Appendix
2
5BS.I. 2011/2649:
memorandum from the Department for Business, Innovation and Skills
Export Control (Al-Qaida and Taliban Sanctions)
Regulations 2011 (S.I. 2011/2649)
By a letter dated 7 December 2011, the Committee
requested a memorandum on the following point:
Explain why regulation 6, when read literally,
appears to secure that a person who has committed both an offence
under these Regulations and a corresponding offence under the
Export Control Order 2008 is relieved from being guilty not only
of the corresponding offence but also of any other offence under
that Order.
The Department acknowledges that this regulation,
as currently drafted, can be read as having the wide excluding
effect which the Committee has kindly drawn to our attention.
The drafting which gives rise to this unintended reading is the
result of recent efforts by the Department to improve and simplify
the language of new sanctions legislation.
As soon as the Department became aware of this drafting
error, it identified all sanctions legislation made by the Department
in which identical wording to that in regulation 6 of S.I. 2011/2649
had been used. The Department has now corrected these instruments
by means of regulation 10 of the Export Control (Sudan and South
Sudan Sanctions) and (Miscellaneous Amendments) Regulations (S.I. 2011/2925),
which were made on 6th December and will enter into
force on 30th December 2011.
The correction in regulation 10 of S.I. 2011/2925
consists of the removal of these provisions rather than returning
to the drafting used before May 2011. The Department has for some
time now been considering the need for these provisions. It has
decided to remove them on the basis of the following considerations:
(i) the overlap which they are intended to address is highly unlikely
to arise in practice; (ii) even if it did, the absence of these
provisions will allow a degree of flexibility in prosecutions
for breaches of export control sanctions, avoiding the need of
prosecutors having to pre-determine in all cases whether such
overlap exists, which can be a complex exercise; (iii) as the
case law indicates, e.g. Junttan Oy Case [2003]All ER
(D)386(Oct), this is an approach consistent both with domestic
and EU law; and (iii) section 18 of the Interpretation Act 1978
adequately protects offenders from being punished more than once
for the same offence.
The Department is grateful to the Committee and wishes
to note that it has taken the first appropriate opportunity to
address this point. In addition, the Department proposes to remove
the provisions designed to deal with any overlap from the older
instruments when they are reviewed in the future.
Department for Business, Innovation and Skills
12 December 2011
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