Dr. Oonagh Breen:

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

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

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

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

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

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

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

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

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

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