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6 2009

Charities Act 2009

PART 7

Miscellaneous

Permission to enter into certain agreements with charity trustees or connected persons.

89 .— (1) A charitable organisation may enter into an agreement (in this section referred to as an “agreement”) with a relevant person for the provision by the relevant person of a service to, or on behalf of, the charitable organisation in consideration of the payment to the relevant person out of the property of the charitable organisation of such sum or sums as may be specified in the agreement or as may be determined in accordance with the agreement.

(2) An agreement shall be in writing.

(3) Any sum or sums payable to a relevant person under an agreement shall not exceed what is reasonable and proportionate having regard to the service provided by the relevant person pursuant to the agreement.

(4) Subject to subsection (5), a charitable organisation shall not enter into an agreement unless the charity trustees of the charitable organisation, other than any charity trustee who—

(a) will provide a service under the agreement,

(b) provides a service under an agreement other than the agreement referred to in paragraph (a),

(c) is in receipt of remuneration out of the property of the charitable organisation other than in accordance with an agreement, or

(d) has a personal connection with a person who—

(i) will provide a service under the agreement,

(ii) provides a service under an agreement other than an agreement referred to in paragraph (a) or subparagraph (i), or

(iii) is in receipt of remuneration out of the property of the charitable organisation other than in accordance with an agreement,

are satisfied that the agreement would be in the best interests of the charitable organisation.

(5) Where, in relation to a charitable organisation, there is only one charity trustee, the charitable organisation shall not enter into an agreement unless—

(a) the charity trustee is satisfied that the agreement would be in the best interests of the charitable organisation, and

(b) the Authority gives its approval to the charitable organisation entering into the agreement.

(6) A charitable organisation shall not enter into an agreement in contravention of the provisions of the constitution of the charitable organisation.

(7) The Authority may give directions or issue guidelines in relation to the making of agreements to which this section applies.

(8) A person to whom a direction under this section applies shall comply with that direction.

(9) A charitable organisation shall, before entering into an agreement, have regard to any guidelines issued by the Authority under this section.

(10) This section shall not apply in relation to—

(a) any remuneration paid to a person in his or her capacity as a charity trustee or under a contract of employment, or

(b) any remuneration to which a person is entitled in accordance with law or a provision of the constitution of a charitable organisation.

(11) Where, in relation to an agreement, there has been a contravention of this section, the agreement shall be null and void.

(12) Subsection (11) shall not operate to prevent a charitable organisation from recovering damages in respect of any loss incurred by it by virtue of an agreement to which that subsection applies.

(13) In this section—

“ relevant person ” means, in relation to a charitable organisation—

(a) a charity trustee of the charitable organisation, or

(b) a person with whom a charity trustee of the charitable organisation has a personal connection;

“ remuneration ” includes any benefit in kind;

“ services ” includes goods;

“ sum ” includes benefit in kind.

Power of court to grant relief from liability for breach of trust.

90 .— If, in any proceedings brought against a charity trustee for breach of trust, it appears to the court hearing the case that the charity trustee is or may be liable in respect of the breach of trust but that he or she acted honestly and reasonably and that having regard to all of the circumstances of the case he or she ought fairly to be excused for the breach of trust, the court may relieve him or her in whole or in part from his or her liability on such terms as the court deems appropriate.

Indemnity insurance in respect of charity trustee.

91 .— A charitable organisation may enter into an agreement with a charity trustee of the charitable organisation for the payment by the charitable organisation to the insurer under a contract of insurance of such sums as the charity trustee undertakes, in accordance with that contract, to pay to the insurer in consideration of the insurer agreeing to indemnify the charity trustee in respect of any liability of the charity trustee to pay any damages or other sum to a person in respect of any act done or omitted to be done by the charity trustee in good faith and in the performance of his or her functions as charity trustee.

Dissolution of charitable organisation.

92 .— Where a charitable organisation is dissolved, the property, or proceeds of the sale of the property, of the charitable organisation shall not be paid to any of the members of the charitable organisation without the consent of the Authority, notwithstanding any provision to the contrary contained in the constitution of the charitable organisation.

Provision for non-cash collections and related matters under Act of 1962.

93 .— The Act of 1962 is amended—

(a) in section 1, by—

(i) the substitution of the following definition for the definition of “collection”:

“ ‘collection’ means the collection or attempted collection of money from the public in any public place or places or by house to house visits or both in such place or places and by such visits for the benefit (actual, alleged or implied) of a particular object, whether charitable or not, and whether—

(a) any consideration is or is not given, or

(b) any badge, emblem or other token is or is not exchanged or offered in exchange,

for money so collected, but does not include exempt activity, begging or receiving alms;”,

(ii) the insertion of the following definitions:

“ ‘ charitable organisation ’ means a charitable organisation—

(a) registered in the register established and maintained under section 39 of the Charities Act 2009, or

(b) deemed to be registered in the register in accordance with section 40 of that Act;

‘ exempt activity ’ means—

(a) street-trading within the meaning of the Street Trading Act 1926, or

(b) collecting money for a lottery (including a sweepstake) declared by the Gaming and Lotteries Act 1956 not to be unlawful;

‘ money ’ includes—

(a) money paid by means of an electronic transfer, and

(b) a cheque, banker’s draft, bill of exchange, promissory note or other negotiable instrument;

‘non-cash collection’ means the solicitation of members of the public, in any public place or places or by house to house visits or both in such place or places and by such visits, for the purpose of obtaining pledges from such members to make payments, by credit card, direct debit mandate, standing order or other similar device, for the benefit (actual, alleged or implied) of a particular object, whether charitable or not, and whether—

(a) any consideration is or is not given, or

(b) any badge, emblem or other token is or is not exchanged or offered in exchange,

for any such pledge, but does not include a collection, exempt activity, begging or receiving alms.”,

(b) the insertion of the following section after section 1:

“Construction of references.

1A.— References in this Act (other than sections 5, 6 and 6A (inserted by section 93 (d) of the Charities Act 2009)) to—

(a) collection shall be construed as including references to non-cash collection,

(b) collection permit shall be construed as including references to non-cash collection permit, and

(c) collector shall be construed as including references to a person who solicits pledges for the purposes of a non-cash collection.”,

(c) the insertion of the following section after section 5:

“Application for non-cash collection permits.

5A.— (1) Upon the application of a person who proposes to carry on the activity of holding non-cash collections in a particular locality during any period of 12 months, the Chief Superintendent for that locality may grant a non-cash collection permit to that person authorising him to hold non-cash collections in that locality during the period of 12 months specified in the permit by that Chief Superintendent.

(2) An application under this section shall be in writing and in the prescribed form, and shall contain such particulars as may be required under the prescribed form.

(3) Subject to subsection (4) of this section, an application under this section shall be made—

(a) not more than 12 months, and

(b) not less than 14 days,

before the commencement of the period to which the application relates.

(4) Where an application under this section is made less than 14 days before the commencement of the period referred to in subsection (3), a non-cash collection permit may be granted under section 6A (inserted by section 93 (d) of the Charities Act 2009) in respect of that period if the Commissioner of the Garda Síochána, is of the opinion that the circumstances of the case so warrant.”,

(d) the insertion of the following section after section 6:

“Grant of non-cash collection permits.

6A.— (1) Subject to the provisions of this Act, a Chief Superintendent shall grant a non-cash collection permit to every person who has duly applied to him under this Act for the grant of such a permit.

(2) A non-cash collection permit shall be in the prescribed form and shall be expressed and operate to authorise the person (who shall be named therein) to whom it is granted to carry on for the benefit of a specified object the activity of holding non-cash collections in a specified locality or in public places of a specified kind situated in the division of the Chief Superintendent granting the permit during the period specified in the permit, but subject to the provisions of this Act and to the conditions (if any) attached to and set out in the permit.

(3) It shall be a condition of a non-cash collection permit that, where the person to whom the permit is granted proposes to hold a non-cash collection pursuant to the permit, he shall notify the Chief Superintendent for the locality to which the permit applies in writing of his proposal (including the place or places and date of the proposed non-cash collection) not earlier than 6 months and not later than 14 days before the date on which he proposes to hold the non-cash collection concerned.

(4) Where, before the receipt of a notification under subsection (3), a collection permit has been granted to a person authorising him to hold a collection in the same locality or place and on the same date as the locality or place and date to which that notification relates, the Chief Superintendent concerned may, if he considers it necessary or desirable in order to ensure the maintenance of public order or the prevention of annoyance to the public, direct that the proposed non-cash collection shall not take place at that locality or place on that date.

(5) A non-cash collection permit shall be signed by the Chief Superintendent by whom it is granted.

(6) A Chief Superintendent who receives a notification under subsection (3) not later than 3 months before the day or first of the days on which the non-cash collection to which the notification relates is proposed to be held shall, not later than 7 days after he or she receives the notification, give notice of such receipt to the holder of any collection or non-cash collection—

(a) that was held in the immediately preceding year on the day corresponding to a day to which the notification applies,

(b) that was in respect of an object other than the object to which the notification relates,

(c) the holder of which has not been notified under this subsection of the receipt of any other notification relating to a day to which the first-mentioned notification relates,

(d) in respect of which an application for a collection permit relating to a collection to be held on a day to which the first-mentioned notification relates has not been received by the Chief Superintendent, and

(e) in respect of which a notification relating to a non-cash collection to be held on a day to which the first-mentioned notification relates has not been received by the Chief Superintendent.

(7) A Chief Superintendent to whom an application for a non-cash collection permit is made shall, not later than 14 days after receiving the application, either grant the application and send the non-cash collection permit to the applicant or refuse the application and inform the applicant in writing of the refusal and of the reasons for the refusal.”,

and

(e) the substitution, in section 9, of the following paragraph for paragraph (f):

“(f) the collectors would derive personal profit, other than the payment of a reasonable commission, or reasonable remuneration or expenses, for their services, from the proceeds of the collection.”.

Duties of collectors.

94 .— (1) Section 18 of the Act of 1962 is amended by—

(a) the substitution of the following subsection for subsection (1):

“(1) The following provisions shall apply to all collections (other than non-cash collections):

(a) a collection box into which money is placed shall bear the number assigned in respect of the collection and specified in the collection permit concerned and shall, unless the Authority otherwise directs as respects the collection concerned, be sealed in such manner as will prevent access to money placed in the box while the seal remains in place;

(b) all moneys collected shall be placed in the collection box in the presence of the donor;

(c) each collector shall deliver the collection box unopened and with its seal intact to—

(i) the holder of the collection permit granted in respect of the collection concerned, or

(ii) a person authorised for that purpose by the holder of the collection permit;

(d) a collection box shall—

(i) in the case of a cash collection on behalf of a charitable organisation, bear the name and registered number of the charitable organisation on behalf of which the collection is being made, and

(ii) in the case of a cash collection on behalf of a body other than a charitable organisation, bear the name of the body on behalf of which the collection is being made,

in a prominent and clearly legible manner.”,

and

(b) the insertion of the following subsection:

“(1A) The following provisions shall apply to all non-cash collections:

(a) the collector shall wear a garment that is visible at all times to members of the public and that—

(i) in the case of a non-cash collection on behalf of a charitable organisation, bears the name and registered number of the charitable organisation in a prominent and clearly legible manner, and

(ii) in the case of a non-cash collection on behalf of a body other than a charitable organisation, bears—

(I) the name of the body, and

(II) the object for the benefit of which the non-cash collection is being made,

in a prominent and clearly legible manner;

(b) any form completed by a member of the public for the purposes of making a contribution to a non-cash collection shall be received from the member by the holder of the non-cash collection permit or a person authorised by him in writing for that purpose but by no other person; and

(c) all forms used for the purposes of the non-cash collection intended for completion by members of the public shall—

(i) in the case of a non-cash collection on behalf of a charitable organisation, bear—

(I) the name of the charitable organisation and its registered number,

(II) the number assigned in respect of the non-cash collection and specified in the non-cash collection permit concerned, and

(III) the name of the bank and bank account name and number to which contributions are to be made,

in a prominent and clearly legible manner, and

(ii) in the case of a non-cash collection on behalf of a body other than a charitable organisation, bear—

(I) the name of the body,

(II) the number assigned in respect of the non-cash collection and specified in the non-cash collection permit concerned, and

(III) the name of the bank and bank account name and number to which contributions are to be made,

in a prominent and clearly legible manner.”.

(2) Section 20 of the Act of 1962 is amended, in subsection (1), by the insertion of the following paragraph:

“(aa) the member has reasonable grounds for believing that in relation to the collection, there is or has been a contravention of subsection (1) (inserted by section 94 (1)(a) of the Charities Act 2009) of section 18,”.

Seizure of non-cash collection documentation, etc.

95 .— The Act of 1962 is amended by the insertion of the following section:

“20A.— (1) A member of the Garda Síochána may take (if necessary by force) from a person making a non-cash collection all documents and other articles (including all badges, emblems and other tokens) in his possession for the purposes of, or in connection with the non-cash collection if—

(a) a non-cash collection permit has not been granted in respect of the holding of the non-cash collection,

(b) upon a demand being duly made of the person in the course of the non-cash collection by the member to produce his collector’s authorisation, the person refuses or fails to so do or refuses or fails, on the production of the authorisation, to allow the member to read it, or

(c) upon a demand being duly made of the person in the course of the non-cash collection by the member to give his name and address, the person refuses or fails to so do or gives a name or address that the member knows or reasonably believes to be false or misleading.

(2) Articles and money taken from a collector under this section shall be forfeited to the Minister and may be disposed of by the Minister as he considers appropriate.”.

Offences under Act of 1962.

96 .— The Act of 1962 is amended by—

(a) the insertion of the following section:

“24A.— (1) A person who knowingly or recklessly makes an application for a collection permit or a non-cash collection permit that contains a statement that is false or misleading in a material respect shall be guilty of an offence.

(2) A person who, for the purpose of being granted a collection permit or a non-cash collection permit, makes a statement that is false or misleading in a material respect shall be guilty of an offence.

(3) A person who gives a notification under subsection (3) of section 6A (inserted by section 93 (d) of the Charities Act 2009) that contains a statement that is false or misleading in a material respect shall be guilty of an offence.”,

and

(b) by the substitution, in section 25, of “€5,000” for “fifty pounds”.

Power to make regulations in relation to charitable fund-raising.

97 .— (1) The Minister may, after consultation with the Authority, make regulations relating to the manner and conduct of fund-raising by, or on behalf of, charitable organisations, including collections and non-cash collections under the Act of 1962 for the purpose of ensuring that any such fund-raising is not carried on in a manner that—

(a) unreasonably intrudes on the privacy of those from whom funds are being solicited,

(b) involves the making of unreasonably persistent approaches to persons to make donations to the charitable organisation concerned,

(c) results in undue pressure being placed on persons to make such donations,

(d) involves the making of any false or misleading representations in relation to—

(i) the extent or urgency of any need for funds on the part of the charitable organisation concerned,

(ii) the application of any funds donated,

(iii) the charitable organisation or its purposes, activities or financial position.

(2) A person who contravenes a provision of regulations under this section, contravention of which is declared by the regulations to be unlawful, shall be guilty of an offence.

Amendment of Central Bank Act 1997.

98 .— Section 28 of the Central Bank Act 1997 is amended by the insertion of the following paragraph in the definition of “retail credit firm” (inserted by section 19 of the Markets in Financial Instruments and Miscellaneous Provisions Act 2007 ):

“(dd) a charitable organisation within the meaning of the Charities Act 2009, or”.

Sale of Mass cards.

99 .— (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.