The Burma and Somalia (Sanctions) (Overseas Territories) (Amendment) Order 2018
| Year | 2018 |
2018 No. 1351
Overseas Territories
The Burma and Somalia (Sanctions) (Overseas Territories) (Amendment) Order 2018
Made 12th December 2018
Laid before Parliament 19th December 2018
Coming into force 9th January 2019
At the Court at Buckingham Palace, the 12th day of December 2018
Present,
The Queen’s Most Excellent Majesty in Council
Under Article 41 of the Charter of the United Nations, the Security Council of the United Nations has, by resolution 2385 adopted on 14th November 2017, called upon Her Majesty’s Government in the United Kingdom to apply certain measures to give effect to decisions of the Council in relation to Somalia:
Her Majesty, in exercise of the powers conferred on Her by section 1 of the United Nations Act 19461, section 112 of the Saint Helena Act 18332, the British Settlements Acts 1887 and 19453, and all of the other powers enabling Her to do so, is pleased, by and with the advice of Her Privy Council, to order as follows:
Citation, commencement, interpretation and extent
1.—(1) This Order may be cited as the Burma and Somalia (Sanctions) (Overseas Territories) (Amendment) Order 2018 and comes into force on 9th January 2019.
(2) In this Order—
(a)
(a) “the principal Order” means the Burma (Sanctions) (Overseas Territories) Order 20134;
(b)
(b) “the Somalia Order” means the Somalia (Sanctions) Overseas Territories) Order 20125.
(3) This Order extends to the territories listed in Schedule 1 to the principal Order.
Amendment of the principal Order
2. The principal Order is amended in accordance with articles 3 to 16 of this Order.
3. In article 2(2)—
(a) after “Article 4(2)” insert “, article 4A(2)”;
(b) omit “(and for this purpose “relevant person” has the meaning given in article 4(4) and (5))”.
4. In article 3—
(a) in paragraph (1), insert the following definitions in the appropriate places—
““designated person” means any person listed in Annex IV of the Council Regulation;”;
““dual-use goods and technology” means the items listed in Annex I to Council Regulation (EC) No. 428/20096;”;
““economic resources” means assets of every kind, whether tangible or intangible, movable or immovable, which are not funds but may be used to obtain funds, goods or services;”;
““frozen account” means an account with a relevant institution which is held or controlled (directly or indirectly) by a designated person;”;
““funds” means financial assets and benefits of every kind, including—
(a) cash, cheques, claims on money, drafts, money orders and other payment instruments,
(b) deposits with relevant institutions or other entities, balances on accounts, debts and debt obligations,
(c) publicly and privately traded securities and debt instruments, including stocks and shares, certificates representing securities, bonds, notes, warrants, debentures and derivatives contracts,
(d) interest, dividends or other income on or value accruing from or generated by assets,
(e) credit, rights of set-off, guarantees, performance bonds or other financial commitments,
(f) letters of credit, bills of lading and bills of sale,
(g) documents showing evidence of an interest in funds or financial resources, and
(h) any other instrument of export financing;”;
““Insurance” means an undertaking or commitment where a person is obliged, in return for a payment, to provide another person, in the event of materialisation of a risk, with an indemnity or a benefit as determined by the undertaking or commitment;”;
““relevant institution” means—
(a) any person who may lawfully accept deposits in or from within the Territory by way of business, or
(b) any society established lawfully in the Territory whose principal purpose is the making of loans secured on residential property where such loans are funded substantially by its members;”;
““relevant person” has the meaning given in paragraphs (4) and (5) of article 4;”;
““surveillance equipment” means the equipment, technology and software listed in Annex III to the Council Regulation;”;
““surveillance services” means services that provide, in particular using surveillance equipment, access to and delivery of a person’s incoming and outgoing telecommunications and call-associated data for the purpose of its extraction, decoding, recording, processing, analysis or storing, or any other related activity;”; and
(b) for paragraphs (2) and (3) substitute—
“2 For the purpose of the definition of “relevant institution” in paragraph (1)—
(a) the activity of accepting deposits has the meaning given by section 22 of the Financial Services and Markets Act 20007, taken with Schedule 2 to that Act and any order under section 22 of that Act, and
(b) a person is not regarded as accepting deposits by way of business if—
(i) the person does not hold himself or herself out as accepting deposits on a day to day basis, and
(ii) any deposits which the person accepts are accepted only on particular occasions, whether or not involving the issue of any securities.
3 In determining for the purposes of paragraph (2)(b)(ii) whether deposits are accepted only on particular occasions, regard is to be had to the frequency of those occasions and to any characteristics distinguishing them from each other.
4 An expression used both in this Order and in the Council Regulation has the meaning given in the Council Regulation.
5 A reference in this Order to any enactment (including legislation of the European Union) or statutory instrument is to be construed as a reference to that enactment or instrument as amended from time to time.”.
5. For the heading to Part 1, substitute “Restricted goods, services, and assistance”.
6. In article 4, after paragraph (2) insert—
“2A Paragraphs (1) and (2) do not apply in respect of protective clothing, including flak jackets and military helmets, which are temporarily exported to Burma by persons in the service of the United Nations, persons in the service of the European Union or its Member States, representatives of the media or humanitarian or development workers or associated personnel solely for their personal use.”.
7. After article 4, insert—
“Dual use goods and technology
4A.—(1) Subject to paragraph (5), it is an offence for a person to knowingly sell, supply, transfer or export (directly or indirectly) dual-use goods and technology intended for military use, or for delivery to a military end-user or the Border Guard Police—
(a)
(a) to any person in Burma, or
(b)
(b) for use in Burma.
(2) Subject to paragraph (5), it is an offence for a relevant person to knowingly use a ship, aircraft or vehicle falling within paragraph (3) for the carriage of dual-use goods and technology intended for military use, or for delivery to a military end-user or the Border Guard Police, if the carriage is, or forms part of, carriage from any place outside Burma to any destination in Burma.
(3) The following fall within this paragraph—
(a)
(a) a ship, aircraft or vehicle within the Territory,
(b)
(b) a ship or aircraft registered in the Territory, or
(c)
(c) any other ship or aircraft that is for the time being chartered to a person who falls within article 2(1)(a) or (b).
(5) Paragraphs (1) and (2) do not apply —
(a)
(a) in respect of protective clothing, including flak jackets and military helmets, which are temporarily exported to Burma by persons in the service of the United Nations, persons in the service of the European Union or its Member States, representatives of the media or humanitarian or development workers or associated personnel solely for their personal use; or
(b)
(b) where the sale, supply, transfer, export or carriage is carried out pursuant to a contract concluded before 9th January 2019 or to an ancillary contract necessary for the execution of such a contract.
(6) This article is subject to articles 7 and 8.
Surveillance equipment and surveillance services
4B.—(1) It is an offence for a person to knowingly—
(a)
(a) sell, supply, transfer or export (directly or indirectly) surveillance equipment to any person in Burma or for use in Burma,
(b)
(b) provide (directly or indirectly) assistance relating to surveillance equipment, or relating to the installation, provision, manufacture, maintenance or use of the equipment and technology specified in Annex III to the Council Regulation, or to the provision, installation, operation or updating of any software specified in that Annex, to any person in Burma or for use in Burma, or
(c)
(c) provide surveillance services to, or for the direct or indirect benefit of, the Government of Burma, its public bodies, corporations or agencies, or any person or entity acting on their behalf or at their direction.
(2) This article is subject to articles 7 and 8.
Dealing with funds and economic resources
4C.—(1) It is an offence for a person (“P”), including the designated person, to deal with funds or economic resources belonging to, or owned, held or controlled by, a designated person if P knows, or has reasonable cause to suspect, that P is dealing with such funds or economic resources.
(2) In paragraph (1), “deal with” means—
(a)
(a) in relation to funds—
(i) use, alter, move, allow access to or transfer,
(ii) deal with the funds in any other way that would result in a change in volume, amount, location, ownership, possession, character or destination, or
(iii) make any other change that would enable use, including portfolio management, and
(b)
(b) in...
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