
I move amendment No. 60:
In page 33, between lines 6 and 7, to insert the following:
"(5) A person or body who—
(a) holds themselves or another person or body (whether or not such a body is established under law or not),
(b) implies that such persons or such body,
is acting or has acted in furtherance of charitable purposes as defined in this Act, whether or not the word "charity" or any derivation of same is used in connection with such person or body, without having been registered under this Act shall be guilty of an offence where the Authority is satisfied, on the balance of probabilities, that such persons or body are not acting in furtherance of any such charitable purposes.".
Amendments Nos. 61, 62 and 63 are related and will be discussed together.
I move amendment No. 61:
In page 33, to delete lines 14 to 16 and substitute the following:
"(6) It shall be a defence to proceedings for an offence under subsection (3) for the defendant to prove that—”.
The amendments to this section are technical amendments that are required in the context of the charitable organisations from EEA areas not having a principal place of business in the State. If we did not make these amendments, such charities might have been committing an offence.
I move amendment No. 62:
In page 33, line 24, to delete "out" and substitute "on".
I move amendment No. 63:
In page 33, to delete lines 26 and 27 and substitute the following:
"(e) the notice, advertisement, promotional literature or other published material containing the description of which the offence is alleged to consist also contains a statement as to its place of establishment.”.
Amendments Nos. 64 to 67, inclusive, are related and will be discussed together.
I move amendment No. 64:
In page 35, line 22, to delete "of a requirement".
These are drafting amendments, proposed on the advice of the Office of the Attorney General in relation to section 43, which deals with the duty to keep proper books of account. Amendment No. 64 deletes a phrase that I am advised was unnecessary. Amendment No. 65 is a technical amendment for the purpose of clarity in which the word "person" is replaced with "person (other than the defendant)" and provides for keeping proper books of accounts. Amendment No. 66 is purely a technical amendment proposed on the advice of the Office of the Attorney General. I proposed this amendment to give clarity to line 25 on page 35, by replacing "that requirement" with "this section". Amendment No. 67 is also a technical amendment, for the purpose of clarity, in which the words "the contravention of a requirement under this section" are replaced by "a contravention of this section". These amendments do not effect any substantive change to the provisions of the section.
I move amendment No. 65:
In page 35, line 24, to delete "person" and substitute "person (other than the defendant)".
I move amendment No. 66:
In page 35, line 25, to delete "that requirement" and substitute "this section".
I move amendment No. 67:
In page 36, line 11, to delete "the contravention of a requirement under this section" and substitute "a contravention of this section".
I move amendment No. 68:
In page 36, between lines 17 and 18, to insert the following:
"45.—The registrar of companies shall, as soon as practicable after receiving the annual return of a company in respect of which it has received a notification under section 38(17), give a copy of that annual return and copies of all documents annexed to the annual return to the Authority.”.
Amendments Nos. 69 and 72 to 75, inclusive, are related and may be discussed together by agreement.
I move amendment No. 69:
In page 36, lines 21 to 23, to delete all words from and including "person" in line 21 down to and including "auditor," in line 23 and substitute "qualified person".
These amendments introduce the definition of "qualified person" for the purposes of the section. A qualified person may be a qualified auditor in this jurisdiction or the equivalent elsewhere. This will, for example, allow the authority to appoint an auditor from a different jurisdiction to audit a charity based in that jurisdiction which does not have a place of business in Ireland, where the charity in question has failed to comply with the audit or examination provisions of the legislation. These amendments will enhance the ability of the authority to fulfil its monitoring and supervisory role, irrespective of the location of the charity.
Charities based outside this jurisdiction will have to maintain some sort of facility here before they can be regulated. How does the Minister of State propose to regulate such charities? As I am aware that similar legislation has been introduced in Scotland and England, I ask whether he has consulted his counterparts in these jurisdictions.
Charities based outside this State fall into two groups, namely, those based in the EEA and those based elsewhere. We co-operate with other EU member states to ensure charities based elsewhere in the EEA do not have to maintain residence in Ireland. However, charities based in locations outside the EEA will have to maintain a presence here.
Amendments Nos. 70 and 71 are related and may be discussed together by agreement.
I move amendment No. 70:
In page 36, line 31, to delete "exceeds €100,000" and substitute "exceeds such amount as may be prescribed".
In the Bill as currently drafted, audit requirements depend on whether a charity's annual income or expenditure exceeds €100,000. The proposed amendment will provide for an audit threshold range in order to allow the new authority to match the audit threshold with the rates applied by the Revenue Commissioners. Concerns have been raised on Committee Stage that future changes in auditing levels would have to be done by way of amendment to the legislation. As this would clearly be cumbersome, it is proposed to make the audit threshold for charitable organisations variable by regulation up to a limit of €500,000.
What does that mean in English?
We are trying to ensure ease of compliance with reporting requirements. At present, the information on expenditure is the same as what charities would provide to the Revenue Commissioners. We want to avoid a situation arising whereby the Revenue figure increases to €200,000 while the figure in this legislation remains the same because this would complicate reporting requirements. The amendment would afford us the opportunity to vary our limits to match others without introducing amending legislation.
I move amendment No. 71:
In page 36, between lines 31 and 32, to insert the following:
"(2) The Minister shall not prescribe an amount under subsection (1) greater than €500,000.”.
I move amendment No. 72:
In page 36, line 40, to delete "a person referred to in subsection (1)” and substitute “a qualified person”.
I move amendment No. 73:
In page 36, line 46, to delete "a person referred to in subsection (1)” and substitute “a qualified person”.
I move amendment No. 74:
In page 37, to delete lines 1 to 7 and substitute the following:
"(4) Where there has been a contravention of subsection (1) or the Authority is not satisfied with the manner in which the accounts of a charitable organisation to which that subsection applies have been audited, the Authority may appoint such qualified person as it considers appropriate to audit the accounts concerned.
(5) Where there has been a contravention of subsection (2) or the Authority is not satisfied with the manner in which the accounts of a charitable organisation to which that subsection applies have been examined or audited, as the case may be, the Authority may appoint such qualified person as it considers appropriate to audit the accounts concerned.”.
I move amendment No. 75:
In page 37, between lines 42 and 43, to insert the following:
"(13) In this section "qualified person" means—
(a) a person who, in accordance with section 187 of the Companies Act 1990, is qualified to be appointed as a company auditor, or
(b) in relation to a charitable organisation that—
(i) is established in an EEA state, and
(ii) does not have a principal place of business in the State,
a person who is qualified under the law of that EEA state to perform functions the same as or similar to those performable in the State by a person referred to in paragraph (a).”.
I move amendment No. 76:
In page 38, to delete lines 36 and 37 and substitute the following:
"(3) The following shall be attached to an annual report submitted by a charitable organisation (other than one that is required to annex its accounts to the annual return made by it to the registrar of companies under the Companies Acts) in accordance with this section:".
I move amendment No. 77:
In page 39, to delete lines 3 to 11 and substitute the following:
"(4) (a) A copy of the accounts prepared by a charitable organisation in accordance with the Companies Acts shall, in respect of the financial year concerned, be attached to an annual report submitted by that charitable organisation in accordance with this section.
(b) This subsection applies to a charitable organisation that—
(i) is a company, and
(ii) is not required to annex its accounts to the annual return made by it to the registrar of companies under the Companies Acts.".
I move amendment No. 78:
In page 39, between lines 19 and 20, to insert the following:
"48.—(1) The Authority may, by direction in writing, require a charitable organisation to provide the Authority with such information as it may reasonably require to enable it to perform its functions.
(2) A charitable organisation shall comply with a direction under this section.".
I move amendment No. 79:
In page 41, to delete lines 39 to 43 and substitute the following:
"53.—(1) Where, in the course of, and by virtue of the carrying out of, his or her duties in relation to a charitable organisation, information comes into the possession of a relevant person that causes him or her to form the opinion that there are reasonable grounds for believing that an offence under the Act of 2001 has been or is being committed, the relevant person shall, as soon as may be, notify the Authority in writing of that opinion and provide the Authority with a report in writing of the particulars of the grounds upon which the opinion was formed.".
The original wording of this subsection required a relevant person, including an auditor or trustee, to report offences or suspected offences to the authority irrespective of how or in what context such a person had reasonable cause to believe that an offence was being committed. I consider that the original provision placed an unreasonable burden on individuals. Even where a person formed such a view based on something overheard in a non-work context, such as a social gathering, he or she would be guilty of an offence if it is not reported to the authority. The obligation to report provision will now only apply to a scenario in which the relevant person receives information as a direct consequence of carrying out his or her duties and which leads to the formation of a view that an offence is being committed.
I welcome this amendment, which we discussed on Committee Stage. It is difficult these days to get people to volunteer with charitable organisations and the original provision put too much pressure on volunteers. People who hear of a matter while having a few drinks in the pub should not be expected to report to the Garda or the authority. This is a wise amendment.
Amendments Nos. 80 and 81 are related and may be discussed together by agreement.
I move amendment No. 80:
In page 49, line 39, to delete "proved" and substitute "shown".
These are technical amendments pertaining to annual audits and were proposed on the advice of the Office of the Attorney General.
I move amendment No. 81:
In page 49, line 40, to delete "admissible in".
I move amendment No. 82:
In page 51, to delete lines 28 and 29.
I move amendment No. 83:
In page 54, line 30, after "public" to insert the following:
", unless the Tribunal decides, where it considers that in the particular circumstances of a case it is appropriate to do so, to conduct proceedings in private".
Does amendment No. 83 deal with the sealing of collection boxes?
That is fine. I just wanted clarification.
I move amendment No. 84:
In page 58, between lines 13 and 14, to insert the following:
"82.—(1) A charitable organisation may enter into an agreement (in this section referred to as an "agreement") with a relevant person for the provision by the relevant person of a service to, or on behalf of, the charitable organisation in consideration of the payment to the relevant person out of the property of the charitable organisation of such sum or sums as may be specified in the agreement or as may be determined in accordance with the agreement.
(2) An agreement shall be in writing.
(3) Any sum or sums payable to a relevant person under an agreement shall not exceed what is reasonable and proportionate having regard to the service provided by the relevant person pursuant to the agreement.
(4) Subject to subsection (5), a charitable organisation shall not enter into an agreement unless the charity trustees of the charitable organisation, other than any charity trustee who—
(a) will provide a service under the agreement,
(b) provides a service under an agreement other than the agreement referred to in paragraph (a),
(c) is in receipt of remuneration out of the property of the charitable organisation other than in accordance with an agreement, or
(d) has a personal connection with a person who—
(i) will provide a service under the agreement,
(ii) provides a service under an agreement other than an agreement referred to in paragraph (a) or subparagraph (i), or
(iii) is in receipt of remuneration out of the property of the charitable organisation other than in accordance with an agreement, are satisfied that the agreement would be in the best interests of the charitable organisation.
(5) Where, in relation to a charitable organisation, there is only one charity trustee, the charitable organisation shall not enter into an agreement unless—
(a) the charity trustee is satisfied that the agreement would be in the best interests of the charitable organisation, and
(b) the Authority gives its approval to the charitable organisation entering into the agreement.
(6) A charitable organisation shall not enter into an agreement in contravention of the provisions of the constitution of the charitable organisation.
(7) The Authority may give directions or issue guidelines in relation to the making of agreements to which this section applies.
(8) A person to whom a direction under this section applies shall comply with that direction.
(9) A charitable organisation shall, before entering into an agreement, have regard to any guidelines issued by the Authority under this section.
(10) This section shall not apply in relation to—
(a) any remuneration paid to a person in his or her capacity as a charity trustee or under a contract of employment, or
(b) any remuneration to which a person is entitled in accordance with law or a provision of the constitution of a charitable organisation.
(11) Where, in relation to an agreement, there has been a contravention of this section, the agreement shall be null and void.
(12) Subsection (11) shall not operate to prevent a charitable organisation from recovering damages in respect of any loss incurred by it by virtue of an agreement to which that subsection applies.
(13) In this section—
"relevant person" means, in relation to a charitable organisation—
(a) a charity trustee of the charitable organisation, or
(b) a person with whom a charity trustee of the charitable organisation has a personal connection;
"remuneration" includes any benefit in kind;
"services" includes goods;
"sum" includes benefit in kind.".
I am pleased to move this amendment, which will permit trustees and persons personally connected with trustees to receive remuneration in respect of non-trustee services provided to a charity. At present, charity trustees are not permitted to receive any remuneration from the charity. Given the voluntary nature of charitable activities, the principle of trustees not being paid for trustee-related services should be retained to ensure public confidence in charities.
I can see merit in trustees being remunerated for non-trustee services subject to adequate controls being put in place. It can be difficult for charities to source particular expertise due to limited resources or an inability to meet commercial rates that apply to certain professions. Many trustees may have particular skills that they would be prepared to provide to the charity, perhaps for a fee below the market rate, were this to be permissible in law. In this way, a trustee could provide professional or other services unrelated to the trustee role to the charity. In single trustee trusts, an additional control is that the approval of the authority would be required in the first instance.
The amendment provides that, having due regard to guidance from the charities regulatory authority, with the consent of the board of the trustees, once it is in the best interests of the trust, a charity would be empowered to pay remuneration to a person who is either a trustee of the charity or is personally connected with the trustee. Under this amendment, remuneration shall not be paid for trustee services.
What the Minister is saying is that if trustees take on a job on a professional basis, this amendment allows for them to be paid. This is only right. To be fair to professional people, they have been very generous with their time and office staff. I see it with charities in my county, some people never charge for work when it is for charity. Many people will not charge for this work but there may be complicated work they must do, which may take up time and the time of staff, and it is only right that such payment is not against the law. I welcome the amendment.
I acknowledge Deputy Ring's contribution. It is realised and acknowledged that many trustees are professional people with skills. There may be complex issues to be dealt with that are not trustee services but additional facilities. Often, these people provide the services at less than the going rate. It is of benefit to the charity. It is not that trustees should be paid for trustee service work, it is for other activities and, in the main, the charities are the beneficiaries because they receive a service at a reduced rate.
In other words, they should not be out of pocket if there is a payment. That is what it boils down to.
I move amendment No. 85:
In page 58, between lines 13 and 14, to insert the following:
"83.—A charitable organisation may enter into an agreement with a charity trustee of the charitable organisation for the payment by the charitable organisation to the insurer under a contract of insurance of such sums as the charity trustee undertakes, in accordance with that contract, to pay to the insurer in consideration of the insurer agreeing to indemnify the charity trustee in respect of any liability of the charity trustee to pay any damages or other sum to a person in respect of any act done or omitted to be done by the charity trustee in good faith and in the performance of his or her functions as charity trustee.".
Charity trustees are potentially personally liable for any losses accruing to the charity as a consequence of the performance of their duties. This leaves voluntary charitable trustees exposed to an unreasonable personal risk. I am conscious of the difficulties that charities can have in attracting trustees and I imagine that a situation where a trustee is personally liable for losses incurred by a charity as a consequence of a genuine error does not serve to encourage people to take on the role of trustee. I wish to remove that obstacle and thus I move this amendment, which will allow charitable trustees, with the agreement of the charity, to arrange for the purchase of indemnity assurance out of the charity funds where they are satisfied that it would be in the best interests of the charity to do so.
The provisions relating to the purchase of indemnity assurance contain safeguards to prevent abuse of power. The trustee must always act in good faith and in the best interests of the charity. This amendment will be broadly welcomed by charities and trustees. It will be a source of reassurance to charity trustees and to potential charity trustees.
I move amendment No. 86:
In page 58, line 30, to delete ""‘exempt" and substitute the following:
""‘charitable organisation' means a charitable organisation—
(a) registered in the register established and maintained under section 38 of the Charities Act 2008, or
(b) deemed to be registered in the register in accordance with section 39 of that Act;
I move amendment No. 87:
In page 59, line 20, to delete "sections 5 and 6" and substitute the following:
"sections 5, 6 and 6A (inserted by section 82(e) of the Charities Act 2008)”.
This is essentially a technical amendment and provides for non-cash collections and related matters. The original reference to sections 5 and 6 is incorrect. On foot of legal advice it is proposed to substitute this reference with sections 5, 6 and 6A inserted by section 82(e) of the Charities Act 2008.
I move amendment No. 88:
In page 59, to delete lines 31 to 41.
The Bill brings non-cash collections within the scope of the collection permit system for the first time. Until now, the system had only applied to cash collections given that the legislation was introduced in 1962. When combined with a number of other changes to the permit regime proposed here, this amendment will provide fairer access to the permit system irrespective of the method of fund-raising involved. The wording proposed to be relieved left the chief superintendent with no option other than to refuse an application for a non-cash collection on a date or location where notification about another non-cash collection had already been received. This was considered unreasonable as there might be no practical reason why both collections could not be accommodated within the district. In the context of the other Government amendments being brought forward, a more flexible approach to the issuing of permits will emerge.
The Minister is saying that people will need permits in order to collect. This is the most important aspect of the Bill. People want to know that a collector, whether cash or non-cash, has a permit. If gardaí approach someone who does not have a permit, he or she must be taken off the streets straight away. If a collector is stopped by someone who asks to see the permit, the collector should not be allowed to collect cash or non-cash without a permit. I welcome that.
I move amendment No. 89:
In page 60, line 13, to delete "6 months" and substitute "12 months".
This applies to section 82, which provides that it should be a condition of the permit that the permit-holder shall notify the chief superintendent in writing of the proposal to hold a non-cash collection not earlier than 12 months before the date of the proposed collection, as opposed to six months that applied previously. This allows charities to plan fund-raising campaigns in advance to a greater extent.
Is that putting pressure on charities in respect of the 12 month notification period? Some collections are on a yearly or monthly basis. Charities have set times of the year. Why is it necessary to have the 12 month notification period?
It is to facilitate charities. They do not have to apply 12 months in advance but this assists a charity looking for certainty. At present, one can only apply in the last six months and we propose to extend that period. A charity could organise in the summer for an event to take place next Easter. This gives charities a better chance to plan.
I wish to clarify because this could be misconstrued.
We are always misconstrued on this side of the House.
If someone had an annual church gate collection they would not have to apply on the date they are having the collection in order to keep the yearly cycle going. It is no harm to clarify for the House as the Bill moves through the Stages and is enacted. The Minister is saying that there is a six to 12 month window in which one can apply for the permit.
Up to 12 months.
Amendments Nos. 90 and 91 are related and they may be discussed together.
I move amendment No. 90:
In page 60, line 29, to delete "shall" and substitute "may".
Amendment No. 91 provides that the chief superintendent concerned may refuse an application, or revoke a non-cash collection permit where he is of the opinion that collectors on behalf of the applicant have previously, or are likely to, so conduct themselves, whether by way of harassment, intimidation, or assertive collecting as to be likely to give rise to complaints from members of the public.
The intent of this amendment relates to an earlier amendment in the name of Deputy Wall on which I spoke. We need a traceability mechanism to deal with rogue practice in any organisation. Such practice is not prevalent to any great extent in the charity sector but there is concern about it in some areas. We see it used every day of the week. Walking down a main street, one is almost doorstepped by a cash collector. It is not a case of being asked if one would like to donate; one cannot walk from one end of Patrick Street in Cork to the other or down O'Connell Street in Dublin without being hit upon by a number of such collectors.
The intent of Deputy Wall's amendment is not only to ensure the regulation of the permits granted but to encourage a code of practice to ensure appropriate collection methods and address what could be construed as strong doorstepping and presentational skills in the collection of money for charities on the street.
I agree with Deputy Ciarán Lynch. He is correct in what he said. I have said many times in this debate that Irish people are generous. One aspect that upsets me and also elderly people is the abuse by some people who collect money on behalf of charities or for some other purpose.
Something must be done to stop these people. One cannot go shopping on a Saturday or walk down a main street without people trying to give one something and exerting pressure on one to donate money. There are very good charities such as those in the social services sector, St. Vincent de Paul and other such charities that have an annual collection. They organise a collection on a Sunday morning and their members collect outside the churches. People have a choice. If they want to go into mass and if they want to subscribe, they can, and if they do not, they can walk away. However, certain people collecting for charities on the streets are not very respectful of elderly people. They put pressure on them to try to make them subscribe to their charity.
I am glad that at last this legislation will deal with this issue. I will speak on this point at the end of this debate. Many people are collecting for charities, but the charity for which they collect is themselves. No charity ever sees some of the money they collect. The people concerned will soon be frightened about making such collections. If this legislation is passed through this House and the Seanad, it would be money well spent if the Department advertised its enactment to bring it to the attention of the general public. Advertisements should be placed in local newspapers advising people that it has been passed by the Oireachtas, what it is about and urging them to ask individuals collecting for charities if they are registered, have a permit and for whom they are collecting. It would be a worthwhile exercise.
I thank the Deputies for their comments. Amendment No. 90 proposes to give the chief superintendent more discretion in issuing permits.
Amendment No. 91 aims to allow the chief superintendent to refuse a permit where he is of the view that the collection is likely to be undertaken in an inappropriate manner. As regards this amendment, I will bring forward amendments to give the chief superintendent greater discretion in issuing permits where he considers that public order issues might arise. I do not therefore propose to accept Deputy Wall's amendment, although I accept the points made by Deputy Lynch and thank him for making them. I share the concerns expressed. I believe he will see in the subsequent amendments that this issue will be dealt with.
On that basis I will withdraw the amendment.
Amendments Nos. 92 and 93 are related and they may be discussed together.
I move amendment No. 92:
In page 61, to delete lines 6 to 15 and substitute the following:
"(4) Where, before the receipt of a notification under subsection (3), a collection permit has been granted to a person authorising him to hold a collection in the same locality or place and on the same date as the locality or place and date to which that notification relates, the Chief Superintendent concerned may, if he considers it necessary or desirable in order to ensure the maintenance of public order or the prevention of annoyance to the public, direct that the proposed non-cash collection shall not take place at that locality or place on that date.".
With regard to amendment No. 92, the wording now proposed to be removed left the chief superintendent of the Garda district with no option other than to refuse to allow another non-cash collection to take place on a date or location where a collection had already been approved. This was considered unreasonable as there might be no practical reason both collections could not have been accommodated.
There is a discretion for the chief superintendent to take public order concerns into account. That was the issue we were discussing. In the context of other amendments, a more flexible approach will emerge.
Amendment No. 93 proposes the deletion of text now proposed to be removed under amendment No. 92, as it is no longer necessary.
I move amendment No. 93:
In page 62, to delete lines 1 to 44.
Amendments Nos. 94, 96 and 97 are related and they may be discussed together.
I move amendment No. 94:
In page 63, to delete lines 6 and 7 and substitute the following:
"83.—(1) Section 18 of the Act of 1962 is amended by—
(a) the substitution of the following subsection for subsection (1):”.
Amendment No. 94 is purely a drafting amendment proposed on the advice of the office of the Attorney General on duties of collectors.
Amendment No. 96 clarifies that the number to be shown on all collection boxes is the number of the collection permit issued by the Garda. The previous wording was too imprecise in this regard.
Amendment No. 97 imposes certain conditions on non-cash collectors that are broadly equivalent to those applicable to cash collectors. They are designed to enhance public confidence and ensure that personal information supplied by donors is secure.
This amendment relates to the issue of sealed collection boxes, an issue about which I wish to ask the Minister of State.
I knew the Deputy would.
Will the Minister clarify how section 83 will impact on those charities who collect by selling a product? Those who sell a product such as a daffodil on Daffodil Day must have a sealed collection box and the collectors may have to give people back change. This requirement causes a difficulty in this instance for those collecting for the Irish Cancer Society.
When the Minister of State brings this legislation to the Seanad, I appeal to him to bring forward the necessary amendments to deal with this issue. It is an impractical requirement for some charities, particularly the Irish Cancer Society. Daffodil Day is one of the great days of the year when people from all walks of life support that charity. If the collection boxes are sealed, the collectors will not be able to give people change. This is a reasonable request.
I do not want to oppose the amendment and ask the Minister of State to assure us that he will bring forward the necessary amendments to the legislation in the Seanad to address this issue. I have received many representations on this issue. It is not a major one. This requirement concerns reputable charities that have been established for a long time. The people want to support them and we do not want to hinder them doing so.
I thank the Deputy for formally raising this matter on this Stage. It is a new issue and one with which we did not deal on previous Stages. I am as familiar as anyone else with those charities where one pays a certain amount and the cash collector has to give one change; perhaps sometimes it would be better if they kept all the money given. I take the specific point the Deputy made about the sealed boxes and the difficulty it would cause. Sealed boxes were introduced given that in a different era people collected for organisations with open buckets, which raised other issues.
I will certainly examine this matter. When the legislation goes to the Seanad, we will see how we can address it. It is an issue we will have to do something about. The Deputy is right in that respect.
Perhaps it would be possible for these national charities to make an application to the regulator to be exempted from this requirement. Only a few will be caught by it. It is an important issue. I accept what the Minister of State said and I am confident he will bring the necessary amendments to the Seanad to deal with this matter
We have not examined it legally because it has only come to our attention very recently. We will examine it from a legal perspective and what amendments or changes can be made to accommodate those charities that need to give change to their cash collectors.
I move amendment No. 95:
In page 63, between lines 9 and 10, to insert the following:
"(a) The holder of a permit shall report to the relevant Chief Superintendent as to whether and to what extent the permit was availed of during the time permitted, and where a permit was not, or not fully, availed of, the Chief Superintendent may take that matter into account in determining whether to issue a further permit to the person concerned and in determining the duration of the permit;”.
The intent of this amendment is simply to bring an end to what might be described as squatting places when it comes to permits. The amendment seeks to ensure when a permit is requested and availed of that it is used for the entire duration of that period for which it is granted. There is considerable competition between charities to get permit days on streets in different locations. For a permit to be given to a charity and not used to the maximum would be very unfair to and to the detriment of other charities. I ask the Minister of State to take on board the intent of the amendment.
The chief superintendent has power to impose certain conditions relating to any collection he or she authorises. It is also within his or her remit to monitor collections and ensure they take place in accordance with the terms he or she has imposed. As we discussed earlier, it is important for us not to put undue burdens and additional work on the charities. The proposed amendment places the onus on the permit holder to report to the chief superintendent as to whether the permit was used. I would not consider this a reliable way to ascertain whether a permit was used. I do not have knowledge that this is a widespread problem. It is not an issue raised by the Garda Síochána in consultations on the Bill. Therefore I do not intend to accept the amendment. However, I will keep the issue under review if it comes to light with the Garda.
The core issue is that an organisation that might not use its full allocation of permit time might deliberately go out of its way not to inform the authorities of its difficulty. I would not be surprised if the Garda Síochána and officials were not aware of the problem because the type of violation is hidden. If the Minister of State were to reconsider the matter at a later stage in the Seanad, I would be quite happy to withdraw the amendment. However, I know it is a frequently occurring practice. Before the next Stage the Minister of State should ask the Garda whether it has been brought to its attention that permits that have been granted might not be fully availed of. Other charity organisations that would like to have that slot and use it in its entirety should be allowed to take up such a slot should it become available.
We have already amended the Bill to provide that more than one permit for a non-cash collection can be given in an area, which obviously means that the situation would be slightly different. We have had discussions with representatives of the Garda, who did not flag this as an issue. From the point of view of completeness and fairness I will ensure that our departmental officials will check with the Garda Síochána. If the Garda flags this as an issue we will deal with it in the Seanad. However, that has not been the case and the issue has already been discussed with the Garda. If the Deputy is asking whether we will double check with the Garda, I can say that we absolutely will.
I move amendment No. 96:
In page 63, line 11, to delete "a number" and substitute the following:
"the number assigned in respect of the collection and specified in the collection permit concerned".
I move amendment No. 97:
In page 63, line 26, to delete "manner."." and substitute the following:
(b) the insertion of the following subsection:
"(1A) The following provisions shall apply to all non-cash collections:
(a) the collector shall wear a garment that is visible at all times to members of the public and that—
(i) in the case of a non-cash collection on behalf of a charitable organisation, bears——
(I) the name and registered number of the charitable organisation, and
(II) the object for the benefit of which the non-cash collection is being made, in a prominent and clearly legible manner, and
(ii) in the case of a non-cash collection on behalf of a body other than a charitable organisation, bears——
(I) the name of the body, and
(II) the object for the benefit of which the non-cash collection is being made, in a prominent and clearly legible manner;
(b) any form completed by a member of the public for the purposes of making a contribution to a non-cash collection shall be received from the member by the holder of the non-cash collection permit or a person authorised by him in writing for that purpose but by no other person; and
(c) all forms used for the purposes of the non-cash collection intended for completion by members of the public shall—
(i) in the case of a non-cash collection on behalf of a charitable organisation, bear——
(I) the name of the charitable organisation and its registered number,
(II) the number assigned in respect of the non-cash collection and specified in the non-cash collection permit concerned, and
(III) the name of the bank and bank account name and number to which contributions are to be made, in a prominent and clearly legible manner, and
(ii) in the case of a non-cash collection on behalf of a body other than a charitable organisation, bear——
(I) the name of the body,
(II) the number assigned in respect of the non-cash collection and specified in the non-cash collection permit concerned, and
(III) the name of the bank and bank account name and number to which contributions are to be made, in a prominent and clearly legible manner.".".
Amendments Nos. 98 and 99 are related and may be discussed together.
I move amendment No. 98:
In page 64, between lines 27 and 28, to insert the following:
86.—(1) It is an offence for a charity to conduct public fundraising without holding a valid permit.
(2) The form and operation of the permit system shall be determined by the consultative panel provided for in section 34 (1).”.
This amendment relates to people known as "chuggers". I am not very happy with these people who force elderly people and others to sign up to things without knowing what they are signing up to. I hope the Minister of State will be able to get the permit system in place. The behaviour of these "chuggers" or charity muggers is not acceptable. Earlier this year I was on holidays in a town in the south and I saw them in action. The way elderly people are being pulled and dragged is just not right. Until the money goes out of their accounts they do not realise what they have signed up for. This is not a good way for charities to do business. It is wrong because they target the most vulnerable in society. They target people who are unable to say "no" and who want to support a charity but when they sign up to this non-cash scheme they do not realise what they have signed up to.
I want these people to be regulated and required to have a permit that they can produce on the streets. I wish we could abandon this kind of collection altogether, but that is probably not possible. I want to see these charity muggers controlled and regulated. I want stronger regulation on how they operate. Deputy Lynch and I spoke earlier about charity collectors putting boxes up to people's noses. If somebody puts €5 into a box and it does not go to a charity it is not too bad. However, if a person signs up to something for 12 months it is different. In some cases people do not understand how standing orders work.
I will give an example of a similar issue that has nothing to do with charity and on which I hope legislation will be introduced. I refer to mobile phone companies and I call them robbers. The mobile phone companies are stealing money out of all our pockets. I refer to messages that arrive and if one opens the message one must pay €2.50. The mobile phone companies will claim they are only in a deal with another organisation. However, it is the mobile phone company that is taking the money from people's accounts. It is the same situation here and I want the Minister of State to address it.
It is already an offence under section 3 of the Street and House To House Collections Act 1962 to collect without a valid permit. Therefore the first part of amendment No. 98 is not necessary. I cannot accept an amendment to provide that the form and operation of the permit system shall be determined by a consultative panel. The permit system is determined by primary legislation in the Street and House To House Collections Act 1962 as amended by this Bill. It would be inappropriate for a consultative panel to be given such a role when the system is already set out in statute.
I cannot accept amendment No. 99 in the name of Deputy Wall. Section 86 provides a reserve power for the Minister to regulate the manner and conduct of fundraising. My Department has worked in close partnership with the sector in the past two years to develop non-statutory codes of good practice for charitable fundraising. The principles for these codes of good practice were published this year and discussions are taking place with the sector on the implementation and monitoring of the codes. It is intended that the reserve powers in section 86 for the Minister to introduce statutory regulation would only be invoked if the non-statutory codes of practice prove ineffective. It would be totally counterproductive to the process to force the Minister to introduce statutory codes of practice which would be the effect of amendment No. 99. Therefore I cannot accept the amendment.
My amendment represents the way forward. If the superintendent or the Garda or a panel were there and an existing charity had a collection on a day, a second charity would need to apply to the superintendent for its permit. He would make the decision whether these two charities should work on the one day. I hope something can be done. For me this is the one issue relating to charity that is creating a problem. If someone puts €5 into a box and it does not go to a charity that is not too bad even though people are defrauded of their €5 and might feel bad about it. However, it is not right for an elderly person, for instance, to be tied into a contract by these people. We need to tighten up on these charity muggers and how they operate. I am opposed to them. Other people will disagree with me, but I do not mind. When charities sell tickets, we all know what is happening, but I am not happy about this way of doing things. If I had my way and was Minister I would introduce the necessary legislation to ensure charity muggers would not operate.
I do not disagree with the points the Deputy has made. When we go through the various amendments and have discussed them we also need to be conscious of the effect it will have on genuine charities. One of the things the Deputy has stressed all along was that we should not over-regulate. We want a balance. We have been in discussions with the sector to establish a non-statutory code of good practice, but this requires the buy-in of the entire sector. The legislation provides reserve powers to the Minister if the code does not work.
We are working in partnership with the charities without being overly prescriptive or creating too many difficulties. While the preferred option is a voluntary code of good practice, I assure the House that the Minister will have reserved powers if the code does not prove effective.
I move amendment No. 99:
In page 64, line 28, to delete "may" and substitute "shall".
Amendment No. 100 arises out of committee proceedings.
I move amendment No. 100:
In page 65, between lines 5 and 6, to insert the following:
87.—Section 28 of the Central Bank Act 1997 is amended by the insertion of the following paragraph in the definition of "retail credit firm" (inserted by section 19 of the Markets in Financial Instruments and Miscellaneous Provisions Act 2007):
"(dd) a charitable organisation within the meaning of the Charities Act 2008, or”.”.
To avoid the potential for dual regulation and consistent with the approach taken elsewhere in the Bill, it is proposed that social finance lenders be regulated by the charities regulatory authority and exempted from supervision under the financial services regulatory elements of the Markets in Financial Instruments and Miscellaneous Provisions Act 2007. Social finance lenders provide repayable loan finance at affordable rates to community-based projects and local development initiatives, including individual and community micro-enterprises, that yield a social and financial return. This approach has been developed in consultation with the Department of Finance.
Amendments Nos. 101 and 102 do not arise out of committee proceedings. Therefore, we need a formal proposal to recommit the section to discuss them.
Amendments Nos. 101 and 102 are related and may be discussed together.
I move amendment No. 101:
In page 65, to delete lines 24 and 25 and substitute the following:
"2. (1) The Authority shall consist of not less than 9 and not greater than 15 members, of whom not less than 3 shall be persons, each of whom—".
In discussions with my legal advisers, it was recognised that the new authority will have a considerable and varied workload, including the functions of the Commissioners of Charitable Donations and Bequests, as well as having a broad regulatory role in the sector. A wide range of professional expertise will be required from members.
While there is provision for the authority to delegate certain functions to committees, it would be of practical assistance to the authority to increase the maximum membership, allowing for greater potential for delegation of functions to committees. The intention of Deputy Wall's amendment No. 102 is to ensure the involvement of grass roots charity workers in the sector's regulation. However, I do not wish to be too specific about the status of the person from the sector, thereby allowing for flexibility in selecting the most suitable candidate. For example, a former charity employee might have relevant experience and opinions. There is also the danger that one representative of the charities might become not just the minimum requirement, but also the maximum.
It is intended that the authority will have a broad range of skills and expertise necessary to carry out its full range of functions. The provision in the Bill for the appointment of members with knowledge of the management of charitable organisations is sufficient. Therefore, I will not accept amendment No. 102.
It is important that charities be represented on the authority. We do not want it filled with political appointees only interested in drawing expenses. The legislation is new, but people have been crying out for regulation for years. We want people interested and involved in the sector. We also want people from outside the sector to give the authority necessary advice. For too long, authorities have been filled with Ministers' supporters and friends, people with nothing to offer to a committee. I call on the Minister of State to place people of good standing in the authority, who can support the legislation and charities and who will be able to make genuine contributions.
While the legislation will be reviewed in five years, I ask that the Minister of State address any unforeseen problems quickly, even if it involves introducing another Bill. This legislation has not been tested, but it is necessary and has been welcomed by charities. I hope that those who work with and understand the problems experienced by charities will be fairly represented on the board.
It is interesting to note that the Minister of State has suggested an increase in the board's membership from nine to a potential 15, nearly double the initial figure. Three matters must be considered. When the figure was originally nine, the members were to be drawn from persons, each of whom "hold or formerly held judicial office in the Superior Courts" or "are barristers or solicitors of not less than 10 years standing". While these would be welcome members of an authority, one expects a regulatory body to comprise some trades people. Given the potential addition of six new chairs at the table, there is scope for the inclusion of members of charitable organisations.
There is a great deal of merit in Deputy Wall's suggestion that the additional people be full-time workers in charity organisations. Charities are quasi-voluntary organisations by their nature with, for example, voluntary boards of management. However, they try to employ at least one full-time staff member to take on day-to-day responsibilities. It is critical that the charitable sector be represented on the board. It would make for a better configuration. With respect to the Judiciary, barristers and solicitors operate in a particular spectrum, consider issues in a judicial manner and take legal interpretations of Acts and practices. However, charitable practitioners possess a more rounded day-to-day flexibility and insight.
Given the Minister of State's proposal to increase the authority's membership from nine to 15, will he revert to the House with a representative selection process to draw people from the charitable sector after the Bill has passed through the Seanad? Given that his amendment has overshadowed Deputy Wall's, I am prepared to withdraw the latter. Considering the wider scope allowed, there should be a seat at the table for charity organisations.
I disagree with the amendment, not Deputy Ciarán Lynch, because it is overly prescriptive. I agree with the Deputy's suggestion that someone involved in charities be involved in the board, but the amendment calls for a full-time employee. I do not want the Bill to be so restrictive.
Amendment No. 102 refers specifically to "One of the 9", but a greater figure may be appropriate. Being too restrictive is my primary reason for not accepting the amendment. We have not yet sought board members. This issue cannot be viewed in isolation. Deputies questioned the appointment to the board of people with legal qualifications. The Bill states that the Minister shall in appointing the members of the authority ensure that among those members are persons who have knowledge of and expertise in the law relating to charities, the keeping of accounts by and funding of charitable organisations and the management of charitable organisations. To be fair, this indicates that people from a charitable background will be included. The proposed amendment is too restrictive and excludes former charity workers and part-time workers involved with smaller charities. I do not believe we should be this restrictive or that we should restrict ourselves to appointing only one person. On those grounds, I am unable to accept the amendment.
Given the Minister's response, I am prepared to withdraw the amendment. Also, the Minister's amendment has, to some extent, overshadowed Deputy Wall's amendment.
When is it proposed to take Fifth Stage?