Ms Alice Murphy:

I turn to a summary of the legal submission. In the legal section of the written submission to committee, Mason Hayes & Curran outlined legal amendments which could be considered to address the major policy issues flagged by the other speakers, as well as a series of stand-alone legal issues which were apparent from our review of the Bill and which are capable of being addressed in subsequent drafting of the Bill.

I turn to a number of heads of the Bill which the committee may view as relevant to our appearance. Head 5 introduces discretionary reporting of suspected charity law offences. We envisage that problems could arise if the regulator is not obligated to share information with An Garda Síochána indicating a criminal act or breach of law. We suggest that a positive obligation should be imposed on the Charities Regulator to share information with the appropriate authorities where a suspected offence has occurred.

On head 7, this proposed amendment inserts a legal obligation that a charity shall not amend its constitution without the prior approval of the Charities Regulator. We are concerned that this provision is not proportionate as it requires the prior approval of the Charities Regulator for any change to a charity’s constitution, however minor or inconsequential. It would be unworkable in practice and reflects a significant extension of the regulator’s statutory powers in terms of how charities define themselves.

Head 8 grants the Charities Regulator powers to make changes to the information on the charities register without consulting the charitable organisation in question. As it stands, this head would not provide charity trustees with an opportunity to comment on, object to or agree to the changes to the register. We believe that the regulator should engage with charity trustees in relation to any change and afford them the opportunity to make the change.

Head 9 streamlines the process of removing charities from the register and establishes the power of the Charities Regulator, rather than the High Court, as the first adjudicator. Removal from the register is an extraordinarily serious sanction with far-reaching consequences. Charities are only permitted to operate in Ireland if they are on the register. This head removes several important steps in deregistering a charity and could lead to a sudden shutdown of public services, immediate loss of jobs and the suspension of all financial transactions and board status for a charity which suffers a deregistration.

Head 23 introduces an obligation for charity trustees to notify the Charities Regulator as soon as practicable where there are reasonable grounds to believe a significant event has occurred or is likely to occur. We have concerns about the definition proposed for "significant event". This head creates a circumstance where trustees could be retrospectively held accountable for not reporting something later determined by the regulator to be significant. This will place a disproportionate burden on charity trustees who must decide in the abstract whether a potential set of circumstances qualifies as a serious incident. This may become one of several administrative burdens placed on the regulator, as concerned boards may report on all manner of possible “significant events” in their need to comply, thus overwhelming the regulator's capacity.

Head 24 relates to directions arising from an inspector’s report and a new offence of failure to comply with a direction. This head gives the regulator significant discretionary power, including power to deregister a charity without input or submission from that charity. We recommend this provision be amended to facilitate engagement by the Charities Regulator with the charity, prior to any decision on removal.

Head 29 addresses payments made to charity trustees other than for fulfilling their role as trustees. Certain charities have provisions in their constitution that permit or oblige, for instance, the CEO to be a charity trustee. Additionally, the proposal to require advance approval for any arrangement between a charity trustee or any person connected to that trustee relies on a very broad and potentially inappropriate definition. There will be circumstances in which it is good governance practice, and represents the best outcome for the charity, to enter into an arrangement with a trustee. Many such arrangements are already in place and no provision is made for this reality in the Bill. This is a lengthy section and we have a series of concerns about it, which are set out in our written submission.