2 S.I.
2011/2649: Reported for defective drafting
Export Control (Al-Qaida and Taliban Sanctions)
Regulations 2011 (S.I. 2011/2649)
2.1 The Committee draws the special attention of
both Houses to these Regulations on the ground that they are defectively
drafted in one respect.
2.2 The Regulations make provision for enforcing
certain EU restrictive measures directed against the Al-Qaida
network or made in view of the situation in Afghanistan. In particular
the Regulations create criminal offences, some of which may overlap
with offences under the Export Control Order 2008 (S.I. 2008/3231)
("the 2008 Order"). Regulation 6 sets out to deal with
the overlap. It provides—
"A person is not guilty of an offence under
the 2008 Order who would, apart from this article, be guilty of—
(a) an offence under these Regulations, and
(b) a corresponding offence under the 2008 Order."
2.3 The Committee asked the Department of Business,
Innovation and Skills why regulation 6, when read literally, appears
to secure that a person who has committed both an offence under
the Regulations and a corresponding offence under the 2008 Order
is relieved from being guilty not only of the corresponding offence
but also of any other offence under the 2008 Order. In a memorandum
printed at Appendix 2, the Department acknowledges that regulation
6 can be read as having that effect. It attributes the mistake
to "recent efforts to improve and simplify" sanctions
legislation. It states that the Department has reviewed regulation
6 and other instruments containing provisions in similar form
and concluded that, for a number of reasons set out in the memorandum
which appear to the Committee to be convincing, the provisions
are unnecessary. On 6 December 2011 the Secretary of State made
the Export Control (Sudan and South Sudan Sanctions) and (Miscellaneous
Amendments) Regulations 2011 (S.I. 2011/2925) which contained
provision revoking them.
2.4 The Committee is concerned that the error in
this case might have been attributable to the way in which a number
of the provisions of the Regulations have been constructed. Regulation
6, like regulations 4 and 5, employs a rather unusual formulation
along the lines "A person [is subject to specified consequences]
who [does something] ...". This is a forced construction
which is inconsistent with normal English usage and can make provisions
which employ it difficult to understand. In the context of regulation
6 promoting the words setting out the operative proposition of
the regulation before the words describing the situations in which
it applies may have contributed to the former being cast unduly
wide. Both because of its strain on syntax and because it runs
the risk of causing slips of this kind the Committee considers
that this construction is best avoided.
2.5 The Committee accordingly reports regulation
6 for defective drafting, acknowledged by the Department, and
commends the Department for the
prompt action which it has taken to rectify the defect.
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