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.
1999 (S.I. 1999/3133)
1999 (S.I. 1999/3134)
1999 (S.I. 1999/3135)
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
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