Joint Sub-Committee on Human Rights relative to Justice and Equality Matters debate -
Wednesday, 24 Jun 2015

Charities Act 2009 and Advancement of Human Rights: Discussion

Chairman

The purpose of this meeting is to have an engagement on the provision of the Charities Act 2009 and the exclusion of the advancement of human rights from the list of charitable purposes. I am pleased to welcome Dr. Oonagh Breen here today. She is a senior lecturer in law at UCD. I also welcome Mr. Ivan Cooper, who is director of advocacy at The Wheel. We know the witnesses' time is valuable and we really appreciate their giving it to help us in considering these issues. I understand briefing documents on this matter have been circulated to members. I will invite the witnesses to make an opening statement of approximately five minutes on the key points. We will then have a question and answer session with members.

Before we begin, I have to draw the attention of our witnesses to the situation in respect of privilege. By virtue of section 17(2)(l) of the Defamation Act 2009, they are protected by absolute privilege in respect of the evidence they are to give to the committee. However, if they are directed by the committee to cease giving evidence in relation to a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that where possible they should not criticise nor make charges against any person, persons or entity by name or in such a way as to make him or her identifiable. Members should also be aware that under the same rulings of the Chair, members should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable.

Will those present please check to ensure their mobile telephones are switched off or are in airplane mode so that they do not interfere with the sound recording system? I now invite Dr. Breen to make her opening statement.

Dr. Oonagh Breen

It is a pleasure to appear before the committee this afternoon and I thank it for the invitation. I have already submitted some published work with which the committee may have had an opportunity to engage. In the five minutes allotted to me, I hope to highlight the main issues, which can be delved into further during the question and answer session, as they are pertinent to the committee's work. The Charities Act 2009 put forward a new statutory test for charitable status which comprises two elements. An organisation must fall within the list of charitable purposes as set out in section 3 and it must also meet the public benefit test. Half is not enough; it must tick both boxes. The new list of charitable purposes, however, deliberately excluded the advancement or promotion of human rights. It had appeared in the heads of Bill in 2006 but it disappeared by the time the Bill was published in 2007 and the Act was enacted in 2009.

I have argued for a long time that the rationale for its exclusion was legally misguided. It emerged during the hearings relating to the enactment of the legislation that the exclusion was based on Revenue practice. Revenue practice is often very hard to determine because Revenue matters are private. There is not much published information in this area but there is a 2001 Revenue charities manual which cites the reason for the rejection of charitable tax exemption status for human rights organisations as lying in the case of McGovern v. Attorney General, which is an English case. In its manual, Revenue states, about the case, that the promotion of human rights equates to the promotion of political activities and therefore is not charitable. I am happy to deal separately, in response to questions, with the existing situation for human rights organisations in terms of tax relief as that sheds another light on the subject. It is something to which we might revert under the Taxes Consolidation Act 1997, if that is of interest to the committee.

Turning to the McGovern decision, because it is important to us here today, it is important to be aware of what happened in the case. Amnesty International had sought charitable status in England but it was rejected in 1981. At the time, Revenue said what it was doing was primarily political as it was seeking relief for prisoners of conscience by having laws changed to ensure a higher standard of human rights for those prisoners. When one looks at the judgment, the High Court does not say that it is uncharitable to promote human rights. It does not say that the promotion of human rights is not a charitable purpose. In fact, Mr. Justice Slade says the opposite. He tells us that under the common law, the promotion of human rights and anything that gives relief of distress of one's fellow man falls within our notion of a good and compassionate purpose and that, therefore, can be a charitable purpose in its own right - there is nothing intrinsically uncharitable about it.

In the years after the McGovern case, the charity commission picked up on another head of charity, the mental and moral improvement of man, and said human rights is tied into that and that it was also a charitable purpose. At this point there was no reason for Irish policy makers to exclude the promotion of human rights from the list of charitable purposes in the Act.

Having a charitable purpose does not give one charitable status. To return to my original point, it is a two part test - one must have the charitable purpose but there must also be a public benefit. The public benefit part of the test is where the McGovern case was lost. They could not prove to the court's satisfaction that there was public benefit attached to what Amnesty International was trying to do in 1981. Today, we would view that in a different light. We have moved on very much in the past 30 years in terms of our treatment of human rights and how it is incorporated into both international and national legal norms. For example, both the UK and Ireland have incorporated the European Convention on Human Rights, so we have moved on greatly in that regard.

My written submission breaks down the legal points that were involved in the public benefit issue. If the committee wishes, I will go into that in detail. However, I am conscious that the committee only wishes to have an overview at present, so I will step aside from those to give the committee a current contemporary perspective. Where do we stand as against other countries in terms of our promotion of human rights? We lag behind in this regard. Many of our common law neighbours who have updated their charity legislation in recent years have expressly included the promotion of human rights or its advancement as a heading of charity in their Acts. The 2005 and 2011 English and Welsh Acts, the 2005 Scottish Act and the 2008 Northern Irish Act have specific references in their lists of statutory charitable purposes to human rights. We are the outlier in this regard by not including it in our legislation.

If we look further afield, the law in this area has also evolved. We can look at our far flung neighbours in New Zealand, Australia, Canada and the United States. All of them allow for human rights organisations to be involved in this type of work, to advocate on behalf of their constituents and beneficiaries, and it is not seen as political activity. It is seen as either supporting existing law or advocating for a change in the law in a direction in which the law is changing for better in any case. There are really good precedents in that.

I conclude by drawing the committee's attention to the reason that this is important in terms of charity legislation. At present, because we exclude advancement of human rights from our statutory definition, we force human rights organisations into disguise of their objects. They must either bury what they are doing in their memorandum and articles of association and not come out and say they are for the advancement of human rights, and bodies have come to me who have said, "Help us draft them so we can do what we want to do but it does not raise red flags for the regulators", or they must hive off their ostensibly non-charitable activity into a legal subsidiary, so one ends up with the subsidiary doing the controversial human rights advocacy work and the foundation that gets charitable tax exemption doing the safe research and publishing the reports. It makes work for these organisations when they should be able to put it directly into the single entity.

Second, if we introduce promotion of human rights as a charitable purpose, it will bring us into line with good practice in all of our neighbouring countries which expressly recognise it in their statutes.

Third, we came under criticism from the-----

Chairman

I am sorry to intervene, but there is a vote in the Dáil. We will have to suspend the sitting for some minutes and resume when the vote is over. I am sorry about that, but it is outside our control. If Dr. Breen is nearly finished, perhaps she could conclude.

Dr. Oonagh Breen

I have two further points to make.

Chairman

Make the two points before we suspend.

Dr. Oonagh Breen

The UN Special Rapporteur on the situation of human rights defenders in Ireland produced her report in 2013 and she specifically drew attention to her concern over our failure to implement the advancement of human rights. From a regulatory perspective, we cannot regulate the organisations if they are not allowed to register. We set up a great charities registration system but they cannot be accountable and we cannot call them to account because they are not allowed to register under the system.

Finally, it makes sense to align policy. If the Department of Foreign Affairs and Trade is working really hard with the UN Human Rights Council and sponsoring motions that create and preserve civic space and at the same time at home we do not afford that same right to our domestic organisations, that is a contradiction in policy terms in which we really should not be engaged. We should be singing from the same hymn sheet here. If we are working very hard on the Department of Foreign Affairs and Trade side of things and in the UN Human Rights Council, we should at least be consistent on a policy basis at home with regard to domestic organisations.

Sitting suspended at 2.46 p.m. and resumed at 3.04 p.m.

Mr. Ivan Cooper

I work with The Wheel which is a national association of community, voluntary and charitable organisations. It has been going since 1999 and now has over 1,100 organisational members. We did a lot of work during the development of the Charities Act 2009 when met some of the members here, but one of the outcomes we could not secure was the inclusion of the advancement of human rights as a charitable purpose in the Act. That is the reason we are here.

As Dr. Oonagh Breen has already mentioned it, I will not review the charity test other than to point out that it has two components. An organisation must exist for a charitable purpose and it must have a public benefit for it to be considered a charity.

In looking at human rights in the context of the Charities Act I have four questions which I propose to briefly explore in this introductory statement. Why is the advancement of human rights not recognised as a charitable purpose in the Act? What are the consequences of this? Does it have to be this way? What can be done about it?

On the reason the advancement of human rights is not included as a charitable purpose, in simple terms, the Charities Act, 2009 was drafted to include only the purposes recognised as charitable at the time by the Revenue Commissioners. That is the official line on the matter. The Revenue Commissioners do not recognise the advancement of human rights as a charitable purpose. The Minister for Justice and Equality at the time, Deputy Alan Shatter, noted in his speech on the Charities (Amendment) Bill 2014:

The Government does not support the amendment to include the advancement of human rights in the list of purposes ... This is not due to any lack of recognition of the vital role of human rights organisations in our communities ... Rather it is in light of the importance of ensuring that the new system of regulation of charities is appropriately aligned with the system of charitable tax exemption that has long been operated by the Revenue Commissioners.

Dr. Breen has outlined the speculated reasons the Revenue Commissioners do not recognise it as a charitable purpose. I will skip the points summarised in my submission and ask Dr. Breen to provide further detail.

On a more positive note, the Charities Act 2009 only excludes from the register of charities "bodies that promote a political cause unless the promotion of that cause relates directly to the advancement of the charitable purposes of the body". I mention this because there is a relation between the question on general lobbying and advocacy and the attitude of the charities regulator and the Revenue Commissioners and the issue of the advancement of human rights being excluded as a charitable purpose. Both are considered to be related in some way to changing Government policy, which is viewed essentially as being political. The win is that it is recognised that a charity can advocate in furtherance of a charitable purpose as long as the advocacy is related to the specific charitable purpose being advanced. This welcome provision permits the inclusion of bodies in the register of charities that promote political causes related directly to the advancement of their charitable purpose. What this is generally taken to mean is that advocacy activity engaged in by a charity is acceptable as long as it is solely in furtherance of its charitable purpose. That is seen as a positive feature of the Act.

On the consequences of this, the Charities Act 2009 excludes organisations explicitly focused on the advancement or promotion of human rights from securing charitable status. Because the advancement of human rights has been excluded as a charitable purpose and because the Act requires all of a charity's assets to be applied solely to a charitable purpose, no charitable organisation can explicitly claim to be solely concerned with advancing human rights through its work, unless it is already included in the special arrangements Revenue has made for organisations with the United Nations and the Council of Europe that Dr. Breen referenced. Many charitable organisations understand they are involved in some way or another in meeting people's unmet needs and in vindicating their unfulfilled rights. Not to be able to make such a public statement without fear for their charitable status prevents a charity from doing full justice to the scope and intent of its work. It can also be reasonably argued that it has the effect of delegitimising the work of human rights promoting organisations, characterising their efforts as political and contestatory in nature, perhaps even not deserving of public financial support, reducing such organisations to the status of just another pressure group when such organisations are simply seeking to ensure the State implements policy to which it is committed in international human rights conventions and agreements. It can further be reasonably argued that it does not do justice to the organisations working to protect human dignity. It can be argued that it has the effect of constraining what existing charitable organisations feel free to advocate on, in particular human rights and rights generally.

In the context of the significantly increased regulation that charities now find themselves subject to - the charities regulator and the regulation of lobbying - which set interconnected and increasingly demanding requirements relating to advocacy by charities, the non-charitable status of human rights advocacy adds to the general sense that charities are only valued for responding to people’s particular needs in the here-and-now, and are not valued for their work in developing and advising on necessary policy to address the causes and consequences of peoples’ needs in the future.

Does it have to be this way? I do not think so if we have a will. Dr. Oonagh Breen has already pointed out that the promotion or advancement of human rights is regarded as charitable in many other jurisdictions, in particular, in the common law jurisdictions with which we share a particular heritage. What is it about our circumstance that prevents us from naming what has been recognised in our nearest common law jurisdictions as a charitable purpose? Why are we so different? What is it about their systems that court precedents do not seem to have restricted their ability to accommodate human rights? What we can we do about this issue? We are here today, which is a good start, and that reflects political interest and a will to understand and address the issue.

A solution will clearly require legislative action as court precedents and judicial understandings appear to be driving current practice, which in turn appear to be used to justify the status quo. Is it simply a question of making the decision to include the advancement of human rights as a charitable purpose when the five year review of the Charities Act 2009 takes place? Or do the judicial and precedent issues identified above need to be addressed separately? Are there unstated worries that recognising human rights might be abused in some way by what may be termed “quasi party-political interests”? I do not know.

Is there something else going on? Surely we can find a way forward that accommodates the advancing of human rights within the framework of charitable purposes, while at the same time respecting the distinction between electoral and party politics and the charitable realm which we understand is necessary.

Chairman

I thank Mr. Cooper. Who wants to begin with questions or comments? Is nobody offering?

Senator Ivana Bacik

I thank the representatives, both of whom have made a very persuasive case. It seems that a relatively straightforward amendment could be made. I wish to make two points.

First, the current position does not exclude all those bodies who promote human rights. Mr. Ivan Cooper referred to the proviso regarding the promotion of the clause relating directly to the advancement of charitable purposes. Can either of the representatives give an example of the type of organisations that are able to avail of that exemption and, to assist us in making any submission, the type of bodies that cannot? In other words, what are the bodies that are currently not gone to charitable purpose or that have to go through the hoops, which Dr. Oonagh Breen mentioned, in setting up the non-political foundation and so on? Some concrete examples would be useful to us.

Second, I am not on top of this area. The Charity Commission for England and Wales, as Dr. Oonagh Breen mentioned, has carried out a guidance and the space for charity involved in the political sphere. This is soft law. Clearly, it is not in legislation but these are guidelines. Can she say a little more about how that operates alongside the statutory provision and is that a model we could usefully use here?

Chairman

Who wants to take that question?

Mr. Ivan Cooper

In regard to concrete examples, this is where it gets a bit tricky. The issue is that an organisation cannot come out and say, "What we are really about is promoting human rights but we had to play the system so we had to devise these memo and articles that make it look as though our purposes are not about promoting human rights". It is difficult to identify concrete organisations that have found themselves in this circumstance where, effectively, what they have had to do is re-characterise themselves as being about addressing certain issues when in fact if the promotion of human rights was a charitable purpose they might have more properly characterised themselves as being first and foremost about promoting human rights. The circumstance currently is that the promotion of human rights is not regarded as a charitable purpose in and of itself, so organisations cannot effectively claim that one of their purposes is about the promotion of human rights. It is a kind of catch-22 situation. Dr. Oonagh Breen has indicated one of the consequences of that. This is where it ties in with the advocacy question. I have referenced the advocacy and the lobbying question.

It is not a charitable purpose for an organisation to be a full-blown campaigning organisation that does no service delivery work or no information and advice and support work with a particular beneficiary group but only regards itself as being a purely advocacy organisation. Revenue has historically raised issues in regard to that. The current Charities Regulator is expected to continue that approach. What it means is that purely lobbying activity or purely advocacy activity is not regarded as charitable. Organisations that do that have to show that the advocacy activity they are doing is in furtherance of delivering the charitable purpose. That ties back across to the idea of human rights which is regarded, as Dr. Breen has indicated, as being essentially political in nature because it is solely concerned with changing the rights or legislative status quo. It is therefore deemed as being effectively a form of advocacy activity. That, it seems to me, is the complicating factor. There are organisations that have ended up structuring themselves in such a way, as Dr. Breen has indicated, whereby they have a charitable entity that conducts research and activity and another entity that is not directly related to them that does the advocacy work that does not have charitable status. It is, arguably, unnecessary.

Senator Ivana Bacik

There was also the point about the soft law, the guidance.

Dr. Oonagh Breen

In terms of an example, I am always reluctant to give names of organisations, but ICCL has a foundation and the foundation has charitable status and it does its research through it. ICCL is a great organisation in the community advocating on a general basis but it does that through a different structure. That is one clear concrete example of a body that has had to develop its legal status to allow it to accomplish all its aims.

In terms of the soft guidance, the Charity Commission for England and Wales, even prior to the enactment of their Charities Act 2006, which was the first Act that gave statutory recognition to the advancement of human rights as a charitable purpose, had begun to engage with this issue. From the McGovern case in 1981, through the 1980s, into the early 1990s, it had to engage with human rights organisations and provide some indication of what they could do, if human rights was a charitable purpose, that did not offend the public benefit part of the test that one could stay within the law. It had issued guidance through the 1990s. The best source to which I could refer the Senator is a document called CC9, which was revised in 2008. It is aimed at all charities and explains what they can do in the political sphere without losing their charitable status. The reason it is particularly relevant here is that it draws on examples from human rights organisations because they are aware that this is particularly relevant to such organisations.

They use two terms in this guidance. They talk about campaigning. They say that charities can engage in campaigning. Campaigning is defined as awareness raising, public persuasion, all of which is related to ensuring enforcement of existing law, and advocating in a way to ensure that the law that currently exists is upheld and maintained. Campaigning is distinguished from political activity. The Charity Commission for England and Wales defines political activity as seeking a change either in the law or in the policy of a country. In the past it would have said charities cannot do that at all, that is the prohibited piece of the jigsaw. Interestingly, what it says in this guidance is that charities can engage in political activity for a particular period to bring about a certain end which is in line with their charitable purpose. It allows them to put all of their resources towards it to achieve a goal but it cannot be their ongoing, permanent, sole, primary goal. In the course of carrying out their bigger, charitable objective there can be times when a charity can do this. That is very useful, practical guidance. What is nice about this document is that it is written by someone who speaks plain English.

The examples are good, so I would commend it to the committee and would be happy to supply a copy afterwards if it would be of use. It is just a starting point. We do not always have to reinvent the wheel. It is much better to enable organisations and allow them come in. They say in the US that one does not want to exclude someone or a voice from the marketplace of ideas. That is what we are talking about here. We are talking about a human rights organisation being able to step forward and explain why we should change the law. We are not saying the law is going to change. They do not have that control. They are just another voice contributing to the debate, which makes us a better society and community. It is much better to have those voices in the forum and then let the majority and the people decide. We should not exclude them. We are cutting it off at the top. As Mr. Cooper said, we are de-legitimising them by telling them they cannot come in and speak, that they lack that right. That is wrong.

Chairman

Has Senator Bacik any further questions?

Senator Ivana Bacik

No.

Deputy Anne Ferris

I would like to welcome Dr. Breen and Mr. Cooper here today. Their presentations and what they have said make perfect sense and I cannot understand why the issue has not been dealt with previously. Organisations with charitable status have made presentations seeking to have laws changed, for example, organisations like Womens Aid and other different organisations. These organisations need laws changed so as to be able to help women who are suffering. They are involved in the protection of human rights of these women. Therefore, there is an anomaly here.

It must be exhausting for organisations to try to separate what they can do under charitable status from what they can do without it so as not to cross over between the two areas. That must be exhausting. I had an idea about what needs to be done. If we look at what has been done in the United Kingdom, in Scotland, Wales, England and Northern Ireland, it is clear they have managed to deal with this issue without the world collapsing. It is high time we did the same. This committee and its rapporteur will make recommendations to the Minister for Justice and Equality and to Revenue in regard to how we can make progress on this. The situation is a joke as it stands.

I thank the witnesses for coming in and explaining the situation to us in plain language.

Mr. Ivan Cooper

Just a couple of points worth making, we now have a new charity regulator up and running here. This provides an opportunity to build on the point just made by Dr. Breen in regard to the United Kingdom's Charity Commission guidance on advocacy. The charities regulator will turn shortly to developing Irish guidance on advocacy activity in order to provide a similar sense of reassurance to organisations on how they should approach their advocacy activity. The committee should be aware of the opportunity to contribute to that. Then, in due course we will have the review of the Charities Act and the committee could make a recommendation and put forward a straightforward amendment for the inclusion of advocacy for human rights as a charitable purpose.

I would, however, make an observation. On the face of it, the reason the promotion of human rights is not a charitable purpose is that when the Act was enacted, it was deemed to be an Act that effectively reflected current practice. That was the idea and it was not about creating new charitable purposes that had not already been recognised. Therefore, somewhere along the way, we will be required to engage on the question of whether to take the step to move consciously to include advocacy on human rights as a charitable purpose. We must examine whether the reasons that have been articulated for that move are the reasons we need to be aware of, or whether there is some other reason the promotion of charitable purposes was not included. No effort was spared by a number of organisations to make the recommendation to include it, but it was very difficult to get any answer as to why it was not included, other than the fact that it was never the intention of the Act to be anything other than an Act that reflected the then prevailing approach. More work could be done in this regard.

Dr. Oonagh Breen

The committee should note section 7 of the Charities Act, because the effect of section 7 is to decouple Revenue and the Charities Regulatory Authority. This means the Charities Regulatory Authority can decide that an organisation can register as a charity and have charitable status, but Revenue can then make its own separate decision as to whether to give charitable tax exemption status to that organisation. That can be either good or bad, because it means the two bodies must talk to each other to ensure some sort of understanding. However, in terms of human rights, it means this section can no longer be a hold on ensuring human rights and their advancement in the Charities Act. Revenue can continue to do as it has always done and decide it is not going to deal with human rights organisations under charitable tax exemption status and say that the only way it will give that exemption is if the organisation comes under the very small category of human rights organisations under section 209 of the Taxes Consolidation Act, which have consultative status with the UN or the Council of Europe and are promoting internationally recognised rights as opposed to domestic rights. Special status can be obtained under that heading. However, there is nothing to stop a provision being included in the Charities Act and then letting Revenue go its own way in terms of tax recognition and then dealing with that problem at source.

Senator Katherine Zappone

I thank the witnesses for their terrific presentations, which are very helpful to us. In light of what Dr. Breen has said, am I correct in understanding that in order to ensure the full, positive impact of including human rights organisations as charitable bodies in terms of the law, it would also be useful to consider changing that section relating to the Revenue Commission? Would she recommend that or is she making that implication?

Dr. Oonagh Breen

That section comes from the Finance Act 1973 and was meant in respect of a gift. It was at a time when we were in favour of human rights organisations. The then Government came up with the great idea that it would reward human rights organisations in a tax way that had never been done previously. Therefore, in 1973, the then Government extended tax reliefs on covenants to human rights organisations. Before then, if someone made a covenant, it was to a private individual or a university and they got the tax back. In 1973, for the first time ever, the Government extended the provision to human rights organisations and said it would give them the tax exemptions it gave to charities also.

Therefore, in 1973 human rights organisations got a double bonus. It was as if because they had not been looked after as well as they should have been in the past, the Government really wanted to promote the work of human rights organisations and would make a "gift" to them and they got both reliefs. However, there were strings attached. The strings were that they had to have consultative status, had to be promoting the UN or the Council of Europe declaration of human rights and had to have the non-profit qualification included. If an organisation met those criteria, it could, in principle, benefit. What happened thereafter was a sad and sorry story. When I checked with Revenue in 2009, just one organisation was on this list. Only one human rights organisation qualified for this special status. Therefore, the provision instead of being a major advantage, became, in the mind of Revenue, a distinguishing factor. It found human rights organisations different, not a charity and put them to the other side.

As we became more generous with our tax reliefs for those with eligible charity status, so that every charity could claim back tax paid on donations if over a certain amount, we forgot the reason human rights organisations were in this other box. It was because they were special and because in the 1970s we were trying to do something good to reward them, while at the same time being afraid to say which internal organisations were human rights organisations. We handed over that right to a proxy and decided the Council of Europe or the UN would tell us rather than decide ourselves. Perhaps that is understandable if we consider the 1970s were different times, with the Troubles.

Mr. Ivan Cooper

To add to that, the other effect is that organisations that overtly wish to characterise themselves as promoting human rights cannot fundraise for charitable purposes, because they are precluded from being on the register of charities.

I agree with the strategy outlined by Dr. Oonagh Breen. Ideally a single test for charities would be administered rather than have different interpretations of what is charitable between that outlined in the Charities Act 2009 and as defined by the Revenue Commissioners. One could find that while it may be a good strategy it has the consequence that an entity recognised as a charity by the charities regulator does not qualify for charitable tax exemptions unless whatever issue that prevents Revenue from recognising it is addressed.

Senator Katherine Zappone

I understand that the issues pertaining to the Revenue Commissioners were contained or referenced in the Charities Act 2009. Is that correct? Would those issues would need to be addressed in the relevant tax legislation or could they be addressed by amending the Act?

Dr. Oonagh Breen

If it is proposed to amend the Charities Act 2009 to include the advancement of human rights, Revenue would have something to say about it as a stakeholder. However, it may have less to say now that section 7 of the Act, which separates the two issues, is already in force. What one does on taxation matters does not control the definition of "charity". When we were writing the Act, Revenue was instrumental in deciding what was included as a charitable purpose. Anything it did not cover was not included. This is why sports and human rights are not included in the Act. It could not control the second part of the test, public benefit, because it did not have a list and it therefore stated that an organisation would not be bound by the CRA's future definition of "public benefit". It could continue to act as it did previously under the heading of public benefit. In terms of legislation, the Act already provides for regulators, such as the CRA and Revenue, to prepare memorandums of understanding. That is the most important aspect to this. We do not need new legislation, we simply need to ensure the existing provision is used so that the regulators engage with each in order to issue clear guidance to those who have to deal with both bodies.

Senator Katherine Zappone

If we recommended the inclusion of human rights organisations in the definition of "charitable" would anything else need to be changed in the Act to make it consonant with that new definition?

Dr. Oonagh Breen

At the moment we are excluding such organisations because they are not on the charitable purpose list. If human rights are included as a charitable purpose, the organisations still have to make the case that they are acting for public benefit. That is where the decision lies. We do not have any guidance from the CRA as to how that will be interpreted. Problems may arise in future but I imagine it would be preferable to address them by way of soft law, such as the guidance provided in the CC-9 document by the Charity Commission of England and Wales.

Senator Katherine Zappone

Amnesty was the first organisation to take up the case. Is that organisation recognised as a charity under the law as it stands?

Dr. Oonagh Breen

It is very interesting. When I spoke to Revenue about which organisations were able to get tax exemptions through the special list, Amnesty was the body mentioned. When I checked the Revenue's list of approved charities in advance of this meeting, there was reference to one Amnesty organisation, namely, the Amnesty International Foundation. The Irish section of Amnesty is not listed. This is another concrete example of an organisation that restructured to deal with the law as it exists.

Senator Katherine Zappone

It established independent legal entities.

Chairman

The two issues arising pertain to charitable status and charitable tax exemption status. Dr. Breen is suggesting that human rights organisations should ideally qualify for both at the same time. The tax exemption status clearly has a financial benefit but what benefits accrue from charitable status on its own?

Dr. Oonagh Breen

Under the Charities Act 2009, it is an offence to hold oneself as a charity if one is not on the register of charities. The benefit is that a charity will not get prosecuted. The public is unable to believe that a body is a charity unless its name appears on the register. This is one of the most important provisions in the Act because unless we map the sector we cannot support or regulate it.

Chairman

Is the ability to collect money as a charity the main consequence in practice?

Dr. Oonagh Breen

The purpose of the Act is to ensure there is greater accountability among charities and, as part of that process, know which charities exist and the purposes for which they are fund-raising. It comes down to confidence in and transparency of charities. This is particularly important when one considers the amount of money provided by the State through direct grants, as well as the number of people who contribute privately. It is an important sector and it should be properly regulated for the benefit of the charities doing a good job.

Mr. Ivan Cooper

State funders increasingly require that the organisations to which they provide funds are public benefit entities and have a certain status. Exclusion from the register that grants such status could have significant consequences for organisations.

Chairman

I thank the witnesses for giving of their time and expertise to brief us on this subject. Senator Zappone is our rapporteur on this and I do not doubt she will prepare a detailed paper with numerous recommendations and headings. Is it agreed that we go into private session for housekeeping matters? Agreed.

The joint sub-committee went into private session at 3.40 p.m. and adjourned at 3.45 p.m., sine die.