Appendix 2 S.I. 2004/1113; S.I. 2004/1120:
memorandum from the Department for Constitutional Affairs
Liberia (United Nations Sanctions) (Channel Islands)
(Amendment) Order 2004 (S.I. 2004/1113); Liberia (United
Nations Sanctions) (Isle of Man) (Amendment) Order 2004 (S.I. 2004/1120)
1. The Committee has requested that a Memorandum
be submitted on the following points:
(1) Explain the purpose of article 1(2) of
each Order.
(2) Explain why it was considered necessary
to list all the particular types of assets or economic resources
in the definition inserted by article 4(1)(b) of S.I. 2004/1113,
and the reason for using a different definition from that in the
equivalent provision of S.I. 2004/1120.
(3) In S.I. 2004/1120, "relevant institution"
is defined as meaning any body corporate, partnership or unincorporated
body. Is it intended that every such body, whatever the nature
of its business, should be subject to the duty of disclosure imposed
by the inserted article 6D, and if so, why is the scope of S.I.
2004/1113 so much narrower?
2. The Channel Island and Isle of Man Orders ("the
CD Orders") closely follow the Liberia (Restrictive Measures)
(Overseas Territories) (Amendment) Order 2004 (S.I. 2004/1112)
["the OT's Order"], subject to adaptations and modifications
required for the special circumstances of each Island, which made
similar amendments to the Liberia (Restrictive Measures) (Overseas
Territories) Order 2004 (S.I. 2004/347).
3. The wording of article 1(2) of each Order follows
the wording of article 1(2) of the OT's Order. The purpose of
article 1(2) was to clarify the position regarding citation, i.e.
that the principal Order and the amending Order may together be
referred to as "the Liberia (United Nations Sanctions) (Channel
Islands/Isle of Man) Orders 2004". We note, however, that
article 1(2) of the CD Orders states that the Orders may together
be referred to as "the Liberia (United Nations Sanctions)
(Channel Islands/Isle of Man) Order 2004".
4. It was not our intention to suggest that the principal
and amending Orders should be treated as one Order, which, we
assume is why the Committee has queried this particular provision.
We will rectify this error by the issue of a correction slip and
apologise to the Committee for any confusion that might have been
caused.
5. In respect of the definition of "funds"
which appears in Article 4(1)(b) of the CD Orders, the definition
which appears in SI. 2004/1120 follows the OT Order. The definition
in S.I. 2004/1113 differs in that it lists a far greater number
of assets and economic resources.
6. The definition which appears in S.I.2004/1113,
is consistent with and is a feature of both insular Sanctions
Orders, which implement EU Regulations [for example the Community
Provisions (Maintaining a Freeze of Funds in Relation to Mr Milosevic
and Associated Persons) (Jersey) Order 2000 and the Community
Provisions (Prohibiting the Sale, Supply and Export of Certain
Equipment to, and Freezing of Funds of Certain Officials of, Burma/Myanmar)
(Jersey) Order 2003 and other UN Sanctions Orders (for example,
the Al-Qa'ida and Taliban (United Nations Measures) (Channel Islands)
Order 2002 (S.I. 2002/258).
7. It is noted that neither list in either Order
is exhaustive and so does not make any practical difference. On
this particular point, Guernsey has expressed the view that by
defining "funds" in this manner, the Order provides
a comprehensive list for ease of reference, without limiting the
definition.
8. The definition of "relevant institution"
in S.I. 2004/1120 does differ from that in S.I. 2004/1113 and
the OTs' Order, but is consistent with previous similar Isle of
Man Orders. Please see the Al-Qa'ida and Taliban (United Nations
Measures) (Isle of Man) Order 2002 (S.I. 2002/259) [which
replaced a similar provision in the Afghanistan (United Nations
Sanctions) (Isle of Man) Order 2001 (S.I. 2001/394)], the
Terrorism (United Nations Measures) (Isle of Man) Order 2001 and
the Iraq (United Nations Sanctions) (Isle of Man) Order 2000 (S.I. 2000/3245).
9. Although the definition employed in S.I. 2004/1120
is in fact shorter than in those Orders, both this Department
and the Isle of Man took the view that it covers the same ground
by omitting what were in our view overlapping paragraphs.
10. The short answer to the Committee's first question
is, yes the definition does cover every such body. It is acknowledged,
the definition in S.I. 2004/1113 is tightly defined and faithful
to that adopted by the OT's Order, making reference to proceeds
of crime legislation in force in both the Jersey and Guernsey.
However, the Isle of Man does not have a comprehensive statutory
definition of these classes of institutions. The wider definition
in S.I. 2004/1120 may be explained, then, by the absence of pre-existing
definitions in insular legislation and the wish to avoid incorporating
a narrower definition, which might fail to adequately cover the
institutions the legislation was intended to deal with.
11. It is our practice to ensure, where possible,
that definitions and other provisions in Orders such as these
are consistent with those previously adopted in earlier Orders
and with insular legislation and should take account of the special
requirements of each Island. There are, then likely to be differences
between the Orders, which might appear to create inconsistencies,
but which are in fact necessary.
17th May 2004
S.I. 2004/1113; S.I. 2004/1120:
further memorandum from the Department for Constitutional Affairs
1. Further to our Memorandum to the Committee of
17th May 2004, the Committee has requested that a further Memorandum
be submitted on the following point:
The Committee's concern was not the drafting of
article 1(2) but the need for it. The Department states that the
purpose was to clarify the position regarding citation. Explain,
using examples, the circumstances in which the two Orders might
need to be cited together in the form stated in article 1(2).
2. The purpose of article 1(2) was to clarify the
position regarding citation, i.e. that the principal Order and
the amending Order may together be referred to as "the Liberia
(United Nations Sanctions) (Channel Islands/Isle of Man) Orders
2004".
3. There is in fact one circumstance where the two
orders may be cited in the form stated.
4. The Committee will be aware that Article 1(2)
of the principal Orders (S.I. 305/2004 and S.I. 306/2004)
states:
"(2) If the Security Council of the United
Nations [UNSC] takes any decision which
has the effect of cancelling or suspending the operation of the
resolution adopted by it on 22nd December 2003, in whole or in
part, this Order shall cease to have effect or its operation shall
be suspended, in whole or in part, as the case may be, in accordance
with that decision; and particulars of that decision shall be
published by the Secretary of State in a notice in the London,
Edinburgh and Belfast Gazettes.".
5. Accordingly, when notice of the cancellation or
suspension of the operation of the aforementioned Resolution is
published, the Orders may be cited in the form stated in the amending
Orders.
2nd June 2004
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