Charities (Jersey) Law 2014
A LAW to establish a commissioner and register of charities, to impose
duties on governors of charities, to regulate use of the term
“charity” and for related purposes
Commencement [see
endnotes]
Part 1
Interpretation
1 Interpretation
In this Law, unless the context otherwise
requires –
“annual return” means a return
sent under Article 13(7);
“charitable purpose” has the meaning given by
Article 6;
“Commissioner” means
the person for the time being appointed to hold the office of the Jersey
Charity Commissioner established by Article 3;
“company” means a
company registered under the Companies (Jersey) Law 1991[1], or an existing company
within the meaning of that Law, and in relation to a company the expressions
“director”, “memorandum” and “articles of association” have the same
meanings as in that Law;
“Comptroller” has
the meaning given by the Income Tax (Jersey) Law 1961[2];
“constitution”
has the meaning given by Article 2(4);
“constitutional Law” has the meaning given by Article 2(5);
“court”,
in the expression “the court”,
means the Royal Court;
“court-approved fidéicommis” means a fidéicommis created under Article 3 of the Loi
of 1862, or to which the court has extended the
benefits of that Loi under Article 17
of that Loi;
“donation”
is to be construed in accordance with the Order made under
Article 9(3)(b)(ii);
“entity”
has the meaning given by Article 2(1);
“foundation” means a
foundation incorporated under the Foundations (Jersey) Law 2009[3], and “charter”, “regulations” and “council member” have, in relation to a
foundation, the same meanings as in that Law;
“general section” means the section of
the register that is to be distinguished from the restricted and historic
sections under Article 8(2);
“governor”
in relation to an entity (including a registered charity) has the meaning given
by Article 2(7);
“incorporated 1862 association” means an
association incorporated under Article 4 of the Loi
of 1862;
“JFSC” means the
Jersey Financial Services Commission established by the Financial Services
Commission (Jersey) Law 1998[4];
“Jersey entity” has
the meaning given by Article 2(3);
“Loi of 1862” means the Loi (1862) sur les teneures
en fidéicommis et l’incorporation
d’associations[5];
“Minister” means the
Chief Minister;
“misconduct”
has the meaning given by Article 2(10), and a reference to a governor
engaging in misconduct is to be read in accordance with Article 18(4);
“prescribed”
and “specified” mean prescribed
or specified in an Order or Regulations, as the case may be;
“property”
has the meaning given by the Trusts (Jersey) Law 1984[6];
“publish”, in
respect of any information, means publish in a manner that, in the opinion of
the person publishing, is likely to bring the information or how the
information may be obtained to the attention of the public or of those affected
by the information;
“purpose”,
in relation to an entity, has the meaning given by Article 2(6);
“register”
means the register kept by the Commissioner under Article 8, or (as a
verb) to enter an entity on that register, and “registration” and “deregistration” are to be construed
accordingly;
“registered charitable purposes” has the meaning
assigned by Article 8(3)(e);
“registered charity” means an entity entered for the
time being in the general section or the restricted section of the register;
“registered public benefit statement” has the meaning
assigned by Article 8(3)(f);
“regulated financial services business” means business
for which a person –
(a) is registered under the Banking Business (Jersey)
Law 1991[7];
(b) holds
a permit or certificate under the Collective Investment Funds (Jersey)
Law 1988[8];
(c) is registered under the Financial Services (Jersey)
Law 1998[9]; or
(d) is authorized by a permit under the Insurance Business
(Jersey) Law 1996[10];
“reportable matter” has the meaning given by
Article 19;
“required steps notice” means a
notice served under Article 27;
“restricted section” means the section of the register
that is to be distinguished from the general and
historic sections under Article 8(2);
“solicit”
is to be construed in accordance with the Order made under
Article 9(3)(b)(i);
“tribunal”
means the Charity Tribunal established by Article 32;
“trust”
means a trust over which the court has jurisdiction under Article 5 of the
Trusts (Jersey) Law 1984[11].
2 Definition
of entity and related terms
(1) In
this Law, unless the context otherwise requires, “entity”
means –
(a) the person or persons, taken together, who are the trustees
of a trust;
(b) without prejudice to the generality of
sub-paragraph (a), the person or persons, taken together, who are the fidéicommissaires of a court-approved fidéicommis;
(c) an incorporated 1862 association;
(d) a foundation;
(e) a body corporate established –
(i) by an enactment,
(ii) by Act of the States, or
(iii) by Royal Charter, in relation to Jersey;
(f) a company;
(g) a body incorporated under, but not by, any enactment other
than the Companies (Jersey) Law 1991[12];
(h) a body incorporated under, but not by, an Act of the United
Kingdom Parliament or Order in Council, as such Act or Order is extended to or
applicable in Jersey;
(i) the
persons, taken together, who constitute for the time being an unincorporated
body or association of persons, other than a partnership and other than the
trustees of a trust;
(j) an entity that is substantially similar to an entity
mentioned in any of sub-paragraphs (a) to (h), but is established
under the law of a jurisdiction other than Jersey.
(2) The
Minister may by Order add sub-paragraphs to paragraph (1).
(3) For
the purposes of this Law, an entity is a “Jersey entity” if –
(a) it falls within any of sub-paragraphs (a) to (h) of
paragraph (1); or
(b) it is an unincorporated body or association of persons
falling within paragraph (1)(i), in respect of
which –
(i) the law governing the relationship between the persons
constituting the body or association, in that capacity, is the law of Jersey,
and
(ii) at least one governor is a natural person resident in
Jersey, or is itself a Jersey entity by virtue of sub-paragraph (a).
(4) In
this Law, unless the context otherwise requires, “constitution” in
relation to an entity means –
(a) in the case of a trust the terms of the trust;
(b) in
the case of a court-approved fidéicommis, the minute of the contract annexed to the application to the court
for the creation of the fidéicommis, any other documents so annexed, and any
authorisation granted by the court under Article 10 of the Loi of 1862 in respect of the fidéicommis;
(c) in
the case of an incorporated 1862 association, the Act of the court incorporating it under Article 4 of the Loi of 1862, and the object and rules approved or modified under that Article;
(d) in the case of a foundation, the charter and regulations of
the foundation;
(e) in the case of a company, the memorandum and articles of
association of the company;
(f) in the case of a body corporate falling within
paragraph (1)(e), the enactment, Act of the States or Royal Charter that
established the body corporate;
(g) in any other case, any instrument or instruments (in whatever
form) that establish the entity or give it any powers.
(5) In
this Law, unless the context otherwise requires, “constitutional
Law” means –
(a) in relation to an entity that is a trust, the Trusts
(Jersey) Law 1984[13];
(b) in relation to an entity that is a court-approved fidéicommis or an incorporated 1862 association,
the Loi of 1862;
(c) in relation to an entity that is a foundation, the
Foundations (Jersey) Law 2009[14];
(d) in relation to an entity that is a company, the Companies
(Jersey) Law 1991[15]; and
(e) in relation to an entity that is a body incorporated by (but
not under) any other Law, that Law.
(6) In
this Law, unless the context otherwise requires, “purpose” in
relation to an entity means –
(a) in
the case of a trust, the benefit of its beneficiaries or any other purpose
mentioned in Article 2(b) of the Trusts (Jersey) Law 1984[16] by virtue of which the
trust exists, as specified in its constitution;
(b) in
the case of a court-approved fidéicommis, or of an incorporated 1862 association, the objects for which it was created or incorporated,
or that were subsequently authorized under Article 10 of the Loi of 1862;
(c) in the case of a foundation, the objects specified in its
charter or its regulations; or
(d) in
the case of any other entity, a purpose to which that entity’s property
may lawfully be applied, other than by virtue of an order of a court, in
accordance with the powers of the entity as set out in its constitution
(including on its winding up or other termination).
(7) In
this Law, unless the context otherwise requires, “governor” in
relation to an entity means –
(a) in the case of a trust or fidéicommis, a trustee or fidéicommissaire of the trust or fidéicommis;
(b) in the case of a foundation, a member of the council of the
foundation;
(c) in the case of a company, a director of the company;
(d) in the case of a relevant unincorporated entity, a person
who is a member of the management committee of the entity; or
(e) in any other case, a person who, under the constitution of
the entity, has the general control and management of the administration of the
entity.
(8) For
the purpose of paragraph (7)(d) a relevant unincorporated
entity is an unincorporated body or association of persons that –
(a) falls within paragraph (1)(i);
and
(b) has a constitution that conforms to a model that –
(i) is published for the purpose by the Commissioner, and
(ii) provides for the entity to have a management committee.
(9) For
the purpose of paragraph (7)(e) –
(a) a
person is not a governor merely by virtue of exercising general control and
management on behalf of another person who has the general control and
management in that other person’s own right under the constitution of the
entity; and
(b) a person is a governor whether that person has that general
control and management alone or as one of a number of governors.
(10) In this
Law, unless the context otherwise requires, “misconduct”
means –
(a) a contravention, by a registered charity or by any of its
governors, of a provision –
(i) of this Law, or of any enactment under this Law,
(ii) of the constitution of the registered charity, or of the
constitutional Law of the charity,
(iii) of a required steps notice, or
(iv) of an order of the court under this Law or under the
constitutional Law of the charity, or under any enactment under such a Law; or
(b) the commission by any person, in relation a registered
charity or to an excepted foreign charity (within the meaning of
Article 22) or to an entity equivalent to a registered charity under the
law of a jurisdiction other than Jersey, of an offence –
(i) under the constitutional Law of that charity or other
entity,
(ii) under
the Financial Services (Jersey) Law 1998[17], the Banking Business
(Jersey) Law 1991[18], the Collective Investment
Funds (Jersey) Law 1988[19], the Insurance Business
(Jersey) Law 1996[20], any Regulation or Order
made under any of those Laws, or the Alternative Investment Funds (Jersey) Regulations 2012[21],
(iii) under the Income Tax (Jersey) Law 1961[22], the Goods and Services
Tax (Jersey) Law 2007[23], or the Taxation (Land
Transactions) (Jersey) Law 2009[24],
(iv) under any other enactment, being an offence relating to money
laundering or terrorist financing,
(v) under any other enactment or under customary law, being an
offence involving deception or dishonesty, or
(vi) under the law of a jurisdiction other than Jersey, being an offence
similar to any of those listed in clauses (i)
to (v).
Part 2
Jersey Charity Commissioner
3 Establishment
of Jersey Charity Commissioner
(1) There
is established a corporation sole to be known as the Jersey Charity
Commissioner.
(2) Schedule 1
makes further provision in respect of the Commissioner.
4 General
functions of Commissioner
(1) The
general functions of the Commissioner are –
(a) to administer the charity test under Part 3, and to operate
the charity register under Part 4;
(b) to supervise the compliance of charity governors with their
duties under Part 5;
(c) to seek to enforce the requirements of Part 6 as to use
of terms restricted by or under that Part;
(d) to publish and maintain guidance on the operation of this
Law, including guidance on the duties of governors and guidance on the charity
test under Article 5(4);
(e) to
assist other persons (including the Attorney General, the court, the Bailiff,
the Comptroller and the JFSC) to discharge, in relation to registered charities
and entities with charitable purposes, any function of such a person under any
enactment or law, particularly by giving information about registered charities
and other entities under Part 7;
(f) generally to encourage, facilitate and monitor compliance of
registered charities with this Law and any enactment under this Law; and
(g) any other function conferred on the Commissioner by this Law
or by any other enactment.
(2) The
Commissioner may do anything (other than acting as a governor of a charity or
of an entity with charitable purposes) that is calculated to facilitate, or is
conducive or incidental to, the performance of any of his or her functions.
(3) The
Commissioner may in particular, without prejudice to the generality of his or
her powers –
(a) provide
information to the public about the system of registration of charities,
including information about the difference between charities and bodies with
charitable purposes, information about the advantages of donating to entities
that are registered as charities, and information by way of model
constitutions;
(b) advise the Minister as to the nature of charities in Jersey
and as to the merits of any proposal for further regulation of charities;
(c) assist a body in any jurisdiction other than Jersey, that is
equivalent to the Commissioner, or to the Attorney General, the court, the
Comptroller or the JFSC, in the performance of that body’s functions
under the law of that jurisdiction.
(4) In performing
his or her functions, the Commissioner must, so far appears to him or her to be
reasonably practicable, seek to act in a way that –
(a) protects
public trust and confidence in registered charities, and is compatible with the
encouragement of –
(i) all forms of charitable giving, and
(ii) voluntary participation in the work of registered charities;
and
(b) is
proportionate as to the burdens imposed on, and supports the development of registered
charities.
Part 3
Charity Test
5 The
charity test
(1) An
entity meets the charity test if –
(a) all of its purposes are –
(i) charitable purposes, or
(ii) purposes that are purely ancillary or incidental to any of
its charitable purposes; and
(b) in giving effect to those purposes, it provides (or, in the
case of an applicant, provides or intends to provide) public benefit in Jersey
or elsewhere to a reasonable degree.
(2) A entity
that otherwise meets the charity test, nevertheless does not meet that test,
despite paragraph (1), if its constitution expressly permits its
activities to be directed or otherwise controlled by, or any of its governors
to be –
(a) a Minister;
(b) a member of the States Assembly; or
(c) any equivalent of such a person in another jurisdiction,
acting in that
capacity.
(3) The
Minister may by Order disapply paragraph (2) in
relation to any entity or description of entity specified in the Order.
(4) The
Commissioner must publish and maintain guidance on the determination of whether
an entity meets the charity test.
(5) Any
person, in determining whether an entity meets the charity test, must have
regard to the guidance, and the Commissioner, the tribunal, a registered
charity and a governor of a registered charity must have regard to the guidance
when performing any other of their functions under this Law to which the
guidance is relevant.
(6) Before
issuing or amending guidance the Commissioner must –
(a) consult –
(i) any persons appearing to the Commissioner to be representative
of charities or bodies with charitable purposes,
(ii) the Minister, and
(iii) such other persons as the Commissioner considers
appropriate; and
(b) publish a report on the Commissioner’s views on the
results of the consultation, and the reasons for the Commissioner’s
decision on the guidance in the light of those results.
(7) Within
a reasonable time after issuing or amending guidance the Commissioner must provide
to the Minister a copy of the issued or amended guidance and the report
published under paragraph (6)(b).
(8) The
Minister must lay a copy of the guidance and report so provided before the
States as soon as practicable after the Minister receives the guidance and
report.
6 Charitable
purposes
(1) For
the purposes of this Law, the charitable purposes are –
(a) the prevention or relief of poverty;
(b) the advancement of education;
(c) the advancement of religion;
(d) the advancement of health;
(e) the saving of lives;
(f) the advancement of citizenship or community development;
(g) the advancement of the arts, heritage, culture or science;
(h) the advancement of public participation in sport;
(i) the provision of recreational facilities, or the
organisation of recreational activities, with the object of improving the
conditions of life for the persons for whom the facilities or activities are
primarily intended;
(j) the advancement of human rights, conflict resolution or
reconciliation;
(k) the promotion of religious or racial harmony;
(l) the promotion of equality and diversity;
(m) the advancement of environmental protection or improvement;
(n) the relief of those in need by reason of age, ill-health,
disability, financial hardship or other disadvantage;
(o) the advancement of animal welfare;
(p) any other purpose that may reasonably be regarded as
analogous to any of the purposes listed in sub-paragraphs (a) to (o).
(2) For
the purposes of paragraph (1) –
(a) in paragraph (1)(d), “the advancement of
health” includes the prevention or relief of sickness, disease or human
suffering;
(b) paragraph (1)(f) includes –
(i) rural or urban regeneration, and
(ii) the promotion of civic responsibility, volunteering, the
voluntary sector or the effectiveness or efficiency of registered charities;
(c) in paragraph (1)(h), “sport” means sport
that involves physical skill and exertion;
(d) paragraph (1)(i) applies only
in relation to recreational facilities or activities that are –
(i) primarily
intended for persons who have need of them by reason of their age, ill-health,
disability, financial hardship or other disadvantage, or
(ii) available to members of the public at large or to male or
female members of the public at large;
(e) paragraph (1)(n) includes relief given by the provision
of accommodation or care;
(f) for the purposes of paragraph (1)(p), the advancement
of any philosophical belief (whether or not involving belief in a god) is
analogous to the purpose set out in paragraph (1)(c).
(3) The
States may, on the recommendation of the Commissioner, by
Regulations –
(a) add sub-paragraphs to paragraph (1);
(b) add sub-paragraphs to paragraph (2) making explanatory
provision in relation to any sub-paragraphs so added to paragraph (1).
(4) The
power under paragraph (3) does not include power –
(a) to amend or restrict the effect of any of paragraphs (1)(a)
to (p) and (2)(a) to (f); or
(b) to alter the effect of paragraph (5).
(5) The
purpose of advancing a political party or promoting a candidate for election to
any office, whether in Jersey or elsewhere, is neither a charitable purpose nor
a purpose ancillary or incidental to a charitable purpose, irrespective of
whether it would otherwise fall within paragraph (1) or Article 5(1)(a)(ii).
7 Public
benefit
(1) Paragraphs
(2) and (3) apply to the Commissioner, the tribunal and the court when
determining the question of whether an entity provides or intends to provide
public benefit, for the purpose of Article 5(1)(b).
(2) The
person determining the question must have regard to –
(a) how any –
(i) benefit gained or likely to be gained by members of the entity
or any other persons (other than as members of the public), and
(ii) disbenefit incurred or likely to
be incurred by the public,
in consequence of
the entity exercising its functions, compares with the benefit gained or likely
to be gained by the public in that consequence; and
(b) if
benefit is, or is likely to be, provided to a section of the public only,
whether any condition on obtaining that benefit (including any charge or fee)
is unduly restrictive.
(3) The
person determining the question must not –
(a) presume any particular charitable purpose to be for the
public benefit; or
(b) treat one particular natural person or a group of identified
natural persons as being a section of the public, and accordingly must not treat
an entity that benefits only such a person or persons as providing public
benefit.
(4) The
guidance published by the Commissioner under Article 5(4), must in
particular give guidance on the determination of the question of whether an
entity provides or intends to provide public benefit.
Part 4
Charity register
8 Charity
register
(1) The
Commissioner must establish and maintain a register of charities.
(2) The
register must be kept in such a way as to distinguish between –
(a) the general section;
(b) the restricted section; and
(c) the historic section.
(3) The
Commissioner must enter in the register, in respect of each registered charity (whether
entered in the general or restricted section), in addition to the registered
name and registration number entered under Article 12(2) –
(a) a note of the status of the entity that is the registered
charity, being –
(i) the
sub-paragraph of the definition “entity” in Article 2(1)
within which the entity falls (including, in the case of an entity falling
within one of sub-paragraphs (f) to (j) of that definition, whether
it also falls within sub-paragraph (a)), and
(ii) in
the case of an entity falling within one of sub-paragraphs (e), (g), (h)
or (j) of that definition, details of the enactment, Act of the States,
Royal Charter, Act of the United Kingdom Parliament, Order in Council or foreign
law, by virtue of which it falls within that sub-paragraph;
(b) the names of each of the governors of the registered
charity;
(c) the principal address of the registered charity with the
meaning of paragraph (4);
(d) the address of any other premises in Jersey, other than a
private dwelling house, at or from which the registered charity undertakes any
activity;
(e) a statement of the purposes of the registered charity (the
charity’s “registered charitable purposes”), drawn by the
charity from its constitution and approved by the Commissioner as accurately
reflecting the constitution as to the purposes;
(f) a
statement (the charity’s “registered public benefit
statement”), approved by the Commissioner, of the public benefit provided
by the charity and of the means by which the charity ensures that it provides
that public benefit;
(g) the date on which the charity was registered;
(h) if
the registered charity is an organized religious charity, within the meaning of
Article 28, a note of that fact and of the provision of the Order under
that Article by virtue of which it is such a charity;
(i) if
the registered charity meets the charity test by virtue of an Order under
Article 5(3), the text of the provision in the constitution that falls
within paragraph (2) of that Article;
(j) whether the registered charity has or has not sent its
annual return for the most recent year;
(k) if a required steps notice has been served on the registered
charity, or on a governor of the registered charity, a note of that fact (or a
copy of the notice) and of the date on which the notice was served;
(l) if the registered name has been changed, the previous
registered name or names;
(m) if an Order under Article 13(9)(c) applies to the
registered charity, any details or statement that must be entered on the
register under that Order; and
(n) any other information prescribed by the Minister by Order.
(4) The
principal address for the purpose of paragraph (3)(c)
is –
(a) if
the registered charity is a company, foundation, or other entity required by
its constitutional Law to have a registered office or business address in
Jersey, the address of that registered office or that business address;
(b) if the
charity is not such an entity, the address of the main premises in Jersey at or
from which the activities in Jersey of the registered charity are managed,
controlled or undertaken, unless the premises are a private dwelling house; or
(c) if
neither sub-paragraph (a) nor (b) applies, the address in Jersey of
one of the governors of the charity.
(5) The
Commissioner must enter in the historic section, in relation to any formerly
registered charity that has been deregistered –
(a) the entity’s former registered number;
(b) if the entity was registered in the general section, the
name under which the entity was registered immediately before deregistration,
and any names under which it was previously so registered;
(c) a
summary of the reason why the entity was deregistered, including, if that
reason was a contravention of a required steps notice, the reason for the
service of that notice;
(d) the dates on which the entity was registered and
deregistered; and
(e) such other matters as the Minister may prescribe by Order.
(6) The
Commissioner must retain for 10 years, in respect of each registered
charity, a copy of –
(a) the constitution of the charity, and any amendments to it;
(b) the annual returns of the charity;
(c) any notice served on the charity under this Law; and
(d) any other document prescribed by the Minister by Order.
9 Restricted
section
(1) For
the purpose of Article 10 the public elements of the restricted section
are, in relation to each charity registered in that section –
(a) the registration number (but not the registered name) of the
charity;
(b) the matters registered under sub-paragraphs (a), (e),
(f), (j) and (k) of Article 8(3);
(c) a summary, produced by the charity, to the satisfaction of
the Commissioner, of the reasons for registration of the charity in the
restricted section; and
(d) any other element that may be prescribed by the Minister by
Order.
(2) An
applicant for registration, or a charity registered in the general section of
the register, may request entry in the restricted section of the register
if –
(a) the
applicant meets the funding condition, prescribed by the Minister by Order for
this purpose, as to refraining from soliciting donations from the general
public or from any prescribed description of persons; or
(b) the applicant meets any other condition that may be
prescribed by the Minister by Order, whether by reference to any other source
of the entity’s funds or on any other basis.
(3) The
Order –
(a) must prescribe grounds, that may include the exercise of
discretion by the Commissioner, on which the Commissioner may accept or refuse
such a request;
(b) must specify, for the purpose of
paragraph (2)(a) –
(i) what constitutes soliciting,
(ii) what constitutes a donation, and
(iii) if the Order does not prescribe a description of persons, what
constitutes the general public for the purpose of the Order; and
(c) may make provision under sub-paragraph (b) by reference
to the exercise of discretion by the Commissioner, or in any other manner.
(4) A
request under paragraph (2) must be –
(a) made in the form published by the Commissioner; and
(b) supported by information and evidence to the satisfaction of
the Commissioner.
(5) A
request under paragraph (2) must be accompanied by a statement of the
applicant’s intention, in the event of refusal of the request,
being –
(a) in the case of an application for registration –
(i) that that application should be treated as withdrawn, or
(ii) that
it should be treated as an application for entry in the general section of the
register, on provision of any further information and evidence required for
such an application; or
(b) in the case of a charity registered in the general section
of the register –
(i) that the charity should remain so registered, or
(ii) that the charity should be treated as applying to be
deregistered, on provision of any further information and evidence required for
such an application.
(6) The
Commissioner must not enter a charity in the restricted section of the register
unless satisfied –
(a) that the request complied with paragraphs (4)
and (5);
(b) that one of the conditions prescribed under
paragraph (2) is met; and
(c) that there is no ground, prescribed under
paragraph (3), on which the request must be refused or, in the case of a
discretionary ground, on which the Commissioner considers the request should be
refused.
(7) If
the Commissioner refuses a request, he or she –
(a) must give written notice of the refusal to the applicant or
charity; and
(b) may proceed on the basis of the intention stated under
paragraph (5).
10 Public
access
(1) The
Commissioner must make the public parts of the register available to the public
on a website for inspection without charge.
(2) The
Minister may by Order provide for the Commissioner to make the public parts of
the register available in any other specified manner, to the public or to such
description of persons as may be specified, on payment of –
(a) a specified charge; or
(b) a charge determined and published by the Commissioner.
(3) For
the purpose of paragraphs (1) and (2), the public parts of the register
are, subject to paragraph (5) –
(a) the general section;
(b) the public elements of the restricted section, within the
meaning of Article 9(1); and
(c) the historic section.
(4) Paragraph (5)
applies if the Commissioner considers, in relation to a particular registered
charity, that the safety or security of any person, property or premises would
be significantly put at risk by public access to a matter entered on any
section of the register in respect of that charity.
(5) The
Commissioner may designate that matter as not being a public part of the
register, in relation to that registered charity.
11 Application
to register
(1) An
entity (“the applicant”), that wishes to have available to it the
advantages of registration as a charity under this Law, may apply to be
registered.
(2) The
applicant must provide to the Commissioner, in such form as the Commissioner
may publish in relation to an entity of a description into which that charity
falls –
(a) information and evidence, as at the time of the application
and (if different) as proposed once the entity is registered, as
to –
(i) how the entity meets the requirements of
paragraphs (4)(c) and (d),
(ii) the matters that are required to be registered under
sub-paragraphs (a), (b) and (d) of Article 8(3), and
(iii) if applicable, the matters that are required to be
registered under sub-paragraphs (h), (i), (m)
and (n) of Article 8(3);
(b) a copy of the applicant’s constitution;
(c) a draft of the proposed statement of the entity’s
registered charitable purposes;
(d) a draft of the entity’s registered public benefit
statement;
(e) details of –
(i) the applicant’s most recent, if any, financial
accounts,
(ii) any payment made to any governor of the entity in the
12 months preceding the application, and if an Order under
Article 13(9)(b) applies to the registered charity, a draft of the
proposed statement under that Order,
(iii) any other financial information that would be required if the
application were for registration under the Non-Profit Organizations (Jersey)
Law 2008[25], and
(iv) if the applicant is not requesting entry in the restricted
section of the register, any further financial information prescribed by the
Minister by Order; and
(f) such other information, documents and evidence as may
be –
(i) required by Regulations under paragraph (3), or
(ii) otherwise requested by the Commissioner in order to
determine the application.
(3) The
States may by Regulations –
(a) prescribe other information, documents or evidence that must
be provided on an application;
(b) make further provision as to the procedure for making an
application.
(4) If
the applicant complies with paragraph (2), with any Regulations under
paragraph (3), and with Article 19(5), the Commissioner must register
the applicant as a charity if satisfied that –
(a) the applicant meets the charity test, or will do so on
registration;
(b) the constitution of the applicant is a written document;
(c) the applicant –
(i) is a Jersey entity, or
(ii) carries out, or intends to carry out, in or from within
Jersey, an activity that is, in the opinion of the Commissioner, substantial;
(d) the applicant has a principal address in Jersey, within the
meaning of Article 8(4);
(e) the name of the applicant is not undesirable under
Article 12; and
(f) no other ground for refusal, prescribed under
paragraph (7), applies or should be applied.
(5) If
not so satisfied, the Commissioner must refuse to register the applicant.
(6) For
the purpose of paragraph (4)(c)(ii) –
(a) the Commissioner must publish and maintain guidance as to
how he or she determines whether an activity is substantial;
(b) Articles 5(6)
to (8) apply to that guidance as they apply to guidance under
Article 5(4);
(c) the Commissioner must have regard to that guidance, in
determining whether an activity is substantial; and
(d) a registered charity, a governor of a registered charity, the
tribunal and the court must have regard to the guidance when performing any of
their functions under this Law to which the guidance is relevant.
(7) The
States may by Regulations prescribe further grounds on which an application
must or may be refused, and those grounds may, without limitation,
include –
(a) that
the entity has only one governor, not being a person who, by way of acting as a
governor, carries on a prescribed description of regulated financial services
business or any other prescribed description of business; or
(b) that a number or proportion of its governors are related to
each other in prescribed ways.
(8) The
Minister may by Order –
(a) make provision as to –
(i) the period within which the Commissioner must make a
decision on an application,
(ii) the notification to applicants of decisions and of reasons
for refusal;
(b) after consulting the Commissioner and any
body appearing to the Minister to be representative of interested
entities, provide that any provision of paragraph (2) –
(i) does
not apply to a prescribed description of applicant appearing to the Minister to
require relief from the burden of that provision by virtue of the small size,
or lack of resources or expertise of applicants of that description, or
(ii) applies to a prescribed description of applicant only
subject to a modification prescribed by the Order, being a modification that
appears to the Minister to give reasonable relief from the burden of that
provision, having regard to the small size, or lack of resources or expertise
of applicants of that description.
(9) The
Commissioner must –
(a) on
registering an entity as a charity, issue to that charity a certificate of
registration, in the form published by the Commissioner, confirming the
registered name, the registration number and the date of registration of the
charity; and
(b) on
entering on the register a new or alternative registered name, under
Article 12(5), issue a further such certificate confirming the new or
alternative registered name and the date on which that name was entered on the
register.
(10) An
applicant for registration, if it is an entity that is required to be
registered under the Non-Profit Organizations (Jersey) Law 2008 but is not
so registered, must –
(a) provide with the application any additional information that
must be provided to the JFSC in an application for registration under that Law;
and
(b) request to be registered under that Law (by virtue of
paragraph (11)).
(11) If the
Commissioner receives information and a request under
paragraph (10) –
(a) the
Commissioner must pass to the JFSC that request, with the information and
documents, held by the Commissioner, that must be provided to the JFSC in an
application for registration under the Non-Profit Organizations (Jersey)
Law 2008; and
(b) the JFSC must treat that request, with the information and
documents, as an application for registration under that Law.
12 Name
of charity
(1) For
the purpose of Article 11(4)(e), the name of an
entity is undesirable as the registered name of a charity if, in the opinion of
the Commissioner, the name –
(a) is
the same as, or too similar to, the name of any other registered charity;
(b) is
likely to mislead the public as to the purpose, activities or identity of the entity;
(c) gives the impression that the entity is connected to any
person to which it is not connected, whether in Jersey or elsewhere; or
(d) is
offensive.
(2) If
the Commissioner registers the entity, the Commissioner must –
(a) enter the name of the entity in the register (the
“registered name”); and
(b) allocate a number in respect of the registration, and enter
that number (“the registration number”) in the register.
(3) A
registered charity may apply to the Commissioner for permission to change its
registered name or to add an alternative registered name.
(4) The
Commissioner must refuse permission if, in his or her opinion, any of the
grounds in sub-paragraphs (a) to (d) of paragraph (1) applies in
relation to the proposed name.
(5) If
the Commissioner grants permission, and the registered charity notifies the Commissioner
that it has changed or added the name accordingly, the Commissioner must enter
on the register the new or alternative registered name.
(6) If
a registered charity reports a matter relating to its registered name under
Article 13(6)(b), the Commissioner may require
the charity to apply to change its registered name under paragraph (3).
(7) A
registered charity must not use any name other than –
(a) its registered name or one of its registered names; or
(b) another name that –
(i) is related to such a name, and
(ii) is not, in the opinion of the Commissioner, undesirable
within the meaning of paragraph (1), in the context in which it is used.
13 Effects
of registration
(1) Paragraphs
(2) to (4) apply while an entity is registered as a charity, and only cease to
apply if the entity is deregistered.
(2) Any
provision of the entity’s constitution or constitutional Law is of no
effect to the extent that it purports to permit an amendment of the purposes of
the entity to include a purpose that is not charitable.
(3) Any
provision of the entity’s constitution or constitutional Law that
purports to permit an amendment of the purposes of the entity to add or
substitute a different charitable purpose, is to be read as being subject to
the entity –
(a) providing evidence, to the satisfaction of the Commissioner,
of a reason justifying the proposed amendment; and
(b) obtaining the Commissioner’s prior approval of the
proposed amendment.
(4) The
entity must –
(a) provide public benefit in accordance with its registered
public benefit statement; and
(b) if it requests the Commissioner’s approval of a
proposed amendment to that statement, provide evidence, to the satisfaction of
the Commissioner, of a reason justifying that request.
(5) A
registered charity must, while it is entered in the restricted section of the
register, ensure –
(a) that it meets the condition, prescribed under
Article 9(2), as to which the Commissioner was satisfied under
Article 9(6)(b); or
(b) if,
before it ceased to meet that condition, the Commissioner gave prior permission
for it to remain entered in the restricted section on the basis of a different
condition prescribed under that Article, that it meets that condition as
specified in that permission.
(6) A
registered charity must promptly report to the Commissioner –
(a) a change in a matter about which information is entered on
the register (whether in the general or restricted section) in relation to that
charity;
(b) any
other matter, coming to light after registration or after permission for a
change of name, that could, if known before the registration or permission,
have led to the Commissioner refusing to register the charity, refusing to
accept the name of the charity, or entering it in a different section;
(c) a proposal to change the charity’s constitution;
(d) a proposal that could result, or an event that has resulted
in the charity ceasing to meet the requirements of Article 11(4)(c)
or (d);
(e) a reportable matter, in relation to a governor of the
charity, if the charity is aware that the governor has not promptly reported it
to the Commissioner under Article 19(2);
(f) a matter likely to lead to the charity becoming bankrupt,
being wound up or otherwise ceasing to exist;
(g) if the charity is entered in the restricted section, a
proposal to change how or whether the charity meets a condition prescribed
under Article 9(2); and
(h) any other matter prescribed by the Minister by Order for
this purpose.
(7) A
registered charity must send an annual return to the Commissioner, containing
information as to any matter falling within paragraph (6) arising during
the year to which the return relates, and as to any other matter prescribed by
the Minister by Order for this purpose.
(8) An
Order under paragraph (7) may also make provision as to the format and
timing of the annual return, the consequences of lateness, and the content of
any entries to be made on the register in respect of the annual return.
(9) The
Minister may by Order –
(a) require
a registered charity to include in its annual return details of a prescribed
description of any payment made, during the year to which the return relates,
by or on behalf of the registered charity to a governor, or to a person having
a prescribed connection with a governor;
(b) require a registered charity to provide to the Commissioner
a statement of its current intentions as to making any payments of such a
prescribed description in future;
(c) provide for the entry on the register by the Commissioner of
the details included under sub-paragraph (a) in the charity’s latest
annual return, and of the statement provided under sub-paragraph (b).
(10) The
Minister may by Order, after consulting the Commissioner and any body appearing to the Minister to be representative of
interested registered charities, provide that any provision of
paragraph (6) or (7), or of any Order under paragraph (7), (8) or
(9) –
(a) does
not apply to a prescribed description of charity appearing to the Minister to
require relief from the burden of that provision by virtue of the small size,
or lack of resources or expertise of charities of that description; or
(b) applies to a prescribed description of charity only subject
to a modification prescribed by the Order, being a modification that appears to
the Minister to give reasonable relief from the burden of that provision,
having regard to the small size, or lack of resources or expertise of charities
of that description.
(11) A
registered charity –
(a) must not make any payment that is inconsistent with a
statement provided under paragraph (9)(b);
(b) may apply to the Commissioner, with reasons, for permission
to amend that statement.
(12) If the
States make Regulations under Article 11(7), those Regulations may also
make provision requiring a registered charity or its governors (or both) to
avoid, or report and remedy, a situation arising at a time after registration,
being a situation in which, if the charity were at that time applying for registration,
there would be grounds under those Regulations to refuse that application.
(13) If a court-approved
fidéicommis or an incorporated 1862 association
becomes registered as a charity under this Law, paragraphs (2)
and (3) do not apply to that registered charity to the extent that they
are inconsistent with any order made, whether before or after registration
under this Law, by the court under the Loi of 1862.
14 Powers
of court over registered charity
(1) The
court may exercise any of the powers set out in paragraph (2) in relation
to a registered charity if, on an application by the Commissioner or the
Attorney General, it appears to the court –
(a) that there is or has been misconduct in the administration
of the charity; or
(b) that it is necessary or desirable to exercise the power for
the purpose of protecting the property of the charity or securing a proper
application of that property in accordance with the charity's registered
charitable purposes and registered public benefit statement.
(2) The
court may make any order that the court sees fit to remedy the misconduct,
protect the property and secure its proper application.
(3) Without
prejudice to the generality of paragraph (2), the orders that the court
may make include an order –
(a) prohibiting (whether for a specified or indefinite period)
the charity or a governor from –
(i) referring to or holding out the entity as a charity or
Jersey charity, or as being charitable, having charitable purposes or providing
public benefit,
(ii) soliciting donations from the public, as specified in the
order, or
(iii) taking
any other action specified in the order;
(b) appointing a person (whether a specified or indefinite
period) to manage the affairs of the charity in place of its governors;
(c) appointing a person to be a governor of the charity;
(d) suspending or removing a governor of the charity, or any
other person concerned in the management or control of the charity;
(e) requiring a person (including without prejudice a person
carrying on regulated financial services business) who holds property on behalf
of the charity, or on behalf of a governor of the charity, not to part with the
property without the court’s consent;
(f) restricting the transactions that may be entered into, or
the nature or amount of the payments that may be made, in the administration of
the charity without the court’s consent;
(g) making the administration of the charity subject to such
supervision, restraint or conditions, from such time, and for such periods, as
the court may specify;
(h) requiring a governor who appears to the court to have
engaged in any misconduct, or any other person who appears to be responsible
for any misconduct, to take such steps as the court may direct to remedy the
effects of the misconduct;
(i) making such ancillary provision as the court thinks
desirable.
(4) The
court may, on the application of the Commissioner, the Attorney General, the
registered charity or any person to whom the order was directed, amend or
revoke any order made under this Article.
(5) The
powers of the court under this Article apply –
(a) in addition to and not in derogation from any powers of the
court under any other enactment or under customary law; and
(b) despite anything in the constitution of the charity.
(6) The
powers of the court under this Article are without prejudice to any power of
the Commissioner to take any action under this Law in respect of any
misconduct.
15 Deregistration
on application by entity
(1) An
entity that is a registered charity may apply to the Commissioner to terminate
the registration of the entity as a charity (to “deregister” the entity).
(2) An
entity applying for deregistration must provide the Commissioner with any
information or document requested by the Commissioner in relation to the entity’s
proposals for the continuation or winding up of the entity and for the
application of any of its property remaining after deregistration.
(3) If
the entity complies with paragraph (2) the Commissioner must –
(a) deregister the entity; or
(b) refuse to deregister the entity on grounds relating to the
proposals mentioned in paragraph (2).
16 Deregistration
in other cases
(1) The
Commissioner may, by written notice to an entity that is registered as a
charity, deregister the entity if satisfied, after giving the entity written
notice specifying reasons and inviting objections within a reasonable time
specified in the notice, that it is proportionate to do so on the ground
that –
(a) the entity no longer meets the charity test;
(b) the Commissioner was misled into registering the entity,
whether by the entity or by any other person and whether intentionally or
otherwise;
(c) the entity has failed to comply with a required steps
notice; or
(d) any other circumstance prescribed by the Minister by Order
applies.
(2) If
the Commissioner is satisfied that an entity that is registered as a charity no
longer exists, the Commissioner must, by written notice to any person
purporting to be a governor of the entity or to be responsible for the winding
up of the affairs of the entity, deregister the entity.
17 Effects
of deregistration
(1) After
deregistering an entity, the Commissioner –
(a) must retain the information registered in respect of that
entity for 10 years; and
(b) must not assign the registered number of that entity to any
other registered charity.
(2) Paragraph (3)
applies if the Commissioner –
(a) deregisters
a charity under Article 16;
(b) is satisfied that the grounds for deregistration have
existed since a past date;
(c) specifies that date in the notice under Article 16(1)
or (2); and
(d) determines that the deregistration should take effect
retrospectively.
(3) The
termination takes effect from the past date specified under paragraph (2)(c) for all purposes, including the purposes of any
enactment relating to taxation, but subject to paragraph (4).
(4) An act, that occurred before the date of the giving of the
notice under Article 16(1) or (2) is not rendered an offence merely
by virtue of the operation of paragraph (3).
(5) Paragraphs (6)
to (11) apply, after a charity is deregistered, if and so long as there remains
any property of the charity that was acquired before it was deregistered (the
“remaining property”).
(6) The
entity must continue to apply the remaining property for the purposes that were
its registered charitable purposes immediately before deregistration (the
“preserved charitable purposes”), and in accordance with the
registered public benefit statement that was in effect immediately before
deregistration (the “preserved public benefit statement”).
(7) Despite
any provision of the entity’s constitution, or of the constitutional Law
of the entity, the entity has no power to amend the preserved charitable
purposes or preserved public benefit statement.
(8) The
entity may apply to the court for an order amending the preserved charitable
purposes or preserved public benefit statement, and the court may make such
amending order, and any ancillary order, as it considers expedient to ensure
that the remaining property continues to be applied for purposes that are, in
the opinion of the court, charitable purposes and in a manner that, in the
opinion of the court, provides public benefit.
(9) The
court may exercise any of the powers set out in Article 14 in relation to
the deregistered entity, as if it were still registered, if, on an application
by the Attorney General or a governor of the entity, it appears to the
court –
(a) that
there is or has been any conduct in the administration of the entity in
relation to the remaining property, that would have been misconduct if the
entity had not been deregistered; or
(b) that it is necessary or desirable to exercise the power for
the purpose of protecting the remaining property or securing a proper
application of the remaining property for the preserved charitable purposes of
the entity and in accordance with the preserved public benefit statement.
(10) A
governor may not apply under paragraph (9) unless the governor has first
given notice to the Attorney General of the governor’s intention to do so
and of the reasons for that intention.
(11) The
Attorney General may at any time, by giving notice to the governor and the
court, take over an application made by a governor under paragraph (9),
and may then withdraw or proceed with the application as the Attorney General
sees fit.
Part 5
Governors of registered charities
18 General
duties of governors of registered charities
(1) A
governor of a registered charity must seek, in good faith, to ensure that the
charity –
(a) acts in a manner that is consistent with its registered
charitable purposes and with its registered public benefit statement; and
(b) complies with any direction, requirement, notice or duty
imposed on it by or under this Law.
(2) A
governor of a registered charity, that is an unincorporated body or association
of persons falling within Article 2(1)(i), must
in the execution of his or her duties and in the exercise of his or her powers
and discretions –
(a) act –
(i) with due diligence,
(ii) as would a prudent person,
(iii) to the best of the governor’s ability and skill; and
(b) observe the utmost good faith.
(3) The
duties imposed by this Article apply despite any contrary provision in the
constitution or the constitutional Law of the charity, except to any extent
that such provision imposes a more onerous duty.
(4) For
the purposes of this Law a governor engages in misconduct if –
(a) the governor contravenes a provision, or commits an offence,
mentioned in Article 2(10);
(b) the governor concurs in misconduct by the charity;
(c) the governor assists or encourages another governor to
engage in misconduct; or
(d) the governor –
(i) becomes aware or
ought to have become aware of any misconduct in relation to the charity, or of
the intention of another governor to engage in misconduct, and
(ii) the governor actively conceals that misconduct or that
intention, or fails within a reasonable time to take proper steps to protect or
restore the property of the charity or to prevent the misconduct.
19 Reportable
matters and acting as a governor
(1) A
reportable matter in relation to a person is the fact that the
person –
(a) has
engaged in misconduct as a governor of a registered charity, being misconduct
that led to the service of a required steps notice on that governor or on that
charity or on another governor of that charity;
(b) is the subject of a disqualification order, or of any other
restriction on his or her acting as a governor, imposed under this Law;
(c) has been disqualified from or for being a charity trustee or
trustee for a charity under the law of any part of the United Kingdom, or from
holding any equivalent position under the law of any other jurisdiction;
(d) has been disqualified from being a company director, or has
been made subject to any equivalent disqualification under the law of any
jurisdiction other than Jersey;
(e) is
bankrupt or otherwise insolvent, whether under the law or Jersey or elsewhere;
(f) has
a conviction (whether or not spent) for an offence under this Law;
(g) has an unspent conviction for an offence falling within
Article 2(10)(b); or
(h) falls within any other description that may be prescribed by
the Minister by Order.
(2) A
governor of an entity applying for registration, or of a registered charity,
must report any reportable matter promptly to that entity or charity and to the
Commissioner.
(3) A
governor of an entity applying for registration must, if there is no reportable
matter in relation to that governor, provide to the entity a declaration to
that effect before the application is made.
(4) A
governor of a registered charity must, if there is no reportable matter in
relation to that governor, provide to the charity a declaration to that effect
when notified by the charity that it is preparing its annual return.
(5) The
entity must state in its application, and the registered charity must state in
its annual return, that it has declarations from all of its governors who have
not made a report under paragraph (2).
(6) An
application for registration is not complete if the entity has not complied
with paragraph (5).
(7) A
registered charity that contravenes paragraph (5) must explain to the
Commissioner the reason for the contravention.
(8) A
person must not act as a governor of a registered charity at any time when the
person is in breach of paragraph (2) or (4).
(9) If
a governor reports a reportable matter to the Commissioner, the
Commissioner –
(a) must make inquiries to determine whether the governor is a
fit and proper person to be a governor;
(b) may apply to the court to determine that issue under
Article 20;
(c) must not, in the case of an application for registration,
grant that application until the issue has been determined and any resulting
order or notice complied with;
(d) may,
in the case of a registered charity, by written notice to the charity, permit,
either unconditionally or subject to any condition appearing to the
Commissioner to be necessary, the governor to act as a governor until that
issue is determined or the notice is withdrawn;
(e) must, if the issue is not to be determined by the court
under sub-paragraph (b), on determining the issue –
(i) notify
the entity that the application will be refused unless the governor is removed,
or in the case of a registered charity serve a required steps notice requiring
the charity to suspend or remove the governor, or
(ii) by notice in writing, entered in the register, give
permission for the governor to act as a governor, either unconditionally or
subject to any condition or time limit that appears to the Commissioner to be
necessary.
(10) A person
must not act as a governor of a registered charity at any time after reporting
a reportable matter, unless the governor –
(a) is permitted to do so by the Commissioner under
paragraph (9)(d) or (e)(ii), or by the court under Article 20;
and
(b) does so in either case in accordance with any condition on
that permission.
(11) A person
who without reasonable excuse contravenes paragraph (10) commits an
offence and is liable to imprisonment for one year and to a fine.
(12) Paragraphs (10)
and (11) are not to be construed as requiring an act to be treated as void
or invalid merely by virtue of the act constituting a contravention of
paragraph (10).
(13) If at
any time the Commissioner suspects that a governor of a registered charity may
have breached paragraph (2), the Commissioner may, without prejudice to
any other of his or her powers, apply to the court to determine whether the
governor is a fit and proper person to be a governor.
20 Court
orders as to fitness of governor
(1) On
an application under Article 19(9)(b) or (13),
the court may make any order that the court sees fit, including without
limitation –
(a) an order dismissing the application;
(b) an order giving permission for the governor to act as a
governor despite a reportable matter;
(c) an order that the entity must not be registered as a
charity;
(d) an order requiring a registered charity to suspend or remove
the governor;
(e) an order making any provision that could be made by a
required steps notice;
(f) any order ancillary to any such order.
(2) An
order under paragraph (1) may, without limitation –
(a) apply to a governor in respect of a particular registered
charity, a description of registered charities or all registered charities;
(b) be made subject to any condition or time limit that appears
to the court to be necessary or equitable.
(3) If
it appears to the Commissioner or the Attorney General that it is or may be
expedient in the public interest that a person should not, without the leave of
the court, be a governor of or in any way whether directly or indirectly be
concerned or take part in the management of a registered charity, the
Commissioner or the Attorney General may apply to the court for an order to
that effect against the person (a “disqualification order”).
(4) The
court may, on such an application or on an application under
Article 19(9)(b) or (13), make a disqualification order if it is
satisfied that the person is unfit to be concerned in the management of a
registered charity, by virtue of –
(a) the person’s conduct in relation to a registered
charity, or to an entity applying for registration; or
(b) the seriousness of a reportable matter in relation to the
person.
(5) A
disqualification order is to be for such period, not exceeding 15 years,
as the court directs.
(6) A
person who contravenes a disqualification order commits an offence and is
liable to imprisonment for 2 years and to a fine.
Part 6
Use of expressions “Charity”,
“charitable” and related terms
21 Prohibition
of unauthorized use of expression “charity” and related terms
(1) An
entity that is not a registered charity –
(a) must not refer to itself as being registered by the
Commissioner; and
(b) must not cause or permit another person to refer to the
entity as being registered by the Commissioner.
(2) A
person must not refer to an entity, that is not a registered charity, as being
registered by the Commissioner, if the person –
(a) knows, suspects or has reasonable grounds to suspect that
the entity is not a registered charity; and
(b) intends,
by so referring to the entity, to cause another person –
(i) to be misled as to the nature of the entity, or
(ii) to give to the entity any property or financial or other
advantage.
(3) A
Jersey entity that is not a registered charity –
(a) must not refer to itself as a “charity”; and
(b) must not cause or permit another person to refer to the
entity as a “charity”.
(4) A
person must not refer to a Jersey entity, that is not a registered charity, as
a “charity”, if the person –
(a) knows, suspects or has reasonable grounds to suspect that
the entity –
(i) is a Jersey entity, and
(ii) is not a registered charity; and
(b) intends,
by so referring to the entity, to cause another person –
(i) to be misled as to the nature of the entity, or
(ii) to give any property or financial advantage to the entity.
(5) An
entity that is not a registered charity and is neither a Jersey entity nor an
excepted foreign charity (within the meaning of Article 22) –
(a) must not refer to itself as a “charity” in
connection with any of its activities in Jersey; and
(b) must not cause or permit another person to refer to the
entity as a “charity” in connection with any of its activities in
Jersey.
(6) A
person must not refer to an entity, that is not a registered charity and is
neither a Jersey entity nor an excepted foreign charity (within the meaning of
Article 22), as a “charity” in connection with any of its
activities in Jersey, if the person –
(a) knows, suspects or has reasonable grounds to suspect that
the entity –
(i) is neither a Jersey entity nor an excepted foreign charity,
and
(ii) is not a registered charity; and
(b) intends,
by so referring to the entity, to cause another person –
(i) to be misled as to the nature of the entity, or
(ii) to give any property or financial advantage to the entity.
(7) Paragraphs (2),
(4) and (6) apply whether or not the person making the reference is also
the entity, and is referring to itself.
(8) The
States may by Regulations prescribe exceptions to the prohibitions in
paragraphs (1) to (6).
(9) An
entity or other person, that contravenes paragraph (2), (4) or (6),
commits an offence and is liable to imprisonment for a term of 2 years and
to a fine.
(10) An
entity, that contravenes paragraph (1), (3) or (5), commits an
offence and is liable to a fine of level 3 on the standard scale.
22 Excepted
foreign charities
(1) For
the purpose of Article 21, an entity is an excepted foreign charity if it
meets both the condition in paragraph (2) and the condition in
paragraph (3).
(2) The
first condition is that the entity is –
(a) established under the law –
(i) of the United Kingdom, or of any jurisdiction that is part
of the United Kingdom, or
(ii) of
a jurisdiction (not being Jersey, the United Kingdom or a part of the United
Kingdom) that is prescribed for this purpose by the Minister by Order; and
(b) entitled,
under the law of that jurisdiction, to refer to itself in that jurisdiction as
a “charity” (or by any equivalent term in a language other than
English that is used in that jurisdiction).
(3) The
second condition is that the entity –
(a) is managed wholly or mainly from the jurisdiction under the
law of which it is established; and
(b) is not a registered charity.
(4) The
Minister may by Order prescribe that a specified entity is not required to meet
the first condition, despite sub-paragraphs (a) and (b) of
paragraph (2).
(5) The
States may by Regulations amend paragraph (1), (2) or (3) to make
different provision as to the conditions that are to be met.
23 Prohibition
of unauthorized use of expression “Jersey charity”
(1) Unless
an entity meets all of the conditions in paragraph (3), that
entity –
(a) must not refer to itself as a “Jersey charity”;
and
(b) must not cause or permit another person to refer to the
entity as a “Jersey charity”.
(2) Unless
an entity meets all of the conditions in paragraph (3), a person must not
refer to that entity as a “Jersey charity”, if the
person –
(a) knows, suspects or has reasonable grounds to suspect that
the entity does not meet all of those conditions; and
(b) intends,
by so referring to the entity, to cause another person –
(i) to be misled as to the nature of the entity, or
(ii) to give any property or financial advantage to the entity.
(3) The
conditions are that the entity –
(a) is a registered charity;
(b) is a Jersey entity; and
(c) is wholly or mainly managed or controlled in or from within
Jersey.
(4) Paragraphs (1)
and (2) are subject to any exception prescribed by the States by
Regulations.
(5) Paragraph (2)
applies whether or not the person making the reference is also the entity, and
is referring to itself.
(6) An
entity that contravenes paragraph (1) commits an offence and is liable to a
fine of level 3 on the standard scale.
(7) An
entity or other person, that contravenes paragraph (2), commits an offence
and is liable to imprisonment for a term of 2 years and to a fine.
24 Power
to restrict use of term “charitable” in soliciting funds
(1) The
States may by Regulations make provision restricting the use, other than by a
registered charity, of any relevant term in relation to the soliciting of
donations from the general public or from any prescribed description of
persons.
(2) The
relevant terms are “charitable”, “public benefit” and
any related term (other than “charity”) specified as such in the
Regulations.
(3) Without
prejudice to the generality of paragraph (1) any Regulations under that
paragraph –
(a) may make the provision by adapting any provisions of
Articles 21 to 23;
(b) may
impose the restriction by any means, including by requiring permission to be
sought from the Commissioner, who may be given discretion as to whether to
grant that permission; and
(c) may provide for the Commissioner to issue guidance as to the
operation of the Regulations.
(4) The
Regulations may make it an offence to contravene a restriction imposed by the
Regulations, being an offence carrying a penalty no greater than a fine.
25 Power
to require registered charities to identify themselves as such
(1) The
Minister may by Order prescribe statements that must be made (including the
manner in which they must be made) by a registered charity in relation to its
registration in prescribed descriptions of document or publicity.
(2) Without
prejudice to the generality of paragraph (1), the provision that may be
made includes –
(a) provision requiring the charity to state any or all of the
following –
(i) that it is a charity,
(ii) its charity registration number,
(iii) that it is registered with the Commissioner,
(iv) how documents relating to its registration may be inspected,
(v) the nature of its purposes,
(vi) the identity or contact details of one or more of its
charity governors;
(b) provision as to the legibility of the statement, and the
language or languages in which the statement must or may be made;
(c) provision as to whether the requirement only applies to documents
or publicity issued or signed on behalf of the charity, or to other
descriptions of document or publicity;
(d) provision as to whether and how the requirement applies to
web pages and websites, and the responsibility of the charity for those pages
or sites.
Part 7
Information and enforcement
26 Power
to demand information
(1) The
Commissioner may, by notice in writing served on a person falling within
paragraph (2), require that person –
(a) to
provide to the Commissioner, at such time and place as may be specified in the
notice, any information or document of a specified description that the
Commissioner reasonably requires for the purpose of determining whether to
serve a required steps notice; or
(b) to attend at such place and time as may be specified in the
notice and answer questions that the Commissioner reasonably requires the
person to answer for that purpose.
(2) The
persons falling within this paragraph are –
(a) a registered charity or an entity that was formerly a
registered charity; and
(b) a governor or former governor of a registered charity or of
an entity that was formerly a registered charity.
(3) If
a person from whom provision of a document is required under paragraph (1)
claims a lien on any such document, the provision is without prejudice to the
lien.
(4) If
the Commissioner exercises a power under paragraph (1) to require a
document to be provided, the Commissioner may –
(a) if
the document is provided, retain or take copies of it or extracts from it and
require the person providing it, or any person who appears to be in possession
of relevant information and to be a governor or employee of the registered
charity, to provide an explanation of the document; and
(b) if the document is not provided, require the person to whom
the requirement was directed to state, to the best of the person’s
knowledge and belief, where the document is.
(5) A
document, copy or extract retained or taken under paragraph (4)(a) may be retained for whichever is the longer
of –
(a) a period of one year; and
(b) if within that period proceedings to which the document is
relevant are commenced against any person, until the conclusion of those
proceedings.
(6) A
person who requires a document retained under paragraph (4)(a) for the
purpose of the person’s business, and who requests that document, must be
supplied with a copy as soon as practicable.
(7) A
person who without reasonable excuse contravenes a requirement imposed on the
person under paragraph (1) or (4), commits an offence and is liable
to imprisonment for a term of 3 months and to a fine of level 3 on
the standard scale.
(8) Nothing
in this Article is to be construed as requiring the disclosure or production by
a person to the Commissioner of information or documents that the person would
in an action in court be entitled to refuse to disclose or produce on the
grounds of legal professional privilege.
(9) A
statement made by a person in compliance with a requirement imposed under this
Article may not be used by the prosecution in evidence against the person in
any criminal proceedings except proceedings under paragraph (7)
or (10).
(10) A person
commits an offence, and is liable to imprisonment for a term of 2 years
and to a fine, if the person provides information to the Commissioner, knowing
that it is false in a material particular and intending it to be used by the
Commissioner for the purpose of an application for registration or for the
purpose of determining whether to serve a required steps notice.
(11) For the
purpose of paragraph (10) it is irrelevant whether the
information –
(a) is contained in a document or not; or
(b) is provided under this Article or not.
27 Required
steps notices
(1) Paragraph (2)
applies if the Commissioner believes that –
(a) there has been misconduct by a registered charity;
(b) a registered charity does not pass the charity test;
(c) a governor of a registered charity has engaged in
misconduct;
(d) a governor of a registered charity is, by reason of a reportable
matter, unfit to be a governor of a registered charity; or
(e) a registered charity has ceased to meet the requirements of
Article 11(4)(c) or (d).
(2) The
Commissioner may serve written notice on any one or more of the relevant
persons, within the meaning of paragraph (3), requiring steps specified in
the notice to be taken by that person in a time specified in the notice, being
steps that in Commissioner’s opinion are appropriate to remedy the matter
prompting service of the notice.
(3) The
relevant persons for the purpose of paragraph (2) are –
(a) the registered charity; and
(b) the governors of the registered charity.
(4) If
the notice is served by virtue of paragraph (1)(c) or (d), the steps
required may include (subject to Article 28) the suspension, removal or
replacement of the governor referred to in that paragraph.
(5) The
Minister may by Order make further provision as to the procedure for, and
restrictions on, serving a notice under this Article.
28 Required
steps notices restricted in relation to governors of organized religious
charities
(1) The
Minister may by Order provide for registered charities to be categorized as organized
religious charities for the purpose of paragraph (3), being registered
charities that appear to the Minister –
(a) to meet the charity test by virtue of Article 6(1)(c),
whether solely or in combination with any other charitable purpose; and
(b) to be organized in such a way that the supervision and
discipline of the governors of the registered charity, in relation to the
activities of the registered charity in Jersey (whether or not also in relation
to activities elsewhere), is adequate to justify the application of
paragraph (3).
(2) The
provision that may be made under paragraph (1) includes, without limitation –
(a) provision granting discretion to the Commissioner to grant
or withdraw status as an organized religious charity;
(b) provision that distinguishes between charities on the basis
of the status of the charity as –
(i) a designated religious charity within the meaning of the
Charities and Trustee Investment (Scotland) Act 2005 of the Scottish
Parliament,
(ii) an institution falling within section 10(2) of the Charities
Act 2011 of the parliament of the United Kingdom, or
(iii) an entity in Jersey that is similar to such a designated
religious charity or to such an institution.
(3) A
required steps notice served on an organized religious charity, or on a governor
of such a charity, is invalid to the extent that it purports to impose a
requirement to suspend, remove or replace a governor of that charity.
29 Restricted
information
(1) Subject
to paragraph (2) and to Articles 30 and 31, a person who
receives information relating to the business or other affairs of any
person –
(a) under or for the purposes of this Law; or
(b) directly or indirectly from a person who has so received it,
commits an offence and is liable to imprisonment for a term of
2 years and a fine if he or she discloses the information without the
consent of the person to whom it relates and (where sub-paragraph (b)
applies) the person from whom it was received.
(2) This
Article does not apply to information –
(a) that
is registered in the public parts of the register, within the meaning of
Article 10(3) to (5);
(b) that at the time of the disclosure is or has already been
made available to the public from other sources; or
(c) in
the form of a summary or collection of information so framed as not to enable
information relating to any particular person to be ascertained from it.
30 Required
disclosure of information
(1) The
Commissioner must disclose information to the Comptroller, if required by the
Comptroller for the purpose of enabling the Comptroller to discharge any of his
or her functions in relation to the taxation of registered charities or other
entities with any charitable purposes.
(2) The Commissioner must disclose information
to the JFSC, if required by the JFSC for the purpose of enabling the JFSC to
discharge any of its functions under the Non-Profit Organizations (Jersey) Law 2008[26].
31 Permitted
disclosure of information
Article 29 does not preclude the disclosure of information –
(a) by or on behalf of the Commissioner, for purpose of enabling
the Commissioner to discharge any of his or her functions;
(b) to the Comptroller for purpose of enabling the Comptroller
to discharge any of his or her functions;
(c) to the JFSC for purpose of enabling the JFSC to discharge
any of its functions;
(d) to
the Attorney General, the Bailiff or the court for the purpose of enabling them
to discharge any of their functions in relation to charities, whether under
this Law, a constitutional Law, the customary law, or any other law;
(e) to
any person for the purpose of the investigation or prosecution of any offence
under any enactment or under the customary law of Jersey, or for the purpose of
taking or deciding whether to take any proceedings under this Law;
(f) in any other circumstances prescribed by the States by
Regulations.
Part 8
Appeals to Charity tribunal
32 Establishment
of Charity Tribunal
(1) There
is established a tribunal to be known as the Charity Tribunal.
(2) The function of the tribunal is to hear and
determine appeals under this Part.
(3) Schedule 2 makes further provision in
respect of the tribunal.
33 Persons who may
appeal and decisions that may be appealed
(1) An
applicant for registration may appeal against a decision of the
Commissioner –
(a) to refuse to register the applicant; or
(b) to refuse to register the applicant in the restricted
section of the register.
(2) A
registered charity may appeal against a decision of the Commissioner –
(a) to deregister the charity;
(b) to refuse permission, under Article 12(4), for the
charity to change its registered name or add an alternative registered name;
(c) to require the charity, under Article 12(6), to apply
to change its registered name;
(d) to refuse approval, under Article 13(3), of a proposed
amendment of the charity’s purposes to add or substitute a different charitable
purpose; or
(e) to refuse to approve an amendment, proposed under
Article 13(4)(b), to the charity’s registered public benefit
statement.
(3) A person
on whom the Commissioner serves a notice under Article 26 or a required
steps notice may appeal against the decision of the Commissioner to impose a
requirement contained in the notice.
(4) The
Attorney General may appeal against any decision of the Commissioner.
(5) A person,
other than an applicant for registration, a registered charity, or the Attorney
General, may appeal against a decision of the Commissioner to register an
applicant, on the ground that, at both the time of the application and the time
of the appeal –
(a) the applicant did not meet the charity test; or
(b) if the appellant has an interest in the registered name of
the applicant, that name was undesirable under Article 12(1).
34 Grounds
of appeal and powers of tribunal in determining appeals
(1) An
appeal may be made to the tribunal on the ground that the decision of the
Commissioner was wrong or unreasonable on its merits, the facts or the law.
(2) The
tribunal may –
(a) make
such interim order on an appeal as it thinks fit;
(b) consider evidence that was put to the Commissioner or accept
other evidence.
(3) On
determining an appeal the tribunal may –
(a) remit the decision to the Commissioner, substitute the
tribunal’s decision for that of the Commissioner, or dismiss the appeal;
(b) award costs if satisfied that the appeal was vexatious or
otherwise grossly unreasonable;
(c) make any recommendation to the Commissioner, as to the
performance of his or her functions in connection with the subject matter of
the appeal, that appears to the tribunal to be called for in the circumstances
of the case.
35 Appeal
and reference to court
(1) A
party to an appeal to the tribunal, or the Attorney General, may appeal from
the decision of the tribunal to the court on the ground that the decision was
unreasonable having regard to all the circumstances of the case.
(2) The
court, on determining the appeal, may remit the decision to the tribunal or to
the Commissioner, substitute the court’s decision for that of the
tribunal or that of the Commissioner, or dismiss the appeal.
(3) The
tribunal may refer any point of law to the court for the court to give a ruling
on the point.
(4) The
court may make such interim order on an appeal or reference as it thinks fit.
36 Further
provision as to appeals to tribunal or court
(1) Nothing
in this Part is to be read as limiting the Commissioner’s power to
reconsider his or her own decisions or the decisions of his or her staff,
whether at the request of any person or on the Commissioner’s own motion.
(2) The
Minister may by Order –
(a) prescribe time limits within which appeals to the tribunal
or court are to be brought; and
(b) make such provision as to the giving of notice of decisions
by the Commissioner or the tribunal, or of notice of reasons for such
decisions, as appears to the Minister to be expedient for the purpose of
enabling appeals to be brought within any time limits.
(3) If
the court or tribunal substitutes its decision for any other decision, it may
order that the substituted decision is to take effect for all purposes from any
date appearing to the court or tribunal to be appropriate, whether that date is
before, on or after the date of the original decision or of the court’s
or tribunal’s own decision.
(4) If
the court or tribunal makes an order under paragraph (3) that a
substituted decision is to take effect from a date before the date of the
order, an act, that occurred before the date of the order,
is not rendered an offence merely by virtue of the operation of the order.
Part 9
Miscellaneous and Final Provisions
37 Offences
by corporate and other bodies
(1) If
an offence under this Law, committed by a limited liability partnership, a
separate limited partnership or a body corporate is proved to have been
committed with the consent or connivance of –
(a) a
person who is a partner of the partnership, or director, governor, secretary or
other similar officer of the body corporate; or
(b) any person purporting to act in any such capacity,
the person is also
guilty of the offence and liable in the same manner as the partnership or body
corporate to the penalty provided for that offence.
(2) Where
the affairs of a body corporate are managed by its members, paragraph (1)
applies in relation to acts and defaults of a member in connection with the
member’s functions of management as if the member were a director of the body
corporate.
38 Service
of notices
The Minister may by Order make further provision as to the service
of any notice under this Law.
39 Regulations
and Orders
(1) An
Order or Regulations under this Law may contain such transitional,
consequential, incidental, supplementary or savings provisions, other than an
amendment of this Law, as appear to the Minister or the States (as the case may
be) to be necessary or expedient for the purposes of the Order or Regulations.
(2) A
power under this Law to amend, by Regulations, any provision of this Law
includes the power to make such transitional, consequential, incidental or
supplementary amendments to any other provision of this Law as appears to the
States to be necessary or expedient.
40 Savings
and transitional provisions
(1) Nothing
in this Law is to be read as derogating from any power or function of the
Attorney General, the Bailiff, or the court, being a power or function that
exists independently of this Law (under customary law or otherwise), in respect
of charities or of acts for charitable purposes (whether as defined in this Law
or otherwise).
(2) The
States may by Regulations make such other saving provision as appears to the
States to be necessary or expedient for the purposes of this Law.
(3) The
States may by Regulations make such transitional provision as appears to the
States to be necessary or expedient for the purposes of the bringing into force
of this Law.
41 Amendments
of Laws relating to sharing of information
(1) For
the purpose of paragraph (2) a relevant enactment is –
(a) the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008[27];
(b) any other enactment under which the JFSC has functions;
(c) any enactment relating to taxation.
(2) The
States may by Regulations amend any relevant enactment, to make such provision
as the States consider necessary or expedient to enable any supervisory body,
the JFSC and the Comptroller to disclose information to the Commissioner for
the purposes of this Law.
42 Consequential
amendments of other enactments
The States may by Regulations –
(a) amend
the Trusts (Jersey) Law 1984[28] and the Foundations
(Jersey) Law 2009[29], to make provision for the
application under those Laws of the charity test under this Law (by reference
the test itself, or to whether a trust or foundation is registered under this
Law, or otherwise), or of the definition of charitable purposes under this Law,
and for related purposes;
(b) amend
any other enactment (not including this Law) to make such consequential
provision as the States consider necessary or expedient, in relation to a
reference (direct or indirect) in that other enactment to charities or
charitable purposes or related terms.
43 Citation
This Law may be cited as the Charities (Jersey) Law 2014.