Joint Committee on Statutory Instruments Fifth Report


FIFTH REPORT

FROM THE JOINT COMMITTEE OF BOTH HOUSES APPOINTED TO SCRUTINISE STATUTORY INSTRUMENTS, ETC.[1]

ORDERED TO REPORT:

  1. The Committee has considered the instruments set out in the Annex to this Report and has determined that the special attention of both Houses does not require to be drawn to any of them.

AFGHANISTAN (UNITED NATIONS SANCTIONS) ORDER 1999 (S.I. 1999/3133)

AFGHANISTAN (UNITED NATIONS SANCTIONS) (CHANNEL ISLANDS) ORDER 1999 (S.I. 1999/3134)

AFGHANISTAN (UNITED NATIONS SANCTIONS) (ISLE OF MAN) ORDER 1999 (S.I. 1999/3135)

AFGHANISTAN (UNITED NATIONS SANCTIONS) (OVERSEAS TERRITORIES) ORDER 1999 (S.I. 1999/3136)

  2. The Committee draws the special attention of both Houses to these orders on the grounds that they are defectively drafted, as acknowledged in the Memoranda by the Home Office and the Foreign and Commonwealth Office printed in Appendix 1, and that they make unexpected use of the power under which they are made.

  3. These 4 Orders were made under the United Nations Act 1946 to impose sanctions on the Taliban following United Nations resolution 1267 of 15th October 1999. They prohibit any aircraft from taking off or landing in the United Kingdom, the Channel Islands, the Isle of Man and the territories listed in Schedule 2 of S.I. 1999/3136. They also freeze assets of the Taliban or any undertaking owned or controlled by the Taliban.

  4. The first of the Orders ("the general order"), which extends to the United Kingdom, the Channel Islands and the Isle of Man (S.I. 1999/3133), contains provisions concerning both the restriction of flights by Taliban aircraft and also the freezing of Taliban funds. It is duplicated in respect of powers to freeze assets by the separate Orders (S.I. 1999/3134 and S.I. 1999/3135) which extend respectively to the Channel Islands and the Isle of Man. The 1946 Act gives power to make such prohibitions for all the areas concerned and there is therefore no question of vires. However, Parliament would not have intended that the power should be used to make overlapping laws and the Committee raised this duplication of prohibition with the departments concerned.

   5. The Foreign and Commonwealth Office acknowledge that the provisions of the general order (S.I. 1999/3133) applicable to both the United Kingdom and the Islands should extend only to flights. An amending order is to confine to the United Kingdom the provisions in the general order concerning funds. This will avoid duplication of prohibitions because the provisions concerning funds for the islands are properly made in S.I. 1999/3134 and 3135. The Committee accordingly reports these orders for unexpected use of the powers under which they are made, acknowledged by the Department.

  6. The Committee also asked the Departments to explain apparent discrepancies in the drafting of the Orders relating to the Islands and to the overseas territories. S.I.s 1999/3134 (Channel Islands) and 3135 (Isle of Man) differ in the application of penalties in the event that funds are unlawfully made available. Article 4(1) of the Isle of Man Order confines the application of the restriction as regards Taliban funds to persons who are ordinarily resident on the Island and British citizens. The Channel Islands order does not include the requirement to be ordinarily resident. The Home Office acknowledges that this is a drafting error and the Committee notes that it has been rectified by an amending instrument (S.I. 1999/3317) made on 14th December 1999. Schedule 2 of the Isle of Man order refers to seizure of documents made under Schedule 2(2) which does not exist. The Committee notes that a second amending instrument (S.I. 1999/3318) has removed these words.

  7. In the Overseas Territories Order and the general order, the Committee asked the Departments whether the references in article 8(1) concerning offences under article 3(2) of the orders should refer instead to article 3(3). The Foreign and Commonwealth Office acknowledged that the references should be to article 3(3) and have undertaken to make a correction at the earliest possible opportunity. The Committee reports these two provisions of these Orders for defective drafting, acknowledged by the Department.


1   The Orders of Reference of the Committee are set out in the First Report, Session 1999-00 (HL Paper 4; HC 50-i). Back


 
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