Before we begin I wish to bring to the attention of Members that the original list of amendments circulated on 18 December 2008 should not be used. All amendments to be considered are on the substitute list of amendments circulated on 3 February and the additional list circulated on 9 February.
Charities Bill 2007: From the Seanad.
Before we start to discuss the specific amendments before the House today, I briefly want to clarify for Members why I am returning to the House with more than 80 amendments to the Bill as originally passed by the House in last November.
The amendments fall into a number of categories and a good proportion of them are presentational, drafting and technical type amendments on the advice of Parliamentary Counsel.
There are a number of substantive amendments and a number of those emerged from issues raised by Members across the floor of both this House and the Seanad. I gave a commitment at that stage that we would address issues such as mass cards and Daffodil Day.
It has always been my approach to listen to the issues raised during the debates, irrespective of from which side of the House they emanated, and to take on board the positive suggestions where possible. As I stated, many of the amendments before the House today have emerged from Opposition amendments in both Houses and I thank all Members of both Houses for their constructive input to the Bill since its introduction. As a direct result and a consequence of this inclusive approach, I believe we now have a much improved Bill. Changes made to the Bill in the Seanad have been broadly welcomed by the sector and it is telling that none of the amendments before the Dáil today was opposed in the Seanad. I look forward to outlining these amendments to the Members and I shall now turn to the specific ones.
Amendments Nos. 1, 5, 40 and 46 were added during the passage of the Bill through the Seanad on foot of discussions with the Department of Education and Science and the Office of the Attorney General. As it stands, education bodies such as schools, student councils, parent associations and vocational educational committees are already subject to oversight by the Department of Education and Science, and on occasion by other bodies such as the Committee of Public Accounts. It is not the intention of the Charities Bill to impose a significant additional administrative burden on organisations, and yet the principle is that all charities must be entered on the register of charities, including education bodies referred to here.
However, these amendments will exempt education bodies from the need to submit annual reports and the annual audit examination of accounts provisions. Education bodies, however, which are not charities, should not and will not be exempted from the need to keep books of accounts. It is important that charities should be able to accurately account for their financial situation at all times. I consider the exemption from some of these accounting and auditing requirements was appropriate as many of these education bodies are already required to keep and submit accounts to other sources. It will, of course, still be within the gift of the authority to request any information from these bodies, where necessary.
In keeping with the graduated approach to regulation, I also considered that there is merit to easing the regulating burden on charities that are extremely small, with limited resources. Accordingly, in the case of such charities with an income or expenditure of less than €10,000 per annum, I am providing that they be exempted from the accounts and audit or examination provisions of the Bill. There is scope for this threshold to be increased to up to €50,000, if considered appropriate, over time. I believe it would be unreasonable to expect a charity of that scale to provide examined accounts, although as with education bodies they will be required to produce an annual report, which may also contain financial information. Members should bear in mind that the authority is empowered to request information from any charity, including the small charities and the education bodies, as appropriate. To achieve this outcome a number of amendments were required.
Amendment No. 1 clarifies that "the Act of 1998" refers to the Education Act 1998. Amendment No. 5 defines an "education body" for the purposes of the Bill. Amendment No. 40 exempts both education bodies and small charities from the requirement to submit an annual statement of accounts to the new authority, while amendment No. 46 exempts the same organisations from the audit and examination provisions. I believe these amendment strike an appropriate balance and provide fair and equitable oversight, and I move the amendments.
As a matter of procedure, because these are Seanad amendments, they must be proposed from the Chair. I now propose Seanad amendment No. 1, which is related to Seanad amendments Nos. 5, 40 and 46. Therefore, amendments Nos. 1, 5, 40 and 46 may be discussed together.
The Dáil went into Committee to consider amendments from the Seanad.
Seanad amendment No. 1:
Section 2: In page 8, subsection (1), between lines 3 and 4, to insert the following:
""Act of 1998" means the Education Act 1998;".
I welcome the Bill in principle. The Minister of State accepted some of our amendments and introduced the necessary legislation in the Seanad, and I welcome that. I am disappointed that he has not dealt with one area in the Bill, however, in relation to human rights as a charitable purpose. I have received much representation in this regard, as has my colleague, Deputy Wall, and other Members of the House. We are concerned that these charities will be disadvantaged vis-à-vis the UK and Europe. I am disappointed that the Minister of State did not introduce the necessary amendment to deal with this in the Seanad. There is concern among charities about this as evidenced by the representations I have received. I asking the Minister of State whether something could be done, even at this late stage, to try to reassure these charities and table the necessary amendments to deal with the problem they have.
Regarding amendment No. 1 and the other amendments in relation to smaller charities, I welcome the proposal because I believe many such charities would have had to present audited accounts at the end of the year. The Minister of State seems to be saying that if a charity is getting up to €10,000, it will be recognised as a charity and will not have to present audited accounts. For charities with incomes above €10,000, the regulator can exercise discretion in relation to the amount of paperwork they have to produce. I welcome that and believe it is in the spirit of the Bill. The one item we all sought in this Bill was that there should not be too much bureaucracy and paperwork for charities. They collect money that the State will not provide and we do not want charities spending more time than they should producing paperwork for the regulator. I accept the amendment as a good proposal and Fine Gael will not oppose it.
I also thank the Minister of State for the changes he has made. Obviously, it is good to note that some of the amendments, as proposed in this House, have been included.
The issue of human rights has again raised its head on foot of representations from various groups such as Amnesty International, FLAC, the Irish Council for Civil Liberties, Frontline, Wheel, etc. They have all raised major concerns about this and some aspects of the Bill in relation to those charities that already have a human rights dimension to them. The fear is that this could cause concerns when sections of the Bill are reviewed in five years' time.
I also appeal to the Minister of State in this regard. Given the enormous implications for human rights, is it not feasible that something might be done to address this shortfall in the Bill? The perspective on this side of the House is that the Minister of State is open to change, given his approach to the legislation both in this House and in the Seanad. The freedom of debate on the Bill must be acknowledged. The Minister of State's officials were readily available to us and he demonstrated real transparency on the various amendments tabled by the Opposition and in trying to facilitate Members. However, the human rights aspect is the Bill's single shortfall. I ask him to consider amending it in that regard.
Among the representations we received was a proposal from the Law Society, which was circulated to the various organisations. There is, therefore, a general concern in this regard. It would be wonderful if this provision could be included, as it was in the original Bill. At that stage there was great relief that the Bill, as proposed, would eventually deliver what had been sought, since so many people had lobbied for a charities Bill for so long. The fact that this provision was included in the original draft was seen as the icing on the cake. In agreeing with the amendments being discussed, I want to raise this concern, and I am aware that Deputies Costello and Higgins also have major reservations about this aspect of the Bill.
Like the previous two speakers, I welcomed this Bill when it was first drafted and we saw the heads. The main omission, which I presumed was a clerical error when it was first printed, was the admission that the advancement of human rights was a charitable purpose. I appeal to the Minister of State at this, the eleventh hour, to include the advancement of human rights in the Bill as a charitable purpose. I presume that we could, if so desired, recommit to deal with that omission. It is a serious omission because in other jurisdictions it is a given that the advancement of human rights is a charitable purpose.
The principle of equivalence which lies behind the Good Friday Agreement and which has directed much of our legislation in this area will be undermined because human rights advocacy is afforded charitable status in the North. Even though existing human rights NGOs will be protected, organisations established in the future to protect human rights will not be afforded charitable status. In addition, existing NGOs will encounter greater difficulties in raising funds because they will not meet the criteria set out in the legislation.
The Minister of State would not wish to be associated with a systematic and concerted assault on the human rights architecture of this State but the removal from the Bill of human rights advancement as a charitable purpose is seen by all who work in the field, and by many others, as part of just such an assault. Budget 2009 provided further glaring examples of this assault with the imposition on the Human Rights Commission of a 24% cut in funding and the slashing of the Equality Authority's budget by an incredible 42%. Rather than forcing the passage of this Bill and promising to address the issue at a later stage, I appeal to the Minister of State to delay its enactment in order to find a mechanism for fixing this major shortfall. Otherwise, my colleagues and I will probably have to oppose a Bill which has been welcomed for the most part. The attitude of the Minister of State and his officials to Opposition proposals has been quite positive thus far and they will have one more chance to address this issue by making changes to the amendments which we will discuss presently. We are happy to support the amendments currently before us, however.
I support the voices that have urged the Minister of State to reconsider his decision on excluding human rights as a charitable purpose. We are in the unusual situation of seeking to reinstate provisions which were contained in the Bill as originally drafted. These provisions were not removed at the request of any Opposition Deputy but by the very Minister of State who has responsibility for the Bill in the first place. I ask him to clarify how he can include human rights bodies within the definition of charitable organisations but subsequently remove them without explanation.
Like my colleagues and I, he has probably received submissions from Amnesty, FLAC, the Irish Council for Civil Liberties, Front Line, the Wheel and the Law Society. Apart from the Law Society, these are non-governmental organisations concerned with the advancement and protection of human rights nationally and internationally. This provision would be a severe setback for those organisations which have hitherto enjoyed charitable status. To make matters even worse, we are specifically excluding them from the legislation. That is a slap in the face to these organisations and their work on human rights.
The Minister of State also has responsibility for combatting drugs. He is doing a fine job in this regard and is well respected in the community that I represent. However, he should recognise the relationship between the scourge of drugs and the promotion of human rights and equality. It is important to have effective community based non-governmental organisations if we are to improve the quality of life from a human rights perspective.
I can see no apparent reason for denying charitable status to these bodies. They need such status to continue their activities as voluntary organisations. It is eminently reasonable, therefore, to allow them to continue as charities.
This country has recently witnessed a number of attacks on human rights and their promotion. The economic recession has carried over into that arena. We can see the effects on the Equality Authority, the Human Rights Commission and overseas aid, much of which is spent on the promotion of human rights. Our domestic legislation should reflect our appreciation of human rights both at home and abroad. In terms of the monetary returns of voluntary organisations, charitable status is essential.
I ask the Minister of State to explain why human rights advocacy was first included then removed from the Bill's provisions on charitable status. Has he entered into discussions with the human rights bodies to which I referred earlier?
This is a very important issue. As I have noted in previous debates during the Bill's passage through this House, we have to be careful in ensuring that life is not made more difficult for existing organisations or impossible for new organisations in terms of extending their remits or operating in a practical sense on the ground.
The argument will be made that human rights are not excluded from the Bill's provisions because, for example, the welfare of a community could be defined at some stage in the future as potentially including human rights. That is not good enough because any discussion that arises in the future will be influenced by the fact that human rights were specifically excluded. This will represent a serious hindrance. If such a consideration applied in respect of an application to the Revenue Commissioners for charitable status, an organisation would immediately run into potentially disastrous difficulties. I want to be positive about the matter and I do not impute any ill-will to the Minister of State.
The obvious way out of this is to find a mechanism for inclusion of an explicit reference that the promotion and protection of civil and human rights is a charitable purpose. This must be done. Enormous work has gone into, for example, the development of the new United Nations Convention on Disability, the former thrust of which — it includes contributions from people such as Professor Ger Quinn and others — was to enable the disability issue evolve into a rights context.
The issue is whether one purports to be charitable towards an unfortunate person one manages to find a means of assisting or whether one views that person's right to participate fully as a citizen. Participation is mentioned in relation to means. However, the drift in terms of jurisprudence in this area is towards an explicit recognition of a right. This is happening nationally, in European terms and at United Nations level. An enormous amount of work has gone into this. Equally, in regard to the development theory, with which I am more familiar, the Irish White Paper to its credit makes reference to the human rights component of its development strategy. The Norwegians regarded as most important that it have a rights focus as part of its white paper on development.
As regards practise on the ground, those of us who have done so know that when one walks into an area of huge deprivation by which one is deeply saddened, one's concern is to be of assistance rather than to address the fundamental issue. Practical examples are important. During our earlier discussions on the Bill I expressed concern in regard to the exclusion of political purpose. Looked at historically, this would have excluded the campaign in the British Parliament for the abolition of trade in slaves and in today's terms would exclude the admirable work by some of our NGOs in making cases against child or bonded labour. Is such campaign political? It is, at least, human rights.
Recognition of civil and political rights was not the strongest possible position to take. The strongest possible position would have been that suggested by me during the Second Stage debate, namely, not to include an interpretation that excluded people opposing, say, a dictatorship. I admire organisations that undertake works of justice.
I have been a Member of this House for a long time and have witnessed clear division in this House between those who suggest it is all right for us to be involved in charitable acts and those who believe it is not appropriate for us to be involved in making the case for justice, an issue I came across while campaigning on issues in Central America in respect of El Salvador and Nicaragua and in regard to the Chilean dictatorship of Pinochet and so on. I regard as sad that we would ever do anything that would interfere with the capacity and charitable status of organisations engaged in tasks of justice, including the Mothers of the Disappeared in Chile and in Argentina and so forth. Even if I accepted the view that we must exclude people involved in activities that could be construed as political we would be doing something much more serious if we provided that the whole purpose of activity of an NGO or any other civil organisation can be the advancement of human rights.
I stated earlier that this is not the strongest but the minimalist campaigning position, which is precisely the reason the human rights committee of the Law Society of Ireland, which is not a radical organisation, has put forward its particular proposal in regard to management of the issue. It suggests that because the word "means" is included in the legislation the suggestion could be made that one could seek to satisfy the advancement of human rights under another condition at a later stage.
The function of parliamentarians is to deal with the quality of legislation. It is not satisfactory to state one agrees with everything said but that the matter can be dealt with another day. This could create practical difficulties for existing NGOs and others in terms of their dealings with, among others, the Revenue Commissioners and could create a boundary for new and emerging concentrations. While I am an adjunct professor of the Irish Centre for Human Rights, the views I have expressed are my own. I simply wish to declare my connection with a human rights organisation.
The unanimous scholarly view in regard to legislation of this type is that it is best to be explicit. Inclusion of protection and promotion of civil and human rights does not lessen legislation but provides for protections, accountability and transparency. One should not leave dealing with this issue to another day as this would require those performing these important and worthwhile tasks to seek to be accommodated within some other parts of the definition. I urge the Minister of State — there is no suggestion of a partisan difference between us on this — to seek to accommodate this issue on the basis of good legislation, practise and management.
The amendments before us do not refer specifically to human rights. However, as the issue has been raised by many speakers, I would like to address it.
To be fair, the issue of human rights has received considerable debate at different Stages in this and the other House. I reiterate that "charitable purposes" as provided for in section 3 mirror those changes developed in common law over many years and used by the Revenue Commissioners in considering eligibility for exemptions.
As I stated previously, the Bill neither seeks to dilute nor expand these "charitable purposes". I admit the term "human rights" is not specifically stated in the Bill. However, many of the purposes listed as "charitable purposes" are the activities in which human rights groups engage, including the prevention or relief of poverty, the advancement of education, the advancement of conflict resolution and reconciliation, the prevention of human suffering and the integration of those disadvantaged in society. These specific purposes are identified in the Bill.
I disagree with Deputy Higgins' statement that organisations not registered with the new regulatory authority may encounter difficulties with Revenue. The Bill is explicit in this regard. There is a clear divide in responsibility. The Revenue Commissioners are independent in their own findings. The Bill provides that those charities currently registered with Revenue will be deemed to be charitable under the new legislation and authority. I do not believe any existing human rights group will be affected by this. The purposes identified are the activities in which human rights groups engage. As I stated earlier and have reiterated time and again, the purpose of this legislation was to maintain the status quo and to regulate what is currently happening. Also, provision is made for a mandatory review of the legislation in five years.
On Deputy Ring's comment regarding small charities, I agree it is important that the amount of regulation introduced is proportionate. Lest anybody believe small charities can come and go and do as they wish, while the new regulatory authority will have the power to seek any and all information provision is not made for complicated returns.
Universities undertake their take-up collections inside and outside the country. The Bill suggests that while they will not be exempt, what they collect will not be published. I want to ensure they are monitored like everybody else and that when donations are made for a university, everything is above board. I hope the Department of Education and Science will ensure that will be the case if this aspect is not covered by this legislation.
I accept the Minister of State's point that the status quo will be respected in terms of charitable status. However, it is still beyond me why he is not prepared to accept a wording that provides specifically for the promotion and advancement of human and civil rights. Any of the areas that are covered do not cover the entire gamut of civil and human rights. There are organisations specifically dedicated to human rights. Amnesty International is one such organisation but its remit is not covered by the terms of this legislation.
The Minister of State says the status quo will not be interfered with but why not allow a wording that clearly underpins our commitment as a country to the promotion and advancement of human and civil rights? We are very strong in this regard on a domestic and an international basis, and we pride ourselves on having been to the forefront with the United Nations and the Council of Europe when they were established. We were also a founding member of Amnesty International when it was established for the promotion and advancement of human and civil rights.
Why not have it contained in the Bill? It is not doing any damage to the wording but it would do a lot of good and would reassure these organisations that their work is being respected by the authorities and the Members of this House.
The Deputy is correct that the purpose of the Bill is to maintain the status quo. As at present with regard to the Revenue Commissioners, human rights per se is not recognised as a charitable purpose yet organisations like Amnesty International are registered and will automatically be deemed to be registered with the new authority.
The central point is that this legislation was drawn up to mirror and maintain the status quo. I am conscious of the fact that this in itself was a substantial piece of work. There is the second aspect that there would be a mandatory review within five years because there is a very significant job to do.
To return to the point made by Deputy Ring on education, it is not that those bodies are not reporting to the charity authority but that they are reporting to other authorities and some of them may even be accountable to bodies like the Committee of Public Accounts. Even with that in mind, the authority is still entitled to request any additional information it may subsequently deem appropriate. However, those educational institutions, because they are already reporting, will not have an onus to have those accounts published with the authority.
I wish to add one further point which I believe is important. My difficulty with the Bill when I spoke on Second Stage was in regard to the suggestion that it is simply addressed to dealing with the status quo. We have waited a long time for legislation and it represents a monumental amount of work to actually deal with the status quo. However, if we are to have a review in five years’ time or otherwise, it would be irresponsible of me not to say that the former thrust of legislation in this area, comparatively and internationally, as well as practice on the ground, is towards the recognition of a rights approach.
One could argue that 1993 was the high point, given the first appointment of a United Nations Commissioner for Human Rights. One could also argue that the last decade, the last five years in particular, has seen a retreat from the rights perspective internationally, so the amendment would be a very good thing. The most progressive NGOs are expressing their interest and wish to operate on a rights basis.
A further international development is the merging of civil and political rights with economic, social and cultural rights. This is part of the forward movement of progressive movements of landholders and peasants in other parts of the world. It would have been better in many cases to have the inclusion of a simple, straightforward recognition. This would mean that the legislation is not out of date and is in the forward spirit of the forward movement of thinking on this issue.
It will happen anyway — it will have to happen. However, the point is that we should not have a needless legalistic argument with regard to rights having to justify themselves in regard to community welfare, which will immediately encounter the old argument that used to apply with regard to pensions and welfare as to whether the issue was residual, structural or otherwise. We have been through all of that nearly 100 years ago in arguing about the British welfare state. Exactly the same argument will now arise in this regard. It is also included in regard to the question of benefit to the community and so on. Why would one have to plan for the rights perspective to come in the back door when there is the whole structure of forward thinking in this area?
One can do everything one likes for the status quo. I want to recognise the achievement in terms of drafting in this highly technical area. However, acceptance of the amendment will save time in the future in terms of amending the legislation and review. The Minister of State should consider how the accommodation of five or six words will represent so much possibility for people who are interested in the area.
None of the amendments we are considering refer to human rights.
Of course.
The Deputy is correct that this area has been extremely complex. I inherited the Bill in the course of its passage through the Oireachtas and two of my predecessors as Minister of State, Deputies Pat Carey and Noel Ahern, dealt with the earlier Stages. The underlying issue was that while this is complex, we are trying to maintain the status quo. We are considering what Revenue has done. It was in that context that the legislation was framed.
The Bill seeks to ensure that existing groups involved in human rights and social justice issues, and which are currently registered as charities, will automatically be deemed as charities. I reiterate that when we consider charitable purposes, all of the specific purposes in which human rights groups are currently in engaged, such as the prevention or relief of poverty, the advancement of education and the advancement of conflict resolution and reconciliation, will be included.
The legislation has gone as far as possible towards maintaining the status quo and trying, in the complex area the Deputy recognises, to organise a charitable sector which for a long time had no organisation. We must also recognise that this is a first step and there will be a mandatory review.
Seanad amendment agreed to.
Amendments Nos. 2 to 4, inclusive, and 65 are related and may be discussed together.
Seanad amendment No. 2:
Section 2: In page 8, subsection (1), to delete line 7 and substitute the following:
""body" includes, in relation to a trust in respect of which there is only one trustee, that trustee;".
These amendments have been grouped as they relate to charitable trusts. While it is unlikely there are many, if any, single trustee charities, on the basis of legal advice, amendment No. 2 amends the definition of body to cater for such a scenario.
Amendments Nos. 3 and 4 are technical amendments. They provide for necessary redefinitions of charitable organisations and trusts arising from section 88, which allows for charitable organisations to enter into certain agreements with charity trustees or connected persons that would have been contrary to the previous definition.
Amendment No. 65 emerged from interdepartmental consultations relating to how a charity might act on dissolution. A fundamental principle of the Bill as currently drafted is that a charity should apply all of its property for the stated charitable purpose, even when the charity is dissolved. In the course of this consultation, the possibility emerged that some charities might not be bound under their constitutions on dissolution to distribute the remaining property to the charitable purposes. Under these two amendments, which address the potential loophole, any such charity would have to obtain the consent of the authority to pay any of the property to members of the charity on dissolution of that charity.
I welcome the amendment, because there are professional people who give a good deal of time to charity. There may be times when such people need to be paid for work done. It is only right that this is the case, provided there is no conflict. If such a person is an auditor, he or she should not be allowed to audit the accounts. However, if someone were to do professional work, which costs money and a good deal of time, that person is entitled to get paid for it.
I refer to the single charities. The Minister of State, Deputy Curran, stated the matter is technical and that there are not many charities in the country with only one person as a director. The reason this is included is to allow for a case where there might be an anomaly in the Bill, which I accept.
I agree with the amendments. The last matter raised draws attention to the question of many trusts which, because of the death of other trustees, have only one remaining member. That may need to be addressed under different legislation, but it is a significant concern for trusts throughout the country. For example, it may be a concern in sports organisations which have a trustee for the grounds and so on. There is a need to bring the legislation on the number of trustees up to speed for such organisation. Some people give a significant amount of their time voluntarily, but there are other instances where remuneration must occur. This must be acknowledged and respected. I am sure the amendment will deal with that aspect of the matter.
I agree with the thrust of the amendment. A charitable trust is established for charitable purposes and I support the argument that a trust should not be established specifically to enjoy the advantages which other charities enjoy. A new charitable trust should not be set up to promote human rights or deal with a situation where it seeks to highlight the abuse of human rights in a particular area. For example, let us consider the most recent outrage. If I wish to set up a charitable trust tomorrow to examine human rights breaches in Gaza, I should not gain the benefits which are allowed to a charitable trust.
The Minister of State may have been correct in his remarks dealing with other amendments to the effect that the legislation will not adversely affect existing charities. However, this provision will prevent the establishment in future of charities or charitable trusts dealing exclusively with human rights. Some may seek to by-pass that provision. If an organisation seeks charitable status or to be accepted as a charitable trust, it must fall within the four points in the legislation. It could cloud its true intentions and this is not the purpose of the legislation. When first drafted, the legislation intended to cover the organisations which are truly charitable and which have no intention to make a profit. The legislation is welcome. Ireland has a great standing internationally in terms of the money raised here for those purposes. Those funds have been very welcome in areas of dire straits throughout the world. However, even within Ireland the people are willing to donate money to a charity. The purpose of the legislation is to ensure that process is properly regulated and I welcome it for this reason. There is an opportunity for the Minister of State, within the confines of the amendments before us, to address the points made in the discussion on the last section.
I reiterated the position regarding human rights and the position for existing charities. I specifically set out the charitable purposes for which new charities could be recognised. That maintains the status quo. I refer to the remarks of Deputy Wall on the wider issue of trustees and trust law. There is a difference between the wider issue and the matter with which we are dealing. I accept the point made. Deputy Ring mentioned the matter of trustees. It became apparent as we proceeded with the legislation that frequently, trustees are well qualified people with technical expertise in either law, finance or whatever, and that they frequently offer that expertise at a greatly reduced rate to a given charity. Had we not tabled this amendment it could have adversely affected many charities. I thank the Deputies for their support in this regard.
Seanad amendment agreed to.
Seanad amendment No. 3:
Section 2: In page 8, subsection (1), to delete lines 24 to 28 and substitute the following:
"(iii) none of the property of which is payable to the members of the body other than in accordance withsection 88,”.
Seanad amendment agreed to.
Seanad amendment No. 4:
Section 2: In page 8, subsection (1), to delete lines 31 and 32 and substitute the following:
""charitable trust" means a trust—
(a) established for a charitable purpose only,
(b) established under a deed of trust that requires the trustees of the trust to apply all of the property (both real and personal) of the trust in furtherance of that purpose except for moneys expended in the management of the trust, and
(c) none of the property of which is payable to the trustees of the trust other than in accordance with section 88,”.
Seanad amendment agreed to.
Seanad amendment No. 5:
Section 2: In page 9, subsection (1), between lines 22 and 23 to insert the following:
""education body" means—
(a) a vocational education committee established by section 7 of the Vocational Education Act 1930,
(b) a recognised school within the meaning of the Act of 1998,
(c) a management committee established for the purposes of section 37 of the Act of 1998,
(d) a parents’ association established in accordance with section 26 of the Act of 1998,
(e) a student council established in accordance with section 27 of the Act of 1998,
(f) an institution of higher education within the meaning of the Higher Education Authority Act 1971 (amended by section 52 of the Institutes of Technology Act 2006), or
(g) a body established solely for the purpose of funding not more than one such institution of higher education;”.
Seanad amendment agreed to.
Seanad amendments Nos. 6, 16, 17 and 59 are related and may be discussed together by agreement.
Seanad amendment No. 6:
Section 2: In page 10, subsection (1), line 4, to delete "activities, or" and substitute the following:
"activities, whether in the State or outside the State, or".
This grouping includes amendments made on the basis of legal advice, principally to clarify matters. One of my basic aims for the legislation was to make charities secure from takeover or from being undermined or misused by criminal or terrorist groups. It is vital this does not occur. Concerns were expressed by Senators during the passage of the Bill through the Seanad and similar concerns were previously raised in this House by Deputy Wall. I thank him for raising the matter in the first instance. I consulted with the Office of the Attorney General regarding any possible concerns that the existing wording in the Bill relating to terrorism could be interpreted as referring only to terrorism in this jurisdiction. While my advice is that the existing wording applies to terrorism in any jurisdiction, the amendment is put for the avoidance of any doubt.
Amendments Nos. 16 and 17 are similar, in that they clarify that section 37 subsection (2) and section 37 subsection (4), respectively, apply to consultative panels established under the direction of the Minister and according to that section. Amendment No. 59 clarifies that the powers of the authority under section 68 subsection (3) to obtain books, documents or records applies to both charitable organisations and charity trustees.
I welcome the amendment. It puts a belt and braces on matters. I recall when the issue was first discussed, officials believed there was no need for the amendment. However, the matter was debated and it helps to complete a good section of the Bill. I appreciate the inclusion of the amendment by the Minister.
I support the amendment.
I thank Deputies for their support.
Seanad amendment agreed to.
Seanad amendments Nos. 7, 39, 47, 57 and 58 are related and may be discussed together by agreement.
Seanad amendment No. 7:
Section 3: In page 11, subsection (1), line 29, to delete "regarded as being".
This grouping includes drafting amendments proposed on the basis of legal advice and are essentially for presentational purposes. Amendment No. 7 is a drafting amendment only, removing text considered to be superfluous. Instead of stating what is "regarded as being" a charitable purpose the revised wording explicitly refers to what "will" be a charitable purpose. Amendment No. 39 is purely presentational and makes no substantial change to the provision. It replaces the term "have been" with "are" and places the onus on the charity trustee to ensure accounts are kept on an ongoing basis in a way that facilitates compliance with the regulations under section 47. The previous use of the term "have been" placed only a retrospective onus on trustees.
Amendment No. 47 indents the final paragraph of section 50(14)(b) to clarify that it refers only to paragraph (b) and not to the subsection as a whole. Amendment No. 57 rearranges the existing wording of section 68(1) purely for presentational purposes and amendment No. 58 tweaks the existing wording to section 68(2) though without any substantive change to the meaning. Instead of saying that a direction from the authority under section 68(1) to a charity to produce documents etc. may be given in the circumstances outlined in the section 68(2) the new wording says that the authority may only require a charity to provide documents for the specific circumstances outlined in the section to apply.
Seanad amendment agreed to.
Seanad amendments Nos. 9 and 10 are related to Seanad amendment No. 8 and they will be taken together by agreement.
Seanad amendment No. 8:
Section 3: In page 11, lines 34 and 35, to delete subsection (2) and substitute the following:
"(2) A purpose shall not be a charitable purpose unless it is of public benefit.".
This group relates to the issue of public benefit. Amendments Nos. 8 and 9 are similar in that they remove some text that on reflection was considered to be unnecessary. My advice was that a purpose is either charitable or not and that the use of the phrase "regarded as a charitable purpose" was not required in legal terms.
In respect of amendment No. 10, since the earlier debates on this in the Dáil and Seanad, I have reflected on those organisations which purport to be religious in nature but whose principal interest is in profit, or whose method may be harmful to its followers. Deputies Wall and Higgins originally raised this point in amendments. Some Senators also put it forward.
I came to the conclusion that there might be considerable merit in the principle behind the original amendment that nominally religious organisations which in reality have scant regard for the spiritual, psychological or indeed financial well-being of their members or potential members should not be granted the privilege of charitable status. Accordingly, I introduced an amendment in the Seanad developed in consultation with the Office of the Attorney General which will ensure that dubious organisations that pose as religious but whose motive is making money, or which use inappropriate psychological techniques in recruiting or retaining members shall not attain charitable status. I thank members of the Opposition in both Houses for their constructive role in this matter. I commend amendment No. 10 which addresses an issue that is clearly of concern across both Houses and amendments Nos. 8 and 9.
I welcome the decision of the Minister of State to ensure that this is part of the Bill. It covers our feelings about representations to the Labour Party and our concerns on reading the first draft of the Bill. It strengthens the Bill and ensures that people will benefit from it. We are worried about cults and the unfortunate people they recruit. We receive e-mails etc. promising us that we will be millionaires in the morning if we do certain things. The same applies to cults that try to entice young people by offering benefits. These are good amendments and will be of major significance to families whose loved ones have unfortunately fallen into cults, which may be increasing. I hope the legislation, with these amendments, will help people who are concerned about those collecting money to develop such cults.
I too support these amendments. There was strong reference to this topic in the Dáil and Seanad. I welcome particularly amendment No. 10.
I have heard a man speak on radio programmes who has been contacted by families whose members have joined cults and cannot get out but sign everything over to them. They are not charities and have created many problems for families. I do not know whether legislation can deal with them but something needs to be done. One hears harrowing stories about how these cults take over people's minds, bodies and lives, leaving them in such a state that it takes them years to return to ordinary life. I welcome the amendment, which defines the difference between charitable and other organisations.
I will not discuss them in detail today but there are many other areas that we could examine within the church, which create problems for the church. It may not be for legislators to deal with this but some day that may have to happen.
I thought Deputy Ring was going to open a whole other subject.
I decided not to.
On reflection.
Deputy Ring is right to mention dubious religious organisations and their adverse effect. There may well be other avenues by which to deal with them but following the Opposition suggestions, I was adamant that there would be no refuge for them in this legislation. There may be other things to do but in regard to this Bill I was happy to be able to respond in particular to Deputy Wall's constructive proposals.
Seanad amendment agreed to.
Seanad amendment No. 9:
Section 3: In page 11, to delete lines 36 and 37 and substitute the following:
"(3) Subject tosubsection (4), a gift shall not be of public benefit unless—”.
Seanad amendment agreed to.
Seanad amendment No. 10:
Section 3: In page 12, between lines 25 and 26, to insert the following subsection:
"(10) For the purposes of this section, a gift is not a gift for the advancement of religion if it is made to or for the benefit of an organisation or cult—
(a) the principal object of which is the making of profit, or
(b) that employs oppressive psychological manipulation—
(i) of its followers, or
(ii) for the purpose of gaining new followers.".
Seanad amendment agreed to.
Seanad amendment No. 11:
Section 7: In page 13, between lines 31 and 32, to insert the following subsection:
"(2) The Revenue Commissioners shall not be bound by a determination of the Authority as to whether a purpose is of public benefit or not in the performance by them of any function under or in connection with—
(a) section 207, 208 or 609 of the Taxes Consolidation Act 1997,
(b) section 17 or 76 of the Capital Acquisitions Tax Consolidation Act 2003,
or
(c) section 82 of the Stamp Duties Consolidation Act 1999.”.
This is a technical amendment inserted on legal advice. The Bill has always separated the decisions of the new Charities Regulatory Authority from those of the Revenue Commissioners in respect of tax matters. It is not appropriate for the new authority to have any role in respect of tax matters which are the domain of the Minister for Finance and the Revenue Commissioners alone.
Every charitable organisation, as well as having exclusively charitable purposes must have a public benefit. The effect of this amendment is to remove any doubt that Revenue will be in any way bound by any determination of the authority as to whether the purpose of the organisation is of public benefit.
I agree with the Minister of State that the Revenue Commissioners and the new regulatory authority must be separate organisations. The Revenue Commissioners must have their own authority and must deal with whatever information or otherwise is connected to Revenue issues. There must be a clear separation between these organisations. The fact that an organisation has charitable status does not exempt it from compliance with the rules and regulations of the Revenue Commissioners. There may be instances in which that happens but it must be clear. I am glad that has been included in the Bill.
Various groups contacted me about this, including Amnesty International, the Free Legal Advice Centres, FLAC, the Irish Council for Civil Liberties, ICCL, Front Line and the Wheel. They are concerned about this argument. They say that the Bill already provides that even if the charities regulator recognises an organisation as a charity the Revenue Commissioners have the discretion to refuse to grant the same organisation charitable status from a taxation perspective. Is there an anomaly there? Could the regulator give charitable status which the Revenue Commissioners would refuse?
Existing charities are registered with the Revenue Commissioners and will automatically be deemed as such by the authority. From thereon the independence of Revenue is maintained throughout this legislation.
Is there not a risk of a charity chasing its tail if it must go to the regulator to acquire charitable status but the Revenue Commissioners refuse this, or vice versa?
Technically that could happen but the independence of each organisation is maintained.
Very well.
Seanad amendment agreed to.
Progress reported; Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.