Mr. Liam Herrick:

I thank the committee for inviting us. The ICCL warmly welcomes this important legislation and we congratulate the Minister of State, Deputy Joe O'Brien, and the Minister, Deputy Humphreys, for bringing forward essential reforms in this area.

The ICCL approaches this question not just as a matter of regulating the charity sector. We see this as an essential measure in the context of Ireland's obligation to create an enabling environment for civil society and for ordinary people and communities to take part in the democratic life of the State. We see this question from the perspective of Ireland's international human rights obligations to vindicate the right to freedom of expression and freedom of association. We also approach the question in the context of our commitment to fair procedures and the rule of law. It is essential that the regulatory powers of the Charities Regulator are, as the regulator has said, proportionate and balanced.

We wish to address two specific questions today. The first is the proposal contained in the draft Bill that concerns the amendment of section 3 of the Charities Act 2009 and inserts "the advancement of human rights" into the Act as a new valid charitable purpose for organisations. This we strongly welcome. This amendment will address an anomaly that has existed in the original Act since 2009 and will provide for greater oversight and transparency in the sector, which we have long called for. The advancement of human rights was originally listed as one of the charitable purposes in the original heads of the Charities Bill in 2006 but it was omitted from the final Act in 2009. In neighbouring common law jurisdictions, the Charities Trustee and Investment (Scotland) Act 2005, the Charities Act 2006 in effect in England and Wales, and the Charities Act (Northern Ireland) 2008 all expressly provide for the advancement of human rights as a charitable purpose. Consequently, Irish law has been out of step with norms of our neighbours. As the advancement of human rights is a recognised charitable objective in the UK, including Northern Ireland, this has created and important gap of equivalency in the protection of human rights between both parts of this island.

The rationale, or one aspect of it, originally used by Government for the exclusion of human rights from the list of valid charitable purposes under the Act was that it is not a category used by the Revenue Commissioners in their determination of charitable status. However, the Charities Act 2009 is the primary statutory instrument governing this area and in our view it should be the primary reference point for legislative authority on what constitutes a charity or charitable purpose and not the interpretations of the Revenue Commissioners. In our view it would be prudent that, following the enactment of this important amending Bill, the Charities Regulator and the Revenue Commissioners agree a memorandum of understanding or other instrument of that type, as recommended by the joint committee in 2015, to ensure consistency between decisions and approaches taken by the Charities Regulator and the Revenue Commissioners when evaluating the status of bodies in the is category.

The second point will, we feel, be an important aspect of how this change will be operationalised with regard to charities and bodies that might be deemed charities in future. It relates to Guidance on Charities and the Promotion of Political Causes, a document issued by the Charities Regulator in 2021. We heard in the previous session from the Charities Regulator about the importance the body attaches to guidance documents it issues to support and assist charities. We note the language in that document on the nature of political engagement deemed to be permissible under the Charities Act has changed from an earlier guidance document issued in February 2018. The earlier document made reference to the fact that organisations established "exclusively to promote a political cause" would be considered ineligible for charitable status. I think we can all appreciate why it would be inappropriate for a body established for an exclusively political cause to be deemed a charity, for example, if it was set up to support a particular political party or candidate. However, in the updated document from December of last year, the language used is that organisations "set up primarily to promote a political cause" would be so excluded. This creates a potential difficulty about how the regulator or other bodies might interpret what is political and when an organisation crosses the threshold into being "primarily" concerned with political activity. In our view, it is difficult to envisage how, under the amended legislation, a human rights organisation could advance human rights without falling foul of the updated guidance from the regulator, given the prominent and vital role political advocacy and campaigning plays - properly - in the day-to-day work of human rights organisations.

It is our recommendation that in order for the addition of the advancement of human rights to have a meaningful impact in Irish charities law, it will be necessary for the regulator to revert to the original 2018 wording on political advocacy to provide certainty and clarity to the law. This would mean organisations established to exclusively promote a political cause should not, and cannot, be considered charities, as is correct. However, organisations should be allowed to conduct legitimate political advocacy as part of their charitable work in pursuit of their charitable aims. We very much understand there is a need to protect and distinguish electoral politics from the work of civil society but there is nothing wrong with charities or other civil society bodies engaging in political advocacy. Indeed, it is an essential and healthy feature of any democracy that ordinary members of the public can seek to influence the public life of the State. We do not want to enter an area where the Charities Regulator, or any regulator, is making subjective analyses of whether bodies should be allowed to choose political aims to advance their charitable objectives.

We are eager to engage with the committee on this question. We noted with great interest the contribution of The Wheel and Charities Institute Ireland at a recent meeting of the committee. They raised very important concerns about fair procedures and the risks associated with expanding the powers of the regulator. We fully endorse and support their views. While we understand a regulator or indeed the State may wish to expand the powers available to a regulator to give it greater discretion, this also creates certain dangers and risks that those powers might be used at some point in the future to suppress charities or other civil society organisations with which the State does not agree.