John Curran (Dublin Mid West, Fianna Fail)

I move amendment No. 8:

In page 9, between lines 30 and 31, to insert the following:

"(iii) contrary to public policy,".

The Government is proposing amendments Nos. 8 and 47 on the basis of legal advice. The Bill already provides for the automatic exclusion of certain categories of organisations, including bodies engaged in illegal activities. The advice provided is that there are other types of activities that would be regarded as contrary to public policy. Such activities, while not illegal, should not be accorded recognition by the law and should not be regarded as charitable.

I wish to make a clear distinction between "public policy" and "Government policy". Public policy transcends the policy of Government of the time. Under the Charities Bill, an organisation will not be excluded from charitable status because it advocates a course of action contrary to Government policy. Activities contrary to public policy will be only those which do not deserve recognition in law. Murdoch, in A Dictionary of Irish Law, states that certain acts are said to be contrary to public policy when the law refuses to enforce or recognise them on the grounds that they are injurious to the interests of the State or the community, for example, the law will not enforce an illegal contract or permit evidence to be given which would affect the security of the State. I emphasise that the references here are to the State and not to the Government.

Also, statutes frequently contain reference to the phrase "contrary to public policy". A recent example is the Arbitration Bill 2008 which incorporates a model law for all arbitrations in Ireland. Article 34 of the model law provides that an arbitration agreement may be set aside if it is contrary to public policy. The point applies even more strongly in the context of charities. If Irish law will not give force to agreements which are contrary to public policy, it would be illogical if organisations advancing activities contrary to public policy could be given the much greater legal privilege of being recognised as charities.

Given the legal advice provided, it is considered prudent and desirable to exclude from charitable status, by way of amendment No. 8, organisations engaged in activities contrary to public policy. Amendment No. 47 arises as a consequence of the primary amendment and is necessary to ensure consistency with the new definition of "excluded body".

See this speech in context