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
(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?
(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
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
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
21 July 2003