Joint Committee on Statutory Instruments Twenty-Eighth Report


Appendix 2

S.I. 2003/1519, S.I. 2003/1521, S.I. 2003/1522: memorandum from the Foreign and Commonwealth Office


Iraq (United Nations Sanctions) Order 2003 (S.I. 2003/1519);



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)


1. Pursuant to the Committee's request for a memorandum in relation to the above Orders, dated 1 July 2003, the provision in Article 6 of the Orders is common to all recent statutory instruments implementing United Nations arms embargoes (see, for example, article 4 of the Somalia (United Nations Sanctions) Order 2002 (S.I. 2002/2628) and article 4 of the Liberia (United Nations Sanctions) Order 2001 (S.I. 2001/947)).

2. For the UK Order, the legal effect of such a prohibition is to trigger the application of the Customs and Excise Management Act 1979 ("CEMA"). Principally, section 68 of CEMA provides that where "exportation [of goods]… would be contrary to any prohibition or restriction for the time being in force with respect to those goods under or by virtue of any enactment", the goods will be subject to forfeiture.

3. In this way Her Majesty's Customs and Excise are able to ensure forfeiture of illegally exported restricted goods. It is not necessary to include a specific penalty in the Orders for breach of this prohibition, since the penalties in section 68 of CEMA apply.

4. Article 5 of the Orders is intended to implement the United Kingdom's obligations under the continuing United Nations arms embargo on Iraq. Penalties are imposed in article 20(1). The prohibition in article 5 is broader than that in article 6. Given, for example, the application of the Orders to British nationals overseas (article 1(4)), an offence under article 5 may not necessarily involve exportation from the United Kingdom.

5. CEMA applies only to the UK. The Crown Dependencies each have similar legislation to section 68 of CEMA. In the Isle of Man, section 69 of the Customs and Excise Management Act 1986 (Act of Tynwald) applies; in Guernsey, section 30 of the Customs and Excise (General Provisions) (Bailiwick of Guernsey) Law 1972 (as amended) applies; and in Jersey, section 37 of the Customs and Excise (Jersey) Law 1999 applies. The Department for Constitutional Affairs associates itself with this Explanatory Memorandum.

6. So, in response to the specific questions of the Committee:

(a) What is the sanction for breach of the prohibition contained in article 6 of the Orders?

7. The sanction is contained in section 68 of CEMA and related Crown Dependencies legislation as set out above.

(b) Is it intended that the export of restricted goods to a destination in Iraq will be covered by article 5?

8. Yes.

(c) If so, explain the need for this particular prohibition in article 6.

9. The prohibition brings in the provisions of CEMA and related Crown Dependencies legislation with respect to forfeiture as explained above.

(d) Explain why, unlike article 6 of S.I. 2003/1516, the breach of the prohibition in article 6 is not made an offence.

10. There is no need to create an offence in respect of article 6 since the penalties of CEMA and related Crown Dependencies legislation will apply. CEMA and the related Crown Dependencies legislation do not extend to the overseas territories.

7 July 2003

S.I. 2003/1519, S.I. 2003/1521, S.I. 2003/1522: further memorandum from the Foreign and Commonwealth Office

1. The response of the Foreign and Commonwealth Office to the request for a further memorandum contained in the letter by the Commons Clerk of the Committee of 15 July 2003 is as follows:

2. The forfeiture provisions in Section 68 of the Customs and Excise Management Act 1979 (CEMA) are only triggered by an in rem provision; they are not triggered by an in personam provision, such as that found in Article 5 of SI 2003/1519. The inclusion of Article 6 in SI 2003/1519 is therefore essential to the operation of the sanctions regime in that it is this in rem provision which triggers the forfeiture provisions of Section 68 of CEMA and enables HM Customs and Excise to exercise those powers at the borders in relation to exports.

3. The effect of Article 6 of SI 2003/1519 is to trigger all the provisions of Section 68 of CEMA. These include not only the forfeiture provisions, but also the offence provisions in Sections 68(1) and (2). However, those offence provisions apply only to exports while, as explained in the previous memorandum of the Foreign and Commonwealth Office of 7 July 2003, the relevant provisions of SI 2003/1519 also extend to British nationals overseas (Article 1(4)). The offence provisions of section 68 of CEMA would not extend to such persons if no export from the United Kingdom was involved. Article 5 of SI 2003/1519 is therefore also essential to the operation of the sanctions regime in that it creates offence provisions which extend to British nationals involved in supplies to Iraq which do not involve exports from the United Kingdom.

4. As is pointed out in the letter from the Commons Clerk of the Committee of 15 July, one effect of the presence in SI 2003/1519 of both Articles 5 and 6 is the existence of two offence provision regimes. However, as was noted, such a situation is envisaged in CEMA (Section 68(6)). Section 68(6) broadly provides that, in such circumstances, the specific offence provisions (in the relevant enactment) will apply. This does not however affect the forfeiture provisions in Section 68(1), which continue to apply.

5. In summary, both Articles 5 and 6 are essential for the operation of the sanctions regime (the former in relation to unlawful conduct not involving exports from the UK, the latter in respect of forfeiture). For the reasons given, there is no overlap between the two offence provision regimes.

6. HM Customs and Excise was consulted and associates itself with this further memorandum. The Department for Constitutional Affairs was also consulted, and has confirmed that the above also applies in respect of the similar legislation referred to in paragraph 5 of the previous memorandum of the Foreign and Commonwealth Office of 7 July 2003, except that no statutory equivalent exists for Section 68(6) of CEMA. It is a matter for the prosecuting authorities to decide for which offence a prosecution should be brought in each case.

21 July 2003


 
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