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. 2003/2614, S.I. 2003/2616: unexpected
use of the enabling power
| Democratic Republic of the Congo (United Nations Sanctions) (Isle of Man) Order 2003 (S.I. 2003/2614) Democratic Republic of the Congo (United Nations Sanctions) (Channel Islands) Order 2003 (S.I. 2003/2616)
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1.1 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.
1.2 Article 3 of each Order provides that any person
who, except under the authority of a licence, supplies or delivers,
agrees to supply or deliver or does any act calculated to promote
the supply or delivery of restricted goods to any person in the
Democratic Republic of the Congo 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 to a person in
that country. Article 4 of S.I. 2003/2614 provides that , except
under the authority of a licence, restricted goods are prohibited
to be exported from the Isle of Man to any destination in the
Democratic Republic of the Congo or to any destination for the
purpose of delivery, directly or indirectly, to or to the order
of any person in the Democratic Republic of the Congo. Article
4 of S.I. 2003/2616 contains a similar prohibition in relation
to the export of restricted goods from any of the Channel Islands.
1.3 Articles 3 and 4 correspond to similar provisions
appearing in articles 5 and 6 of the Iraq (United Nations Sanctions)
(Channel Islands) Order 2003 (S.I. 2003/1521) and the Iraq
(United Nations Sanctions) (Isle of Man) Order 2003 (S.I. 2003/1522).
In its Twenty-eighth Report of Session 2002-03, the Committee
noted that both of the latter provisions would apply in relation
to the prohibited export of restricted goods from the Channel
Islands (or, as the case may be, the Isle of Man), resulting in
two separate offences regimes for breach of the same prohibition.
It considered that the duplication of the same prohibition in
the same instrument, with different penalties for contravention,
constituted an unexpected use of the enabling power, and it reported
accordingly.
1.4 In relation to the present instruments, the Committee
asked the Department for Constitutional Affairs whether it wished
to add anything to the earlier response in the light of the Committee's
Report. In a memorandum printed in Appendix 1, the Department
accepts there is an overlap between articles 3 and 4, resulting
in two offence regimes: one for breach of article 3 (set out in
article 16 of each Order) and another for breach of article 4
contained in the local legislation. It indicates that the authorities
in the Isle of Man and the Channel Islands have been apprised
of the problem and are considering the way in which it should
be resolved in relation to future Orders. Consistently with its
earlier Report, 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 both Orders accordingly.
2 S.I.
2003/2627: unexpected use of the enabling power
| Democratic Republic of the Congo (Restrictive Measures) (Overseas Territories) Order 2003 (S.I. 2003/2627)
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2.1 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.
2.2 Article 3 provides that any person who, except
under the authority of a licence, supplies or delivers, agrees
to supply or deliver or does any act calculated to promote the
supply or delivery of restricted goods to any person in the Democratic
Republic of the Congo 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 that country. Article 4 provides that any person who, except
under the authority of a licence, knowingly exports restricted
goods from the Territory (that is, any of the territories specified
in Schedule 1) to any destination in the Democratic Republic of
the Congo or to any destination for the purpose of delivery, directly
or indirectly, to or to the order of any person in the Democratic
Republic of the Congo shall be guilty of an offence.
2.3 Articles 3 and 4 correspond to similar provisions
appearing in articles 5 and 6 respectively of the Iraq (United
Nations Sanctions) (Overseas Territories) Order 2003 (S.I. 2003/1516).
In relation to the latter provisions, the Foreign and Commonwealth
Office had indicated that there was no immediate need for article
6 in relation to the export of restricted goods to Iraq, given
that article 5 contained a similar prohibition, and that article
6 had been included to ensure consistency with the provisions
of other Orders. In its Twenty-eighth Report of Session 2002-03,
the Committee considered that the duplication of prohibitions
in the same instrument constituted an unexpected use of the enabling
power, and it reported accordingly.
2.4 In relation to the present instrument, the Committee
asked the Foreign and Commonwealth Office whether it wished to
add anything to its earlier memorandum in the light of the Committee's
Report. In a memorandum printed in Appendix 2, the Department
states that, in addition to article 3, a provision is required
to prohibit the exportation of restricted goods to enable their
seizure and forfeiture and that in relation to similar Orders
in the future consideration would be given to re-drafting article
4 so that it achieved this effect without an overlap with article
3. If an offence attached to such a provision, with the consequent
possibility of duplication of offences arising, the Department
would consider disapplying the ancillary offence. However, as
the Department appears to accept, there is at present an overlap
between articles 3 and 4 in that both make it an offence for a
person knowingly to export restricted goods (without the authority
of a licence) from the Territory to the Democratic Republic of
the Congo. Consistently with its earlier Report, the Committee
considers that the duplication of prohibitions in the same instrument
constitutes an unexpected use of the enabling power. It reports
accordingly.
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