Private Members Motion - Charities Bill 2007 - 17th February 2009

Private Members Motion - The Charities Bill 2007 - 17th February 2009
Senator David Norris: I welcome the Minister of State but I also pay tribute to Senator Labhrás Ó Murchú. There is no question or doubt that he has been a sterling and valuable champion of human rights, and not always in the easiest times. He certainly did put his head above the parapet.
As regards the question of the Government’s adamant refusal to include human rights in this legislation, that is less and less surprising. I do not accuse the Minister of State but there is no question that there are elements within the present Government which are strongly inimical to human rights, or at least they regard them as little royal perks, so to speak, which they might legally deign to dole out to deserving recipients. That is not my understanding of human rights but this view is clearly held within certain sections of Government and the Civil Service, and I absolutely deplore it. I know there are people on the other side of the House who feel the same way.
As for the specific amendment, I have no great difficulty with it, but I want to make one little point. I do not expect the Minister of State to go back to the other House and create a big rí rá agus ruaille buaille. I wish the record could show the wonderful expression on the face of the Cathaoirleach at that point, because he expressed the horror, I believe, that we might all feel. The legislation provides that the name and number of the charitable organisation must be displayed. How visible must they be? I remember some elections ago when the late Deputy Liam Lawlor was around. He was in the same constituency as the late Deputy Brian Lenihan, the former Minister for Foreign Affairs. The Minister of State will probably know what I am referring to. Vans went around saying, “Vote No. 1 Lawlor” in very big letters and then there was a tiny little thing, similar to a telephone number or a spot, which said “Also Brian Lenihan”. That met the requirements but no one could see it.

An Cathaoirleach: Was that charity?

Senator David Norris: It was charity, yes. That was an excellent intervention by the Cathaoirleach. My God, but there is wit in the Chair tonight. However, I wonder just how visible they should be and people have a right to know just who is collecting. I live on the other side of the river, not too far away. I walk down to the Oireachtas and sometimes there are eight to ten very good registered charities in evidence. On one occasion during the passage of this Bill, there were 15 collectors from the same charity, all in their uniforms, and I could not get past them. That was an ambush, not charity.
My good friend, Senator Buttimer, craved the indulgence of the Chair and got some. I have to raise a cognate matter that is so serious constitutionally that I would like to be given some indulgence in introducing it. My colleague, Senator Bacik, also referred to it during the debate on the Bill and I welcome the fact that the legislation has come back. I am referring to the troubled issue of mass cards because I believe we have walked ourselves into a constitutional mess. I have very distinguished legal opinion on this from a former Attorney General, Mr. John Rogers, SC. The whole idea of the mass cards initiative was to regulate this area. No one wants bogus mass cards sold. That is a given and we know that they are. We know they are manufactured and may never occasion a mass to be said. The card may not be signed by a priest. It could be a bogus priest or whatever. There is, therefore, an issue of control. However, the Bill as passed, with an amendment introduced at the suggestion of two my colleagues in this House, in fact constricts religion in a dangerous manner. It also purports to establish bishops as specific licensing authorities and creates a new serious criminal offence which, in fact, can only operate in a sectarian manner.
The advice I have been given is to the effect that this is completely unconstitutional, apart from anything else, because it is excessive. I want to quote a couple of the relevant cases. As someone who is not a Roman Catholic, I must say the whole thing seems to be absurd anyway because it is clearly simoniacal. It is classic simony, an attempt to sell, and the word “sell” is used in the legislation and in the Minister of State’s speech. One cannot sell things of the spirit because that is a blasphemy. I feel for my Roman Catholic friends who are bereaved, and I have often acquired these mass cards, to use a neutral word, to be told that the offering was €7.50 — a specific rate. From the cash registers to the rest, it is clearly a sale. It is too theological to debate the issues but the signing of the mass card by the priest is clearly a religious practice. The new section 96 purports to limit this by subjecting the sale of mass cards to the consent of a senior cleric, usually a bishop.
These issues have been considered by the very distinguished Mr. Justice Walsh in his 1972 judgment in Quinn’s Supermarket v. Attorney General in which he stated: “Our Constitution reflects a firm conviction that we are religious people.” That conviction has sometimes caused difficulties to me and others but there is no argument about it. He further argued, however:

It appears to me therefore that the primary object and aim of Article 44, and in particular the provisions of s.2 of that Article, was to secure and guarantee freedom of conscience and the free profession and practice of religion subject to public order and morality; and to ensure that the practice of religion and the holding of particular religious beliefs shall not subject the person [this is the important part] so practising religion or holding those beliefs to any disabilities on that account.
He argued in the same judgment that as a result of Supreme Court decisions, legislative intervention into religious practice, which is allowed under certain conditions because freedom of religion is not an absolute right under our Constitution, should be subject to the following test: “Any law which by virtue of the generality of its application would by its effect restrict or prevent the free profession and practice of religion by any person or persons would be invalid having regard to the provisions of the Constitution, unless it contained provisions which saved from such restriction or prevention the practice of religion of the person or persons who would otherwise be so restricted or prevented.”
The question then arises of the application of a test for legislative intervention in the regulation of the practice of religion, in which regard the former Attorney General, Mr. John Rogers, opines:

Section 96 will impose a disability on persons seeking to buy Mass cards for the purpose of professing their religion in that in seeking Mass cards they will not be able to acquire Mass cards other than those made available pursuant to an arrangement with a bishop or provincial of a religious order. It is difficult to see how the imposition of this disability is mandated or required by public order criteria or by the requirements of morality. On the face of it, section 96 seems designed simply to ensure that Mass cards have authentic provenance but it does so by way of an absolute blanket prohibition on the sale of Mass cards which are made available for public sale but which are not so available pursuant to an arrangement with a bishop or provincial of a religious order. There seems not to be a justifiable basis for imposing this disability on the getting of Mass cards; the dictum of Walsh J. that the law “shall not subject the person so practising religion or holding those beliefs to any disabilities on that account” appears to be offended by this absolute bar to access to Mass cards which derive from a source not the subject of an episcopal arrangement.

It may be perceived that in the absence of regulation of the kind contemplated:

—A person might sell a Mass card which was fraudulent, in the sense that it was not signed by a priest, and/or in the sense that the seller would not procure the saying of a Mass for the deceased;

—A person might sell a Mass card to a person who believed that the price which he paid for the card would go for a charitable purpose, in circumstances in which this was not the case.

The proposed legislation goes further than is reasonably required to address these evils, in that it renders a sale unlawful simply because it is unauthorised, the matter of unauthorised sales may well be a matter of concern to the Catholic Church, but does not appear to constitute an issue of public order or morality which would justify limiting religious freedom in the manner contemplated.

The criminalisation of the sale of Mass cards is another aspect of the disproportionate nature of this piece of legislation. The criminalisation of the sale of Mass cards by those outside the categories of recognised persons will involve the State in the adoption in criminal jaw of restrictions in the practice of religion in a manner which is not supported by Article 44.
I am grateful for the Cathaoirleach’s indulgence in allowing me to set out the opinion of a man who held the highest legal office in the State regarding this important constitutional issue. Although I can put aside my reservations on the question of simony, it appears that in addressing a scandalous issue a dangerous situation has developed, albeit unintentionally and with goodwill. It is dreadful to think of old ladies in my area scraping their pennies together to purchase mass cards which are sold by people who have no real spiritual interest and simply want to make money. However, a sledge hammer is being used to crack a nut and it may well be unconstitutional. I do not know what mechanism exists at this stage to test the section but I have been briefed by an old friend with whom I attended school. This man, who is of considerable eminence, forwarded Mr. Rogers’s opinion to me.

Minister of State at the Department of Community, Rural and Gaeltacht Affairs (Deputy John Curran): The motion before the House tonight pertained to a technical amendment. The Bill formerly put an onus on non-charities to display a charitable number, which simply could not be done. The amendment regularises an anomaly that existed in the Bill.
The evening would not have been complete without the intervention of Senator Norris. He raised a point in regard to the size of the print. He is correct that the Bill does not require the print to be so many millimetres.

Senator David Norris: It could require the print to be clearly visible.

Deputy John Curran: The provision states: “in a prominent and clearly legible manner” but it does not specify the size.

Senator David Norris: I beg your pardon.

Deputy John Curran: We are helping the Senator out.

Senator David Norris: I withdraw my protest.

Deputy John Curran: In regard to mass cards, I inherited this legislation when I was promoted last summer and it was one of the first matters to come across my desk. The issue of door-to-door collections and mass cards were cause for considerable concern among the public rather than the charitable sector or vested interests. I do not have a legal background and would not claim the technical expertise necessary to address the issue but the amendment as presented came from the Office of the Attorney General. We have always recognised the challenges involved and the provision was not drafted in isolation. We rely on the Attorney General’s legal advice in bringing forward legislation.
I do not want to rehearse our previous debates on the issues but I thank Senators for their constructive contributions. We have worked to improve this legislation to the greatest extent possible. Senator Buttimer frightened me when he expressed the hope that we will all be here in five years’ time to review the legislation. We do not know who will be here at that stage. Long before the time arrives for the five-year statutory review, we will have substantial work to do in regulating and bringing order to the charities sector while at the same time inspiring the public’s confidence. As all Senators have recognised, this has to be done in a way that avoids putting undue burdens on small and medium-sized charities.
Senator Norris referred to fund-raisers. Some of these issues are not specifically provided for in the Bill but we are working with the sector on codes of practice for fund-raising. I am not merely waiting for the five-year mandatory review, therefore, but will be giving effect to the legislation over the next several years. 7 o’clock
I thank Members for the constructive nature of our debates, even if we have not agreed on everything. Our deliberation on the Bill has for the most part proceeded in the direction that people sought. I acknowledge the cross-party support I have received on most issues. I concur with Senator Buttimer regarding the officials in my Department who worked tirelessly on this legislation, including Terry Dunne and Joe Hammill, who briefed and advised me. To be fair, they made themselves available to explain and clarify issues for Members of the Opposition in this and the other House. thus allowing people to debate the real issue and preventing any misunderstanding or obscurity in that regard. Senator Buttimer is correct that often those who work tirelessly behind the scenes, who are dedicated and professional in their work, are not acknowledged. I am glad Senator Buttimer did so. I take this opportunity to extend my appreciation to them and to thank all Members of the House for their contributions.