The Charities Act 2009 and the creation of the Charities Regulator have radically reformed the charity law landscape. Here we summarise the main provisions of charity law and relevant guidance for Charities Trustees from the Charities Regulatory Authority.
Overview
Charity law in Ireland is governed by a mixture of legislation, case law, and regulation, but the Charities Act 2009 is undoubtedly the most important development in the area for decades, and provides the bedrock for the modern regulation of charities in the Republic of Ireland.
The Charities Act 2009 allowed for the establishment of a charities regulator for Ireland known as the Charities Regulatory Authority. Here we briefly summarise the main provisions of the Charities Act 2009, and provide an overview of the Charities Regulatory Authority and its guidance. Charities which are incorporated as companies are also subject to company law (among other legislation), however for brevity we do not deal with these topics here.
The Charities Act 2009 – Charity Law Reform
The Charities Act 2009 confirms that there is no one set structure for charities. A ‘charitable organisation’ may be a charitable trust, a body corporate, or an unincorporated body of persons.
Generally, in order to come within the definition of a ‘charitable organisation’, a body must:
• Promote a charitable purpose only;
• apply all of its property in furtherance of that purpose (except for moneys expended in the operation and maintenance of the body, including remuneration and superannuation of its staff); and
• not remunerate charity trustees.
In the case of a religious organisation or community, a charity may apply funds for the accommodation and care of its members.
The Charities Act 2009 sets out who are the charity trustees of a charity, and their duties.
Charitable purpose
‘Charitable purposes’ include the prevention or relief of poverty or economic hardship, the advancement of education, the advancement of religion, and other purposes of benefit to the community. Section 3(11) gives 12 categories that come within the community benefit test. The list includes the protection of the natural environment, the advancement of the arts, the promotion of health, and the promotion of civic responsibility.
Each purpose must be of public benefit in order to be a charitable purpose. There is a statutory presumption that a gift for the advancement of religion is of public benefit. All other charitable purposes must be shown to be intended to benefit the public or a section of the public.
Registration
Section 39 requires that a charitable organisation that intends to operate or carry on activities in the State must register with the Charities Regulator - the Charities Regulatory Authority. The Charities Regulatory Authority maintains the Charities Register, and information on each registered charity can be viewed by the public.
It is an offence for a charitable organisation to carry out activities in advance of being granted registration.
Annual reporting
All charities must also comply with their obligation under section 52 of the Charities Act 2009 to prepare and submit to the Charities Regulatory Authority a report in respect of its activities in each financial year.
Financial transparency is one of the key ways to reassure donors that their contributions are being used as intended. A charitable organisation must file its annual report with the Charities Regulatory Authority within ten months after the end of each financial year.
The annual report sets out information regarding a charity’s activities for the reporting period, the number of employees and volunteers involved, the charity’s sources of income, fees charged, and financial information.
Offences
There are severe penalties which may apply under section 10 if there is an offence committed under the Charities Act 2009.
Upon summary conviction a person becomes liable to a fine not exceeding €5,000 or a term of imprisonment not exceeding 12 months, or both. Upon conviction on indictment, a person becomes liable to a fine not exceeding €300,000 or to a term of imprisonment not exceeding 10 years or both.
Where the offence is committed by a body corporate and is proved to have been committed with the consent or connivance of or to be attributable to any neglect on the part of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be proceeded against and punished as if he or she were guilty of the offence concerned.
Offences include advertising on behalf of an unregistered charitable organisation, inviting donations to an unregistered charitable organisation, accepting gifts on behalf of a charitable organisation, or representing that an organisation which is not registered as a charity is is registered as a charitable organisation. Charity trustees may also be liable where an offence has been committed by a charitable organisation.
Other offences include not keeping proper books of account or making false statements to the Charities Regulator.
The Charities Regulator – The Charities Regulatory Authority
The Charities Act 2009 laid the groundwork for the establishment of a Charities Regulator for Ireland, and the Charities Regulatory Authority was established on 16 October 2014.
This created Ireland’s first bespoke regulatory regime for charitable organisations and was a major development in Irish charity law. Previously, the Commissioners of Charitable Donations and Bequests for Ireland and the Revenue Commissioners dealt with charitable organisations, but the former’s role was more one of prudent facilitation rather than oversight, and the scope of the Revenue Commissioners was (and is) limited to tax.
The Charities Regulatory Authority maintains the register of charitable organisations, ensures and monitors compliance by charitable organisations with the provisions of the Charities Act 2009, promotes the effective use of the property of charitable organisations, and aims to increase public trust and confidence in the management and administration of charitable organisations.
The Charities Regulatory Authority has the power to remove an organisation from the Charities Register in certain circumstances. It can further direct a charity in writing to provide it with such information as it may reasonably require to perform its functions, and that charity must comply with the direction. If a charity does not comply with a direction in writing to produce documents or records, a judge of the District Court may, in certain circumstances, issue a warrant to enter and search the premises of the charity and to take possession of documents and records.
The Charities Regulatory Authority may also appoint an inspector to investigate the affairs of a charity, and the charity trustees or agents of that charity must produce documents to the inspector and assist the inspector in connection with the investigation.
The Charities Regulatory Authority has set out a number of useful guidance documents for charities such as “What is a Charity”? and “Guidance for Charity Trustees”. It has also published the Charities Governance Code.
Conclusion
The information above is just a high level overview of some of the most important points. If you have any queries in relation to charity law or any of the content of this page please feel free to get in touch.
We have the largest team of solicitors dedicated to the charities & not-for-profit sector in Ireland, and we advise on the design and formulation of the many policies and regulations that govern the sector.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
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