Appendix 3
S.I. 2018/1076
Sanctions (Overseas Territories) (Amendment of Information Provisions) Order 2018
1.On 31 October 2018, the Committee requested that the Foreign and Commonwealth Office (“FCO”) submit a memorandum on the following points:
a) Explain how the amendment made by article 8(3) will be effected, given that the provision being amended does not contain the text “In this paragraph “relevant person””.
b) Explain why the amendments made by articles 2, 6, 7 and 8 are not made to extend to Bermuda, given that the instruments they amend do so extend.
2.The FCO is grateful for the Committee’s consideration of this instrument, and responds as set out below.
Response to question a)
3.It is accepted that the amendment made by article 8(3) cannot be effected, given that the provision being amended does not contain the text “In this paragraph “relevant person””; the provision in fact reads “In this article “relevant person””. The FCO apologises for this error.
4.The policy intention remains to amend the text of the provision so that it will read: “In this article, “relevant person”, in respect of a relevant institution,”. The FCO will correct article 8(3) through an amending instrument at the earliest opportunity.
Response to question b)
5.In recent years it has been standard practice that the instruments giving effect to sanctions regimes in the Overseas Territories apply to all territories, excluding Bermuda and Gibraltar. This is because Bermuda and Gibraltar make their own domestic legislation to implement the sanctions measures.
6.The International Sanctions Regulations 2013 (“2013 Regulations”) were made by the Attorney-General and Minister of Legal Affairs of Bermuda on 21 March 2013.
7.Regulation 2 and paragraphs (f) and (j) of Schedule 1 to the 2013 Regulations provide for the Lebanon and Syria (United Nations Measures) (Overseas Territories) Order 2006 and the Libya (Restrictive Measures) (Overseas Territories) Order 2011, any amendments made from time to time to those Orders, and any modifications made to the Orders by regulation 2A of the 2013 Regulations, to have the force of law in Bermuda. Therefore, the amendments made by articles 2,6,7 and 8 of this instrument will have the force of law in Bermuda once this instrument has entered into force on 7 November.
8.The FCO further notes that regulation 2 of the 2013 Regulations expressly states that the relevant Orders shall have the force of law in Bermuda “whether or not it has been extended to Bermuda”.
9.For completeness, the FCO notes that since September 2018, regulation 2A of the 2013 Regulations (as amended) has provided for the substance of the amendments made by articles 2, 6 and 8 of this instrument to apply in Bermuda. The Government of Bermuda has informed the FCO that this is an interim measure for the period until this instrument comes into force. It will amend the 2013 Regulations to remove these temporary provisions once this instrument has come into force on 7 November when these provisions will have the force of law in Bermuda by virtue of regulation 2.
10.Therefore, the FCO does not consider that the amendments made by articles 2, 6, 7 and 8 of this instrument should be extended to Bermuda.
11.However, it is acknowledged that the Lebanon and Syria (United Nations Measures) (Overseas Territories) Order 2006 and Part 1 of the Libya (Restrictive Measures) (Overseas Territories) Order 2011 continue to apply in Bermuda, despite the adoption by the Government of Bermuda of the 2013 Regulations.
12.The FCO is grateful to the Committee for highlighting this issue. We have informed the Government of Bermuda of this unnecessary duplication, but we note that there is no deficiency. We will look to remove the duplication at the earliest opportunity by way of an amending instrument.
Foreign and Commonwealth Office
6 November 2018
Published: 23 November 2018