On Report Stage in Dáil Éireann I introduced an amendment that was developed to offset a possible risk that the Bill, as previously worded, might act as a significant impediment to convention securitisation activities in Ireland. Following further interdepartmental consultation and discussions with legal advices since then, it was decided during the passage of the Bill through the Seanad that a further technical drafting amendment be made to copperfasten the provision.
Charities Bill 2007: From the Seanad (Resumed).
It is a technical amendment and, accordingly, I agree with it.
Seanad amendments Nos. 13 and 18 to 22, inclusive, are related and may be discussed together by agreement.
Seanad amendment No. 13:
Section 15: In page 16, between lines 7 and 8, to insert the following subsection:
"(2) The Minister may, in relation to the performance by the Authority of its functions under section 39, give a direction in writing to the Authority requiring it to comply with such matters specified in the direction relating to—
(a) the maintenance of the register,
(b) the collection and collation of information for the purpose of maintaining the register, or
(c) the entry into agreements with persons, other than charitable organisations, for the purpose of obtaining such information.”.
The grouping includes amendments that relate to the new register of charities. It is recognised that the establishment and maintenance of the register will give rise to costs. The purpose of amendment No. 13 is to allow greater flexibility in the future in terms of maintaining the register of charities. The amendment specifically seeks to give the authority, when directed by the Minister, options to use material from other relevant electronic data bases, including any that have been or are being supported in whole or in part by public funds in maintaining the register.
By way of background, over the past two years my Department has provided funding, together with the EU and a number of philanthropic sources, towards a feasibility study to establish whether it might be possible to set up a GuideStar Ireland. For those Deputies who may be unfamiliar with the concept, GuideStar is founded upon the provision of an extensive, free searchable web data base of all non-profit organisations in a country. It is constituted as a non-profit entity in all countries where it has been established or is in development. These include the USA, the UK, Canada, Israel and Germany. In countries where they are established, GuideStars are regarded as the authoritative source of information about the entire non-profit sector. This would include the charity sector.
This amendment seeks to ensure there will be no impediment preventing the authority, under direction of the Minister, from engaging with an external data provider such as a future GuideStar Ireland with regard to the provision of material to assist in maintaining the register of charities. Although there is no certainty that a GuideStar Ireland, or similar project, will proceed, or that there will be any public money available for such a venture, it would be remiss for the legislation not to provide for the possibility of such an arrangement, particularly were it to be the case that public funds had been expended on the potential source of data. The legal advice to me is that the most direct way to ensure this is to include a provision for an appropriate direction for the Minister to the authority. I stress that such a direction would only apply with regard to the maintenance of the register of charities. I believe this amendment will ensure efficiency, value for money and better joined up Government in the future.
Amendment No. 18 is a technical amendment clarifying that section 39(4) applies only to applicants under that section and not to charitable organisations deemed under section 40 which will not have to go through the application process as set out in section 39. Throughout the consideration of this Bill in the Houses of the Oireachtas we have looked consciously at ways to ensure that the administrative burden imposed by the legislation does not prove unmanageable, especially for smaller charities. It is recognised that on application for registration charities must file a comprehensive list of documentation. The amendment I introduced in the Dáil to deem existing charities as automatically registered goes a long way towards alleviating the registration burden for existing charities.
However, although I consider that larger charities, in particular, should provide the range of information listed, I recognise that smaller charities, or particular categories of charity, may have difficulty in fulfilling this requirement. With this in mind I propose amendment No. 20 and the related, necessary technical amendment, No. 19, under which the authority, with the consent of the Minister, can reduce the number of documents that particular charities are required to file on registration. This Seanad amendment was welcomed by the charities sector and I commend it to the House.
Seanad amendments Nos. 21 and 22 both correct cross-references to other sections of the Bill that should have been made following previous amendments.
These are technical amendments. Arising from the funding the Department and Europe have been providing, will these databases be available to the public so that at any time people can go to their computers and see who is registered and who is not?
If a GuideStar were to be established in Ireland with public funding this amendment is merely an enabling provision that would allow a direction to the authority. In current times there is no guarantee that such a situation will occur but it would be remiss of us not to take the opportunity to include it in the primary legislation.
Seanad amendments Nos. 14, 15 and 50 are related and may be discussed together by agreement.
Seanad amendment No. 14:
Section 32: In page 22, subsection (2)(c), line 42, to delete “statute” and substitute “enactment”.
Amendments Nos. 14, 15 and 50 are very similar and are inserted on the basis of legal advice. They propose to use the word "enactment", which encompasses a wider range of legal provisions than the current word "statute".
Seanad amendments Nos. 23, 52, 56 and 60 are related and may be discussed together.
Seanad amendment No. 23:
Section 40: In page 31, subsection (1)(a), line 7, to delete “1997,” and substitute “1997, and”.
This is a drafting amendment inserting the word "and" after "1997" to link paragraphs (a) and (b). The remainder of this grouping updates cross-references to other legislation referred to in the Bill. Seanad amendments Nos. 52 and 56 update a legal reference to the Pensions Act and the Unfair Dismissals Act, where new legislation was introduced in 2008 and 2007 respectively. Seanad amendment No. 60 changes the reference in section 70(1)(b) from the “Minister for Enterprise, Trade and Employment” to the “Director of Corporate Enforcement” as I am advised section 15 of the Company Law Enforcement Act 2001 transferred responsibility from the Minister to the director.
Seanad amendments Nos. 24 to 29, inclusive, 31 and 32 are related and may be discussed together.
Seanad amendment No. 24:
Section 40: In page 31, lines 14 to 18, to delete subsection (2) and substitute the following:
"(2) The Authority may request the Revenue Commissioners to provide it with all such information in the possession or procurement of the Revenue Commissioners, relating to a charitable organisation to whichsubsection (1) applies, as the charitable organisation would be required to provide to the Authority were it making an application under section 39.
(3) Notwithstanding any enactment or rule of law, the Revenue Commissioners shall comply with a request undersubsection (2).”.
This grouping includes amendments related to the deeming of current CHY holders. Amendment No. 24 to section 40 is a technical amendment. Under the existing working it might be interpreted that the Revenue would be required to provide all the information it holds for each organisation deemed to be registered under section 40. This amendment clarifies that the Revenue will have to provide only information that would normally be required of charities registering under section 39 of the Bill. They would be dealt with in the same way whether they are deemed or registering.
Seanad amendment No. 25 clarifies that the subsection refers to information received by the authority following a request to the Revenue under section 40(2) or a requirement placed by the authority on a charity under section 40(3). Seanad amendments Nos. 26 to 29, inclusive, and 31 are similar drafting amendments which provide that charities which have registered under section 39 and which have been deemed to be registered under section 40 are regarded as exactly the same in legislation. Seanad amendment No. 32 requires the authority to notify in writing a body that is being removed from the register because it has a disqualified trustee. Previously there was no such obligation.
As I discussed earlier, the Revenue is independent of the regulator regarding the charities. The Revenue does its job and the regulator does a separate job with charities. Does the Minister proposes that if a charity does something wrong there is a statutory provision to remove a charity and deal with its assets?
More or less. In one sense the Deputy has jumped ahead slightly to the next amendment which gives more detail on the grounds on which they might be removed. Seanad amendment No. 32 is to specify that the body must be notified in writing. The next Seanad amendment No. 32 relates more specifically to the point Deputy Ring is raising.
Seanad amendments Nos. 33 to 37, inclusive, are related and may be discussed together.
Seanad amendment No. 33:
Section 45: In page 37, subsection (2), line 7, to delete "subsection (1), (2), (10) or (11) of section 43” and substitute “section 43 (other than subsections (7) and (9))”.
This grouping includes amendments related to the appeals process. Seanad amendment No. 33 is a presentational amendment. Rather than showing a lengthy list of subsections to which the provision does not apply, it shows a much shorter list of subsections to which it applies. Section 45 subsections (3) and (4) set out the circumstances under which a deemed charity that has been removed from the register may appeal the decision. Seanad amendments Nos. 34 and 35 combine those two subsections into a single section for presentational purposes. Seanad amendments Nos. 36 and 37 are very similar. They clarify that the charity appeals tribunal may impose binding conditions on either the authority or the appellant when making its determinations.
If a charity is being removed is there an appeals mechanism in place that is independent of the regulator?
Yes. The tribunal may make binding recommendations to the authority or the appellant.
So whatever the decision, the parties must accept it.
Seanad amendments Nos. 38, 51, 61 and 73 are related and may be discussed together.
Seanad amendment No. 38:
Section 46: In page 38, subsection (6), line 29, to delete "(3)” and substitute “(2)”.
As the Deputy will be aware, the Bill has been amended considerably since it was introduced into this House, including by the insertion of new sections and subsections. These amendments update or clarify certain cross-references as necessary. These cross-references result from some previous amendments we made. Seanad amendment No. 38 corrects a mis-reference in the subsection. The reference is being corrected to refer to subsection (2), which is the main offence provision under section 48 of the Bill as passed by the Dáil.
Section 55(1) of the Bill as passed by the Dáil lists the circumstances under which a person may be disqualified from being a charity trustee. Seanad amendment No. 51 clarifies that a disqualification under section 55(1) shall not apply where the High Court makes an order that the person may hold the position of charity trustee. However, if any of the circumstances in section 55(1) apply after the making of such an order, the trustee shall, again, be disqualified.
Seanad amendment No. 61 is a redrafting amendment. It clarifies that it applies to a direction given by the authority under section 51(2), unlike the other sections referred to where there is no provision for the authority to give a direction. Seanad amendment No. 73 clarifies the particular subsection of section 91 to which the particular provisions apply where it previously just referred to the section.
Amendments Nos. 41 to 45, inclusive, are related and may be discussed together.
Seanad amendment No. 41:
Section 50: In page 42, subsection (4), line 17, to delete "Notwithstanding subsection (3), the" and substitute "The".
This group of technical amendments relates to the audit provisions. Amendments Nos. 41 and 42 are linked. They effect no substantive change to the provision. The reference to subsection (3) is simply being moved within the subsection. This subsection provides that even though a charity may be below the audit threshold designated by the Minister, the authority may direct the charity to have its accounts audited if it considers it appropriate. We discussed that earlier. The existing reference to subsection 50(2) of the Bill as passed by the Dáil is incorrect. It is not possible for a charity to contravene section 50, subsection (2), but it is possible for a charity to contravene section 50, subsection (3) by not having its accounts audited or examined. Subsection (3) is therefore the correct cross-reference and is inserted by amendment No. 43.
Amendments Nos. 44 and 45 are very similar. Amendment No. 44 clarifies that the authority may only seek to recoup expenses incurred where the authority itself directly appoints an auditor and not where the authority directs a charity to appoint an auditor. Similarly, amendment No. 45 makes it an offence for a charity trustee to fail to co-operate with an auditor appointed by the authority under section 50(5) or section 50(6). Previously, it was also an offence for a trustee to fail to co-operate with an auditor appointed by the charity on the direction of the charity under subsection (4). However, it is already an offence under subsection (12) for a charity or charity trustee to contravene a requirement of the authority under subsection (4), so the original reference in that case was unnecessary.
We discussed this previously, so I will agree to these amendments.
Amendments Nos. 48 and 49 are related, as is Deputy Ring's amendment No. 1 to amendment No. 49.
Seanad amendment No. 48:
Section 52: In page 44, subsection (1), lines 16 to 18, to delete all words from and including "year" in line 16 down to and including "regulations." in line 18 and substitute "year.".
Amendments Nos. 48 and 49 as passed by the Seanad, which I am putting before the Dáil today, allow the Minister to prescribe the information to be included in annual reports submitted by charities and set out in more detail what the Minister may prescribe under the regulations in this regard. These amendments already passed by the Seanad provide sufficient flexibility and control with regard to annual reports to be submitted by charities. I do not think it is necessary, as envisaged in Deputy Ring's amendment, to oblige all charities to declare in their annual reports that they are actually charities or that they are of a voluntary nature and not commercial entities. Under the legislation as already drafted, the authority will have the power to request such statements from individual charities if it is considered necessary. Basically, the provisions of the legislation already ensure that only charities may be registered on the register of charities. To this end, the legislation defines charitable organisations quite explicitly. This definition does not require all charities to be voluntary in nature. Some charities are run by paid professionals.
With regard to Deputy Ring's concerns about charities becoming commercial entities, section 2, subsection (b)(ii) specifies that the property of a charity must be expended in pursuit of its charitable purposes, except for necessary expenses entailed by the running of a charity. The authority will have extensive control and inspection powers. Therefore, if bodies are on the register they must, under the legislation, fulfil all the criteria for being a charity and have no need to restate this in their annual reports. Furthermore, to ensure that charities on the register do not change or lose their charitable nature or status after they have registered, section 39(10) obliges charities to notify the authority of any changes to the object of the charitable organisation or trust concerned which might affect its charitable status. It would be an offence for charities not to do so, and a person guilty of an offence under the legislation would be liable to hefty fines, substantial prison sentences or both. In these circumstances, I cannot accept Deputy Ring’s amendment.
I am disappointed the Minister will not accept my amendment. The reason I tabled this amendment is the concern among the general public about the charities to which they are subscribing. I wished to ensure the transparency, correctness and openness of any organisation with charitable status. We need to clarify what salaries are being paid by charities to their directors, identify whether organisations are acting on a voluntary or a commercial basis, and ensure that if there are changes in status they are notified to the regulator. People are concerned that some organisations are more businesses than charities and that the charities get very little money from the revenue collected, which goes to pay directors or people collecting on behalf of the charity. That is why I was hoping the Minister would accept my amendment. In this way, at the end of every year we would know what is paid to every director. We want to know about bonuses, salaries and expenses, and how much money is going to the charity itself. I am concerned about this.
Since this Bill was introduced the Minister has agreed to consider many of the concerns expressed by Members on this side of the House, although the Labour Party Members are not here currently, both when the Bill was introduced and on Committee Stage, and he has done so. The Minister brought the Bill to the Seanad and dealt with many of these concerns. I was hoping he would accept this amendment as we want people out there to know that the money collected is going to a charity rather than towards large salaries.
I agree with the sentiments of the Deputy. However, I was conscious of the fact that not all charities are fully voluntary and that some have paid professionals. I take the point made by the Deputy. If the charitable purpose of an organisation changes there is an onus on it to make those known to the authority. Amendment No. 49 provides for the Minister to prescribe the information to be included in the annual report into a new subsection and sets out, in greater detail than had previously been the case, what the Minister may prescribe under the regulations. The Deputy's concern is already dealt with in the legislation and for this reason I cannot accept his amendment.
I move amendment No. 1 to Seanad amendment No. 49:
In subsection (3), paragraph (a), after “organisation” to insert the following:
"including a statement on whether the charitable organisation:
(i) is in all respects voluntary and charitable in nature, or
(ii) is in any respect commercial.".
Seanad amendments Nos. 53, 54 and 55 are related and may be discussed together.
Seanad amendment No. 53:
Section 57: In page 46, subsection (1), line 45, to delete "If a charity trustee" and substitute "A charity trustee".
These are essentially presentational amendments consequential upon each other. They did not change the subsection in any substantive fashion. It will still be an offence for a charity trustee or employee to comply with a direction from a person not qualified to act as a charity trustee unless the person has reasonable grounds for not knowing that the person was not so qualified.
The matter of the position of auditors of charities was raised by Senator O'Toole in the Seanad and Deputy Ciarán Lynch in the House on Report Stage. The concerns were that the Bill would allow charity trustees to audit their charities. This was not the Government's intention. Instead, the aim was to ensure that where independent auditors of charities were party to offences that such auditors would be regarded as charity trustees in terms of having committed an offence under the Bill and could be prosecuted on that basis.
I fully share the view that a charity trustee should not audit his own charity. This is reflected in section 187 of the Companies Act 1990, under which an officer or servant of a company must not also be its auditor. On reflection, I have come to the conclusion that the provision as it previously stood had the potential to place an unreasonable burden on independent auditors and one that is unnecessary, as auditors are already subject to statutory obligations. I thank Senator O'Toole and Deputy Lynch for their constructive contribution on the issue.
The amendment emerges from a desire to ensure that the new regulatory regime operates in an efficient way, allowing for the sharing or pooling of resources where possible to ensure value for money and to avoid unnecessary duplication. In this context, it is recognised that there is already in existence a number of appeals structures across several regulatory regimes and that it may be possible for the new charity appeals tribunal to avail of existing resources and facilities in carrying out its statutory role, which would reduce overheads and lead to a more streamlined process. This amendment provides for that possibility and is consistent with the principles of better regulation.
The previous amendment referred to auditors not being able to do their own accounts. We do not want this legislation, the regulator and the regulator's office to cost a fortune. We raised this on Second and Committee Stages. We must streamline this area as much as possible, use whatever Government agencies and resources are available and not have the charities or the taxpayer obliged to pick up the tab where that is not necessary. I hope the Minister will streamline it and that the regulator will be instructed when he or she is appointed to ensure that costs are taken into account, particularly in the current climate.
During the passage of the Bill through both Houses I noticed there is great appreciation of the vital role that trustees play in the operation of charities. I am also aware of the need to protect the interests of trustees of charities. I wish to ensure that they are not made unfairly liable for commitments they enter into in good faith on behalf of charities. I also wish to ensure that those engaged in charity work can undertake the role of trustee without being worried that this role might have negative financial implications for them.
I have already amended the Bill to enable charities to use charitable funds to indemnify trustees against personal losses arising where there they have acted in good faith. In the Seanad, the Opposition Senators welcomed the insurance provision. However, it was considered that there might be a high cost involved in taking out such a policy, particularly where potential liabilities might be considerable. Accordingly, Senators submitted amendments relating to trustee liability. I agreed to reflect on the matter and did so in consultation with the office of the Attorney General. My advice was that a trustee could only be personally liable where there is a breach of the fiduciary relationship by the trustee with the consent of the trustees. Where a trustee acts in good faith in carrying out its business with a body such as a statutory body, there is really no way the trustee would be personally liable.
Nonetheless, to remove doubt, I decided to table an amendment to deal with the issue raised by allowing the court to grant relief to charity trustees from personal liability for a breach of trust, where the trustees acted honestly and reasonably in good faith. I am confident this will offer reassurance to those who act as trustees to charities or who are contemplating such a role.
I agree with this amendment. People give their time free to charities. In any organisation people can make mistakes. Nobody should be personally liable if they are doing something in a voluntary capacity. It is not easy at this time to get people to work on behalf of charities. Their home, family or livelihood should not be put at risk if they make a genuine mistake. There should be some insurance coverage from the charity and it should come from the funds. The person should not be out of pocket when they are giving their time, effort and commitment to the charity.
In the legislation there are two specific aspects to cover regarding the welfare of trustees. The concern was raised that trustees could not leave themselves exposed and liable. There is the option of insurance to indemnify them but there is also this new section which relates to trustees who have acted honestly, reasonably and in good faith to ensure that they would not be liable.
Seanad amendments Nos. 67, 68 and 69 are related to Seanad amendment No. 66. Seanad amendments Nos. 66 to 69, inclusive, may be discussed together.
Seanad amendment No. 66:
Section 90: In page 66, lines 14 and 15, to delete "exempt or unlawful activity" and substitute "exempt activity, begging or receiving alms".
These amendments are redrafting and technical amendments, consequential upon each other, that are being inserted on the basis of legal advice. The purpose of the amendments is to clarify that the provisions of the Bill do not apply to begging or receiving alms by individuals.
Seanad amendments Nos. 71 and 72 are related to Seanad amendment No. 70. Seanad amendments Nos. 70 to 72, inclusive, may be discussed together.
Seanad amendment No. 70:
Section 91: In page 70, to delete lines 5 to 10 and substitute the following:
(a) a collection box into which money is placed shall bear the number assigned in respect of the collection and specified in the collection permit concerned and shall, unless the Authority otherwise directs as respects the collection concerned, be sealed in such manner as will prevent access to money placed in the box while the seal remains in place;”.
The Bill is designed to enhance the security of both cash and non-cash collections and thus bolster public confidence. To this end, the Bill provided that cash collectors must use a sealed box. This was intended to address the open bucket method, which can give rise to concerns about the security of the collection. However, this gives rise to concerns in the charity sector that were reflected in the Seanad debate. The concern was that the provision did not accommodate collectors giving change to donors where fixed price tokens were sold. Deputy Ring raised this matter late in the debate and I assured him we would try to deal with it. He mentioned Daffodil Day and other collections. It got a further airing in the Seanad and these amendments are the response.
While the Bill is intended to enhance security, it is not intended to unduly hinder collectors or to discourage potential donors from purchasing a token because the collector could not provide change. The approach needed was to allow for exceptions to be made to the sealed box rule without compromising the general principle behind it. I took legal advice on the issue and Seanad amendment No. 70 will allow the authority some discretion in applying the sealed box provision, which is the principle behind these amendments.
With regard to Seanad amendments Nos. 71 and 72, I propose to amend, on the basis of legal advice, the original Government amendment that was made to this subsection in the Seanad. The Street and House to House Collections Act 1962 applies to collections undertaken by both charities and non-charities. In framing amendments relating to collections by charities, it is important that we do not impose obligations on non-charities that they cannot meet. Under the original amendment made in the Seanad, even non-charities would have been required to have their registered number on their collection boxes. However, as only registered charities will be allocated a registered number by the new authority, it would have been impossible for non-charities to meet such a legal requirement. On the basis of legal advice, therefore, I am removing this obligation in the case of non-charities, although they will still be required to have their name displayed on collection boxes.
In addition, the Bill currently provides that charities are required to display the charitable purpose for which the collection is being held on the charity collection boxes and on garments worn by non-cash charity collectors. The sector made representations to the effect that were the charitable purposes to change, for example, were a charity to hold a collection in respect of a natural disaster in one country followed by another collection in respect of another disaster in another country, under the Bill as currently drafted the charity would have to purchase new garments or collection boxes which would give rise to additional costs. I do not wish to impose any additional compliance costs on charities where these can be avoided. The revised amendment No. 71 and amendment No. 72, therefore, remove the requirement to show the name of the particular charitable purpose for which the collection is being held on the charity collection boxes and on garments worn by non-cash charities' collectors respectively, although charities will be still required to display their name and their registered number.
I compliment the Minister of State, who is correct. Late in the day this problem arose when we were contacted by a number of charities which were concerned about the sealed boxes. I compliment the Minister of State on introducing the necessary amendment and dealing with it. As he stated, people make a donation and want to get change back. He dealt with it effectively. I support the amendment.
I thank Deputy Ring. In fairness, it was he who initially brought the matter to my attention and I am glad to have been able to deal with it.
I move amendment No. 1 to Seanad amendment No. 71:
Section 91: In paragraph (d), to delete all words after “a collection box shall” and substitute the following:
"(i) in the case of a cash collection on behalf of a charitable organisation, bear the name and registered number of the charitable organisation on behalf of which the collection is being made, and
(ii) in the case of a cash collection on behalf of a body other than a charitable organisation, bear the name of the body on behalf of which the collection is being made,
in a prominent and clearly legible manner.".
Seanad amendment No. 72 was already discussed with Seanad amendment No. 70.
Seanad amendment No. 72:
Section 91: In page 70, to delete lines 32 to 40 and substitute the following:
"(i) in the case of a non-cash collection on behalf of a charitable organisation, bears the name and registered number of the charitable organisation in a prominent and clearly legible manner, and".
Seanad amendment No. 73 was already discussed with Seanad amendment No. 38.
Seanad amendment No. 73:
Section 91: In page 71, line 45, to delete "91” and substitute “91(1)(a)”.
I consider it key to this legislation that organisations that are not charitable in nature should be prevented from presenting themselves to the public as charitable. I want to be sure that donors to charity can be sure that their donation for the benefit of a good cause is not diverted for personal profit. In this context I am very aware of the disquiet that both Deputies and Senators have expressed about those pre-signed mass cards sold in shops and not obtained from or with the consent of the Catholic church.
There was no doubt that the pre-signed mass cards are widely for sale in shops and this practice has given rise to two big concerns. First, there are fears that these mass cards are often being sold on a for-profit basis with perhaps only a small portion of the purchase price, if any, given to the benefit of the priest or church. Second, there is a worry that no mass is ever offered in respect of the intention specified on the card.
Deputies will be glad to know that I have taken on board the concerns expressed to me on this topic and following consultations with the Office of the Attorney General, I am proposing an amendment to the Bill to the effect that anyone who sells mass cards must be able to show that he or she has entered an agreement with the church to do so. I hope this will set people's minds at rest on the validity and authenticity of such cards.
I consider that this measure, combined with the authority's power to provide information to the public through the likes of public information campaigns or guidelines, and also the provisions in the Bill that prevent non-charities from holding themselves out as charities, will help people to identify genuine charities from other organisations which are not charitable in nature. The church itself will have an important role to play to ensure the success of this approach and I understand that it is committed to playing its part.
Deputy Ring and I spoke about this in the Dáil on Report and Final Stages. I made a commitment we would continue to discuss it with the Attorney General and this is the amendment that we brought to the Seanad.
I tabled an amendment on this on Committee Stage. I cannot recall whether we put it to a vote, but the Minister gave a commitment that he would examine it. He has done that and introduced the necessary amendment, which I welcome.
Since then I received many representations from people who say that what the Minister of State proposes is unconstitutional. I want him to assure the House that he has received advice from the Attorney General that this is not unconstitutional and what he is doing is legal and cannot be open to challenge. I understand he cannot stop anybody from bringing the matter to the High Court and the Supreme Court, as the case may be.
Personally, I cannot be hypocritical. I welcome the amendment. For years people were concerned about this. The church itself was being ripped off. A church report found there were priests who were dead whose signature was being used on mass cards for which money was being collected. People were paying money to have a mass said and that was not happening.
I hope the Minister of State can confirm that he is quite satisfied with the advice that what he proposes is legal and is not open to challenge.
I welcome these amendments to the Bill, but this new section in particular. I apologise for not being here earlier; I was at a committee meeting.
Much needs to be done in this area and, hopefully, this legislation will address the problems of non-charities purporting to be charities. Anybody living in Dublin will know the amount of supposedly charitable organisations who are looking for donations, for clothes or whatever. Hopefully, that will be ended and the charities who are in dire need of the donations will get them. In this case the church would get the money, as intended, so that it can function properly and is not dependent on the State.
People setting themselves up as charities selling mass cards which do not do what they are supposed to do amounts to robbery. I welcome this amendment and the provisions in the end of this Bill to address these shortfalls.
I acknowledge that Deputy Ring highlighted this on a number of occasions, as did many other Deputies. When the Charities Bill was first mooted, every Deputy was aware of issues related to mass cards, the scams that go on and the malpractice. It did not prove easy to effect this change. If it had, we would have accepted amendments earlier.
I am not a legal person, but this Bill, and this section, was drafted with the aid of advice from the Office of the Attorney General. Obviously, I cannot stop a constitutional challenge, but this is not something that a layperson wrote. It came from the highest legal authority in this State. I want to assure Deputies of that.
Seanad amendment No. 75 is on the substitute list of amendments circulated on 3 February 2009. Seanad amendments Nos. 76 to 83, inclusive, are related. Seanad amendments Nos. 75 to 83, inclusive, will be discussed together.
Seanad amendment No. 75:
SCHEDULE 1: In page 74, line 2, to delete "15" and substitute "20".
I am very conscious that the new charities regulatory authority will face significant challenges. In addition to its broad regulatory and supportive role, the new authority will also be taking on the complex functions of the Office of Commissioners of Charitable Donations and Bequests for Ireland, which is to be dissolved. For this reason the new authority must be able to draw on a wide range of expertise and experience. In view, therefore, of the complex work that will be undertaken by the new authority, on the basis of the advice of the Attorney General, it is proposed to increase the maximum potential membership of the authority to 20.
Amendment No. 75 is intended to ensure that the authority will have available the diverse range of skills necessary to enable it to undertake its broad remit efficiently and effectively. This will also facilitate the authority in forming committees to which specified decision making may be delegated as the Bill provides.
On a related matter in the context of the membership of the authority, the issue of the exclusion of public representatives, and specifically members of local authorities, from the board of the new authority was raised in the Seanad debates. I suppose Deputy Ring is not surprised the Senators raised that particular matter.
However, I seriously reflected on the issue and I can acknowledge the point that people who serve as local authority representatives may well have the skills and experience which could enhance the work of the board of the new authority. Accordingly, I made those changes on Report Stage in the Seanad and amendments Nos. 76 to 83, inclusive, collectively remove the automatic exclusion of members of the local authorities from membership of the authority in paragraph 8 of Schedule 1 and in consequential paragraphs. Of course this does not actually mean that councillors will be appointed to the board of the new authority but it will make councillors, with the relevant experience and interest who may have much to offer the new authority, eligible for appointment.
I commend these amendments to the House.
I want to make two points, the first of which relates to the member of the authority. The Minister of State is talking about increasing membership of the authority from 15 to 20. I shall not divide the House today on this, but I hoped that 15 people could do the business necessary in this regard. Fine Gael wanted the Department to implement this rather than a regulator. However, this is the one time we need a regulator and a board of 15 people is sufficient. I know the legislation is very complex as regards this, but I hope it will stay at 15, again given the economic climate.
As regards not excluding local authority members, I support that. Some Senators were very anxious to tell councillors throughout the country that this amendment was accepted by the Minister of State, and in fact I had a good deal of representation from local authority members from all over the country. Some of them thought they would automatically be on the board, given the way the letters were drafted. As someone who has come through the local authority system, I make no apology. If local authority members have the qualifications and the professional background required to be on the board, I see no reason they should be excluded. As the Minister of State has said, there is no guarantee that they will be on the board, but they should not be excluded, no more than a High Court judge or anybody else who might be entitled to serve, if he or she has the qualifications.
I was going to divide the House, but I will accept the amendment, while asking the Minister of State to ensure that the board numbers are kept tight. The cost factor must be kept down. We do not want to see another quango getting out of control and not answerable to anybody.
I know the Deputy will not divide the House, but on a point of clarification, as I said in the Seanad, this is an enabling measure which says the authority could comprise as many as 20 members. That does not mean that it will. It would be remiss of us not to have that provision and have to come back with further legislation. However, it is not the intention that the authority will necessarily have 20 to begin with.
Just to clarify as regards local authority representatives, the legislation specifies clearly the type of experience the people on the new authority would need to have. I did not think it appropriate, however, and saw no specific reason simply being a member of a local authority would automatically exclude somebody, and as a consequence I removed that. The Deputy is right, however. It does not guarantee anybody a position.
Before we finish with this Bill I just have a few words for the Minister of State and his staff. I thank the staff for the co-operation they afforded to me and Deputy Wall. If there is something in the legislation that we do not see right now that might affect the charities, the Minister of State gave a commitment as regards a review and said that we could come back to it again, in the event. I ask that we should be allowed to return to the House and make the necessary amendments, should this occur.
A man attended my clinic last Monday, and said that people had called to him the week before looking for a charitable donation. The people were his neighbours and he felt obliged to part with the only €20 he had in the house. I appeal to the public as regards charities. We are living in difficult economic times. People who collect for charities should ensure they are worthy causes. They should not just think up ideas for collecting for charity. People are going through difficult times. Irish people are very decent and will always subscribe when necessary, but they should not be put under pressure.
I thank the Minister of State for his kindness and I must say he did a good job.
This has been complex legislation. We are trying to regulate a system that has been around for a long time and obviously are trying to maintain confidence in the charity sector, with transparency and so forth, without adding undue burden. It is in that context that we realised at an early stage there would be a requirement for a mandatory review in five years' time. It has proven to be very complex. As far as possible we have taken on board as many of the recommendations as we could, from all sides.
I thank my predecessors, the Minister of State, Deputy Noel Ahern and Chief Whip, Deputy Pat Carey, for bringing this long awaited legislation before the House in the first instance. Just mentioning two predecessors and myself in this regard will give an idea of the complexity of the legislation. I also specifically thank Members of the House for their contributions to the debates. Although we have to return to the Seanad for one brief technical amendment, I particularly thank Deputies Ring and Wall for their personal interest in the legislation and for their contributions to the stages that I have led in the House. They have been very constructive and helpful and the Bill reflects a genuine effort at co-operation from all sides.
I am sure Deputy Ring will join me — and Deputy Wall would if he had not left the Chamber already — in thanking the officials of my Department, in particular Mr. Joe Hamill and Mr. Terry Dunne. I do not know whether one is supposed to mention the names of officials in the House, but anyway, I want to say it. Apart from assisting me, they made themselves available to Members on the other side of the House and engaged with the sector as well. In other words, we were bringing forward informed proposals, trying to reflect what the sector wanted and how we could manage it in that regard. They were very hands-on and proactive and I would specifically like to thank them here and have their work recognised.
I totally agree with the Minister of State.
We have enhanced the Bill to a considerable extent. Having to come back here with 83 amendments sounds an enormous task, but that was because of the spirit of co-operation. It is somewhat unusual to have so many of our own amendments, but that was to try and accommodate people, as far as possible. The Bill we have passed here today has improved as a result of those changes.
A message shall be sent to Seanad Éireann acquainting it accordingly, and requesting its agreement to the amendment to Seanad amendment No. 71.