Thursday, 4 December 2008
Charities Bill 2007: Committee Stage
Before discussing the amendments, in an effort to be helpful I wish to make some opening comments. The Second Stage debate took place in the House recently and a number of points were raised. Some of them will be addressed in the amendments before the House today. However, a couple of other items were raised, either in this House or in the Dáil, and I wish to inform Members of my intentions in regard to them.
The first is an approach to addressing the issue of pre-signed mass cards.
Pre-signed mass cards have been an issue for some time. We are in consultation with the Attorney General and I hope I can bring forward an amendment in that regard on Report Stage. There is an Opposition amendment on the same issue down for debate today.
Following the Second Stage contributions regarding public representatives being precluded from membership of the new authority, I expect to make recommendations and changes in that regard on Report Stage. On foot of legal advice I will propose an increase in the maximum permitted membership of the new authority to enable it to fulfil its wide range of statutory functions. I also propose to tighten up some of the references to terrorism and terrorist activities. Those amendments will be brought forward on Report Stage. I mention this in order that Members will know our intentions regarding some of the key issues that have been raised in the House.
Amendments Nos. 1, 5, 30, 32 and 33 are proposed on foot of discussions with the Department of Education and Science and the Office of the Attorney General. At present, educational bodies such as schools, students' councils, parents' associations and vocational education committees are subject to oversight by the Department of Education and Science and, on occasion, by other bodies, such as the Committee of Public Accounts. The ethos of the Charities Bill is not to impose a significant additional administrative burden on any organisation. I propose that educational bodies be required to register and provide an annual report to the charity regulatory authority every year but that they be exempt from the audit and accounting provisions of the Bill. Many of these educational bodies are already required to keep and submit accounts to other bodies and it will be within the remit of the authority under section 53 to request these and any other information it requires from these bodies where the need arises.
In keeping with the graduated approach to regulation, I recognise that many charities are extremely small, with limited resources to enable them to comply with the requirements of the Bill. In the case of such charities with an income or expenditure of less than €10,000 per annum, I am providing that they be exempted from the accounts and audit or examination provisions of the Bill. It would be unreasonable to expect a charity of that size to produce examined accounts although, as with the educational bodies, they will be required to produce an annual report, which may also contain financial information. Bear in mind that the authority is empowered under section 53 to request information from any charity, even small charities, where it considers it appropriate.
I believe these amendments strike an appropriate balance and provide fair and equitable oversight, while minimising the compliance burden for the organisations concerned.
I have no difficulty with these amendments, but I wish to comment briefly on something the Minister of State, Deputy Curran, said. He referred to the fact that he had addressed the most significant matters raised in the House. However, he did not deal with what most people would agree is by far the most significant matter, that is, the exclusion of human rights under the legislation. Most people who spoke on this issue hold passionate views. The Minister of State consulted various groups and listened to the views of the Parliamentary Counsel. This morning I received notification from the Law Society of Ireland that it is now seriously concerned. The wording it suggested for an amendment, upon which I was briefed by virtually all national organisations dealing with human rights, is identical to the wording of the amendment I tabled. The Law Society of Ireland has strongly supported this. I am very disappointed this did not occur to the Minister of State when he referred to discussing the most significant issues and preparing amendments along those lines with an indication he would agree to them. Perhaps it is simply an oversight, but I very much hope the human rights provision will be agreed to in light of the forthcoming argument.
The issues to which I specifically referred are not dealt with by way of amendment today. I was signalling my intention that they would be presented later. I am conscious there are issues and amendments related to human rights and it is my intention to deal with those at that stage. I was signalling some of the issues raised, for which we do not have amendments today, to indicate to people these issues were not being ignored. I put this on record to be helpful to the Senator.
On a point of order, I understand that the Minister of State had to go to the Dáil Chamber for a vote, but that is outrageous. The Dáil is dealing with a Bill upon which there are likely to be a considerable number of votes today and it is not acceptable that we should have to suspend business each time. I understand this has arisen because of a refusal to pair on the part of the Opposition. As far as I am concerned, it is very bad political behaviour for an Opposition to refuse to pair a Minister of State in those circumstances. In that context, I do not propose to agree to any further suspensions of this House and I will call a vote if necessary.
When the Minister of State is in the Dáil casting his vote, we can vote here as well. I am fed up with this kind of nonsense which is causing unnecessary delays. We had rubbish on the Order of Business which delayed the Minister of State's arrival in the House and now we face the prospect of him having to leave the Chamber several times. I find this to be a very impractical and regrettable way of doing business, although I am not blaming the Minister of State for that. I know that he must vote——
I indicated earlier that I wished to respond to the Minister's opening remarks. I welcome the Minister of State and assure him that Fine Gael will not be opposing the Bill in principle. Indeed, my party has worked with the Minister of State on this legislation. I pay tribute to the officials in the Department of Community, Rural and Gaeltacht Affairs for their courtesy and briefing.
In light of what the Minister of State said in his opening remarks regarding his intention to introduce extensive amendments on Report Stage and that thinking on the Bill is ongoing, will he consider deferring the Report Stage debate until after the Christmas recess?
No, because the amendments on Report Stage to which I referred have already been clearly identified. There is nothing in them which we have not already dealt with, for example, the mass card issue. The amendments do not contain anything of a substantial nature that has not already been addressed. They have been scrutinised by legal advisers in the Attorney General's office and I am confident they will be ready and circulated in good time.
With a view to being helpful to Senators, when those amendments are finalised my officials will be available to meet any Members who wish to discuss them or clarify any issues.
I would prefer not to divide the House on the substantive issue of human rights and sport, upon which there does not seem to be a consensus. This is a good Bill and Members on this side of the House recognise its importance and the need for regulation in this area. However, it would be wrong to divide the House on the absence of human rights in the Bill, which I still cannot comprehend.
While it is unlikely that there are many, if any, single trustee charities, on the basis of legal advice, amendment No. 2 amends the definition of "body" to cater for such a scenario. Amendment No. 12 is purely technical. The text to be removed is not considered necessary, based on legal advice. Amendments Nos. 22, 23 and 34 are very similar and propose the use of the word "enactment" which has a broader legal meaning than the current word "statute". Amendment No. 26 is a drafting amendment to insert the word "and" after "1977" to link paragraphs (a) and (b). Amendment No. 36 changes the reference in section 70(1)(b) from the "Minister for Enterprise, Trade and Employment" to the "Director of Corporate Enforcement" as section 14 of the Company Law Enforcement Act 2001 transferred responsibility from the Minister to the director.
I commend amendments Nos. 2, 12, 22, 23, 26, 34 and 36, but I cannot accept amendment No. 52. Section 94 provides a reserve power for the Minister to regulate the manner and the conduct of fundraising. My Department has been working in partnership with the sector over the past two years to develop non-statutory codes of practice for charitable fundraising. The principles for these codes of good practice have been published and discussions are taking place at present regarding the implementation and monitoring of the codes. It is intended that the reserve powers of the Minister to bring in a statutory regulation would only be invoked if the non-statutory codes of practice prove ineffective. It would be totally contrary to this consultative approach to compel the Minister to introduce statutory codes of practice which would be the effect of accepting amendment No. 52. In that context, I cannot accept the amendment.
Amendments Nos. 4 and 42 have emerged from interdepartmental consultation relating to how a charity might act on dissolution. A fundamental principle of the Bill as currently drafted is that a charity should apply all its property for the stated charitable purpose, even when the charity is dissolved. In the course of the consultation, the possibility emerged that some charities might not be bound under their constitutions, on dissolution, to distribute the remaining property towards the charitable purpose. Under these two amendments, which address the potential loophole, any such charity would have to obtain the consent of the authority to pay any of the property to the members of the charity on dissolution of the charity.
Amendment No. 3 is a technical amendment which is being inserted on legal advice to ensure the definition of "charitable trust" in section 2 matches the definition of "charitable organisation" in the same section. Under the existing wording, there is a variance that needs to be addressed to ensure consistency.
I move amendment No. 6:
In page 9, to delete lines 38 and 39.
Amendment No. 6 proposes to delete "(c) an approved body of persons within the meaning of section 235 of the Taxes Consolidation Act 1997,". This section of the Taxes Consolidation Act refers to bodies established for and existing for the sole purpose of promoting athletic or amateur games or sports and therefore prevents them from obtaining charitable status. The rationale behind the amendment is to ensure that amateur sporting bodies are not prevented from applying for charitable status under this legislation. In my meetings with sporting organisations I have found that there is some concern that the current exclusion of sporting bodies under the legislation will place the future of amateur sports in Ireland in jeopardy, particularly given the current economic circumstances. There is uncertainty about statutory Government funding, on which many organisations depend, along with charitable support and bequests.
Sporting bodies should be allowed to apply for charitable status on the basis that they fulfil the legal criteria for charitable purpose under the legislation, which includes any purpose that is of benefit to the community. As the Minister knows and as I know, sporting organisations of all hues, particularly small, community-based organisations, play a key role in the advancement of communities and in health promotion, including disease prevention and the tackling of obesity, which has become part of our culture. They also play a part in tackling social exclusion, promoting volunteerism and generally advancing community welfare. I pay tribute to the Federation of Irish Sports, the sporting umbrella body, which does a lot of great work.
Let us boil down the case for this amendment. We have precedent for such a provision in UK law, from which much of our law is taken. The charities legislation in England, Wales and Scotland include such a provision, as does the Bill currently going through the Northern Ireland Assembly. I am concerned that if sporting organisations are precluded from having charitable status, they may be prevented from accessing philanthropic fund-raising streams. The argument will be made that it can be dealt with by reliefs provided under other legislation but, as the Minister knows, tax relief is only available on donations made to certain sporting bodies for the funding of capital projects which have ministerial approval.
Of particular concern is the current economic climate, as there is pressure on Exchequer funding and we have not yet had an announcement about the sports capital programme. We cannot expect sporting bodies to exist solely on funding from the Department of Arts, Sport and Tourism or from some county and city councils. In my own city of Cork, Cork City Council, of which I am a former member, established a sports capital grant for clubs. However, that is now under pressure due to the current economic circumstances. Clubs must have the capacity to raise funds by other means.
The Minister of State, on Second Stage, made the point that it was not his intention to expand or dilute the current charities regime. If I understood him correctly, he asserted that the primary purpose of this Bill was to encapsulate and codify existing laws in the area of charities. Why are we now excluding sport from the scope of this Bill? We are bringing in new legislation which represents a clean slate and a new beginning for all. The legal position as of today is that sports clubs, which are doing valuable work and are of benefit to the community, are not precluded from seeking charitable status. Under this legislation, that will change significantly. The amendments before us are intended to provide a level playing field for all organisations. On one level we have a focus on bricks and mortar, while on the human level the focus is gone or diluted.
I accept the argument that there are different taxation regimes available under the Finance Acts and so on. However, the majority of sporting bodies around Ireland cannot avail of any tax reliefs to assist their organisations. If we are to strive for consistency in the Bill we should include, in the interest of equity, sports clubs as bodies that can have charitable status. We are not doing that, and I do not know why.
We hear from Government about the importance of community involvement, social cohesion and healthy lifestyles. Those things are promoted by sport. Last weekend we had the provincial semi-finals and finals. The Minister of State is involved with his GAA club. Senator Ó Murchú is involved in sport, as are other Senators here. I do not mean to be inflammatory by saying this, but we are discriminating against sport, which is of major importance to the fabric of Irish society. As I said, bricks and mortar are being looked after, but people are not. That is a flaw in the legislation. A sports body can obtain tax relief on the construction of a hall but not on the employment of a coach or philanthropic donations.
I understand the Minister has received advice from the Office of the Attorney General and that the Revenue Commissioners and the Department of Finance have issues with the loss of revenue to the Exchequer if sports bodies are permitted to come within the scope of this legislation. However, if we include sport under the legislation, it will allow sporting bodies to attract money which is at present going to other charitable organisations and which will have an ongoing beneficial effect for the Exchequer. I hope the Minister will reconsider this. I made it clear in my remarks that we do not want to divide on this Bill, because it is a good Bill. However, there is an issue with sporting bodies. I hope what I have said here will move us forward in this regard.
The problem with the clause as currently drafted is that it codifies the exclusion, for ever, of any sports club from the possibility of claiming charitable status. As Senator Buttimer said, that is not really the spirit the Minister of State expressed on Second Stage last week when he said he did not intend to dilute or expand the current charities regime. The provision seems to codify into law the exclusion of sports on a permanent basis. We ask him to reconsider this clause.
With regard to amendment No. 10, we would like to see the extension of tax reliefs to include not just capital donations but also non-capital donations.
I rise to support what Senators Buttimer and Hannigan have already said. I do not intend to repeat their points but instead to note that I was in this House when the Broadcasting Bill was debated and I remember clearly that much was made by the Government of the fact that there would be measures to prevent the advertising of junk food at certain times. There was a very obvious reason for the Government's seeking to highlight that issue. It showed a degree of practicality. We in this country are rightly concerned about the health of our citizens, particularly our younger people. I cannot understand, therefore, why we are proposing to specifically exclude sporting bodies from being able to enjoy charitable status. At the very least one would hope we could include, as per amendment No. 10, the advancement of sport in the definition of "charitable purpose". At the very least, we should remove the exclusion of sporting bodies. It is important to note that this is not specifically or exclusively about tax. A certain amount of these matters can be dealt with in the tax legislation. A relatively small number of sporting bodies are engaged in capital projects and therefore able to enjoy charitable status in respect of donations for such projects. Many sporting bodies great and small undertake another kind of activity. It could be small things like being able to avail of computers for schools. These may not sound like big undertakings when they are being discussed in this Chamber but in practice they make a big difference. The proposed legislation will deny sporting organisations the legitimacy that would derive from an improved regulatory regime and this is folly. Statistics show that people who practise sports are said to be 14 years younger in health terms. I wish I qualified for that kind of designation.
We need to treat this issue seriously and we need to be serious about sport. We often complain that we do not do as well as we would like to in major sporting events such as the Olympic Games and we rightly celebrate the achievements of people like Pádraig Harrington but it is at the basic, practical level that we really show our attitude towards sport and towards the health of our nation's citizens. We constantly communicate platitudes about how great our sports people are and how much they contribute to social capital but where is the beef? The beef has to be here in this Bill.
I am co-sponsor of one of the amendments dealing with the exclusion of sport because that needs to change at the very least. As per the other recommendation, we should specifically name sporting bodies as coming within the scope of the legislation, as qualifying for charitable status.
I am broadly in support of people's concerns about human rights although we might need to qualify that a little. I refer to organisations purporting to promote human rights but which would not promote a vision of human rights consistent with the Constitution. We need to be clear on that point but otherwise I would have no problem with it. I make that point to emphasise that there can be no doubt about sport because sport unites everybody, not just in terms of our ability to celebrate but in terms of our health. I ask the Minister of State to take a generous view in that context. I do not know whether the Minister of State has commented on amendment No. 41 as I was not in the Chamber so I will hold my fire on that one for the moment.
I support my colleagues. I spoke at some little length on this matter on Second Stage. Senator Hannigan had it absolutely right, particularly with regard to the fact that the Minister of State said it was not his intention to expand or dilute. However, he has done so because sport previously had a capacity to raise funds. It was not precluded but now it is specifically precluded so there is a limitation process going on.
All my colleagues raised the issue of capital expenditure and I made the point on Second Stage with regard to sports instructors. I am not sure if my colleagues have made the point while I was out of the Chamber but this seems to be discriminatory in terms of tax relief because only the larger bodies such as the GAA and the IRFU will be in a position to attract this tax relief because they will be the ones that are involved in large capital expenditure such as for new stadia and they have already benefited considerably. However, I would be concerned about the smaller, local organisations because they will be completely whacked. They will be deprived on both fronts. The Minister of State's party used to talk a good deal about the plain people of Ireland but it is the plain people, the ordinary people, the people in the little local areas who will be damaged by this legislation and that is very regrettable.
I strongly support this amendment. I refer to the briefing document about which I have a reservation. It deals with the stinginess of the Department of Finance which is legendary and trying to reassure the Department of Finance by saying that by including sports within this Bill, it would be a means of attracting money which is currently going to other charitable organisations. This is the weakest argument I have ever heard. I do not want charities poaching from each other and I do not think we should seek to reassure the Department of Finance that, for example, a local hurling, football, camogie, hockey or rugby team or any other kind of team sport can get money that would otherwise go to Concern, Hope, Trócaire or such groups. That is a very weak argument and I do not like it. The argument may appeal to the Department of Finance but it sure as hell does not appeal to me.
I look forward to the Minister of State's response to these amendments because I know he is keenly conscious of the importance of the sports organisations, their value within and the contribution they make to communities. One could go so far as to say that without many of these sports organisations, communities would certainly be very impoverished. They also play a very distinctive social role because it is through those organisations that young people are gainfully occupied and they learn team spirit which often spills over into other aspects of community activity. Anti-social behaviour exists on the periphery of life and sport helps to ensure that this behaviour does not expand. The focus on sporting fitness can help keep young minds from thinking about alcohol and drugs. A person who wants to be supremely fit will not succumb to abuse of alcohol or other types of drugs. All the points made regarding the unifying effects of sport are important. Anybody who has seen their local club advancing in a championship and sees a whole village or town following that team will know that the team becomes the focus of the community and the focus of the very essence of community. This is an important value to have and if this value is removed, there is less cohesion within the community. Sports make a contribution to the economy because hurleys and sports gear must be produced and sold.
It is a different issue in the case where sport has become a commercial pursuit. They are then charging for their services and are able to provide themselves with whatever finances are necessary. It is important to make that distinction. I hope the Minister of State in his reply will be able to point to sections of the Bill which show there is accommodation for some of the points raised.
Prior to the publication of the Bill there was an extensive consultation period. The question of sporting bodies attracting charitable status did not emerge at that stage as a matter of any concern. The issue of sporting bodies being eligible for charitable status only emerged in recent weeks and this is surprising in some respects. I have a great appreciation of and involvement in sport. I am not disputing the positive impact it can have. There are many local sporting organisations which I personally support and know their impact. Whether it should be regarded as a charitable purpose is another matter.
Approved bodies within the meaning of section 235 of the Taxes Consolidation Act 1997 are not to be regarded as charitable organisations for the purposes of the Charities Bill. The advancement of sport is not included as a charitable purpose. The Bill seeks to retain the charitable purposes that have developed in common law over many years which form the basis for decisions made by the Revenue Commissioners on eligibility for charitable tax exemptions. The advancement of sport is not currently a charitable purpose in this context. The Bill does not seek to expand or narrow charitable purposes, which adding the advancement of sport would do, but to maintain the status quo.
As I stated on Second Stage, I do not believe considering the inclusion of sporting bodies as charities on the principle basis that a particular advantage might accrue to them under the taxation system is a sound rationale. This is especially the case when, under section 7, the Revenue Commissioners alone have, and will continue to have, responsibility for granting tax exemptions independently of any decision of the proposed charities regulatory authority.
Amendment No. 41 proposes an amendment to tax legislation. The Minister for Finance is responsible for tax law and I could not accept that amendment in this House.
In recent days I have had significant contact from various sporting organisations on this matter. Many of them felt the reason they wanted charitable status was because their tax situation would be somewhat different. That is not the case. From a practical point of view, if this amendment were accepted, sporting organisations which would fall under this regulation would have to comply and submit reports and returns in a way they traditionally might not have done.
Senator Hannigan claimed this was going to be the way for all and ever. That will not be the case. This legislation does not aim to broaden or narrow the boundaries. There will be a mandatory review of the legislation in five years in acknowledgement that what we are trying to do is quite complex. If this amendment were accepted, the next step would be to define what is a sports organisations with a public benefit. Is it, say, the darts team or the GAA club? Having spoken to numerous sporting organisations, their primary concern is that the benefit would be in tax law which this legislation will not address. As this legislation beds in over the next five years before the mandatory review, there may well be substantial changes. Most sporting organisations I have spoken to, including some of the larger ones, realise it is not necessary for the tax benefit provision to be included in the charities legislation.
We are embarking on a legislative process so the consultative process is not binding on anyone. It would be unfair to cast the aspersion that some of the sporting organisations came to this legislation late. Given that there is a mandatory review in five years, what is wrong with inserting the amendments concerning the advancement of sport on the basis that we are broadening the definition to include amateur sporting organisations and the smaller groups to which Senator Norris referred? I have a fundamental concern for these groups. I am not speaking for the umbrella organisations such as the FAI, the IRFU or the GAA because the reports from Croke Park Teoranta last week made great reading. I am concerned about amateur sporting organisations which are amateur in name only but professional in their output and contribution to society.
The Minister of State must accept there is a chasm between what the Government, in the general sense, provides and what these organisations take on. If one were to wait for the Government to provide funding or facilities for sporting organisations to fill this chasm, it would never be filled and we would have social disintegration. I say that as someone involved in one of my local sporting organisations. Rather than divide the House on a good Bill, why can we not provide for this now and review it after five years?
I am glad to learn the Minister of State has been in contact with many sports bodies. Some of them are coming quite late to the party and have just realised this legislation is imminent. I have been receiving e-mails on this subject from sports bodies over recent weeks. The most recent was three hours ago from the Federation of Irish Sports which represents 60 bodies. It is still pushing for tax relief for non-capital schemes. I accept the Minister of State and his officials have probably spoken to more sports organisations than I have. However, I will reserve the right to table another amendment on Report Stage.
Senator Buttimer's suggestion seems sensible. If this legislation is to be reviewed in five years, we can remove this exclusion of sports bodies and see what way the land lies in five years. If there is evidence it is not working, then it can be removed. It should be inserted now and meet all our needs.
I agree with Senator Hannigan. The mere fact that organisations have raised their concerns late in the day is hardly worth mentioning. The issues they have raised must be addressed on their merits. Is the Minister of State assuring us this proposed exclusion of sports bodies will not impact in any way on the current situation? This was the reason for my tabling amendment No. 41. I anticipated what the Minister of State would say on it, given that it relates to tax matters. Article 21 of the Constitution provides that Seanad Éireann can merely make recommendations on money Bills. It seems we have gone a little too far in excluding the possibility that we might make amendments that have financial implications.
The Minister of State claims he cannot accept amendment No. 41 because it is a matter for tax legislation. The purpose of the amendment is to amend section 847A of the Taxes Consolidation Act 1997 which provides relief in respect of donations which are made towards approved capital projects for sports bodies. This amendment would amend the section to ensure donations which are made in respect of non-capital projects can avail of the same tax relief as those which are made for capital projects, while also being subject to the same conditions. The Minister of State may take the view that there is a separate regime provided for sports and that it is operating effectively. The reality is that section 847A of the Taxes Consolidated Act 1997 is a restrictive form of tax relief for sports organisations. One has the absurdity that tax relief on donations is available in respect of a sports club which secures ministerial approval or designation regarding the planned construction of a sports hall but that tax relief would not be available in respect of donations towards the engagement of a sports coach. That is clearly anomalous.
It is a matter concerning tax legislation but also concerning the question of whether and how sports bodies should enjoy charitable status and get tax exemptions or relief in respect of donations. I ask the Minister of State for the assurance that the proposed exclusion of sports bodies will have an impact on how decisions are taken in respect of tax relief on donations to sports clubs, in a way that is not happening at present. We have the opportunity to set a standard. As Senator Hannigan has pointed out, this legislation will be reviewed in five years' time so this logic applies in support of the deletion of the exclusion of sports bodies.
It is not just a matter of tax relief, it is a matter of giving legitimacy to sporting organisations and to the activities they have under way, and to give them a profile and cachet when they seek support of kinds other than those involving tax relief.
The Minister of State has pointed out that the purpose of this legislation is to update and upgrade what could be considered archaic legislation. It is evident that all speakers appreciate what the Minister of State has done. He has listened carefully to the many points that arose, not just in the consultative process but also in respect of points that were parked over the years. The consultative process is an important element in the legislative process. The consultation process for the Charities Bill was very broad and is ongoing. It is significant that sporting bodies did not arise in this context but the five year period gives us an opportunity, bearing in mind the number of years we have had to deal with this situation, to bring the legislation to this point.
If we open up the possibility of seeking definition, we would have to rebuild a major part of this Bill. Many charity organisations I spoke to are looking forward to the enactment of this as quickly as possible. One of the great assurances given to us on Second Stage was that existing charities will automatically transfer to the new regulatory body. This means that there will be no backlog and existing charities will not have the same administrative requirements as new charities.
The Minister of State makes the point that one might impose on existing sports bodies a whole new administrative requirement to fulfil the obligations of the status. There are many more issues involved than our idealistic one, which is the importance of sports bodies to the community. They serve a major community purpose in this regard. The Minister of State will consider what is proposed. I would not like to see this opening up, particularly when there has been such cross-party support for the Bill in both Houses. I would not like to slow down the process too much.
I refer to amendment No. 41. It is not that, as a member of a sports club, I would be unsympathetic to having a more favourable tax regime but this is not the way of doing it. It is a tax law that must be addressed. The Charities Bill makes the distinction between the two separate functions of Revenue and the charity regulator. In this amendment we do not have that.
Senator Hannigan referred to receiving e-mails up to recently. I received the same. I rang a number of people to discuss this, ranging from chief executive officers and directors to development officers on behalf of the organisations. I do not want to put down public consultation but many organisations had not gone into this matter in depth. I spoke to people within organisations and I tried to tease it out to see if we were missing something or if we were causing real problems. I was concerned and I spoke to many people on this.
On the principled basis that a tax advantage might accrue under the taxation system, it is not a sound rationale for inclusion of sporting bodies as charities. Senators have suggested that we include them and then exclude them in five years' time if it is not working out. If we remove the automatic exclusion, every club in the country is obliged to register as a charity. With that would come responsibilities that clubs do not have now. Sporting bodies would be subject to additional regulatory scrutiny and would have reporting requirements they do not have now. We would impose this on them according to their activity. From the range of people I have spoken to, at the moment the primary interest in this legislation is tax.
The legislation is such that activities that are advanced as charitable purposes would have additional reporting responsibilities that do not apply at the moment. Charities have been unregulated in the broad sense for a long time. We are trying to preserve the status quo and to recognise the situation as it is, knowing that it is evolving. That is the reason for the mandatory review within five years.
Lest Senator Ó Murchú get it wrong about this side of the House, we are fundamentally in favour of the principle of the Bill. Sport plays a key role in the community but, under this legislation, we are precluding sport and sporting organisations from seeking charitable status.
I have a question for the Minister of State, the answer to which I half know. I refer to the status of Special Olympics Ireland, which organises the Special Olympics. The organisations that come under that are charitable organisations, such as the Cope Foundation in Cork. Do they have exemptions even though they are not capital projects? I would like the Minister of State to clarify that.
The current legal position is that sporting bodies can apply for charitable status. By virtue of this Bill being passed, they will be precluded. That is a form of discrimination.
Regarding the imposition of the reporting procedure, Bishopstown GAA club held its annual general meeting last Friday night. We have a very good treasurer in Jim Collins, who is very sincere in what he does. We sent our treasurer's report to accountants to be regulated and audited. Sporting clubs would not have a difficulty in being included in this in terms of reporting. There must be regulation of all bodies in respect of handling money. That is a spurious argument although I know where the Minister of State is coming from.
We are talking about the advancement of community. The Minister of State and Senator Hannigan referred to the Federation of Irish Sports. That body appeared before an Oireachtas committee this year. It is a vibrant group with great ideas, representing sporting organisations of different types. I do not know why it would be so exercised about something if its members were not passionate and did not have legitimate concerns. They would not waste time and energy meeting the Minister of State and appearing before the committee if they did not have legitimate concerns. They do, and I do, as a sports person. We are talking about the benefit of community. We are not talking about regulation. We all accept the principle of regulation and we all welcome the Bill, however we are precluding sporting organisations, which is wrong.
I hear the Minister of State's arguments and there are reasonable arguments on both sides. What mischief would result from accepting amendment No. 6 and removing the exclusion of bodies "established and existing for the sole purpose of promoting an athletic or amateur game or sport" from the remit of the legislation?
As I said, if that was removed there would be an obligation on every sporting body to register and be subject to all the regulatory control that goes with that. In reply to Senator Buttimer on the Special Olympics, any organisation that has a charitable status would retain that. Many sporting clubs that might have charitable status, for whatever reason, can also have it for the activities in which they are engaged, for example if they are dealing with disadvantage or if they establish a trust to do something. Different organisations develop in different ways. I re-emphasis that the primary focus of the legislation was to maintain the status quo, to regulate what has evolved through common law and which is effective, knowing it is an evolving situation with a mandatory review.
Perhaps the Minister of State will assist me, and I hope I do not misunderstand things too badly. Removing the exclusion would leave the Bill silent on this issue. How can such silence require all sporting bodies to register? Surely those sporting bodies that wish to avail of certain status would be required to register in that situation. I do not ask the Minister of State to specifically include sporting bodies, as per the other amendment, but to remove their exclusion. It would make the Bill silent on the question of sporting bodies. Is the Minister of State really saying that if the Bill is silent on this, it would automatically create an obligation on all sporting bodies? I do not mean my use of language to be pejorative. I do not believe that is what he means.
Following from Senator Mullen's point, what if we return on Report Stage with an amendment stating an included body can include a sports body if it fills in the necessary forms and provides the necessary accounts? Would the Minister of State be happy with that or does the issue go beyond the concept and principle of having a sports body as a charity?
Revenue practices exclude sport but common and statutory law does not. We do not want to divide the House on this. If we could get a guarantee, we would be happy not to press the amendment. I cannot comprehend the reticence and reluctance regarding sport. It is a fundamental flaw in the Bill. We are penalising sporting organisations. That is the fundamental point.
I listened with great interest to the debate over the past hour, particularly on those amendments. One would wonder why the Minister of State excludes sporting bodies. There must be a reason. Is it a financial reason because of the amount of money that may flow into sporting bodies if they availed of tax relief? The Minister of State could qualify it. It would be a shame to divide the House on this. It is a very important issue and everybody is at one on those amendments. The Minister of State could qualify the sporting organisations to at least local level. He could name some of the sporting organisations. It might be unfair to name them and perhaps that is the kernel of the problem he faces. There must be some problem, whether with the Department of Finance or another Department. I do not know. However the bases of the points made by the Senators are very good.
The Minister of State could quality this to say the local or lowest level of sporting organisations could avail of charitable status. Some local sporting organisations will come under severe financial difficulties in the next few years and will find it very difficult to survive. Something could be done in this Bill. The Minister of State said the financial area and the finance that could accrue to those sporting organisations from the tax relief is not the perspective from which we should look at it, but that is the perspective from which everybody is looking at it.
That is the point. I have spoken to many of the groups and they genuinely believe there would be a change in their tax status and that revenues would accrue to them that they would not otherwise get. That is not the case. As I emphasised at the beginning, we are trying to maintain the status quo. I have a great sympathy and passion for sport, but the Bill reflects the status quo. I am conscious that we have a mandatory review because I suspect circumstances will change substantially over five years.
The Dail Divided:
For the motion: 23 (Dan Boyle, Martin Brady, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, Déirdre de Búrca, John Ellis, Geraldine Feeney, Camillus Glynn, Cecilia Keaveney, Terry Leyden, Marc MacSharry, Rónán Mullen, Brian Ó Domhnaill, Labhrás Ó Murchú, Denis O'Donovan, Fiona O'Malley, Ned O'Sullivan, Kieran Phelan, Shane Ross, Jim Walsh, Diarmuid Wilson)
Against the motion: 16 (Ivana Bacik, Paul Bradford, Paddy Burke, Jerry Buttimer, Paudie Coffey, Paul Coghlan, Maurice Cummins, Frances Fitzgerald, Dominic Hannigan, Pat Moylan, Nicky McFadden, David Norris, Joe O'Reilly, John Paul Phelan, Eugene Regan, Brendan Ryan)
Tellers: Tá, Senators Diarmuid Wilson and Déirdre de Búrca; Níl, Senator David Norris and Ivana Bacik.
Question declared carried.
Unfortunately, we are maintaining the status quo. In an effort to be helpful, I highlighted that provision is made in the legislation for a mandatory review within five years.
I do not want to divide the House on this amendment but the issue is the benefit that would accrue to sporting organisations. By including them in the legislation, it will enable them to attract money from whatever source, some of which will be given to other charitable organisations. Such funding attracts tax relief for the charitable organisations I mentioned. There will be no loss to the Exchequer if sports are included in the Bill. I understand what the Minister of State said about Revenue, the Taxes Consolidation Act and the Department of Finance, but the amendment will make no appreciable difference to the Exchequer or the Revenue and it would enhance the participatory work done by sporting organisations on the ground. In particular, the Federation of Irish Sports has met every Member and its representatives would not urge us to include sports if they felt it would not benefit them. I understand where the Minister of State is coming from but I appeal to him not to divide the House on this.
I am not happy that I received a satisfactory answer to my question. If the exclusion of sporting bodies was removed through the amendment and the Bill was silent on the issue, what mischief would that cause? The Minister of State said he is protecting the status quo but sporting bodies have applied for and enjoy charitable status. Will new organisations, clubs and associations coming on stream be unable to avail of a recognition that is currently available to certain bodies if the exclusion in the legislation is retained? Is the Minister of State retaining the status quo in the sense that he proposes to exclude certain bodies from accessing a benefit that is potentially available to organisations in existence?
Senator Mullen has put his finger on the nub of this issue because the Minister of State has given the impression that a sporting organisation that is not granted charitable status will not be at a monetary disadvantage. Surely the excluded organisations will be at a disadvantage because those included will have a greater opportunity to obtain funding from people who can avail of a tax break. Is that not the reality? According to what the Minister of State said, excluded bodies will not be at a great disadvantage.
There is a misapprehension that by automatically being included as a charity, one's tax situation will change. It will not. There is a clear distinction in the legislation. Anyone who currently enjoys tax status with Revenue automatically transfers but the majority of sports clubs do not. Those which may do, and which would have a status with Revenue, would have it for a specific activity. In other words, a sporting club would not be precluded from establishing a charitable trust to do one of the things the charities can do. However, it would be precluded for its sporting activity. The emphasis is to maintain the status quo as has evolved through common law.
The Dail Divided:
For the motion: 18 (Martin Brady, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, John Ellis, Geraldine Feeney, Camillus Glynn, Cecilia Keaveney, Terry Leyden, Marc MacSharry, Brian Ó Domhnaill, Labhrás Ó Murchú, Denis O'Donovan, Fiona O'Malley, Ned O'Sullivan, Kieran Phelan, Diarmuid Wilson)
Against the motion: 19 (Ivana Bacik, Paul Bradford, Paddy Burke, Jerry Buttimer, Paudie Coffey, Paul Coghlan, Maurice Cummins, Frances Fitzgerald, Dominic Hannigan, Fidelma Healy Eames, Nicky McFadden, Rónán Mullen, David Norris, Joe O'Reilly, Joe O'Toole, John Paul Phelan, Eugene Regan, Shane Ross, Brendan Ryan)
Tellers: Tá, Senators Camillus Glynn and Diarmuid Wilson; Níl, Senators Jerry Buttimer and Dominic Hannigan.
Question declared lost.
On a point of order, Senator Wilson did rise to raise the question. It is not the Cathaoirleach's fault but because of where his chair is positioned, he cannot see anybody on that side. I do not know what the mechanism is for resolving this.
I made it clear, with respect, that I wished to cause the Cathaoirleach no inconvenience. I merely pointed out to him that at the first available opportunity to me, as Government Chief Whip, I requested a walk-through vote. It is my understanding that there is a precedent for that. I now ask him to look at the situation. If there no precedent, I would be grateful if he would clarify that for me.
Standing Order 61(3) states:
On the announcement by the Cathaoirleach of the result of a division which has been taken by electronic means, any member may demand:-
(a) that the division be taken again by electronic means; or
(b) that the division be taken again otherwise than by electronic means[.]
I had announced the result and had called amendment No. 7. I was moving on.
A Chathaoirligh, there cannot be this ongoing questioning of your authority if this House is to have legitimacy. This is a democracy. Just because one does not like the result of a vote, one cannot start questioning the Cathaoirleach.
I wish to put on record that Senator Wilson did not attempt to intimidate the Chair. Other Members on the Government side of the House did. Senator Wilson behaved with impeccable courtesy in a very difficult circumstance and should be respected for it.
I refer to what you said two minutes ago, a Chathaoirligh. You accepted that if you had seen Senator Wilson rise, although you said you did not, he would have been entitled to call for the vote, as he intimated he intended to do. Therefore, I believe he is entitled to get the vote.
The Government Chief Whip was on his feet. I will explain what actually happened. We accept that you did not see the Government Chief Whip on his feet but we know he was on his feet. Members on this side who have impeccably served this House are saying as much. Can we propose an adjournment for 20 minutes to view the footage and allow you, a Chathaoirligh, to assess the situation?
The Dail Divided:
For the motion: 21 (Dan Boyle, Martin Brady, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, Déirdre de Búrca, John Ellis, Geraldine Feeney, Camillus Glynn, Cecilia Keaveney, Terry Leyden, Marc MacSharry, Brian Ó Domhnaill, Labhrás Ó Murchú, Denis O'Donovan, Fiona O'Malley, Ned O'Sullivan, Kieran Phelan, Jim Walsh, Diarmuid Wilson)
Against the motion: 19 (Ivana Bacik, Paul Bradford, Paddy Burke, Jerry Buttimer, Paudie Coffey, Paul Coghlan, Maurice Cummins, Frances Fitzgerald, Dominic Hannigan, Fidelma Healy Eames, Nicky McFadden, Rónán Mullen, David Norris, Joe O'Reilly, Joe O'Toole, John Paul Phelan, Eugene Regan, Shane Ross, Brendan Ryan)
Tellers: Tá, Senators Déirdre de Búrca and Diarmuid Wilson; Níl, Senators Jerry Buttimer and Maurice Cummins.
Question declared carried.
I move amendment No. 7:
In page 10, line 4, after "activities" to insert "whether in the State or elsewhere".
This amendment seeks to extend the definition in subparagraph (iv) which states "in support of terrorism or terrorist activities". We would like to add the phrase "whether in the State or elsewhere". The Minister of State has seen this amendment before and during discussion in select committee the Minister of State, Deputy Pat Carey, stated:
It is already implicit in the existing wording that the offences relate to such activities anywhere in the world. I am advised that it is not necessary to state this explicitly and accordingly, the amendment is unnecessary.
I am seeking clarification from the Minister of State on this because I have been told that is not the case. The Supreme Court stated during the D case, which was related to the Criminal Assets Bureau, that unless legislation specifically mentioned the rest of the world, it applied only to Ireland. I am willing to listen to the Minister of State's view on this. I am not sure whether the D case was mentioned previously — perhaps the Minister of State already covered this point, but I ask him to clarify it.
I want to speak on this group of amendments. My amendment is No. 14, but clearly amendments Nos. 9, 11, 14, 15 and 16 all seek to do the same thing, which is to place as one of the charitable purposes in section 3(10) the advancement or promotion of human rights. It is an important principle that a purpose that is of benefit to the community should include the advancement of human rights. My suggested way of doing this would be to insert a few words into paragraph (e) of subsection (10) so that it reads "the advancement of human rights, conflict resolution or reconciliation". A number of charitable bodies, and indeed the human rights committee of the Law Society, have recommended that this amendment be made and that the advancement or promotion of human rights be included as a specified purpose beneficial to the community. There are some very good reasons for this.
The Minister of State may say it is unnecessary or that the purposes included in the Bill are sufficient to deal with those charities that work for the advancement of human rights, but it is important to state that explicitly. The Minister of State may also say that section 40 already provides for exemptions in respect of charities that were already entitled to exemptions before the commencement of the Act and where the Revenue Commissioners have issued a number for the exemption. However, the human rights committee of the Law Society has said that this would not be sufficiently inclusive. The problem is that notwithstanding the fact that an existing charity engaged in human rights activities might already be deemed registered, such an organisation might in the future be held to be an excluded body and therefore be excluded as a charitable organisation. The human rights committee — I am sure the Minister of State has seen its recommendations — has suggested that it would be better to include a specific reference to the advancement or promotion of human rights.
In addition, as the committee pointed out, this is a statutory purpose that is specifically provided for in the equivalent legislation in England and Wales and indeed in Scotland, where the description of charitable purposes includes the advancement of human rights, conflict resolution or reconciliation. I understand there is an equivalent protection for the advancement of human rights in Northern Ireland. Considering our obligations under the Belfast Agreement, we should have an equivalence of protection for human rights. For all those reasons it is important that we include a specific reference to this charitable purpose in the Bill.
If the Minister of State is not minded to at least consider the inclusion of this purpose, he might tell us why it is being specifically excluded from the legislation. Is it that the Attorney General, for example, has advised that it should not be included? Given that it is included in equivalent legislation in neighbouring jurisdictions, we need a reason from the Minister of State rather than the all-purpose line that it is unnecessary. For the reasons I have outlined, for those given in the very considered advice of the Law Society human rights committee and for the reasons which, I have no doubt, other colleagues will give, it is important that the Minister at least consider inserting the words "the advancement of human rights, conflict resolution or reconciliation" in the definition of a charitable purpose that is of benefit to the community in section 3(10).
Senator Bacik has anticipated much of what I was going to say and she has done so very effectively. I spoke at considerable length on this subject on Second Stage, as the Minister may or may not recall. I am very worried by this because it seems all of a piece with the Government's attitude towards human rights. As someone who has been in the House for a long time and has worked on the board of a number of the organisations that have protested about this, it appears that it is a specific policy intention of the Government to cripple the advancement of human rights. Every single time it comes up, there is an attempt to limit, to obfuscate or to remove funding. Here, organisations that work for the advancement of human rights are being defined out of an opportunity to gain charitable funds.
The Law Society is a serious professional body. If it takes the trouble to communicate to Members of the House that this is a serious gap, the Minister of State is obliged to listen. This is a very different matter from fiddling around with collection boxes on O'Connell Street, which the Minister put forward as a major advance this morning. The Government will not get away with that little bit of persiflage. The Law Society, as Senator Bacik indicated, already raised this matter as long ago as 2002 in a report entitled Charity Law: The Case for Reform, in which it endorsed a definition put forward by the Charities Definitional Inquiry in Australia, which it said was an appropriate thing to include. The Minister of State has excised the human rights provisions from this Bill.
The society makes a series of other points. The definition is not recognised. It provides scope for the recognition of the promotion and protection of human rights as being beneficial to the community at large. Is it not? Is the Government prepared to be quite so cavalier about the issue of human rights that it does not regard it as beneficial? Does it regard it as beneficial? If so, what is the difficulty with including it in this legislation?
The definition has potential to prevent the development of new charities. The Minister of State has said that some of the old ones might squeak through but that is hardly a very enlightened view and it certainly places any new ones in a very serious and difficult position. It could have a detrimental effect on the charitable status of existing charities. Section 40 provides that:
A charitable organisation in respect of which-
(a) there was immediately before the commencement of section 39 an entitlement to exemption under section 207 or section 208 of the Taxes Consolidation Act [and]
(b) the Revenue Commissioners had issued a number ... for the purposes of such exemption,
shall, subject to section 44, be deemed to be registered in the [Register of Charities] for so long only as there continues to be an entitlement to such exemption.
A registered charitable organisation is now being defined to be an organisation that is actually registered in the register or that by virtue of section 40, is deemed to be entered in the register. However, "charitable organisation" is expressly defined in the Bill and is stated not to include an excluded body. That is fairly obvious. How could it include an excluded body? Excluded body in turn is defined to mean among other things a body that promotes a political cause unless the promotion of the cause relates directly to the advancement of the charitable purposes of the body. The consequences of these provisions is that notwithstanding the deemed registration of an existing charity engaged in human rights activity, the organisation might at some future time be held to be an excluded body and, by definition therefore, not a charitable organisation.
The human rights committee goes on to say it is aware that the current proposed definition uses the word "includes" rather than "means" and that this leaves open the possibility that the promotion and protection of human rights could be held to be of benefit to the community at a later date, which is an argument the Minister of State made. However, the promotion and protection of human rights is included in the statutory definitions of charitable purposes in many other jurisdictions, including England and Wales, Scotland and Australia.
It did not at that point mention that it is also included in Northern Ireland. The exact wording in the Northern Ireland legislation is, "a purpose that falls within this subsection if it falls within any of the following description of purposes ... the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity". There is the exact parallel in the Northern part of this island over which this Government until recently claimed jurisdiction and it is apparently its ambition to reunite the island. It is not doing a very good job of it if it is turning its face against respect for human rights in this part of the island at a time when in the Northern part of the island, they are clearly doing so.
This is the most serious matter in the entire Bill. It is unlikely to be greatly covered in the media, thanks to the triumph of Senator Hannigan here today——
——and the misery of the Government benches. I really regard this as fundamental and should this not be included, it will be a disgrace and a very black day for this Government. It will be seen as all of a piece with the miserable, cynical attacks on the Combat Poverty Agency, the Equality Authority and the human rights commission. The human rights commission was established in direct parallel under the Good Friday Agreement which Senator Bacik has so correctly invoked with regard to the human rights aspects of this legislation. The human rights commission has been neutered by this Government while, across the Border, they are enhancing it. This is a serious matter and will send out a terrible signal. Many of us will do our very best to highlight the Government's position on this issue in the media if it does not include it. However, if human rights is included, we will be quite happy to celebrate with the Minister of State.
The fundamental question is why the Government is excluding the advancement and promotion of human rights. As on Second Stage, we have not been given a clear meaningful answer. Is it the case that the Government is afraid of some of the organisations that are promoting human rights? Is the Government afraid that organisations will continue legitimately to raise concerns and advocate the promotion and advancement of human rights? It is not acceptable that the promotion or advancement of human rights should be denied in the Bill.
Section 3(10) refers to the advancement of community welfare, community development, the promotion of civic responsibility, the promotion of health, advancement of conflict resolution and reconciliation. Human rights could be included with these as an addendum. The section includes the promotion of religious or racial harmony and harmonious community relationships, and the protection of the natural environment. During the passage of the Bill through the Dáil, the Minister of State introduced the promotion of environmental sustainability. He has also included a whole list. He has included the prevention and relief of suffering of animals.
We are now faced with the situation where human rights are being explicitly excluded from the Bill. What happens in 20 years' time when we are no longer Members of this House and a new organisation wants to start up as a human rights organisation? If human rights are not the same as they are today, what happens then? There is a need for transparency and openness.
The Minister of State when speaking on the previous amendment said that there will be a lead-in period of five years and a review clause. Why can this provision on human rights not be inserted now at the beginning when we have a clean sheet? We should not be saying that the promotion of human rights is not what this Bill is about. We should be advocating the promotion of human rights and that it should be named as a charitable purpose.
It was indicated previously that the exclusion of this section of the Bill will not deter existing charities whose focus is the promotion of human rights from being recognised as a charity. What about the organisations which will be established in the future for that purpose? I cannot comprehend and I have yet to hear a clear, valid and cogent explanation why the Minister of State is rejecting this amendment. The provision is included in the English and Scottish legislation and I question the reason it cannot be done in this country.
From the research undertaken by me and the Fine Gael research officers, when the heads of the Bill were originally drafted, the advancement of human rights, social inclusion and social justice were included but then they were removed. Why are we afraid of the broader definition and why are we preventing the inclusion of human rights? Senator Norris may be right that Government wants to neuter human rights and wants us all to lie down and accept that the Department of Foreign Affairs or the Department of Justice, Equality and Law Reform are the primary bodies. If that is the case, we are not having promotion and advancement of human rights but rather restrictive practices and denial.
On the Order of Business this morning, Senator Norris raised an interesting case about human rights. Lest we lose the run of ourselves, this is about people. It is about advocating for the good of people. I have a fundamental and core belief that if in doubt, we should leave it in.
I am speaking on the section and I will go back to it. The Senator is a section on his own. There is consensus on this side of the House on 85% of the Bill's provisions. What is the Government afraid of when it comes to human rights? A five-year review mechanism is built into the legislation. The Law Society of Ireland and other groups have come to us with legitimate concerns, requesting the inclusion of the promotion and protection of civil and human rights. I do not see why this cannot be the case. Fine Gael will be supporting this Labour Party amendment and intend to press it.
One must look at the organisations that will be excluded, such as the Irish Council for Civil Liberties, Amnesty International. These bodies, while supportive of the Government in some instances, have been critical of it in the past. It appears there is an attempt to muzzle the voice of legitimate criticism.
Among the organisations this applies to, section 3(10)(j) includes organisations involved in "the prevention or relief of suffering of animals". I am all in favour of that but it is a curious Government that puts the civil rights of animals above the civil rights of human beings. That is what this legislation does. It is absurd, unless the Minister of State is saying humans are animals and, as animals, we could say we are looking for our animal rights. Most people would think that a step down. I am not sure if it would be a step up because there are many instances in which the human has proved himself or herself or itself to be the most nasty and destructive of all the animals. It is absurd that we are prepared to protect animals but not human beings. What is the problem with human beings?
The closest to the recommendations of the Law Society of Ireland that Senator Bacik has so effectively quoted is amendment No. 15 because the words are almost identical: "the promotion and protection of human rights". It is also the closest to the same provision in the other jurisdiction. I urge the Minister of State to take this on board because, otherwise, I believe his reputation will suffer.
On Second Stage and in today's contributions, much has been read into the fact that human rights and social justice have not been included specifically as charitable purposes in the Bill. I want to allay the concerns that the Bill is seeking to diminish human rights organisations operating in the State.
The charitable purposes, as set out in section 3, reflect those that have emerged in common law in this country over many years and which form the basis for decisions by the Revenue Commissioners in determining eligibility for charitable tax exemptions. The Bill, as I stated earlier, is neither seeking to narrow nor to expand these charitable purposes.
The actual position is that human rights and social justice are not currently considered charitable purposes. No organisation has been granted charitable tax exemption under section 207 or 208 of the Taxes Consolidation Act 2007 on the basis that it is a human rights organisation. Some organisations that might be commonly regarded as human rights organisations have been granted charitable tax exemptions in the context of the charitable purposes relating to education or poverty rather than as human rights bodies. Any such organisations that are currently registered with the Revenue Commissioners would be automatically deemed to be registered under section 40. There is no intent in the Bill to create difficulties for human rights organisations operating on the ground.
Many of the other charitable purposes in section 3(10) are closely related to human rights such as the prevention of human suffering — Senator Norris was quick enough to refer to the animals — the advancement of conflict resolution and reconciliation, the integration of those who are disadvantaged and the promotion of their full participation in society. I appreciate the passionate contributions of Senators on this matter but the Bill simply maintains the status quo as regards charitable purposes. It does not impact negatively on human rights or social justice organisations. In that regard, I cannot accept the amendments.
An issue similar to that raised in amendment No. 7 arose in the Dáil's consideration of the Bill. My legal advice is that such an amendment is not necessary. It is already implicit that the clause applies to such activities in any jurisdiction. I will, however, recheck it with the Attorney General to clarify the position.
Senator Bacik referred to organisations being deemed as charities and then losing their status. As long as they are engaged in what are defined in the section as charitable purposes, that will not happen. If they do, there is an appeals mechanism to the tribunal and subsequently to the High Court. The organisations currently operating in the State will maintain their status. The purpose of this legislation in regulating a whole sector for the first time is to maintain the status quo.
Like so many others I have welcomed this Bill. As I pointed out on Second Stage, it is much needed and the charitable sector does require regulation. For far too long, there has been inadequate regulation. The Revenue had to step in and take over a role for which it was not designed. As Senator Buttimer stated, most of the Bill's provisions are supported by the Opposition. This is an important section and the Minister of State's response is not satisfactory. There are five different amendments all seeking in one way or another to insert the purpose of protection or advancement of human rights as a purpose beneficial to the community in a charitable purpose. The fact that it is left out of this Bill when it is included in the legislation in neighbouring jurisdictions requires further explanation.
The explanation given by the Minister of State, with respect, is a reference to the common law and the tradition that this is not regarded as a charitable purpose. The current regulation of charities is most unsatisfactory. The common law on charitable purposes is long outdated and requires statutory change. This Bill provides for the first time a proper and adequate statutory framework. It is not enough to refer to common law definitions of charitable purposes as a reason we should retain the status quo. The Bill's purpose is to ensure more adequate regulation.
Section 40 does not cover those bodies which are already in existence advancing human rights. The Minister of State claimed they may become deemed bodies. That will only cover those bodies already in existence. It would not cover organisations that might be established soon or in the future.
Regarding a body which attains the deemed status under section 40, the problem the Law Society of Ireland identified is that a body could lose charitable status and become designated as an excluded body if it is deemed to promote a political cause. There has been a problem in the past for charitable organisations with the thorny definition of what constitutes a political cause. One of the definitions of an excluded body in section 2 is a body "that promotes a political cause, unless the promotion of that cause relates directly to the advancement of the charitable purposes of the body". That is a rather circular definition.
If the charitable purposes or purpose that is of benefit to the community is not broad enough to cover the advancement of human rights, many bodies which many of us would regard as human rights bodies, might be seen as promoting political causes which do not relate to the advancement of charitable purposes because charitable purposes do not include human rights advancement. There have been difficulties in the past for human rights organisations where they have been deemed by the Revenue to be involved in political activity. There have been difficulties with the legislation governing political donations, something that is slightly under the radar but which is of major concern to many groups campaigning on human rights issues in Ireland in the past and at present. The Minister of State referred to legal advice in response to Senator Hannigan's amendment No. 7. I ask the Minister of State to tell us if he has legal advice on the reason for excluding advancement of human rights. Is there advice from the Attorney General or another Government adviser that it would be inappropriate or problematic to include this definition in section 3(10)? I do not see how it can be, given the legislation elsewhere and the reasons I and the law society have advanced. I ask the Minister of State to inform us if he has this advice.
The Minister of State gives the impression that to include this would be to include a new body, idea or concept. I ask for clarification. The section, as proposed in the Bill, reads:
(10) In this section "purpose that is of benefit to the community" includes—
(a) the advancement of community welfare including the relief of those in need by reason of youth, age, ill-health, or disability,
(b) the advancement of community development, including rural or urban regeneration,
(c) the promotion of civic responsibility or voluntary work,
(d) the promotion of health, including the prevention or relief of sickness, disease or human suffering,
(e) the advancement of conflict resolution or reconciliation,
(f) the promotion of religious or racial harmony and harmonious community relations,
(g) the protection of the natural environment,
(h) the advancement of environmental sustainability,
(i) the advancement of the efficient and effective use of the property of charitable organisations,
(j) the prevention or relief of suffering of animals,
(k) the advancement of the arts, culture, heritage or sciences, and
(l) the integration of those who are disadvantaged, and the promotion of their full participation, in society.
I did not read this out to be tedious but to indicate the textual nature of what confronts the House. I do not believe this precise formula has occurred in legislation before. Can the Minister of State tell me if it has and, if so, where? For example, environmental sustainability is a comparatively new concept. I do not believe it was included before. Will the Minister of State be kind enough to show me in previous charitable legislation, or anywhere else, where exactly this formulation exists? If he cannot, it is obvious that the formulation has been changed, concocted or dreamt up and there is a precise intention to exclude one for political reasons.
Another example is racial harmony. Ten years ago, this was a completely homogenous society and we would not have been thinking about racial harmony. It is absolutely appropriate that we should and I welcome it, but new concepts are being included in this.
The point made by Senator Bacik is a good one. I am not sure if I referred obliquely to the political purposes but I would like to expatiate on it. Senator Buttimer referred to a case I raised this morning. There is a direct Irish involvement in it but there is a more significant one reported in the columns of The Irish Times today. Without being tedious, I wish to put on the record this story about a Zimbabwean activist. This House passed a composite motion on Zimbabwe that was ably advocated by all of us, including Members on the other side. The article states:
Leading Zimbabwean human rights activist Jestina Mukoko was abducted from her home at dawn yesterday by a group of armed plain-clothes men who identified themselves as police. Her whereabouts are now unknown. Ms Mukoko, who visited Ireland in May as a guest of Trócaire, is the national director of the Zimbabwe Peace Project, a local human rights organisation that is involved in monitoring and documenting human rights violations.
She was snatched from her family in the early hours of the morning by a mob, consisting at its core of armed Zimbabwean police officers. This is a pattern. The article continues:
Both Trócaire and Amnesty expressed concern for Ms Mukoko and demanded her release. Lawyers are going from police station to police station looking for her.
"The abduction or arrest of Jestina Mukoko is part of an established pattern of harassment and intimidation of human rights defenders by Zimbabwean authorities in an attempt to discourage them from documenting and publicising the violations that are taking place," Erwin van der Borght, Amnesty International's Africa programme director, said yesterday.
Amnesty International is in the centre of it. Will Amnesty International be in the same position after this? Every year, I go to a remarkable breakfast function, where Frontline, which sprang from Amnesty International, celebrates the extraordinary heroic courage of people in extremely difficult circumstances. This includes people in the Middle East and the Congo. There is a risk to their lives and several have gone back and disappeared. That is a political objective and it is one that the President of this country is happy to honour with her presence.
Members of the Government, including Ministers, queue up to be photographed at this event, yet the organisation is in serious difficulty as a result of this legislation. Does the Minister of State purport to know more about the best interests of human rights organisations such as ICCL, Amnesty International, Human Rights Watch and all those that have been listed, that have lobbied us and that have flatly contradicted every statement of the Minister of State on this matter? Does the Minister of State purport to know more on this subject than the human rights committee of the law society? That absolutely beggars belief. From where is the pressure for this exclusion coming?
The Minister of State does not propose to accept amendment No. 7 but I understood him to say that he would consider it further and have regard to some of the recent judgments of the Supreme Court, particularly the D case to which Senator Hannigan referred. It is important that the Minister of State considers this between now and Report Stage. Perhaps he has indicated that he will do so. It may be that he is wrong that it is not necessary to specify in the Bill that there is an extra-territorial application.
Regarding amendment No. 9, I thought that when the Minister of State came back on Committee Stage he would give us a reason, but he did not do so. I do not suggest the Minister of State is behaving childishly but sometimes one asks a child why he or she did something and the child replies "Because", and one asks "But why did you do it?" and the child replies "Because". That is what the Minister of State is doing. His answer to "Why are you not doing it?" is "I am not doing it." It is ludicrous and absolutely no explanation has been given. It is not as if, as Senator Bacik stated, the explanation is unsatisfactory; there is no explanation. The explanation is that he will not do it. I respectfully say that the Minister of State must do better than simply say "I am not doing it because I am not doing it."
The Minister of State refers to the common law tradition and to the fact that this area of law extends to the 17th century. I made that point on Second Stage. We are legislating here. The whole point is that we have an opportunity to legislate and make the law. If we were to leave it as it is, in terms of what the common law says, we would not have to legislate. That is a self-defeating argument. We could just not bother codifying the law in legislation and rely on authorities in the common law. That is not what the Minister of State is doing. He is legislating and we welcome the fact that these matters are put into legislation. This is a perfect opportunity to put down, in black and white, what the law should be. To say that we are deriving this from the common law is close to a nonsensical argument.
The Minister of State relied on the argument that he wanted to assure us that no attempt was being made to diminish the role of human rights or human rights organisations. We must examine the Act and remind ourselves of the specific provisions of section 3, which deals with the definition of a charitable purpose, which it lists under paragraphs (a) to (d). In subsection (10) it lists the items deemed to be a "purpose that is of benefit to the community", but this does not include the advancement or protection of human rights. That is a deliberate exclusion of it. It was raised on Second Stage and on Committee Stage by amendment.
The Minister of State has the opportunity to include this amendment but says he will not for reasons that are unclear. That is worse than its absence. He is declining to include it. To someone reading the legislation, that can only mean that the view of the Government, and the Oireachtas if it passes this, is that the advancement and protection of human rights, which has been proposed in various formulations in the different amendments, is not a purpose of benefit to the community. That is the effect of the Oireachtas failing to accept the amendments proposed by Fine Gael, the Labour Party and the Independent Senators. Whether the Minister of State likes it or not and while he thinks he does not want to diminish the role of human rights, it will state clearly and for all time that the Oireachtas does not believe the promotion of human rights is a purpose of benefit to the community. If I am wrong on that, I would like to be told how I am wrong.
The Minister of State makes a curious argument, and some of my colleagues on the Government side also raised this on Second Stage. There is a vague suggestion that human rights can find its way into one of the other subsections, that it is not stated clearly or manifestly but one just has to look for it. This was not suggested by the Minister of State but by a colleague on the Government side. This suggestion that there is another way of solving this problem than putting it into legislation is slightly less than honest. What is that other way in which the issue is addressed in the Act? It is not addressed in the Act but excluded, deliberately, knowingly and, it would appear, advisedly. It is not just forgotten or dropped, but a positive decision has been made to exclude it.
The Minister of State does not need me to remind him and the House that when we talk about human rights as a purpose of benefit to the community, it has very considerable relevance and importance internationally as well as domestically. It is not just a legal issue that there is a body of law on human rights, although that is very important. It is an area of human activity and pursuit which is relatively modern, certainly since the Second World War. The various international bodies seeking to promote human rights and the UN and European Conventions have emerged in the past 50 to 60 years. One would not expect to find human rights in whatever dusty tomes from the 17th century the Minister of State and his advisers looked at. It was not there then. It is a modern achievement — and I emphasise "achievement" — of human activity and ingenuity, not just in law but in practice by people domestically and internationally. Nowhere is it better expressed in the Irish context than in the experience that has grown from the Good Friday Agreement. The promotion of human rights was put at the very heart of that incredible and historic achievement. Still we say it is not a purpose of benefit to the community. It does not add up.
Senator Alex White touched on my first point that human rights are at the core of the Good Friday Agreement. Accepting the Minister of State's bona fides, why does the Minister of State have four organisations, Amnesty International, the Irish Council for Civil Liberties, ICCL, Front Line and Free Legal Advice Centres, FLAC, here at the front line promoting this? Why are we all on this side wrong while the Government side says only that it must do this? There is no legitimate reason.
The Minister of State must consider what Senators Bacik and Norris said about England, Wales, Scotland and Northern Ireland. In England and Wales the lines read, "A purpose falls within this subsection if it falls within ... the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity". In Scotland the description of a charitable purpose includes, "the advancement of human rights, conflict resolution or reconciliation". In Northern Ireland the description includes, "the advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity". I return to my earlier point on section 3(10)(e), "the advancement of conflict resolution or reconciliation". I cannot comprehend why we cannot include human rights.
Ireland has former President Mary Robinson as a beacon of human rights across the world. The Minister of State's party colleague and former Minister, the late Niall Andrews, did so much good work, as did people on this side of the House. What are we saying? What are we hiding from? This year we celebrate the 60th anniversary of the declaration of human rights and in our country, with one stroke of a pen, we say we will not include it in this legislation. If we are serious about this, I ask the Minister of State to accept the spirit of the amendments and include human rights on the next Stage of the legislation rather than dividing the House, which we do not want to do.
The omission of the promotion and protection of human rights will have major consequences for the organisations whose sole operational focus and function is to promote human rights, not just here but abroad. Are we saying the advancement of human rights is not of benefit to the community? In a new, modern Ireland, surely the advancement and promotion of human rights of all our citizens has never been more needed. The other night we saw the "Prime Time Investigates" report on the treatment of our new communities. Senator Norris raised issues in the House today about women and men. That is why I am surprised we are not including the reference to human rights because there is no real reason not to do so. The Minister of State gave no reason. On the previous occasion he was in the House, he did not convince any of us, nor has he today. Given that England, Scotland, Wales and Northern Ireland all include such a reference in their legislation, why can we not do so? What are we afraid of engaging in and bringing upon ourselves?
In case anything new has emerged and in case there is anything further to the latest legal advice I have, I said I would refer amendment No. 7 to the Attorney General again. The advice I have is that the amendment is not necessary, but to be specific about it, I will check it. In section 3, the term "charitable purposes" mirrors the changes that have developed over many years and is used by the Revenue in considering eligibility for tax exemption. Inserting "charitable purposes" in the Bill emerged specifically from lengthy consultations with Revenue as to the charitable purposes they use and, to the best of my knowledge, it has not been stated previously in primary legislation.
I agree with many of the sentiments expressed but the purpose of the Bill was to reflect the current position, and we have done that in a number of ways. We have reflected the criteria used by Revenue. We have adopted a position whereby those organisations currently registered with Revenue would be deemed to be charities. We have provided for an appeals mechanism because of the concerns expressed by Senator Bacik. We know things will evolve and that this was a complex area on which to try to introduce regulation. That is the reason we have provided for a mandatory review.
Some of the issues raised are an attempt to try to extend the definition of "charitable purposes". The Bill clearly identifies those. As I said, the advancement or promotion of human rights is not currently regarded as a charitable purpose per se. Given the activities which organisations engage in, they have charitable status with Revenue. Organisations that have secured a registration number with Revenue will be deemed to be a charitable organisation. The deeming provision in section 39 ensures that organisations currently holding tax exemptions have no need for concern under the Bill.
I acknowledge that the terms "human rights" and "social justice" are not included specifically for the purpose of defining "charitable purpose". The activities which organisations engage in relating to the promotion of human rights, such as the prevention of poverty, the advancement of education, the prevention of human suffering, integration of those who are disadvantaged etc. will continue.
I will conclude by making a point about Amnesty International. The Revenue Commissioners operate a separate exemption for human rights bodies but only for those that have consultative status with the United Nations. To the best of my knowledge, the only organisation that falls within that category is Amnesty International, which will not be adversely affected in any way by the Bill.
I accept that but if the Acting Chairman checks the Official Report he will see that every time I spoke I introduced some new material.
The Minister of State is plainly embarrassed by this. It is obvious from his uneasiness in giving his last few answers. It is obvious to me the Minister did not make this decision. It was made elsewhere or by other people. The Minister is attempting, by reading out a formula from a script, to give some justification for this but there is no justification. I wonder where this instruction came from because it is shameful that this should happen. The Minister has indicated that this formulation is all new and therefore there is no reason he cannot give us an explanation. Was it the Department of Finance or the Revenue Commissioners that gave the instruction?
Yes, any of those people. This House should be given the reasons for it and the advices given to the Minister of State, who is plainly troubled by it.
On other far less significant amendments the Minister is prepared to give a commitment to the House that he will consider them again and take further advice. It is significant that he made no such offer to the House on this amendment. His position was absolute from the beginning and it is not reflective of his general humane concern for issues of human rights, which are known to Members on both sides of the House. I can tell the Minister of State that there are a number of people on the Government benches who are fairly embarrassed by this. Will the Minister of State address those points?
I ask the Minister of State again for a specific response to my question. Does he have advice from the Attorney General on this issue and if the Attorney General has advised against including advancement of human rights in the Bill, what is the reason for that? We deserve to know that rather than having the formulaic answer that this is how it has always been.
The Minister has explained that the work Amnesty International is involved in is covered under this legislation. For the first time the legislation sets out a clear definition of "charitable status". For example, the relief of poverty or economic hardship——
——the advancement of education, the advancement of religion and any other purpose beneficial to the community. That includes issues like community welfare, protection for young people, the old, the ill and the disabled, community development in urban and rural areas, and civic work that comes under our civic responsibilities. The legislation has a wide bearing in terms of the work of many voluntary and charitable organisations——
We are coming at this from slightly different points. Senator White said we are here with a clean sheet of paper and we can go anywhere we want, but the premise behind the legislation was to reflect what is happening currently, and primarily in that regard the Revenue Commissioners were the key people. Most of the discussion on what were deemed to be charitable purposes occurred around what Revenue was doing because we wanted the legislation to specifically maintain the status quo and we have always acknowledged that this was the first step. I do not disagree with what the Senators want to achieve but that was not the thinking behind introducing this measure. The first measure we tried to introduce was legislation to reflect as closely as possible the current position.
The charitable purposes referred to in the Bill came about specifically through lengthy discussions with Revenue. The Bill is to reflect what is happening and not exclude those groups that currently have charitable status. That is dealt with by the word "deeming". I take the point about a group that may lose its status subsequently, but there is an appeals mechanism in place, to the tribunal and the High Court. The Bill was drafted in such a way as to accommodate all the organisations that are——
In that case, could the Attorney General's advice be sought on this aspect? Will the Minister indicate whether he will consider that? We may not press these amendments if he indicates that he will consider referring back to the Attorney General, given that the Attorney General has not had an opportunity to give advice on this matter. It is a matter on which he should give advice.
Without going into the specific point, all aspects of the Bill have been with the Attorney General. It is not as though he is not aware of this, but to go back to the designation of charitable purposes, it came about because the purpose of the Bill was to try to put a structure to what was happening with a view to maintaining the status quo and reviewing within a mandatory period.
The Minister of State has fundamentally misunderstood the purpose and function of Seanad Éireann under the Constitution. We are here to amend and improve legislation, not maintain the status quo, which is an absurd position. I am profoundly shocked to discover that the instructions came from the Revenue Commissioners. We have at last flushed it out. They are not a legislative body and they have exceeded their capacity in this. It is appalling that the Revenue Commissioners, for their own mean-minded reasons, can make such a decision and override the wishes of the Oireachtas. I assure the Minister of State many members of his party would have the same idea.
Will he reserve his position on this? Senator Bacik referred to the Attorney General but I am not sure whether it is possible for us, as Oireachtas Members or as citizens, to obtain access to the advice given to the Minister of State under the Freedom of Information Act 1997 because, unfortunately the Government, in another of its wide-ranging human rights activities, has limited that as well. However, we might try it. Will the Minister of State, given the considerable passion about this issue, which he has acknowledged, give us a similar commitment to those he gave on less significant, although important, issues that he will consider it?
After all, there was a little hiccup earlier, as a result of which the progress of this legislation will not be as rapid as some might have anticipated, and the Minister of State will not hold anything up by asking a few questions. We do not want to be obstructive and we will not put the amendment to a vote if he can give an indication that the matter may be considered. It is a bad day for the country if we can only have legislation as permitted by the Revenue Commissioners who are determined to maintain the status quo. Seanad Éireann, despite its occasional defects, is not a rubber stamp for the status quo. We are here to make improvements on behalf of the citizen to the extent of our capacity.
The Minister of State has still not given a reason this activity is not included. If the legislation was passed by both Houses of the Oireachtas and signed by the President, and Senators Buttimer, Norris, Bacik or myself tabled a similar amendment in six months, would he support that and, if not, why not? Nothing he said suggests he would not do so. He has not given us a reason of substance for not acceding to the amendments.
I am absolutely baffled. The fundamental question is, of what is the Minister of State afraid. From what is he running? Is it, as Senator Norris rightly deduced, that Revenue is cracking the whip? Does the Minister of State fear organisations will be too vocal? A number of bodies were abolished or amalgamated in the budget. The amendments seek the advancement and promotion of human rights, which will benefit the people and the community. If the Minister of State gives us a guarantee, we will reserve our position because we do not want to divide the House. Legislation is about regulation and our role is to improve it. While the Minister of State has a view, we will not be rubber stamps, as Senator Norris said. We have received copious correspondence and e-mails and we have met representatives of the organisations concerned. A vote would be a bad decision. I appeal to the Minister of State to give us space and time, which we will also allow him. We will not press the amendments, but this works both ways. It would be an erroneous move to divide the House.
The Minister of State said, first, he will not accede to our request because the Revenue does not want it and, second, he wants to preserve the status quo. I do not accept those are valid reasons for rejecting the amendments, which are important and which would greatly enhance this welcome legislation. We cannot accept what the Minister of State said and I will press amendment No. 14 if the other amendments are not pressed before then. He has not given us a satisfactory response. He received advice from the Revenue but not from the Attorney General, which has advised that the status quo should be maintained. That is the only reason he will not accept the amendments and that is not a good enough reply. It does not give us a reason.
Not only is it not good enough, it is an insult to the House. If the Minister of State wished to sustain the position that the advice comes from the Revenue Commissioners, presumably they produced an argument. Is it a budgetary issue? Do they think money will be saved? Will the Minister of State be kind enough to outline how much money he will save by excluding human rights? It would be interesting to know the value the Government puts on human rights. Oscar Wilde once said that a cynic is someone who knows the price of everything and the value of nothing. Perhaps the Revenue Commissioners are putting a price on human rights because they are unaware of their value. I do not wish to demonise them because they do a great deal of extremely good and important work and the State would have great difficulty functioning without them. It is easy to target an organisation such as this and pillory it but I do not wish to do so.
The Revenue Commissioners may well be acting in the light of their remit as an organ of State but it is up to politicians to stand up to them, to make their own decisions and not to be guided by them. We are living in the 21st century, not the 17th century. The Minister of State has acknowledged that some of the formulations are not new. Why will they not accept this one which has a cultural ancestry but may not have been formulated previously? The Minister of State has absolutely no case whatever and I appeal to him to take further advice on this, as he said he would on earlier issues.
It was a policy decision that the legislation would reflect what was happening and try to regulate it. As the Revenue Commissioners were the only body dealing with the registration of charities, they were consulted regarding the charitable purposes and that is reflected in the Bill. A policy decision was made that the legislation would reflect and maintain the status quo. Knowing it was a complex area in which to introduce regulation, the next phase will be a mandatory review within a specified period. Senator Buttimer asked whether I would review the amendments. I have examined this issue extensively and I would mislead the House to say otherwise.
I have doubts about this basis for legislation. If we accept the Minister of State's proposition that an existing practice is being secured and codified but we want to make a reasonable proposal to add to it, as legislators, we are entitled to know why the Government will not accept it. If there is an explanation why it cannot be or is not proper for it to be included, all these matters can be judged and the House can decide its view. However, it is simply not acceptable to be told this is the way Revenue has always done it and that is the way we are always going to do it. We want to add this new proposal and a subparagraph. When we ask why the Minister of State refuses to accept it, he just says "No".
Even if the Minister of State is not in a position to give an undertaking that he will accede to the amendments, if he could give a real undertaking that before or during Report Stage he would give us the rationale for not accepting this proposal, I would be prepared to let the matter rest until then when we can have the matter addressed.
Like Senator Alex White, I would be happy to let our amendment rest until Report Stage if the Minister of State would come back to Members with an explanation of the rationale for this. It is an important issue. It is not about politics; it is about the advancement and promotion of human rights. We will be happy to let it go to Report Stage if we get the rationale for and movement on it.
I have outlined that it was a policy decision to reflect the practices. Revenue was consulted as to what the practices were. It is a policy decision to introduce this legislation to regulate charities. I know it is not what people want and they are looking to go somewhere else. That was not the policy decision. The decision was that we would reflect on what was happening.
The charitable purposes, while they do not specifically mention human rights and social justice, mention the activities in which those organisations would and should engage. It would be unfair to say I will be coming back with something different.
When the Minister of State refers to policy, is he talking about a Cabinet decision? If there is to be a delay, there need not be a very detailed discussion. Could this not go back to the members of Cabinet to ask them, because they are making complete asses of themselves? Otherwise, the Seanad is just being treated with contempt. It is hardly worth coming in if, on the most serious issue on the Bill, something like this can happen. Can this not go to Cabinet or is the Cabinet just sticking behind this? I would appreciate it if the Cabinet could be asked.
I understand the Minister of State is taking advice but this is the Oireachtas. This is the Chamber where these kind of amendments are supposed to be made. If the Cabinet had considered this, it is very unlikely it would take this kind of attitude. The Minister of State's party has a very good track record in some areas in this regard, including that of the former Minister, Mr. David Andrews. Will the Minister of State take it back to the Cabinet? They may just tell him to buzz off, as it were, and we will then have to put it to a vote on Report Stage. If he could just mention it at Cabinet and explain we have had a terrible problem in the Seanad and people are really exercised about it — I am sure members of his own side would say the same — he could get a reading of this. I would be very surprised if this was intentional. If it is, it is very cynical.
I move amendment No. 8:
In page 10, after line 40, to insert the following subsection:
"(2) This Act applies to humanism or any other philosophical life-stance as it applies to religion.".
This amendment seeks to include within the Bill humanism and any other philosophical life stance as it applies to religion. The US Supreme Court has recognised that humanism is a religion for the purposes of the religious and charitable exemption and the amendment is in line with that non-discriminatory approach. I ask the Minister of State to accept it.
I approve wholeheartedly of the idea behind Senator Hannigan's amendment but I am a little concerned about it. If he had stopped at humanism, I would be all right, but it goes off into what seem rather less defined areas, such as "philosophical life-stance", which could be anything. It would cover some groups I do not especially want to be covered. I would not want Scientology and my nice, neighbouring Moonies in North Great George's Street to be out with their collection boxes.
The amendment is rather broad and will cover some fairly unsavoury things. Humanism certainly should be included because it is an ethical stance, although it is devoid of any specifically religious content. As an ethical stance, it should be protected or recognised.
I support the amendment as it applies to humanism. Like Senator Norris, I believe Senator Hannigan is correct that it is important humanism would be included. In section 3, the advancement of religion is one of the charitable purposes and the Humanist Association of Ireland certainly should also be included as a charity under that heading. The Labour Party has amendment No. 13 which would exclude particular cults or organisations that were oppressive and so on. The two amendments would have to be read together because I take Senator Norris's point on the broad nature of "any other philosophical life-stance". However, humanism is of increasing importance. I have been to numerous humanist ceremonies such as weddings and, sadly, funerals. It is important we include humanism within that definition.
The Dail Divided:
For the motion: 18 (Ivana Bacik, Paddy Burke, Jerry Buttimer, Paudie Coffey, Paul Coghlan, Maurice Cummins, Frances Fitzgerald, Dominic Hannigan, Fidelma Healy Eames, Nicky McFadden, David Norris, Joe O'Reilly, Joe O'Toole, John Paul Phelan, Eugene Regan, Shane Ross, Brendan Ryan, Alex White)
Against the motion: 22 (Dan Boyle, Martin Brady, John Carty, Donie Cassidy, Maria Corrigan, Mark Daly, Déirdre de Búrca, John Ellis, Geraldine Feeney, Camillus Glynn, Cecilia Keaveney, Terry Leyden, Marc MacSharry, Brian Ó Domhnaill, Labhrás Ó Murchú, Denis O'Donovan, Fiona O'Malley, Ned O'Sullivan, Ann Ormonde, Kieran Phelan, Jim Walsh, Diarmuid Wilson)
Tellers: Tá, Senators Dominic Hannigan and Alex White; Níl, Senators Camillus Glynn and Diarmuid Wilson.
Amendment declared lost.
I move amendment No. 13:
In page 12, subsection (6), line 9, after "concerned" to insert the following:
", provided that for the purposes of this section, "religion" shall not include any organisation or cult which in the opinion of the Authority is primarily economic in nature or employs oppressive psychological manipulation of its adherents".
The purpose of this amendment is to ensure that the protection afforded under the legislation does not extend to cults which brainwash their members. Cults are a dangerous phenomenon and our objective in this amendment is to ensure they do not gain from the introduction of this Bill.
When I made my comments about cults during the debate on amendment No. 8, I had not registered that this careful limitation was proposed. I assume that some similar formula will be put before the House on Report Stage, which I will be pleased to support. A certain amount of rewording may be required but it is a useful proposal. I will support the reworded series of amendments when it comes before the House.
This amendment reflects an amendment that was submitted by Deputy Wall for consideration on Committee Stage in the Dáil. Deputy Higgins also raised concerns on this matter in the Dáil. An undertaking was given by my predecessor, the Minister of State, Deputy Pat Carey, on Committee Stage in the Dáil, to reflect on the issue raised in Deputy Wall's amendment. Having since consulted with my legal advisers, it is accepted that there is considerable merit in the principle of the proposal that nominally religious organisations which are motivated by profit, abuse their members or use inappropriate psychological techniques in retaining or recruiting new members should not be granted the privilege of charitable status.
While I cannot accept the wording of amendment No. 13, I offer a firm commitment to propose an amendment on Report Stage, the wording of which is being developed in consultation with the Attorney General, which will achieve the same goal. I thank Deputies Wall and Higgins and Senators Hannigan, Alex White, McCarthy, Prendergast and Kelly for their constructive and helpful input in formulating this amendment.
Amendments Nos. 17 and 27 are related and may be discussed together. Is that agreed? Agreed.
Government amendment No. 17:
In page 13, between lines 31 and 32, to insert the following subsection:
"(2) The Revenue Commissioners shall not be bound by a determination of the Authority as to whether a purpose is of public benefit or not in the performance by them of any function under or in connection with—
(a) section 207, 208 or 609 of the Taxes Consolidation Act 1997,
(b) section 17 or 76 of the Capital Acquisitions Tax Consolidation Act 2003,
(c) section 82 of the Stamp Duties Consolidation Act 1999.".
This is a technical amendment to be inserted on legal advice. It is important that the decisions of the new charities regulatory authority be separated from those of the Revenue in regard to tax matters. It is not appropriate for the new authority to have any role in such matters, which are the domain of the Minister for Finance and Revenue alone. Every charitable organisation, as well as having to have exclusively charitable purposes, must also have a public benefit. The effect of the amendment to section 7 is to remove any doubt that Revenue will be in any way bound by any determination of the authority as to whether the purpose of the organisation is of public benefit.
The amendment to section 40 is also of a technical nature. Under the existing wording, it might be interpreted that Revenue is required to provide all the information it holds for each organisation deemed to be registered under section 40. Amendment No. 27 clarifies that Revenue will only have to provide information that would normally be required of charities registering under section 39 of the Bill.
On Report Stage in the Dáil I introduced an amendment that had been developed to off-set a possible risk that the Bill, as previously worded, might act as a significant impediment to conventional securitisation activities. Following further interdepartmental consultation and discussions with legal advisers since Report Stage, it is considered that a further technical drafting amendment is required to copperfasten the provision.
I move amendment No. 19:
In page 14, lines 22 to 29, to delete subsection (2) and substitute the following:
"(2) Any default in the relationship/agreement between the Charity and the State Agency/Public body whereby the Charity would be at a loss, would not be counted as such where the Charity has little or no option but to comply with standards/practices set out by the particular body. In such a case, the individual trustees/Directors of the Charity cannot be held liable.".
I referred to my objective in this amendment on Second Stage. If I recall correctly, the Minister attempted to answer my concern by reference to insurance clauses and so on in the Bill. I have since had further communication from the briefing groups, which continue to have concerns in this area which are not met by the existence of the insurance clause. They are of the view that this clause does not eliminate the risk for trustees and directors for several reasons. First, the term "acting in good faith" limits the scope of the policy. If, for example, a charity continues to enter into agreements with the HSE knowing the HSE will probably default, which happened in the case of the day centre in Tolka Valley operated by Respond, the insurer can simply refuse to pay, claiming the director or trustee did not act in good faith. While one might ask why a charity would continually enter such agreements to deliver much needed services in the community, charities are forced to enter into agreements with State bodies in such instances. In other words, they are compelled to take action that might invalidate their insurance. In addition, it is doubtful whether insurance companies would supply the level of insurance required in the first place. The insurance companies might experience hesitation in circumstances where there was a prior indication of a possibility of defaulting.
Second, what would be the cost of such insurance? Considering that Respond, for example, has developments valued at €45 million, which is a very substantial sum, it would simply not be in a position to insure against withdrawal of State funding for such developments, which could happen, especially in the current parlous circumstances. Third, the insurance would not remove the debt. Charities would still be liable. This could involve substantial sums, perhaps up to several million euro.
Fourth, the insurance would not remove the potential of a criminal record for the director. This is a very serious matter. Even if it might just be a technical conviction, it would still be a criminal record. That would prevent the person going to the United States, for example. The impact this could have on voluntary directors could be disastrous. Two directors of the Respond charity are also directors of their family businesses. If criminal proceedings were taken against them, they would be forced to withdraw as directors from their family businesses. Finally, the reputation of a voluntary director would be tainted forever if he or she was found not to have acted in good faith by entering into agreements with State bodies where there existed a high risk of default by the State body.
For these very practical reasons this amendment should be viewed charitably by the Minister.
I wish to echo the words of Senator Norris. There is an issue of over-legislating here. The phrasing of our amendment is not the most elegant but we are raising a serious issue of substance. The Minister will recall a long debate over the past two years about the decrease in volunteerism at all levels in Ireland, be it political activism or activism in the churches, in voluntary bodies, sports bodies and so forth. In an increasing number of cases, the only way people can protect themselves is by forming companies. Once they form companies they act as directors and immediately come under the radar of the Director of Corporate Enforcement. The Director of Corporate Enforcement is extremely diligent. Everything is simply business. I have the highest respect for the man. He does not have any discretion in terms of how he does his work. The Companies Act is very clear, and uses phrases such as "trading recklessly".
As outlined by Senator Norris, the issue arises when a charity runs into difficulty. I am a director of a charity which recently sought a grant from a Department. The grant was given on the basis of our presentation, which included an absolute commitment of money from another source. It was not a State source, unlike the example given by Senator Norris. The charity had a clear commitment from a company that it would support administration. On that basis the charity approached the Department and assured it that none of the grant would be lost in administration and that all of it would go to the precise objectives of the charity. That was very attractive to the Minister dealing with the matter.
Unfortunately, one of the companies that had committed its support went bust. This had a knock-on effect. The amount of money coming from the State was dependent on the initial amount coming from the private sector. In the meantime, in the context of a business plan and good governance decisions had been taken and projects put in place, with commitments given and people employed. Everybody acted in good faith, although some might argue otherwise. It could be argued that a prudent person might have waited until the money was in the bank before taking the next steps. That would be bad management but perhaps good governance. Immediately, there is a conflict.
I believe matters will be sorted out eventually in the example I have given, although all sorts of movement will be required. That is not to say it will certainly be resolved. However, if somebody has been employed in good faith or if a project for a building has been signed for in good faith, the knock-on effect is that these do not proceed. As a result people are out of work or commitments and contracts are not adhered to, all for the best reasons. Ultimately, a person in that situation is probably very likely to find themselves convicted of negligence, at least, or reckless trading, at most. Either way, they will have a criminal record.
A criminal record has huge implications, aside from the two mentioned by Senator Norris. It can affect one's credit rating and so forth, which is crucial, particularly at present. One is a disbarred director. The Director of Corporate Enforcement has no choice but to disbar the person for five years. One can appeal that to the courts but at that stage one is up to one's neck in the law.
There is a serious issue involved here. The Bill will be going back to the other House anyway and I urge the Minister to examine this amendment. I heard a reference to the Minister's remarks in the other House but I do not know if that is the case. However, I know that getting insurance cover for criminal negligence is fraught with risk. In some cases one cannot do it. In fact, if one is found to have acted recklessly, which is a criminal offence, there are aspects of insurance that are declared void at that point. It is a complex matter.
I have no wish to drag out the debate on this. Senator Norris has made the case, as have I. There is a real and honest issue before us. I do not like the wording of the amendment. I did not get enough time to draft it. It contains too many sub-clauses and the sentence is too long. I am anxious to hear the Minister's views on this in terms of what can be done.
As Senators Norris and O'Toole said, there is an issue in this area. We have met with the Respond organisation. I am not sure if it is a matter of legislation or incorporation but there is a need to examine the matter. There is serious concern among people about this legislation. I am worried that there will be a reduction in the number of people opting to become directors of charitable organisations or volunteering. Senator O'Toole mentioned limited companies. I am a member and director of Bishopstown Community Association, which is a limited company.
There are organisations who have been given commitments by State bodies — the HSE in the instance mentioned by Senator Norris — whose funding mechanism has ceased in the current economic climate. That results in a deficit. The issue requires examination. The Minister can argue that the different points are dealt with in other sections of the Bill but let us deal with it now.
I wish to speak on amendment No. 31 which seeks to insert a new subsection. The amendment states, "Where the liability of any charitable trustees of a charitable organisation falls to be considered in respect of any non-compliance with a requirement imposed by a statutory authority, due regard shall be had to whether the resources of the charity as appearing on its books of account under this section were such as to enable the charity to comply with that requirement." As Senator Buttimer mentioned, we have all been contacted by various housing associations, including Respond which suggested liability should be limited where the charity has no funds to comply with the requirements imposed. No one is seeking absolute immunity, but we seek to achieve a balance with which both sides can live.
I recognise there is an issue, with which I am familiar, and I have seen and received correspondence on the matter as it concerns Respond. The amendments reflect a concern that a charity trustee might be held personally responsible for losses that a charity might suffer where State agencies or a public body do not follow through on an agreement made with a charity. The Charities Bill does not make charity trustees personally liable for such losses. Charity trustees are already personally liable for such losses, which is unfair.
Some weeks ago when the Bill was on Report Stage in the Dáil, we introduced section 89 which allows charities to take out insurance to indemnify trustees from personal liability in respect of any act done or omitted by him or her in good faith. This approach reflected the recommendation of the Law Reform Commission and I believe it addresses the matter. I am conscious that the matter involves the role of directors which is governed by different legislation. It is impossible to legislate for every specific case. The amendment introducing section 89, which reflects the recommendation from the Law Reform Commission, substantially addresses this issue.
This is precisely the problem highlighted in the submission I made when I spoke first on this amendment. Those working in Respond, as a result of the discussion in the Dáil, were aware of the introduction of the clause. Virtually everything I said indicated their unhappiness with it. The Minister of State has not responded to their continuing unhappiness. He has responded very fairly to the initial situation and I accept everything he says in that regard. However, in my contribution I pointed out that the charities involved believe there are further difficulties which have not been addressed by section 89. Will the Minister of State consider the matter further?
Section 89 provides for indemnification for either an individual, several individuals or the whole board of directors. It deals with acts and omissions and covers matters relating to negligence, good faith and performance. I will be guided by the Minister of State in this matter because I do not know enough of the background. It seems certain people within a given charity could find themselves in difficulty. Is the Minister of State saying that even if he were to accept our amendment, company law dealing with liability might move matters in another direction? I accept there is a strong likelihood of that occurring. I will consider the matter further and may revert on Report Stage. I will not press my amendment at this stage as I wish to examine the indemnification matter further, including the normal costs involved. I will discuss the matter on Report Stage and, in the meantime, compile information, take further advice and discuss the matter with people in the insurance industry.
There is an issue with indemnification. There is a genuine concern pertaining to this among those in the charities sector. This arises later on in the Bill and the matter raises certain fears. Rather than prolong the debate, I encourage the Minister of State to revert to the Seanad. Some people have entered into contractual service agreements where a deficit exists and where there is a failure by the agency in question to deliver financial outcomes. We must not spoil a good Bill and we must protect those who volunteer and opt in. There was a task force to consider this matter. If we were to accept the Government line on volunteerism, it could cause difficulties. We want to encourage people to participate rather than prohibit them. Will the Minister of State reconsider the matter?
I understand section 89 permits a charity to make arrangements for payments from its resources for insurance and so on, which is a welcome advance. However, it does not really address several of the points I made and especially the feasibility of obtaining such insurance. I am not an expert on insurance and my colleague, Senator O'Toole, would be more closely acquainted with the matter. He played a distinguished role on the Personal Injuries Assessment Board and knows a good deal about these matters, whereas I am not so familiar with matters of insurance availability or cost. However, the premium would be related to the possible exposure of the insuring body. If significant sums were involved, as there might well be, the premium could be very high. Will the Minister of State reconsider the matter? Like Senator O'Toole, I will table an amendment on Report Stage, although I am sure the Senator will find a more elegant formula. Like Senator O'Toole, I wish to disclaim ownership, since, to use the phraseology, I simply bunged it in when I got it.
We should progress the matter. I recognise the point made by the Minister of State at the beginning. He has hinted the amendment may be in conflict with company law and especially the Companies Act 1990, which dealt with reckless trading. I will put again a question which the Minister of State did not address in his response. We require a more complete answer. I am concerned that if I move this amendment, it may be in conflict with existing company law and there may be further consequences. It would be helpful to tease out the matter further on Report State. I will do some more research and I intend to discuss it with the Director of Corporate Enforcement and obtain a view from him. It would be helpful to see where we stand and to establish the position if this were to be passed. We should have an honest assessment of how it fits in with existing company law. I do not wish to appear to be an innocent at large. One cannot say that something which clearly is wrong is right to justify passing a law and that is not what we aim to do. We aim to ensure people do not find themselves enmeshed involuntarily because of a given law having acted reasonably and in good faith. Will the Minister of State take further advice and perhaps we can revisit the issue on Report Stage?
It is acceptable if the Senator wishes to reintroduce the amendment on Report Stage. However, we should bear in mind some practical considerations. The issue is not contained in or restricted to the Charities Bill. Separate legislation is responsible for the roles of directors and trustees and this legislation is mindful of that responsibility.
We recognised there was an issue and the amendment made in the Dáil was in line with the Law Reform Commission suggestion. I do not wish to give the impression that directors or trustees of a charity would be dealt with in a substantially different way, because other legislation already governs that area. If the Senator wishes to revert on Report Stage, that is fine. That is the background to the issue.
It is recognised that the establishment and maintenance of the register will give rise to costs. The purpose of this amendment is to allow greater flexibility in the future in terms of maintaining the register of charities. Specifically, the amendment seeks to give the authority options, once directed by the Minister, to so use material from other relevant electronic databases, including any that have been or are being supported, in whole or in part, by public funds, in maintaining the register.
By way of background, over the past two years my Department, with the EU and other philanthropic sources, has provided funding towards a feasibility study to establish whether it might be possible to set up a GuideStar Ireland. For those who may be unfamiliar with the concept, GuideStar is founded upon the provision of an extensive, free, searchable web-based database of all non-profit organisations in a country. It is constituted as a non-profit entity in all the countries where it has been established or is in development, including the USA, the UK, Canada, Israel and Germany. In the countries where it is established, GuideStars are regarded as an authoritative source of information about the entire non-profit sector, which would include the charities sector.
This amendment seeks to ensure there would be no impediment preventing the authority, under the direction of the Minister, from engaging with external data providers, such as a future GuideStar Ireland, in relation to the provision of material to assist in maintaining the register of charities. While there is no certainty that a GuideStar Ireland or similar project will proceed or, indeed, that there would be any public funding available for such a venture, it would be remiss for the legislation not to provide for the possibility of such an arrangement, particularly were it to be the case that public funds had been expended on the potential source of such data.
The legal advice to me is that the most direct way to ensure this is to include a provision for an appropriate direction from the Minister to the authority. I stress that such a direction would apply only in relation to the maintenance of the register of charities. This amendment will help to ensure efficiency, value for money and better joined-up government in the future.
I ask the Minister of State to clarify the purpose of this section, which reads: "The Authority may take such steps as it considers appropriate to consult with persons whom it considers may be affected by the performance by it of its functions." I ask for an explanation of what is meant in terms of consultations with stakeholders. I am particularly concerned about the part which reads "may be affected by the performance by it of its functions". That phrase struck me.
The entire Bill was drawn up on a consultative basis with the sector. Specifically, one of the areas of concern is that the consultative process would continue in terms of developing codes of practice and so forth. That is why some of the codes of practice will not be put on a statutory basis but will be a reserve function of the Minister, based on ongoing consultation.
Throughout the development of this Bill through the Houses of the Oireachtas, we have been consciously looking at ways to ensure that the administrative burden imposed by legislation does not prove unmanageable, particularly for smaller charities. It is recognised that upon application for registration, a comprehensive list of documentation must be filed by charities. The amendment I introduced in the Dáil to deem existing charities as automatically registered goes a long way towards alleviating the registration burden for existing charities. However, while I consider that larger charities in particular should provide the range of information listed, I recognise that smaller charities or particular categories of charities might have difficulties in fulfilling this requirement. With this in mind, I commend amendment No. 24 to the House and the related necessary technical amendment No. 25 under which the authority, with the consent of the Minister, can reduce the number of documents that particular charities are required to file. This amendment will be welcomed by such charities and I commend it to the House.
It is important that, under this legislation, there is compliance and proper procedures are in place. However, we must make allowances for training for charitable organisations to enable them to comply with the legislation. I hope that, as a consequence of this Bill, there will not be a prohibitive cost to charities in complying with the legislation because that would defeat the purpose of the law. I know that is not the Minister of State's intention but we must make allowances for the need for training for charities to assist them in complying with the regulation of the sector. I hope that the cost of such training to organisations will not be prohibitive.
I agree with the Senator. This is something of which we have been very conscious and hence the acknowledgement of different categories of charities. With regard to the authority in particular, it is important to point out that it is not just a regulatory authority but also a supportive one to the industry.
"(6) Where, in relation to an application for registration under this section, the Authority is of the opinion that to require the applicant concerned to comply with certain of the requirements of subsection (5) would be unduly onerous, the Authority may, with the consent of the Minister, exempt that applicant from having to comply with those requirements when making the application.".
"(2) The Authority may request the Revenue Commissioners to provide it with all such information in the possession or procurement of the Revenue Commissioners, relating to a charitable organisation to which subsection (1) applies, as the charitable organisation would be required to provide to the Authority were it making an application under section 39.
I move amendment No. 28:
In page 32, before section 42, to insert the following new section:
"42.—It shall be an offence for a person or body to act or purport to act in furtherance of charitable purposes as defined in this Act, whether or not the word "charity" or any derivation of same is used in connection with such person or body, without such charitable purposes having been registered under this Act, where the Authority is satisfied, on the balance of probabilities, that the person or body so acting or purporting to act is not acting in furtherance of any such charitable purposes.".
I wish to speak to amendment No. 29. The Minister of State and his officials are well aware of the issue of the scam involving pre-signed mass cards, which are sold in shops. Companies sell mass cards to newsagents, purportedly signed by priests, often missionaries from abroad. I compliment the Irish Missionary Union, particularly Father Moran, on his work on this issue. The cards are sold for varying prices, the average in the shops being €4, while the priests who signed them may not receive anything at all, or may receive just a few cent from the proceeds. In certain known cases, the priest has been dead for a number of years. We are talking about profiteering. People who buy mass cards do so under the assumption that the mass is being said for the deceased person and that the missionaries or priests involved receive some or all of the proceeds. I know from talking to people in the shops that stock these cards that they do believe those selling the cards are a bona fide charity. Thus, there is a problem in this area.
I appreciate it is difficult to find a way to deal with this, but the reasoning behind the amendment is that we need to bring clarity to the area of mass cards in a way that can address the problem with regard to the organisations selling them, who are purporting to be fulfilling a charitable purpose but who are in reality not doing so. I ask the Minister to come back to this on Report Stage.
It is important that we acknowledge the work of the Irish Missionary Union in highlighting this issue. In England, Wales, Scotland and Northern Ireland there are provisions in the charities legislation to cover commercial enterprises engaging in such activities. I look forward to hearing what the Minister has to say on this issue. We need to take into account the fact that such activities are occurring. We could put numerous examples on the record of the House but I will not delay the House in this regard. I hope we can find a way to tighten up matters.
I support the amendments on behalf of Senator Mullen, who is not here, but I have serious reservations about both amendments. I have visions of some body or other chasing around Africa to see whether Dr. Livingstone is still alive and saying masses. I agree with the points made by Senator Buttimer; it is not my intention to disagree in this regard. I can see that there is a scam associated with mail and so on that we receive, but I do not think this is the way to deal with it. I honestly believe this. There are too many things that are vague. It should be a criminal act to mislead people in this way. However, it is covered by the legislation as it stands. The products are not fit for purpose, so it is already an offence. If somebody knowingly sells something that is other than what it purports to be, it is an offence under the current law, and I do not think another item of legislation is required. That is not to say, however, that I disagree with the points made by Senator Buttimer. I completely agree with the points made by the Senator and by people who have written to me about this issue. It is an issue that should be dealt with from a consumer point of view. It is very unfair that people are misled and exploited in this regard and it should be dealt with, but I honestly do not believe this is the best way to do it.
——close to simony. That is exactly what I was going to say. The selling of indulgences was one of the things that started off the Reformation. I have bought such things because, although I do not approve of it theologically, I respect the feelings of other people, particularly when they are grieving. Sometimes people are comforted by having a mass said, and I respect this. What one wants to do as a human being is to give some degree of solidarity, support and comfort. I am aware of the fact — it is pretty disgusting — that there is an element of scam involved in some of these things, and it is insulting. The Church itself should move to regulate this as much as possible.
In instances when I do acquire these mass cards, I go to the little church off Grafton Street, in Johnson's Court. Is it Whitefriar Street?
Exactly. The Senator anticipated me. I said to them several times that if I was attacked by religious fervour I would go after them with a whip and whip the money changers out of the temple. Actually, they sell rosary beads and all the rest of it. It is really quite a flagrant money-making exercise, but at least the money goes to the church and towards sustaining the architectural fabric in a situation — this is not directly related to the Charities Bill, but there is a connection — in which the State, under the Constitution, appears to be precluded from supporting these remarkable pieces of our cultural and architectural heritage. I go to Clarendon Street because I know it is a reputable place and because it has a rather better standard of card. Quite apart from the fact that these cards may be signed by dead priests in India, some of them are revolting aesthetically. They are lurid beyond belief. They would really put one off the entire thing. Clarendon Street, I am glad to say, has a dignified style. I get the ones that have a little black cross. They do not have all these——I will not even describe them, but I am sure people know what I am thinking of.
My conscience is often at me. I do not think these cards have the slightest effect. It is exactly the same, as far as I am concerned, as Lourdes and Fatima and such places. I do not believe the Blessed Virgin Mary has appeared in these places.
I do not, but I respect them, because I think they are holy places. They are sanctified by the suffering and the prayers of the people who go there. I will not go on. I will tell Senator O'Toole privately what I think about this. Let it be a reserved sacrament.
I am glad the Senator has decided to have some private conversations.
Section 46 of the Bill makes it an offence for charitable organisations that are not registered to portray themselves as charities. On Report Stage in the Dáil I strengthened the provision, with a particular focus on the practice of door-to-door collection of second-hand clothes and bric-À-brac, which was a cause of genuine concern to many people. I have received numerous complaints from the public about such collections, as have Members of both this and the other House. I made it an offence to cause the public to reasonably believe that an organisation is a charity, irrespective of the terminology used by the organisation in its leaflets and so on. By that I mean that it does not explicitly have to use the word "charity". The amendments strengthened the provision and greatly limited the scope for non-charitable organisations to suggest to the public that they are charitable in nature. This will in turn help the public to distinguish between genuine charitable collections and non-charitable collections. While I introduced it specifically to deal with door-to-door collections, it will also deal with the issue of mass cards, because if somebody is giving the impression they are selling mass cards for a charity and it is not charitable, it will be dealt with accordingly.
The issue of mass cards has come up time and again and has exercised Members of both Houses. I have been backwards and forwards in consultation with numerous legal advisers to obtain a form that is acceptable and manageable, and we will bring that in, as I indicated earlier, on Report Stage. For this reason, I cannot accept the amendments.
I take cognisance of what the Minister said. I appreciate that it is getting late and we have been here all day. However, this is an important issue. I do not agree with Senator Norris, by the way, regarding the apparitions at Lourdes and Knock.
It is important to mention in this context that we have faith and we are all entitled to that. I do not agree with the Senator. The Minister of State's amendment to strengthen the Bill is probably a good one. We need to introduce an offence for those who purport to be collecting for charity, as is the case here. Go raibh maith agat.
I wish to draw attention to section 51. I must declare a conflict of interest as I chaired the audit review group on behalf of the Government about five or six years ago and I am also a member of the audit and accounting supervising authority of the board of the same.
I draw the attention of the House to the demands and requirements under section 51. I thoroughly approve of every one of them but I wish to stress in particular that it confers upon the auditor an extreme level of independence and a requirement of independence and in subsection (1)(d) it also gives the auditor the authority to seek explanations and statements from past or present charity trustees in doing his or her work. I want to park it until I come to my next amendment but I will refer back to it. The requirements of an independent auditor are crucial and I approve of every one of them. Anyone dealing with auditing would have to approve of every one of them. They reflect very well the role of the auditor. People often think that because it is a charitable organisation, the demands of governance might in some way be less stressful. If ever there was a place to stress test, it is in a charitable organisation because they often deal with dry money and coins. It is necessary to have more demanding structures and strictures in place in a charitable organisation. Any large charitable organisation will have a large audit committee and probably an independent chairperson. Systems will have been put in place to ensure the money is collected, banked, counted and dealt with in appropriate ways. The independent auditor is someone who must be remote and independent of all those issues.
I have a problem with this section. There is a flaw in it which needs to be looked at. This is an important section that deals with the report of the inspectors and who might have access to it. The authority may, if it considers it appropriate, furnish a copy of the report on request and on payment of such fee as may be prescribed to a number of different people, one of whom would be a trustee of the charity, a person whose conduct is referred to in the report or the auditors of that charitable organisation, etc.
It is incorrect to charge for the report a person whose conduct is referred to in it. It certainly is contrary to common law and it certainly impinges on the principles of natural justice to do so because a person is entitled to see what charges are made about him or her. It is singularly inappropriate where, for example, I am being investigated by an inspector, as could happen, even on issues we need not refer to now but which could include everything from immoral acts to all manner of other things, and a report is made on me.
A real-life parallel situation occurred last week. The Moriarty tribunal was required to provide a copy of its interim report at no cost to every single person mentioned in that report. We are doing the very opposite in this section. We are requiring the payment of a fee. I do not oppose the charging of a fee in certain cases. I refer to subsection (3)(b)(1) where it might be reasonable to charge a fee in such an instance. The person mainly involved, however, has an entitlement and should not be charged. I see no difficulty with charging the auditors I have significant problems with charging the next three people listed because this goes against Government policy and other legislation.
When the Committee of Public Accounts was dealing with offshore accounts and the prudential behaviour of the banks in the earlier part of the previous decade, one of the problems that became exposed was that people did not know what was going on. The Central Bank did not know what the Revenue Commissioners knew. The Revenue Commissioners did not know what someone else knew. The regulation dealing with the Office of the Director of Corporate Enforcement deals with this in a number of places. What normally happens is there is a memo of understanding between the two groups, for example, between the Central Bank and the Revenue Commissioners or whatever. This is not the point I am making but there should be a free flow of information. In another part of the Bill there is a requirement if one thinks something is criminal to pass on the information, and that is very good. However, in this instance there could be a piece of information to which the Revenue Commissioners, the Director of Public Prosecutions or the Central Bank might wish to have access. As a matter of principle, if those bodies require it, they should not be required to pay for it. I do not think it is a sustainable position to hold. Those three who are acting for the public good and also the person whose conduct is referred to in the report should not pay. I await the Minister of State's view.
This point has been brought to my attention before. It is not a statutory requirement that these agencies be charged. It is by way of regulation of the Minister. Rather than describing the precise nature of who might be charged and the rate of charge, it can be done by way of regulation. I do not envisage other State agencies being charged.
The Minister of State is correct. I should have added a question to it. I see that subsection (3)(b) states a payment of such fee as may be prescribed by regulation. I recognise that and there is no imperative in the regulation that there would be a fee but that there could be a scale of fees. Will the Minister of State clarify that it would not be intended in the regulation to charge the body or a person who is the focus of the investigation?
The reason it is covered by regulation is that it is the first time a new system will be in place. Rather than trying to identify the recipients who might want the information, the regulation would allow a degree of flexibility. It would not be envisaged that there would be charges for one Government agency getting information from another in this regard. It was felt that putting this into primary legislation would tie the hands of those involved.
In my 20 years as a Member of the House, this is the first time I have seen the Government's asterisk on one of my amendments on the list, as normally my amendments are copied into other ones. I appreciate the positive news it conveys to me.
The reason I put down this amendment related to the role of the charity trustee and, in light of my earlier comments, the auditor. I saw a conflict in the Bill, as drafted, where it allows for a charity trustee to also be a charity's auditor. With the provisions in section 51, it would allow a charity trustee, or his or her trustee colleagues, to receive a statement from himself as auditor, an obvious conflict of interest. It also conflicts with the requirement of independence on the part of an auditor.
The Committee of Public Accounts is dealing with an auditing issue where there was too close an arrangement. In a perfect scenario, a charity would have an audit committee and an auditor. The audit committee would be chaired by an independent board member. For example, the chair of the audit committee for the Commission of the Houses of the Oireachtas is an outsider, not a member of the commission. He deals directly with the external auditor, in this case the Comptroller and Auditor General, without the presence of the Clerk of the Dáil, the quasi-Secretary General.
The optics are important in such cases, as we have learned from the FÁS matter in recent weeks. It is important that the auditor is not in any way involved as a trustee, director or other position. The independent auditor should be able to produce reports without contact with anyone in the charitable organisation. No registered auditor would agree to the way the Bill was drafted in that he or she could be a charity trustee and auditor at the same time.
The issue that led to amendment No. 37 was raised by Senator O'Toole on Second Stage. Since then I reflected on it and consulted several people. I endorse Senator O'Toole's sentiments that a charity trustee should not audit his or her charity. This is reflected in section 187 of the Companies Act 1990, under which an officer or a servant of a company must not also be its auditor. Although we both proposed the same amendment, there may be an element of cross-purposes involved. Ultimately, however, the outcome would be the same.
The original reasoning behind including an auditor as a charity trustee in section 74 was not to allow charity trustees to audit their own charities but rather to provide that where an offence occurred within a charity and an independent auditor of the charity concerned was a party to the offence, the independent auditor would be regarded as a charity trustee in terms of having committed an offence under the legislation.
On reflection, I have considered that this has the potential to place an unreasonable burden on independent auditors, who are already subject to high standards of regulation. I thank Senator O'Toole for bringing forward the amendment.
Given what has happened with the Broadcasting Bill, with the Minister for Communications, Energy and Natural Resources, Deputy Eamon Ryan, and the FÁS debacle, would it not be wise that we take away the power from the Minister to appoint members to the charity appeals tribunal and establish a new body to appoint them? I fully support the need to have on the tribunal those from a legal background and with experience in areas of expertise relating to charities. I do not mean to be disrespectful but we do not have career civil servants who have worked in charitable organisations and it is important we bring in people with this experience. It is important we recognise their work and use their years of experience. Will the Minister re-examine how members of the tribunal are appointed?
The background criteria for appointment of members to the appeals tribunal is laid out in the legislation. Should they be appointed by the Minister or another body? At this stage, people are saying we have enough other bodies and it should be a direct appointment. However, this would be done within the specific range of experiences mentioned in legislation. The section states that two members of the tribunal "shall be persons who ... have experience in areas of expertise relating to charities." I acknowledge the Senator's point, but it will be by ministerial appointment and for those who meet the criteria.
I agree with the Minister of State's point on ministerial appointments. However, the point raised by Senator Buttimer must be addressed in another way. We have to think differently in this regard. If this were in the UK, a public advertisement for an appointments process would be taken out, as one often sees in the British broadsheets. The other way has been dealt with in this committee before. I am not asking that this be done now although it could be examined. The Minister for the Environment, Heritage and Local Government, Deputy Gormley, is examining the powers and functions of Seanad Éireann in another context. There is a requirement in modern democracies that the establishment of a tribunal such as that would be washed through a committee or structure. I would go halfway between the points made by Senator Buttimer and the Minister of State. I would leave the appointment with the Minister because we do not need another body to do it, otherwise we would be back in the same problem, but it could be overseen perhaps by a committee of the Houses. The Government accepted a report two years ago suggesting that people appointed to public bodies could come before a select committee of this House. That would keep it away from the Dáil in the sense that it would be less political. People could show their form and put on record what the Minister of State is talking about.
Regarding FÁS and the Committee of Public Accounts, one would ask the chair of that board what stress tests he or she would set up after taking it over to ensure it was working properly? That would mean that people must do their work beforehand and be committed to it. I am not proposing that but I would like greater awareness of that approach to deal with the legitimate and valid points raised by Senator Buttimer. That would also protect the Minister, who could act clearly in moving forward in this way.
I do not disagree with Senator O'Toole and I have an open mind on the operational procedures that would effect the appointment. Nothing is set in stone in that regard.
Question put and agreed to.
Government amendment No. 39:
In page 59, before section 76, to insert the following new section:
"76.—(1) The Minister shall, with the consent of the Minister for Finance provide the Tribunal with such and so many staff as he or she considers appropriate to perform the functions of a secretariat to the Tribunal including staff who while assigned to perform those functions are also assigned to perform similar functions on behalf of one or more other bodies (other than the Authority) established by or under an Act of the Oireachtas.
(2) The Minister shall, with the consent of the Minister for Finance provide the Tribunal with premises in which to perform its functions and, if the Minister and the Minister for Finance consider appropriate, such premises may be premises that are occupied by one or more other bodies (other than the Authority) established by or under an Act of the Oireachtas.".
The amendment emerges from the desire to ensure the new regulatory regime operates in an efficient way, allowing for sharing and pooling resources where possible to ensure value for money and to avoid unnecessary duplication. In this context, it is recognised that there are already in existence a number of appeals structures across several regulatory regimes and that it may be possible for the new charity appeals tribunal to avail of existing resources and facilities in carrying out its statutory role, which would reduce overheads and lead to a more streamlined process. This amendment provides for that possibility and is consistent with the principles of regulating better.
I move amendment No. 40:
In page 60, lines 26 to 29, to delete subsection (2) and substitute the following:
"(2) The Tribunal may, where it considers that in the particular circumstances of a case it is appropriate to so do;
(i) conduct part or all of its proceedings in private;
(ii) make an order directing that the identities of all or one or more of the parties to an appeal shall not be disclosed.".
I raised this matter on Second Stage. There is an equal and opposite argument to what I will say. This amendment deals with appeals that could touch on matters of public morality, lawfulness, terrorist activities and activities contrary to public morality. Most of these matters are subject to an appeal. Section 77 states: "Subject to subsection (2), proceedings before the Tribunal shall be conducted in public." No flexibility is allowed. There are numerous instances in the Bill where we are required to keep matters confidential. An issue that could be part of appeal documentation will be required to be confidential. In the course of an appeal held in public, there will be reference to documents that are partly confidential. It will be like the tribunal at Dublin Castle, where there are blacked out bits of the document in order to conduct the appeal. One cannot conduct proceedings in such circumstances because one may need to reference the blacked out parts if they are core to the point being investigated. It causes an unnecessary conflict.
Having said that, I argue against myself for a moment. The approach in these appeals and tribunals and the tone of freedom of information is that we should govern and work behind a pane of glass or in total transparency. I have never agreed with that although it is a nice thing to say. One cannot do all one's business in a transparent way behind a pane of glass. There are times when one cannot maintain the spirit of the legislation and be required to do it all. The term used is "shall", not "may", with which I would be more comfortable.
Beyond that, I have been in a number of situations where appeals dealt with legislative matters and the legislation was silent on whether the appeal should be public or private. In those cases, what has been done reflects what is suggested in my amendment. One does not lose control of the whole thing if my amendment is accepted, one can decide what parts to hold in private. It does not deal with the outcome. Whichever way the proceedings are held, there will be a public statement and an explanation of the finding. Everything can be done but flexibility can be maintained in order to deal with it in a confidential way. That is the general principle.
When I tabled this amendment, the Minister had not conceded the earlier point. I refer to the damage that could be done to an auditor, whose life was concerned with auditing. This could not happen in the situation where the trustee is being investigated, but I want to examine other people who might be there. Senior people in a number of charities came under public scrutiny and as stories started flushing through the place it is very hard to recover from them. If this is to be held in public, the minute an investigation into Joe O'Toole for issues of public morality hits the headlines, one does not need to read the second paragraph on reputation. It is all over. It would not matter if one was completely exonerated, in the public image would be the front page story that the Minister of State, Deputy John Curran, was involved in something in his private capacity. We have a duty in this regard.
Two weeks ago, we heard a member of the Supreme Court articulate his frustration at the way courts were reported in the newspapers — he referred to all newspapers. Judges cannot control reports and they have extraordinary powers to stop reportage. There would be no powers here. As well as the damage done to personality, one loses control. There is an all day sitting, with a reporter sitting there, and he or she reports what he or she wants to, which is what is news worthy, interesting, sexy and sells papers. The Minister of State and I have discussed that area in other contexts. The Minister of State is put in a straitjacket. Whether he accepts my amendment — there may be better ways of dealing with it — the word "shall" should be replaced by "may". I am arguing against my amendment, which I tabled to get the discussion going. If "may" was inserted, the way the tribunal does its business would have to be covered by regulation and approved by the Minister. It comes back to the Minister. Before the tribunal begins an investigation it must have a process, and that process must comply with the principles of natural justice and be acceptable in terms of fair play, equity and various other concerns. That process is regulated by the Minister. I cannot remember under which section that is, but I read through it. At that point the tribunal would decide that aspects of a case should be held in private or that it would do an entire investigation privately to avoid condemning a person on day one. That happens regularly. This week in the FÁS case there was a person under investigation and a person under suspension. This was kept confidential until he chose to make it public. The Minister's tribunal could not do that.
I hope I have made a plausible and convincing case that this is not simple, that "shall" is definitely too strong and that the half-way point is the word "may". I would like to hear the Minister's view on it. I will accept the Minister's stance on this and will not call a vote because I do not feel I have all the wisdom on it. However I have a fair amount of experience on it.
I will not dwell on Senator O'Toole's point, but it is important to strike a balance here. We can argue the merits and demerits of "shall" versus "may" but it is important that we protect people. Senator O'Toole correctly said we do not want spin put on certain events that may transpire later, but we must allow for the protection of people. None of us condone wrong-doing or irregularities, but we must protect people. I would like the Minister to take a middle, balanced approach to this matter.
I have given serious thought to this issue. One of the key principles of the Bill is to improve transparency for the benefit of the public regarding the operation of charities. Accordingly, section 77 requires the charity appeal tribunal to hold its hearings in public. I have given this much consideration. In particular circumstances where privacy is considered to be an issue, the Bill provides that the tribunal may, where it considers appropriate, order the identities of the parties to the appeal not to be disclosed. Senator O'Toole wants to go further than that, so I have sat down and considered it. I will try to explain it simply. We have that aspect of it and, as Senator O'Toole said, we have parked the issue of the auditors. We are trying to keep transparency and confidence in the sector. Having moved on the issue of the auditors, and having the section which allows the tribunal to order that the identities to the appeal should not be disclosed, I do not intend to accept the amendment. I have given it considerable thought and do not claim to have all the wisdom. I take Senator O'Toole's point and I know exactly what he is trying to achieve. However, it is a balance between achieving one thing and not losing sight of what we set out to try to do, namely, to provide the transparency which would give confidence to the sector.
I accept the Minister's good offices in this matter. He raised it with me, so I know he has given it much consideration. While I do not fully agree with the Minister, the points he made are correct and I cannot argue with them. I acknowledge the fact that the name of the person can be kept confidential and we have taken the auditors out of it; they are two issues of significance. I will not push this to a vote. It is important to put it on the record and that the officials have given it consideration.
A very important part of this legislation is that it is forced to review itself after a couple of years and that this issue and how it worked under this heading would go straight into that process, so we can keep an open mind on it as we go along. It should be stress tested as we go along and if we find a weakness, it can be changed. I am happy to do that, but we should have an awareness of the importance of this aspect.
I am not sure if the Government is taking a decision on a privacy Bill. Most Cabinet members are in favour of one, although they may never have the gumption to take on the newspapers. I was reared in a house where my father always maintained that the two pieces of legislation lacking in this country were one to give transparency and one to give privacy, and that they should balance each other. That is important. I accept the Minister's argument and thank him for considering it. I ask him to give me a commitment that it will go into his records in the Department that this issue should be stress-tested over the next number of years.
I support Senator O'Toole on this important issue. I agree with Senator O'Toole that this issue could be examined when the review happens in five years time. There are ways around it. There could be a clause that specifies that a person could have the option of having his or her investigation done in private. Some matters may be very sensitive and if a person has a very good case, he or she may not mind its being in public. There is much merit in Senator O'Toole's suggestion that this can be observed over the next five years.
I do not at all disagree with what Senator O'Toole said, but the point, in trying to bring the legislation forward, is to strike the appropriate balance. We are trying to maintain transparency and confidence in the sector and, at the same time, we have made specific provisions that the identities do not have to be revealed and, more importantly, on the associated issue of the auditor being involved, which was previously addressed. On balance, I want to leave things as they stand. The mandatory five year review exists because the area is quite complex. Obviously, this particular issue regarding "may" and "shall" will be reviewed as part of that, but the balance remains as it is.
This deals with agreements with charities trustees. I am not sure if my point is appropriate here; if not, perhaps the Minister or his advisers might advise me where it might come in. It is the question of payments to people collecting on the streets, for example, and payments to executives. I think that would be covered. I would like to see some percentage limit placed as a matter of course on charities. A sum not above a particular percentage should go to administration. I have great admiration for people who work for charities, but there have been situations where a disproportionate amount of collections went to pay the people doing the collection on the street. They were hired help. Is that appropriate? Will the Minister consider that? It may not be directly relevant but there was a question of payment to employees and so on. People are much more likely to give if there is a proviso to the effect that 90% of the money obtained goes directly to the front line services. I participated in a big fund-raising event for a cross-cultural Israeli-Palestinian effort about this time last year and I made a point that every euro went directly to it. Nothing came out in terms of expenses and so on. Will the Minister comment briefly on that?
I certainly will comment. I do not disagree with what the Senator is trying to do, and that is the reason we have the review, but I am not sure if the type of information the Senator wants would enable the charities to continue in their current format. The charities will make annual financial returns that will give an indication of the level of funding going to the charitable cause versus that going towards administration costs and so on but they will not have people standing on a street with a box saying 88% or 92% goes to the charity, if that is what the Senator is trying to achieve. For those who are interested in whatever the charity might be, that type of information will emerge over time because those reports will be published. If we want to develop it from there, the opportunity exists to do that but we will be collecting that type of data.
I understand that and I will not push the matter, but I ask the Minister to keep this issue under review because I am not thinking in terms of putting information on the boxes. I am thinking in terms of making a statutory limit, even on a figure like 50%, because it is absurd to collect money, more than 50% of which does not go to the charity. What are they collecting for otherwise? I know many people who prefer to give directly to the charity.
I would prefer if 100% of the collection went to the charity but that is not the reality. On the returns that will be submitted, we will capture the particulars of all professional fund-raising agents, consultants engaged etc. The Senator made the point about 50% of the money not going to the charity. We probably do not have sufficient information available to determine that. That is an arbitrary call. Why not make it 70% or even 30%. Best practice will emerge over time, and that is the way we are proceeding. I do not disagree with any of the Senator's points but as I have said repeatedly, this legislation is to regulate what is currently happening in this area, and we will move forward from there.
On the section, I want clarity on an issue concerning organisations, such as Respond, that enter into contractual agreements with Government agencies like the Health Service Executive. There is a reference to indemnity insurance in the Bill but we need a commitment that voluntary directors or trustees will not be caught up in a situation where Government agencies, city councils or county councils renege on commitments given. We must have a clearer commitment than that.
We dealt earlier with the point that arose concerning Respond. We amended it on the recommendation of the Law Reform Commission. I would make the point that we cannot have trustees and directors who are involved in charities being treated somewhat differently from the way the law already treats them. There is a substantial amount of other law that deals with the roles and responsibilities, but what we did do, which did not exist previously, was allow an indemnity system specifically for the trustees of these charities. It is not necessarily for the individuals to pay for themselves; it can be funded through the charity. It is an important aspect because as we sit here, there is no such possibility for them.
"90.—Where a charitable organisation is dissolved, the property, or proceeds of the sale of the property, of the charitable organisation shall not be paid to any of the members of the charitable organisation without the consent of the Authority, notwithstanding any provision to the contrary contained in the constitution of the charitable organisation.".
Amendment No. 43 is in the name of Senators Hannigan, Alex White, McCarthy, Ryan, Prendergast and Kelly. Amendments Nos. 44 and 51 are related and may be discussed with amendment No. 43. Senator Hannigan is not in the Chamber. Is the amendment being moved?
I want to ask one question of the Minister but it may be more appropriate to the section. I will be guided by the Cathaoirleach on this. On the reference to Chief Superintendent and so on, in the past two days, as is my wont coming from my house to here, which is a short distance, there were three national charities collecting on both occasions. I support all of them. One was Concern, one was for a children's hospital and the other the Society for the Prevention of Cruelty to Children. They were wearing their uniforms and so on and were clearly visible. They were delightful people. Some of them were Trinity students but I did not give any of them a euro because I object to three national collections being held on the one day. In the old days it used to be one. How can one possibly survive that? In the space of 100 yards I counted 20 people. One could not get past them. It was an ambush. I know the practice of begging has been examined by this Government and there is legislation prepared but the position is unbalanced. There used to be a national flag day devoted to the Royal National Lifeboat Institution, RNLI, another of the charities collecting the other day, and one was aware of that but they had it to themselves. There were not three or four charities collecting on the same day. This is craziness, and it will not do any good for the commercial centre of Dublin. I am sure the Minister noticed swarms of them competing in Grafton Street.
I am not inimicable to the objectives of these charities. By and large the people were nice and polite. One of them told me I was looking frightfully smart. That is their way of trying to engage one in conversation and when they have one hooked, they try to squeeze money out of one. I give quite a lot of money to charity; I am not stingy. I receive appeals from them with photographs of people starving. My heart bleeds for them and I might send them a cheque for €50 but it is met with a response thanking me and including even more gruesome photographs of people with their bellies hanging out, and one has to send them more money. I do not mind doing that because it is my decision, but I do not like to be ambushed on the street. I can put up with being ambushed by one person but I do not like having to run the gauntlet of three official collectors in their uniforms on the same day, in addition to all the Romanians, the Big Issues collectors and the individuals with one leg or whatever.
I concur somewhat with what Senator Norris said, particularly on the integrity of the flag day. In my city of Cork, Share collect in the week leading up to Christmas. On the Friday or Saturday of a St. Patrick's weekend, COPE Foundation collect. We should adhere to the principle that there should be only one flag day per area. That might not be manageable, and I might be shooting myself in the foot saying this given the large number of charities that want to operate and collect. In the context of what Senator Norris referred to, in the cities of Cork, Dublin, Waterford, Galway or Limerick, only one charity collection per day should be allowed. I do not object to charities collecting. I have collected on flag days. It is important those who contribute are recognised as charities.
However, I object to people standing at traffic lights in parts of Dublin and Cork with Squeegee mops and buckets to wash windscreens or selling The Big Issues. I hope, as a consequence of the legislation and greater liaison between the Garda and the new regulatory authority, certain on-street practices, which are detrimental to genuine charities, will be eliminated. As Senator Norris said, they are losing out.
I will deal with the latter issue in the next group of amendments concerning sealed boxes, which also includes amendment No. 51 in the name of Senator Buttimer.
Amendments Nos. 43 and 44 aim to allow the Chief Superintendent to refuse a permit, including in circumstances where he is of the view the collection is likely to be undertaken in an inappropriate manner. Members of the public have concerns over methods used by some collectors. It is not right and it does not show the charities in a positive light for collectors to act in a way that upsets the public. That is one of the reasons I am working with the sector to develop non-statutory codes of practice on charitable fund-raising. We are trying to bring order, transparency and regulation to a long-standing activity. It is not my intention to regulate by means of primary legislation, although the Minister has reserve functions. We have dealt with charities in a spirit of partnership and co-operation and if codes of practice address the issues raised by Members, that would be my preferred option. Those discussions will go ahead. Chief Superintendents currently have considerable scope in issuing permits if they feel they will adversely affect the public. The scenarios outlined in the amendments are not necessary because they can refuse permits and, more important, the issues of multiple collections and so on should be dealt with in the codes of practice.
Non-cash collections typically are conducted door or door or on the street and involve people signing up to a direct debit or standing order. Money is not put in a box and it is a long-term donation.
The regulation applies to charities and not every organisation that fund-raises will be a charity. That distinction needs to be made. Organisations and bodies that are not charities——
The Senator needs to read the amendment. Political parties are not charities but they engage in fund-raising. They are subject to the various regulations and they need permits and so on to collect. However, they are not covered by the charities regulations. In other words, a local GAA club is not precluded from holding a fund-raising event.
"(a) a collection box into which money is placed shall bear the number assigned in respect of the collection and specified in the collection permit concerned and shall, unless the Authority otherwise directs as respects the collection concerned, be sealed in such manner as will prevent access to money placed in the box while the seal remains in place;".
The Bill is designed to enhance the security of both cash and non-cash collections and ,thus, bolster public confidence. To this end, it currently provides that cash collectors must use a sealed box. This was intended to address the open bucket method, which can give rise to concerns over the security of the collection. However, this raised concerns within the charity sector, which were reflected in the contributions of Members on Second Stage last week, in the Dáil and in these amendments. The concern was that the provision did not accommodate collectors giving change to donors where fixed price tokens were sold. While the legislation is intended to enhance security, it is not intended to unduly hinder collectors or to discourage potential donors from purchasing a token because the collector cannot provide change. The approach needed was to allow for exceptions to be made to the sealed box rule without compromising the general principle underpinning it. I thank Members and sectoral representatives for their constructive input to this matter. I propose the amendment I agreed with the Office of the Attorney General be accepted. This will allow the authority discretion in applying the sealed box provision, which is the principle underpinning the amendments.
The Minister of State's amendment meets what I was trying to achieve. I sought a provision to allow access to the box while it was sealed. Collectors for charities that sell emblems, daffodils and so on for a fixed amount may need to give change and genuinely need access to the box. I thank the Minister of State for taking this concern of a number of charities on board.
I thank the Minister of State for his amendment because this provision exercised many charities. I pay tribute to the Irish Cancer Society and other charitable organisations that raised the issue with us and put forward practical solutions. I will withdraw my amendment on the basis that the rationale behind the Minister of State's amendment is to eliminate the difficulty that would have arisen had the Bill not been amended.
However, by being prescriptive, the Minister of State had posed a problem for charitable collections. It was not his intention but it would have been a major disservice to charities if an amendment was not made. The operation of such collections has changed. A few years ago, following the broadcast of "Who Wants to be a Millionaire" on television, charities launched "Who Wants to be a Thousandaire". Daffodil Day is one of the best organised charity events nationally. We all readily subscribe to this cause and its emblem. For example, earlier this week there was a holly day for the ISPCC. It is important to move away from the concept of floats. While I would have preferred the Minister of State to accept our amendment, I will not press it.
I compliment the Minister of State for tabling the amendment because there was considerable concern about this issue. Many charitable organisations have done tremendous work over the past number of years. Senators O'Toole and Buttimer mentioned Daffodil Day and the Irish Hospice Foundation. Organisations at home have helped to put in place a scanning machine for my county hospital and the various flag days throughout the country do tremendous work. I compliment the Minister of State on bringing forward this important amendment.
I, too, welcome the Minister of State's decision in responding so generously to the concerns we raised on Second Stage. He has also reflected in that decision the charities that have been mentioned by Senator Buttimer and others, which do such great work with a whole army of volunteers throughout the country. This makes it workable for those people to continue with the charitable fund-raising they are already doing.
I thank the Members. I was only made aware fairly late in the day that this was an issue. I am no different from anybody else. I walk down Grafton Street and elsewhere and see the boxes for the daffodils and so on. I could easily and instantly recognise the issue. The problem was to try to address it in a way that still protected what we had in the sealed box. The whole idea of regulating charity was to enhance its operation, so it had to be dealt with in that regard. If nothing else, it indicates that the whole aim in the Bill is to try to protect and not diminish what is happening at present in terms of how the various charities operate. I am glad the amendment is being accepted.
I thank the Minister of State for being so open to making this move. While perhaps they are extraneous, I have some points to make. This question stresses the importance of a bicameral legislature, where issues can be picked up as they go from one House to the other. As the Minister of State said, this issue was not brought to his attention, nor to that of most Members. This is very useful for those charities, as were some of the changes considered earlier by the Minister of State.
The Minister of State should tell his friends to watch what is going on in these Houses. If somebody is not watching, errors and omissions can happen. One of the problems is that the work of the Legislature is not reported. All we read about what is going on in the Houses relates to the rows, the smart quips and all the rest. However, if people do not know what is going through in terms of legislation, it will hurt those who must try to get changes made afterwards. There is a case for an Oireachtas channel so people can follow what is happening in these situations, dull and boring as it might be.
I thank the Minister of State and his officials for dealing with those issues.
The Bill currently provides that charities must have the name and registered number of the charity on the collection box for cash collections, and on the garment worn by a non-cash collector. In addition, charities are required to display the charitable purpose in the same way. The sector has made some representations to the effect that were the charitable purpose to change, for example, were a charity to hold a collection in respect of a national disaster in one country followed by another collection in respect of another disaster in another country, under the Bill as currently defined it would have to purchase new garments or collection boxes, which would give rise to additional costs.
As I am ever mindful of the need not to impose additional compliance costs on charities, I propose to remove the requirement to show the name of the charitable purpose, though the charities would still be required to display their names and registered numbers. Without making it too specific, the name of the charity and the charity number must remain but not the particular purpose because that can vary and the charity would have to replace boxes, garments and so forth.
With regard to the publication of bank account details, including the name and number to which the contributions are made, is this advisable? The account details would be there for the public at large to see, which may not be in the best interest of the charitable organisation. I question why it should be made public. People will make their donations in any case, regardless of whether they know the bank account details.
Senator Burke has made a very good point, particularly in this day and age when there is much fraud relating to bank accounts. The Minister of State might explain the displaying of bank account details if that is what is meant in the Bill. I would certainly have reservations about showing the bank account details of any of the charities.
We should not take this out of context. The part concerning making banking information available applies where the contributions are to be made in a non-cash manner. For example, if one is paying a direct debit, obviously one knows the details of one's own bank account but not the details of the other bank. Without trying to make it too complex, it is in that context.
The Minister of State made a remark earlier on the inclusion of local authority members. It is important we would desist from the practice of excluding members of local authorities from boards, tribunals and authorities. If I heard the Minister of State correctly, he said they would not be debarred from being included. While I may be wrong, if not, I hope the Minister of State has not changed his mind. It is important we allow councillors to be part of the democratic process separate from being members of local authorities. They have much to offer and many of them are involved in charitable organisations. We deliberately did not put down an amendment to force a vote on this today. However, it is important we have recognition of their role. If I heard him correctly, I welcome what the Minister of State has said.
I support Senator Buttimer. The Minister of State at the outset said he was extending the composition of the board and that he would not prohibit local authority members from being members of the board. I compliment him on taking account of what we said on Second Stage. We never sought that they would be members of boards but we certainly do not want one group prohibited from being on the board. I compliment the Minister of State on those two issues.
I mentioned on Second Stage that I felt the Garda Síochána could play a major role in this Bill and that a member of the Garda Síochána should be a member of the board. Gardaí have a great deal to offer as they know more about these organisations than the vast majority of the public. It is a matter the Minister of State could examine. He did not mention it at the outset when he spoke about local authority members. I welcome the decision the Minister of State has made not to preclude local authority members from being members of the board and the fact that the board will be extended.
How many members will be on the board? A minimum of four is mentioned in the Bill. Along with my colleagues, I welcome the fact that the Minister of State will not preclude members of local authorities from becoming members. This has been a constant theme in the legislation we have seen coming through the House in the past number of years. Local authority members are treated as second class citizens. Even if they are the most suitable people to deal with a subject, they are debarred from becoming members of various boards.
In the Harbours (Amendment) Bill which the House discussed recently, a board will be reduced from 12 to eight. I am sure if we had a member or two of local authorities on the 17 member board of FÁS we might not have the problems we do with the board of FÁS at present. I am glad the Minister of State will not preclude members of local authorities from becoming members of this board if they are suitable persons. I am sure many of them are involved in charities throughout the length and breadth of the country. The people in local authorities work from communities that in most instances are involved in charitable work. I welcome the Minister of State's decision in this regard.
That local authority members were being precluded on a continuous basis from State boards and other statutory bodies could be wrongly interpreted as responding to a caricature of local authority members which had been promoted by certain people and some sections of the media. This was most unfair because anybody familiar with the work of local councillors will know full well that they have particularly good experience. This experience and expertise was being denied to a board.
Although not in the worst sense, it almost seemed racist in a way to set out specifically to preclude somebody simply because that person served on a local authority. It did not do public life any credit or justice. I am delighted with what the Minister of State has done in this legislation and I hope other Ministers respond accordingly. Now, more than ever, we need this experience. I often felt that when the health boards went out of existence, we lost the conduit to the public which was particularly important. We see it with the HSE to some extent. I will not set out to HSE bash because I know it is a complex issue. However, we can see a breakdown in communication with the public occurred because of the centralisation of the authority of the HSE.
With the health boards, people were able to make an approach to a local authority member who, with a telephone call or immediate approach to an official within the health board, was able to allay the fears of the person who approached him or her. It is important that we put down a marker at this stage that whatever wrong interpretation was there, it was not the intention to in some way demonise local authority members and it is difficult to find justification for precluding them simply because they are members of a local authority.
I compliment the Minister of State, Deputy Curran. I have discussed with him the matter of local authority members not being precluded. He has applied the good common sense he invariably displays in his dealings not alone as a Member of the Dáil, but in his role as Minister of State, which is not common in many cases. He gave me an indication and assurance that as far as he was concerned there would be no debarring section in this Bill in terms of precluding local authority members.
Senator Ó Murchú is absolutely correct. Many Bills have been passed with this provision and I am not here to defend anybody who has included such a provision. It is an outrageous assumption.
I compliment the Minister of State. He was true to his word. He promised me that he would not include a debarring section with regard to local authority members and this is what he did.
I, along with the Cathaoirleach, was a member of a health board for many years and I decry and bemoan the fact that local authority members are no longer on visiting committees.
I accept that but I am making a point. When members of a local authority met constituents who were residents of nursing homes, they were a friendly face and a conduit to the outside world. It is a pity that this has been lost. I compliment the Minister of State on what he did in this case.
I join Senators in thanking the Minister of State. We have had a long hard day working in the House on this important Bill. This is an important section which allows public representatives who have a wealth of experience and who are the people's choice to participate as members of any board on which a Minister of the day thinks they have the expertise to be able to assist the board members. Members on all sides of the House have fought hard for this and I wholeheartedly welcome it.
I thank the Minister of State, Deputy John Curran. I debated this issue on Second Stage and put forward a good argument with regard to the exclusion rather than the inclusion of any qualified person whether a barrister, a garda, a councillor or a teacher. By right, they should be considered. The Minister of State and I met at the parliamentary party meeting and I communicated the information to my councillors throughout Ireland and received a tremendous response to the idea that the Minister of State was considering this move. Now he has confirmed that he will ensure that councillors will not be——
She is not interested in the Harbours (Amendment) Bill.
In an e-mail which I received from her today, she stated this would be a great breakthrough. It is a great breakthrough for all Members of the Seanad because we have argued this case. It was raised at parliamentary party level and agreed by the Fianna Fáil Parliamentary Party that there would be no exclusion of councillors. Deputy John Curran is a Minister of State with a very bright future. If, at some stage in his career, he ever has——
I thank the Minister of State. He is a person who makes a decision and sticks by it. I am delighted to be associated with this because I spoke on Second Stage and I am glad the Minister of State agrees with this side of the House because we are the Government and we have influence.
I gave an indication at the outset of the debate of some of the amendments I intend to bring forward on Report Stage. I did so to be helpful and to prevent delays to the proceedings, which proved to be quite protracted in any event. Members expressed concerns about the provision whereby councillors would automatically be precluded from membership of the authority. In this regard, I was asked for the precise number of members of the authority. That has not been finalised but, as I indicated today, the number will be no less than nine and no more than 15.
I pointed out that I envisage the authority will have a supportive as well as a regulatory role. In that regard, I envisage that there will be several sub-committees. It is in this context that I am looking at the total make-up of the authority. Apart from the regulatory function, I want it to play an active supportive role. That is something we are currently examining.
I apologise for upsetting Senator Buttimer.
I assure the Minister of State that I am not upset. It is important, in devising the composition of the board of the authority and its sub-committees, that cognisance is taken of the fact that charitable organisations have vast experience. Given that today's debate was largely consensual, it is disingenuous of Senator Glynn to lampoon Members on this side of the House. Let us not forget that Government Members voted against amendments to the Harbours (Amendment) Bill 2008.
It was Senator Leyden who said that Members on that side of the House were not Trappist monks. Will the Minister of State give recognition to the role of local authority members by making provision for their inclusion in the membership of the board? Will he ensure that the majority of board members are from the charitable organisations? We must learn the lesson of what happened at FÁS and in the case of political appointments to other bodies. This authority must not become a card-carrying cumann for Fianna Fáil and the Green Party.
Senator Buttimer has covered most of what I wished to say. Charity begins at home, and that is certainly true as far as Fianna Fáil and the Green Party are concerned. Rather then precluding members of local authorities, I hope the Minister will go the whole hog and provide for the appointment of a local authority member to the board, whether from the Local Authority Members' Association, the General Council of County Councils, the Association of County and City Councils or the Association of Municipal Authorities of Ireland. Perhaps the Minister will consider the inclusion of an amendment to that effect on Report Stage.