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
not in force on the revision date
9 Restricted
section
not in force on the revision date
10 Public
access
not in force on the revision date
11 Application
to register
not in force on the revision date
12 Name
of charity
not in force on the revision date
13 Effects
of registration
not in force on the revision date
14 Powers
of court over registered charity
not in force on the revision date
15 Deregistration
on application by entity
not in force on the revision date
16 Deregistration
in other cases
not in force on the revision date
17 Effects
of deregistration
not in force on the revision date
Part 5
Governors of registered charities
18 General
duties of governors of registered charities
not in force on the revision date
19 Reportable
matters and acting as a governor
not in force on the revision date
20 Court
orders as to fitness of governor
not in force on the revision date
Part 6
Use of expressions “Charity”, “charitable”
and related terms
21 Prohibition
of unauthorized use of expression “charity” and related terms
not in force on the revision date
22 Excepted
foreign charities
not in force on the revision date
23 Prohibition
of unauthorized use of expression “Jersey charity”
not in force on the revision date
24 Power
to restrict use of term “charitable” in soliciting funds
not in force on the revision date
25 Power
to require registered charities to identify themselves as such
not in force on the revision date
Part 7
Information and enforcement
26 Power
to demand information
not in force on the revision date
27 Required
steps notices
not in force on the revision date
28 Required
steps notices restricted in relation to governors of organized religious
charities
not in force on the revision date
29 Restricted
information
not in force on the revision date
30 Required
disclosure of information
not
in force on the revision date
31 Permitted
disclosure of information
not in force on the revision date
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
not in force on the revision date
34 Grounds
of appeal and powers of tribunal in determining appeals
not in force on the revision date
35 Appeal
and reference to court
not in force on the revision date
36 Further
provision as to appeals to tribunal or court
not in force on the revision date
Part 9
Miscellaneous and Final Provisions
37 Offences
by corporate and other bodies
not in force on the revision date
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 enactments in relation to exemption from liability for tax
not in force on the revision date
42 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[25];
(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.
43 Consequential
amendments of other enactments
The States may by Regulations –
(a) amend
the Trusts (Jersey) Law 1984[26] and the Foundations
(Jersey) Law 2009[27], 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.
44 Citation
and commencement
(1) This
Law may be cited as the Charities (Jersey) Law 2014.
(2) Parts 1
to 3, Articles 32, 38, 39, 40, 42 and 43, this Article and the Schedules
come into force 7 days after
registration.
(3) The
remainder of this Law comes into force on such day or days as the States may by
Act appoint.
SCHEDULE 1
(Article 3)
Jersey
Charity Commissioner
1 Appointment
of Commissioner
(1) The
Minister must appoint a person appearing to the Minister to be suitable to hold
the office of the Commissioner.
(2) Before
appointing a person as the Commissioner, the Minister must seek the views of
the Jersey Appointments Commission, established by Article 17 of the
Employment of States of Jersey Employees (Jersey) Law 2005[28], on the appointment (without prejudice to the powers of the States
or the Jersey Appointments Commission under Article 15 of that Law).
(3) The
Minister must, at least 2 weeks before appointing a person as the
Commissioner, present to the States a notice of his or her intention to make
the appointment.
(4) A
person appointed as the Commissioner holds and vacates that office in accordance
with the terms of his or her appointment, subject to this Law.
(5) When
appointing a person as the Commissioner the Minister must determine the period
of the appointment, being not more than 6 years.
(6) The
Minister may re-appoint a person serving as the Commissioner (and references in
this paragraph to appointment include re-appointment).
(7) The
Minister must take all reasonable steps to ensure that at all times the office
of the Commissioner is filled.
(8) Nothing
in sub-paragraph (7) is to be construed as preventing the terms of a
person’s appointment from requiring the person to work under the
appointment for only a limited number of days in a year or hours in a day.
2 Status
of Commissioner
(1) The
Commissioner may, as a corporation sole, in the name of his or her office –
(a) enter into an agreement for any
purpose of his or her office;
(b) acquire, hold and dispose of movable
property;
(c) sue and be sued in any
civil proceedings;
(d) be charged with an offence
and defend criminal proceedings; and
(e) do anything reasonably
necessary or expedient for or incidental to any of the Commissioner’s
functions.
(2) The
Commissioner is independent of the States and the Minister.
(3) The
terms and conditions of the appointment of the Commissioner must not be
construed so as to create a contract of employment or agency between the States,
or the Minister, and the person appointed.
(4) Despite
sub-paragraphs (2) and (3) –
(a) the remuneration or
other payment for services of the Commissioner, due under the terms of his or
her appointment, must be paid out of the annual income of the States; and
(b) all fees and other
sums received by the Commissioner in the exercise of his or her functions must
be paid to the income of the States.
3 Termination
of office as Commissioner
(1) A
person ceases to be appointed as the Commissioner if –
(a) he or she resigns
from office by giving not less than 3 months’ notice in writing to
the Minister;
(b) the Minister terminates
his or her appointment under sub-paragraph (2); or
(c) his or her
appointment expires under sub-paragraph (4).
(2) The
Minister may terminate the appointment of a person as the Commissioner, after satisfying
himself or herself that the person –
(a) has been absent
from his or her duties for a period longer than 4 consecutive weeks;
(b) has become
bankrupt;
(c) is incapacitated by
illness; or
(d) is otherwise unable
or unfit to discharge the functions of the Commissioner.
(3) The
Minister must, not more than 2 weeks after terminating the appointment,
present to the States a notice that the Minister has terminated the
appointment.
(4) A
person’s appointment as the Commissioner expires if –
(a) the period for
which the person was appointed expires without re-appointment;
(b) the person becomes
a member of the States; or
(c) the person
completes 12 years (whether consecutive or in aggregate) of service as Commissioner.
4 Staff,
resources and reporting
(1) The
Minister must make available to the Commissioner such number and descriptions
of staff as the Minister considers are required for the proper and effective
discharge of the Commissioner’s functions.
(2) To
the extent that any States’ employee (within the meaning of the
Employment of States of Jersey Employees (Jersey) Law 2005), while made
available under sub-paragraph (1), performs a function under the direction
of the Commissioner, the employee is to be treated as a member of the
Commissioner’s staff for the purposes of this Law.
(3) Any
function of the Commissioner may, to the extent authorized by the Commissioner,
be exercised on behalf of the Commissioner by any member of the
Commissioner’s staff, except –
(a) the decision under
Article 11 on whether to register a charity;
(b) the decision under
Article 15(3) on whether to refuse to deregister a charity; and
(c) the decision under
Article 16 on whether to deregister a charity.
(4) The
Minister may designate a person as the relevant person for the purpose of sub-paragraph (5).
(5) A
relevant person designated under sub-paragraph (4) is to be treated as the
Commissioner for the purposes of this Law, if –
(a) the person
appointed as the Commissioner is unable to act through incapacity or absence;
or
(b) there is a vacancy
in the office of Commissioner,
on a temporary basis until the Commissioner becomes able to act again
or a new Commissioner is appointed under paragraph 1.
(6) The
Minister must provide such accommodation and equipment as the Minister
considers are required for the proper and effective discharge of the
Commissioner’s functions.
(7) The
cost of providing staff, accommodation and equipment under this paragraph must
be met out of the annual income of the States.
(8) The
Commissioner must prepare and publish a report on the activities of the Commissioner
in each calendar year.
(9) The
Commissioner must provide the Minister with the report as soon as practicable
after the end of the year to which the report relates, but in no case later
than 4 months after the end of that year.
(10) The
Minister must lay a copy of the report so provided before the States as soon as
practicable after the Minister receives the report.
(11) The
Minister may, by giving written notice to the Commissioner and publishing that
notice, give directions to the Commissioner as to the content and form of the
report.
(12) Directions
under paragraph (11) must respect the independence of the Commissioner
and, in particular, must not require the report to contain justification of any
decision of the Commissioner in relation to individual charities, governors or
applicants for registration.
SCHEDULE
2
(Article 32)
Charity
Commission tribunal
1 Appointment
(1) The
Minister must appoint as members of the tribunal at least 4, and no more
than 8, persons appearing to the Minister to be suitable for the position
and to have appropriate experience to safeguard the interests of the public and
the charitable sector in Jersey.
(2) Before
appointing a person as a tribunal member, the Minister must seek the views of
the Jersey Appointments Commission established by Article 17 of the
Employment of States of Jersey Employees (Jersey) Law 2005[29] on the appointment (without prejudice to the powers of the States
or the Jersey Appointments Commission under Article 15 of that Law).
(3) The
Minister must, at least 2 weeks before appointing a person as a tribunal
member, present to the States a notice of his or her intention to make the
appointment.
(4) A
person appointed as a tribunal member holds and vacates that position in
accordance with the terms of his or her appointment, subject to this Law.
(5) When
appointing a person as a tribunal member the Minister must determine the period
of the appointment, being not more than 6 years.
(6) The
Minister may re-appoint a person serving as a tribunal member (and references
in this paragraph to appointment include re-appointment).
(7) The
Minister must, among the members of the tribunal, designate one as the chair
and another as the vice-chair.
(8) Service as a tribunal
member is honorary, unless the Minister determines that the chair is, or all
the members are, to be remunerated by the States
as Minister sees fit.
2 Termination
of appointment
(1) A
person ceases to be a member of the tribunal if –
(a) he or she resigns
from office by giving not less than one month’s notice in writing to
the Minister;
(b) the Minister
terminates his or her appointment under sub-paragraph (2); or
(c) his or her
appointment expires under sub-paragraph (4).
(2) The
Minister may terminate the appointment of a person as a member of the tribunal,
after satisfying himself or herself that the person –
(a) has been absent
from his or her duties for a period longer than 8 consecutive weeks;
(b) has become
bankrupt;
(c) is incapacitated by
illness; or
(d) is otherwise unable
or unfit to discharge the functions of a member of the tribunal.
(3) The
Minister must, not more than 2 weeks after terminating the appointment,
present to the States a notice that the Minister has terminated the
appointment.
(4) A
person’s appointment as a member of the tribunal expires if –
(a) the period for
which the person was appointed expires without re-appointment;
(b) the person becomes
a member of the States; or
(c) the person
completes 12 years (whether consecutive or in aggregate) of service as a
member of the tribunal.
3 Staff,
resources and reporting
(1) The
Minister must make available to the tribunal such number and descriptions of
staff and resources as the Minister considers are required for the proper and
effective discharge of the tribunal’s functions.
(2) The
Minister must secure that there is available to the tribunal at least one
member of staff to serve as the responsible officer, charged with assisting
with the administration of (but not determinations by) the tribunal.
(3) The
responsible officer must prepare a report on the activities of the tribunal in
each calendar year.
(4) The
responsible officer must provide the Minister with the report as soon as
practicable after the end of the year to which the report relates, but in no
case later than 4 months after the end of that year.
(5) The
Minister must lay a copy of the report so provided before the States as soon as
practicable after the Minister receives the report.
4 Procedure
of tribunal
(1) A
sitting of the tribunal is to be presided over by –
(a) the chair;
(b) the vice-chair, if
the chair is absent; or
(c) if both the chair
and vice-chair are absent, a tribunal member appointed for the purpose by the
tribunal members present at the sitting.
(2) Subject
to sub-paragraph (1), and to any Regulations under sub-paragraph (3),
the tribunal may regulate its own procedure.
(3) The
States may by Regulations make further provision as to the procedure of the
tribunal, including in particular provision as to –
(a) the burden of proof
on an appeal;
(b) the summoning of
witnesses and the administration of oaths;
(c) securing the
production of documents and evidence;
(d) the conduct of
hearings, the determination of appeals with or without hearings, and the
holding of hearings wholly or partly in public or private or in the absence of
any party;
(e) enabling an appeal
to be determined, or any matter preliminary or incidental to an appeal to be
dealt with or direction given, by the chair or vice-chair, or subject to any
quorum or voting rules;
(f) the award of
costs, and the creation of offences in relation to the tribunal, carrying a
penalty not exceeding imprisonment for a term of 2 years and a fine;
(g) the publication of
reports of the tribunal’s decisions;
(h) duties of the
Commissioner in relation to an appeal;
(i) striking out, withdrawal and amendment of appeals or replies;
(j) such
ancillary powers of the tribunal as the States think necessary for the proper
discharge of its functions.