Michael D Higgins (Galway West, Labour)

I will comment on how this Bill affects human rights. I should point out that I have an honorary adjunct professorship at the Irish Centre for Human Rights of National University of Ireland, Galway.

I welcome the Minister of State in his new role. This is the first time I have had an opportunity to do so and I wish him well. He is somebody whose preferment would have been appropriate some time ago. The Bill is worthy of support on Second Stage, but it requires amendment on Committee Stage. It is overdue and I pay tribute to those who worked on it. However, I wish to make a number of points, some of which were already made in thoughtful contributions from the Government side.

My understanding of regulatory authorities is that they should not be used to undermine either fundamental constitutional principles, established law or international legal precepts. I say this because of actions by bodies such as the Broadcasting Commission of Ireland and its interpretation of an advertisement by Trócaire last year. Regarding regulatory authorities in general, we are on the verge of the greatest amount of unnecessary confrontation by the actions of the Competition Authority, which has abused its position in a case with Irish Equity and its right to be collectively represented, as well as undermining the collective representation rights of a body with a negotiating licence, namely, the Irish Pharmaceutical Union. The same issue has arisen with the Irish Dental Association.

Collective representation rights exist in trade union law that precedes the Competition Authority. These rights are vindicated in European law and they are framed in International Labour Organisation conventions. The idea that a body can take it upon itself to interpret its functions in a way that is not directly accountable to Parliament, through questions, is disturbing. It is worthy of consideration by the Attorney General and by the Government. The same could be true regarding the BCI, which issued a pathetic justification of its outrageous decision on the Trócaire advertisement last year. I felt at the time that it was worthwhile amending the legislation involved, and I prepared a Bill that would do just that.

It is very interesting to bear in mind how relevant this is for the present Bill. Resolution 1325 of the UN Security Council was on gender inequality. The BCI, in striking down Trócaire's right to run a campaign challenging Government policy by asking for gender inequality to be eliminated, claimed this was unacceptable and inappropriate. On 9 March 2007, the BCI stated:

The BCI has informed Trócaire today that the current version of its advertising campaign is in breach of the Radio and Television Act 1988. Following discussion with Trócaire, the BCI has considered an alternative broadcast version of the advert, and has deemed that this alternative version is in order under Section 10(3) of the Radio and Television Act 1988........The basis for the Commission's decision to refuse the first version of the ad related to:

The definition of a political end, as contemplated by the 1988 Act, is not confined to a party political end, but encompasses procuring a reversal of Government policy or particular decision of Government.

Therefore, if a Government was dragging its feet on a UN convention, it would be an inappropriate advertisement. If we were doing nothing to ratify a UN convention, such as the UN Convention Against Corruption, then that would also be inappropriate.

The BCI statement went on:

The text of the advert calls upon people to support a Lenten campaign that has as one of its stated purposes, to call upon the Government to produce a National Action Plan and seeks public signatures for a petition in this regard. Therefore the campaign has a political objective as contemplated under the legislation.

The BCI's appalling justification of its dreadful decision is not answerable in here, due to the way regulatory bodies are spinning out of accountability in a constitutional and parliamentary sense. A related example is the Competition Authority's undermining of the right to collective representation of Irish Equity. It has also denied non-PAYE workers the right to collective representation.

I appreciate the complexity of this Bill and it should be supported on Second Stage, but it requires amendment. Knowing the Minister of State from his time on the Joint Committee on Foreign Affairs, I know that he would be quite open to considering amendments. There is no doubt whatsoever that there is another fundamental issue involved, but I think Trócaire's decision to adjust its advertisement, as well as the decision of SIPTU to concede an issue with the Competition Authority on the steps of the courts, means that there is pressure on groups to fit themselves in with the self-definitions of unaccountable regulatory bodies. This is a constitutional issue of the first order which must be discussed in this Chamber.

There are similar issues. I had to point out to Professor Drumm of the HSE that he had replaced the health boards, but that he did not replace the Minister for Health and Children, the Department or the Oireachtas. In a seminal speech to the law society of UCD a few years ago, the former Attorney General, Mr. David Byrne, pointed out that there is no way in which office holders can divest themselves of responsibility, and that they must give a clear policy envelope to that to which they transfer responsibility.

That is all by way of a preliminary to the specifics of this Bill. A very thoughtful speech was made from the Government side on the question of advocacy, which arises in section 2. There is reference to an "excluded body", which is defined in the section as "a political party, or a body, the principal object of which is to promote a political party, candidate or cause". Once the word "cause" is put in and a regulatory body established, we are leaving ourselves wide open to having all the nonsense of the Broadcasting Commission of Ireland writ large across a whole range of different issues. These include the elimination of poverty and the abolition of slavery. There are 24 conventions that have been signed by Ireland, but not ratified. A body could not run a campaign for the ratification of these conventions. For example, the Government has no intention to ratify the UN Convention on the Protection of All Migrant Workers and Members of their Families. If I wanted to run a campaign on it and a charity decided to advocate in favour, it would be ruled out. I am sure there are decent people on all sides of the House who simply would not want such a restriction on any Government.

In defining "excluded body", the section goes on to suggest "an approved body of persons within the meaning of section 235 of the Taxes Consolidation Act 1997". It would be worthwhile on Committee Stage to examine the relationship between the Revenue Commissioners and musical, arts and cultural bodies registered as charities which have obligations under retention tax and VAT. It would be an appropriate time to consider a nuanced approach to this to enable such organisations to operate.

The Bill includes a definition of an excluded body as a trade union or a representative body of employers. I suspect I may be pushing a half-open door when I suggest the Minister of State re-examine this proscription on advocacy.

Other issues arise which may appear on my part to be a conservative view. Section 3 defines public benefit in a limited way. Public benefit can be one that is not necessarily an immediate or lifetime one. A public benefit could be, for example, intergenerational, involving an action that will benefit future generations. It could also refrain actions being taken that could have consequences for future generations, such as a charity established to advocate that we do not desecrate Tara. We need to think intergenerationally and beyond the serious limitation of the definition of public benefit as defined in the Bill.

Section 3 lists those organisations that shall be regarded as being a charitable purpose. I appreciate it is a difficult area and I have sympathy for those who have wrestled with it. The definitions must be elaborated on Committee Stage. It includes those involved in "the prevention or relief of poverty or economic hardship". However, one should be allowed to pursue a rights-based programme aimed at the elimination of injustice, social and cultural exclusion. This section must be amended to include such rights-based programmes. Organisations involved in the advancement of education are included. The section must be re-examined to ensure inclusive principles are included.

Section 3(1)(c) provides for organisations for the advancement of religion, a curious area. This becomes more complicated when tied in with section 3(5) which states "a charitable gift for the purpose of the advancement of religion shall have effect, and the terms upon which it is given shall be construed, in accordance with the laws, canons, ordinances and tenets of the religion concerned." This does not draw a reasonable distinction between what might be regarded as genuine religions, ones which may have been established for tax purposes, and, most dangerous of all, cults.

A cult can construe its particularly internal structure "in accordance with the laws, canons, ordinances and tenets of the religion concerned". I am not highlighting this to take advantage of a flaw in the legislation. It is a serious issue and must be considered on Committee Stage. I recall when I was in central America in the 1980s, there were 3,500 fundamentalist sects. For any person pushing bibles there, irrespective of whether they needed it, their property in California was tax exempt. While that is the tax side of the argument, I am more concerned with drawing distinctions between disciplined religions. The Church of Scientology and others come to mind and it is important to have clarification in this regard.

Section 3(8) defines those organisations involved in a "purpose that is of benefit to the community". It includes those involved in the advancement of community welfare including the relief of those in need by reason of youth, age, ill-health, or disability. This seems to allow the inequalities of a society that is structurally unjust to continue, allowing compassion or guilt to inform one's charitable actions. I want this section to be informed by a rights-based approach which incorporates the indivisibility of rights, not just civil and political, but social, economic and cultural. That is the way to go in progressive legislatures.

Organisations involved in the promotion of civic responsibility are included. One needs to think of the importance of consciousness-raising organisations such as those interested in advancing citizenship. Organisations involved in the promotion of health, including the prevention or relief of sickness, disease or human suffering are also included in the definition. One must be able to defend the rights of patients. For example, it may not include a charity established to assist those suffering from MRSA. It provides for organisations which promote religious or racial harmony and harmonious community relations. Those involved in ethnic status and Travellers rights come to mind. I raise these as examples, making no prejudgments. I am sure the Minister of State is amenable to elaboration of these concerns on Committee Stage.

It is important that when the regulatory authority is established the burden of compliance does not fall unfairly on small charities. One issue that will emerge on Committee Stage is the large number of registered charities, which may be as high as 20,000. It should be possible to have pro forma compliance for small charities that will not put an onerous charge on them and they will not find themselves satisfying three different stools with an unfair burden of expense.

Professor Enda McDonagh, perhaps Ireland's most distinguished if not preferred theologian in terms of appointment, recently pointed out how philanthropy should not just be a mechanism to relieve guilt. I thought of this, listening to other Members. One cannot use charity to relieve the State of its obligations. The HSE is not free just to simply balance its budget. There are citizens who have rights under the Health Acts which establishes a baseline. If they so decide, they can sue the State, the Minister for Health and Children and the Department. The HSE should balance its books above the line of citizenship rights. No accountable or well-organised charity legislation can relieve the State of its obligation to its citizens, be they young, middle-aged or elderly. One does not have to go to the extremes of the lifecycle to establish rights. The role of the State must not be eroded by voluntary organisations.

This overdue Bill has required enormous work and I pay tribute to those involved in its preparation. For four decades, people encountered some of the difficulties I have mentioned and set the obligation aside. I welcome the legislation and the approach by the Minister of State. I hope debate on Committee Stage will improve the Bill in the areas I have mentioned.

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