Export Control (Jersey) Law 200-

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A decision made (31.01.08) to approve the draft Export Control (Jersey) law 200-

Decision Reference: MD-HA-2008-0009
Decision Summary Title :			Date of Decision Summary:	10 January 2008
Decision Summary Author:	David Nurse, Director Customs and Excise		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:
Written Report Title :	Draft Export Control (Jersey) Law 200-		Date of Written Report:	10 January 2008
Written Report Author:	David Nurse, Director Customs and Excise		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Draft Export Control (Jersey) Law 200-
Decision(s): The Minister approved the draft Export Control (Jersey) Law 200- for debate by the States Assembly and instructed that the draft be lodged au Greffe. The Minister also signed the Statement of Compatibility confirming that the provisions of the draft Law were compatible with the European Convention on Human Rights
Reason(s) for Decision: To control trade in, and acquisition of, military and duel use goods and the technology to produce and develop them. In particular to prohibit “exports” of military and duel use goods, give new power to control export of military or duel use technology, so called “intangibles”, and to establish certain ancillary measures, particularly as to controls of trafficking and brokering in controlled goods and technology and to allow export controls on articles of cultural interest.
Resource Implications: None
Action required: The draft Export Control (Jersey) Law 200- to be lodged au Greffe: the Executive Officer, Home Affairs Department to liaise with the Greffier of the States on the basis that the draft Law was to be requested to be taken into consideration by the States on 1st April 2008
Signature:		Position: Minister for Home Affairs
Date Signed:		Date of Decision (If different from Date Signed):

Export Control (Jersey) Law 200-

REPORT

The draft Export Control (Jersey) Law 200- would make provision for controls on the export of tangible goods in place of the controls under the Customs and Excise (Jersey) Law 1999 and would introduce new powers in Jersey to control trade in intangibles, such as technology and technical assistance. It is obviously in the public interest for these new powers over intangibles to be available in Jersey. They will greatly extend and strengthen controls on trade in armaments and so called “dual use” items and bring the law in Jersey into line with that in the UK and the European Union. The new Law will also allow control of the export of articles of cultural interest.

The draft Law would enable the Minister for Home Affairs, by Order, to control trade in, and acquisition of, goods and technology specified in the Schedule to the draft Law if the eport or trade etc would have any of theconsequences mentioned in the Schedule (essentially an adverse effect of national security, regional or internal conflict or weapons of mass destruction). The goods and technology specified are military and dual use goods and the technology to produce and develop them, in particular the Minister may prohibit “exports” of military and dual use goods, control export of military or dual use technology and technical assistance, so called “intangibles” and certain ancillary measures, particularly as to controls of trafficking and brokering in controlled goods and technology. The Minister will also be able to make Orders to control the export of cultural objects. As and when required, the States will be able to add to or remove from, the categories of goods and intangibles in the Schedule, by means of Regulations.

Jersey has always followed the UK policy relating to the trade in military goods. For exports of such goods this has been achieved by requiring export licences for weapons and related goods that were controlled or restricted by the UK. In practice this was achieved by a direct reference in the Open General Export Licence (OGEL) to the list of controlled goods in the relevant UK legislation. This method was perfectly satisfactory for the control of tangible goods.

However the UK replaced its existing legislation with the Export Control Act 2002, (in force from May 2004) which was designed to take account of the recommendations in the Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecutions, 1996 (commonly referred to as “the Arms for Iraq” or “the Scott Inquiry”). The new Act continued the controls on tangible military goods but introduced provisions for the control of the export of intangible items (e.g. software) and the control of trade and the provision of technical assistance. These new controls could not be extended to Jersey via the OGEL which can only control tangible items. Therefore in order to keep in step with the UK it is necessary to introduce similar legislation in the Island.

In summary, the draft Law would include power, within the restrictions set out in the Schedule to the Law, to -

Impose controls on exports from Jersey

Impose controls on the transfer of technology from Jersey and by an “Island Person” (see the Explantory Note to Article 4 for the full meaning of this term)

Impose controls on the provision of technical assistance overseas

Impose controls on the acquisition, disposal or movement of goods or on activities which facilitate such acquisition, disposal or movement (known as trafficking and brokering)

Apply measures in aorder to give effect to EU legislation on controls on dual-use items (i.e. items with a potential civil and military application)

Prescribe licensing procedures in respect of any of the controls imposed

Require the minister for Home Affairs to report annually to the States on the controls imposed under the Law on strategic and cultural exports

Enable the imposition of penalties for offences against export control Orders

To be imposed, increased or varied as necessary to reflecte the seriousness of the offences

The Law would also prevent the Minister form making a control Order restricting certain activities such as making information generally available to the public) unless the interference with that activity is necessary and the interference is no more than is necessary

The Law would also empower the Minister to make “temporary” control Orders in respect of exports of tangibles or other controls on intangibles not covered by the Schedule but only if the Order is for up to twelve months. Further, all such temporary Orders, though effective immediately, have to go through a special procedure which is designed to ensure that the States will debate the Order and decide to approve or annul it. These powers would probably need to be used only infrequently in cases of extreme urgency.

Financial/manpower implications

There are no new financial or manpower implications for the States of Jersey arising from the adoption of this draft Law.

European Convention on Human Rights

Article 16 of the Human Rights (Jersey) Law 2000 requires the Minister in charge of a Projet de Loi to make a statement about the compatibility of the provisions of the Projet with the Convention rights (as defined by Article 1 of the Law).

In the view of the Minister for Home Affairs the provisions of the draft Export Control (Jersey) Law 200- are compatible with the Convention Rights.