Loose Minute

Delegation of Powers under Sovereign Base Area (SBA) Law to Republican Officials

Introduction

1. Since 1960 Republican officials have administered many functions conferred by SBA legislation on behalf of the SBA Administration (“SBAA”) within the SBAs[1]. Provision for such assistance was made in an Exchange of Notes linked to the Treaty of Establishment (“Appendix O”).

2. The process whereby Republican officials carry out a function on behalf of the SBAA is known as “delegation” and a function is “delegated” to the Republic when SBA law provides for a Republican official to carry out that function on behalf of the SBAA. Delegation is always done with the express agreement of the Republican Government.

3. The purpose of this note is to explain how the delegation process works in practice. The note explains—

· who SBA legislation applies to;

· the circumstances in which functions are delegated to the Republic and the process of delegation;

· “adoption” of Republican legislation in SBA law;

· the legal effects of delegation;

· the limitations on powers which Republican officials have within the SBAs; and

· how legal proceedings connected with delegation are dealt with.

Who does SBA legislation apply to?

4. SBA legislation applies to everyone within the SBAs including residents, land-owners, UK and Cypriot nationals (and indeed anyone else) who come into the SBAs. It also applies to the small number of businesses within the SBAs, and to those employed in the SBA Administration and private sector.

5. The SBAs are not within the EU, but under Protocol 3, EU law on agriculture, customs and indirect taxation does apply in the SBAs.

Circumstances in which functions are delegated

6. Legislative functions are delegated to the Republic where the SBA legislation is similar to the equivalent Republican legislation and where the Republic is better placed to undertake that function. The Republican officials concerned undertake essentially the same function in the SBAs to that which they undertake in the Republic. Delegation is of course only undertaken with the consent of the relevant Ministry in the Republic.

7. Delegation happens in various ways in SBA legislation.

(a) In some cases the SBA legislation recognises a Republican body and gives it all the powers in the SBAs that it has in the Republic.

(b) Most commonly particular functions are delegated to Republican officials under the Delegation of Functions to the Republic Ordinance 2007 (Ordinance 17/07).

Adoption

8. Preparing for accession to the EU by the Republic meant that the Republic passed a large amount of new legislation. In turn this resulted in a large increase in the legislation produced by the SBAA. The SBAA sought to reduce this legislative burden by enacting the Adopted Instruments Ordinance 2003. This allowed the Administration to adopt Republican public instruments and for them to take effect as if they had been made under the SBA Ordinance.

9. An SBA public instrument was needed on each occasion that a Republican public instrument was adopted but this was much shorter than a full mirroring exercise. The Adopted Instruments Ordinance 2003 was used to adopt a large quantity of secondary legislation particularly in the agricultural field.

10. The logical next step was to consider bundling together Republican primary legislation and secondary legislation in a particular field and adopting it all. This technique has come to be known as “wholesale adoption”. The best example of this is the Agricultural Provisions Ordinance 2007^{^[2]} which adopted 53 Republican laws plus all the public instruments made under them and repealed 44 SBA Ordinances and revoked all the public instruments made under them.

11. Wholesale adoption tends to be used for areas where there is a high volume of legislation emanating from the Republic. Typically, it is used where the law is administered in the Areas by Republican officials under a delegation and those affected by it are primarily the Cypriot population living or working in the SBAs. Wholesale adoption Ordinances have been enacted in the fields of education, excise duty, land surveying, companies, agriculture, shops, medicine, VAT and the transport of dangerous goods by road.

Effects of Delegation and Differences from Republican Law

12. In most cases it should not make any practical difference to a Republican official that he or she is performing a function in the SBAs. Generally Republican officials can use the Republican versions of prescribed forms[3]. Furthermore, various licences granted by the Republic are recognised in SBA law[4].

13. It is important to bear in mind that when exercising functions which have been delegated it is SBA law that is being applied. Even in the case of “adoption”, the relevant Republican legislation has effect within the SBAs as SBA law, and subject to any modifications and restrictions imposed in SBA law.

14. The SBAA provides the relevant Republican Ministry with a copy of the SBA legislation for which that Ministry has accepted a delegation. The text of SBA legislation is in English language, but generally follows the Republican equivalent very closely. In cases where Republican legislation has been adopted, the provisions which apply are the Greek language version of the original Republican instrument.

15. Differences from the Republican equivalent legislation should be apparent. They are usually either modifications to fit the geography and legal system of the SBAs, or will be designed to protect the UK’s interests in maintaining the SBAs, the most common being exclusion of the Crown or of UK military interests.

16. We welcome suggestions for any changes which Republican officials think might enhance the effectiveness of SBA legislation. For example, an amendment might be desirable as a result of new Republican legislation or in order to clarify SBA provisions in the context of existing Republican legislation. There is normally a time delay between the Republic making legislation and the SBAs replicating it. If any suggestions for change toSBA legislation requires urgent consideration please let us know and we will prioritise the process of considering those suggestions .

17. In adoption legislation, it is usual to have a delay of 60 days between Republican legislation entering into force in the Republic and it entering into force in the SBAs. This time-lag can be removed if necessary.

Limitations on powers delegated to Republican Officials

18. There are some limits on the functions delegated to Republican officials. Given the high degree of cooperation between Republican and SBA officials these limits should not cause practical difficulties.

19. The limitations on delegation are as follows:

(a) Delegation does not affect the ability of the SBAA to decide to perform a delegated function in place of the relevant Republican official.

(b) Republican officials generally need written authority from the Chief Officer to enter land or premises occupied by the Crown, or to which access is controlled or restricted by the Crown[5].

(c) Unless the Chief Officer authorises otherwise, the delegation of a function does not confer any power or impose any duty on any officer of the Republic in relation to any act or omission of any Crown Servant which is one in or arising out of or in the course of that Crown Servant’s duties[6].

(d) For certain delegated functions Republican officials need to consult the appropriate SBAA official before exercising the function. These functions are known as qualified delegated functions and are listed in Schedule 2 to the 2007 Ordinance or referred to as qualified delegated functions in the instrument that makes the delegation.

(e) The Chief Officer of the SBAA may prevent a Republican official from performing a function on a temporary basis[7].

(f) An SBAA official can object to the carrying out of a qualified delegated function by an officer of the Republic on the grounds that it would be detrimental to UK military requirements or security needs, or would be contrary to the declared policy of Her Majesty’s Government[8].

(g) Section 17 of the 2007 Ordinance provides that no power or duty is given to Republican police or customs officers.

Legal proceedings connected with delegated functions

20. There are various considerations in relation to legal proceedings connected with delegated functions.

(a) Prosecutions will normally be taken in the SBA courts, by the SBA authorities[9]. The Republic would not be a party to those proceedings and we would not normally expect proceedings to take place in Republican courts[10].

(b) Actions taken by Republican officials under functions which have been delegated count in SBA law as having been taken by the SBAA[11] so the SBAA can be challenged over them in the SBA courts through any appeal or by Judicial Review. Administrative law in the SBAs follows that of the UK rather than the Republic, but this should not normally cause any practical problems for Republican officials.

21. Republican officials acting under delegated powers have all the protection against civil or criminal liability which would be available in SBA law to an SBAA official performing the same functions[12] . It is of course a matter for the Republic, rather than the SBAA, whether a Republican citizen would also be able to use Republican law to challenge the behaviour of a Republican official acting under SBA-delegated powers.

[1] SBA legislation can be found at the Index of Legislation at www.sba.mod.uk

[4] For example the Recognition of Republican Licences Ordinance 1969 (1/1969) recognises various Republican licences.

[9] Section 18 of the 2007 Ordinance provides that no power or duty is given to Republican police or customs.

[10] Cypriot citizens can in some instances elect for criminal offences committed in the SBAs to be tried in the Republic under the Citizens of the Republic (Jurisdiction of Courts) Ordinance 1960 (6/60). This Ordinance requires that both the complainant and the defendant are Cypriot citizens.