Joint Committee on Statutory Instruments Twenty-Eighth Report


Instruments reported

The Committee has considered the following instruments, and has determined that the special attention of both Houses should be drawn to them on the grounds specified.

1 S.I. 2003/1516: unexpected use of enabling power and defective drafting

Iraq (United Nations Sanctions) (Overseas Territories) Order 2003 (S.I 2003/1516)


1.1 The Committee draws the special attention of both Houses to this Order on the ground that it makes an unexpected use of the enabling power in two respects, and is defectively drafted in another respect.

1.2 Article 6 makes it an offence for a person, without the authority of a licence, to knowingly export restricted goods from each of the territories specified in Schedule 1 to any destination in Iraq or to any destination for the purpose of delivery, directly or indirectly, to or to the order of any person in Iraq. The Committee asked the Foreign and Commonwealth Office to explain the need for this provision in relation to the export of restricted goods to Iraq, given that article 5 contains a similar prohibition, breach of which is subject to the same penalties as an offence under article 6. In a memorandum printed in Appendix 1, the Department states that there is no immediate need for article 6 in this respect and that it was included to ensure consistency with the provisions of other Orders. The Committee considers that the duplication of prohibitions in the same instrument constitutes an unexpected use of the enabling power, and it reports accordingly.

1.3 In relation to article 13(1), the Department accepts that the words "the Governor" should have read "an officer authorised for the purpose by the Governor", and indicates that this amendment will be made at an early opportunity. The Committee accordingly reports article 13(1) for defective drafting, acknowledged by the Department.

1.4 Unlike articles 15(3) and 16(3), article 14 does not contain a provision requiring an authorised person to produce evidence of his authority, if requested to do so, before or on exercising his powers. The Department accepts that such a provision should be included in article 14, and undertakes to make the necessary amendment at an early opportunity. The Committee accordingly reports article 14 on the ground that it makes an unexpected use of the enabling power.

2 S.I. 2003/1521, S.I. 2003/1522: unexpected use of enabling power

Iraq (United Nations Sanctions) (Channel Islands) Order 2003 (S.I 2003/1521)



Iraq (United Nations Sanctions) (Isle of Man) Order 2003 (S.I. 2003/1522)


2.1 The Committee draws the special attention of both Houses to these Orders on the ground that they make an unexpected use of the enabling power.

2.2 Article 6 of S.I. 2003/1521 provides that, except under the authority of a licence, restricted goods (that is, goods specified in Part III of Schedule 1 to the Export of Goods (Control)) Order 1994) are prohibited to be exported from any of the Channel Islands to any destination in Iraq or to any destination for the purpose of delivery, directly or indirectly, to or to the order of any person in Iraq. Article 6 of S.I. 2003/1522 contains a similar prohibition in relation to the export of restricted goods from the Isle of Man. Article 5 of each Order provides that any person who, except under the authority of a licence, supplies or delivers restricted goods to any person in Iraq shall be guilty of an offence unless he proves that he did not know and had no reason to suppose that the goods in question were to be supplied or delivered to a person in Iraq. Since a person who (without the authority of a licence) knowingly exports restricted goods to Iraq from the Channel Islands (or, as the case may be, the Isle of Man) would be in breach of both articles 5 and 6, the Committee asked for an explanation as to why (to this extent) the same prohibition was imposed by both provisions, and what penalties would apply for breach of article 6. The penalties for an offence under article 5 are specified in article 20(1). The Orders do not expressly mention the penalties for a contravention of article 6.

2.3 In the memoranda printed in Appendix 2, the Foreign and Commonwealth Office explains that the effect of article 6 is to attract the application of legislation similar to section 68 of the Customs and Excise Management Act 1979 which applies only to the United Kingdom: that legislation ("the relevant legislation") is, in the Isle of Man, section 69 of the Customs and Excise Management Act 1986; in Guernsey, section 30 of the Customs and Excise (General Provisions) (Bailiwick of Guernsey) Law 1972; and in Jersey, section 37 of the Customs and Excise (Jersey) Law 1999. In the result, goods exported in contravention of the prohibition in article 6 would be liable to forfeiture; and the other penal provisions in the relevant legislation would also apply.

2.4 It seems to the Committee that, in relation to the prohibited export of restricted goods from the Channel Islands (or, as the case may be, the Isle of Man), both articles 5 and 6 would apply. By virtue of article 6 and the relevant legislation, the goods would be liable to forfeiture. However, the other penal provisions in the relevant legislation would also apply resulting in two separate offences regimes for breach of the same prohibition: one for breach of article 5 (set out in article 20(1)) and the other for breach of article 6 (set out in the relevant legislation) for which the penalties are different from those applicable for contravention of article 5. In its second memorandum, the Department points out that the relevant legislation in the Channel Islands and the Isle of Man contains no provision corresponding to section 68(6) of the United Kingdom Act of 1979 which broadly provides that, in such circumstances, the specific offences provision expressly provided for in the subordinate legislation will apply. Accordingly, it will be a matter for the prosecuting authorities to decide for which offence a prosecution should be brought in each case. The Committee considers that the duplication of the same prohibition in the same instrument, with different penalties for contravention, is an unexpected use of the enabling power. It reports accordingly.


 
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