Charities
(Restricted Section of Register) (Jersey) Order 2018
Made 26th April 2018
Coming into force 1st
May 2018
THE CHIEF MINISTER, in pursuance of Articles 9(2) and (3) and 39(1) of the Charities
(Jersey) Law 2014[1], orders as follows –
1 Interpretation
In this Order –
“Law” means the Charities
(Jersey) Law 2014[2];
“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[3] but for an exemption under paragraph 4
or 4A of the Schedule to the Financial Services (Trust Company Business (Exemptions))
(Jersey) Order 2000[4];
(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[5];
(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
and commencement
This Order may be cited as the Charities (Restricted Section of Register)
(Jersey) Order 2018 and comes into force on the coming into force of Article 9
of the Charities (Jersey) Law 2014[6].
senator p.f. routier, m.b.e.
for and on behalf of
Chief Minister