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Seanad Éireann debate -
Tuesday, 17 Feb 2009

Vol. 193 No. 15

Charities Bill 2007: Motion.

On 11 December 2008, the Seanad returned the Charities Bill 2007 to the Dáil with 83 amendments, to which the agreement of the Dáil was sought. The Dáil considered those amendments on 11 February, accepted all but one of them without change, but made a change to amendment No. 71. The Seanad has now to decide whether it agrees with that additional amendment made by the Dáil.

I will call on the Leader to move the motion suggesting the action to be taken by the Seanad and then on the Minister to explain the decision taken by the Dáil. I remind Senators that each Senator may speak only once on the motion.

I move:

That the Seanad do agree to the amendment made by the Dáil to Seanad amendment No. 71.

I thank the Cathaoirleach and Members of the House for affording me this early opportunity to return to the House on this technical matter relating to the Charities Bill 2007. I will set out briefly why it is necessary, on legal advice, to make a further amendment in the Dáil to the Government amendment originally approved by this House.

As Members might be aware, the Street and House to House Collections Act 1962, which is to be amended by the Charities Bill 2007 when enacted, applies to collections undertaken both by charities and non-charities. In framing amendments to the 1962 Act relating to collections by charities, it is important we do not impose obligations on non-charities that they cannot meet. Under the original amendment in the Seanad 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, were it to be imposed. On the basis of legal advice, therefore, the amendment before the House will remove this obligation in the case of non-charities. In the interests of transparency, non-charities will still be required to have their name displayed on the collection boxes.

I hope this explains adequately what is a fairly straightforward technical amendment that addresses a potential anomaly that may have arisen had the original amendment stood. I commend the amendment to the House.

Cuirim fáilte roimh an Aire Stáit. I hope this debate will not be as long as the last debate on this Bill. I welcome the conclusion of the deliberation on this Bill and the regulation of charities for the first time. That is important. The Bill, and the amendment on which there is cross-party support, has been broadly welcomed by the charities sector and by all parties in this House and the other House. It has been a long time in gestation and in delivery and I hope we are at the end of the line.

I would have liked the Minister of State to have had the regulation of the charities sector dealt with by the Department. However, I am glad that the Bill provides for a properly resourced staff, a regulatory authority that will include councillors and, at this difficult economic time, an efficient use of funding in this sector that is in great need of overhaul.

Although I hate using the word "transparency" because it is a degraded word, there is a need for transparency in how charities operate, especially their collections. We have had great discussions with the Irish Cancer Society and other organisations which have used the open box cash collection point. The important point is that through this amendment and through the Bill in general we will indemnify and allow the many genuine and hard-working volunteers who have given so freely of their time to charities throughout Ireland a sense of security and safety which is badly needed. I hope it will eliminate bogus collections and misleading organisations who parade themselves as collecting for charities which do not in fact exist. That said, I still have concerns regarding some aspects of the Bill.

I pay tribute to my colleague in the other House, Deputy Ring, on his work, specifically regarding the mass cards, the collection of clothing, etc. There is need for a stringent approach to bogus charitable collectors. I do not say that as a scrooge or as a person who is against people collecting because I myself do it for many organisations in Cork. There is a need for enforcement. If we have learned anything from the mistakes in the banking sector it is that there must be accountability. As I stated in this House, a practice must be put in place whereby charities are assisted in this transition. We cannot put all the onus on them. They must be helped to get to the point where there can be strict enforcement but whereby there is accountability and dialogue with the charitable organisations.

I am glad the Minister of State, Deputy Curran, listened. I pay tribute to him and to his officials for these proposals on the practical provisions relating to collection and licensing procedures that have been taken into consideration.

It is important that there will be annual reporting by charitable organisations. I hope smaller charities which fear the new regime do not encounter unnecessary difficulty. The Minister of State referred to that in previous debates.

I crave the Chair's indulgence to make this point. I am disappointed that we have not resolved the issue of the inclusion of sporting organisations and human rights organisations in the Bill. The Minister of State overturned the decision of the Seanad in that regard. I understand why he tabled an amendment to reverse the situation. However, I cannot see why the Government was not in a position to recognise formally the contribution sporting organisations have made to community development and welfare, and I am genuinely disappointed that the amendment in our names and made by the House was reversed by the Government for political reasons.

I again crave the Chair's indulgence. I am disappointed the Minister of State has not taken on board the collaborative viewpoint of this side of the House regarding human rights. Numerous organisations have spoken on this. We had common ground, dialogue, interaction and a willingness by all on this side of the House to move with the Minister of State on this amendment, but there was none. At this stage I still cannot understand the reason we have left human rights out of the Bill and allowed for the maintenance of the status quo. There was a quantum leap forward with respect to mass cards, bogus street collectors and clothing collectors, and uniformity of approach, but there was none regarding human rights.

Senator Buttimer must stay with the amendment.

I am doing my best. I thank the Acting Chairman for his indulgence. I will conclude on this. Charities which have human rights at the core of their mission would greatly like to see an amendment such as this made, but it has not been. They would have difficulty in any event accessing funding in the present economic climate, but now they will be at a disadvantage vis-à-vis their British and European counterparts. Who then will be able to promote human rights? The Government has culled many of the agencies promoting human rights.

The Fine Gael Party welcomes the broad principle of the Bill and we support the amendment before the House. I acknowledge that while some of the issues we raised have been addressed in the scope of the legislation, I am disappointed some have been omitted. I welcome the broad thrust of the Bill as it should prove beneficial to the sector. I welcome the provision to revisit the legislation. I hope we do so in the areas of human rights and sport.

I thank the Minister of State, Deputy Curran, and his officials. At a time when public servants get much rebuke and bad press, his officials have been courteous, efficient and diligent. I wish that Government could learn from the Minister of State and his Department's officials how to listen to us. I wished the Department had listened on the other two issues but there was a great sense of camaraderie in the way the officials dealt with us and I thank them for that. It is important that we thank the public servants who get a raw deal in many cases. In this case, his officials were forthcoming.

I hope that when we revisit the legislation we will include human rights organisations and sporting organisations. We support the amendment before us.

I dtosach, is mian liom fáilte a chur roimh an Aire Stáit agus buíochas a ghabháil leis toisc gur thug sé cluas do na moltaí a bhí ins an Teach seo. Níl aon amhras faoi ná go raibh díospóireacht an-leathan go deo anseo agus go minic bhí an dá thaobh den Teach ar an tuairim chéanna maidir le cuid de na rudaí a bhí á rá. Glacaim freisin go mbeidh reachtaíocht breise amach anseo agus le cuid de na rudaí nach bhfuil clúdaithe, go mbeidh seans againn arís iad a phlé.

I thank the Minister of State for having listened so attentively, and responded to the points which were put forward in this House. In the debate here it was quite evident that there was a degree of unanimity and consensus on both sides of the House because we realised the importance of this legislation and that there was a vacuum that had to be filled quickly.

Many people involved in charity work felt somewhat vulnerable and exposed in the absence of this focused legislation. Certainly, we must be conscious and protective of the charity area because it is vital to society. One might say in a national context that the need for people to commit themselves to charity work is probably more vital now than it was when we started the debate, especially when we are told that people are selfish and greedy. It is quite evident that many good people are involved in charities.

When the Minister of State comes forward with an amendment, we know full well he is doing it with the best of intentions and we have to bear in mind the legal advice he will have at any given time. We are looking at it, perhaps, in an idealistic and very pointed manner, which is precisely what we should do, but we expect the Minister of State to look ahead and see whether there are any pitfalls in the legislation which might be challenged later and in some way undermine it.

I have found in these debates that none of the usual points scoring was involved. We were all in this together from day one and I compliment the Minister of State because that stemmed from the tone of his address. I said from the beginning that it was one of the best addresses I had heard in the House and I had hoped it might have received broader publicity. There are times in the Chamber when one hears something specific that may become the ethos for what we are aiming at. The contribution of the Minister of State was so well crafted that it built up, included and accepted many of the issues about which we felt strongly, even before the debate started. I compliment him and the officials while agreeing 100% with Senator Jerry Buttimer that we realised there was attentive listening and not just a matter of quid pro quo. We had to listen carefully before making our points, which were listened to. That is one of the reasons Members on all sides of the House can subscribe, contribute to and endorse what this legislation contains.

To deviate slightly from the Bill for a moment and address the issue of human rights, I believe Members did not differ substantially on whether there should be specific reference to human rights or whether it was inherent in the Bill and therefore to be found by extension in other legislation as well. I believe it is at this stage, having listened very carefully. If there are any inadequacies to be found later on, there will be opportunities again in legislation to look at those.

However, I am conscious now more than ever of the need to acknowledge the whole area of human rights. People on all sides of the House will agree that a number of Senators, including myself, use the Order of Business regularly to promote the concept of human rights, and I hope this will continue. To some extent, when Ireland was very affluent and we possibly focused more on what return could be had from society, very often we forgot those who had no voice — the vulnerable, oppressed, misrepresented and under-represented — for whom it was important to get a voice. I have seen debates in this House which grew legs afterwards and were taken up in the wider society and by the broader body politic. I hope this will continue.

We should all like to believe that were we to find ourselves, as we have done historically, in that same situation, there would be a need for such a voice. Whatever the part of the world, humanity does not acknowledge borders. We have said this in relation to Iraq, Afghanistan and places where diplomacy could have replaced aggression and did not. Senator Norris and I, very much in the early stages as regards the Iraq situation, felt we were putting our heads above the parapet, but——

I thank the Senator but we are dealing with the Charities Bill.

——it was interesting that the outgoing President could only get a 27% rating, which proves the importance of the human rights argument. I hope that we shall return to that again, if necessary.

On the sporting bodies, I believe the Minister of State gave a very good explanation in that regard. Sporting bodies, which already had charitable status, will continue to enjoy it. As regards the amendment, it is quite focused in itself and there was not much room for us to address the broader issues. I accept very definitely what the Minister of State has said in this regard and we have to take cognisance of the legal advice available to him.

Again, our compliments to the Minister of State for the manner in which he listened to us and to the officials for the manner in which they responded. I have no doubt that we have excellent legislation which will serve the whole charities area well.

I welcome the Minister of State but I also pay tribute to Senator Labhrás Ó Murchú. There is no question or doubt that he has been a sterling and valuable champion of human rights, and not always in the easiest times. He certainly did put his head above the parapet.

As regards the question of the Government's adamant refusal to include human rights in this legislation, that is less and less surprising. I do not accuse the Minister of State but there is no question that there are elements within the present Government which are strongly inimical to human rights, or at least they regard them as little royal perks, so to speak, which they might legally deign to dole out to deserving recipients. That is not my understanding of human rights but this view is clearly held within certain sections of Government and the Civil Service, and I absolutely deplore it. I know there are people on the other side of the House who feel the same way.

As for the specific amendment, I have no great difficulty with it, but I want to make one little point. I do not expect the Minister of State to go back to the other House and create a big rí rá agus ruaille buaille. I wish the record could show the wonderful expression on the face of the Cathaoirleach at that point, because he expressed the horror, I believe, that we might all feel. The legislation provides that the name and number of the charitable organisation must be displayed. How visible must they be? I remember some elections ago when the late Deputy Liam Lawlor was around. He was in the same constituency as the late Deputy Brian Lenihan, the former Minister for Foreign Affairs. The Minister of State will probably know what I am referring to. Vans went around saying, "Vote No. 1 Lawlor" in very big letters and then there was a tiny little thing, similar to a telephone number or a spot, which said "Also Brian Lenihan". That met the requirements but no one could see it.

Was that charity?

It was charity, yes. That was an excellent intervention by the Cathaoirleach. My God, but there is wit in the Chair tonight. However, I wonder just how visible they should be and people have a right to know just who is collecting. I live on the other side of the river, not too far away. I walk down to the Oireachtas and sometimes there are eight to ten very good registered charities in evidence. On one occasion during the passage of this Bill, there were 15 collectors from the same charity, all in their uniforms, and I could not get past them. That was an ambush, not charity.

My good friend, Senator Buttimer, craved the indulgence of the Chair and got some. I have to raise a cognate matter that is so serious constitutionally that I would like to be given some indulgence in introducing it. My colleague, Senator Bacik, also referred to it during the debate on the Bill and I welcome the fact that the legislation has come back. I am referring to the troubled issue of mass cards because I believe we have walked ourselves into a constitutional mess. I have very distinguished legal opinion on this from a former Attorney General, Mr. John Rogers, SC. The whole idea of the mass cards initiative was to regulate this area. No one wants bogus mass cards sold. That is a given and we know that they are. We know they are manufactured and may never occasion a mass to be said. The card may not be signed by a priest. It could be a bogus priest or whatever. There is, therefore, an issue of control. However, the Bill as passed, with an amendment introduced at the suggestion of two of my colleagues in this House, in fact constricts religion in a dangerous manner. It also purports to establish bishops as specific licensing authorities and creates a new serious criminal offence which, in fact, can only operate in a sectarian manner.

The advice I have been given is to the effect that this is completely unconstitutional, apart from anything else, because it is excessive. I want to quote a couple of the relevant cases. As someone who is not a Roman Catholic, I must say the whole thing seems to be absurd anyway because it is clearly simoniacal. It is classic simony, an attempt to sell, and the word "sell" is used in the legislation and in the Minister of State's speech. One cannot sell things of the spirit because that is a blasphemy. I feel for my Roman Catholic friends who are bereaved, and I have often acquired these mass cards, to use a neutral word, to be told that the offering was €7.50 — a specific rate. From the cash registers to the rest, it is clearly a sale. It is too theological to debate the issues but the signing of the mass card by the priest is clearly a religious practice. The new section 96 purports to limit this by subjecting the sale of mass cards to the consent of a senior cleric, usually a bishop.

These issues have been considered by the very distinguished Mr. Justice Walsh in his 1972 judgment in Quinn's Supermarket v. Attorney General in which he stated: “Our Constitution reflects a firm conviction that we are religious people.” That conviction has sometimes caused difficulties to me and others but there is no argument about it. He further argued, however:

It appears to me therefore that the primary object and aim of Article 44, and in particular the provisions of s.2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person [this is the important part] so practising religion or holding those beliefs to any disabilities on that account.

He argued in the same judgment that as a result of Supreme Court decisions, legislative intervention into religious practice, which is allowed under certain conditions because freedom of religion is not an absolute right under our Constitution, should be subject to the following test: "Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented."

The question then arises of the application of a test for legislative intervention in the regulation of the practice of religion, in which regard the former Attorney General, Mr. John Rogers, opines:

Section 96 will impose a disability on persons seeking to buy Mass cards for the purpose of professing their religion in that in seeking Mass cards they will not be able to acquire Mass cards other than those made available pursuant to an arrangement with a bishop or provincial of a religious order. It is difficult to see how the imposition of this disability is mandated or required by public order criteria or by the requirements of morality. On the face of it, section 96 seems designed simply to ensure that Mass cards have authentic provenance but it does so by way of an absolute blanket prohibition on the sale of Mass cards which are made available for public sale but which are not so available pursuant to an arrangement with a bishop or provincial of a religious order. There seems not to be a justifiable basis for imposing this disability on the getting of Mass cards; the dictum of Walsh J. that the law "shall not subject the person so practising religion or holding those beliefs to any disabilities on that account" appears to be offended by this absolute bar to access to Mass cards which derive from a source not the subject of an episcopal arrangement.

It may be perceived that in the absence of regulation of the kind contemplated:

A person might sell a Mass card which was fraudulent, in the sense that it was not signed by a priest, and/or in the sense that the seller would not procure the saying of a Mass for the deceased;

A person might sell a Mass card to a person who believed that the price which he paid for the card would go for a charitable purpose, in circumstances in which this was not the case.

The proposed legislation goes further than is reasonably required to address these evils, in that it renders a sale unlawful simply because it is unauthorised, the matter of unauthorised sales may well be a matter of concern to the Catholic Church, but does not appear to constitute an issue of public order or morality which would justify limiting religious freedom in the manner contemplated.

The criminalisation of the sale of Mass cards is another aspect of the disproportionate nature of this piece of legislation. The criminalisation of the sale of Mass cards by those outside the categories of recognised persons will involve the State in the adoption in criminal jaw of restrictions in the practice of religion in a manner which is not supported by Article 44.

I am grateful for the Cathaoirleach's indulgence in allowing me to set out the opinion of a man who held the highest legal office in the State regarding this important constitutional issue. Although I can put aside my reservations on the question of simony, it appears that in addressing a scandalous issue a dangerous situation has developed, albeit unintentionally and with goodwill. It is dreadful to think of old ladies in my area scraping their pennies together to purchase mass cards which are sold by people who have no real spiritual interest and simply want to make money. However, a sledge hammer is being used to crack a nut and it may well be unconstitutional. I do not know what mechanism exists at this stage to test the section but I have been briefed by an old friend with whom I attended school. This man, who is of considerable eminence, forwarded Mr. Rogers's opinion to me.

The motion before the House tonight pertained to a technical amendment. The Bill formerly put an onus on non-charities to display a charitable number, which simply could not be done. The amendment regularises an anomaly that existed in the Bill.

The evening would not have been complete without the intervention of Senator Norris. He raised a point in regard to the size of the print. He is correct that the Bill does not require the print to be so many millimetres.

It could require the print to be clearly visible.

The provision states: "in a prominent and clearly legible manner" but it does not specify the size.

I beg your pardon.

We are helping the Senator out.

I withdraw my protest.

In regard to mass cards, I inherited this legislation when I was promoted last summer and it was one of the first matters to come across my desk. The issue of door-to-door collections and mass cards were cause for considerable concern among the public rather than the charitable sector or vested interests. I do not have a legal background and would not claim the technical expertise necessary to address the issue but the amendment as presented came from the Office of the Attorney General. We have always recognised the challenges involved and the provision was not drafted in isolation. We rely on the Attorney General's legal advice in bringing forward legislation.

I do not want to rehearse our previous debates on the issues but I thank Senators for their constructive contributions. We have worked to improve this legislation to the greatest extent possible. Senator Buttimer frightened me when he expressed the hope that we will all be here in five years' time to review the legislation. We do not know who will be here at that stage. Long before the time arrives for the five-year statutory review, we will have substantial work to do in regulating and bringing order to the charities sector while at the same time inspiring the public's confidence. As all Senators have recognised, this has to be done in a way that avoids putting undue burdens on small and medium-sized charities.

Senator Norris referred to fund-raisers. Some of these issues are not specifically provided for in the Bill but we are working with the sector on codes of practice for fund-raising. I am not merely waiting for the five-year mandatory review, therefore, but will be giving effect to the legislation over the next several years.

I thank Members for the constructive nature of our debates, even if we have not agreed on everything. Our deliberation on the Bill has for the most part proceeded in the direction that people sought. I acknowledge the cross-party support I have received on most issues. I concur with Senator Buttimer regarding the officials in my Department who worked tirelessly on this legislation, including Terry Dunne and Joe Hammill, who briefed and advised me. To be fair, they made themselves available to explain and clarify issues for Members of the Opposition in this and the other House, thus allowing people to debate the real issue and preventing any misunderstanding or obscurity in that regard. Senator Buttimer is correct that often those who work tirelessly behind the scenes, who are dedicated and professional in their work, are not acknowledged. I am glad Senator Buttimer did so. I take this opportunity to extend my appreciation to them and to thank all Members of the House for their contributions.

Question put and agreed to.

When is it proposed to sit again?

Ag 10.30 maidin amárach.