JERSEY CHARITY COMMISSIONER
Annual Report for 2019
- Under the Charities (Jersey) Law 2014 (“the Law”), I am required to publish an annual report on my work as Commissioner. I must also provide the Minister with a copy of it, within four months of the end of the year to which it relates, and he or she must lay that copy before the States as soon as practicable after having received it. The Minister may give me directions as to the content and form of the report (but has not done so). This report is published on 30 April 2020 on www.charitycommissioner.je.
- It was a pleasure during the year to learn that the Minister for External Relations, Ian Gorst Esq, had been given the additional duty of being minister responsible for charities. This was most apt, not only because of his senior position in the ministry but also since it was he who first introduced in the legislature, now some twelve years ago, the proposal that led eventually to the Charities Law and the regulatory scheme now in place.
- 2019 was my second full year in office and saw a deal of activity mainly focussed on considering and approving applications for registration received in 2018, the register having gone ‘live’ earlier that year. I received a lot more applications then than I had originally envisioned and there was a particularly big flurry of them at the end of 2018, the cut-off point for applicants’ retention of prior charitable tax exemption pending registration.
- On 1 January 2019 there were 36 registered charities and 434 applications for registration outstanding. On 31 December 2019 there were 300 registered charities and 177 outstanding applications. At 26 April 2020 there were 345 charities on the register. Exegesis of registration data follows later in this report.
- In the last number of weeks not a few aspects of the charity sector in Jersey have been turned upside down, along with, so much else in the polity, as economic activity has so quickly and exceptionally slowed or skewed. The time is not yet ripe to begin to be able to educe any longer-term effects for charities of what has happened lately and so this report eschews that subject. But as a bit of time goes by and we see a reassertion, so to speak, of normalcy there is likely to be some interesting thinking to be done, especially on the resilience and cost base of what is, in Jersey, a cohort of generally quite small entities seeking to deliver their public benefit in a market that is hardly large. I shall aim to return to this when the moment seems opportune for some perspective on the matter.
- The current crisis has caused a slight slowing of my office’s rate of activity. Over the last period it has sometimes been less easy than hitherto to engage with applicant entities, though we have certainly gotten better quite quickly at working absent personal contact. One of my staff members has been ‘loaned’ back to the Government for the duration and the other is devoting half her time to the Government’s crisis ‘helpline’ and other important government business relating to the crisis. So be it, but we shall lay a plan soon to ensure that our schedule for dealing with outstanding applications for the remainder of the year gets back on its tracks. I have also issued a statement to the effect that if registered charities cannot manage their official business in time, including annual returns, it truly does not much matter in the scheme of things. We can catch up later.
- Information about the main provisions of the Law and supporting orders and regulations, the Commissioner’s role under the Law, and guidance on its operation, is available at www.charitycommissioner.je. There is a link from there to the public part of the register, which I encourage people to peruse in order to get a sense of the scope and range of the charitable endeavour entrenched on their very doorstep.
2019 Data in Summary
- As at 1 January 2019 the position obtaining was as follows:
- 434 applications for registration had been received. 30 of these were for the restricted section of the register
- 36 applications had been approved for registration. 13 of these were registered in the restricted section of the register
- 398 applications for registration were outstanding
- No application had been rejected or withdrawn
- As at 31 December 2019 the obtention was:
- 489 applications for registration had been received
- 300 applications had been approved for registration. 13 of these were registered in the restricted section of the register
- 177 applications for registration were outstanding
- No application had been rejected but 12 had been withdrawn
- 9 annual returns had been registered
- As at 29 April 2020, ditto:
- 502 applications for registration had been received
- 345 applications had been approved for registration. 13 of these were registered in the restricted section of the register
- 141 applications for registration remained outstanding
- No application had been formally rejected but 16 had been withdrawn and 41 were on hold for various reasons. There are thus, at this moment, 100 current outstanding applications yet to be determined
- 32 annual returns had been entered in the register
- Thus, during 2019, 264 applications for registration were approved and all those outstanding were in play at the end of the year. Since the beginning of this year, to 26 April 2020, 7 new applications for registration had been received. To date, it remains the position that no application has yet been formally rejected for registration, for failure to meet the charity test. I do, however, expect to be obliged to reject some as the remainder of the year goes by. It is also inferable that there will be several hundred annual returns arising in 2020, and thence in each subsequent year, and it will be the management of that process, to ensure that in each case the charity test continues to be met, that will soon become the predominant regulatory role for my office.
- For the 300 registered charities as at 31 December 2019, the aggregate value of their current and fixed assets, calculated at the point when each was registered, was some £228 million. That gives an ‘average’ of around £0.75 million per registered entity but that is influenced by outliers. (The median would, I believe, be a rather lesser figure; I had planned to seek to capture that statistic, too, but have been unable to do so at this time because of my team’s having been diverted to work of greater importance to the country.) It should, moreover, be remarked that that aggregate asset figure includes the 13 charities registered in the restricted part of the register (that is to say, in essence the main cohort of those which do not solicit donations from the general public), whose relative scale (so far) is, on average, emerging as greater than for the whole registered group. The thirteen charities registered at 31 December 2019 in the restricted part of the register had, in aggregate, assets of approximately £36 million upon registration. That is an average of about £2.75 million per entity. Taking this into account, the average asset figure only for those charities registered in the public part of the register was some £0.67 million. Again, the median would, for sure, have been a deal lower than that. There will also be some double counting in these figures since quite a lot of charities give money to others. For example, in the given twelve months preceding the registration of each of the thirteen, taken together they distributed some £46 million to charitable causes both around the globe as well as in their homeland.
- The figures adumbrated above should be treated as but indicative. Registered charities come in all shapes and sizes, and while it is hardly a surprise that, taken together, they have not inconsiderable assets, experience to date has revealed that there are those with maybe quite a strong asset base – in property, for example – but whose income and expenditure position tends towards the precarious. And there are plenty of registered charities that have very assets or little scope to amass reserves, and which needs must get by as year succeeds to year reliant on the vagaries of fundraising and donations, regular or sporadic. Notwithstanding, what can be said to be emerging from the data yielded by the registration process is an understanding, albeit still to a degree tentative, that the charity sector is a far from insignificant element of the country’s economy, however that might be measured, but whose light, though, has perhaps been shining under a bushel and thus not so visible to all.
- It is my intention in the second round of annual returns starting in September 2020 to begin to seek to glean and publish more extensive and precise aggregate data from the financial statements that must be submitted with returns (but whose publication in the register is not, at this point, mandated by the Law) in the belief that gradually developing a fuller, authoritative, analysis of the financial standing of the charity sector at a macro level would not be without its worth, whether to policymakers or citizens, or both. But to date the main priority for our small team has been to get the outstanding applications for registration determined.
- Turning to the range of charitable purposes displayed by the 300 charities registered by the end of 2019, the three most common statutory charitable purposes to which they are devoted are:
- the relief of those in need by reason of age, ill-health, disability, financial hardship or other disadvantage (including relief given by the provision of accommodation or care) [17%]
- the advancement of religion [12%]
- the advancement of citizenship or community development [12%].
- There are 15 specific statutory charitable purposes in the Law, and one other which allows other reasonable purposes to be brought in by analogy. Each is now represented on the register to a greater or lesser extent. Many registered charities have more than one stated charitable purpose. The main analogous purpose is that of providing support to other registered charities or for other charitable purposes, which is that which ‘grant-giving’ charities do. Perhaps the best way to get to know about the purposes of registered charities in the round, together with the public benefit to be provided by them in giving effect to those purposes, is to scroll through the 300 statements of purpose and public benefit now to be found in the public part of the register. (Restricted registered charities must have public benefit statements in the public part of the register, too.)
|Charitable Purposes||Number of charities|
|(a) prevention or relief of poverty||33|
|(b) advancement of education||57|
|(c) advancement of religion||62|
|(d) advancement of health||45|
|(e) saving of lives||14|
|(f) advancement of citizenship or community
|(g) advancement of the arts, heritage, culture
|(h) advancement of public participation in
|(i) provision of recreational facilities for
improving the conditions of life for those
for whom the facilities are primarily
|(j) advancement of human rights, conflict
resolution or reconciliation
|(k) promotion of religious or racial harmony||4|
|(l) promotion of equality and diversity||17|
|(m) advancement of environmental
protection or improvement
|(n) relief of those in need by reason of
|(o) advancement of animal welfare||11|
|(p) any reasonably analogous purpose||24|
- Again taking the 300 that were registered at the end of the year, 43 identify themselves as providing public benefit at or in a specific local point, community or neighbourhood. 158 say they operate only in Jersey, 44 in both Jersey and the United Kingdom, and 19 only elsewhere abroad (although based in Jersey). Some do not offer any such identity, but their location ‘mix’ is unlikely to differ much. This is another area for more detailed analysis once the register is substantially complete.
- As I noted last year, one point to note about the number of applications and registrations is that in quite a few instances there is more than one application per ‘organisation’. This is where, for example, there may be one trust holding property, and another operating the business carried on at that property; or where there may be a more complex structure to meet defined needs. Multiple registration in such instances may well be a function of tax planning, in order to secure exemption from, for example, taxation of property income, to which businesses are still subject on their declared profits. My reasoned guess last year was that, for such a reason, we should end with, in effect, about 350 or so registered charities which are able to be regarded as one, even though the number of entries on the register may be quite a bit greater than that. I think now that the number will be a degree or so greater that that but it will be next year before I shall be able to proffer an accurate answer.
- Two Orders and one Regulation under the Law were made during the year:
Charities (Additional Information) (Amendment) (Jersey) Order 2019
This amendment to an existing Order:
- defines the requirement at Art.13(4)(a) of the Law that a registered charity must provide public benefit in accordance with its registered public benefit statement as the registered charity’s public benefit duty; and
- requires a registered charity to include with its annual return a narrative statement, approved or produced by the Commissioner, of the manner in which it appears to her or him to have, during the year in question, complied (or failed to comply) with its public benefit duty
The aim of this measure is to ensure that, each year, there is secured for the public register satisfactory reportage of what a registered charity has been doing, and has done, during that year, in pursuit of its objects. By such means register entries will the better remain documents of record. I am keen to encourage registered charities to prepare good, albeit succinct, narratives of their preceding year’s performance so that citizens are able to see, readily, what has been undertaken and achieved, and how far that matches what may be said on tins or covers. The register is a window on the world for charities, through which they can be seen by their donors and their beneficiaries, and by citizens at large; and there must be something good to be seen.
Charities (Timing of Annual Return) (Jersey) Order 2019
This Order prescribes that an annual return must relate to a year ending on an anniversary which is the charity’s date of registration or another date agreed by the charity and the Commissioner, provided that that agreement is reached during the first year after registration
An aim of this, clarity apart, is to allow some room for manoeuvre where, for example, a registered charity’s annual report and accounts would be due to be ready shortly after the actual anniversary of registration. Core financial information on the register can then be as up to date as possible
It can be said here, too, that in March 2020 I published Guidance Note 4 on the subject of annual returns, which incorporated the effect of these two Orders in setting out the general arrangements for the preparation, submission and approval of annual returns
Charities (Transitional Provisions) (Amendment) (Jersey) Regulations 2019
This regulation extends the transitional period by one year, until 31 December 2020. The transitional period applies where an entity was previously entitled to exemption from income tax and other taxes by virtue of charitable status as confirmed by the Comptroller of Taxes. It will continue to enjoy that exemption, provided that it had applied to the Commissioner for registration by 31 December 2018, where the application has not yet been determined or withdrawn; upon approval for registration, exemption would then take fresh effect, or be lost upon disapproval.
The purpose of the transitional period is to allow time for applications to be determined without applicant entities, previously entitled to tax exemption, losing that status as they wait for a determination by the Commissioner. This could or would have happened otherwise because of changes to the Income Tax Law made by the Charities Law. The effect of the original regulation in 2018 was to make 31 December 2018 come to be seen as a de facto application deadline, which is why there was such a spike in applications in the several weeks before that date. It is worth noting, though, that since there is, for the most part, no income tax in Jersey on business profits, for many applicants for registration, notably where they are not dependent on regular donations nor have trading income, the transitional arrangement was not, nor still is, of much or any consequence
Once an applicant entity becomes a registered charity, I notify the Comptroller of Taxes and he or she acts upon my certificate in continuing or allowing the appropriate exemptions
The reason for the extension by one year to the end of 2020 was simply the expected quantum of undetermined applications as at 31 December 2019. The likely desirability of such an extension was foreshadowed in my annual report last year and I am pleased that the Minister was able to facilitate the passage of the regulation.
All the items referenced in this paragraph may be viewed on the Commissioner’s website.
- The Law provides that no charge shall be levied on any person applying for registration or wishing to consult the public part of the register. The Minister is required to provide such accommodation and equipment as he or she thinks is necessary for the proper and effective discharge of the Commissioner’s functions; and the cost of this, together with staff costs, is to be met from funds available to the Minister for her or his disposition. This was wise provision, since the determination of the charity test, whether on application for registration or subsequently, as a neutral regulatory act could be seriously open to undermining of the worst kind were it in some guise dependent on a fee.
- Arrangements on resources remain entirely satisfactory but towards the end of 2019 work was put in hand to ensure that the funding of my office would be on a more secure footing for the future and not done, essentially, on a ‘contingency’ basis. The key to this was the legislature’s decision three years ago, per Art.20(2)(a) of the Dormant Bank Accounts (Jersey) Law 2017, to enable the Minister to draw on the Reclaim Fund established by that law to defray the costs of my office to the extent required for the effective discharge of my functions. The plan to proceed in this manner was included in the ‘Government Plan’ which was endorsed by the legislature on 2 December 2019. This also opened the way to a competition to recruit two members of staff to fill on a permanent basis the two posts supporting me that had hitherto been in place on temporary, and thus perhaps slightly awry, terms.
- When I include too the ability to call upon, even if only from time to time, the services of the Law Officers’ Department and to draw upon expertise and advice if needed from within the team supporting the Minister, I ended 2019 satisfied that the office was about to have the structure and resources, and permanence therein, warranted for the mandated task . The team is small but well-formed, which is what matters, and our modest premises at St Helier very satisfactorily meet our needs.
- A key focus in 2019 was the continued development of the computer systems required for the online applications and registration process. These have deliberately been built separately from government systems and are hosted independently of the latter. The Commissioner’s website, registry and portal contain cross-referencing links in order to provide a seamless user experience with end-to-end online management from application to certification. The portal hosts a range of electronic services for both registered and other users. Citizens can access and search the public part of the register, while entities are able to submit registration applications and then, as registered charities, file submissions (such as annual returns or notifications of new governors) throughout the complete ‘life-cycle’ of the charity. The system is working well but like a motor car it welcomes and deserves regular maintenance for the sake of good running order; and we plan accordingly.
- I reported last year that the full year cost of the office of Commissioner in 2018 was £148,000. This reflected some start-up costs and part-year effects, the online registration system commencing only in the fifth month. At the time of writing, final confirmation of the full year costs for 2019 were not to hand because of the crisis. Costs, however, for the first eleven months were £137,000 and I therefore do not anticipate the full year figure to vary much from that of the previous year. Approaching the lion’s share of this, three quarters, was for remuneration, and the rest was for office, equipment, and systems development costs. No travel or entertainment costs were charged to the budget but, if incurred, absorbed by individuals.
- In addition to myself (who is appointed on a part-time, per diem, basis through a contract for services), Nicky Martini, who was appointed as part-time Office Manager in August 2018, was recruited in the afore-mentioned competition to that role at the beginning of 2020, on a full-time basis. Richard Jouault, who served throughout 2019 and, prior to that, since inception as the Commissioner’s Executive Officer, combining the role with other duties as a senior civil servant, was similarly appointed to that role in a full-time capacity at the start of this year. I thus now have the small team necessary to support my delivery of my statutory functions. Valuable and wise support continues to be received from Louise Richardson, a senior civil servant in the team supporting Mr Gorst, whose role in practice encompasses not only liaison with certain members of the civil service on my behalf but also wise and trenchant advice on the difficult or tricky things that seem so often to invade our counsels. During several months of 2019 we also had excellent temporary support from Courtney Channing to help us go faster on the processing of applications.
- Our small but good team gives the Commissioner’s office an excellent blend of knowledge, analytical capacity and operational effectiveness. I take this opportunity earnestly to thank my colleagues named above, and others in the public service, who worked really hard and diligently during 2019 to keep things up and running so that, with their support, I was able to continue to fulfil my duties in an hopefully effectual way.
- Learning continues as we all go along, and I include in this the learning and understanding we find we are able to get and utilise from many good people in and around the charity sector itself, whose insight, good sense and understanding of things is so often fructive in the development of our policy. We are all getting better at dealing with cases appropriately and consistently, especially where it is not clear or apparent from the information before us that all elements of the charity test are readily met. This is perhaps particularly the case where some of the statutory public benefit tests have to be applied, such as the balance between public and private benefit, private benefit and public ‘disbenefit’ arising from it, and whether public benefit is or is to be provided ‘ to a reasonable degree’, as the Law requires. The key is to balance a proper reading of the Law and rules, including the common law of charity as it may be applicable in the country, with sufficient and appropriate reasonableness and common sense. In a fair number of cases I have approved registrations at what one might term the beta minus level, or even the beta double minus; while one is always looking for summa cum laude, not everyone gets first class honours at the University. But everyone, as things go on, has much to offer and room to improve. Where I judge that the charity test is met but just, a newly-registered charity can be made aware of that and together we can consider how best things should be stepped up or adjusted over the succeeding year or two, to get the beta minus up to a plus or even to alpha minus. I have not found that this kind of approach is unwelcome but it is too early to say how successful it will be; the test will lie in the actual public benefit delivered. A not dissimilar judgement has to be made where applicants for registration are start-ups.
- I think that this learning is being shared by leaders in the charity sector itself and the professions that provide services to it. The implications of the new Law, and especially the requirement for established entities to apply for registration from scratch, has taken some time to get into people’s consciousness, but, little by little, things seem to be changing for the governance of the whole sector as a result. This is not least because the requirement to apply for registration has obliged all those concerned to stop to think about governance, objects, purposes and, above all, outcomes from what they strive to do. I suppose it could all be characterised as something of a minor shake-up, which could be said to be probably a good thing from time to time in civil society. And if it also represents, or points towards, a certain revivification of the charity sector as a whole, then also well and good.
- But as noted earlier in this report, there will be some applications for registration that, at the conclusion of due process including iteration with those concerned, I think I shall probably be unable to accept for registration. This will be because, despite the best of motives on the part of those concerned, they do not meet the charity test, either as to purposes or public benefit, whose strictures the legislature defined. In a few instances so far, such consideration has led to applications being withdrawn rather than, in all likelihood, being determined to the contrary. Requisite cases will be determined formally as 2020 goes further by. In all cases it will be open to applicants to appeal to the Charity Tribunal against registration decisions I make. This will obviously be an important matter for reportage in a year’s time.
Where Things are Now, and Looking Ahead
- Although this is a report about 2019, it would not be duteous to fail, first, to touch briefly on the implications of the present crisis. It is evident enough already that some registered charities, which, after all, are businesses like any others save for their public character, are being or will be severely tested by the unfolding of hard events and the reduction or elimination of revenue streams. One cannot, and should not, seek to predict or over-predict for now how this tough test will be met but it is important to be alert to the possibility or even certainty of continuing pressure, which may drive a need for change. My main focus as Commissioner has to remain the permanent system of monitoring registered charities now in place and maintaining the public register, that is to say, doing what is required by the mandate which is to ensure that public trust and confidence in registered charities is protected and sustained. But there are ways and means of doing things and I have already said publicly that I shall of course take a reasonable, reasoned view in the coming period about, for instance, the ability of charities to be able to continue in practice to provide any or all the benefit to whose provision they are obligated. Flexibility will be the keynote and I shall approach upcoming annual returns and individual cases having regard to that. There will be time enough ahead to think about the broader questions such as the long-term resilience of the sector as it is currently structured in such a relatively small economy.
- The resolution of applications is moving ahead steadily, albeit with a bit of a blip this last month or so for reasons rather beyond control. There are now 345 registered charities and there are now on the table about 100 applications to get determined, one way or the other, by the end of 2020. A lot of applications have their difficulties, ranging from a simple lack of information provided to real uncertainty about whether the purposes are charitable and the charity test met, and all take time and communication to resolve. By and large most of those now remaining for determination all require especial consideration.
- Nonetheless, addressing them all is a manageable target for the eight months of the year still to run unless, perchance, we are faced with more difficult, unforeseen, circumstances capable of cramping style in whatever way. The act of registration itself, as the exercise of a statutory function, requires care, even once an application is approved, and to meet present rules we have instituted a “virtual” ‘four eyes’ process for uploading anything to the register so that its accuracy is, as far as can be done, unquestionable. There may be a crisis but the maintenance of such a standard, along with meeting the charity test, is not one to be relaxed. Where the current suspension of economic activity means that some applicant entities may for their own reasons be unable to proceed to registration by year end (other things being equal), or if other challenges emerge such as an ongoing loss of resource, I shall take stock in good time of any potentially adverse tax or other situations arising and seek to ensure that such are not in practice problematic. For many registered charities – not all, but many – the tax exemption issue is fortunately either marginal or of no account.
- Last, but not least, one other process that started in September 2019 but has gathered pace only in 2020, is the first round of annual returns. All registered charities are obliged to submit a return once a year, and this will be the principal means by which the basic information in the register is kept up-to-date, and, indeed, the register’s continuing legitimacy preserved. This will also involve each year fresh public benefit statements – now termed narratives, as explained earlier – that should set out, preferably succinctly but certainly pellucidly, what a charity has done in the year past and how accordingly it has met its objects and intends to continue to do so. Annual returns are essential for ensuring that, over time, registered charities continue to meet the terms of the charity test by which they were registered in the first place, and that thereby public trust and confidence in them is protected. The Law gives the Commissioner certain powers to require this of the governors of registered charities, and the assessment of returns will become the main ongoing regulatory task once the applications for registration are done. But when times are so uncertain as now in the economic and social spheres some things like this can well be approached a little differently and the foot taken off the gas a little if there are roadblocks or humps ahead. With Guidance Note 4 on the subject of annual returns I issued an additional special guidance note advising charity governors of special arrangements for postponing annual returns if during the present troubles that would be a help. We shall keep in good touch with everyone to seek to avert any untowardliness but I do not expect any.
- In 2019 good progress was made across all fronts in continuing to develop the still new regulatory scheme for charities in Jersey. The passage of the Law in 2014 and its subsequent implementation has, broadly, been well received by almost everybody who had a point of view on it. The charity register grew greatly in size and scale during the year, and therefore in relevance too, further necessary secondary legislation was put in place, and permanent resources secured to keep things going well. By the end of the year, nearly 500 applications for registration had been made, a not unremarkable number for so small a country, and the process of registration was well on the way to completion.
- Some remembrance is warranted that the purpose of the mandate is not regulation for its own sake, but for the protection of public trust and confidence in registered charities. It is a genuinely important objective for the health of civil society in the country, maybe now more so than ever. Already, at the end of 2019, the register has revealed assets on the books of 300 Jersey registered charities near a quarter of a billion pounds. Was that known before? The charity sector matters as an economic actor, quite apart from the benefit its aim is to provide to and for many.
- Certain events occur from time to time that serve to reveal that public trust and confidence in charities is something whose hanging thread can be quite slender and prone to unravelling. Such events, whether in Jersey or elsewhere, underline what ‘public trust’ is really about and how crucial it therefore is for charity governors to be on top of their game. There are specific duties, essentially of utmost good faith, attaching to all charity governors whatever the structure of their entity, and all governors of registered charities have a duty to ensure that their organisations meet their public benefit duty. That means especially their being utterly alert, for example, for wasteful spending or for instances of private benefit where that manifestly goes beyond the incidental. Underpinning this is a need to keep under regular review financial controls, procedures and practices and generally to ensure good governance through diligence, application and questioning of permanent staff. These duties are the more stringent where, as in many cases, there are no paid employees and reliance for good governance rests solely with trustees or directors. My clear impression is that most charity governors take what they do with the utmost diligence, commitment and drive but I suspect that all those in that category will probably be the first to say that the general message about the importance of their role and conduct bears plenty of repetition.
- Despite all that, it was therefore good (as ever) to look at what the Jersey Opinions and Lifestyle Survey, published in December 2019 by Statistics Jersey, had to say about charities. It shewed that Jersey charities were scored alongside the Police Force as the most trustworthy of institutions. Registered charity governors should rightly be encouraged by this although, just like the Police, they need to keep at it. My main conclusion is that that, in general, is exactly what they are doing, be times hard or no, and will so continue. There is plenty of evidence around for that. So, I end with thanks and a tribute to them, not in truth a large cohort, so many of whom I have had the privilege of meeting over the past year.
Jersey Charity Commissioner
30 April 2020