Appendix 5
S.I. 2012/178: memorandum from the Department
for Environment, Food and Rural Affairs
Forest Law Enforcement, Governance and Trade
Regulations 2012
1. The Committee has asked the Department for
Environment, Food and Rural Affairs for a memorandum on the following
point:
Given that regulation 12 is
in effect applying sections of the Customs and Excise Management
Act 1979 to new sets of circumstances, explain why regulation
12 reduces the maximum sentence to 3 years and not to the 2-year
maximum specified by paragraph 1 of Schedule 2 to the European
Communities Act 1972.
2. The Department understands the Committee to
be raising the issue of whether the powers under section 2(2)
of the European Communities Act 1972 ("ECA") are being
used in S.I. 2012/178 "to create any new criminal offence
punishable with imprisonment for more than two years...".
The Department contends that they are not creating any such offence,
for the following reasons.
3. The offences in question are those in sections
50(2) and (3) and 170(1) and (2) of the Customs and Excise Management
Act 1979 ("CEMA"), for which sections 50(4)(b) and 170(3)(b)
provide for imprisonment for up to 7 years. Those offences relate
to the importation of goods contrary to any prohibition or restriction
for the time being in force under or by virtue of any enactment.
The restriction on which these offences bite is that in Article
4(1) of Council Regulation (EC) No 2173/2005 ("the FLEGT
Regulation"), which restricts the importation of timber without
a FLEGT licence. In this case, the "enactment" is the
ECA giving effect to obligations under the FLEGT Regulation.
4. Whilst the Department considers that a new
criminal offence should probably be considered to have been created
on the coming into force of Article 4(1) of the FLEGT Regulation,
as conduct which was lawful was rendered unlawful (albeit by the
extension of factual circumstances in which an existing offence
could be committed), the Department considers that this happened
before S.I. 2012/178 was made.
5. The criminal offence under CEMA has existed
since the FLEGT Regulation came into force, since that Regulation
is directly applicable in domestic law. There is no provision
in S.I. 2012/178 which makes unlawful any previously lawful importation
activity: any extension to the factual circumstances in which
the CEMA offences could be committed occurred when the FLEGT Regulation
came into force, before this instrument was made. Accordingly,
the Department does not agree that "regulation 12 is in effect
applying sections of the Customs and Excise Management Act 1979
to new sets of circumstances", to the extent that that regulation
could be said to be creating a new criminal offence within the
terms of paragraph 1 of Schedule 2 to the ECA. Regulation 12 simply
gives effect to the policy desire in the case of FLEGT to reduce
the maximum penalty for the CEMA offences from 7 years' to 3 years'
imprisonment.
Department for Environment, Food and Rural Affairs
6 March 2012
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