Mr. Ivan Cooper:

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

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

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

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

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

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

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

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

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

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

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

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