Referendum (Jersey)
Law 2017
A LAW to provide for the holding of
referendums, for the establishment of a commission to advise on referendum
questions and designate lead campaign groups, for the control of referendum
expenses, and for related purposes
Adopted by the
States 28th March 2017
Sanctioned by
Order of Her Majesty in Council 19th July 2017
Registered by the
Royal Court 28th
July 2017
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
Part 1
Interpretation
1 Interpretation
In this Law, unless the context otherwise
requires –
“commission” means
the commission appointed under Article 2;
“commissioner” means
a member of the commission (including the chairman);
“electoral register”
means an electoral register kept under the Public Elections Law;
“lead campaign group”
means a lead campaign group designated under Article 7 in relation to a
referendum;
“Public Elections Law”
means the Public Elections (Jersey) Law 2002[1];
“referendum Act”
means an Act under Article 6 resolving to hold a referendum;
“responsible officer”
has the meaning given by Article 17.
Part 2
Referendum commission
2 Appointment
of referendum commission
(1) A
referendum commission is to be appointed.
(2) The
commission is to consist of –
(a) a
chairman; and
(b) 4
other commissioners,
appointed under paragraph (3).
(3) The
chairman and each of the other commissioners are to be appointed –
(a) by
the Privileges and Procedures Committee established under Article 48(2) of
the States of Jersey Law 2005 (the “PPC”);
(b) for
no more than 5 years in the first instance, renewable to a total of no
more than 10 years; and
(c) on
such other terms and conditions, including as to termination of service and as
to expenses, but not including remuneration, as may be agreed between the PPC
and the person appointed.
(4) The
PPC must not appoint a person unless that person has been recommended to the
PPC by a panel comprising –
(a) the
Greffier of the States; and
(b) 2
other persons nominated by the PPC.
(5) The
PPC must not appoint a person if that person –
(a) is
a member of the States;
(b) holds
any paid office or employment in the service of the States or of any
administration of the States; or
(c) holds
any paid office or employment in the service of a parochial authority.
(6) The
PPC must, at least 2 weeks before making an appointment, present to the
States a notice of the PPC’s intention to make the appointment.
3 Functions
and procedures of commission
(1) The
principal functions of the commission are –
(a) to
consider and give an opinion on the wording of a proposed referendum question,
and of an amendment to such a question, for the purposes of Article 6(3)
and (5); and
(b) to
designate the lead campaign groups in relation to a referendum.
(2) A
referendum Act may confer supplementary functions on the commission for the
purpose of the referendum to which that Act relates.
(3) The
performance of the functions of the commission is not affected by any vacancy
in its membership.
(4) Each
commissioner has one vote.
(5) The
quorum for a meeting of the commission is 3 members.
(6) Except
as otherwise provided by this Law or by the referendum Act, the commission may
regulate its own procedure.
4 Costs of referendum and commission
(1) This
Article applies to the extent that a referendum Act does not prescribe
otherwise in relation to a particular referendum.
(2) The
following costs are to be met by the States –
(a) the
costs of the holding of the referendum, subject to paragraph (3);
(b) the
costs of the operation of the commission; and
(c) the
payment of the expenses of the commissioners.
(3) The
costs of setting up in a parish, incurred for the holding of the referendum in
that parish, are to be met by that parish.
5 Exclusion
of liability
(1) A
person is not liable in damages for any act in the performance or purported
performance of a function of that person under –
(a) this
Law; or
(b) a
referendum Act.
(2) Paragraph (1)
does not apply to a person who is –
(a) a
lead campaign group;
(b) an
applicant group, within the meaning of Article 7;
(c) a third
party, within the meaning of the Schedule;
(d) a
person who is a member of, or is acting on behalf of, such a lead campaign
group, applicant group or third party;
(e) any
other person on whom a duty is imposed by Article 19, in respect of the
performance of that duty.
(3) Paragraph (1)
does not apply –
(a) if
it is shown that the act was in bad faith; or
(b) so
as to prevent an award of damages made in respect of an act on the ground that
the act was unlawful as a result of Article 7(1) of the Human Rights
(Jersey) Law 2000[2].
Part 3
Conduct of Referendum
6 Act
for holding of a referendum
(1) The
States may by Act resolve that a referendum be held on any matter, and this Part
and Part 4 apply in any case where the States have so resolved.
(2) The
referendum Act must –
(a) fix
the date for the holding of the referendum, which must be not less than 3 months
after the making of the Act; and
(b) set
out the form of the ballot paper to be used in the referendum, including the text
of the referendum question.
(3) A
proposition for a referendum Act may not be lodged unless the commission has
published its opinion on the suitability of the wording proposed for the
referendum question.
(4) Paragraph (5)
applies if –
(a) a
proposition (an “amending proposition”) is lodged to amend a
proposition for a referendum Act; and
(b) the
amending proposition would alter the wording of the referendum question.
(5) The
commission must, if practicable, publish, before the first date on which the
amending proposition may be debated, its opinion on the suitability of the
proposed wording of the referendum question as so altered.
(6) The
referendum Act –
(a) may
make such other provision as to the conduct of the referendum and for
announcing its result as the States consider necessary or expedient; and
(b) without
prejudice to the generality of sub-paragraph (a), may apply in relation to
the referendum, with such adaptations, modifications or exceptions as may be
specified in the Act, any provisions of the Public Elections Law or of any
other enactment for the time being in force relating to public elections to the
States, including any provisions that create or relate to offences.
(7) In
this Article “referendum question” means the question or questions
to be asked in the referendum.
7 Commission
to designate lead campaign groups
(1) For
the purpose of this Article –
“applicant group” means a group that has applied in
accordance with the invitation notice;
“group” means –
(a) a
company, a foundation or any other body incorporated under or by any enactment;
(b) a
trade union or employers’ association registered under the Employment
Relations (Jersey) Law 2007[3];
(c) a
political party registered under the Political Parties (Registration) (Jersey)
Law 2008[4];
(d) a
fidéicommis created under Article 3 of the Loi (1862) sur les
teneures en fidéicommis et l’incorporation d’associations[5], or to which the court has
extended the benefits of that Loi under Article 17 of that Loi;
(e) any
other body, partnership or association that –
(i) does not consist
solely of one natural person, and
(ii) satisfies the
commission that it is not, by reason of its constitution or location or of the
means by which it may be held to account, unfit to act as a lead campaign group
under this Law;
“invitation notice” means a notice issued under paragraph (2);
“outcome” means a possible outcome of the
referendum.
(2) The
commission must issue a notice inviting groups to apply for designation under paragraph (4)
as the lead campaign group for each of the outcomes.
(3) The
invitation notice must specify –
(a) the
form and manner in which the application is to be made;
(b) the
period within which the application is to be made; and
(c) the
information that is to accompany the application, being such information as
appears to the commission to be likely to be of assistance in determining the
application.
(4) If
the condition in paragraph (6) is met, the commission must designate as
the lead campaign group, for each outcome, the applicant group appearing to the
commission to be likely to be able to represent to the greatest extent those supporting
that outcome.
(5) If
the condition in paragraph (6) is not met, the commission must refuse all
applications for all of the outcomes, and accordingly must designate no lead
campaign groups in respect of the referendum.
(6) The
condition is that the designations, in respect of the referendum as a whole,
comply with all of the following criteria, namely –
(a) that
every lead campaign group appears to the commission to be likely to be able to
represent adequately those supporting the outcome for which that group is
designated;
(b) that
no outcome is to be left without a lead campaign group;
(c) that
only one lead campaign group is to be designated for each outcome; and
(d) that
each lead campaign group is to be designated for only one outcome, unless paragraph (7)
applies.
(7) In
a referendum in which there are more than 2 outcomes, the commission may
designate the same group for more than one, but not all of, the outcomes –
(a) if
the referendum Act so provides; or
(b) in
the absence of such provision, if those outcomes appear sufficiently similar to
the commission for the designation of a single lead campaign group.
(8) Nothing
in the definition “group” in paragraph (1) (including a
decision by the commission under sub-paragraph (e)(ii) of that definition
that an applicant group is not unfit to act as a lead campaign group) is to be
read as limiting the power of the commission to decide that an applicant group is
unlikely to have the ability required for the purpose of paragraphs (4)
and (6)(a).
(9) The
commission must publish, in such a manner as appears likely to the commission
to bring it to the attention of the public –
(a) the
notice issued under paragraph (2); and
(b) if
it makes designations, information identifying each lead campaign group and the
outcome for which it is designated.
8 Arrangements
for publication of campaign material
(1) The
commission must make arrangements for campaign material provided to it by a
lead campaign group to be published in Jersey.
(2) The
campaign material must include information summarizing the lead campaign group’s
case for the outcome for which it is designated (whether or not it contains
other information).
(3) Nothing
in paragraph (1) obliges the commission to publish campaign material if that
material –
(a) does
not comply with paragraph (2);
(b) is provided
after the closing date specified by the commission for the provision of the
material;
(c) is
provided in a format other than a format specified by the commission; or
(d) exceeds
a length or size specified by the commission.
(4) In paragraph (3)
“specified” means specified by notice in writing from the
commission to the lead campaign groups.
(5) The
arrangements made under this Article must be available to each lead campaign
group in the referendum on equal terms.
(6) No
person other than the author of campaign material published under paragraph (1)
incurs any civil or criminal liability by virtue of the publication.
(7) Paragraph (6)
is not to be read as derogating from Article 5.
9 Lead
campaign groups to be given access to electoral registers
(1) If a
referendum Act makes provision under Article 10(3) for a referendum that
is to be held on the same day as an ordinary election, the duties of an
electoral administrator under Articles 9A(9) and 12(2) of the Public
Elections Law apply in respect of a lead campaign group as they apply in
respect of a candidate in the election.
(2) If paragraph (1)
does not apply, the person responsible, in each parish, for preparing and
maintaining the electoral register must cause to be available free of charge to
each lead campaign group –
(a) a
copy of the electoral register as in force at the end of the day on which the
group is designated; and
(b) unless
there is no subsequent change in the electoral register, a copy of the
electoral register as in force at midday on the day that is 7 days before
the date fixed for the holding of the referendum.
(3) Nothing
in this Article is to be read as preventing a lead campaign group from
exercising a right of public inspection of an electoral register under Article 11(1)
or (3) of the Public Elections Law.
10 Persons
entitled to vote
(1) A
person is entitled to vote in the referendum if, at midday on the day that is
7 days before the date fixed for the holding of the referendum, the
person’s name –
(a) is
on an electoral register;
(b) would
have been on such a register but for being omitted from that register under Article 9
of the Public Elections Law; or
(c) would
have been on such a register but for an administrative error –
(i) in respect of
which the requirements of Article 3 of the Public Elections Law are
satisfied, if that Article is applied by the referendum Act in respect of
polling stations, or
(ii) in circumstances
in which the person’s name is to be added to a copy of the electoral
register by the Judicial Greffier under Article 46B(4) of the Public
Elections Law, if that Article is applied by the referendum Act in respect of a
pre-poll vote or postal vote.
(2) Despite
paragraph (1), a person is not entitled to vote in the referendum if –
(a) the
person’s name is on the electoral register, or would have been on that
register in a case falling within paragraph (1)(b) or (c), by virtue of Article 5A
of the Public Elections Law; and
(b) the
date that is entered in that register, under paragraph Article 5A(6)(b) of
that Law in respect of that person, or that would have been so entered in a
case falling within paragraph (1)(b) or (c), falls after the date fixed
for the holding of the referendum.
(3) Despite
paragraphs (1) and (2), if a referendum Act has the effect that a
referendum is to be held on the same day as an ordinary election that is to be
held under Article 6 of the States of Jersey Law 2005[6] or under Article 2 of the
Connétables (Jersey) Law 2008[7], the Act may provide that
the persons who are entitled to vote in the referendum are the persons who are
entitled to vote in the ordinary election.
(4) Despite
paragraphs (1) to (3), a referendum Act may, under Article 6(6) –
(a) provide
for whether a person entitled to vote must or may do so in a particular manner,
whether at a polling station, by postal vote, by pre-poll vote, or in any other
manner; and
(b) in
relation to postal voting and pre-poll voting, provide for a date earlier than
the date specified in paragraph (1) as the date by reference to which a
person’s eligibility to vote is to be determined under the sub-paragraphs
of paragraph (1) or under paragraph (2).
11 Exclusion
of legal proceedings
No court may entertain any proceedings for questioning the numbers
of any ballot papers counted, or the answer given, in the referendum.
Part 4
Campaign
spending
12 Interpretation
(1) This Part is to be construed in accordance
with the Schedule.
(2) A referendum Act may, for the purpose of construing
this Part in relation only to the referendum held under that Act, disapply any
provision in the Schedule and apply any other defining provision instead.
(3) In this Part “working day” means
any day other than Christmas Day, Good Friday, a Sunday or a day observed as a
bank holiday pursuant to the Public Holidays and Bank Holidays (Jersey) Law 1951[8].
13 Application of
this Part and power to make other provision by Act
(1) This Part applies in respect of a referendum
except to the extent that provision is made otherwise under paragraph (2).
(2) In a referendum Act the States may, having
particular regard to the significance of the question or questions to be asked
in the referendum under that Act –
(a) if satisfied that the relevant referendum
does not warrant any controls over referendum expenses, provide that this Part
does not apply to the relevant referendum;
(b) if satisfied that the relevant referendum does
not warrant limits on referendum expenses, but does warrant declaration of referendum
expenses, provide that Articles 14 and 15 do not apply to the relevant
referendum; or
(c) if satisfied that there are exceptional
circumstances in relation to the relevant referendum, disapply the whole of
this Part and make any provision falling within paragraph (3) in relation
to the relevant referendum.
(3) The provision mentioned in paragraph (2)(c)
is provision to regulate the expenditure of, and donations towards the expenses
of –
(a) a lead campaign group in a referendum; and
(b) any other person or group (within the
meaning of Article 7 or otherwise) attempting to promote or procure, or
otherwise campaigning for or against, any of the possible outcomes of a
referendum,
in a manner appearing to
the States to have an effect appropriately similar, subject to modifications
for a referendum campaign, to the effect of the Public Elections (Expenditure
and Donations) (Jersey) Law 2014[9] in relation to an election campaign.
(4) Without prejudice to the generality of paragraph (3),
a provision falling within that paragraph may –
(a) make a contravention of the provision an
offence punishable by a fine, but not by imprisonment;
(b) apply in relation to the relevant referendum,
with such adaptations, modifications or exceptions as may be specified in the referendum
Act, any provision of the Public Elections (Expenditure and Donations) (Jersey)
Law 2014, including any provision that creates or relates to offences.
(5) A referendum Act may include provision, in
relation to the relevant referendum –
(a) that the States must not, or may, incur
expenses for a purpose mentioned in paragraph 1(3)(a) or (b) of the
Schedule; or
(b) that expenses so incurred by the States are
not to be treated as the expenses of a campaigner for the purpose of this Part.
(6) Nothing in paragraph (5) is to be read
as –
(a) derogating from Article 8 or from paragraph 8
of the Schedule; or
(b) enabling an Act to permit anything that is
prohibited by any other enactment.
(7) In this Article “the relevant
referendum”, in relation to a referendum Act, means the referendum that
is to be held under that referendum Act.
14 Restriction on
lead campaign group’s referendum expenses
(1) A lead campaign group’s referendum
expenses must not exceed, in the aggregate –
(a) £2,800, or such other amount as may be
specified in a referendum Act for a particular referendum; and
(b) 11 pence, or such other amount as may
be specified in a referendum Act for a particular referendum, for each person
entitled to vote in the referendum.
(2) A lead campaign group whose referendum
expenses exceed the limit imposed by paragraph (1) is guilty of an offence
and liable to a fine.
(3) It is a defence for a lead campaign group charged
with an offence under paragraph (2) to prove that the lead campaign group
took all reasonable steps to avoid the commission of the offence.
15 Restriction on
third party’s referendum expenses
(1) A third party’s referendum expenses
for a referendum must not exceed, in the aggregate, one half of the maximum
that would be allowed to a lead campaign group in the referendum by virtue of Article 14.
(2) A third party whose referendum expenses
exceed the limit imposed by paragraph (1) is guilty of an offence and
liable to a fine.
(3) It is a defence for a third party charged
with an offence under paragraph (2) to prove that the third party took all
reasonable steps to avoid the commission of the offence.
16 Prohibition of
campaigner keeping anonymous donation
(1) A campaigner must not keep an anonymous
donation.
(2) A campaigner who receives an anonymous
donation must, within 10 working days of receiving it, send it to the
Treasurer of the States.
(3) The Treasurer of the States must make such
arrangements as he or she thinks fit for the distribution, to one or more
charities established in Jersey, of donations sent to him or her under paragraph (2).
(4) A campaigner who contravenes paragraph (2)
is guilty of an offence and liable to a fine.
(5) It is a defence for a campaigner charged
with an offence under paragraph (4) to prove that the campaigner has a
reasonable excuse for the commission of the offence.
17 Requirement for campaigner
to make declaration following referendum
(1) Subject to paragraph (2), a campaigner
must, no later than 15 working days after the day the poll is held,
deliver to the responsible officer a written declaration of –
(a) the campaigner’s referendum expenses,
itemising the amounts expended (whether direct or notional) and the goods and
services on which they are expended; and
(b) the donations that the campaigner has
received, specifying –
(i) in relation to each donation of, or
having a value of, more than £120, the name of the donor, the amount or
value of the donation, and whether the donation consists of money, services, a
loan of money, goods or the use of goods, and
(ii) the sum of the anonymous donations
received, and sent to the Treasurer of the States, by the campaigner.
(2) Paragraph (1) does not apply to a
campaigner who –
(a) is a third party; and
(b) whose referendum expenses for the referendum
are less than £600.
(3) For the purposes of paragraph (1)(b)(i) –
(a) the value of a donation is to be determined
in accordance with paragraph 6 of the Schedule; and
(b) the donations made by a donor to the campaigner
are to be aggregated.
(4) The declaration required by paragraph (1)
must –
(a) be made using a form supplied by the responsible
officer;
(b) include a statement by the campaigner that,
to the best of its knowledge, information and belief, the information contained
in it is true, complete and correct; and
(c) be signed by the campaigner.
(5) If, having made a declaration, a campaigner
becomes aware of any variation in or addition to the information required to be
declared, the campaigner must, as soon as possible and, in any event, no later
than 10 working days after becoming so aware, deliver to the responsible
officer a further written declaration of the variation or addition.
(6) A declaration delivered under paragraph (5)
must include a statement conforming to paragraph (4)(b) and be signed by the
campaigner.
(7) If 2 or more persons constitute one third
party, under paragraph 1(2)(b) of the Schedule, any declaration required
from that third party by this Article must be made jointly by those persons and
signed by each of them.
(8) A campaigner who fails to deliver a
declaration, or further declaration, in accordance with this Article is guilty
of an offence and liable to a fine.
(9) It is a defence for a campaigner charged
with an offence under paragraph (8) to prove that the campaigner has a
reasonable excuse for the commission of the offence.
(10) A campaigner who delivers a declaration, or a
further declaration, under this Article, knowing or believing it to be false in
a material particular, is guilty of an offence and liable to a fine.
(11) A referendum Act may amend, for a particular
referendum –
(a) the monetary amount expressed in paragraph (1)(b)(i);
(b) the period of time expressed in paragraph (1);
(c) the period of time expressed in paragraph (5).
(12) In this Article, and Articles 18 and 20,
“responsible officer” means –
(a) if the referendum Act makes provision under Article 10(3)
for the referendum being held on the same day as an ordinary election, the
Judicial Greffier; or
(b) in any other case, the Greffier of the
States or other person specified in the Act for this purpose.
18 Verification of
expenses
(1) The responsible officer may request, in
writing, a campaigner to produce invoices, receipts and other proof of the
campaigner’s referendum expenses.
(2) A campaigner must comply with a request made
under paragraph (1) within 15 working days of it being made.
(3) A campaigner who contravenes paragraph (2)
is guilty of an offence and liable to a fine.
(4) It is a defence for a campaigner charged
with an offence under paragraph (3) to prove that the campaigner has a
reasonable excuse for the commission of the offence.
19 Requirement to
provide information and documents to lead campaign group
(1) A person who incurs or pays a lead campaign
group’s referendum expenses must, as soon as is practicable, provide the
lead campaign group with such information and documents as the lead campaign
group requires to comply with Articles 17 and 18.
(2) A person who contravenes paragraph (1)
is guilty of an offence and liable to a fine.
(3) It is a defence for a person charged with an
offence under paragraph (2) to prove that the person has a reasonable
excuse for the commission of the offence.
20 Treatment of
documents received by responsible officer
The responsible officer must –
(a) make declarations received by him or her
under this Part available for inspection, free of charge, at the offices of the
responsible officer, during normal working hours; and
(b) pass any declaration made or document
produced under this Part to the Attorney General where it appears to the responsible
officer that an offence against any provision of this Part may have been
committed.
21 Limitation period
for offences under this Part
No criminal prosecution for
an offence under this Part, arising from facts that have occurred at a
referendum or relate to a referendum, may be instituted after the expiration of
12 months from the date of that referendum.
Part
5
Miscellaneous and Final
22 Offences
by bodies corporate and others
(1) In this Article –
“relevant
offence” means an offence under this Law that is committed by a limited
liability partnership, a separate limited partnership, an incorporated limited
partnership or another body corporate;
“relevant
person” means –
(a) if the relevant offence is committed by a
limited liability partnership, a partner of the partnership;
(b) if the relevant offence is committed by a
separate limited partnership or an incorporated limited partnership –
(i) a general partner, or
(ii) a limited partner who is participating
in the management of the partnership;
(c) if the relevant offence is committed by a
body corporate other than an incorporated limited partnership –
(i) a director, manager, secretary or
other similar officer of the body corporate, and
(ii) if the affairs of the body corporate
are managed by its members, a member who is acting in connection with the
member’s functions of management; and
(d) a person purporting to act in any capacity
described in sub-paragraphs (a) to (c) in relation to the partnership or
body that commits the relevant offence.
(2) If a relevant offence is proved to have been
committed with the consent or connivance of a relevant person, that relevant
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.
(3) If a relevant offence –
(a) is an offence that may be committed by
neglect; and
(b) is proved to be attributable to any neglect
on the part of a relevant person,
that relevant 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.
23 Repeal of Referendum
(Jersey) Law 2002
The Referendum (Jersey) Law 2002[10] is repealed.
24 Citation
and commencement
This Law may be cited as the Referendum (Jersey) Law 2017 and
comes into force on the day after its registration.
DR. M. EGAN
Greffier of the States
SCHEDULE
(Article 12)
Third Parties, Referendum Expenses,
Donations and other terms Defined for the purpose of Part 4
1 Third
party and campaigner
(1) A campaigner,
in relation to a referendum, is a lead campaign group or a third party in that
referendum.
(2) A
third party, in relation to a referendum, is –
(a) a
person who incurs expenses for the supply or use of relevant goods, or for the
provision of relevant services, if that person –
(i) is not a lead
campaign group in the referendum, and
(ii) is not acting
with the express or implied consent of a lead campaign group in the referendum;
or
(b) all
of 2 or more persons acting together in incurring expenses for the supply or
use of relevant goods, or for the provision of relevant services, if each of
those persons –
(i) is not a lead
campaign group in the referendum, and
(ii) is not acting
with the express or implied consent of a lead campaign group in the referendum.
(3) For
the purpose of sub-paragraph (2), goods or services are relevant goods or
services if they are used –
(a) to
promote or procure any outcome in a referendum; or
(b) to
prejudice the prospects of any outcome in a referendum.
(4) For
the purposes of sub-paragraph (2)(b), the persons act together –
(a) if
they are jointly liable for the expenses;
(b) if
the expenses are incurred with the express or implied consent of all of them;
or
(c) if,
although they incur and are liable for the expenses separately, nevertheless –
(i) they are working
together, or liaising to co-ordinate their respective expenditure, and
(ii) the expenditure
is for shared purposes.
2 Referendum
expenses
(1) Expenses
are referendum expenses if they are a lead campaign group’s referendum
expenses or a third party’s referendum expenses.
(2) Expenses
are a lead campaign group’s referendum expenses if they are incurred, at
any time before the poll –
(a) by
the lead campaign group or with the lead campaign group’s express or
implied consent; and
(b) for
the supply or use of goods or the provision of services which are used –
(i) to promote or
procure the outcome for which that lead campaign group is designated in the
same referendum, or
(ii) to prejudice the
prospects of another outcome in the same referendum.
(3) Expenses
are a third party’s referendum expenses if –
(a) they
are incurred at any time before the poll, and
(b) the
person by whom they are incurred is a third party, under paragraph 1(2),
by virtue of incurring them.
(4) If
a lead campaign group is endorsed by a political party, the lead campaign group
is to be taken, for the purposes of sub-paragraph (2)(a), to have
consented to the party incurring expenses on his or her behalf.
(5) If
referendum expenses are incurred by, or with the express or implied consent of,
2 or more campaigners, it is to be presumed, unless the contrary is proved by
them, that the expenses relate to goods and services which are of equal benefit
to them and, accordingly, that those expenses are to be apportioned equally
between them.
3 Expenses:
direct and notional
(1) A campaigner’s
referendum expenses may be direct expenses or notional expenses.
(2) A
direct expense is the amount of any liability incurred for the supply or use of
goods or the provision of services, if the goods or services are used as
described in paragraph 1(3)(a) or (b).
(3) A
notional expense is incurred when goods or services supplied either free of
charge or at a discount are used as described in paragraph 1(3)(a)
or (b).
(4) A
notional expense is also a donation and, accordingly –
(a) the
value of a notional expense is determined in accordance with paragraph 6;
and
(b) there
is to be disregarded any notional expense that, by virtue of paragraph 8, 9,
10 or 11, is not a donation.
4 Donation:
money
(1) A
gift of money is a donation if –
(a) it
is made at any time before the poll (including before the lodging of the
proposition for the referendum Act), and the giver signifies (whether expressly
or by implication) that the money is intended for use to pay the
recipient’s referendum expenses; or
(b) it
is made after the lodging of the proposition for the referendum Act and before
the poll, and either –
(i) it is made
anonymously, or
(ii) the giver does
not signify the intended use of the money.
(2) A
loan of money is a donation if –
(a) it
is made either at no cost to the recipient or on terms by which the cost to the
recipient is below the commercial rate for the loan; and
(b) it
is made –
(i) at any time
before the poll (including before the lodging of the proposition for the
referendum Act), and the lender signifies, either expressly or by implication,
that the loan is intended for use to pay the recipient’s referendum
expenses, or
(ii) after the lodging
of the proposition for the referendum Act and before the poll, and is either
made anonymously or the lender does not signify the intended use of the loan.
(3) A
gift or loan of money is made at the time when the money is given to the
recipient or, if earlier, the time when the giver or lender informs the
recipient of his or her intention to make the gift or loan.
5 Donation:
goods and services
(1) A
supply of goods (including a supply by way of loan or rental) or a supply of
services is a donation if –
(a) it
is made free of charge or at a discount to the open market value of or rate for
the supply of the goods or services; and
(b) the
person making the supply –
(i) does so
anonymously, in the case of a supply made in the period between the lodging of
the proposition for the referendum Act and the poll,
(ii) does not signify
the intended use of the goods or services, in the case of a supply made in that
period, or
(iii) signifies (whether
expressly or by implication) that the goods or services are intended for use for
a purpose described in paragraph 1(3)(a) or (b), in the case of a supply
made at any time before the poll (including before the lodging of the
proposition for the referendum Act).
(2) A
supply of goods or services is made at the time when the goods or services are
provided to the recipient.
6 Value
attributable to donation of loans, goods or services
(1) The
value of a donation that is a loan of money is the amount equal to the
difference between the cost, to the recipient, of the loan if it had been made
on commercial terms and the actual cost to the recipient.
(2) The
value of a donation of goods is the amount equal to the difference between the
open market value of the goods and the actual cost to the recipient.
(3) The
value of a donation of the use of goods is the amount equal to the difference
between the open market rate for the use of the goods and the actual cost to
the recipient.
(4) The
value of a donation of the supply of services is the amount equal to the
difference between the open market rate for their supply and the actual cost to
the recipient.
7 Anonymous
donations
A donation is anonymous if the recipient is unable to ascertain the
identity of the person making it.
8 Donation:
exception for services provided on equal terms by or for commission, States or
parishes
The provision of services is not a donation if the services –
(a) consist
of making arrangements for the publication of campaign material under Article 8;
(b) are
provided by any person under such arrangements; or
(c) are
otherwise provided by or on behalf of the commission, the States Greffe or a
parish to all of the lead campaign groups in a referendum on the same terms.
9 Donation:
exception for services of individual volunteers
(1) The
provision by an individual of his or her own services is not a donation if he
or she provides his or her services –
(a) as
a volunteer;
(b) without
charge; and
(c) otherwise
than in the course of his or her employment, trade or profession or any other
business.
(2) Subject
to sub-paragraph (3), the exception in sub-paragraph (1) does not
extend to any goods used by or supplied by the individual in the course of the
provision of the individual’s own services.
(3) If,
in the course of the provision of an individual’s own services, the
individual uses his or her own goods –
(a) the
use of the goods is not a donation; and
(b) any
expenditure incurred by the individual, that is incidental to the use of the
goods, is not a donation.
10 Donation:
exception for newspapers and broadcasts
(1) Subject
to sub-paragraph (2), the publication of any matter relating to the
referendum –
(a) in
a newspaper or periodical circulating in Jersey;
(b) in
a programme broadcast by a television or radio service provider; or
(c) on
a website as part of the news service of a television or radio service provider
or news agency,
is not a donation or a third party’s referendum expense.
(2) The
exception in sub-paragraph (1) does not apply to an advertisement.
(3) Where
the publisher of a newspaper or periodical circulating in Jersey also publishes
a web-based edition of the newspaper or periodical, the reference in sub-paragraph (1)(a)
to the newspaper or periodical includes the web-based edition of it.
(4) Where
a television or radio service provider, in addition to broadcasting a
programme, makes the programme accessible by streaming or downloading from a
website, the reference in sub-paragraph (1)(b) to the broadcast programme
includes the programme as it may be accessed from a website.
11 Donation
and expenses: exception for re-used goods
(1) Sub-paragraph (2)
applies to goods if –
(a) they
were supplied for use by a lead campaign group or third party in a referendum
(the “previous referendum”);
(b) they
are used by the lead campaign group or third party in a later referendum (the
“subsequent referendum”); and
(c) one
of the following conditions is met, namely that –
(i) the direct and
notional expenses for their supply were taken into account in determining, for
the purposes of this Law, the amount of the lead campaign group’s
referendum expenses or a third party’s referendum expenses in relation to
the previous referendum, or
(ii) the previous
referendum was held before the coming into force of this Law.
(2) The
direct or notional expenses for the supply of the goods are neither a donation
nor a referendum expense in relation to the subsequent referendum.