Vol. 54 No. 4
Before we take up consideration of the Committee Stage of this Bill, I should like to indicate that I have ruled that amendment No. 7, standing in the name of Senator O'Quigley, is out of order, on the ground that it involves a potential charge on State funds.
The Senator has been notified accordingly.
Could I ask a question? Is there any way in which it can be rectified, if this matter is not in order?
It is not necessary.
There are other views.
SECTION 1
The Bill when enacted may be brought into operation almost immediately thereafter. The amendment proposes 1st July next. The Charity Commissioners are anxious to have the Bill in operation at an early date. Specifying a date in the Bill will avoid the necessity of an order by the Minister for Justice.
In connection with the date, I know that this Bill was introduced in 1957 and has gone through many vicissitudes since then. In Section 50, in relation to the construction of gifts, another date is given as to when that section will take effect, that is, 1st January, 1960. I wonder is there any relationship between the date on which the Bill comes into operation and the application of Section 50?
None at all. The point in Section 50 is a completely different one. The date 24th September, 1960 is mentioned because that was the date when the Bill was published, and I will explain, when we come to Section 60, the reasons for that.
I move amendment No. 2:
Between lines 15 and 16 to insert the following:—
"‘charity' means and shall be deemed always to have meant—
(a) trusts for the advancement of religion;
(b) trusts for the advancement of education;
(c) trusts for the relief of poverty;
(d) trusts for purposes beneficial to the community which do not fall under any of the foregoing subparagraphs (a), (b) or (c)."
It would take a very long time to explain why this amendment has been put down but it would take a great deal longer to explain why a definition such as is incorporated in it is not in the Bill. There has always been, since feudal times, a conflict between those who own land and the State. There was a conflict in ancient times between feudal landlords and their tenants about giving gifts to charities, and there is a whole variety of ancient enactments the origin and purpose of many of which are lost in the mists of antiquity relating to this conflict between Church and State, charitable institutions and land owners.
It is not my purpose to go into that, but we come to a certain stage in the 17th century when the Reformation, so-called, was well under way and we find an Act of Elizabeth relating to charity land in England and an Act of Charles I in 1643 relating to charities in this country. The extraordinary thing about it is that neither of these enactments purported to define what a charity was. These were enactments designed to prevent abuses in the administration of charity property, but the odd thing is that this sovereign Parliament in 1961 is asked to accept a definition of a charity based upon an enactment of 1601 and an enactment of 1643, both of which have long since been repealed.
That seems to me to be the strangest kind of behaviour for a sovereign independent Parliament to adopt in the first major Bill relating to charity law which it sets about considering. There are lots of things we can have respect for, coming down to us from the people who were one time our oppressors, but I assert here, and I put down this amendment to emphasise my view, that when Irish men and women set their minds to any problem such as this, they can do a very good job on it. It ought not to be outside the capacity of Irish brains, with all the history relating to administration of charities and evidence of abuses, with all the knowledge at our disposal relating to the present state of charitable institutions in this country and the requirements of the community, to define what this Parliament thinks ought to constitute a charity.
There are a lot of wise people knocking about and the greatest wisdom that they possess is to remark sagely that if you never do anything, you can never be accused of doing wrong by any act of commission. I understand that this Bill has been under consideration and in preparation for a long time. It is public knowledge that it was introduced some time in 1957. It is only now reaching the Seanad after a host of amendments were put down on Committee and Report Stages in the Dáil in 1961 and there is no blame to anybody for that. I understand that in earlier times, under a different administration, there was some question of a definition of a charity being incorporated in the Bill which was then in preparation. It seems to me that the only definition which the Parliamentary Secretary and the Government intend to operate for the future is the definition of a charity contained in a House of Lords case 1891. the Pemsel's case referred to in the explanatory memorandum circulated with this Bill.
All I am asking Seanad Éireann to do on this question is to say that the law relating to charities, the definition and legal conception of what constitutes charity, has not proved unsatisfactory but rather than that for the future it should rest upon an enactment long since repealed, we should now take a look at the law as determined in 1891 and adopted by the Irish courts and say that we give that statutory function for the future. In the Pemsel's case which has been adopted in many cases in the courts, the definition is laid down in the judgment of Lord Macnaghten and the only change I make from that is the order in which I put what I consider to be the priority on demands upon the charitable disposition of people who have property. In olden times, charity was first understood to include a trust for the relief of poverty but we have long since entered into the welfare State and the demands on the charitable dispositions of the citizens for relieving poverty are not so great now as in Elizabethan times.
The next thing was trusts for the advancement of education. We impose in our Constitution a constitutional obligation on the State to provide free primary education for every citizen and we do, as a matter of prudence, provide money for secondary, technical and university education. Then we have trusts for the advancement of religion which, interestingly enough, were not to be found in the Elizabethan statute but were to be found in the statute of Charles I. We have also trusts for purposes beneficial to the community which do not fall under any of the foregoing headings.
I think the needs to-day are not in poverty, education or charity in that order, but religion, education and poverty. That is the order which I suggest this House of the Oireachtas should decide should be the way in which we arrange our priorities. It has been argued by a number of people that the fourth heading, trusts for purposes beneficial to the community which do not fall under any of the foregoing paragraphs (a), (b) or (c), is loose and ill-defined. So it is. That is the way it is in Lord Macnaghten's definition in Pemsel's case. That is the way it will be if this amendment is not accepted. Leaving it as trusts for purposes beneficial to the community which do not advance religion or education or relieve poverty, means that it is always susceptible to judicial interpretation as to what is beneficial to the community, and that changes from one decade to another. Consequently, giving a statutory basis to what will in any event be the definition of charity will not in any way impede the development of the law of charity in relation to the needs of the time and the community.
To say that you must not define anything is the same kind of argument as to say we ought not have a written Constitution, that it is better to have a fluid Constitution. We all know how even our own Constitution is capable of being elasticised, developed and adapted to the needs of the time. It is a growing, organic thing. For that reason, I suggest that, in the first major piece of legislation dealing with charity, we should take this very minor step of giving a statutory basis to the definition of charities as adopted by our courts. As I say, one could argue at great length and beyond what the patience of this House would tolerate why this definition should be accepted. I think I have made an adequate case for it and I trust that the Parliamentary Secretary will indicate that as far as the Government are concerned this amendment is acceptable.
I am afraid I could not possibly accept this amendment. Before I explain why, let me deal with a couple of points made by the Senator. He skated very nicely over the position which obtained when the previous administration were dealing with this question. As he says, there was a question of getting a definition of a charity. They took three years and they failed to obtain a definition so that it is a bit naive to endeavour to suggest that the previous administration had more or less arrived at a statutory definition of charity. They had not.
I never suggested that. I said it was under consideration.
In regard to the question of the Act of Charles in 1634, that Act has been repealed. We are not accepting anything contained in that Act. It did not contain any definition whatever of charity. Judge Gavan Duffy pointed out in his judgment in Maguire's Case that that Act of 1634 did not displace the common law with regard to charities.
I am completely baffled by Senator O'Quigley's proposal to change the order of Lord Macnaghten's four classes. I feel that is complete nonsense, with all respect to the Senator. The four classes are the same. They have exactly the same statutory effect, whether you put one or another first. The whole basis on which we approached this matter of procuring a definition was that it was better not to have any definition, if we had not a good definition. It is preferable to have no definition at all rather than an imperfect or a restricted one. That is exactly the weakness of the suggestion which Senator O'Quigley has put forward in this amendment. He admits himself that the whole trouble is in the fourth class, that is, trusts which do not fall under any of the foregoing subparagraphs (a), (b) or (c). Is that not what has always been the difficulty—interpreting and giving effect to that category?
This amendment does not advance the position one iota. It merely endeavours to write into the statute the same looseness as is at the moment in the common law. The whole point in putting a definition into the statute would be to make the thing precise. We would be far better off not to do anything than to write something into the statute which is as loose and ambiguous as that which the Senator proposes.
There is no validity in his saying that we should, as a sovereign Oireachtas, have our own definition and not something that was in the Act of 1634 because there is nothing in the Act of 1634. In Britain and the North, they have abandoned any attempt to define charity. I should like to point out to the House and the Senator that charity has different meanings. Charity, for instance, for taxation purposes has a different meaning from what it has for rating purposes. If we were to exempt from rating a number of large institutions, we would have very serious repercussions on the rates position of several local authorities.
There is this other consideration. The concept of charity is a developing one. We now have the welfare State idea. We have several things which are taken on as an obligation by the Central Government and the local authorities which they would not have dreamt of taking on 50 or 60 years ago. That development is occurring all the time. Charity, as a concept, is changing accordingly.
From that aspect, it is not desirable to write into the statute some rigid restrictive definition. We have not defined for that reason as much as for any other. What we have done is this and I think it is the right solution to this difficult question. Rather than try to get a definition to cover everything we wanted to cover and to leave out all we did not want to cover, which we failed to get, we have taken the anomalies of the present situation, as we saw them, and rectified them. We are dealing with those anomalies in this Bill. There is Section 46 which deals with the public element in trusts for the advancement of religion. We have Section 50 which deals with the construction of gifts for mixed purposes and Section 51, which makes gifts for graves and memorials charitable. This latter is a new type of charity. Senator O'Quigley's definition does not cover any of those anomalies. The only effect that a definition would have would be to give rise to a complete new structure of case law.
There is another question we must consider. Several of our charities have cross-Border implications. If we have a certain definition of charity in our law and that definition is not followed in the North or if they adopt some other definition, we immediately cause a number of complications.
I am reinforced in my approach to this matter by the view of the Charity Commissioners. They have long years of experience of this whole matter and they are against any definition. I think the plain fact of the matter is that you cannot define charity because charity escapes definition. I suggest to Senator O'Quigley that his amendment does not advance the present situation at all.
The previous Government failed to get a definition which would be satisfactory to everybody and we have not been able to get one either, but we have, as I say, done something which is more valuable, without getting ourselves into the straitjacket of a definition with all its corresponding disadvantages. We have set about curing the defects which are there at the moment. We are dealing with those in the Bill. That is far more satisfactory than trying to write some loose and imperfect definition into the Bill as Senator O'Quigley's amendment would do.
I do not think that one thing which the Parliamentary Secretary said shakes me in my view that this amendment ought to be inserted in the Bill. No decision was taken by the previous administration that a charity could not be defined. There were a number of alternatives under consideration but no decision has been taken.
They were all rejected.
No decision was taken. They may have been rejected by some people. Secondly, the Parliamentary Secretary referred to the fact that, in Britain, they have not been able to find a definition. It is extraordinary the number of things they have not been able to do in Britain which we have been able to do here in our time. The fact that in Britain they have not been able to do certain things is no reason why we ought not do our best and put on a statutory basis——
The Senator's definition is a British case. It is nothing more. It is a House of Lords case.
The Parliamentary Secretary is a legal expert for the Minister for Justice, but he knows just as well as I do that up to 1922 decisions of the House of Lords were binding in this country so that what was decided by the House of Lords in relation to the common law up to 1922 was the law of this country and was taken over by the Constitution in 1922 and 1937. That still remains Irish law.
Would the Senator say what sort of case it was?
It was a finance case—it arose out of financial legislation. That definition has been used as being the best definition evolved for a charity. The House of Lords case is Irish Law accepted up to 1922 and accepted since. The Parliamentary Secretary has not shown that there is anything wrong in the definition which I have put down in the amendment. He says I admit that a difficulty arises under paragraph (d) of the amendment which deals with "trusts for purposes beneficial to the community." I say that has been the criticism made about it because of the flexibility that is required in any community, and particularly in this community, in relation to what ought to be regarded from time to time by the judiciary as "trusts for purposes beneficial to the community". There is no definition of "negligence" except that it is failure to take reasonable care. "Reasonable care" depends on the circumstances, and what was reasonable 40 years ago is perhaps different from what is reasonable at the present time.
So far as the Parliamentary Secretary is concerned, no strength of argument at all is to be found in relation to what the people in the North failed to do. As evidenced by the report of the Newark Commission on Charities, the people in the North, having given a number of preliminary reasons, found that there was no definition which could be effective so far as they were concerned, because any definition which they might make of what would constitute "charity" could be nullified or rendered ineffective by financial and fiscal legislation passed by the Imperial Parliament. So far as I am aware, we are not subject to any laws made by the Imperial Parliament in relation to that Act. We have not the difficulty they had in the North. That was their chief difficulty. One of the main purposes in having particular trusts deemed to be charitable is the reliefs they get from taxation.
The Parliamentary Secretary has given no explanation as to why he has not defined "charity" in this Bill beyond saying we cannot do it and that they have not done it in England. That may be so, but they have done a variety of things in England under the Recreational Charities Act, 1958, to bring within the scope of the charity law matters that were dubious up to that time. As I indicated in the debate on another Bill, there is no reason why we should not do the best we can here and now to define a particular matter and then, if it so turns out that something is not satisfactory, there is nothing easier than to repeal it and revert to the old position. All I am seeking to do in this amendment is to say: "This is what the Legislature approves of."
I regard it as an absurd position that we have a lengthy statute dealing with the law on charity, and the one thing we do not deal with is what "charity" itself it. It is the height of absurdity to depend upon an uncertain common law, while going to all the rounds of enacting a piece of legislation which, in most respects, with the exception of a few important amendments, consolidates and brings up to date the old law relating to charities.
Let me reiterate once more that the previous Administration, in three years, failed to find a definition of "charity." There is no good in trying to wriggle out of, or evade that fact. There is no good in criticising me, or the present Administration, for failing to do something the other administration could not do. I put it fairly and squarely to Deputy McGilligan in the Dáil, that his administration had failed to find a definition and he did not contradict me.
I should like to see the reference.
Senator O'Quigley will not get away with the suggestion that they might have been able to get one. They were not, and that is the plain fact of the matter. It is a bit naive to suggest that someone on this side of the House does not understand that the House of Lords case is perfectly good law here if it was decided before 1922. My interjection was for this purpose: Senator O'Quigley said that because the British were not able to do it, there is no reason why Irish brains could not come up with a definition. That looks a little sickly when one realises the definition he wants to sell to the House is a British definition of the House of Lords. I do not care that it is. I agree it is the law here but he should not say we should be able to do this when the previous Administration could not, and when he himself goes to the House of Lords for a definition laid down by a British judge.
This is clearly a daft discussion, if I may borrow a term which is more often used on the Fine Gael side of the House than on mine. The definition which Sentaor O'Quigley is trying to persuade the House to adopt begs every single question. Is it not absurd to tell the House—which is, in essence, Senator O'Quigley's argument—that the situation of the charity law is unsatisfactory because the present definition laid down in common law is loose and unsatisfactory and, therefore, we must put a definition into the statute? The definition he wants this House to put into the statute is the present common law definition of charity. Is that not a reductio ad absurdum?
If the Parliamentary Secretary starts misrepresenting what I said, we shall be here all night and all day to-morrow on this Bill, because it will mean that we will have to correct each other. I did not say that the present common law definition was unsatisfactory. What I did say was that it is unsatisfactory in the first major piece of legislation relating to charity not to define what this House means by "a charity". I pointed out the absurdity of the position where such a definition is based upon a statute which was repealed at the time the decision was made.
Case law.
There are no two ways about it. I said that if that were the case, when we have a Bill before us called "An Act to amend the law relating to charities." a major piece of legislation, we ought to give a statutory basis to the existing definition. In other words, we should say we approve of the definition which is in use in our courts at the present time. That is all we are asking to be done in this amendment, and no amount of misrepresentation can get over that fact. If my information is correct, if the previous Administration had been in office for an extra year, there would have been a choice of three definitions available. There certainly would have been.
I move amendment No. 3:
In subsection (4), line 20, before "or" to insert "resignation."
The present position is that the appointment or removal of a member of the board shall be published in Iris Oifigiúil. It seems to me that there is an in-between stage between appointment and removal. There is a strong possibility that a person who finds himself too busy or falling into bad health may resign. I think it would be a proper thing that there should be an announcement in Iris Oifigiúil of a resignation. There are, oftentimes, people who are, say, particularly interested in such a thing as charities. If they knew there was a vacancy in the membership of the Commissioners of Charitable Donations and Bequests, they might indicate to the Government that they were available for appointment. This amendment is designed to achieve simple advertisement of the existence of a vacancy.
I am not disposed to accept the amendment. The important thing in this connection is, first of all, the appointment of a commissioner. It is only proper that that should be notified in Iris Oifigiúil. Again, if a commissioner were to be removed from office, that would be an event of considerable significance and definitely one which should be noted in Iris Oifigiúil. I do not think it is necessary to notify a resignation. What would happen if a commissioner died or resigned would simply be that a new commissioner would be appointed in his stead and that appointment would be notified in Iris Oifigiúil. I do not think the amendment is necessary —indeed, for the reason Senator O'Quigley mentioned in concluding, it might in fact be undesirable—to have the sort of intimation that so and so would be prepared to act as a commissioner, if he knew there was a vacancy. I think it is better to leave it as it is—to notify the appointment of a new commissioner and, in the unlikely event of somebody being removed from office as a commissioner, to notify that also in Iris Oifigiúil.
I take it that the Parliamentary Secretary is not disposed to accept the amendment?
Yes, I am not disposed to accept it.
I am sure the Parliamentary Secretary will realise that, where the Government want to get somebody to resign, a resignation is of no less importance than the plain announcement of a removal. It seems to me that there is everything to be said for advertising in Iris Oifigiúil that somebody has resigned. Otherwise, the view may get abroad about the Commissioners of Charitable Donations and Bequests that nobody ever hears anything about them. It is not provided that when a commissioner dies, that fact is published and until a vacancy is filled, nobody will ever know about it. People who might have an interest in such a vacancy will never have any knowledge of its existence.
There is nothing to prevent the Government from saying: "We have 20 people here who have indicated they have an interest in becoming a member of the Commissioners of Charitable Donations and Bequests" and ignoring the lot of them but it does bring that number of people to the attention of the Government. It should be said that the Government are hardly likely to be flooded out with applications for appointment.
As I understand the position, the Commissioners of Charitable Donations and Bequests are purely a voluntary body. They do a great deal of very useful work. They meet frequently and get no remuneration. I notice that in the Estimate a small sum is reserved for travelling expenses. I am sure that that sum is not for the purpose of attendance at ordinary meetings. Therefore, you are likely to have on the Commissioners of Charitable Donations and Bequests only public-spirited people who have a desire to be of service to the community in a matter of this kind.
I would ask the Parliamentary Secretary to commence announcing resignations, which is merely an indication to those public-spirited people who are interested in the matter that the time is opportune for them to indicate to the Government their desire to give service to the community.
It might help the House to make up its mind if it knew the ordinary procedure in the gazette. My impression is that it simply announces that the Government have done this and that. Am I wrong? Does it sometimes announce resignations, too? What is relevant to an official gazette of this kind is an official action. Resignations would not come into that category?
Exactly. I was about to point out that the resignation or death of, for instance, a judge is not announced in Iris Oifigiúil but the appointment of a judge, yes. I agree fully with Senator Stanford's point.
Notice of an appointment does not state that it is in place of so and so?
No.
I move amendment No. 4:
In subsection (5), line 25, before "as" to insert "not exceeding five years."
Subsection (5) provides that the Board shall appoint a member of the Board to be chairman and the chairman shall hold office for such period as the Board determine when appointing him. I rather understand the present position to be that the chairmanship of the Board of the Commissioners of Charitable Donations and Bequests is a life appointment. The person who is chairman, is chairman for life. I think that has been customary.
There is no doubt that people who meet frequently and in a spirit of co-operation such as I imagine prevails at meetings of the Commissioners of Charitable Donations and Bequests do not want to offend one another. All of these persons on the Board are appointed for life. Certainly, the position is that in fact their appointment is a life appointment. I do not want the Commissioners ever to find themselves in a position where, by reason of tradition and custom and through not wanting to hurt the feelings of a senior member who customarily becomes chairman, they would find themselves saddled with a chairman for life who in fact would be an extremely bad chairman. We all know that there are people who are first-class members of committees but who must be kept in order. We even see it in this House. You must have a good chairman.
You have.
You may at the present time. I do not want the Commissioners of Charitable Donations and Bequests to be stuck for the life of a particular member with an unsuitable chairman. Happily, I do not know anything about the member. However, when we are enacting a piece of legislation of this kind, we ought to do what is prudent. We ought not to have a position where an unsuitable person would be appointed and there is no way of getting rid of him, short of telling him he ought to resign his position, which nobody would want to do. I think, therefore, that if you have a chairman for five years, or, if somebody thinks better of it, for three years, as being sufficiently long to put up with an indifferent chairman, that would inure to the benefit of the work of the Commissioners of Charitable Donations and Bequests. The other principle of appointment for life, which, in effect, it will be, is a bad one.
I cannot accept this amendment for a number of reasons, and principally for one reason, and what I am now saying applies also to-amendments Nos. 5 and 6 which follow: in this whole matter, I have been guided by what the Commissioners want. The board have been in existence for well over 100 years and have their own well-settled practice and traditions. I think it is most desirable to allow them to manage their own business in these matters of procedure. The Commissioners are appointed for life and it would be a little anomalous to write into the statute that the chairman shall be appointed for only five years. As Senator O'Quigley has pointed out, the Commissioners are a voluntary body and do most useful work. As such, they should be allowed to conduct their own affairs as they think best. They have their own practice and they have asked that they should be allowed to appoint a chairman. That was not the way up to now, but they have asked that they, in their wisdom, knowing all the circumstances of the case and knowing the way in which they have always operated, should be entitled at the same time to appoint the chairman and to fix his period of office. Purely for that reason, apart from the merits of the thing, I would ask the House to adopt the procedure as we have it in the Bill and not as Senator O'Quigley suggests.
While paying due tribute to and acknowledging the work done by any body such as the Commissioners of Charitable Donations and Bequests, and while prepared to go a long way to draw on their experience and to meet their wishes, it would be a wholly wrong principle to adopt, when enacting legislation of this kind, that one should, in the words of the Parliamentary Secretary, be completely guided by the Commissioners. This legislation will affect not only this body of Commissioners but future bodies, for perhaps 50 or 100 years. In other pieces of legislation where the chairman of a board is appointed, his period of office is fixed, or his maximum period is fixed and it is frequently laid down that he shall not be eligible for reappointment. As I say, the intimate association between members of the Commission perhaps would not permit them to fix an unduly short period for somebody who might be anxious to be appointed chairman of the board. If you lay down by statute a period of five years or, if you think it desirable, three years, that concludes the matter and gives rise to no hard feelings, but helps to preserve the atmosphere of cooperation and good relations which I am certain obtains at the present time.
Might I not just suggest that if the Commissioners found themselves with an extra difficult chairman and put up with him for five years, they might as well put up with him for life?
We hope we will have him longer than five years.
That is a non sequitur.
There are limits to everything, and the advancing years of a particular chairman might make him still more difficult.
They would be growing old gracefully with him.
That might not benefit the work of the Commission, which has also to be taken into consideration. I am taking the case of somebody perhaps getting difficult as he got older and who happened to be the chairman. Nobody would want to tell him: "You are getting more old and difficult, and obstructing and impeding the work of the Commission." How much better it would be if there were an automatic provision that after three or five years or some other maximum period, he should vacate the chair? There would be a great deal of wisdom in adopting that course and I recommend it to the House.
First of all, if this question of embarrassment arises, it would be just as embarrassing for the commissioners, if, at the end of five years, they wanted to get rid of the chairman and vote somebody else into his place. The second point that strikes me is that there might be some validity in Senator O'Quigley's argument if the old position obtained whereby the Government appointed a chairman, but here the Commissioners themselves will be appointing their own chairman. They will know the qualities and the capacity and ability of the man they are appointing and, in the light of that knowledge, they will decide for what period they will appoint him. Taking it all into account, I think we can safely leave it to the commissioners themselves.
It is extraordinary how people misjudge.
Is the amendment being pressed?
I will withdraw it.
I move amendment No. 5:
In subsection (1), line 31, to delete "the senior member in order of appointment or such other" and substitute "such".
This is an amendment designed for the same purpose as the previous amendment. The amendment provides that if the chairman is absent from a meeting of the board, the person appointed to conduct that meeting should be such member as the board may select, not the senior member. In the ordinary course of events, not much difficulty would arise, but I do not see any provision in the Bill for the retirement of the chairman in the event of a prolonged illness. Since that is so and the senior member of the board might in a particular case happen to be a hopeless chairman, it is not right or proper that the other members of the board, or the board itself, should be impeded in their work through having a bad chairman to conduct the business.
There is much to be said, if you are going to allow the board to elect the chairman for whatever period they determine, for allowing the board ad hoc to elect a chairman for a particular meeting or for a period in place of a chairman who is ill or who will be away for some time. If the Parliamentary Secretary is right in his argument on the previous amendment about the board being empowered to select whoever they want as chairman, my amendment is more in accordance with his argument in relation to the appointment of a permanent chairman than is Section 9 at the present time.
I am inclined to support Senator O'Quigley in this matter. However, I do not quite see the force of the subsection as it stands. It says that "the senior member in order of appointment or such other member as the Board may select shall be Chairman". When does the "or" become effective? Does it mean if the senior member refuses to act as chairman, then they may select? I would like some information.
I will be glad to explain the position. I might say, first of all, that everything I said on the previous amendments applies with equal force here. This is a suggestion by the Commissioners themselves, and unless there is some very good reason for doing otherwise, we should adopt it. This is another long-established practice of the Commissioners that has been followed down through the years. Apparently what happens is that if the permanent chairman is absent, the invariable rule is that the senior member present will take the chair, but, because of the nature of the work the Commissioners are called upon to do from time to time, Senators will readily envisage the type of case that could arise where the senior member might not like to take the chair. He might feel for some reason or other that he would rather not act. In that case, we provide in the section that such other member as the board may select will take the chair in place of the senior member.
The position is that normally you have the permanent chairman, and, in his absence, the senior member, and if for some reason the senior member does not want to act, if it would be an embarrassment to him or for some other reason, the chairman is chosen from among the other members present. I think it is a very sensible way of doing business. Again, I should like to emphasise that a board like this, that has existed for so long, has built-in traditions and methods of operating and of procedure which we should be very reluctant to upset. That is the system which has suited their way of working and they are asking the Oireachtas to allow them to carry on in that fashion.
May I say that I have every sympathy with the Parliamentary Secretary's desire to allow the board to carry out their business in the way they have been doing so efficiently for such a long period, but this subsection does not mean what the Parliamentary Secretary says it means. That is as clear as daylight and I think Senator O'Quigley, in this particular case, is right when he says that the arguments which the Parliamentary Secretary made against amendments to the previous section are in favour of this amendment. As subsection (1) of Section 9 stands, where the permanent chairman is absent, any other member of the board can be moved to the chair, no matter who is present. There is no doubt whatever about that. I invite the Parliamentary Secretary to read it.
I know the embarrassment that can be caused by putting certain people in the chair and I know the value of a good chairman and the difficulties there can be when a chairman is not good, but if what the Parliamentary Secretary says is what the board desires, then some such phrase should be in this section as "the senior member in order of appointment, or in the event of his refusal or inability to act such other member as the board may elect, to be chairman". As it stands, there can be no doubt as to the meaning. I know the Commissioners are the kind of body where this might not happen, but certainly as it stands it would appear that any member of the board may be proposed to act as chairman. That would bring us back to the embarrassing position which the Parliamentary Secretary was so anxious to avoid.
I was about to say much the same. There is just one other point about which I am not happy—"the senior member in order of appointment". Does that mean absolutely or among those present? It is a very loose subsection and I think it does need reconsideration. Supposing the next senior member in order of appointment is not present——
At a meeting.
Does it mean the next senior member present will take the chair?
Surely it is qualified by the opening words "at a meeting"? That makes it clear.
He must be present.
Yes.
I am conscious of the fact that Senator Hayes has a point but I do not think in this particular case it is necesary to go as far as he says and spell it out and put in those additional words. We know the long-established rule that the senior member takes the chair and only in the event of his being unwilling to do so would the Commissioners elect somebody else. Admittedly, as the section is phrased. Senator Hayes is right and it would be open to any member to say "I propose Mr. So-and-So take the chair." We know that does not happen. It has never happened and it is not the way they operate, and there is no danger of its happening, as long as the senior member is there and willing to take the chair. I am assured that the tradition down through the years is that he always takes the chair, unless he feels he should not do so for some reason or other.
I am all for tradition and all against rules. I think I expressed myself as being usually against the creation of new Standing Orders in the Dáil. They are often a mistake. I do not want this subsection spelt out but I did want to draw the Parliamentary Secretary's attention to the fact that he was trusting to the board and not to the section.
That is quite true.
I have great respect for tradition and I do not believe in disturbing anything that has proved itself in time. At the same time, the Parliamentary Secretary seems to be introducing something in the nature of a precedent in his arguments against a number of these amendments. The kind of precedent he is introducing is tantamount to this, that this is a Private Bill introduced by the Commissioners. That is the kind of argument the Parliamentary Secretary is using but I am sure it is the kind of argument that the Commissioners, for whom I have a lot of respect, as I am sure the Parliamentary Secretary has also, would not like him to use. I do not think it is any answer whatever to any arguments or any amendments here to say that this is the way the Commissioners want it. It is wrong to use the wishes of the Commissioners in the way the Parliamentary Secretary has been using them. The fact that the Commissioners want something in some way is not an argument at all in one sense.
I quite agree that some of these matters may have operated successfully over the years, but there is always the possibility that something may go wrong and when they do, commonsense, prudent regulations, such as those being sought in some of these amendments, would get over many of the difficulties and damp down any ill-feeling or disharmony that might be liable to arise. That is the reason it is much better to make provisions with one object always in mind, that the business of the Commissioners will be conducted in the best possible way by having available the best possible kind of chairman, even for individual meetings where the permament chairman may not be present.
I want to make it clear that I am not suggesting that simply because the Commissioners wish it, we should do it. I am saying that the Commissioners tell us that, from their knowledge and experience, they consider the way it has worked is best and they would like it to continue. Unless we have some very clearcut reason for going against them, and unless there is some special interest involved or some question of that nature, we should accept the fact that their knowledge and experience should weigh with us. If they say: "We think this is the best way; this is the way the board would work best in the future as it has in the past" then unless we can conclusively prove them wrong, we should accept what they suggest. I am not asking the House willy-nilly to adopt what the Commissioners ask.
Would the Parliamentary Secretary reconsider whether this subsection precisely gives the Commissioners what they ask, because the House has expressed some doubt about that?
I can give the House complete assurance on that. This is exactly what they would like to have.
Only if it is interpreted in a certain way, because as Senator Hayes has pointed out, it is open to another interpretation. I think we must also reckon with the fact that it is possible that a "rogue" Commissioner might get among the Commissioners. He might want to cause trouble. It is not beyond possibility. If we have a badly drafted subsection, I can see that that "rogue" Commissioner might cause a good deal of trouble.
If I thought the Parliamentary Secretary would reconsider the matter, I would withdraw the amendment and put it down for Report Stage but perhaps he has made his mind up that there will not be any amendment.
I should not like the House to think that. I think I can give the House the assurance for which Senator Stanford is looking. We know that the interpretation which Senator Hayes has mentioned can be put on this section. We know that the Commissioners realise that. We discussed this section fully with them. I can give the House the assurance that this is the manner in which they consider they can conduct their business best.
I move amendment No. 6:
In subsection (4), line 40, to delete "three" and substitute "five."
This is an amendment to subsection (4) which provides that:
At a meeting of the Board three members shall form a quorum, if due notice of that meeting was given to all the members.
Section 7 provides that the board shall consist of not more than 11 members. As far as this House is concerned, we have a clear conscience when we come to talk of a quorum because this House has a quorum nearly always. On nearly all occasions, it has a much fuller attendance than is here to-day. We can talk with a perfectly clear conscience about what ought to constitute a quorum.
In point of fact, I have been in this House when there were fewer than a quorum.
I am not talking about the exceptions; I am dealing with the general situation. We nearly always have more than a 50 per cent. attendance here, I am happy to say, and when we talk about quorums, we can talk with a clear conscience. I do not think, if we are going to the trouble of constituting a Commission consisting of 11 members, that we ought to be satisfied that the business of the Commissioners of Charitable Donations and Bequests will be conducted by three people, two of whom may have the power of deciding how lo apply a particular charity cy-prés. We ought not leave that to two people. Anything up to £5,000 might be involved. That is the amount of money which can be applied by the Commissioners cy-prés. If we are going to have a Commission, we ought to see to it that only those who are prepared to work and attend regularly will continue in membership. It might become apparent that a number of meetings would have to be abandoned because there was not a quorum present.
I wonder if the Parliamentary Secretary would supply us with any information as to what the Commisioners' views are upon this matter of a quorum? I have the report for 1960 of the Commissioners of Charitable Donations and Bequests. It certainly does not err on the side of giving surplus information. It does not give any list of attendances. It does not assist us in determining how many of the Commissioners attended how many meetings. Could the quorum not be raised to five?
The quorum of the Seanad is one-fifth of the total, that is, 12 out of 60. The quorum provided here is little more than one-fifth. On the analogy of the Seanad, that seems the right size for the quorum.
Might I put the historical argument to the House? By Section 4 of the 1844 Act, five Commissioners were made a quorum at that time. There were 13 Commissioners. But there were difficulties. delays and inconvenience because of having five as a quorum so that in the 1871 Act, by Section 4, again, the quorum was reduced to three.
The same number.
You had three as a quorum out of 13. That worked perfectly satisfactorily from 1871 to 1924. The number of the Commissioners was reduced to 11 in 1924 and the quorum of three still continued. The Commissioners themselves want the quorum of three to be continued. They feel there might be difficulty otherwise. If there were a quorum of five, meetings might not sometimes be able to be held.
Could we have some information as to whether or not there were persistent defaulters in regard to attending meetings? If that is the case, I do not see why there should not be some provision elsewhere in the Bill that people who absent themselves for a period of six or 12 months would be deemed to have vacated their appointments and let other people be appointed who are prepared to do the work.
I am not drawing any analogy with what is a quorum in this House. What I did say was that, when we come to talk about quorums in this House, we have a clear conscience. Perhaps, that is a trifle strained to-day, but, in the ordinary course, this House has certainly a 50 per cent. attendance all the time. I think it can cast an unduly heavy burden on the diligent attenders at meetings of this kind if there is not some provision whereby people will be obliged to attend in large numbers. I can see a situation arising where one of the three who turn up may have to leave some matter of great importance or may have to leave because he is not feeling so well. They feel they must attend the meeting in order not to let down the others. If the number is raised to five, it will be brought home to the people that it is necessary for the majority of them to be in attendance all the time. At the present time, it is easy enough to get three.
First of all, there is no doubt that if we made the quorum five, it would cause certain difficulties. Again, it is a tradition of the Board that important matters are not dealt with except at fairly large meetings. Routine matters are disposed of at small meetings but if there is anything important, it is invariably left over until a fuller meeting is available. Having a quorum of three gives the advantage that small meetings would not have to be abandoned, and various routine matters could be dealt with at such meetings. For that reason, I think we might leave it.
There is a case for a larger quorum. An example was given that 12 members form a quorum in this House but those 12 would be representative of very widespread and different opinions. I know the Commissioners of Charitable Donations and Bequests are not a debating society or anything of that nature, but a quorum of three seems to be rather imprudently small. I should like to ask the Parliamentary Secretary, if he is not prepared to accept the amendment now, to consider increasing that number between now and Report Stage. I accept his statement that the board will not take serious and important decisions if only the minimum number are present but when a law such as this is being enacted, we should ensure that the public understand that the matter is being dealt with in the best possible way. Therefore, I should like the Parliamentary Secretary to reconsider the matter.
Is the Senator pressing the amendment?
I shall withdraw the amendment until Report Stage.
I should like to ask the Parliamentary Secretary to say a word on this matter. To me, three does seem a small number. From time to time, I am very interested in many of these charitable bequests and as a trustee I feel more than three are necessary. I accept what he has said about the matter but I should like him to reconsider it.
I think I have dealt with it as fairly as I could, and I would only be repeating myself if I said any more. I do not think there is any danger in leaving it at three.
The Parliamentary Secretary is quite satisfied they will not deal with any important matters?
Would he deal with it on the section?
The Parliamentary Secretary has already dealt with it.
Amendment No. 7 has been ruled out of order.
I put down the amendment and I suppose I can speak on it and say it is not included in the section, and should be included in it. I put down the amendment for the purpose of ensuring that the staff of the Commissioners of Charitable Donations and Bequests would be entitled to some form of pension rights.
It might be better if the Senator put the matter the other way, and argued that the section does not cover the superannuation of the staff of the Commissioners of Charitable Donations and Bequests, as the amendment has been ruled out of order. Does the Senator appreciate the point?
I bow to your ruling, Sir. The Parliamentary Secretary has already indicated, when the amendment was ruled out of order, that in fact the staff of the Commissioners of Charitable Donations and Bequests are at present covered by the Superannuation Acts. That does not seem to be the position at all. In Section 5, we are continuing and reconstituting the Commissioners of Charitable Donations and Bequests. We are continuing them as a body corporate with perpetual succession, and a common seal, and all the other paraphernalia associated with bodies corporate. As I see it, the Commissioners of Charitable Donations and Bequests, as an entity, and from the point of view of their constitution and the law, are in exactly the same position as the Electricity Supply Board, the Pigs and Bacon Commission, which we will be dealing with next week, Bord Fáilte, Bord na Móna and Bord na gCon, all the creations of statutes.
The essential thing about the Commissioners is that they are not responsible for their activities to any Minister of State or to any organ of State. True, it is provided in the Bill that their accounts will be audited by the auditor appointed by the Minister for Local Government, but it could equally well be provided that their accounts would be audited by a commercial firm of auditors. That is not a test of their legal status. Here we have a commission which is being constituted as a body corporate. It is not answerable to the Minister for Justice, the Government, or any executive Minister of the Government. It is not part of the legislature; it is not part of the Judiciary; it is not part of the Office of the Comptroller and Auditor General; it is not part of the Presidential Establishment; and, finally, it is not part of the Attorney General's Office.
Consequently in my view the staff do not fall within the category of civil servants of the Government, that is, of the Taoiseach and his Ministers. As an entity as I have already indicated, they do not form part of any organ of State, and are not part of any State organisation. Therefore, it does not seem to me that the Superannuation Act can be properly applied to them, although, in fact, up to the present time it has been applied to them. That Act is applicable only to civil servants of the Government or the State.
It might be argued by the Parliamentary Secretary that because the Minister for Justice appoints the secretary, and because the Minister for Finance determines their remuneration and terms of conditions, that makes the staff civil servants. That is not so. If it did make them civil servants, it does not make them civil servants in such a way that the Superannuation Act would apply to them under this Bill.
Subsection (1), Section 24 of the Superannuation Act, 1936, provides:—
Full-time service as an officer of, or as a member of the staff of, the Oireachtas, or as a member of the staff of the Comptroller and Auditor General, the Revenue Commissioners, the National Library of Ireland, or the National Gallery of Ireland shall, if such service is wholly remunerated directly out of moneys provided by the Oireachtas, be deemed, for the purposes of the Superannuation Acts, to be service in the civil service of Saorstát Éireann.
The position up to 1956 was that it was thought that persons employed in the offices of the Attorney General and the Chief State Solicitor were also civil servants. There was then a High Court action and eventually a decision of the Supreme Court which clearly established that persons who were thought to be civil servants of the Government from 1922 to 1956, in fact, were not civil servants of the Government, and not persons to whom the Superannuation Acts applied.
That situation was remedied by the Civil Service Commissioners Act, 1956, which deemed these people always to have been appointed by the Taoiseach and brought them in the category of a definition used for the first time in that Act "civil servants of the State" which now comprises people like Oireachtas officials, officials of the Attorney General's Office, officials of the office of the Comptroller and Auditor General and people working in the courts. Therefore, it does not seem to me that in this section we are making any provision whatever for the superannuation of the staff of the Commissioners of Charitable Donations and Bequests. I should like to hear the Parliamentary Secretary indicate the position.
It may well be that the Parliamentary Secretary can point to section such and such of some Act I have not been able to find which says that persons who were in the service of the Commissioners shall be deemed to be servants of the Civil Service of Saorstát Eíreann and of the Government of Saorstát Eíreann. If that is so, I am quite happy and content, but if he cannot do that, I have the gravest doubts that the section as it stands at present entitles the Minister for Finance to apply the Superannuation Acts to the staff of the Commissioners of Charitable Donations and Bequests.
This amendment is unnecessary. The precedents being followed here are in Section 6 of the Industrial Development Authority Act, 1950, Paragraph 6 of the First Schedule to the Adoption Act, 1952, and Section 14 of the Apprenticeship Act, 1959. These sections are the appropriate models where a body is set up by statute and assigned Civil Service staff.
Senator O'Quigley will realise that the secretary and officers of the board are at the moment, and will be, paid from voted moneys. The Minister for Justice remains the appropriate authority in relation to them under Section 2 of the Civil Service Regulation Act, 1956, and there is no question that they continue to be civil servants so as to preserve their rights under the Superannuation Acts.
There is no comparison at all between the staff of the board and the staff of boards like the Electricity Supply Board, Bord Na Móna or Bord Failte. Those latter boards have not Civil Service staff assigned to them and indeed those staffs are not paid out of voted moneys. It is quite clear that no doubt exists in the case of this board. The secretary and the other officers are pensionable. They are granted Civil Service certificates and they are paid out of voted moneys. The relevant provision to which Senator O'Quigley asked me to point is Section 17 of the Superannuation Act of 1859. The secretary and staff of the board comply fully with the conditions laid down in that section.
Unfortunately, I have not by me at present the Act which established the Industrial Development Authority or the Apprenticeship Act. I know something of the Industrial Development Act which was passed early in 1950. The Parliamentary Secretary talked about the assignment of Civil Service staff to the Industrial Development Authority, the Apprenticeship Council and another body. Of course there is an end to the matter: they are already civil servants. The Industrial Development Authority Act and the Apprenticeship Act speak of the Minister for Industry and Commerce transferring and appointing such of his officers——
No.
That is certainly in the Prices Act.
Two Acts are referred to, the Industrial Development Authority Act, 1950, and the Apprenticeship Act, 1959. The section is exactly the same in both.
The Parliamentary Secretary speaks about assignment of Civil Service staff. I do not know where he got that phrase. If they are already Civil Service staff, they can be seconded to the Industrial Development Authority or the Apprenticeship Council or to any of these bodies. It is not provided in this section that the Minister for Justice will appoint his officers to be secretary and officers and servants as may be necessary. The position under the Industrial Development Authority Act and the Apprenticeship Act is that the Minister can appoint certain people to these bodies, which much depends upon the functions to be discharged by these bodies. For instance, under the Industrial Development Act, the Minister for Industry and Commerce can request the Industrial Development Authority to do this, that and the other and report to him.
The wording of the two sections is exactly the same.
That may be, but a lot depends upon whether the Industrial Development Authority is a completely autonomous, independent body or whether it is subject to direction and control by the Minister for Industry and Commerce.
It has nothing to do with it.
It has very much to do with it because in the one case— that is, the very best—once a Minister of State is answerable for it, then it comes within the purview of the Minister's service. If a Minister of State is not answerable for it, it is outside the purview of Government service in the narrow sense of Government service in relation to "Government" as defined in Article 28 of the Constitution as the executive organ of State.
Would the Senator not have the good grace to admit he is caught out?
I have the good grace to admit any time I am wrong and withdraw an amendment any time I am so convinced. On this occasion, the staff of the Commissioners of Charitable Donations and Bequests are in no respect subject to any control or authority of the Minister for Justice or the Minister for Finance. I should like the Parliamentary Secretary from his knowledge and from his advisers to point anywhere in this Bill where the Commissioners for Charitable Donations and Bequests are subject to any kind of direction or control on the part of the Government, the Minister for Finance or the Minister for Justice.
That is a neat bit of side-stepping but it has nothing to do with the issue of the status of the secretary and officers and servants.
Of course it has. It was at one time thought that the staff of the Attorney General's office were servants of the Government. From 1922 to 1926, it was thought that the staff of the Attorney General's office were servants of the Government. That was a time during which the Attorney General was considered the seed and foundation of all classes of legal advice to the Government. It was thought that they were subject to the direction and control of the Taoiseach. That was found not to be so. They are not civil servants of the Government but they fall into a different category, of being civil servants of the State.
Likewise, in the Superannuation Act of 1936, we find that the Superannuation Acts had to be specifically applied to members of the staff of the Oireachtas, members of the staff of the Comptroller and Auditor-General, and members of the staff of the Revenue Commissioners. Everybody would have thought that the Revenue Commissioners formed part of the Government service and that the staff of the Comptroller and Auditor-General were likewise within the Superannuation Acts, but that is not so. The Superannuation Acts had to be specifically applied to them by specific enactment in 1936.
I am satisfied, and nothing will convince me to the contrary, that the same position applies exactly in the case of the staff of the Commissioners of Charitable Donations and Bequests. They are no more answerable to the Minister for Justice, the Minister for Finance, or any other Minister of the Government than are the staff of the Comptroller and Auditor-General answerable to the Minister for Finance or the Taoiseach, although Section 4 of the Comptroller and Auditor-General Act, 1923, says:
The Minister for Finance shall from time to time appoint the officers, clerks, and other persons in the Department of the Comptroller and Auditor-General and regulate the numbers, salaries and conditions of employment of the respective grades or classes into which such officers, clerks and other persons shall be divided.
That is the same section as Section 10 here. I should like to hear what the Parliamentary Secretary has to say about that, because is was necessary in 1936 to apply the Superannuation Acts specifically to the staff of the Comptroller and Auditor-General.
The Parliamentary Secretary makes great play with the fact that the staff of the Commissioners of Charitable Donations and Bequests are paid out of public moneys and that they are granted civil service certificates by the Civil Service Commissioners. Of course they are. There could be no question at all about anybody getting superannuation under the Superannuation Acts, unless he went in with a certificate of qualification from the Civil Service Commissioners, because that is a sine qua non of payment of superannuation allowances. But that does not prove anything.
The Parliamentary Secretary says that they are paid out of public moneys. Of course they are, but so are national teachers, and they are not civil servants. National teachers are subject to more control from a Minister of State than are the staff of the Comptroller and Auditor-General or the staff of the Commissioners of Charitable Donations and Bequests. That is not the test at all. The question is whether or not they form part of the Government or the State service. In my view, the staff of the Commissioners of Charitable Donations and Bequests are less a part of the Government or State service than the staff of the Comptroller and Auditor-General, to whom the Superannuation Acts had to be specifically applied by the Act of 1936.
I do not mind at all having to withdraw an amendment or having an amendment ruled out of order. I am not caught out. The only persons who may be caught out are the staff of the Commissioners, who some day may find——
I will take the chance.
I am not prepared to take the chance. I wanted to ensure by this and by the amendment ruled out of order that there was no doubt at all that somebody would not be held up for a period of a month or three or six months some day when we were enacting a piece of legislation which I am certain will have to follow the enactment of this Bill as it stands.
To tell the truth, before I saw this amendment and before I heard the discussion, I was under the impression that the staff of the Commissioners of Charitable Donations and Bequests were civil servants. I knew more than one of them and I know one who was the head of the office and has gone out on pension and I always regarded him as a civil servant. I am not quite sure whether he did not regard himself as something superior to a civil servant, but I am quite sure that he certainly had the pension and civil service rights. Would the Parliamentary Secretary tell us something of the history of this matter? Civil servants may be transferred to the office of the Commissioners of Charitable Donations and Bequests. That is correct, of course. May they be, when they have had some service, taken out of that particular service and restored to the Ministry of Justice or to some other Department?
Certainly.
So that the people employed by the Commissioners are subject to the ordinary rules and privileges of civil servants?
Certainly, as set out in subsection (2).
That does not set it out exactly that they may be sent in and taken out.
Those are their terms.
No terms are laid-down at all. They are simply ordinary civil servants, subject, in the office of the Commissioners of Charitable Donations and Bequests, to the same rules as any civil servant. Is that correct?
That is correct.
They may have Civil Service terms applied to them.
I am not quibbling. Most of them would not worry at all about what they were called, if they were sure of the requisite benefits and privileges.
They are absolutely sure.
Are there examples of people taken from outside the Civil Service and put into this. office? I take it that there are not. I have never known an example. I always assumed them to be civil servants.
A solicitor could be taken from outside and put on the staff.
If he were, would he be appointed under a particular section of the Civil Service Acts and given civil service status and security?
He would be appointed and become a civil servant.
Would he get a civil service certificate?
Yes.
What strikes me about this Bill, this section and the argument of the Parliamentary Secretary is that we are acting in a peculiarly British fashion in not saying what we mean, not changing the title, and not making everything clear, but saying: "It is all right; they call themselves admirals but they never go to sea in their boats."
They get their superannuation.
I am not at all impressed by the bland assurances given by the Parliamentary Secretary who, I think, rather realises that he may be caught out and then, in the typical fashion you find some people indulging in from time to time, says: "No; it is you who are caught out." I do not think that is so at all, but he is prepared to wave aside any possibility that some people may find themselves one day not entitled to superannuation.
I stake my reputation upon it.
The real trouble is that it is the officers who might be caught out.
They have not been caught out so far.
The reason is that we have not been amending the Charities Acts until the advent of this Bill. That is the only reason this arises at this stage. If the Parliamentary Secretary is right that they are civil servants, why is it not stated that the Minister for Justice, with the consent of the Minister for Finance, shall from time to time appoint a secretary of the board and such others of his officers as from time to time shall be necessary, because that is the form of wording used in quite a number of Acts? I must have a look at some of the Acts when the Report Stage arrives and we may be able to deal again with this matter.
The subsection reads:—
The Secretary and other officers and servants of the Board shall hold office on such terms and receive such remuneration as the Minister for Finance determines.
They will not hold office "as the Minister for Finance determines" because that is already determined for them, if they are permanent civil servants, by Section 5 of the Civil Service Regulations Act, which provides that fulltime civil servants hold office at the will and pleasure of the Government. Therefore, the determination of that has gone. They will hold office, subject to the provision of the Civil Service Regulation Act. If they are civil servants, their tenure of office and the terms under which they can be dismissed are already determined for them in the Act of 1956 and the Minister for Finance cannot change them.
Could he not change that Act, if he wished to?
Of course, he could not. If they are civil servants there is no point in saying they will hold office on such terms, because "terms" includes the tenure of office and the terms under which they can be dismissed or suspended. That is provided for in the Civil Service Regulation Act, 1956. Either this section is right in what it says or it is not, that the Minister for Finance can determine that they hold office at the will and pleasure of the Commissioners and that they can be dismissed at the complaint of the Commissioners. In regard, say, to the disciplining of a shorthand typist, could the Parliamentary Secretary say who is the appropriate authority?
The Minister for Justice.
Of course he is not, because the Minister for Justice has nothing to do with the day-to-day running of the Commissioners of Charitable Donations and Bequests.
He is the appropriate authority in relation to the Secretary and staff.
Where is that laid down?
Well, it is a combination of various Acts, but particularly the Civil Service Regulation Act, 1956.
That is, in relation to the staff of his own Department, but the Commissioners form no part of the Department of Justice and are not carried on the Vote for that Department.
They are carried on one of the Department's Votes.
They are carried on a separate Vote.
They are voted money from the Department of Justice and the Minister remains the appropriate authority.
The Parliamentary Secretary should be somewhat more precise in what he says. The Commissioners are carried on a separate Vote contained in the Book of Estimates and the fact that the Minister for Justice accounts for them does not mean he has anything to say in regard to the staff. The Minister for Finance accounts for the Comptroller and Auditor-General but that does not give him any control over the staff of the Comptroller and Auditor-General's office. I should like the Parliamentary Secretary to indicate where, in the three subsections of Section 10, or in this Bill, the Minister for Justice has power to control and regulate matters relating to discipline, annual leave and other authorisations in relation to the staff of the Commissioners of Charitable Donations and Bequests. I do not see it in Section 10.
When I said that the Senator was caught out, I meant that he was wrong when he said that the wording here was not the same as the wording in the Industrial Development Authority Act. It is the same. As I said, the procedure here and the wording are exactly the same as adopted with regard to the Industrial Development Authority Act, the Adoption Board and the Apprenticeship Board. Naturally, this is a very serious matter and I have had it most carefully examined. It is absolutely clear, and I think Senator Hayes who has had some experience of this is also clear on the matter, that these people remain civil servants because they get civil service certificates and qualify under Section 17 of the Superannuation Act, 1859. The Minister for Justice, by virtue of Section 2 of the Civil Service Regulation Act, 1956, remains the appropriate authority and they are paid out of voted moneys. It is absolutely clear that they are civil servants and that the Superannuation Acts apply to them and that the amendment, which we are not discussing because it has been ruled out of order, is not necessary.
It is amusing to hear the Parliamentary Secretary say that this section is the same as that contained in the Industrial Development Authority Act, the Adoption Act and the Apprenticeship Act and that because I was not aware that Section 10 was the same as the sections in these Acts, I was caught out in some respects. If the Parliamentary Secretary will look at the sidenote to the section, he will find that this is a repetition of the seventh section of Chapter 97 of an Act passed in 1844. Would it not be more correct, I wonder——
Caught out again.
Will the Parliamentary Secretary look at Chapter 97 which reads: "And be it enacted, That it shall be lawful for the Lord Lieutenant or other Chief Governors of Ireland, with the Consent and Approbation of the Commissioners of Her Majesty's Treasury",—that is in substitution for the Minister for Finance—"from Time to Time to appoint during his Pleasure a Secretary or Secretaries to the said Commissioners, and also such Officers, Clerks, and Servants as may be necessary for the Purposes of this Act"; —that seems to be the part of Section 10—"and the said Commissioners of Her Majesty's Treasury shall fix the Salary or Salaries of the said Secretaries, Officers, Clerks, and Servants in fit Proportion, according to the Duties which they from Time to Time may have to perform". That is subsection (2) and therefore I wonder who is caught out again. We have the amusing situation where the Act of 1844 was copying the Industrial Development Authority Act, 1952. How absurd can the Parliamentary Secretary get?
Is the Senator denying that the wording is exactly the same as——
I am not talking about that.
That is the only point I am making.
That is not the point that the Parliamentary Secretary first made. He is now feeling somewhat uncomfortable, as evidenced by his position in the chair. He realises the position is not as he smugly thought it was when he first spoke on this section. He has said nothing beyond saying that it is clear that they are civil servants and they are civil servants because they have to be regarded as civil servants. That is not clear.
I move amendment No. 8:
In lines 24 and 25 to delete "or any case arising under this Act".
Section 13 is the section which provides:
A Judge of any Court shall not be prevented or disabled by reason solely of his being a member of the Board from hearing and determining any case relating to a charity or any case arising under this Act, but may hear and determine it as if he were not a member of the Board.
The amendment is designed to provide that a judge may hear a case relating to charity but shall not hear any other kind of case arising from this. This matter was the subject of some lengthy debate on the Committee and Report Stages in the Dáil and I think that amendments were put down to delete the section completely. The Parliamentary Secretary of course would not and did not yield one inch and I firmly anticipate that he will not yield on any amendments put down here. However, that is not to deter us from doing what we conceive to be our duty in the matter of legislation.
First of all, I should mention that we have had references to what happened in Northern Ireland and in Great Britain. I notice that one of the persons appointed on the Newark Commission in Northern Ireland ceased, on his appointment as a judge, to be a member of the Commission investigating the law on charities in Northern Ireland. I do not know whether he felt it undesirable that a judge should administer a law which he had a hand in shaping or in making proposals for its amendment; nor do I know what the position is in Great Britain; but it has always been a principle in the criminal courts, at any rate in this country, that a judge who has already had an interest in or personal knowledge of a particular criminal charge will not investigate that charge if it comes before him.
There are quite a number of cases that could arise under this Bill, where it would be undesirable that a judge having heard some of the evidence and having formed a conclusion on the guilt or otherwise of a particular person should afterwards sit in judgment on that person when he is brought to trial. One has only to look across the page to Section 14, subsection (4), paragraph (c) which says that any person who refuses to attend an inquiry, who suppresses or refuses to give evidence or makes a false statement, shall be liable to a fine not exceeding £25 or, at the discretion of the court, to imprisonment. The Commissioners may find that the funds of a charitable trust have been misappropriated, stolen, say, by the trustees of a charity or by the secretary of a charitable institution. That matter can come to the notice of the Commissioners in their capacity as Commissioners, but it would be quite wrong, the Commissioners having decided that the matter should be referred to the Attorney General, that a Commissioner should try the person concerned upon a criminal charge.
I have not got the same objection to a judge deciding whether a particular bequest is a charity, a matter which might come before the Commission for a ruling or direction, or the application cy-prés of a charitable fund. I do not see the same fundamental objection to a judge trying a matter of that kind as to a judge dealing with a criminal matter because in relation to crime, the golden rule is that not only must justice be done but it must be seen to be done. It is quite wrong that a judge who has taken part in an investigation and perhaps in a recommendation to the Attorney General, following on that investigation, that some person should be charged with fraudulent conversion, should try that person in the criminal court. For that reason, I think it desirable that a judge should not be permitted or encouraged as part of legislative policy to deal with cases of this kind arising under the Bill.
I rise to support the amendment. Representations have been made to me on exactly similar points by a member of the legal profession who deals with many of these cases of trusts held by the Charitable Commissioners. He makes broadly the same case as Senator O'Quigley and I do not want to bore the House by reiterating it. There are plenty of judges in the country who could hear these cases and it is not necessary that a charge should be heard by a judge who happens to be a member of the board. Let no one infer from what I am saying that I do not think it desirable to have judges on the board. I think judges are most desirable, but there is an adequate number in the State and it is undesirable that where judges have been involved in having a case brought to court, they should then sit in judgment on a matter on which they have preconceived ideas. This would not be in the public interest and I would ask the Parliamentary Secretary to consider dropping Section 13 altogether.
First of all, I should like to rebut any suggestion that I am not at all times a reasonable man and open to persuasion. I think on previous occasions on different measures I have given evidence of the fact that I am amenable to any suggestions from this House for the improvement of a measure. As Senator O'Quigley pointed out, this matter was debated at very great length and very earnestly in the Dáil and to some extent I will be repeating here what I have said in the Dáil.
The essential words in Section 13 are these: "by reason solely". They are of vital importance when we come to consider this matter and the real difference, I think, between Senators O'Quigley and Burke and myself is this: I am happy that the traditions of our judiciary—what I referred to as the ordinary etiquette—are sufficient to take care of this matter. There are many reasons why a judge, when a case comes before him, will say to himself: "I am not in a position to try this case." One reason might be because he was a Charity Commissioner, and the case had been dealt with by him when it was before the board. He would therefore, I maintain, very rightly say: "I have previous knowledge of this case; I have handled it as a Charity Commissioner and I will not sit to hear it." Because of these traditions of the judiciary, the Bill provides that a judge will not be debarred solely by reason of his being a member of the Board.
If we make it clear by statute, by the wording of the section, that judges who are Commissioners shall not hear any charity case, we are getting into very difficult country. We would have to provide in all sorts of statutes for the same type of thing. I gave an instance in the Dáil. If a judge were a member of a golf club and the club were engaged in some piece of litigation, we do not write into a statute that he shall not be entitled to hear that case. We know he will not hear it. That is the etiquette and tradition and that is the practice.
I should not like the House for one moment to think that I am not amenable to a reasonable argument on this, but I do think that, considering it fully from every angle and weighing all the arguments put in the Dáil and weighing the same arguments which have to some extent been repeated here, the way in which we propose to deal with the matter in the Bill is the best way. To depart from it would get us into difficulties, not alone in charity cases but in other cases. For that reason, I suggest that the amendment might be withdrawn.
You find in an amount of legislation where semi-state bodies have been established that the Legislature goes out of its way to provide that members of the Legislature shall not sit on any of the bodies which are being created by statute. It seems to me to be a great deal less important to the public weal to provide that a legislator shall not sit on such public bodies than to provide that in this case judges shall not be debarred solely by reason of being Charitable Commissioners from trying criminal cases arising under this Bill coming before them.
The Parliamentary Secretary said that the vital words in this particular section are the words "by reason solely." I must confess that I would still be happy if the Parliamentary Secretary would elucidate in some way how these words actually take the harm out of the section. It is all right to say that "by reason solely" are the vital words. I must say that it has not yet penetrated—and I have thought over it a while—my comprehension how that affects the position.
Because these words clearly reserve the position that there might be other cases such as those envisaged by the Senator where a judge has heard a case as a Commissioner. I think the insertion of the words "by reason solely" makes it absolutely clear that there might be other reasons for which a judge would have to disbar himself.
In those circumstances, there ought not to be any reason for this section to be in the Bill. If you are going to leave it to the etiquette of the judiciary, then the considerations which operate on a judge's mind in those other cases should apply in this kind of case if the judge thought proper. It would be better if the section were not in it at all, relying entirely on the ethics of the judiciary.
May I give a concrete example? A case comes before the Charity Commissioners. It is purely an administrative matter. The judge in question was not present at the meeting at which it came before them. Subsequently, the case comes before him in court. He has no previous dealing with it. The issue which was before the Commissioners was not the judicial issue. The section makes it perfectly clear in that case that the judge's membership of the board will not prevent him hearing that case, but if the words were left out, his membership in itself might be thought to prevent him. That is the value of it. It reserves the position where there is no pre-judgment. The judge then, even though he is a member of the Charity Commissioners, can hear and try that case.
The protection which I will offer to the House and the Senator is this: There are a number of reasons why a judge would feel himself prevented from hearing a case. Naturally, if he sat as a Charity Commissioner and dealt with a case in a judicial way, he would feel disbarred. That is only one of the reasons but why pick on that one reason? That whole situation is taken care of by the traditions and ethics of the judiciary. If they feel themselves not fully capable of exercising their judicial functions because of some previous occurrence, then they will not hear the case. That will apply in this case as well.
Let me get around to where we were earlier and go back to tradition. I would much prefer if the section were left out altogether, if mere membership of the board of the Commissioners of Charitable Donations and Bequests is not a disqualifying factor. Therefore, this section is of no avail, any more than in the other cases where a judge might be a member of a particular club or society or where his membership of such a club-or society would not be a disqualifying factor. There is no law about that.
The Parliamentary Secretary says— and I agree with him—that after that, you fall back upon the tradition of the judiciary that they will not try a case in which they have already had some interest or in which they have been involved in some other capacity. This section does not do anything about that. It merely says that his membership of the board does not disqualify him any more than membership of a club or society disqualifies him from dealing with certain matters relating to the club or society. Here is a case where we ought to recognise that we are dealing with the judiciary who are independent in the exercise of their functions and who have no other reason for existence than administering the law according to the principles of equity and justice. When that is so, I do not think we ought to make any kind of inroad into the protection which the Bill affords to anybody charged under our criminal code. The 1867 Act was an extraordinary document in some ways.
Our conception of the impartiality of judges and our experience of the tradition of the independence they exercise in their judicial office should make this section completely unnecessary. Because it appears to me—and this is my main concern—to make a slight inroad on the code of criminal law at the present time, I would be much happier and would much prefer to see the section taken out completely. Afterwards, no difficulty need arise, because, as the Parliamentary Secretary says, apart from this Bill, there always stand and remain the traditions and ethics of the judiciary in which we have to place and do place our full trust.
I do not object to judges who are members of the Commissioners of Charitable Donations and Bequests dealing with the civil side of things, but I would ask the Parliamentary Secretary to reconsider, in the light of the amendment, whether there is some case to delete the words proposed to be deleted, because of the fact that it appears to make an inroad upon the system of fair play and fair trial which is the hallmark of our code of criminal justice.
I am glad the Senator and I have found a fair amount of common ground, but I still think this is the best way to do it. Bearing in mind what I have said about the traditions and the ethical side, I still think there is technical need for a section to make provision that a judge shall not be prevented or disabled simply by reason of his membership of the Board. Possibly to narrow the argument down, the Senator might consider withdrawing the amendment. He could then consider whether he would not put down, on Report Stage, a motion to delete the section. That seems to be more clearly the exact difference between us, rather than the deletion of these words.
I might find myself in difficulty with regard to procedure, if I were to comply with the suggestion made by the Parliamentary Secretary, unless in some way the Bill was recommitted. I rather think that once the section is agreed to stand part of the Bill on Committee Stage, it would be very difficult to do what the Parliamentary Secretary suggests, unless he is disposed to delete it on Report Stage. In view of what the Parliamentary Secretary has said, I ask leave to withdraw the amendment and we can, at any rate, give everyone an opportunity to reconsider it on Report Stage. Possibly the Parliamentary Secretary might relate his views in the meantime to the views more recently expressed.
I move amendment No. 9:
In page 7, subsection (4) (c), to add a new subparagraph as follows:—
"(iii) no one shall be required by virtue of subparagraph (i) to answer any question or to give any evidence tending to criminate himself;".
Section 14 gives the auditor appointed by the Minister, who may be an outside auditor or a member of a commercial firm outside the Minister's Department altogether, power to require any person connected with charities or the administration of charities to attend at his office at such times, and so on. Subparagraph (i) of subsection (4) provides:—
any person to whom a notice has been given under this paragraph who refuses or wilfully neglects to attend in accordance with the notice or who wilfully alters, suppresses, conceals or destroys any document to which the notice relates, or who, having so attended, refuses to give evidence...
The operative words are "refuses to give evidence." I think there should be added to that the new subparagraph which I propose.
While we might be loath to protect anybody who, say, embezzles charitable funds, and so on, at the same time, a right which we should protect for anybody accused or liable to be accused is that he need not answer any question which might incriminate him. Perhaps that is especially so when we read in the section that the person doing the questioning is an auditor, not necessarily a man with legal qualifications or knowledge of what questions might properly be asked and, shall we say, what properly is evidence. It is a right that we all have at common law. This section tends to take that right away from persons questioned by an auditor in these circumstances. I think the Parliamentary Secretary should accept this amendment. Actually, this House was responsible for the insertion of a similar clause in the Office Premises Act. I have taken the wording of this amendment, roughly, from it.
I support this amendment. As Senator Cole says, it is contained in a Bill introduced by the Minister for Industry and Commerce who very readily accepted an amendment to the effect that a person should not be obliged to answer any question which might tend to incriminate him. This type of amendment has had a rather chequered history in this Chamber. I shall not go into that history now or say anything which might tend to make the Parliamentary Secretary less receptive to Senator Cole's amendment. This escaped me because the draft of the Bill I was working on was that amended in Committee, which is somewhat different from that amended on Report in the Dáil.
This section again makes a certain inroad into the common law safeguards that are provided in our code of criminal law to people who may be charged with criminal offences. I do not think it is the intention of the draftsman of this Bill, nor would it be right, that we should in any way appear to whittle down what has always been regarded as the fundamental right of any person who subsequently may be charged with an offence that he should not be obliged to say anything which would tend to incriminate him, or, if he does not say things which he knows would incriminate him, that he cannot subsequently be fined in court for failing to talk. I would certainly support Senator Cole in this amendment. In accepting this, the Parliamentary Secretary would be following the line which was adopted by the Minister for Industry and Commerce on at least one other Bill where we have had this requirement about people giving information and this safeguard has been incorporated.
I am afraid I cannot accept the amendment, much as I should like to in view of the reasonable case put forward in support of it. I want to make it clear that there is nothing new in this. Senators have referred to another Bill which was amended on its way through the House in this fashion, but I want to draw the attention of the House again to the Industrial Development Authority Act, 1950, which states in subsection (5) of Section 5:
If any person—(a) on being duly summoned as a witness before the Authority makes default in attending, or (b) being in attendance as a witness refuses to take an oath legally required by the Authority to be taken, or to produce any document in his power or control legally required by the Authority to be produced by him, or to answer any question to which the Authority may legally require an answer, he shall be guilty of an offence under this Section and shall be liable on summary conviction thereof to a fine not exceeding £50.
So we see that a more or less identical provision has been included in that Act. The principle that no person shall be compelled to criminate himself is, of course, a matter of ordinary law, and I want to make it clear that we are not providing that a person must criminate himself. We are providing only that, should he refuse to make a statement, he shall be guilty of an offence and liable to a fine not exceeding £20.
Surely the House will see that it is necessary to have a provision like this; otherwise, the whole course of the audit could be stultified, if a person could refuse to answer a question and would not thereby incur any penalty. The work of the auditor would be rendered completely useless. I should also like to point out that it is the practice of Local Government auditors to warn witnesses who give evidence before them, though admittedly they are not statutorily obliged to do so.
Again, I should like to point out that in these cases, as a general rule, it is public and charitable funds which will be involved, and the audit will be the audit of a charity or the audit of public moneys. Generally, charitable funds will be involved. One has a certain sympathy with the principle of the amendment, and one must admit immediately that it is a principle of the ordinary law that a person shall not be compelled to incriminate himself; but I cannot accept the amendment for the very practical reason I have outlined. Furthermore, I want to make it absolutely clear that we are not compelling anybody to incriminate himself but are merely making it an offence if he refuses to answer a question or to produce documents.
Apparently the Parliamentary Secretary's only reason for opposing this amendment is that he has found a similar section in the Industrial Development Authority Act, 1950, without the saving clause, but in a later Act which we can only suppose was debated and looked into more carefully, there is a similar clause to that in my amendment.
What is the later Act?
The Office Premises Act of 1958, Section 28. If the only argument is that this amendment was not followed in 1950, it was thought about and inserted in the Act of 1958. The fact that it is not in one Act does not mean that we should not improve this Act, and put it in. He also argued that the auditor's work would be rendered useless, if a person refused to answer questions in relation to the auditing of charitable accounts. That would be when he had probably been doing something wrong. That is the only time this section comes into force. In an ordinary case, the auditor will get his answers and everything will be straightforward. It will only be in cases where there is some doubt, or something wrong with the fund, that you could compel a person to incriminate himself.
Apparently as the section stands, if a witness before the auditor refuses to answer questions, he commits an offence and can be fined £20. Without saying a word in court, he can be fined £20 on the evidence of the auditor alone. Then if the auditor likes to bring proceedings against him for whatever it may be, misappropriation of funds in some way, he would still have the right in court to refuse to answer questions and that right would be upheld in any court. This section is trying to take away from him that right before the auditor, not before the court, but he could still have been fined £20 without any offence having been proved against him, except that he did not answer the auditor's question. Is that not the position if this section is left as it is?
Senator Cole says that there is no reason why we should not improve this Bill if we can. I agree fully. My simple answer is that this would not be an improvement. I have not got the reference and I do not know what the circumstances were in regard to the provision in the Office Premises Act, but such a provision would make this section completely useless. Here you give a Local Government auditor the task of auditing certain funds and you make no provision whereby the officials or trustees, or the other persons having charge of the funds, must answer the auditor's questions. The auditor might as well not carry out any audit. He will be completely hamstrung. If you bear in mind that, first of all, it is necessary for the proper working of the section and necessary to enable an audit to be carried out properly—and we all want these funds to be properly audited and to make sure that everything is in order—then the section as framed is necessary.
Secondly, there is this point which I want to put to the House. Senator Cole is not right in arguing that we are compelling somebody to criminate himself. We are not. We are merely making it an offence if he refuses to make a statement. That is a different matter altogether. When that matter comes before the courts subsequently the right not to criminate himself would be preserved to any defendant. At the stage of the audit, commonsense would indicate that we must have some provision when questions are put by the auditor. I cannot see that there is any fundamental principle involved in merely making refusal to give evidence an offence and having a fixed penalty attributable to it.
This is a section in which the auditor is being given authority to summon any person before him and to require that person to attend the offices of the board at such time specified in the notice to give evidence on oath and produce books and documents and so on, in relation to the audit. The reality of the matter is that if there has been any misappropriation of funds, that is the circumstance in which a person is likely to fall foul of the criminal law. If there has been any misappropriation of funds, there is little doubt that the books will show it and the evidence which the person summoned by the auditor will have to give will add very little, except in an exculpatory way, to what is already contained in the books. Therefore, if there is going to be a prosecution against the person summoned by the auditor, the prosecution, in the main, would be based on what is contained in the statement of accounts, lodgments and other books. If that is not going to be the situation, then what it means is that we are compelling somebody on oath to give testimony against himself which can be used in evidence in a criminal prosecution. If that is what we are going to do, we should be quite clear that that is what we intend.
The Parliamentary Secretary referred to the Industrial Development Authority Act which seems to be standing him in good stead today. I wish I had the opportunity to look it up during the tea interval. He complains rather plaintively that Senator Cole referred to the Office Premises Act and he said that he did not know what was in it or the circumstances in which the terms of Senator Cole's amendment, contained in that Act, were put into it. I had that complaint about the Parliamentary Secretary today. He quoted three Bills, the Industrial Development Authority Act, the Adoption Act and the Apprenticeship Act which I want to peruse for Report Stage. The plain fact is that this provision was not contained in the Office Premises Act, 1958, and I think it was Senator Sheehy Skeffington who put down an amendment to have it incorporated in the 1958 Act. The Minister for Industry and Commerce, presumably knowing that this section was contained in the 1950 Act, said that it was wrong to make this kind of inroad into the protection afforded to persons who might be charged with a criminal offence and he readily agreed, if my recollection is correct and I am sure it is, to accept the amendment.
Senator Cole has rightly pointed out that what happened in 1950 was revised in 1958 and as far as this House of the Oireachtas is concerned—it has been in existence since 1957—it has adopted the policy, and the Dáil has ratified it, that in cases of this kind, persons will not be obliged under pain of a penalty to give evidence or to make statements that would tend to incriminate them. The Parliamentary Secretary says that the practice of Local Government auditors is to warn people that they are not obliged to answer any questions which they think might tend to incriminate them. That, I understand the Parliamentary Secretary to have said, is the practice, but if that is the practice, then I think we should give it statutory effect in this Bill and not leave it to the whim of different Local Government auditors, depending on the state of their liver when they are dealing with a person.
I think we should put it in the Bill, if that is the practice, and nothing the Parliamentary Secretary has said has shown it to be imperative in the interest of a proper audit to make this further inroad into the protection afforded citizens of this country who may be charged with a criminal offence. Nothing he has said shows it to be warranted. Maybe the Parliamentary Secretary has a great deal more experience in matters relating to the auditing of accounts than I have—I am sure he has and I say that readily —but I would urge on him that we should not, in the interests of making it that bit easier to prefer a criminal charge, break down those safeguards built up over the years for the protection of the liberty of citizens of this State.
The number of times in the lifetime of an auditor that he would come across a case of the misappropriation of charitable funds amongst officers assigned to the direction of charitable bequests would be very few indeed and I think the auditor who came across one case in a lifetime would be rare. I suggest that a right which, as Senator O'Quigley said, the common law has given down through the ages, is a right which we should not take from anybody and I would ask the Parliamentary Secretary to reconsider this.
I think I have shown that we are not taking anybody's rights away. The principle to which the two Senators would like us to adhere is for the purposes of a criminal prosecution, a person is not compelled to say anything which might criminate himself. That principle is maintained. It will be fully protected by the courts. We are not dealing with criminal prosecutions. We are dealing with audits and there is a simple provision in the Bill that if anybody being examined in connection with an audit refuses to answer a question, he will be liable, on conviction, to a fine, but there is a world of difference between this and the fundamental principle of our criminal law.
To speak of this as an inroad in the sense of an innovation is wrong because this kind of thing has been enshrined in local government law since 1941. I mentioned the Industrial Development Act of 1950 as an example of the same sort of thing enshrined in another Act but the principle regarding the audit of local government funds has existed since 1941. This is exactly the same principle as is applied where a person refuses to answer a Local Government auditor. Such a person is liable, on conviction, to a fine. The principle is there already, well established as regards audits, and I would not ask the House to reject these amendments if I did not think the provision absolutely necessary for the proper exercise of his duty by an auditor entrusted with the important task of protecting public and charitable funds. We all want to protect charitable funds and see that the audit is properly carried out and, if we do, surely we must accept the fact that the auditor must be given power to have his questions answered. It does not affect the principle enshrined in the ordinary law which will be still maintained by the courts.
The Parliamentary Secretary's saying that we are not making any change and that this is in the 1941 Local Government Act, leaves Senators nothing to say except, as the Minister for Health recently said: "We were not here to help him in 1941." Legislation enacted in 1941 was less happy, less leisurely, than it is in 1961. The Parliamentary Secretary might consider offsetting one thing against the other. The plain fact of the matter is that we are compelling people to make statements which will tend to incriminate them or else in fact incriminate them, because if you do not make a statement, you are guilty of a statutory offence leaving you open to a fine of £20 and if that is not compulsion, then, like Falstaff, I do not know what compulsion is. We are compelling people under penalty of £20 to make a statement, although it is incriminating.
The Parliamentary Secretary might have regard to subparagraph (c) of subsection (4) of Section 14 which also creates an offence in that a person making under oath a false or misleading statement is liable to a fine not exceeding £25 or a term of imprisonment not exceeding six months. If a person feels that by making a false statement to the auditor, he may avoid a report to the Garda authorities or to the Commissioners and he has to answer, he may commit perjury whereas if he is not obliged to answer, he will say: "I will not answer and avoid committing perjury." Where people are in difficulties the flesh is extremely weak and we are laying a trap for people who may find themselves charged with the offence of misappropriation of the funds of some charity, in that there are alternative offences of perjury and of not answering questions put by the auditor.
I think there is a great deal to be said for the amendment for there is no doubt about it: if a person answers truthfully, he may incriminate himself and if he answers untruthfully, he leaves himself open to the charge of perjury under subparagraph (2) of paragraph (c). There is no reason in the wide earthly world why we should not adopt the procedure of the 1958 Act. The Parliamentary Secretary may say that this procedure is in operation in Local Government audits since 1941, but it is much more pertinent to remember that from time immemorial people were not obliged to make any statement tending to incriminate them. It goes back much longer than 1941—probably to 1641 or to the time of Elizabeth about which we were talking earlier.
The principle of not being compelled to criminate oneself goes back a long way, and the provisions of local government law are there since 1941. That emphasises exactly the point I have been trying to make: the essential difference between these things. What was done in the Local Government Act of 1941 and what we are doing in this Bill does not in any way affect the principle which both Senators are anxious to maintain, a principle of the common law. I am not an expert on evidence, nor would I attempt to give an opinion here, but I would suggest that the two Senators consider this. If a person being examined by the Local Government auditor made a statement and was subsequently criminally prosecuted, would it not be open to him at the stage in the court where he was being prosecuted for a criminal offence, to plead that the statement tended to criminate him and ask that it should not be allowed in evidence? I am not sure whether that is so or not but I put it forward for consideration.
The only person we seem to be concerned to protect is somebody who has committed a criminal offence. Anybody who has not done so has nothing to worry about. Anxious though the two Senators may be to make sure that justice in this regard is carried out to the last letter, how can they suggest this section would work if we did not put in some such provision? I appeal to the good sense of the House to accept what I have said that the provision is necessary. I would not ask the House to accept it, unless I thought it was absolutely necessary for the proper working of the section and the proper carrying out of these very important audits. Not alone do I say it is necessary but we can have it without having to interfere in any way with this age-old principle of the common law in regard to a person's not being compelled to criminate himself.
The Parliamentary Secretary admitted that it would occur very seldom, but where it does occur, immediately the auditor gets that refusal, it puts the auditor on his guard and he has only to start a detailed search. The person can still refuse at the cost of £20. It costs him £20 to refuse but he can still do it. If an auditor encounters a refusal to answer a question, he is on his guard. He knows there is something wrong and he can go into details.
We have heard a lot about the Local Government auditors auditing the accounts of this body. If the staff are civil servants, I wonder why is it we have Local Government auditors auditing the accounts. Is there an historical explanation for it? Why is it not the Comptroller and Auditor-General who is ordinarily found auditing the Central Fund accounts?
It is entirely historical.
I do not know the history but I suspect it is historical.
It is entirely a matter which developed historically. This was the provision in previous Acts. We are merely carrying it forward.
I think a better explanation is that we had no Comptroller and Auditor-General in 1844 or 1877.
I wonder what was Local Government in 1877? I do not know.
It was the Local Government Board.
As early as 1877?
Let me also point out that there was this difference, too. The Comptroller and Auditor-General normally audits public finances, State funds. The funds over which the Charity Commissioners have control are not State funds. They are, in fact, private funds administered by the board. These are, in the main, charity funds owned by various trustees and administered by the board.
He does not audit the voted moneys?
No.
I have already referred to the report of the Commissioners of Charitable Donations and Bequests for the year 1960. It is a very lean document indeed for a body which had under its control a sum amounting to £1.8 million. They are certainly erring on the side of hiding their light under a bushel. They give no indication whatever as to the extent of their activities over a year. At paragraph 8 in the present report, we find this kind of a statement which is not highly informative:
During the year we made 14cy-près orders. In addition we authorised 39 Sales and 17 Leases relating to charity lands.
They do not give any indication as to the size of the amount of money involved or anything else. It does not seem to me that there is anything necessarily secret about these matters. These are public charities for the advancement of religion, the relief of poverty, the advancement of education and other purposes of a public character. If the Commissioners are bound by statute to report, it seems to me to be essential or certainly desirable that the report should run to something more than one and a half pages as are contained in the report for 1960.
I would ask the Parliamentary Secretary whether he would ask the Government to request the Commissioners to print in this report each year the number of attendances of the various members of the Commissioners. As far as the members of this House, the Dáil and county councils are concerned, the public know how often the members attend and questions can be asked and the information furnished.
The Senator will bear in mind that the Seanad does not do that.
The attendance of everybody is published in the Journal of this House and anybody who wants to calculate how many times Senator Micheál Ó hAodha or Senator Ó Maoláin attended, will find that by looking in the Journal because it is a matter of public record. There is nothing secret about the Commissioners of Charitable Donations and Bequests. They are a public body. I suggest that the Parliamentary Secretary should indicate that the Government request the Commissioners of Charitable Donations and Bequests to publish the number of meetings and the attendance at these meetings of the members. That might have indeed a very beneficial effect on attendances.
I do not hold very strong views one way or another on this matter. I do not know whether the Senator has in mind that the Commissioners would publish the number of people who attended at each meeting, or whether they would actually give the number of attendances by each member individually.
The latter. If people have nothing to hide, there is no reason why it should not be published.
I do not think it would be particularly valuable information and indeed it would take time and money to compile. I gather the Senator is not terribly serious in putting this forward, but that it was merely a suggestion on his part. Initially, anyway, I would be against it. I think it would be rather invidious. As we all know, people would have to be absent from time to time through no fault of their own. Would the report go into a full explanation as to why they were absent? Would everyone who was absent be lumped together, whether or not they had a genuine excuse? It is generally undesirable to have all this kind of thing published, particularly as publication would not be of any particular benefit to anyone. As I said, this House itself does not trouble to publish a table of attendances of members.
It is on record.
There is absolutely no doubt whatever that the proceedings in this House are far more important than those of the Commissioners of Charitable Donations and Bequests.
The Parliamentary Secretary is being extremely flattering but it is quite unnecessary to the Constitution that we should exist. Thank God, we are somewhat lively.
I am quite satisfied that if there were publication of the attendances of the individual members at each meeting, or every meeting, its effect would be that if a member of the Commission found himself unable, through just cause—pressure of work, ill-health or any other justifiable cause —to attend a meeting of the board, say, after a period of three years, he was in attendance at only one meeting out of 50, and that fact were presented in a statistical form, he would very quickly retire. That would apply to only a very small minority of members or might apply only to a small minority I speak without any knowledge of the attendance of members of the board, but if that situation did arise, a member in that position would very quickly resign, it being effectively brought home to his notice by publication in the annual report.
That would be one way of ensuring that the Commissioners of Charitable Donations and Bequests did not carry any passengers. It is most desirable in the case of a body whose members are appointed for life that there should be no passengers. People on the board should be on it because of the services they are able and willing to give. Consequently, if the Parliamentary Secretary is unable to give an undertaking that the Government will make a request for these statistics to be published in the report of the board, it will probably be necessary for me to put down an amendment on Report Stage.
I should like to point out to the Senator and to the House that in the Commissioners, we are dealing with particularly valuable and responsible people who are appointed to the board because they have long experience of charitable matters and some special skill in relation to them. They work voluntarily, and they are people for whom we have the highest regard, people of a particular quality and calibre. I do not think such people would need a prod of the type suggested by the Senator to ensure that they will attend to their duties.
They undertake this work; they are responsible people, and good citizens. They undertake this job without reward, and I think this House would be going off on the wrong track if they were to think it necessary to put something in the Bill which could lead to the suggestion that they must be made attend to their duties and that their attendance must be tabulated in the Report laid on the Table of each House of the Oireachtas.
I ask Senator O'Quigley not to press me to give any such undertaking. Let me say that a report in this form has been laid on the Tables of both Houses for many years now and no one has ever complained about its form or content. I do not think we should start doing that at this stage.
I should like to ask the Parliamentary Secretary, in view of the dubious status of this Commission, if a member of Dáil Éireann were to put down a Parliamentary Question to the Minister for Justice, asking if he would state the number of meetings held by the Commissioners of Charitable Donations and Bequests between two particular dates, and the attendances by the members at the meetings individually, would the Minister for Justice be prepared to give that information to the member of Dáil Éireann?
That is a question which the Minister for Justice would have to answer if the question were put to him.
That is a clever answer on the part of the Parliamentary Secretary, but it will not pass muster in this House. We are enacting a piece of legislation, and I want to know would the Minister for Justice give that information if he were asked. That kind of "cleverality" will not work. I want to address the question again to the Parliamentary Secretary: if a member of Dáil Éireann put down a question to the Minister for Justice, asking him how many meetings were held between two particular dates by the Commissioners of Charitable Donations and Bequests, and how many of those meetings every member of the board attended, would the Minister give that information to the member of Dáil Éireann who put down the question? Can the Parliamentary Secretary answer that?
He will not, simply because he cannot. I do not think there is anything in the rules of this House, in good debate, or courtesy on my part, compelling me at this stage of the Bill to answer a hypothetical question as to what the Minister for Justice might or might not do in certain circumstances in Dáil Éireann. It is a ridiculous question to ask and one which I do not feel I should be called upon to answer.
If the Parliamentary Secretary is unable to tell us in regard to this report in relation to the conduct of the Commissioners, whose status was apparently rendered rather dubious by the Parliamentary Secretary himself earlier this evening, it is entirely in order to inquire, and relevant to include in this section what the position is going to be. The Estimates provide money for the Commissioners. Money is voted annually to them. On the view put forward by the Parliamentary Secretary earlier this evening as to the status of the Commissioners, it would seem that he should be in a position to say what the Minister for Justice will or will not do.
I will tell the House this: if I were Minister for Justice and such a question were addressed to me, I would not give the information. It might be that the Standing Orders of Dáil Éireann would compel me to do so, but certainly if it were my personal decision, I would not give the information.
Fair enough. That is all we want to know.
This is an independent board as I understand it, and this section provides that:
The Board shall not pay any sum to a solicitor employed by them as and for costs or expenses to be defrayed out of moneys provided by the Oireachtas unless the amount thereof has been approved by the Minister for Finance...
I want to inquire from the Parliamentary Secretary if the Board is not a body for which he will answer questions, if the Minister for Justice will not——
I did not say that.
The Parliamentary Secretary is not prepared, in relation to a relatively unimportant matter about attendances at meetings——
On a point of order, I want to make it clear that my answer was related exclusively to the specific question of the attendance at meetings of individual members, and that was the only question.
That is clear.
If the Parliamentary Secretary will not answer questions about the individual attendances of members at meetings of the board of the Commissioners of Charitable Donations and Bequests, if he will not accept that responsibility for them, why is it that the Minister for Finance must approve of the costs and expenses to be paid to a solicitor employed by the board, when presumably those costs and expenses will already have been or can be taxed by the Taxing Master of the High Court or the county registrar in the case of circuit court proceedings? Why does the Minister for Finance come into it if the Minister for Justice, on the other hand, will not even undertake the responsibility of answering a question on a relatively unimportant matter?
The House will realise in regard to this matter that the normal position would be that the costs of a solicitor would be payable out of the funds of the particular charity to which the matter related, but this Section applies exclusively to public funds. It refers to sums paid to a solicitor employed by the board who has to have his costs or expenses defrayed out of moneys provided by the Oireachtas. This is simply nothing more or less than the normal provision which applies to any moneys provided by the Oireachtas. In so far as the moneys are voted by the Oireachtas, then the Minister for Finance must approve, but this does not apply to the normal charity funds held by the board. In that case, the sanction of the Minister would not be necessary because they would not be public moneys and the solicitor would be paid out of the charity or trust fund.
I do not understand why this provision is inserted, because if the Minister for Finance or the Minister for Industry and Commerce on a vote provides money to Córas Tráchtála or to Bord Fáilte Éireann or to bodies of that kind, there is a grant provided to those bodies, and they are moneys provided by the Oireachtas. I am not aware of any provision in those cases which requires Bord Fáilte or bodies of that kind to approach the Minister for Finance for his sanction to pay costs and expenses incurred by a solicitor employed by those bodies. I wonder can the Parliamentary Secretary indicate why in one case it is necessary and in the other, it is not. In relation to other matters, if the board should have to pay, not costs and expenses to a solicitor, but an architect or an engineer or some such person to do some job on their behalf quite unconnected with court proceedings, would they have to apply to the Minister for Finance for the payment of such expenses?
Let me explain. This is a fairly simple application. It arises in this way. Normally, if the Charity Commissioners in their administration of a particular fund have to avail of the services of a solicitor, they employ a solicitor either for consultation on a particular matter or for the prosecution of some business on their behalf, and they pay him out of the funds of the charity. It might happen that the funds of the charity would not be sufficient to defray the costs. For instance, it could be that funds belonging to a charity would be in the hands of an executor and the charity itself would not have the funds and the Commissioners would want to proceed against the executor for those charitable funds and would not have in their own administration the funds necessary to proceed. They would come to the Minister for Finance and say: "We want to employ a solicitor to take action against this particular executor" and the Minister for Finance would approve of that expenditure of those moneys out of public funds. Section 16 is nothing more or less than a reasonable provision that in a case like that, where the Charity Commissioners want to pay a solicitor's costs out of public funds, they will get the sanction of the Minister for Finance before doing so. What could be more reasonable or logical or straightforward than that?
The Parliamentary Secretary has given no explanation as to why it is not necessary in the case of, say, Bord Fáilte which gets money from public funds. If Bord Fáilte, which gets an annual grant out of public funds, has to prosecute somebody for using the name "hotel", is it not entitled to do so, and can it not employ a solicitor and incur expenses without having to get the approval of the Minister for Finance beforehand?
Of course not. The Senator will realise that there is a complete difference between grants and voted moneys in that regard. Where grants like that are made to a board of that nature, the ordinary accounting which is done by the Comptroller and Auditor-General with regard to voted moneys does not apply at all. I do not see any connection or parallel between this board and Bord Fáilte. This is a provision to deal with a certain limited set of facts and that is all there is to it.
This section says that the board "may in their discretion have regard to..." and so on. When it says "in their discretion," does that leave them—do not let anyone say that I want to say anything against them— a very wide discretion with regard to what they might do regarding publication in Iris Oifigiúil or any of the papers in which they are required to publish a notice of charitable donations, to avoid the implications of that section?
No, it does not. The section simply stipulates that regard must be had to (a) the amount or (b) the special circumstances. The intent of the section is that where the charity funds are small and the cost of advertising would be disproportionate to the-amount of the charity, the Commissioners have authority to exempt.
I know that that is the intention but the section does not appear to make it clear.
Yes, it does.
Very good.
This is a reconstruction of Section 2 of the Charitable Donations and Bequests Act of 1867 and of Section 5 of the 1871 Act. There is a provision where the trustees of the charity apply to the board for their advice. Included in the Acts of 1867 and 1871 is the word "directions"— the board will give directions where individual trustees apply. That is not included in this section. Under the 1867 Act—Section 2—and under the 1871 Act—Section 5—the trustees could apply not alone for the opinion and advice but also for the directions of the Commissioners. Acting under those directions, the trustees would be exempt from certain penalties. The point I am making is that the word "directions," which seems to be stronger than opinion or advice, has been omitted from Section 21 of this Bill. I wonder if the Parliamentary Secretary can indicate, if that was done advisedly, why the more explicit word has been omitted?
I think it is purely a matter of drafting. I do not think the word "directions" would add anything to the section.
Being such devotees of tradition in relation to this Bill so far, I am wondering whether or not when the Commissioners sit down to administer this Act, they might find that where hitherto they could give directions, they can now only give either an opinion or advice. I do not know if the sections in the earlier Acts to which I referred have been amended to exclude the word "directions", but it might well be that the Commissioners would find themselves in a less secure position and the trustees might feel less secure in accepting an opinion or advice than they did hitherto when they could get an explicit direction from the Commissioners.
The Senator will, I am sure, agree that the drafting of the earlier Acts is probably defective and our draft is an improvement. While we respect and admire tradition, we do not necessarily adopt something bad just because it is traditional. Section 2 says:
The management or administration of any charity may apply to the Commissioners for their opinion, advice or direction respecting such charity, or the management or administration thereof, or the estate, funds, property or income thereof, or the application thereof, or any question or dispute relating to the same respectively and, if they so think fit, may upon such application give such opinion or advice as they may think expedient.
The word "direction" is left out of the second part of the 1867 Act section to which the Senator referred. As I say, ours is probably a better piece of drafting.
I wonder if that is so in relation to Section 7 of the 1871 Act?
I am merely pointing out that, in the 1867 Act section the word "direction" was omitted from the second part. I think the Senator will agree it does not really add anything and I think we are quite right in dropping it altogether.
I am aware there is a later provision whereunder the trustees are indemnified against loss, or anything else, in following the advice or opinion of the Commissioners. I am just wondering whether the trustees would not feel happier if they got a specific direction to do something rather than an opinion or advice, leaving them free either to accept or reject. If they got a direction, they would not be exposed to any action later by somebody else. They would be indemnified by the other provision in the Bill.
I do not think there is any danger of that. If the Senator reads the section as a whole, he will find the whole matter fully dealt with. The trustees are fully protected. Our draft is in accordance with practice. The Commissioners do not give directions; they give opinions or advice. Our draft is strictly in accordance with——
Tradition.
——actual practice.
That is tradition.
Tradition, yes.
Tradition and practice are welded in this.
There is no doubt that the word "direction" is stronger than either "opinion" or "advice." The position appears to be that the Commissioners want to be relieved of any obligation to give directions. They are not in the habit of giving directions and so opinion or advice is preferable. Presumably, the person to whom the opinion or advice is given is not obliged to accept it, but, if he does accept it, he is indemnified.
That is correct.
It is a different thing.
I want to raise a purely drafting matter. In subsection (2), it is provided:
If it appears to the trustees of a charity that any claim by any person against the charity or them may, with advantage to the charity, or should, in the special circumstances of the case, be compromised, the trustees or that person, with the consent of the trustees, may submit to the Board a statement and proposal for a compromise.
There the trustees are faced with a situation in which some compromise may be effected with advantage to the charity. They submit a proposal to the board as to how the compromise might be effected. There is then a curious shift. In subsection (3), it is provided:
Where the Board, after such inquiry as they think necessary, are of opinion that the proposal, with or without modification, is fit and proper and for the benefit of the charity, the Board may make such order in relation to the compromise as they think fit.
I am not a draftsman and frankly I do not understand how in one subsection the trustees submit something which they say is a compromise to the "advantage" of the charity and the Commissioners carefully consider the proposal and come to the conclusion—one would imagine out of sheer cussedness—that it is for the "benefit" of the charity and they then authorise the trustees to make the compromise. Is there any difference between something that is of advantage to the charity and something that is of benefit. If there is not, we should keep to the one word and not create confusion.
At first glance, there seems to be something in what the Senator says. I shall certainly have a look at it to see whether it would not be more desirable to make the change. I can see no reason why there should be a different wording.
The same peculiar juxtaposition occurs in subsections (1) and (4). The same shift occurs in Section 34. The word "advantageous" is used at line 36 and "for the benefit of the charity" at line 41. You will find the same phrase in Section 36—that it is "advantageous" to the charity. It would avoid any confusion if we kept to the same set of words.
This section relates to the recovery of charitable gifts by the board. Subsection (3) states:
The Board may deduct from any charitable gift recovered by them under this section all costs, charges and expenses incurred by them in such recovery.
Supposing the sum of money recovered by the board as a result of successful activity on their part is a legacy or a gift of £3,000 and costs and expenses amount to a fairly moderate sum like £100, will the £100 costs and expenses be deducted from the £3,000 or will the Commissioners wait until it is paid out of income? It would be much preferable if the Commissioners could hold and pay from income.
That is an excellent suggestion. If they could do so, it would be far better to wait and leave the capital intact to earn more income, but it might not be always possible to do that. It would be a matter of detailed administration at the board's discretion. I fully agree that if they could possibly leave the capital intact and pay out of income, it would be much more desirable.
Could the Parliamentary Secretary dip into the well of tradition and indicate to us what has been the practice of the Commissioners in this kind of case? If the practice is one thing, all may be well; but if the practice is another thing, we might have to look into it.
I must say I have not any records at hand. However, I shall make inquiries. I should be inclined to think it would be very difficult in the majority of cases to wait and pay out of income. In most cases, the exigencies of the situation would compel them to pay the costs of recovery out of the capital. If the Senator thinks it would be valuable, I shall certainly inquire for him as to what they have been doing in the past in this regard.
This is a very interesting point raised by Senator O'Quigley. The Parliamentary Secretary is right to look at the section. There are cases where it could cause great hardship if one had to pay the costs out of income. In the case of minors and so on, their education might be held up while awaiting the proceeds of the investment. In other cases, there might not be the same urgency. The fact that some of the security would not have to be sold to pay the costs of the necessary litigation to bring the money into the control of the Commissioners might also be of vital benefit to the fund. It might be well if the Parliamentary Secretary would tell us what his view is. Undoubtedly, the Commissioners have very wide experience of this matter, much more than we can have here.
Surely we could assume the Commissioners would act in the best interests of each individual? There could not be any set rule about this.
It might be tied up.
If the costs were comparatively small and the officers of the board knew that, in a month's time, they were getting in a dividend sufficient to pay the costs, then they would, in all probability, stall off paying the costs until such time as the dividend arrived and enabled them to pay. Alternatively, if the costs were particularly large in relation to the capital fund, then there would be no question of their being able to do that. They would just have to pay them out when they fell due. I am quite certain the position is that the Commissioners act from time to time in relation to any particular fund as they think is in the best interest of the fund. If they can get any little advantage for the fund, we can rest assured they will get it.
This section enables the board to sue any person bound to pay any sum which is a charitable gift and to recover it as a simple contract debt in any court of competent jurisdiction, and adds "without obtaining the consent of the Attorney General". I wonder why it is necessary to put that in at all? In the other cases I have mentioned, I think the board have to certify to the Attorney General and the Attorney General moves on the initiative of the board.
This section states:
Whenever any sum is payable to or for any charitable purposes, the Board or the trustees of the charity, with the consent of the Board, may sue for and recover it, from the person for the time being liable therefor or whose duty it is to pay it, as a simple contract debt in any Court of competent jurisdiction without obtaining the consent of the Attorney General.
These circumstances, the Senator will agree, are different from those in Section 23. It is considered that the safeguard of the fiat of the Attorney General, whose particular bailiwick charities are, is not necessary in the circumstances envisaged in Section 24. I do not think it is any more complicated than that.
Why is it necessary at all, if we have the Commissioners of Charitable Donations and Bequests to administer charities, to get the fiat of the Attorney General? I do not understand why, once there is a body of highly competent people with vast experience of this matter, it is necessary to get the fiat of the Attorney General.
In all matters of charities, the Attorney General is parens patriae. Normally, the Commissioners would ask the Attorney General to sue on their behalf.
It seems to me to be an antiquated procedure that could well be dispensed with.
This section provides for the alteration of schemes under the Educational Endowments Act. Paragraph (c) of subsection (2) provides that any alterations made "shall be deemed not to be contrary to anything contained in the Act." It is provided in subsection (4) that "alterations made in the scheme before the commencement of this Act in purported exercise of the powers conferred by the enabling clause shall, if made at the request of the person or persons upon whose application the Board are under the enabling clause empowered to make alterations, be deemed to have been duly made."
Perhaps I am not right in my interpretation of it but it appears to me to be a kind of retrospective section for changes in certain schemes covered by this section which were not authorised but appeared to be authorised by an enabling clause contained in the scheme. I wonder if I am right in that and I wonder were there many cases of that?
The Senator is right in thinking that and I understand there were about six cases altogether.
The only point I want to make is that—and I am sorry Senator Hayes, Senator Ó Donnabháin and Senator Ryan are not here—here we have a board consisting of judges, eminent counsel and other such people, and we find that in regard to certain schemes alterations were made —I take it, by the Board of Charitable Donations and Bequests—but apparently it was discovered that they were not authorised. I think that is the position. The only point I want to make is that recently we had a University Bill in which some people misinterpreted a particular charter and did things in a particular way. I pointed out on that occasion that this was constantly happening in one class or another of State agency or Government Department and that people skilled in law and in the interpretation of charters and so on, did make mistakes from time to time. I want to draw the attention of the House to this because this is the kind of thing that is slipping through unnoticed and there is no hubbub or lengthy debate in Dáil Éireann about it.
I want to make it clear that I have no knowledge of the other debate to which the Senator refers but I am quite clear about what is involved here. This is only to remove doubts and the Senator will remember that on the Second Stage I said that a doubt existed. I am not in a position to tell the House that there was anything more than that. We are merely removing any doubt there might have been and making it clear that these schemes—very desirable schemes, as everybody will realise— are valid in case there was any doubt about their validity. We are doing nothing more than that.
There never has been a case where people have been conclusively proved to be wrong that the Legislature has not come in and passed an Act for the removal of this doubt. That is the case in this section.
It seems that Senator O'Quigley is not quite consistent because he or his colleagues told us that the indemnifying sections of the Bill he referred to were not necessary but he admits that this is necessary. I do not think the parallel is very neatly drawn. I can think of an Act indemnifying a Fine Gael Presidential candidate for certain actions which he had done in good faith and the Fine Gael Party held (a) that the indemnifying Act was not necessary and (b) that they would vote for it. I do not think Senator O'Quigley was wise to make this case.
I am merely saying that we all make mistakes.
This is an interesting section because it gives power to the Commissioners to invest in debentures or preference and ordinary stocks and shares in industrial or commercial companies that have been quoted on the Dublin or Cork Stock Exchanges. I understand also that they may invest in a limited number of British stocks and shares having an Irish register. I also understand that it is the intention to allow trustees to invest in similiar types of stocks and shares with the consent of the Commissioners. It seems to be desirable to extend the powers of the Commissioners and trustees to invest but there is a danger that they may not invest as prudently as they have in the past and that perhaps some energetic or misguided member of the board may influence the board or the Commissioners to invest in stocks and shares in which they would be wiser not to invest.
The Trustees Act was brought in in the past, after much consideration, to protect public investment and particularly charitable funds and we should examine these things and get an assurance from the Parliamentary Secretary that a proper procedure has been drawn up with regard to investments and that technical advice from brokers and others will be available to the Commissioners before they proceed with these investments. This procedure should be laid down and should be explained to this House; otherwise, it may cause certain doubts and apprehension among both the trustees and persons whose moneys are entrusted to the care of the Commissioners of Charitable Donations and Bequests.
I think we need not have any fears about the operation of this section. Subsection (3) (c) stipulates that "a fund held upon any charitable trust shall not by virtue of paragraph (a) be invested in any manner expressly forbidden by the terms of the trust", so that there is that protection with regard to trusts that have a written trust instrument or any trust that has specific terms. There is no doubt that the Commissioners and officers of the board would have most careful and most expert advice available to them and that they would undoubtedly avail themselves of it before authorising any form of investments. Their record to date does everything to assure us that that would be so.
There are very few people today who invest funds either off their own bat, from their own funds or trust funds, or funds of any sort, without advice. It would be absolutely foolish if we did not procure the expert advice which is so readily available before we make any investment. I think that is general practice because all this business of investment has been brought to such a fine art that anybody who invested funds without availing himself of proper advice would be foolish in the extreme. I am quite certain that I can assure the House that the Commissioners would be extremely careful in that regard to secure all the necessary guidance, advice and information to enable them properly to look after funds in their care.
I am glad of the Parliamentary Secretary's assurance but what I should like to have expressed by the Parliamentary Secretary is that the Commissioners could, we will say, invest in ordinary and preference shares, only after receiving advice from, say, two or three stockbrokers, because if one stockbroker were all that was required, maybe a member of the Commission, if he had a pet hobbyhorse, could get the advice from one person who would be prepared to advise one share. It would be a safeguard and while I have little apprehension myself, I think it well that matters of this sort should be ventilated in public, so that any apprehensions or misgivings which solicitors and trustees or others in charge of private funds left for charitable purposes might have will be cleared away by seeing the proper procedures are adopted.
I should like to reiterate that I would not like to place too many restrictions on the day to day administration of the board's affairs. Senator Burke will realise that the officers of the board are by now quite skilled in all matters relating to investments. They have had experience of handling funds over the years. A tradition has been built up—not so much a tradition as a technique and a knowledge—and they have that reservoir of knowledge at their disposal. They might feel that in particular cases it would be desirable to add the advice of an expert to their own knowledge. I should not think that in every case it would be necessary to get the advice of two or three outside experts. In some cases, it might be necessary, while, in others, one would suffice, and indeed in other cases the skill and judgment of the officials of the board themselves might be sufficient to ensure that the position was adequately safeguarded.
I do not think it is any harm, as Senator Burke says, that we should have it mentioned here at this point so that people will know charity funds are in good hands and that every care will be taken to see that they are properly invested and looked after. That is the raison d'être of the Board.
May I say there is a very narrow limit on the amount of Irish investment? Maybe at a later stage, there will be a wider field for Irish investment, when we hope that companies like the Irish Sugar Company and many of the State-sponsored companies will have a public issue, which will allow the Commissioners a very much wider field and a much greater opportunity for investment than they have at the moment. Undoubtedly, these things will be borne in mind now.
I should like to ask the Parliamentary Secretary if this section makes it less difficult and expensive to appoint trustees, because, if it does, it is an improvement on existing legislation. I came across a case of some money that was invested with the Charitable Commissioners and became a problem of the trustees in that maybe every two or three years they had to appoint a trustee and a new trust deed had to be brought out on each occasion. That meant that there was a considerable amount of expense involved and naturally there were less moneys available for the charitable purpose for which the trust was originally established.
Anything that will simplify the procedure and reduce the costs arising out of a change of trustees will be very beneficial. For example, if moneys are left for charitable educational purposes, let us say, to the Superior of an Order of priests or nuns, if they are left to the Superior in a named town for that convent or for that college, each time the Superior is changed, it may be found necessary to alter the name and to have a new trustee. The expense of that has to be borne out of the trust. If the Parliamentary Secretary has done anything to simplify the procedure, it will mean that less costs will be borne by this type of trust and more money will be available for the charitable purpose originally intended.
Yes, indeed; Section 43 is particularly valuable in that precise regard. We are making it possible now for trustees to be appointed in certain circumstances, without the expense of going to court. Indeed, the whole idea of the section is to make it easier and less expensive, with safeguards, of course. And I directed the attention of the Seanad to the provision by which a body corporate can take over from trustees. I think that is particularly valuable and desirable and indeed many of those concerned with the administration of charities were anxious that we should make that provision and we were glad to meet them by doing so.
The Parliamentary Secretary means that a bank or somebody could act as trustees for them— yes. I want to say at this stage that I think this is a most desirable provision, as is also the additional provision that a body corporate can administer on behalf of trustees or the nominees of the trustees.
Previously the position was that if there were two trustees, there was difficulty in a single trustee like a body corporate taking over. That is removed now.
Or even more than two, I presume.
Yes.
The provision is that the Commissioners can, on the application of the trustee or trustees, appoint new trustees, or, if there are no trustees, appoint trustees on the application of any person. I wonder what the position will be where the board are appointing trustees in substitution for trustees already in existence? Will the board notify the trustees they wish to displace and ask them to resign from their office as trustees or will they simply appoint new trustees and thereupon let the effect of this Bill come into operation? It seems to me there might be unnecessary hurt to people's feelings if there were trustees already in existence for whom the board desired to substitute new trustees. Will they give the existing trustees some prior notice of their intention?
The board would not displace existing trustees. If the Senator reads subsection (4), he will see that there is provision with regard to notice being given, and so on. There is no question of the board displacing existing trustees. That is neither envisaged nor intended.
With respect, I think the Parliamentary Secretary may be in error. Under subparagraph (i) of paragraph (c) the board may make an order appointing a new trustee, or new trustees, in substitution for or in addition to any existing trustee or trustees. I take that to mean that, if trustees are known to be in existence but are, perhaps, abroad, the board are authorised under this section to appoint new trustees for the trustees already in existence. I think the Parliamentary Secretary will agree that the board can replace existing trustees for reasons which seem to the board to be good.
What I am anxious to provide is that, rather than having a public notice as provided for in subsection (4) of the board's intention to substitute new trustees for the trustees already in existence, the board would notify the existing trustees that, if they did not resign from office, they would appoint new trustees in substitution, and proceed to do that.
May I direct the Senator's attention to subsection (4) again, which states:
in such manner as the Board consider most effectual for ensuring publicity for the proposal or order, as the case may be, and for bringing it to the attention of persons interested.
Does not that meet the point?
Is that supposed to be the interpretation? This is a new section which has not got the sanctity of tradition. We have no guide as to the interpretation. I do not say that in any spirit of levity. Subsection (4) relates to the public notice which will be given by the board. They will publish a notice designed to bring it "to the attention of persons interested". It may be beneficiaries and not necessarily trustees who are sought to be displaced. What I want to ensure is that, if there are trustees who have grown old and will not retire or administer the trust properly—that kind of thing happens from time to time—or will not sign receipts, or do all the various things trustees have to do, rather than making the fact public that the board intend making an order substituting new trustees for the existing trustees, there should be an obligation on the board—and if the Parliamentary Secretary gives an undertaking that they will accept that obligation I shall be satisfied—to request the persons concerned to resign before they are displaced by a trustee appointed under an order made by the Board under subsection (1) of this section.
I cannot give any such undertaking. I do not visualise that the Board will ever remove a trustee who is willing to act. This power of substitution would operate only where it was found that a trustee for some good reason could not officiate. Apart from that, surely the phrase "person interested" covers everyone and not just the beneficiaries of the trust. It covers the outgoing trustee or anyone who has an interest in the trust. I imagine that phrase would certainly cover the trustees.
I am afraid the Parliamentary Secretary and I are at crosspurposes. I entirely agree it covers the outgoing or existing trustees. The point I object to is the fact that they will be displaced will be publicly advertised without apparently giving them an opportunity of tendering their resignations. Subsection (4) certainly is designed to give the maximum publicity to the fact that the Board are going to substitute new trustees for existing trustees.
Before adopting that in relation to existing trustees who are old or a bit odd—that is the only reason for which there should be a substitution—I think it would be proper that the Commissioners should be under an obligation —either by statute or by an undertaking to be given to the Parliamentary Secretary if he wishes to consult them on the matter, indicating to him and conveyed by him to the House, that they will give an undertaking—to request them to resign first. I think that would be more desirable than unnecessarily offending the susceptibilities of people who may have in their time well served a particular charitable trust.
I am afraid the Senator has got the wrong end of the stick. It is not intended, and I do not think the section envisages in any way that an existing serving trustee would be displaced. Subsection (1) (c) (i) really relates to the case where a trustee is to be appointed in the place of a trustee who cannot be found. That is the way I read the section. The trustee would be appointed by the board either in addition to or in substitution for a trustee who could not be found. It is fairly clear that that is what the section means, but even if it does not, I think it certainly would not be the practice of the board in any circumstances actually to displace a trustee acting as a trustee.
A number of other points arise on this section. I think the Parliamentary Secretary misconceives the position. If he looks at subsection (1), he will see that on the application of the trustee or trustees of the charity, the Commissioners may make an order appointing a new trustee or trustees, and if there are not trustees of the charity or if they cannot be found, on the application of any person appearing to the board to have an interest, or in any case of their own motion. It might well be that the trustees were well known and were to be found and that the active trustees would not want to make any request to the board to appoint new trustees, but it might become quite apparent to the Commissioners that a particular trust was not being satisfactorily operated. They might get complaints from the beneficiaries of the trust that they were delayed payments and the delay would be traced back to the fact that the trustees would not sign certain documents. That might be a situation which would exist over a long period.
One day or another, somebody would propose at a meeting of the Commissioners that they ought to appoint a new trustee or trustees in substitution for the inactive trustees of the charity. That is the case covered by subparagraph (c) where the Commissioners, of their own motion, may make an order under the seal of the board appointing a new trustee or trustees for any existing trustee or trustees. It is quite clear that there can be existing trustees and the board, of their own volition, can make an order substituting new trustees and then the provisions of subsection (4) come into operation. The Parliamentary Secretary ought to make an inquiry from the present Commissioners as to what their attitude will be on this matter, if they will request the resignation of a person and tell him what the consequences will be if he does not resign. That would avoid a lot of hurt and perhaps unnecessary ill-feeling on the part of somebody who necessarily had to be displaced by order of the Commissioners.
I still think that if one reads subparagraph (i) of paragraph (c) of subsection (1) as a whole and reads it having regard to the provisions of the preceding paragraphs (a) and (b) he will agree with me that it does not envisage the type of situation the Senator has in mind where a trustee was acting even though he might not be satisfactory. If there was any question of misapplication of funds, that would be completely different, but just because they did not like his method of operating, I do not think there is any power in this section to remove him. What is envisaged in paragraph (c) when it speaks of "of their own motion" is that it merely means where existing trustees do not do it or there would not be a person appearing to have an interest to ask them to do it. That is all that is envisaged in paragraph (c).
However, having said all that, I think it is not really what Senator O'Quigley is concerned about, which is just that a certain amount of tact and discretion would be used if it ever did come to the point of putting those advertisements into the paper. I am absolutely certain that such tact and discretion would be used and indeed is used all the time by the Commissioners. I have personal knowledge of one case in which precisely this situation was faced up to, where the trustees were not doing their job and the Commissioners had the task of persuading them to do it, and the trustees involved were a very important institution. The utmost tact and discretion were used by the Commissioners and eventually a satisfactory solution was come to. The House can be assured that the Commissioners will continue to act in that fashion, and if there was any question of procuring a resignation rather than drumming somebody out with bell, book and candle, an attempt to procure a resignation would be made.
Another point on subsection (5)—the subsection says that where the Commissioners make an order appointing new trustees, then there is provision for resort to the High Court. The Minister is to be congratulated upon introducing resort to the High Court. I spoke about this recently on the Poisons Bill where I said that I thought that on an order being made by the Minister for Health, resort should be had to the High Court. The Minister for Health of course raised his hands in holy horror at the idea of people having resort to the High Court against a decision of the Minister. I am glad the Parliamentary Secretary in this kind of case provides people with the opportunity of appealing against a decision of an eminent body of people consisting even of High Court judges where the appeal is from their decision to the High Court. I think that is a well merited tribute to the High Court and I am glad to be able to be in a position to pay it.
On subsection (5), I want to inquire of the Parliamentary Secretary why the opening sentence of paragraph (a) of the subsection is worded in this way:
Any person appearing to the High Court to have an interest may, within 21 days after the date of the making of an order under this section appeal to the High Court...
I do not understand what is meant by the words "any person appearing to the High Court to have an interest may appeal," because if an order is made against me as a trustee and I go to the High Court to appeal against the order of the Commissioners displacing me as a trustee, how is the High Court to ascertain, when I am lodging my appeal from that decision, whether I am a person who has an interest? I would have thought that the proper way of wording this would be that "any person claiming to have an interest" may appeal to the High Court. I do not understand at all what is meant by the words "appearing to the High Court to have an interest" because it will not be until such time as they have in fact heard the appeal that the High Court will have seisin of the particular case and inquire into it.
It is purely a question of wording, but it seems to me to mean simply that a person will think that he has an interest and will go before the High Court, and at that point if it appears to the High Court that he has an interest, the court will hear the appeal, and if he does not appear to the High Court to have an interest, it will not. The thing, of course, is to prevent anybody who has not an interest appealing to the High Court. No matter what happens or what way you word it, the High Court will not be able to know whether any person appears to have an interest until he actually comes before the court, and that is what is meant by and what is in the subsection. When you come before the High Court, you will either appear to have an interest or you will not. If you appear to have an interest, you can go ahead and if you do not, you are out.
The Parliamentary Secretary and myself are almost at one on this subsection as to what is intended, but we do not agree at all as to the way in which we should express what is intended. The way the section should read is that if a person claims to have an interest, he may within 21 days after the date of the making of an order under the section appeal to the High Court against the making of the order, and then go on "if it appears to the High Court that such person has an interest, the High Court may consider the appeal", and so on. There is no meaning at all in saying that any person appearing to the court to have an interest may appeal, making it rather a prerequisite of the appeal that he should go into the High Court and establish the fact that he has an interest and is entitled to lodge an appeal within 21 days.
This is dialectics.
It is High Court procedure.
I am quite certain the section is all right. Let me mollify the Senator to some extent by saying that if I were doing it again, I might do it differently. The position is that no appeal will lie, unless it appears to the High Court that the person has an interest. At the threshold of the High Court, the interest must appear. That is what is stated. It is purely a matter of wording. I will go so far as to say that it might be put more plainly, but, as it is, it covers what we intend it to cover.
The Parliamentary Secretary will undertake to look at it?
Certainly.
And put down an amendment?
He will look at it.
I have been having second thoughts about the provisions of Section 45 and I may be coming to the House on Report Stage with certain proposals by way of amendment. That amendment will probably involve the deletion of Section 45 and the inclusion in Section 46 of a more comprehensive provision aimed at achieving everything Section 45 does at the moment, but it will do it in a better way and, indeed, do something more. I have not finally decided on the exact form but I put the House on notice that I will be coming to the House with this proposal.
I am sure we would all like to facilitate the Parliamentary Secretary in every way. I rejoice at the notion that he may be recommitting the Bill.
I do not think that was implied in what the Parliamentary Secretary said.
The purpose of this amendment is to make it absolutely clear that the board may set up a common investment scheme in relation to funds the board holds. It was represented to me that, as the section stood, it did not make it absolutely clear that the board had this authority. We propose to spell out exactly that the board may make these common investment schemes in relation to the different funds they hold.
I am wondering somewhat about the phraseology in subparagraph (a) of subsection (1):
(a) where the original purposes, in whole or in part—
(ii) cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift;
I am wondering whether the phrase "spirit of the gift" is a good phrase and whether a better phrase might not be "the intentions of the donor". The latter is something we all understand. It is commonly used in considering wills, deeds and gifts. Is there any particular reason for using this unusual phrase?
The whole point of the cy-près scheme is that the intentions of the donor cannot be carried out. They are either impracticable or impossible. That is why we deliberately refrained from using the phrase “the intentions of the donor”. It is the spirit of the gift which is important.
Could not "the intentions of the donor" be qualified by "cannot be carried out"?
By way of illustration, suppose a donor has the intention of having a church built in the parish of X and leaves money for that purpose. When the time comes to administer that gift, there is a church in X. The spirit of the gift is given effect to by means of a scheme whereby the money is put in a fund for the repair and upkeep of the existing church. There one follows out the spirit of the gift, though one cannot implement the specific intention of the donor.
That fortifies my view. The Parliamentary Secretary has indicated that the cy-près power will be exercised in cases where the intentions of the donor cannot be carried out. Subsection (1) sets out:
(1) Subject to subsection (2), the circumstances in which the original purposes of a charitable gift may be altered to allow the property given or part of it to be applied cy-près shall be as follows:—
(a) where the original purposes, in whole or in part—
(i) have been as far as may be fulfilled; or
(ii) cannot be carried out, or cannot be carried out according to the directions given and to the spirit of the gift;
I am entirely at one with the Parliamentary Secretary in the illustration he has given. There the intentions of the donor cannot be carried out or effect has been given to them in another way. It is a different story when one applies the gift cy-près. There one recognises that one cannot carry out the intentions of the donor in the parish of X. What one does then is to find out what the spirit of the particular gift was; it is to build a church. One might build that in the parish of Y, or devote the gift to some analogous purpose.
Are not the intentions of the donor clearly covered by the directions given?
One difficulty immediately presents itself to my mind. I can imagine circumstances in which a donor will leave provision for a church, as the Parliamentary Secretary suggests, in the parish of X, leaving the residue of his estate to a relative. The intentions of the donor in making that will might be that if the church was built in the parish of X, the residue would fall to the relative and be increased by the amount that would not have to be spent on the church in the parish of X. There is that difficulty. A donor might want something done. He might desire that this charitable bequest might be carried out, but he might be "beaten to it" by another donor. His intention in that instance might be that the residue of his estate falling to his relatives be enlarged. Will it stand up in court?
Surely the words "the intentions of the donor" are more easily construed from the legal point of view than the phrase "the spirit of the gift." I wonder if those words have ever occurred before in this kind of statute? They are governed entirely by "cannot be carried out." Surely "the intentions of the donor" would be an easier thing for a judge, the Commissioners or anybody else to construe?
First, I think the intention of the donor in that specific context is clearly governed by "the directions given."
Yes.
"The spirit of the gift" is in fact a phrase well known to the law. It has been used many times. I think it expresses exactly what we mean to get over here. A cy-près scheme will not always fall to be made. We are trying to outline here exactly the circumstances in which it will be open to have a cy-près scheme made. You have to take two things into account: You have to take into account the original intention of the donor—the directions given—and also the general spirit of the gift.
I see. It is in addition to "the intentions of the donor."
Speaking as a layman, with very little interest in the wording of legal Bills of this kind, I feel a great injustice could be done to individuals if the person who made the will gave a bequest for a specified purpose which was carried out before his death. Perhaps he did not change his will or at that stage was senile or incapable of changing his will. The position arises that there would be no residue at all or a very large residue. We are going to create the position that anybody who would be the recipient of a charitable bequest, notably the church, can come along and make a case and we can vary the gift. They can say: "This man's intention was to provide a church in the parish of X. The parish of X has got a church and it is paid for, but we should go further and provide a church in the parish of Y." That would dissipate the residue of the estate and it would be quite wrong.
There is no question of this being the residue of an estate. This is clearly a case where a donor has a general charitable intention. He has made an out-and-out gift of this money to a charity. There is no question of its being taken out of the residue. It is clearly given for a charitable purpose. If that purpose cannot be given effect to, something in the spirit of the gift will be given effect to. In no case would there be any question of taking money out of the residue.
It must be taken out of the residue. Let us take the case of a man who has £10,000 in funds. When he dies, he makes a charitable bequest for the building of a church in the parish of X to cost £10,000, leaving the residue of the estate to a nephew or niece. We vary the charitable bequest and spend £10,000 on something closely approximating to a church in the parish of X. The residue is nil. If we do not spend it on the specified purpose, the residue is £10,000. Am I not right?
No. I think the Senator is misconstruing what we mean by residue. It has always been the law that you endeavour, as far as you can, to give effect to the charitable intentions of the donor. If the donor meant that, if a specific charitable purpose he had in mind could not be carried out, the money allocated should fall into the residue, then clearly he would specify to that effect. It is only in the case where there is a general charitable intent or an out-and-out gift that a cy-près scheme can be framed. The wrong thing would be that something the donor did not intend at all should happen—money he had left for some charitable purpose falling into the residue. We try to get as near as we can to the donor's purpose. If he wanted the money to fall into the residue in the event of its not being possible to give effect to his intention, he would specify that.
I hope solicitors when making wills will advise people on the provisions of this section and make it quite clear that the wording will specify what they desire. There can be errors. It is quite ambiguous.
To my mind, if a charitable gift fails to be fulfilled according to directions given, which the Parliamentary Secretary has interpreted as the intention of the donor, and fails even to be fulfilled in the spirit of the gift, surely then the court will hold that the charity has failed and it will not be administered cy-près at all?
We are stating the law that it will not fail but that it will be applied cy-près.
Take the case of Senator Donegan's legatee appealing to the court. Then it could fail. That section would not save it from failing if it did not come anywhere near the intentions or purpose of the donor.
Earlier on, the Parliamentary Secretary spoke about the intentions of the donor. He indicated quite clearly that the intentions of the donor were the things to have regard to and take into consideration when applying property or a gift cy-près. It seems to me to be quite clear that the directions given are one thing; the intentions of the donor are another; and the spirit of the gift is another thing. They are shades of shade, but they are all quite different shades.
The directions given might run this way: "I direct my executor and trustees to realise my leasehold property and apply the proceeds thereof in the payment of the sum of £10,000 for the erection of a church in the parish of X." These are the directions associated with that gift. It is the intention of the donor in that kind of case that a church should be erected in the parish of X. Take the hypothetical case that a church has been erected in the parish of X and it is impossible to apply the charitable gift to that purpose. Then we say it is clear from the directions and intention of the donor that his wishes cannot be complied with. That is what we mean when we speak about the spirit of the gift. When you begin to apply the property cy-près, you have regard to the spirit of the gift, which was the erection of an edifice for the glorification of God.
That is the spirit of the gift but the intention of the donor was to erect a church in the parish of X. The spirit is the erection of a church for the glorification of God. That is why it is quite wrong and I think the Parliamentary Secretary, if he reads what he said to the House in reply to the query I made, will find that he is at one with me in what I had to say, that in deciding to apply property cy-près, regard must be had to the directions and intentions of the donor. Then since these cannot be implemented, you have to look at the whole lot again to find what is the spirit of the gift and you will find it is the erection of a church for the glorification of God and you proceed to apply the £10,000 cy-près to the erection of some such edifice. What we are deciding is the occasion on which property can be applied cy-près, the occasions that give rise to the application of cy-près power. When you begin to apply it, it is the spirit of the gift you have regard to.
I should like to put this point to the Senator. The direction given could possibly be complied with, if you ignore completely the spirit of the gift. It might be possible in certain circumstances to have a purely technical compliance with the actual direction given, but ignoring the spirit of the gift, which was some particular intention relating to some particular form of worship. However, I do not think we need delay the House too long on it. I feel it is all right as it is, but certainly I am prepared to have a look at it to see whether it might not be improved, without giving any undertaking.
The more I hear of this discussion, the more I am convinced that there is room for grave injustice. I would ask the House to imagine a very simple will where a man says that he wants to sell leasehold property and provide a church valued at £10,000 for a religious order whose church is in a rather bad state of repair in his town. Before he dies, the church referred to has been rebuilt and renovated. The funds of this religious order are world wide. If there is need for funds, it is absolutely world wide. The only other provision is that the residue of his estate falls to a nephew. This man having seen the church re-built and re-furnished thinks the job is done. For ten years, he does not go to a solicitor to change his will or say: "No; I devote £10,000 from the sale of this property for the provision of a church anywhere by this religious order." According to the discussion between Senator O'Quigley and the Parliamentary Secretary, according to the spirit of the gift, an edifice can be built anywhere in the world with this £10,000. I think that has been accepted and, mark you, it is quite possible that the courts might read it in that way. That man's intention, although he did not change his will, having seen the place being built beside him, would have been that his entire estate should fall to the nephew. Therefore, there is room for grave anomalies and I am not at all happy about this section.
It seems to me that Senator O'Quigley has made a strong case. I do not pretend to know anything about the doctrine of cy-près but it seems to me that if it is not possible to carry out the donor's intentions or even to carry out the spirit of the gift, it will be equally impossible for the court to find some cy-près way of applying the gift. Therefore, it seems that the clause makes the thing too exclusive. It would be better without the words “spirit of the gift.”
I move amendment No. 11:
In subsection (1), line 6, before "or" where it secondly occurs to insert "in a recognised place of burial."
The subsection would then read:
Every gift made after the commencement of this Act for the provision, maintenance or improvement of a tomb, vault or grave or of a tombstone in a recognised place of burial, or any other memorial to a deceased person or deceased persons which would not otherwise be charitable shall, to the extent provided by this section, be a charitable gift.
One of the reasons I have put down this amendment is that if a gift is made for the erection of a tomb, it must be in a recognised place of burial. I am not quite sure as to the proper word for a graveyard, but for want of a better term, I put that down for the present, simply that these tombstones would not be lying all over the country. I know of two cases where they are lying about, one on land which has been taken over for afforestation and the other taken over by the Land Commission and they are causing a certain amount of embarrasment to the persons concerned. The other reason I put down the amendment is that they should be erected for human beings.
I think the Senator's efforts are misdirected. All we are doing in Section 51 is relieving gifts which we have in mind from liability to taxation. This Bill is not the instrument that would be responsible for directing where tombs should be erected or where they should not be erected. That is a matter for the Department of Local Government and the local authorities. I should not like to restrict the operation of this section to tombs or memorials erected inside graveyards only. All we are concerned with is the general exemption provision and I do not think we should restrict this section.
This is a Charities Bill and one would think it would be suitable to insert that in this Bill so that a tomb would not be erected to the memory of a horse or a dog, as this wording which I suggest would ensure.
I do not think that is involved at all. The section reads that:
Every gift made after the commencement of this Act for the provision, maintenance or improvement of a tomb, vault or grave or of a tombstone or any other memorial to a deceased person or deceased persons which would not otherwise be charitable ....
Certainly we are not dealing with memorials——
Does the tombstone also apply to the person?
I would certainly argue that it did. When I read the Senator's amendment, I immediately assumed his objection was to granting this exemption outside recognised graveyards.
Oh, yes; I agree.
Surely it could happen that everyone would be agreed on a suitable form of memorial to some person, public figure or otherwise, which would not necessarily be inside a recognised burial place?
Memorial, yes—not tombstone.
I do not think we need restrict our section; all we are concerned with is the exemption from taxation and the rule against perpetuities.
I move amendment No. 12:
In subsection (1) (a) line 37 to delete "in Dublin" and substitute "within the state and circulate daily."
This is the section which provides that the trustee of every will must publish three times successively in newspapers circulating in the locality where the charitable bequest is to be expended and if not, then the making of the bequest is to be published in some newspaper published in Dublin. I think we all have a great respect for tradition but that would be going too far. We ought to recognise that there are papers published daily outside of Dublin and we ought not to exclude them from this section. We all know that there is the Cork Examiner which is the only paper which circulates in certain parts of the south of Ireland. I do not see any reason why we should confine the publication of a bequest to some charity in Ballyboley to being published in a newspaper published in Dublin. I think the Parliamentary Secretary must consider the Cork Examiner and the Evening Echo.
The Evening Echo is the villain of the piece. If we were to accept the amendment, it would suffice to publish it in the Cork Evening Echo. It is published daily but it is of purely local circulation. There is no question of local patriotism in this. The intention is that the widest possible publication should be achieved and I think that even Corkmen will admit that the Dublin national dailies are the most appropriate instruments to achieve that. This may reassure some of the Senators somewhat: in almost all these cases there is a direction as to the particular application of the gift and in that case a local paper is selected in which the advertisements are also published.
We are all grateful to Senator O'Quigley for the detailed attention he gives to matters of this kind, but I think that on this particular point he has gone astray because the wishes of the Bill are that it must be published in some newspaper published in Dublin which is nicely vague on the whole. Senator O'Quigley's amendment wants us to say that it shall be published not only in such a paper in Dublin but a paper published within the State and circulating daily. Well, of course, there is no such paper. The most we have are papers which circulate six days a week.
We have run into trouble on this amendment. I do not think the Parliamentary Secretary has made a valid point. It would be easy to specify daily morning papers. Morning newspapers are the newspapers accepted for Government advertising, legal advertising and so on. I think if the wording of this amendment were changed to take in daily morning newspapers it would suffice. I think it would be unjust in principle to exclude such a paper as the Cork Examiner which is the daily newspaper of a very great number of our population. The word “morning” would certainly cover part of the point and if we want to make a point that it is for general circulation, that also can be incorporated in the amendment.
I should be distressed to be forced into the position of denigrating the Cork Examiner in any way. It is a newspaper for which I have the greatest possible regard, but I want the House to be absolutely serious about this—we want the proper amount of publicity. Would anyone contend seriously that if we want that, we should have anything but the three national dailies which are published in Dublin? I have not got the circulation figures of the various newspapers, but I do not think anyone would seriously argue against the proposition that in overall distribution throughout the country on a national basis, it is the newspapers that are published in Dublin that count.
I am not quite satisfied with regard to the coverage of the Dublin newspapers. It is estimated that no more than 50 per cent. of the people in this country read a morning paper. Far more people in Ireland read the week-end newspapers. I am not quite sure what Section 53 (1) (a) exactly means but, apparently, if it is not quite specific, one must advertise in some Dublin newspaper. If there is a bequest left in, say, County Mayo, the coverage provided by any of the Dublin newspapers in Mayo may be only half the coverage of the local paper in Mayo.
The cost of the advertisement would probably be four or five times what it would be if the advertisement were put in the local papers, rather than the Dublin morning papers. Paragraph (a) provides:
within three months after the grant of probate or letters of administration, publish once in Iris Oifigiúil and three times successively in some newspaper circulating in the locality where the devise or bequest or the greater part thereof is directed to be expended or applied, or if there is no direction as to any such locality, then in some newspaper published in Dublin, the following particulars—
That is the point.
The people living in the town where the beneficiary was resident would be more interested in what was done with the bequest than people reading the Dublin newspapers. If someone in Mayo, say, in Ballina, a town I know a little about, left his whole estate to some charity which had its head house in Dublin, publication of the bequest in the Mayo paper would be more closely read and discussed than if it were in a Dublin paper.
The Senator should read the section.
If there is no direction as to any such locality, it must be published in the Dublin papers?
I am afraid the Senator does not quite understand——
I think the position is that it goes in the Dublin papers by default.
If it is not published in the local paper, it goes in the Dublin papers?
By default.
That is what I want to avoid.
I feel that the Senator has not got quite clearly what is in the section. If the gift is to be administered in a locality, it must be advertised in a paper circulating in that locality. Only if there is no paper circulating in that locality does it go in the Dublin papers.
Would Senator Burke tell us where he got the estimate that less than 50 per cent of the people read a daily newspaper?
Let us keep to charity.
As a matter of interest?
It was the Master Printers Association of the provincial papers, I think, that gave that information. I could get more precise information for the Senator, if he wishes.
I think the Master Printers did not read the circulation figures or they would not make that statement.
The Parliamentary Secretary and Senator Sheehy Skeffington have made no case whatever against the amendment. Senator Sheehy Skeffington very adroitly said the amendment refers to "within the State and circulated daily". That can easily be got over by "published within the State and circulated on Mondays to Saturdays inclusive".
It can be got over by changing the amendment.
Is the Senator withdrawing the amendment?
No, because the Parliamentary Secretary has said that what we want to ensure is the widest possible publicity. We must all agree that if that is to be achieved, it means publication in the three national dailies. That is not in the section. The section says "in some newspaper published in Dublin". Let us name them: the Irish Independent, Irish Press, Irish Times, Evening Herald, Evening Press, Evening Mail, Sunday Independent, Sunday Press, Sunday Review, Standard——
It will be a very long list if the Senator mentions every newspaper published in Dublin.
It could happen that a paper would come out and collapse after a few weeks but publication in that paper would comply with "some newspaper published in Dublin". The section cannot stand, whatever about the amendment. If we want to confine it to the three national dailies, let us say that, although I would be entirely opposed to that.
If we are to talk about "some newspaper published in Dublin" what is meant by "Dublin"? Is it Dublin county? Is a newspaper published in Dún Laoghaire, "published in Dublin"?
There are not many——
A newspaper was published on Saturday evenings in Dún Laoghaire. Was that newspaper "published in Dublin" within the meaning of the section? I shall not say any more except that this section will not pass muster and we shall have to amend it on Report Stage.
The board will publish regulations with regard to a charity or a deposit of deeds. Will those regulations be laid before either House of the Oireachtas or in what way will they be published? Will notice be given in Iris Oifigiúil? How are people to know what the regulations will be?
I presume the normal provisions in regard to any regulations made under an Act of Parliament will apply. I assume they would be notified in Iris Oifigiúil, but I am not quite sure.
I am inclined to think that where regulations are required to be published in Iris Oifigiúil— if that is the intention — we should put it in the Bill. My recollection is that where regulations are not laid before either House, notice is published in Iris Oifigiúil. That seems to be the standard practice. Perhaps the matter might be looked into.
I will certainly have a look at the section again in that regard. If these regulations were to be published effectively, then I imagine they should be published in Iris Oifigiúil. What is involved probably is that there are regulations dealing with the board's internal administration of their own affairs. I shall certainly have a look at the position and see if I can clear it up for the House on Report Stage.
I see that here we are disposing of a deficit of £17 13s. 5d. which occurred in the accounts relating to the year 1873. I just want to remark that tradition dies hard.
