2.1 Even if a court were to find that the meaning of the Article could be construed with certainty, we consider that the double negative resulting from the closing lines of the Article makes interpretation more difficult than it should be. We are therefore proposing that the Law should be amended to clarify the position, and that view is supported by the vast majority of those who responded to our Consultation Paper.
2.2 That leaves us with the problem of whether to recommend that the ambiguity be resolved by making it clear that the statutory rights of beneficiaries to information may be varied by the terms of a trust or that they may not be so varied. If such variation were permitted, the further problems would then arise of whether the amended wording should enable them only to be widened or also to be narrowed; and if the latter, whether any restriction should be imposed on the ability to narrow them, or indeed to exclude them altogether.
2.3 The whole philosophy of the enactment of Jersey’s trust statute in 1984 was to introduce formally into Jersey law, which has its roots in continental European legal thinking, the essentially English concept of the trust. The only way to achieve that result was by statute, and yet the whole development of the trust concept in English law had been through actual court decisions meeting the ever-changing needs of the times. It was hoped that by avoiding enacting the Jersey statute as a code, enough latitude would be left for a similar process to occur here. It was hoped that the many gaps would be filled by decisions of the Jersey courts based on the wealth of judicial precedent available in England and other trust jurisdictions. In the fourteen years of the Law’s existence that has proved to be the case, and the Commission does not wish to hinder that process by causing any of the fundamental principles of the Jersey trust to edge away from those of the trust as known to English law and other common law jurisdictions.
2.4 It is clear that English law allows settlors to specify some restriction of beneficiaries’ rights of access to accounts and other trust documents although it does not permit them to exclude them altogether. To deny settlors of Jersey trusts any latitude here would go well beyond the intervention permissible under English law. We therefore consider that it should be possible in Jersey law for a settlor to narrow the rights of beneficiaries to information within limits as well as to widen them, and this view is shared by most of those who responded to our Consultation Paper. Where, however, should those limits be set?
2.5 Under English law the core obligation of trusteeship includes the duty of trustees to account to the beneficiaries, and so an attempt to remove or exclude that duty altogether in an English law trust would founder. The English courts would declare such a provision in a trust instrument to be repugnant to the nature of a trust, and strike it out. We agree that the principle of accountability of trustees is central to the trust concept and that it should not be possible for a settlor of a Jersey trust to exclude it altogether. We also note that the accountability of trustees forms an essential part of the definition of a trust in the Hague Convention on the Law applicable to Trusts and on their Recognition, which extends to the Island. As our Consultation Paper reports, it is essential that the trust remains pragmatically enforceable by the beneficiaries, and so a restriction which offended that principle should be struck down.
2.6 The difficulty lies in drawing the line between what is and what is not an acceptable restriction of beneficiaries’ rights to information. The responses to the Consultation Paper generally agreed with the Commission’s inclination to resist the introduction of a comprehensive statement of the minimum level of accountability required for a trust to be valid and enforceable in the Jersey courts. There was considerable support for the Commission’s preference for leaving the matter to the court by the express grant of a right (which would be exercised principally by beneficiaries) to apply to the court for relief where insufficient information was forthcoming. We believe that the introduction of such a remedy would enable the court to intervene in circumstances where it considered that a settlor had narrowed the beneficiaries’ rights to information too restrictively or inappropriately, as well as where a settlor had excluded such rights altogether, and that is what we propose.