Ivana Bacik

Second Stage Debate

Senator Ivana Bacik: I broadly welcome the Bill because the regulation of the charitable sector is long overdue. The legislation has been some years in preparation and I am delighted to see it. Like other Members I urge the Minister of State to take on board one point: to extend the definition of charitable purposes to include a charitable purpose that is beneficial to the community, namely, the advancement of human rights, as in the English legislation and the Scottish equivalent. I do not believe section 40 covers the situation. I accept the Minister has taken the view that charities that currently are recognised by the Revenue will be deemed to be charities for that purpose. I agree that will cover some charities that advance human rights. Clearly that is so, but it is not enough because there may be other charities that apply in future whose primary purpose is the protection or advancement of human rights. I urge the Minister to consider amending section 3(10)(e). An amendment to that effect may be tabled on Committee Stage but I urge the Minister to amend the section to include the purpose of the advancement of human rights.

Committee Stage

Section 2, Amendment No. 7:

In page 10, line 4, after “activities” to insert “whether in the State or elsewhere”.

Senator Ivana Bacik: 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 Ivana Bacik:  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.

Senator Ivana Bacik:  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.

Senator Ivana Bacik: 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.

Senator Ivana Bacik: 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.

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.”

Senator Ivana Bacik: 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.

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”.

Senator Ivana Bacik: I too support amendment No. 13. As I said, I would like the definition of “religion” to be extended to include humanism, but it is correct to exclude what we know as cults from this definition.

Senator Ivana Bacik:    In view of the vote on amendment No. 9, which is based on the same principle, and the comments of the Minister of State, I do not propose to press amendment No. 14 at this point, although I reserve the right to do so on Report Stage.

Report Stage, Amendment No.8

Senator Ivana Bacik: I welcome the opportunity to speak on my amendment No. 14 and related amendments, which seek to include the protection of human rights as a charitable purpose. I am disappointed because, when we debated the matter on Committee Stage, a number of points were strongly made. I look forward to the Minister of State’s reply.

As others have stated, the Bill in its original form as the 2006 charities regulation Bill included the advancement of human rights as a charitable purpose. We do not know what has changed since then that would lead to that goal’s removal. From our Committee Stage debate, it appears that no legal objection was made by the Attorney General.

As I stated then, it is the opinion of the human rights committee of the Law Society that the advancement of human rights should be included as a charitable purpose. Subsequently, I provided a copy of that submission to the Minister of State’s office, as requested. Given these facts, that the opportunity to reinsert the provision was not taken is disappointing. I hope the Minister of State might accept one of the amendments.

As Senators have stated, this week is the 60th anniversary of the Universal Declaration of Human Rights. Given this, including the advancement of human rights as a charitable purpose would be fitting. It is unfortunate the Government has seen fit to attack human rights bodies by undermining the Irish Human Rights Commission and the Equality Authority and underfunding them next year. As pointed out by the charities that have briefed us — Front Line, the Irish Council for Civil Liberties, Amnesty International and FLAC — the charitable status of between 60 and 200 organisations could come under threat unless the protection of human rights is included as a charitable purpose.

While others have referred to this, it is important to note some of the difficulties those organisations will face. According to the Minister of State, current charities will retain their status, but this is subject to change and potential challenge. This is of concern to many groups that view their primary purpose as the advancement or protection of human rights. Even if they have charitable status, they may find it difficult to access funding because the advancement of human rights is not explicitly recognised in our legislation on charities. They may also find themselves open to malicious complaints to the charities regulator. Previous speakers referred to certain charities and took issue with particular views they expressed. I do not believe it is appropriate, in this debate, to take issue with different charities and stances they may have adopted. However, this shows the dangers involved and highlights that human rights-based charities may be the subject of complaints.

I thank the free legal advice centres, FLAC, for recommending to me the 2007 annual report of the Charities Commission for England and Wales which makes the point that human rights charities are more likely to have complaints made against them because of the high profile nature of their work. The commission also pointed out that human rights are seen as fundamental to the healthy functioning of society and that respect for such rights is generally seen as a moral imperative. That is a strong statement. It is also a strong premise on which one could base a list of charitable purposes.

The Minister of State did not provide an adequate explanation in respect of this matter on Committee Stage. He must indicate why he does not propose to reinsert a provision relating to the advancement of human rights in the Bill. He must also indicate why he is not following the legislative models adopted in other jurisdictions to which reference was made on Committee Stage. It is clear that we will be out of line with neighbouring jurisdictions when the legislation is passed. The principle of equivalence of protection of human rights under the British-Irish Agreement will be undermined if we do not include the advancement of human rights as a recognised charitable objective, particularly as it is so recognised in the UK and Northern Ireland.

The charities have pointed out that resources, including funds and volunteers, for human rights objectives may be diverted to neighbouring jurisdictions, particularly as they see those as having stronger protection for the advancement of human rights as a charitable purpose.

A great deal more could be said in respect of this matter. However, I do not propose to belabour the point. As a result of the Committee Stage debate, we know of no legal obstacle to the inclusion of the advancement of human rights as a charitable purpose. There is no indication that the Attorney General has objected in any way. We are aware that the advancement of human rights is included as a charitable purpose in neighbouring jurisdictions and that difficulties will arise under the British-Irish Agreement if it is excluded. The charities — those most affected — have pointed out the many problems they will encounter if the advancement of human rights is not included as a charitable purpose.

I urge the Minister of State to take on board the sentiments we have expressed, and those put forward so strongly by the Incorporated Law Society’s human rights committee and others, and include the advancement of human rights as a charitable purpose.

Amendment No. 17:

In page 14, to delete lines 22 to 29 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.”.

Senator Ivana Bacik: I second the amendment. I echo the words of Senator Norris. This is an issue of great importance for voluntary directors of charities. I have also received communications from the Respond Housing Association, which has been very supportive of this amendment. It is supportive of the Bill as whole, as we all are, and believes that it is important to regulate the charities sector. However, the association is concerned about the problem of liability for individual voluntary directors and trustees of charities. It is concerned that it will be difficult to get indemnity insurance without an amendment such as this. It is also concerned the Minister of State may have misunderstood the purpose behind the amendment. I look forward to hearing the Minister of State’s response.

Amendment No. 18:

In page 26, line 16, to delete “established” and substitute “established pursuant to a direction”.

Senator Ivana Bacik: I am grateful to the Minister of State for clarifying the purpose of the amendment. I apologise that I did not have an opportunity to speak on this matter on Committee Stage because I wish to express a concern about the wide-ranging powers that are given to the authority after consultation with the Garda Síochána. What causes me alarm is the exclusion of any reference to the advancement of human rights as a recognised charitable purpose, despite the numerous Opposition amendments tabled to that effect. Given such an exclusion, an organisation that is deemed to be a charity because it currently exists, although its primary purpose is the advancement of human rights, may be deregistered under the new section 43. It may be deregistered where the authority, after consulting with the Garda, considers that its promoting purposes are contrary to public morality or contrary to public policy.

My general concern about both the existing section 43 and the Government amendment under discussion is that the powers bestowed are too broad and the criteria too vague. In particular the reference to public morality and public policy could easily be used effectively to deregister a charitable organisation that is in existence at present and is deemed registered but the primary purpose of which is the advancement or protection of human rights. If such an organisation in such a capacity is critical of the Government in some way, it could at some point be deemed, therefore, to be acting contrary to public policy or public morality. Those terms are too vague and the power is too broad. I have a concern about it, especially in the context of the amendments that were defeated earlier.

Amendment No. 71:

In page 73, between lines 23 and 24, to insert the following:

“96.—(1) A person who sells a Mass card other than pursuant to an arrangement with a recognised person shall be guilty of an offence.

(2) In proceedings for an offence under this section it shall be presumed, until the contrary is proved on the balance of probabilities, that the sale of the Mass card to which the alleged offence relates was not done pursuant to an arrangement with a recognised person.

(3) In this section—

 

 

“Church” means the Holy Catholic Apostolic and Roman Church;

 

 

“Mass card” means a card or other printed material that indicates, or purports to indicate, that the Holy Sacrifice of the Mass (howsoever described) will be offered for—

 

 

(a) the intentions specified therein, or

 

 

(b) such intentions as will include the intentions specified therein;

 

 

“priest” means a priest ordained according to the rites of the Church;

 

 

“recognised person” means—

 

 

(a) a bishop of the Church, or

 

 

(b) a provincial of an order of priests established under the authority of, and recognised by, the Church;

 

 

“sell” includes, in relation to a Mass card, offer or expose the card for sale or invite the making by a person of an offer to purchase the card.”.

Senator Ivana Bacik: I appreciate the Minister of State’s intentions but I wish to express my concerns about this provision. As a criminal lawyer, I am concerned that we are creating a new criminal offence which will be difficult to defend. I am particularly concerned that no provision is made for the defence of good faith. We are far too quick to create new criminal offences that purport to impose liability in the absence of any requirement of mens rea. Constitutional difficulties have arisen in this regard, although I do not want to say too much on this subject because I am involved as a practising barrister in cases which involve mens rea. Has the Minister of State received advice that the proposed measure sufficiently safeguards the rights of the accused?

 

 

I am also concerned about a very different constitutional issue. The proposed section will create the offence of selling a mass card. The definitions by which the parameters of the offence are outlined pertain to matters which are internal to a particular church. The Constitution does not grant a special position to any church and this Republic observes the principle of the separation of church and State. I am not sure from a constitutional point of view that we should be creating an offence which relies on definitions pertaining to internal matters of a particular church in this country.

 

 

I recognise the problem which the Minister of State is seeking to address and agree that people should not be defrauded. However, I am concerned about the way in which the proposed section is framed. Has the Minister of State received advice on the matters I have raised and is he confident they will not cause a problem?

Senator Ivana Bacik: On a point of order, I raised two constitutional concerns about a provision and I am entitled to raise them on the record. I am also entitled to have the Minister of State answer them. I did not engage in any criticism of the drafters but simply raised these points. In the spirit of fairness, it is appropriate in the Seanad that we raise points such as this. I do not intend to have a debate about the merits of religion and so on, although I am delighted we had the debate on humanism etc. on Committee Stage and again on Report Stage. That was a different debate. The issues I raised are very specific to this amendment.

Senator Ivana Bacik: I thank Senator Mullen but I require a lecture on the rules of canon law. It is not appropriate to this amendment.

Amendment No. 72:

In page 74, line 2, to delete “15” and substitute “20”.

Senator Ivana Bacik: In the spirit of consensus, I echo the words of other Senators in welcoming the Minister of State’s helpful amendments. I also echo Senator Buttimer’s words, as it is important to note that there may be political appointments of councillors. I hope it does not become an exercise in cronyism or jobs for the Fianna Fáil boys, not just members of Fianna Fáil. I hope for a balanced set of appointments. As already stated, it is nice to speak in a spirit of consensus. I unwittingly roused a hornet’s nest earlier when I referred to concerns I consider to be valid. Senator Mullen is no longer present but I must state that I did not intend to provoke what occurred. I accept that the amendments put forward by the Minister of State are useful and it is good that everyone in the House is in agreement on that matter.

Question proposed: “That the Bill do now pass.”

Senator Ivana Bacik:  I, too, welcome the passing of the Bill which will provide for the better regulation of charitable organisations, its primary purpose. We all accept it is generally a positive Bill. Putting in place a proper framework, in statutory form, for the regulation of charitable organisations is long overdue and in that regard the Bill is to be welcomed.

I have some regrets, including that the Bill as passed is not somewhat more inclusive in terms of definitions and, in particular, that the advancement of human rights, sports bodies and humanism is not included. The Bill could have gone further than simply maintaining the status quo on those issue. I welcome the Bill which will provide for a much greater, efficient, effective and better regulated charitable sector, for which all of us are grateful.