Charities
(Restricted Section of Register) (Jersey) Order 2018
1 Interpretation
In this Order –
“Law” means the Charities (Jersey)
Law 2014;
“restriction request” means a request submitted by an
entity under Article 9(2) of the Law.
2 Funding condition and
additional ground for refusal of request for entry in restricted section of
register
(1) The funding condition,
for the purpose of Article 9(2)(a) of the Law, is that the
entity –
(a) will
refrain from soliciting a donation from any person whom the entity knows to be,
or can reasonably be expected to suspect to be, of the description set out in
Article 4; and
(b) will
take all reasonable steps to avoid any person of that description being among
the persons from whom the entity solicits donations.
(2) For the purpose of
Article 9(3)(a) of the Law, the Commissioner may refuse a restriction request
on the additional ground that, in the exceptional circumstances of that
restriction request, its acceptance would, in the opinion of the Commissioner,
prejudice the performance of the Commissioner’s duty under Article 4(4)(a)
of the Law.
(3) No other grounds are
prescribed for the purpose of Article 9(3)(a) of the Law for refusal of a
restriction request, and accordingly the Commissioner must accept a restriction
request if the Commissioner is not required to refuse it by Article 9(6)
of the Law as read with paragraphs (1) and (2) of this Article.
3 Donation
and soliciting defined
(1) For the purposes of
Article 9(2)(a) of the Law, and of Article 2(1) of this
Order –
“donation” means, subject to paragraph (2), the giving
of anything of value (whether money, property or anything else), but does not
include the giving by an individual of that individual’s labour or time;
“soliciting” means –
(a) asking,
expressly or impliedly, a person –
(i) to make a
donation,
(ii) to
consider making a donation, or
(iii) to
forward to another person a request to make or consider making a donation;
(b) providing
or publishing, in such a way as to be likely to come to the attention of
persons who might make donations, any material that gives information as
to –
(i) how donations may
be made, or
(ii) where
further information may be found in order to make a donation;
(c) holding
an event that, despite not involving any act falling within sub-paragraph (a)
or (b), has as one of its purposes to enable or encourage persons attending the
event, or watching or listening to the event, to make donations; or
(d) endorsing
or permitting an act by another person, if that act falls within any of sub-paragraphs (a),
(b) or (c).
(2) Despite the definition
“donation” in paragraph (1), a person does not make a donation
by giving a thing of value (the “item”) to an entity
if –
(a) the
person does not give the item gratuitously; and
(b) the
person –
(i) is unaware of the
entity’s charitable status, the entity’s purposes, and the use to
which the entity will put the item, or
(ii) is
otherwise not influenced by any of those matters in deciding whether to give
the item, or whether to enter into any obligation to give the item.
(3) For the purpose of the
definition “soliciting” in paragraph (1), it is irrelevant by
what means the request is made, the material is provided or published, or the
event is attended, watched, or listened to, including –
(a) whether
by spoken word, in writing, by images, or otherwise;
(b) whether
in the presence of the potential donor, by electronic communication, or
otherwise; and
(c) whether
by means of an advertisement or statement in a newspaper, in a film or radio or
television programme, in a poster or other display, in a leaflet, letter, email
or webpage, or otherwise.
(4) Nothing in paragraph (1)
is to be read as limiting any reference to soliciting a donation to a case in
which a donation is actually made.
4 Persons
from whom donations are not to be solicited, and persons disregarded for that
purpose
(1) The description of
persons from whom an entity is not to solicit donations, for the purpose of
Article 2(1), is any person other than one who is to be disregarded under
either or both of paragraphs (2) and (5) of this Article in relation to
that entity.
(2) A person is to be
disregarded for the purpose of paragraph (1) if the person –
(a) has a
relevant connection to the entity, within the meaning of paragraph (3); or
(b) is a
relevant professional, within the meaning of paragraph (4).
(3) A person has a relevant
connection to the entity if the person is –
(a) a
governor, an employee, or a former employee of the entity;
(b) a
member of the family of a governor or employee of the entity;
(c) if
the entity has a membership who are not all governors, a member of the entity;
(d) if
the entity is a trust, any other person who –
(i) is an enforcer of
that trust,
(ii) is
named, under the terms of the trust, as a protector in relation to the trust
for the purposes of the customary law, or
(iii) is
the settlor, or one of the settlors, who provided (whether directly to that
trust or through any other entity or entities) the first trust property of that
trust or the first substantial trust property of that trust;
(e) if
the entity is a foundation, any other person who is a founder or guardian of
that foundation;
(f) if
the entity is a body corporate, any other person who –
(i) owns or controls
the entity,
(ii) is
a body corporate that is owned or controlled by the entity, or
(iii) is a
body corporate that is owned or controlled by a third body corporate that also
owns or controls the entity.
(4) A person is a relevant professional
if the person is –
(a) a
charity registered in the restricted section of the register;
(b) a person
carrying on regulated financial services business;
(c) a
private trust company, being a person carrying on business for which that
person would be required to be registered under the Financial Services (Jersey)
Law 1998 but for an exemption under paragraph 4 or 4A of the Schedule
to the Financial Services (Trust
Company Business (Exemptions)) (Jersey) Order 2000;
(d) any
other person who acts as a professional investor in respect of a professional
investor regulated scheme, within the meaning of those terms in the Financial Services
(Investment Business (Restricted Investment Business – Exemption))
(Jersey) Order 2001;
(e) an
employee of a person falling within sub-paragraph (b) or (c), if the
employee is engaged in the carrying on of regulated financial services business
by that person, or in the investment activity of that person, respectively; or
(f) a
director or partner of a person falling within sub-paragraph (b) or (c),
if that person is a company or partnership respectively.
(5) A person is to be
disregarded for the purpose of paragraph (1) if the Commissioner, on a
ground set out in paragraph (6), considers that, despite the entity being
or applying to be entered in the restricted section of the register, it is
appropriate for the entity to solicit donations from that person, or from a
group or description of persons that includes that person.
(6) The grounds are that,
in the opinion of the Commissioner –
(a) the
person, despite not falling within paragraph (3), is a member of a group
that has a sufficient connection with the entity for members of that group not
to be treated as members of the public in relation to the entity;
(b) the
person, despite not falling within paragraph (4), is of a description that
can be expected to be reasonably likely to have, or to be able to obtain,
sufficient understanding of financial matters in relation to charities for
persons of that description not to be treated as members of the public in
relation to the soliciting or making of donations to that entity; or
(c) the
person is otherwise of a description for which there is some other sufficient
reason not to treat such persons as members of the public in relation to the
soliciting or making of donations to that entity.
5 Citation
This Order may be cited as the Charities (Restricted Section of
Register) (Jersey) Order 2018.