I understand that amendments are being recommitted.

I understand the arrangements is that so far as the Opposition have put down amendments they may be discussed as in Committee. I have no wish to have my amendments discussed in Committee.

We are in Committee on these amendments?

That is the understanding.

I move amendment No. 1:

In page 4, line 14, to delete "for Ireland."

This point was introduced by Deputy Cosgrave on the last occasion. It queries why this Board should be called the Commissioners of Charitable Donations and Bequests for Ireland. It is quite clear that the Board can only refer to an institution established here. I am moving that the words "for Ireland" be left out.

I cannot accept this amendment. In the first instance, I should like to point out to the House that the Bill proposes to continue in existence a Board which is already called "The Commissioners of Charitable Donations and Bequests for Ireland." That is the name of the existing Commissioners. We are not appointing a new set of Commissioners but merely carrying on the existing Board. In the circumstances it seems to me that it would be technically wrong to change the name. Apart from that, there are very practical considerations why we should not change the name.

The Board has a great number of investments, stocks and shares of various sorts, registered in the existing name. If the name were changed, the name used for all those investments would have to be changed. The expense could be quite substantial and I do not think it would be at all sensible to incur it. Furthermore, I imagine a difficulty would undoubtedly arise in the case of property which the Board holds. There are certain charitable lands held in the Board's name. The change of name might not give trouble immediately but, certainly, trouble would arise at some stage in the future when the question of the transfer of these lands or investments came up for consideration. Therefore, for a number of reasons it is impracticable, technically difficult and indeed expensive to make a change in the name.

Apart from all this I should not be favourably disposed to change something that has been there for over 100 years, something which is a tradition. Unless there was an overwhelming reason we should not lightly change a name like this.

I do not agree at all that there is the slightest legal basis for the matters about which the Parliamentary Secretary is talking. The fact that the name of the Board is changed in new legislation does not affect the way in which property is held at the moment. If we are seeking to start a new Bill, the Board should be given a title which will be distinctive without the term "for Ireland" being inserted. The Interpretation Act is still outstanding and regularises the whole matter, in any event.

Surely Deputy McGilligan must ralise that, in the case of stocks and shares held in America, Canada or elsewhere, immediately we change the name of the Commissioners it would be necessary to have these stocks and shares registered in the new name? Those technical and practical difficulties could be got over but why should we have them unless there was some real reason? No such reason has been advanced.

The majority of boards are not distinguished by the words "for Ireland".

Córas Iompair Éireann.

That is one.

The Republic of Ireland.

That is the title of the State. Córas Iompar Éireann is a misnomer because Éire was expected to be the whole of the country——

Bord Fáilte Éireann.

That to my mind is a mistake.

Bunreacht na hÉireann.

I take Bord na Móna. One can swing either way but Section 5 continues the Board notwithstanding what is done here. It will continue the board as a holder of property until they like to change themselves. There is no legal basis for the argument put forward.

I move amendment No. 2:

In page 4, lines 31 to 36, to delete subsection (2) and (3).

I really do not understand the reason for subsection (2) being there, and if subsection (2) is necessary I do not see what subsection (3) has got to do with it. The Interpretation Act, 1937, governs the whole thing. You can repeal the enactments and under the Act—I am speaking generally—anything done prior to the repeal of the enactment still continues. There is no necessity for these subsections.

If Deputy McGilligan's only argument is that there is no necessity for the subsections I think we might as well leave them there. The idea is to continue in existence orders, decisions and so on, of the Board and to treat them as having been made under the relevant provisions of this Act. I do not see what the objection is. If the objection is that they are not strictly necessary, then ex abundanti cautela we should leave them there.

That is a very poor argument. Section 21 of the Interpretation Act, 1937, runs this way —"Where an Act... repeals the whole or a portion of a previous statute"—that is what is done by subsection (1)—then "such repeals", I need not quote the full passage, "shall not (b) affect the previous operation of the statute or portion of the statute so repealed or anything duly done or suffered thereunder". Therefore I see no reason for the subsections, if I cannot be given one reason outside of caution.

These are things done by the Board, under the general umbrella of the existing Acts—orders and decisions of the Board—and we are——

Look at the end of subsection (2) "as if made, given or done under this Act." That is what you are legitimatising.

Yes, as if they were done under this Act.

Yes. Surely the Parliamentary Secretary will agree, in regard to Section 21 of the Interpretation Act, that "anything duly done or suffered" under the previous enactment is carried forward. Surely that is wide enough to cover everything here?

The Deputy means subsection (2)?

No, the section I read out, Section 21 of the Interpretation Act, which says if an Act is repealed then it shall not affect anything duly done under the previous Act.

I am advised that they are not covered as we want them covered. My advice is that it is necessary to do this. If we are advised by our experts and the Parliamentary draftsman, why argue about it? The only argument the Deputy can advance in favour of deleting these two subsections is that they are not necessary. I say I am advised they are necessary.

That finishes it.

If the Deputy has not a better argument than that they are not necessary, surely we can leave them there?

I have given an argument.

The Deputy has not.

Are they not things done under the previous enactment? Against that, I am told the Parliamentary draftsman says it is necessary. Parliamentary procedure could be brought to nullity if a Minister or Parliamentary Secretary said: "The Parliamentary draftsman says this is necessary". That is not an argument.

One can only be advised by experts in any branch of the law. The Deputy is no more a draftsman than I am. The Parliamentary draftsman and the experts advise me that the provisions of the Interpretation Act are not sufficient to guarantee——

Did they tell the Parliamentary Secretary why they are not sufficient? Tell me?

Because these are not things specifically done under the proposed Act. They are done by the existing Board under the existing Acts.

Were they not done by the Board under the previous statute?

But not under this statute.

They were done previously by the Board under the repealed enactment. One cannot argue against a person who says: "I am told this is necessary."

I move amendment No. 3:

In page 5, to delete lines 6 and 7 and substitute "The Board shall continue".

We have already in Section 2 defined the Board as being the Commissioners of Charitable Donations and Bequests for Ireland. Section 5 reads:

The Commissioners of Charitable Donations and Bequests for Ireland (in this Act referred to as the Board) shall continue in being, notwithstanding the repeals effected by this Act, as a body corporate with perpetual succession and a common seal and may in their corporate name sue and be sued.

Why not say "The Board shall continue..."? Is it not defined that "the Board means the Commissioners of Charitable Donations and Bequests for Ireland?

This section deals with the continuance of the Board. I feel it is as well to spell out the full title of the Board.

Even if "the Board" has already been defined?

Even if—yes.

Why not put it everywhere afterwards?

This is the section which continues the present Board in existence.

The Board, which is the Board of the Commissioners of Charitable Donations and Bequests for Ireland. Why not leave it at that?

You possibly could if you wished but we want to do it this way.

It is not a great argument.

It is just as good an argument as the Deputy's.

We know what the Board is. It is already defined.

I know the Deputy's argument.

Why not say "The Board shall continue"?

This is the main section carrying forward the existing Board. I want to make that abundantly clear. We are carrying forward the existing Board.

Could anybody mistake the position? It is "the Board" when you have already defined it.

Mistakes are always possible.

Yes, over there.

Why not put in "the Commissioners of Charitable Donations and Bequests" every time for "the Board"?

This is the principal section.

The Board is defined as meaning the Commissioners of Charitable Donations and Bequests for Ireland.

Amendments Nos. 4 and 5 might be taken together.

I move amendment No. 4:

In page 5, line 31, to delete "the senior member in order of appointment or such other" and substitute "such".

This point was raised on an earlier Stage. It appears unnecessary to say that if the chairman is absent, the senior member in order of appointment shall be chairman, if you flank it with "or such other member as the Board may select". Why not leave it to the Board to select?

This procedure was specially asked for by the Board. It is desirable that this House should accept the request of the Board in that regard. The Board has been there for over a century. They have well-settled practices, procedure and methods of operation. They know their own business best. This is the way they want to conduct it. This House should be very reluctant not to agree to that request. As I understand it, they want a permanent chairman and, in his absence, they want the senior member to preside. The House will readily realise that on a board of this nature a number of reasons could arise in a particular instance why the senior member would not wish to preside. Therefore, if the senior member, in the absence of the permanent Chairman, does not care to preside, the members present can elect whomever they wish to be chairman for that particular meeting.

How do you become a senior member?

Seniority ranks from the date of appointment, as will be seen in subsection (2) of Section 9.

It is not in the subsection. It does not say such other member shall be chairman if the senior member does not want to act.

This is the way the Commissioners want to operate.

First, it is the Parliamentary draftsman who wants something and now it is the Board.

I am a reasonable man.

The Parliamentary Secretary is not very independent when he must hide behind two officials.

I move amendment No. 6:

In page 5, lines 41 and 42, to delete "if due notice of that meeting was given to all the members".

If due notice has not been given to members, surely there is no meeting? Why provide for a quorum only if all members have got notice? If notice has not been given properly, I suggest there is no properly constituted meeting.

If the Deputy's amendment were accepted, three members of the Board might get together and purport to constitute themselves a meeting. We should guard against that situation.

You have to have a meeting of the Board before you get three of a quorum.

They could reasonably claim to constitute themselves a meeting.

Is there a meeting, if notice has not been given?

It strikes me as odd. The first question that arises under subsection (4) is what is a quorum, if due notice has not been given?

If due notice has not been given, there is no proper meeting.

Then I do not see any necessity for the word.

You must have a meeting lawfully called before you have a quorum.

You cannot have a meeting without notice being given.

This subsection could be read as implying that there was some other way of having a meeting. I should have thought it correct procedure to say that a meeting could be held only if due notice was given. The two things should be separated and not jammed into one.

I think both are contained here. I agree with Deputy Sheldon who says that in order to have a meeting these two elements are necessary: first of all, due notice and then, a quorum. I think the form of words we have here gives exactly that. Provided due notice has been given, three could form a quorum. If due notice has not been given, you cannot have a quorum, and therefore, can have no meeting.

Hear, hear! Therefore, if you have a meeting, you have three as a quorum.

Would this have been taken from the Charities Act in England?

No. It is a from the 1871 Act.

Taken verbatim from it?

Almost.

That is the point. This will arise later on on an amendment I have put down where a section is taken from another Act but a change is made. A piece of telescoping is done. The result is that it is perfectly horrible phraseology. This is terrible. It is possible to read it another way. Surely, when we are passing a Bill, we might have some regard for the language, even if it is not the first official one. Whether this was drafted by an English Parliamentary draftsman or not, I still think it is terrible.

Let me clear up the question in relation to the 1871 Act. It says: "Provided always that such three Commissioners are for such purpose assembled at a meeting whereof due notice shall have been given to all the Commissioners." It is the same idea in essence.

If there is not due notice given, will two form a quorum?

No.

Why?

Because if there is not due notice, there is no meeting.

Hear, hear! That is what I said.

It does not say that.

Therefore, have three as a quorum at every meeting.

Suppose some one said he got no notice, would that invalidate any action taken?

Yes, if he got no notice.

In the old days in relation to Parties, when a secretary wanted a successful division, he did not inform some of his enemies. I am not saying that will happen in this case.

It will be a question of fact as to whether notice was given to all the members or not. We are getting into the realms of fantasy.

Not really. What the draftsman has done is to invert the sentence in the 1871 Act. If it read: "due notice having been given," I would not have any objection.

I move amendment No. 7:

In page 6, line 25, after "Act" to insert "other than any suit or proceedings instituted or taken by or with the consent or authority or at the direction or on the certificate or application of the Board under sections 23, 24, 25, 26 and 27 of this Act or on any application or appeal to the High Court under section 33 or section 43 of this Act."

This is a matter which we discussed at great length on the earlier Stage. I want to repeat very briefly what was said on that occasion. The section reads:

A Judge of any Court shall not be prevented or disabled by reason solely of his being a member of the Board from hearing and determining any case relating to a charity or any case arising under this Act, but may hear and determine it as if he were not a member of the Board.

In the course of the arguments, the point was made that if there were any disturbance of this, it meant that a Commissioner, being a judge, could not sit afterwards to hear any charity case. I concede at once that merely the fact that there is a judge on the board and some charity case comes before the judge, he should not be precluded from hearing it. The section also says that a judge "shall not be prevented from hearing and determining any case relating to a charity or any case arising under this Act." That now is introducing this principle—I still think it is a bad one — into a whole variety of things established here. I am referring to Sections 23, 24, 25, 26 and 27 and various applications under Sections 33 and 43. The point is a fairly clear one. It is necessary that justice should not merely be done but should seem to be done.

I decided to put in my amendment leaving unchanged that the judge shall not be prevented by reason solely of being a member of the board from hearing and determining any case relating to a charity. I want to distinguish the new matters that are brought under this Act. The distinction is made by putting in that he is not to be precluded from hearing any case "other than any suit or proceedings instituted or taken by or with the consent or authority or at the direction or on the certificate or application of the Board under the sections mentioned or on any application or appeal to the High Court under the sections mentioned".

I think that is quite a good amendment. A good deal of emphasis was put on the word "solely". It was suggested that we should not attempt to teach judges how to do their business, but before I answer that, I want to point out that the side note is not a proper side note to what is in the section itself. The side note says:

Membership of board not to disqualify Judge from hearing charity cases.

That refers only to the general matter of any charity but it does not refer to the particular matter.

With regard to teaching the judges their business, Deputies who have glanced at two new pieces of legislation which came into the hands of Deputies in the last couple of days proceeding from the Department of Justice will see that in these Acts we teach judges their business. We tell how the judges ought to be addressed. We broke the great line which seems to have been the strong point of the Parliamentary Secretary the last day.

I do not think there is any great validity in the last point made by Deputy McGilligan. I certainly do not propose to persue it now. With regard to this matter of judges as Commissioners, I am afraid I can only repeat substantially what I have said before. I object to writing specifically into this Bill a provision that the judiciary shall or shall not hear certain types of cases. Discussion has taken place here, and I have made the Government's view clear. We regard it as very undesirable that a judge should sit as a member of the Charity Commissioners, hear a case and subsequently sit to determine that case. The Opposition have made their view clear; they strenuously object to these proceedings also. But they go further than we do. They say that not alone should it not happen but we should provide against it. That is the only real difference between us. Now that we have had this discussion and it has been made clear by all concerned that it would not be desirable that this should ever happen, whatever remote chance—I do not admit that there is any—there may have been that it might happen, I think it certainly cannot happen now. I indicated earlier that if we were to write into this Bill a provision of this nature laying down in an Act of Parliamentary protocol for the judiciary, it would be a very dangerous precedent and one which would have to be followed in subsequent Acts of the Oireachtas. For that reason, I think that at this stage Deputy McGilligan might let the situation rest.

Does the Deputy agree?

No. I want to make my point specially in relation to a couple of sections. Section 23 allows the Board, with the previous consent of the Attorney General, to sue for the recovery of any charitable gift intended to be applied in the State which is improperly withheld, concealed or misapplied. Section 25 is in these terms:

"If it appears to the Board desirable that legal proceedings should be instituted with respect to any charity by any person, other than the Attorney General, the Board may authorise ... those legal proceedings."

I am taking the position of a judge who is a member of the Board. He acts under Section 23. A matter comes before the Board of which he is a member, and when he is present, and the Board decides, with his assent, to sue for the recovery of a charitable gift. On a later occasion, when the judge is present and taking part in the discussion, the Board decides to institute legal proceedings. Under the other section, the judge is then entitled to go round to his court, sit, hear, and determine the points at issue, having previously interfered as a member of the Board. I think it is wrong even to permit of the possibility of such a thing happening. We have been told now by the Parliamentary Secretary that this was discussed and opinions were made clear. I rather gathered from his remarks that, because there was a discussion here along certain lines, the judges, even if they were tempted to sit in such proceedings, would not do so. Is that the argument?

It is a gloss on it.

The Parliamentary Secretary knows very little of court proceedings.

Thank you.

One of the things no judge will ever look at is what was said in Parliament. Judges absolutely close their eyes to seeing anything and their ears to hearing anything that goes on in Parliament. If they were to take cognisance of things like that! Do not forget that about five Deputies took part in the discussion and one Deputy sitting behind the Parliamentary Secretary thought it was a most wise and proper and prudent thing that a judge sitting in as a member of such a Board should subsequently officiate as a judge in relation to matters that had taken place at the Board.

I think the Deputy is greatly exaggerating what was said.

He said enough to embarrass the Parliamentary Secretary and he was prevailed upon to leave after a bit. Deputy Sheldon, who did not think my fears were substantiated in the first instance, said that the argument made by Deputy de Valera had made the fears real to him.

He did not convince me that they were well grounded, all the same.

That was Deputy de Valera's argument: Who better to try the case than the man who had been in the boardroom and heard the whole matter discussed in camera there? That was the argument. I put that only as a point against what the Parliamentary Secretary says with regard to judges paying attention to anything said in Parliament or reading anything recorded in Parliament. They just do not do it; they will not do it. We are dealing here with general charity matters going back to the 1867 Act. We are certainly refurbishing old powers in Sections 23 and 26. I think it is undesirable even to leave it to be misunderstood that a judge can sit and hear a case which he previously heard as a member of the Board.

There is one point about which the Deputy may not be aware. The Opposition have changed their ground to the extent that they now admit there is nothing wrong in having judges acting as Charity Commissioners.

What?

There is nothing wrong in having a judge a member of the Board.

I do not think that was ever really contested.

Deputy Dillon clearly made that statement on the Committee Stage: I shall produce the record, if necessary. I have read the record, and I shall read it again, and it clearly proves that Deputy Dillon stated categorically——

That in certain circumstances he would prefer not to have a judge and it would be better not to have certain other things.

That is by the way. He clearly indicated that a judge should not be a member of the Board. The trustees of any charity who wish to take legal proceedings must notify the Charity Commissioners to that effect before they can initiate those proceedings. Every charity matter, therefore, which will come before the court will be notified to the Charity Commissioners. That fact is in itself sufficient to vitiate Deputy McGilligan's argument. If his argument were accepted, any judge who was a member of the Charity Commissioners would be precluded from hearing any charity proceedings at all in so far as every charity proceeding must be reported to the Charity Commissioners before it can go to court. In relation to what Deputy McGilligan said on Committee Stage and so far on this Stage, he agreed that that would be ridiculous.

On the Parliamentary Secretary's explanation, I do not now.

If Deputy McGilligan persists with his amendment, he will force us into the position in which no judge who may be a member of the Charity Commissioners can hear any charitable matter at all.

Any charitable matter which he heard, in the first instance, as a member of the Board. I think he should not hear such a matter.

I am trying to explain to the Deputy that the law as it stands is such and we are carrying it forward in Section 53: before any proceedings can be taken in relation to a charity matter, the Charity Commissioners must be notified. Therefore, the Charity Commissioners will be aware—

That is a different point. Being aware is one thing.

—of every legal proceeding in a charity matter. If Deputy McGilligan's amendment were accepted, no judge who was a member of the Board could ever hear any charitable matter at all. I do not think Deputy McGilligan wants that.

I do now, after that explanation. I make a distinction. If it is right—I was not aware of it— that notification of all such proceedings must be given to the Charity Commissioners, I hold that notification is one thing and active intervention is another thing. There is active intervention in Section 25 inasmuch as the Board may authorise legal proceedings. I think it would be very wrong that Judge X, being a member of the Board, would authorise the institution of legal proceedings and subsequently sit and determine the action. In any event, the answer is that he will not but that he should not be prevented from doing it merely because he is a member of the Board. I think there should not be the slightest possibility left in that such a person could hear such a case.

The difference between us is now crystal clear. Deputy McGilligan says that there should be no possibility of his doing that. I say that there is no possibility of his doing that but I think it would not be desirable to provide that he should not do so. I have already instanced the case of a judge who sends papers to the Attorney General, say in relation to perjury. In that case that judge would not sit to hear the perjury charge.

He could not.

Deputy McGilligan says that he could not. Why could he not? It is not in any Act of Parliament.

I am not so sure about that.

You can be sure about it. It is not.

Or in the common law?

That is a different matter.

I move amendment No. 8:

In page 6, to delete lines 48 to 53, and in page 7, to delete lines 1 to 5, and to insert the following paragraph:

"(c) the auditor may, by giving notice in that behalf in writing to any person, require that person to attend at the office of the Board at such time as is specified in the notice to give evidence on oath in relation to any matter in question at the audit and to produce any books, deeds, accounts, vouchers or other documents in his possession, custody or control which relate to any such matter, and——

(i) any person to whom a notice has been given under this paragraph who refuses or wilfully neglects to attend in accordance with the notice or who wilfully alters, suppresses, conceals or destroys any document to which the notice relates, or who, having so attended, refuses to give evidence or refuses or wilfully fails to produce any documents to which the notice relates shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding twenty pounds, and

(ii) any person who in giving such evidence on oath wilfully makes a statement which is to his knowledge false or misleading in any material respect shall be guilty of an offence and shall be liable on summary conviction thereof to a fine not exceeding twenty-five pounds or, at the discretion of the Court, to imprisonment for any term not exceeding six months or to both such find and such imprisonment;".

The object of this amendment is to provide for the attendance as well as the evidence of any person required by the auditor. Paragraph (c) of sub-section (4) of Section 14 provides that the auditor may call before him and examine on oath any person and it then goes on to provide for false evidence. The new paragraph proposed in this amendment covers the production of any books, accounts and vouchers required by the auditor and also imposes a penalty for refusal to attend or refusal to give evidence. The amendment will bring the law into line with that contained in Section 86 (2) and 3 (f) of the Local Government Act, 1941, as amended by Section 93 of the Local Government Act, 1946. These provisions relate to the auditing of accounts of a local authority.

We shall discuss amendments Nos. 8 and 9 together.

I cannot accept Deputy McGilligan's amendment. First of all, we are not making the offence perjury.

You did in the early draft of the Bill.

We did, but not now. "Material respect" means a respect material to the statement, not to the audit.

In regard to amendment No. 9, this was drafted in the light of the early draft of this legislation which made a person making a statement which was to his knowledge false or misleading guilty of perjury. The only difference, so far as my amendment is concerned, is with regard to the phrase "which is to his knowledge false or misleading in any material respect" and the phrase "material to the examination which he knows to be false or does not believe to be true". I do not think that it is any assistance to say that a statement is false or misleading "in any material respect". A statement can be material without being material to the examination. All that is being aimed at are statements that are material to the examination. We have the words "false and misleading". I do not know what those words are supposed to cover in the Local Government Act. I was told that this phrase was taken from some of the Army Pensions Acts.

The 1949 Act. It is the provision with regard to people coming before the auditor that is taken from the Local Government Acts.

Is the phrase "false and misleading" in both Acts?

Only in the Army Pensions Act.

Surely that is a provision which covers a very large range of matters and I do not know why it is necessary to bring it in here. The draft I have here says that the auditor may call before him any person whose testimony, in his opinion, is necessary to the examination in the matter of the accounts. That has disappeared from the amendment. It said that by giving notice in that behalf to any person he may require that person to attend at any time at the office. Apparently there is a wider power there somewhere and the auditor must have some belief that the person was necessary. I do not know why it has been enlarged.

I do not think it is right to put in the phrase "false and misleading in any material respect". If there is anything in the way of an offence committed, it ought to be only in relation to a false and misleading statement in regard to the examination.

I agree that the word "material" is in respect of the statement in our draft. The whole of the statement need not be false and misleading, as long as some of it is. Therefore, if somebody wilfully makes a misleading statement he should be guilty of some form of offence. We are not making it perjury. We are merely making it a statutory offence punishable under the section.

Why not say so?

We do say so.

I think an objection is being taken to my amendment on the ground that part of the statement may be false or misleading but not material. My amendment provides for any statement material to the examination which is false or is not believed to be true.

I move amendment No. 10:

In page 7, to delete all words after the word "discretion" in line 42 down to and including the word "circumstances" in line 44.

Perhaps amendments Nos. 10 and 11 could be taken together.

I said earlier that the Act referred to in the side heading, the 1871 Act, had referred to the small amount of the charitable devise. Reading through the section, it appeared to me that all these words were not necessary because in any circumstances the Board may, in their discretion, exempt any person from the obligation imposed on him. Why leave in all these words that do not mean anything? Why not leave them out? If you are going to tie the Board, why not go back to the old Act and say: "On account of the small nature of the bequest, the Board in their discretion can exempt"?

I think it is well to indicate the specific circumstances in which the Board may exempt. First of all, with regard to the amount——

Big and small?

Big and small.

Why put it in at all then?

The Board cannot exempt completely at their discretion. They must have regard to the amount or some special circumstances involved. I have already argued on the Committee Stage about whether or not we should use the word "small". Our simple reason for not using it is that it does not add anything to "amount".

I think a lot of the words mean nothing. Does not "at their discretion" cover everything?

No. The Board can only exercise their discretion in relation to either of these two factors, the amount of the bequest or special circumstances involved.

The amount may be either too big, too small or in between. What tie is that on anybody?

The normal situation would be that it would be a small bequest.

Then why not say so?

Because it is is not necessary.

Once you get away from that anchorage, you are adrift.

Is the term not "at their discretion"?

Why not say they can do what they like?

They cannot do what they like. They must act judicially and judiciously.

The Parliamentary Secretary knows what judicially means?

And judiciously.

That is not here. That is an entirely different thing.

I move amendment No. 12:

In page 8, line 20, to add at the end of subsection (4) " prior to the making of such order".

This is merely to anchor the matter a bit more solidly to the activity prior to the making of the order. I realise that subsection (3) says that if the Board give their opinion or advice to a trustee during any period—then there is a reservation—a trustee who acts on or in accordance with the opinion or advice shall be deemed to have acted in accordance with his trust. The reservation is in relation to "not being a period after the making of an order in relation to the matter by a Court of competent jurisdiction". Subsection (4) takes that up and says:

No order made subsequently by a Court shall have any such retrospective effect as to interfere with or impair the indemnity given by this section to a trustee, executor or other person who has acted on or in accordance with such opinion or advice.

The word "retrospective" has been put in there.

Take "subsequently" and "restropective" together.

We agree to give the idemnity in relation to anything done before a court order has been made. It is fairly well fastened by subsections (3) and (4). The words "restrospective effect" seem to me to weaken it a bit.

If Deputy McGilligan would read the whole of subsection (4): "No order made subsequently by a Court shall have any such restrospective effect ...". I think that makes it abundantly clear that it is related to the period before the making of the order by the court. Deputy McGilligan accused me earlier of putting in unnecessary words. I think he himself might have fallen into this error on this occasion.

No. I think this is required. The two subsections (3) and (4), taken together, are not sufficiently clear. What everybody agrees is that the idemnity should cover anything done prior to the making of the order but not subsequently. You have copperfastened it by putting in those seven words at the end of the subsection. However, I have made my point.

I move amendment No. 13:

In page 8, line 48, after "constent" to insert "in writing".

I went to the Act referred to. The consent is generally given in writing. If it is ordinarily given in writing, then why not say so?

It would normally be given in writing; but if it is challenged, it will be a question of fact whether or not it was given. The evidence would have to be produced in court whether the Attorney General actually did give his consent.

I move amendment No. 14:

In page 10, line 28, to delete "if they think fit, may by order" and substitute "may apply to the Court to".

This is on Section 29. Section 29 gives the Board power to frame schemes applying property cy-prés. In subsection (4) you come to a point where a scheme has been made by order of the court and in certain circumstances, the value not being over £5,000, the Board is given power to change a court order. This is not going to happen very often and I do not see why, if the court has made an order, it is thought some modification of it is required and the circumstances make that desirable, one should not apply again to the court instead of leaving the Board power.

It is simply a question of expense in the case of small charities. I am aware of one charity at the moment where the total funds involved amount of £1,600 and an application to the court for a cy-prés scheme cost over £630. This is entirely to deal with that sort of case. It is not correct to say we are allowing for an order of the court to be revoked. We are dealing with a scheme which has been framed by the court and failed. It is only if a scheme framed by the court fails, that the Charity Commissioners can come in. There is no question of overriding the court or of appealing to the Commissioners against a decision of the court or of overruling an order of the court. It is simply a question of where a scheme fails and, as I said before, a scheme is just as likely to fail if drawn up by a court as any other scheme. It is a question of saving small charities the expense of applying to the court for a cy-prés scheme.

And the Parliamentary Secretary gives as an example an application which might cost £630?

I have such a case in mind.

I am talking about average cases. No application for a small scheme would cost £600. Was that expense incurred in recent years?

I am informed it was recently. Subsequent to this debate I shall give the Deputy the facts of the case. The total funds involved were £1,600 and the cost of the cy-prés scheme was over £630.

Surely there must have been a tremendous amount to bring before the court?

I do not care. It is that type of case I want to provide against.

The thing is phrased as a simple matter. A scheme is made; it fails and goes before the Board. If it is as simple as all that, it could not possibly cost £600.

You would be amazed at what lawyers can do when they get at charity funds.

Deputy McGilligan does not seem to have adduced any reason why a scheme made by the court should get better or as good treatment as a scheme made by the testator. It is not a question of a board changing a scheme but of a scheme which has failed either by some matter relating to a benefactor or arising from a court.

Why put in a sub-section about it? Sub-section (2) refers to the Board framing a scheme; subsection (3) refers to the fact that the Board may frame a scheme; and subsection (4) talks about the scheme having been framed. All you have to do is go back to the court. This is all nonsense. I can resurrect a famous case, that of the Sinn Féin Funds, a case which the Government of the time tried to bulldoze through. A constitutional action was fought on it. There was £26,000 in the Fund at the start but by the time the action was completed there was only £1,700.

That proves my point.

It does not prove the Parliamentary Secretary's point. That was a very involved matter and it had to go back to the judge and by the time it was completed, there was hardly any money left because the judge had finally to decide who was entitled to the money. I could give that case to prove you should not go near a court at all.

Wise men, etc. Deputy McGilligan is talking as if schemes made by the courts belong to the courts in some way.

I thought the courts had a certain sanctity.

I do not see how that comes in here. Deputy McGilligan knows that it is to save small charities costs, to avoid trustee funds being frittered away in legal costs. It is following requests of most trustees that this provision was necessary. As well as that, the amended scheme prepared by the Board has failed if some person injured is prevented from going back to the courts to challenge what the Board has done.

An applicant for a new scheme may if he does not wish to avail of subsection (4), go back to the court.

I move amendment No. 15:

In page 11, lines 12 to 15, to delete subsection (8).

I do not see any reference in the section to modification of orders. Generally speaking, a Minister is given power to modify what he has done. I do not think that precise power is given here. Why not say that the Board must give notice?

The Board might give notice but it is not desirable to make it mandatory on them to do it in all cases.

I do not want it made mandatory. What I want is to leave that subsection out altogether.

That would be making it mandatory.

Nothing of the sort.

If you were to leave out subsection (8), it might be argued that if the Board amended a scheme, that created a new scheme of which notice would have to be given again. That is why the subsection is necessary.

Where a Minister is given power to make a scheme, he is generally given power to amend or modify. There is no such phrase here.

The equivalent words are there.

Am I told that they are deliberately put there in this way to cover the case of a modified matter? I think the word "modify" should be there.

Surely the power to acts as you think expedient involves the power to modify?

You will have a lot of legal argument on this. The whole matter could be cleared up now by putting in the word "modify". The Parliamentary Secretary must remember that we are passing legislation about a very important matter.

I say that the way in which the section is drafted meets the situation ideally. It is straining the limits of interpretation to argue as Deputy McGilligan is arguing here. We are trying here to be practical in our treatment of an important matter. Notice is given and the Board acts in relation to suggestions and objections they think expedient. They might not do anything. They might decide to modify in a minor way or to modify in a major way. If they modify in a minor way, they may then decide that there is need to give further notice.

I move amendment No. 16:

In page 13, lines 20 and 21, to delete "instrument (if any) creating" and insert "terms of".

Amendment Nos. 17 and 18 are consequential on this. The object of these amendments is to cover charitable trusts created by statute or charter. Where a statutory trust, such as the Iveagh Trust, desires to change its investment powers, it must go to the expense of promoting a private Bill. There should be no necessity for this. Such trusts ought properly to come within Section 32 of the Bill so that the trustees may apply to the Charity Commissioners to extend the range of investments authorised by the Private Act or the Charter governing the particular trust. Amendments Nos. 16, 17 and 18 will allow for this. The word "instrument" in the context of the Bill at the moment could suggest that a charter or a statutory trust is excluded. The idea is simply to make it clear that this will not be so.

I move amendment No. 17:

In page 13, lines 46 and 47, to delete "created by an instrument".

I move amendment No. 18:

In page 13, line 49, to delete "instrument" and insert "terms of the trust".

I move amendment No. 19:

In page 14, line 6, after "investments" to insert "specified in subparagraph (ii) or (iii) of paragraph (a) of subsection (3) of section 33 but".

This is to cover what might have been, in fact, a loophole in the Bill as drafted at the moment.

The object of the amendment is to make it clear that the investments contemplated by Section 33 are the investments listed in subparagraphs (ii) and (iii) of Section 32 (3) (a). On looking at Section 33, it occurred to me that it could be argued that the wording of Section 32 (3) was not wide enough to prevent trustees who make an application under Section 33 from investing outside the range of securities specified in Section 32 (3). Let me take a hypothetical case where the trustees apply under Section 33 to invest in a foreign security and the Board inform them that they do not object, as the Board seem entitled to do under Section 33 (2). It could be contended that there way a way out in Section 33 in its existing form. Hence the present amendment. I trust that is clear.

It is rather confusing.

If a trustees applied under Section 33 for permission to invest in some security outside the country and if the Board merely indicated that they did not object, then, as the section stands at the moment, you could argue that once the Board had informed the trustees that they did not object to the investment, the trustees could go ahead with it.

Amendment 19 refers at the very end to subsection (3) of Section 33. My copy of the Bill has no subsection (3) of Section 33.

That should be Section 32.

Is it subsection (2) of Section 33 or subsection (3) of Section 32?

It is an error. It should be "paragraph (a) of subsection (3) of Section 32".

Of Section 32? Let us get it right first.

Subsection (3), paragraph (a), of Section 32 is the one which prevents the court or the Board from empowering or ordering or consenting to or approving of the investment of any fund held upon any charitable trust "in manner other than the following". As the Bill is framed at present, if the Board under Section 33 simply informed the trustees that they did not object to an investment, then, despite Section 32 (3) (a), which is the general preventing provision, the trustees could easily say that they were entitled to go ahead and invest in an outside security.

Did I hear the Parliamentary Secretary say that subsection (3) of Section 32 is the general preventing subsection?

Yes.

Surely not? It is the general permissive subsection.

No.

It says "shall not invest... in manner other than the following" and then you go on to subparagraphs (i), (ii) and (iii) which are surely the other way.

Read the whole section. Section 32 (1) says:

The Board may, in their discretion, invest any fund held by them upon any charitable trust in such manner as they think proper.

That is as general as you can make it. Subsection (2) says:

The Board may, if they think fit, on the application of the trustees of any fund held upon any charitable trust, by order confer upon the trustees, either generally or in any particular instance, power to invest the fund in such manner, on such terms and subject to such conditions as the Board may think proper.

Again, it is a general investment power. Subsection (3) (a) proceeds to limit it to the specific investments set out there.

Yes, but it prevents generally to start off with and then opens up into (i), (ii) and (iii), what can be done.

Yes, but it is subsection (3) (a) that confines the investments to the ones stipulated; in other words, investments authorised by the trust, authorised by law, or debentures, debenture stock, etc., or freehold or leasehold land.

I do not call that a great deal of prevention. This amendment then has to be fitted into Section 33, where the trustees may invest in investments specified, but not authorised. The trustees then have to give notice. That is to be an end of it. They give notice and the Board considers it.

This is only to widen the scope of the Trustee Investment Act?

Yes; in so far as you may invest in certain stocks and shares and in land not now authorised by law.

Say there is a trust and the trustees desire to invest the fund or change the investments by putting the fund into investments of the type mentioned in Section 32, in the relevant paragraphs, although they are not authorised by the instrument, if they want to put them in investments different from what are in (ii) and (iii) of paragraph (a) of subsection (3) of Section 32, that is forbidden still?

Yes.

They cannot?

They cannot by reason of the amendment.

Thank you. That is what I thought.

I move amendment No. 20:

In page 14, line 7, to delete "instrument (if any) creating" and to insert "terms of".

This is the same as amendments Nos. 16, 17 and 18. It is to bring in statutory or charter trusts.

Amendment agreed to, subject to the substitution of "Section 32" for "Section 33".