Sanctions and Anti-Money Laundering Bill [HL]
Monday 21st May 2018
(6 years, 7 months ago)
Lords ChamberSanctions and Anti-Money Laundering Act 2018 View all Sanctions and Anti-Money Laundering Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 101-I Marshalled list for consideration of Commons amendments (PDF, 96KB) - (18 May 2018)
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 1 to 3.
“(ea) provide accountability for or be a deterrent to gross violations of human rights, or otherwise promote—
(i) compliance with international human rights law, or
(ii) respect for human rights,”
The Minister of State, Foreign and Commonwealth Office (Lord Ahmad of Wimbledon) (Con)
My Lords, the abuse of human rights was an issue of significant concern to both your Lordships’ House and the other place, as was made clear by many people who spoke at various stages of the Bill. The Government fully recognise why noble Lords and Members of the other place wished to reference gross human rights abuses explicitly, particularly in reference to the abhorrent case of Sergei Magnitsky. In her speech to the other House on 14 March, the Prime Minister made clear the Government’s intention to bring forward a “Magnitsky amendment” to the Bill. As a result, the Government worked closely and constructively with all sides of the other House to table these amendments, which have captured the maximum possible consensus in this area.
Commons Amendment 1 puts gross human rights abuses in the Bill as a purpose for which sanctions may be imposed. Commons Amendment 5 links the existing definition of a,
“gross violation of human rights”,
to the definition in the Proceeds of Crime Act 2002, and so ensures that it includes the torture of a person,
“by a public official, or a person acting in an official capacity”,
where the tortured person has sought to,
“expose illegal activity carried out by a public official”,
or to defend,
“human rights and fundamental freedoms”.
This makes it clear that all gross human rights abuses or violations are explicitly captured within the Bill. Commons Amendments 2, 3, 6, 7, 8, 14, 15, 19 and 20 are consequential on the changes to Clause 1.
Amendment 17 requires reports to be made about the use of the power to make sanctions regulations. Reports must identify regulations that have been made for human rights purposes. They must also specify any recommendations made by a parliamentary committee about the use of that power in relation to gross human rights violations, and include the Government’s response to any recommendations. It is right and proper that scrutiny of the regulations is carried out by Parliament.
Commons Amendment 16 was tabled in recognition of the concerns, raised by both the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights, that the repeal of Part 1 of the Terrorist Asset-Freezing etc. Act 2010—TAFA—would remove the independent reviewer’s oversight of the UK’s counter-terrorism asset freezes. I can assure all noble Lords that there was never any intention by the Government to remove independent oversight of the UK’s counter- terrorism asset-freezing regulations made under this Bill. That is why a carefully drafted government amendment was tabled in the other place to replicate effectively the scope of the independent oversight currently provided under TAFA. This ensures that there will be no removal or narrowing of the oversight of counterterrorism asset freezes as a result of the Bill.
The amendment also makes the Government’s commitment to this clear by imposing a duty to appoint an independent reviewer. The duty applies to any part of sanctions regulations that imposes asset freezes that are not made for a purpose that implements international obligations in this area but would further the prevention of terrorism. This is consistent with the scope of the independent oversight provided for under TAFA, thereby ensuring there is no removal or narrowing of the oversight of counterterrorism asset freezes as a result of the Bill.
I put it on record again that the Government are committed to promoting and strengthening universal human rights, and holding to account states and individuals responsible for the most serious violations. We will continue to do this after we leave the European Union and we intend that the powers in the Bill should allow us to be part of a global network of like-minded jurisdictions, working together to tackle those who commit gross human rights violations. We will continue to work with international partners to this end. I beg to move.
Lord Anderson of Swansea (Lab)
My Lords, it is good to turn to a period of calm after the clash and clamour of Brexit. I congratulate the Government on responding to the pressures in this House and the other place, and on taking a stand that I hope will be followed by other countries where appropriate. The current amendments relate to sanctions on the perpetrators of human rights abuses, wherever committed, and against individuals rather than states. They are therefore smart sanctions and I congratulate Sir Alan Duncan in the other place and those who have worked together. The Minister stressed that it was an all-party group and I believe the amendments in the other place were signed by all parties. This is therefore very important.
I congratulate also Bill Browder, who has worked tirelessly following the murder in custody of Sergei Magnitsky. These amendments are made in the context of the poisoning of Sergei and Yulia Skripal in Salisbury and the murder of Magnitsky in Russia in 2009, but they are clearly not limited to Russia. They are much broader and universal, just as the Magnitsky Act of 2012 in the US was, in 2016, broadened to include perpetrators of gross human rights abuses wherever committed. As the Prime Minister has said:
“There is no place for these people—or their money—in our country”.
Lord Faulks (Con)
My Lords, I endorse everything that the noble Lord, Lord Anderson, rightly said. These matters were a concern across party in both the House of Commons and your Lordships’ House. The Magnitsky law was somewhat incomplete after the Criminal Finances Bill was enacted, and this is a necessary completion of those reforms. I share the noble Lord’s concern that, in our enthusiasm, we must not lose sight of the need for safeguards. This measure seems to be welcome not only here but in a number of other jurisdictions, and I agree that we should continue to do all we can to encourage its take-up worldwide.
Baroness Northover (LD)
My Lords, we, too, welcome Amendment 1 and the consequential amendments, which are the concession made by the Government in the Commons explicitly to include gross human rights abuses in the Bill, recognising the vote in the House of Lords led by the noble Lord, Lord Pannick, and others. We also welcome Amendment 16, which deals with the concern raised by the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights. We also welcome Amendment 17, requiring the Government to make periodic reports on the use of powers to make sanctions. How frequently may those occur and what form may they take? Most of all, I thank the Government for listening to the views expressed here and hope that we can take heart in relation to other legislation and votes we have seen in recent times.
Lord Hain (Lab)
My Lords, I, too, welcome government Amendment 1 and its associated amendments and applaud the Minister for the way he has spoken forthrightly on the human rights agenda and stewarded the Bill, which is a case study in how a Government and a Minister should and can respond to amendments from the Opposition, the Liberal Democrats and Cross-Benchers.
At the same time, I crave the indulgence of the Minister, the Whip sitting next to him and your Lordships’ House in returning to a subject which I have raised before—which, I am authoritatively told, has had some impact on the welcome change in the leadership of South Africa. This week marks South African President Cyril Ramaphosa’s first 100 days in office. I will be brief, but the official state money laundering and corruption virus he inherited from President Zuma is significantly more virulent and pervasive than even Ramaphosa could have anticipated, made immeasurably worse by the complicity of UK-based global corporates.
Take Hogan Lovells, the international law firm headquartered here in London and in Washington, its role starkly exposed in documents recently released to the parliamentary finance committee in South Africa. In your Lordships’ House, Report on the Bill on 15 January, I first criticised its role for whitewashing corruption by Tom Moyane, chief of the South African Revenue Service, now suspended by the new President. According to these documents, Hogan Lovells kept silent even when its findings related to money laundering and corruption by Moyane’s former deputy, Jonas Makwakwa, and even after Moyane misled the South African Parliament. Through its despicable, fee-grabbing complicity, Hogan Lovells spared these two notorious perpetrators of state capture in South Africa from accountability for their complicity in, and cover up of, serious criminal behaviour, including money laundering and corruption.
At the same time, Hogan Lovells has been undermining the criminal justice system in a series of other cases, as proven by the fearless Forensics for Justice NGO investigator, Paul O’Sullivan. Effectively, Hogan Lovells was acting as former President Zuma’s legal fudger-in-chief.
Brave investigative journalist Pauli van Wyk has exposed lies by the senior partner of Hogan Lovells in South Africa, Mr Lavery Modise. In the Daily Maverick, she pointed out:
“Despite having the benefit of the report by Price Waterhouse Coopers (who actually conducted the investigation), Modise and his team ultimately charged Makwakwa with everything he could explain, and with exactly nothing that he previously struggled to explain, or simply refuse to account for”.
Indeed, the more serious allegations in the PwC report were carefully filtered out of Hogan Lovells’s report, and the firm did not point out that Moyane was preventing critical evidence from being given to PwC.
Hogan Lovells’s most specious piece of lawyer sophistry was to claim that it could look only at the employer-employee issue involved and not at any criminal issue, giving the excuse that the employee, Makwakwa, could otherwise implicate himself. Surely all good employers, and indeed employees, should report on any criminality at their workplace, and surely even more so in the vital state revenue agency when the crime relates to money laundering and tax evasion. Effectively, Hogan Lovells turned a blind eye to the looting of the tax agency. It took a fat fee and ignored the truth. Most astonishing to me is that Hogan Lovells still refuses to acknowledge, let alone apologise for, its complicity, thereby actively supporting those still trying to undermine President Ramaphosa’s reform programme.
The behaviour of Hogan Lovells in South Africa is a classic example of a British-based company obfuscating its behaviour, using the complexities afforded by the law, including client confidentiality, to conceal the crimes of money laundering and corruption. Hogan Lovells fits exactly the behaviour exposed by investigator Pauli van Wyk when she concluded:
“The tale of State Capture ... co-exists in a mutually parasitic relationship where the public purse is the feeding ground and corporates are the enablers and agents of whitewash”.
British based corporates such as Hogan Lovells should be supporting, not thwarting, President Ramaphosa’s anti-money laundering agenda.
The Solicitors Regulatory Authority has now declared that Hogan Lovells South Africa is a “connected party” to its UK firm and I therefore request—I hope that I will have the Minister’s support—that the SRA withdraws recognition from Hogan Lovells UK and suspends its UK senior partners from practising here for its scandalous activities in South Africa. I also ask British Ministers to ensure that Hogan Lovells UK receives no more UK public sector contracts until it at least apologises for its shameful and shameless South African role. Additionally I can report that, after I raised this matter at Second Reading in November, the Financial Conduct Authority has recently informed me that it is engaging with the whistleblower who has supplied evidence that I believe should see HSBC prosecuted for conspiracy for facilitating money laundering.
I conclude: unless Ministers ensure that there are penalties for UK-based corporates like Hogan Lovells, HSBC, the Bank of Baroda, Standard Chartered, Bell Pottinger, KPMG, McKinsey—and who knows how many others?—for their complicity in protecting criminals engaged in money laundering in the South African case, I am afraid this legislation will not be worth a candle.
Lord Pannick (CB)
The Minister was asked about safeguards. Can he confirm that the safeguards in the Bill, which we debated at great length in its various stages to ensure fairness to those listed, will apply in exactly the same way to those persons accused of human rights violations as they apply to all those listed for other reasons under the Bill?
Lord Collins of Highbury (Lab)
My Lords, I will be very brief. The noble Lord, Lord Anderson, asked the questions that I considered appropriate. I will not delay the House, but will repeat what the noble Lord, Lord Pannick, said in terms of an amendment we jointly agreed to, ensuring that fair process is considered in relation to this aspect of the Bill.
I very much join other noble Lords in welcoming the Government’s change of heart. There was opposition from the Government on these principles, and we had a successful amendment on human rights being the centre of foreign policy.
I welcome completely the noble Lord’s commitment. My honourable friend Helen Goodman also took the rather unusual step of signing the Government’s Magnitsky amendments, despite the fact that, in Committee, the Government had opposed her own amendments. I welcome very much the new consensus and hope that it is a sign that we can move forward with greater clarity in terms of foreign policy and human rights.
Lord Ahmad of Wimbledon
My Lords, I am grateful to all noble Lords who have taken part in this short debate. From the outset, I thank Members for their engagement during this Bill, both in your Lordships’ House or in the other place. I commend the efforts of the noble Lord, Lord Pannick, my noble friend Lord Faulks and others who over a lengthy period of time, from all sides of the Chamber, have talked on the importance of such a clause. I am mindful that I do not see the noble Baroness, Lady Kennedy, in her place, but I know that she has a Private Member’s Bill in this respect as well, and I acknowledge her efforts in that regard.
I shall pick up on the specific points. The noble Lord, Lord Anderson, asked when the Bill was likely to be implemented in relation to all things considered around Brexit. As he acknowledges, the Bill provides the framework to impose sanctions, and under the Bill will sit a series of regulations that will put specific sanctions regimes into place. This will be done in accordance with the timetable of Brexit. He also asked about the implementation period, which we will have to take into account. As some of the specifics come on board on this, I shall share them with your Lordships’ House. He also asked about the procedure for listing individuals. The sanctions regulations will be set out, and the activities targeted by sanctions. If the Minister concerned has sufficient evidence to meet the thresholds in the Bill, they can place a person on an administrative list of designated persons to whom sanctions apply. That list will also be made public.
The noble Lord, Lord Anderson, and my noble friend Lord Faulks asked about encouraging others. As I have said during the Bill, when it comes to sanctions generally—and specifically on this clause—I can assure them that the UK will continue to play a leading and constructive role. As such, we will continue to work with all our international partners to achieve the maximum consensus possible on issues of concern to the UK, including those in these clauses.
I thank the noble Baroness, Lady Northover, and her team for her engagement on this Bill. She asked specifically about the reports and their frequency. They will be made annually, and the report to Parliament will also be laid before Parliament as well.
The noble Lord, Lord Hain, raised important issues around South Africa and the SRA’s withdrawal of the registration around Hogan Lovells. I have listened, as I always do, to his various contributions very carefully, and shall ensure that his concerns are relayed to the relevant departments and authorities.
The noble Lord, Lord Pannick, asked whether the Minister can confirm whether safeguards could apply on HR sanctions. I am always mindful when he asks questions because he knows the answer already, and I am pleased to answer very shortly and succinctly—yes, they will.
Lord Ahmad of Wimbledon
Moved by
That this House do agree with the Commons in their Amendment 4.
Lord Ahmad of Wimbledon
My Lords, this amendment relates to the important area of enforcing trade sanctions on board ships outside of UK territorial waters. I know that the noble Lord, Lord Collins, has an amendment in this respect, and I am cognisant that the Delegated Powers and Regulatory Reform Committee has expressed some concerns. I assure him and your Lordships’ House that I commit to respond to the committee in writing. In the meantime, I hope that I can reassure noble Lords about the necessity and appropriateness of these powers.
In a moment, I will turn to the specific issues which the committee has raised. I want to make it clear from the outset that these powers are needed to address exceptional and potentially dangerous situations in which goods sanctioned by the UK are being transported to or from a sanctioned country in international and foreign waters; to ensure adherence to the standards set out in the relevant UN Security Council resolutions; and to provide protection against the transportation of dangerous and harmful goods in international waters—strengthening our ability to counter foreign policy and national security threats via the enforcement of sanctions regimes. Especially in light of recent events, noble Lords will appreciate that it is both necessary and important for the UK to have such powers and that is why we have sought to include these clauses.
Amendment 11 would enable UK officials to board and search ships where there are reasonable grounds to suspect that the ship is carrying sanctioned goods or technology. Amendment 12 also allows these powers to be exercised in circumstances where Amendment 11 does not apply but where there are reasonable grounds to suspect that the ship is carrying goods that would be sanctioned if there were a UK link. The powers could be exercised against British ships in both foreign and international waters, and against foreign and stateless ships in international waters. These clauses would also allow officials to seize goods that are being dealt with in contravention, or deemed contravention, of sanctions regulations.
Amendment 18 would allow the procedures for dealing with goods once seized to be set out in regulations. We expect these powers to be exercised, for example, in circumstances where the UK is aware that a ship is carrying goods such as components of chemical weapons, military materials heading towards a conflict zone in breach of an arms embargo, or even illicit nuclear materials heading towards a sanctioned state.
The clauses contain important safeguards limiting the use of these powers. The Bill makes it clear that there must be reasonable grounds to suspect that the ship in question is carrying sanctioned goods before any action can be taken. Further, consent from a foreign state is required before these powers can be exercised in relation to a British ship in foreign waters. The powers may be exercised in relation to a foreign ship in international waters only with the authorisation of the Secretary of State, which may be given only in certain limited circumstances, thereby ensuring that these powers will be used only on foreign ships with either flag-state consent or under the authority of international law. Where there is no flag state, as in the case of a stateless ship, such safeguards are not required as the ship is not subject to the jurisdiction of, and protection from, any other state.
These powers are analogous to those contained in other provisions of domestic legislation. For example, Chapter 5 of the Policing and Crime Act 2017 allows for these same powers to be exercised in circumstances where there are reasonable grounds to suspect that an offence under the law of England and Wales is being committed on board a ship in international waters. We intend to confer these new powers on the same UK authorities which are already capable of exercising those existing powers, namely constables, NCA officers and customs officials. In addition, we intend to add commissioned officers of Her Majesty’s ships to that list, as we expect that the Navy is likely to be the authority best placed to exercise these powers in respect of ships in international waters. This is not a novel approach as such officers are, for example, already designated maritime enforcement officers under the Criminal Justice (International Co-operation) Act 1990.
I draw noble Lords’ attention to the fact that the various maritime enforcement powers contained in existing legislation go further in some respects. For example, they allow for the arrest and detention of persons on board the ship. The purpose of these powers is not to target individuals, but to ensure that we can prevent the improper transportation of goods to or from a sanctioned country. These maritime powers are both necessary and important because the UK has legal obligations to enforce sanctions regimes on board British ships whether these ships are in domestic waters or not, which these powers will allow us to do. The UK also has legal obligations to seize and dispose of UN-sanctioned goods; we will be able to meet those under these powers. The UN Security Council also calls on the UK to search foreign ships for such goods, and expects the same approach to be taken in relation to stateless ships. The powers contained in this clause will allow us to do this as well.
On the concerns raised by the Delegated Powers and Regulatory Reform Committee in particular, I will explain why these amendments provide for the powers to be set out in regulations. This mirrors the approach that has been taken to the sanctions Bill as a whole. The Bill sets out the framework to be applied in sanctions regulations. The purpose of these maritime powers is to enforce UK trade sanctions, and so they should be exercisable in relation to any country on which trade sanctions have been imposed by the United Kingdom. For the sake of clarity and accessibility, it makes sense for there to be one regulation per sanctions regime which sets out all the detail pertaining to that regime, and that includes these powers.
However, it must be remembered that almost all the detail around these powers has been set out in the primary legislation already: the nature of the coercive powers that may be exercised, the circumstances in which these powers must be exercised, and the nature of the procedure that is to be followed when goods have been seized under these powers. Ministers therefore have very little discretion about what can be set out in the regulations in relation to these powers. For this reason, we consider this approach to be appropriate. For the same reasons, we consider that there is no reason for any additional parliamentary scrutiny of sanctions regulations based on the inclusion of these powers in those regulations, beyond the parliamentary scrutiny already provided for in the Bill in relation to those regulations.
The Delegated Powers Committee has also raised concerns about the particular wording of Amendments 11 and 12 and about whether the powers set out there are a non-exhaustive list. I reassure noble Lords that there is no intention to exercise any coercive powers that are not explicitly set out in Amendments 11 and 12. Indeed, if the intention was to have additional powers to take any other coercive action of the sort provided for in these amendments, one would expect the primary legislation to set out those additional powers, and it does not do so.
Turning briefly to the other amendments in this group, Amendments 4, 13, 23 and 30 are consequential on these clauses. Amendment 4 would ensure that the reference to supplemental provision, in Clause 1, includes these clauses. Amendment 13 ensures that the exercise of these powers in international and foreign waters is not limited by Clause 19 on extraterritorial application. Amendment 23 would ensure that the Bill does not affect powers exercised by the royal prerogative in relation to ships, and Amendment 30 would allow amendments to be made to the Customs and Excise Management Act to be able to properly enforce UK sanctions.
These maritime powers are necessary and important to ensure that we can take steps against the transportation of dangerous and harmful goods in international waters. Their inclusion in the Bill is an important step in enhancing the integrity and impact of sanctions regimes. I beg to move.
Lord Collins of Highbury
My Lords, I read the report of the Delegated Powers Committee on Friday and thought that I needed to act immediately, because I wanted to ensure that this House had the opportunity to fully debate its implications. I welcome what the Minister said and his commitment to respond fully to the committee’s report.
With regard to the powers, one of the biggest concerns at Second Reading in this House, through to Committee, has been the power grab—the concept of legislation being made by regulation, which seems to be expanding the whole time. I was particularly concerned about Clause 4 and how its powers appear not to be limited. I know that we have safeguards in the Bill, and I thank the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Judge, who is not in his place, for moving substantial amendments, which the Government listened to, on how you can confine and constrain the powers that are needed. We know that at some time in the future, a Government will simply look at what the law gives them power to do and use it, because it could apply in different circumstances. Therefore I was responding in particular to Clause 4 and the committee’s report. I hear what the Minister said about the safeguards and the constraints on Ministers in making regulations, and I hope that other noble Lords will be satisfied with the response. At this stage, I am.
Baroness Northover
My Lords, as the Minister will know, and as the noble Lord, Lord Collins, expressed, the Delegated Powers Committee was very concerned about Amendments 11 and 12. I must say that I found it astonishing to read that yet again, at this late stage of the Bill, the same issues are coming up that we had at the beginning, and to hear the Delegated Powers Committee noting,
“the Department’s failure to explain the width of the powers being granted, and why it is not possible to limit the powers … and to specify on the face of the Bill the persons who are to exercise the powers”.
I hear what the Minister says. I note that the Delegated Powers Committee is reluctantly saying that, if the Lords accepts the way that these amendments have come forward, the powers should be subject to the affirmative procedure in both cases. I wonder what the noble Lord, Lord Pannick, makes of the amendments.
Lord Pannick
I am very disappointed—at other noble Lords are—at the approach of the Government. All these points were fully debated at Second Reading, in Committee and on Report, and the constant theme across the House was that it was vital to constrain the powers that Ministers were giving themselves in relation to the Bill. The Minister was very receptive to those concerns and accepted a number of amendments, and it is therefore very disappointing that at this very late stage we see again the same vice. So I share the disappointment and regret that, given the stage we are at, it is too late to do anything about it. But I hope that the Minister will take back to his department our concern and the promise—it is not a threat—that, if similar powers are put before us in another Bill, no doubt noble Lords will have more to say about it.
Lord Ahmad of Wimbledon
My Lords, I thank noble Lords for their comments on this amendment and, of course, I have noted what all noble Lords said and the concerns they expressed. Let me assure them once again—I mention in particular the noble Baroness, who mentioned Amendments 11 and 12—that I will address specifically the powers of the Minister, and give the assurance once again that a detailed response will be provided to the Delegated Powers Committee. I am seeking to ensure that this response will be provided before the Recess.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 5 to 8.
“(6A) In this Act any reference to a gross violation of human rights is to conduct which—
(a) constitutes, or
(b) is connected with,
the commission of a gross human rights abuse or violation; and whether conduct constitutes or is connected with the commission of such an abuse or violation is to be determined in accordance with section 241A of the Proceeds of Crime Act 2002.”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 9 and 10.
“( ) Regulations—
(a) may create criminal offences for the purposes of the enforcement of prohibitions or requirements mentioned in subsection (2)(a) or (b) or for the purposes of preventing such prohibitions or requirements from being circumvented, and
(b) may include provision dealing with matters relating to any offences created for such purposes by regulations (including provision that creates defences).
( ) Regulations may not provide for an offence under regulations to be punishable with imprisonment for a period exceeding—
(a) in the case of conviction on indictment, 10 years;
(b) in the case of summary conviction—
(i) in relation to England and Wales, 12 months or, in relation to offences committed before section 154(1) of the Criminal Justice Act 2003 comes into force, 6 months;
(ii) in relation to Scotland, 12 months;
(iii) in relation to Northern Ireland, 6 months.”
“Report in respect of offences in regulations
(1) In this section “relevant regulations” means regulations under section 1 which create any offence for the purposes of—
(a) the enforcement of any prohibitions or requirements imposed by or under regulations under section 1, or
(b) preventing any such prohibitions or requirements from being circumvented.
(2) The appropriate Minister making any relevant regulations (“the Minister”) must at the required time lay before Parliament a report which—
(a) specifies the offences created by the regulations, indicating the prohibitions or requirements to which those offences relate,
(b) states that the Minister considers that there are good reasons for those prohibitions or requirements to be enforceable by criminal proceedings and explains why the Minister is of that opinion, and
(c) in the case of any of those offences which are punishable with imprisonment—
(i) states the maximum terms of imprisonment that apply to those offences,
(ii) states that the Minister considers that there are good reasons for those maximum terms, and
(iii) explains why the Minister is of that opinion.
(3) Subsection (4) applies where an offence created by the regulations relates to a particular prohibition or requirement and the Minister considers that a good reason—
(a) for that prohibition or requirement to be enforceable by criminal proceedings, or
(b) for a particular maximum term of imprisonment to apply to that offence,
is consistency with another enactment relating to the enforcement of a similar prohibition or requirement.
(4) The report must identify that other enactment.
(5) In subsection (3) “another enactment” means any provision of or made under an Act, other than a provision of the regulations to which the report relates.
(6) In subsection (2) “the required time” means—
(a) in the case of regulations contained in a statutory instrument which is laid before Parliament after being made, the same time as the instrument is laid before Parliament;
(b) in the case of regulations contained in a statutory instrument a draft of which is laid before Parliament, the same time as the draft is laid.
(7) This section applies to regulations which amend other regulations under section 1 so as to create an offence as it applies to regulations which otherwise create an offence.”
Lord Ahmad of Wimbledon
My Lords, we now come to the important issue of criminal offences. This group of amendments would allow powers in the Bill to be used to create criminal offences and penalties in regulations for both sanctions and money laundering breaches, subject to new safeguards.
I say at the outset that I recognise that your Lordships’ House had serious concerns about the inclusion of these powers, and the noble and learned Lord, Lord Judge, in particular, remains very concerned. I assure all noble Lords that once the Bill left your Lordships’ House we continued to listen to those concerns and have sought to address them. That is why these amendments also include an important new procedural safeguard of a requirement to report to Parliament, meaning that the Government have to inform Parliament specifically about the use of the powers to create criminal offences in secondary legislation. This is intended to enable Parliament to be better informed about the use of these powers and to be able to properly hold the Minister to account.
I shall go through each of the amendments in more detail. Amendments 9 and 21 restore the ability to provide for criminal offences and penalties in sanctions and money laundering regulations. In tabling these amendments, I acknowledge your Lordships’ recognition of the importance of rigorous anti-money laundering and sanctions regimes. In order to ensure the robustness of future sanctions and anti-money laundering regulations, corresponding powers to create criminal offences for breaches of those future regimes are necessary so as to preserve the ability of future Governments to impose effective and dissuasive sanctions for breaches of regulations.
I recognise that some in your Lordships’ House had concerns about the scope of these powers when the Bill was first introduced. These amendments address those concerns through additional safeguards, which must be met before the powers can be used. When I come to Amendments 31, 32 and 34, I shall elaborate upon the safeguards, which the Government have discussed with noble Lords since the Bill’s passage through this House.
The amendments restore our ability to enforce sanctions. As noble Lords are aware, sanctions are used to prevent serious threats to national and international peace and security. It is therefore right that breach of them is a criminal offence, and it is also right that penalties should be set at a level that acts as a proper deterrent for these serious crimes. The Bill gives us the ability to set penalties at up to 10 years’ imprisonment, but that does not mean that we will set them at the maximum in every case.
In respect of trade sanctions, offences for breaches of prohibitions made under the Export Control Act 2002 all have maximum penalties of 10 years’ imprisonment. That does not apply to the trade sanction prohibitions created under the European Communities Act 1972, which are capped at two years’ imprisonment, despite the breaches being just as serious a matter. This Bill will enable us to remedy that disparity by harmonising maximum penalties for breaches of all trade sanctions at 10 years.
Currently, breaches of financial sanctions can be punished by up to seven years’ imprisonment, and we plan to continue to set penalties at this level for financial sanctions. We also plan for breaches of other sanctions, such as transport sanctions, to have penalties set to match this level. There will also be offences, such as the failure to provide information when required to do so by law, that require lesser penalties, such as up to two years’ imprisonment, and we do not plan to increase penalties in those areas either.
I have set out in previous debates how the enforceability of new regulations would be seriously weakened without the power to create criminal offences, and how it is not unusual for requirements in delegated legislation to be enforced using criminal penalties. I now turn to the procedural safeguards we have introduced, which I hope will constitute sufficient reassurance to noble Lords who have expressed concerns.
Amendments 10, 25 and 32 introduce the important safeguard of requiring the Government to lay a report before Parliament whenever criminal offences are created or amended in sanctions regulations made under Clause 1 or in anti-money laundering regulations made under Clause 43. The amendments require the report to be laid at the same time as the regulations are laid or when the draft statutory instrument containing the relevant regulations is laid, depending on which parliamentary procedure is used. The report will facilitate effective parliamentary scrutiny of future use of criminal offences in sanctions regulations and goes further than the status quo in enabling Parliament to scrutinise the creation of criminal offences through sanctions or money laundering regulations.
The amendment specifies what elements should be included in these reports. Specifically, this will include: first, the details of the offences that have been created and the requirements to which they refer; secondly, the good reasons why a breach of these requirements should be enforced via criminal offences; thirdly, the maximum prison terms for any offences created which are punishable by imprisonment; and, fourthly, the reasons why those maximum terms have been set at the level they have. I trust noble Lords will agree that these reports will provide increased transparency as to the reasons for creating future criminal offences, and so give both Houses of Parliament a new and solid basis for holding the Government to account on the use of these powers when debating regulations made under the Bill. Nevertheless, the Government remain very aware that creating criminal offences and setting penalties in regulations is a serious matter and not one to be undertaken lightly. We hope that these amendments address that.
I would also like to take this opportunity to assure your Lordships’ House that the requirement contained in Amendment 25—for a Minister, when for whatever reason a report is not laid on time, to make a statement about that failure to the House—does not in any way circumvent the obligation to make the statement. It is an additional requirement, meant to create a further obligation to Parliament that if, for example, there has been some administrative error in publishing a statement, Ministers must provide an explanation to Parliament for that failure.
Amendment 31 is consequential to new paragraph 20A inserted by Amendment 32. The envisaged paragraph 20A(1) of Schedule 2 clarifies the scope of potential offences created for the purposes of the enforcement of requirements imposed by or under regulations under Clause 43.
Amendment 32 also makes the power to create criminal offences in money laundering regulations subject to the requirement for a report to Parliament along the same lines as the amendments for Part 1 of the Bill. This amendment clarifies that the scope of the power for creating future offences is restricted to offences for the purposes of enforcing future anti-money laundering regulations. It is both necessary and, importantly, proportionate.
Amendment 34 ensures that references made to regulations made under Clause 43, with respect to paragraph 15 of Schedule 2, and requirements imposed by regulations made under Clause 43, with respect to paragraph 20A of Schedule 2, also include reference to or requirements imposed by the Money Laundering Regulations 2017. This amendment ensures that new money laundering offences can be created by amending the Money Laundering Regulations 2017. It will therefore enable the Government to create new offences in order to respond, for example, to emerging risks identified by the national risk assessment of money laundering and terrorist financing, which was published in October of last year, or in response to the ongoing review by the Financial Action Task Force of the UK’s anti-money laundering and counterterrorist finance regime. I beg to move.
Lord Pannick
My Lords, in the early stages of this Bill, my noble and learned friend Lord Judge, who is not in his place, expressed the concerns that many of us felt about Ministers being given a power to create new criminal offences and, indeed, to specify maximum sentences. I am very pleased that the Government have recognised a need for safeguards in this context. This is an exceptional circumstance, and I very much hope that the Government will not see this as a precedent to be used in other contexts.
Baroness Northover
My Lords, the potential creation of new criminal offences by Ministers was of course the subject of major debate in the Lords, and the Government were defeated. It is the Government’s compromise that we are considering here. I know that the Government and the noble and learned Lord, Lord Judge, spent a great deal of time on this, as did my noble friend Lady Bowles. Noble Lords did not quite get to where they would have liked, but I know that they thought progress had been made. We are therefore content to accept the position that we have reached. However, the noble Lord, Lord Pannick, makes an important point about this not being a precedent.
Lord Ahmad of Wimbledon
I thank the noble Lord and the noble Baroness who have spoken. When this issue left your Lordships’ House, I emphasised and assured noble Lords that we would continue to work, particularly, with the noble and learned Lord, Lord Judge, and officials continue to do so. Every time I saw him in a Division Lobby or outside it—often he was going in the opposite direction, but we will park that for a moment—he reassured me that progress was being made, and this is the culmination of that. I thank noble Lords for their support.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 11.
“Enforcement: goods etc on ships
(1) The provision that may be made by virtue of section 17(2) (enforcement of prohibitions or requirements) includes provision as to the powers and duties of prescribed persons in relation to—
(a) British ships in foreign waters or international waters,
(b) ships without nationality in international waters, and
(c) foreign ships in international waters.
(2) Regulations may make provision by virtue of this section only for the purpose of enforcing relevant prohibitions or requirements.
(3) A prohibition or requirement is a “relevant prohibition or requirement” for the purposes of this section if it is—
(a) a prohibition or requirement specified by the regulations which is imposed by regulations for a purpose mentioned in any of paragraphs 2 to 7, 15(a), (b) or (c) or 16(a) of Schedule 1, or
(b) a prohibition or requirement imposed by a condition of a licence or direction issued by virtue of section 15 in relation to a prohibition or requirement mentioned in paragraph (a).
(4) The powers that may be conferred by virtue of this section include powers to—
(a) stop a ship;
(b) board a ship;
(c) require any person found on a ship boarded by virtue of this section to provide information or produce documents;
(d) inspect and copy such documents or information;
(e) stop any person found on such a ship and search that person for—
(i) prohibited goods, or
(ii) any thing that might be used to cause physical injury or damage to property or to endanger the safety of any ship;
(f) search a ship boarded by virtue of this section, or any thing found on such a ship (including cargo), for prohibited goods;
(g) seize goods found on a ship, in any thing found on a ship, or on any person found on a ship (but see subsection (8));
(h) for the purpose of exercising a power mentioned in paragraph (e), (f) or (g), require a ship to be taken to, and remain in, a port or anchorage in the United Kingdom or any other country willing to receive it.
(5) Regulations that confer a power mentioned in subsection (4)(a) to (f) or (h) must provide that a person may not exercise the power in relation to a ship unless the person has reasonable grounds to suspect that the ship is carrying prohibited goods (and the regulations need not require the person to have reasonable grounds to suspect that an offence is being or has been committed).
(6) Regulations that confer a power mentioned in subsection (4)(e)(i) or (f) must provide that the power may be exercised only to the extent reasonably required for the purpose of discovering prohibited goods.
(7) Regulations that confer a power mentioned in subsection (4)(e)(ii) on a person (“the officer”) may permit the search of a person only where the officer has reasonable grounds to believe that that person might use a thing in a way mentioned in subsection (4)(e)(ii).
(8) Regulations that confer a power mentioned in subsection (4)(g) on a person—
(a) must provide for the power to be exercisable on a ship only where that person is lawfully on the ship (whether in exercise of powers conferred by virtue of this section or otherwise), and
(b) may permit the seizure only of—
(i) goods which that person has reasonable grounds to suspect are prohibited goods, or
(ii) things within subsection (4)(e)(ii).
(9) Regulations that confer a power on a person by virtue of this section may authorise that person to use reasonable force, if necessary, in the exercise of the power.
(10) Regulations that confer a power by virtue of this section must provide that—
(a) the power may be exercised in relation to a British ship in foreign waters only with the authority of the Secretary of State, and
(b) in relation to foreign waters other than the sea and other waters within the seaward limits of the territorial sea adjacent to any relevant British possession, the Secretary of State may give authority only if the State in whose waters the power would be exercised consents to the exercise of the power.
(11) Regulations that confer a power by virtue of this section must provide that—
(a) the power may be exercised in relation to a foreign ship only with the authority of the Secretary of State, and
(b) the Secretary of State may give authority only if—
(i) the home state has requested the assistance of the United Kingdom for the purpose of enforcing relevant prohibitions or requirements,
(ii) the home state has authorised the United Kingdom to act for that purpose, or
(iii) the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941) or a UN Security Council Resolution otherwise permits the exercise of the powers in relation to the ship.
(12) The reference in subsection (11) to the United Nations Convention on the Law of the Sea includes a reference to any modifications of that Convention agreed after the passing of this Act that have entered into force in relation to the United Kingdom.
(13) In this section—
“arrangements” includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable);
“British ship” means a ship falling within paragraph (a), (c), (d) or (e) of section 7(12);
“foreign ship” means a ship which—
(a) is registered in a State other than the United Kingdom, or
(b) is not so registered but is entitled to fly the flag of a State other than the United Kingdom;
“foreign waters” means the sea and other waters within the seaward limits of the territorial sea adjacent to any relevant British possession or State other than the United Kingdom;
“goods” includes technology within the meaning of Schedule 1 (see paragraph 36 of that Schedule);
“home state”, in relation to a foreign ship, means—
(a) the State in which the ship is registered, or
(b) the State whose flag the ship is otherwise entitled to fly; “international waters” means waters beyond the territorial sea of the United Kingdom or of any other State or relevant British possession;
“prohibited goods” means goods which have been, or are being, dealt with in contravention of a relevant prohibition or requirement (see subsection (3));
“regulations” means regulations under section 1;
“relevant British possession” has the same meaning as in section 7 (see subsection (14) of that section);
“ship” has the same meaning as in section 7 (see subsection (14) of that section);
“ship without nationality” means a ship which—
(a) is not registered in, or otherwise entitled to fly the flag of, any State or relevant British possession, or
(b) sails under the flags of two or more States or relevant British possessions, or under the flags of a State and relevant British possession, using them according to convenience.
(14) In the definition of “prohibited goods” in subsection (13), the reference to goods dealt with in contravention of a relevant prohibition or requirement includes a reference to a case where—
(a) arrangements relating to goods have been entered into that have not been fully implemented, and
(b) if those arrangements were to be fully implemented, the goods would be dealt with in contravention of that prohibition or requirement.”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 12.
“Goods etc on ships: non-UK conduct
(1) Regulations may make provision conferring on prescribed persons powers exercisable—
(a) in relation to—
(i) British ships in foreign waters or international waters,
(ii) ships without nationality in international waters, and
(iii) foreign ships in international waters,
(b) for the purpose of—
(i) investigating the suspected carriage of relevant goods on such ships, or
(ii) preventing the continued carriage on such ships of goods suspected to be relevant goods.
(2) The powers that may be conferred by virtue of this section include powers to—
(a) stop a ship;
(b) board a ship;
(c) require any person found on a ship boarded by virtue of this section to provide information or produce documents;
(d) inspect and copy such documents or information;
(e) stop any person found on such a ship and search that person for—
(i) relevant goods, or
(ii) any thing that might be used to cause physical injury or damage to property or to endanger the safety of any ship;
(f) search a ship boarded by virtue of this section, or any thing found on such a ship (including cargo), for relevant goods;
(g) seize goods found on a ship, in any thing found on a ship, or on any person found on a ship (but see subsection (6));
(h) for the purpose of exercising a power mentioned in paragraph (e), (f) or (g), require a ship to be taken to, and remain in, a port or anchorage in the United Kingdom or any other country willing to receive it.
(3) Regulations that confer a power mentioned in subsection (2)(a) to (f) or (h) must provide that a person may not exercise the power in relation to a ship unless the person has reasonable grounds to suspect that the ship is carrying relevant goods.
(4) Regulations that confer a power mentioned in subsection (2)(e)(i) or (f) must provide that the power may be exercised only to the extent reasonably required for the purpose of discovering relevant goods.
(5) Regulations that confer a power mentioned in subsection (2)(e)(ii) on a person (“the officer”) may permit the search of a person only where the officer has reasonable grounds to believe that that person might use a thing in a way mentioned in subsection (2)(e)(ii).
(6) Regulations that confer a power mentioned in subsection (2)(g) on a person—
(a) must provide for the power to be exercisable on a ship only where that person is lawfully on the ship (whether in exercise of powers conferred by virtue of this section or otherwise), and
(b) may permit the seizure only of—
(i) goods which that person has reasonable grounds to suspect are relevant goods, or
(ii) things within subsection (2)(e)(ii).
(7) Regulations that confer a power on a person by virtue of this section may authorise that person to use reasonable force, if necessary, in the exercise of the power.
(8) Regulations that confer a power by virtue of this section must provide that—
(a) the power may be exercised in relation to a British ship in foreign waters only with the authority of the Secretary of State, and
(b) in relation to foreign waters other than the sea and other waters within the seaward limits of the territorial sea adjacent to any relevant British possession, the Secretary of State may give authority only if the State in whose waters the power would be exercised consents to the exercise of the power.
(9) Regulations that confer a power by virtue of this section must provide that—
(a) the power may be exercised in relation to a foreign ship only with the authority of the Secretary of State, and
(b) the Secretary of State may give authority only if—
(i) the home state has requested the assistance of the United Kingdom for a purpose mentioned in subsection (1)(b),
(ii) the home state has authorised the United Kingdom to act for such a purpose, or
(iii) the United Nations Convention on the Law of the Sea 1982 (Cmnd 8941) or a UN Security Council Resolution otherwise permits the exercise of the powers in relation to the ship.
(10) The reference in subsection (9) to the United Nations Convention on the Law of the Sea includes a reference to any modifications of that Convention agreed after the passing of this Act that have entered into force in relation to the United Kingdom.
(11) In this section—
“regulations” means regulations under section 1;
“relevant goods” means goods in relation to which relevant non-UK conduct is occurring or has occurred;
“relevant non-UK conduct” means conduct outside the United Kingdom by a person other than a United Kingdom person that would constitute a contravention of a relevant prohibition or requirement if the conduct had been—
(a) in the United Kingdom, or
(b) by a United Kingdom person;
“relevant prohibition or requirement” has the same meaning as in section (Enforcement: goods etc on ships) (see subsection (3) of that section);
“United Kingdom person” has the same meaning as in section 18 (see subsection (2) of that section).
(12) In the definition of “relevant non-UK conduct” in subsection (11), the reference to conduct that would constitute a contravention of a relevant prohibition or requirement if the conduct had been in the United Kingdom or by a United Kingdom person includes a reference to a case where—
(a) arrangements relating to goods have been entered into that have not been fully implemented, and
(b) if those arrangements were to be fully implemented (and if the conduct had been in the United Kingdom or by a United Kingdom person) the goods would be dealt with in contravention of that prohibition or requirement.
(13) In this section, the following expressions have the same meaning as in section (Enforcement: goods etc on ships)—
“arrangements”,
“British ship”,
“foreign ship”,
“foreign waters”,
“goods”,
“home state”,
“international waters”,
“relevant British possession”,
“ship”, and
“ship without nationality”.”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 13 to 21.
“( ) Nothing in this section limits the provision that may be made in regulations under section 1 by virtue of section (Enforcement: goods etc on ships) or (Goods etc on ships: non-UK conduct).”
“Independent review of regulations with counter-terrorism purpose
(1) The Secretary of State must appoint a person to review the operation of such asset-freeze provisions of relevant regulations made by the Secretary of State as the Secretary of State may from time to time refer to that person.
(2) The Treasury must appoint a person to review the operation of such asset-freeze provisions of relevant regulations made by the Treasury as the Treasury may from time to time refer to that person.
(3) The persons appointed under subsection (1) and (2) may be the same person.
(4) In each calendar year, by 31 January—
(a) the person appointed under subsection (1) must notify the Secretary of State of what (if any) reviews under that subsection that person intends to carry out in that year, and
(b) the person appointed under subsection (2) must notify the Treasury of what (if any) reviews under that subsection that person intends to carry out in that year.
(5) Reviews of which notice is given under subsection (4) in a particular year— (a) may not relate to any provisions that have not been referred before the giving of the notice, and
(b) must be completed during that year or as soon as reasonably practicable after the end of it.
(6) The person who conducts a review under this section must as soon as reasonably practicable after completing the review send a report on its outcome to—
(a) the Secretary of State, if the review is under subsection (1), or
(b) the Treasury, if the review is under subsection (2).
(7) On receiving a report under this section the Secretary of State or (as the case may be) the Treasury must lay a copy of it before Parliament.
(8) The Secretary of State may pay the expenses of a person who conducts a review under subsection (1) and also such allowances as the Secretary of State may determine.
(9) The Treasury may pay the expenses of a person who conducts a review under subsection (2) and also such allowances as the Treasury may determine.
(10) For the purposes of this section, regulations are “relevant regulations” if—
(a) they are regulations under section 1, and
(b) they state under section 1(3) at least one purpose which—
(i) is not compliance with a UN obligation or other international obligation, and
(ii) relates to counter-terrorism.
(11) A purpose “relates to counter-terrorism” if the report under section 2 in respect of the regulations indicated that, in the opinion of the appropriate Minister making them, the carrying out of that purpose would further the prevention of terrorism in the United Kingdom or elsewhere.
(12) For the purposes of this section a provision of relevant regulations is an “asset-freeze provision” if and to the extent that it—
(a) imposes a prohibition or requirement for a purpose mentioned in section 3(1)(a), (b) or (d), or
(b) makes provision in connection with such a prohibition or requirement.
(13) If a provision is referred under this section which contains a designation power, any review under this section of the operation of that provision may not include a review of any decisions to designate under that power.”
“Periodic reports on exercise of power to make regulations under section 1
(1) The Secretary of State must as soon as reasonably practicable after the end of each reporting period lay before Parliament a report which—
(a) specifies the regulations under section 1, if any, that were made in that reporting period,
(b) identifies which, if any, of those regulations—
(i) stated a relevant human rights purpose, or
(ii) amended or revoked regulations stating such a purpose,
(c) specifies any recommendations which in that reporting period were made by a Parliamentary Committee in connection with a relevant independent review, and
(d) includes a copy of any response to those recommendations which was made by the government to that Committee in that reporting period.
(2) Nothing in subsection (1)(d) requires a report under this section to contain anything the disclosure of which may, in the opinion of the Secretary of State, damage national security or international relations.
(3) For the purposes of this section the following are reporting periods—
(a) the period of 12 months beginning with the day on which this Act is passed (“the first reporting period”), and
(b) each period of 12 months that ends with an anniversary of the date when the first reporting period ends.
(4) For the purposes of this section—
(a) regulations “state” a purpose if the purpose is stated under section 1(3) in the regulations;
(b) a purpose is a “relevant human rights purpose” if, in the opinion of the Secretary of State, carrying out that purpose would provide accountability for or be a deterrent to gross violations of human rights.
(5) In this section—
“the government” means the government of the United Kingdom; “gross violation of human rights” has the meaning given by section 1(6A);
a “Parliamentary Committee” means a committee of the House of Commons or a committee of the House of Lords or a joint committee of both Houses;
a “relevant independent review”, in relation to a Parliamentary Committee, means a consideration by that Committee of whether the power to make regulations under section 1 should be exercised in connection with a gross violation of human rights.”
“Procedure for dealing with goods etc seized from ships
(1) The Secretary of State may by regulations make provision about the procedure to be followed in connection with goods seized under a power conferred by regulations under section 1 by virtue of section (Enforcement: goods etc on ships) or (Goods etc on ships: non-UK conduct).
(2) Regulations under this section relating to goods seized on suspicion of being prohibited goods or relevant goods may include provision—
(a) requiring prescribed persons to be notified of the seizure of the goods;
(b) requiring the Secretary of State to determine whether the seized goods were, at the time of their seizure, prohibited goods (where the goods were seized under a power conferred by virtue of section (Enforcement: goods etc on ships)) or relevant goods (where the goods were seized under a power conferred by virtue of section (Goods etc on ships: non-UK conduct));
(c) enabling the making of a claim by prescribed persons in relation to the seized goods;
(d) about the determination by a prescribed court of any such claim;
(e) about the publicity to be given to any such determination by a court;
(f) for and about the return of seized goods to prescribed persons before or after any such determination of a claim by a court;
(g) about the treatment of seized goods not so returned (including, in prescribed circumstances, their destruction or sale);
(h) for and about the payment of compensation by the Secretary of State following a determination by a court that the goods were not, at the time of their seizure, prohibited goods (where the goods were seized under a power conferred by virtue of section (Enforcement: goods etc on ships)) or relevant goods (where the goods were seized under a power conferred by virtue of section (Goods etc on ships: non-UK conduct)).
(3) In this section—
“goods” has the same meaning as in sections (Enforcement: goods etc on ships) and (Goods etc on ships: non-UK conduct) (see subsections (13) of those sections);
“prohibited goods” has the same meaning as in section (Enforcement: goods etc on ships) (see subsection (13) of that section);
“relevant goods” has the same meaning as in section (Goods etc on ships: non-UK conduct) (see subsection (11) of that section).”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 22.
“Public registers of beneficial ownership of companies registered in British Overseas Territories
(1) For the purposes of the detection, investigation or prevention of money laundering, the Secretary of State must provide all reasonable assistance to the governments of the British Overseas Territories to enable each of those governments to establish a publicly accessible register of the beneficial ownership of companies registered in each government’s jurisdiction.
(2) The Secretary of State must, no later than 31 December 2020, prepare a draft Order in Council requiring the government of any British Overseas Territory that has not introduced a publicly accessible register of the beneficial ownership of companies within its jurisdiction to do so.
(3) The draft Order in Council under subsection (2) must set out the form that the register must take.
(4) If an Order in Council contains requirements of a kind mentioned in subsection (2)—
(a) it must be laid before Parliament after being made, and
(b) if not approved by a resolution of each House of Parliament before the end of 28 days beginning with the day on which it is made, it ceases to have effect at the end of that period (but without that affecting the power to make a new Order under this section).
(5) In calculating a period of 28 days for the purposes of subsection (4), no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(6) For the purposes of this section, “British Overseas Territories” means a territory listed in Schedule 6 of the British Nationality Act 1981.
(7) For the purposes of this section, “a publicly accessible register of the beneficial ownership of companies” means a register which, in the opinion of the Secretary of State, provides information broadly equivalent to that available in accordance with the provisions of Part 21A of the Companies Act 2006.”
Lord Ahmad of Wimbledon
My Lords, Amendment 22 would put a duty on the Government to provide all reasonable assistance to our overseas territories to help them set up public registers of company beneficial ownership by 31 December 2020. If they do not do so, the amendment would require the Secretary of State to prepare a draft Order in Council requiring the Government of the overseas territories to introduce such registers.
Noble Lords are aware that the issue of the register of beneficial ownership was debated extensively in your Lordships’ House. I welcomed the insight and the expertise and, while there were differences of views, there was a robust debate. In this regard, the Government tabled on Report in the other place a package of amendments that sought to enhance the existing measures on beneficial ownership in the overseas territories but stopped short of the preparation of any legislation for the overseas territories ahead of the introduction of a public register as an international standard. As is his prerogative, Mr Speaker did not, however, select these amendments for debate. Therefore, the Government in the other place listened to the strength of feeling on this issue and accepted that it was the overwhelming view of the other place that the overseas territories should take steps to put public registers in place ahead of them becoming international standard as set by the Financial Action Task Force. Therefore, the Government did not oppose the new clause tabled by the right honourable Member for Sutton Coldfield and the right honourable Member for Barking.
Given the views expressed in the other place and the fact that we respect the will of Parliament, the Government do not now propose to table any new amendments. However, I would, nevertheless, like to make a number of points on this issue, not least as Minister for the Overseas Territories. I want to make it clear from the outset that we would have preferred a different approach to this question, as evidenced by the amendments we had tabled in the other place and my response to this debate in your Lordships’ House. Our approach has always been, and remains, as a priority to work consensually, constructively and collaboratively, with the overseas territories. Indeed, we have established strong channels with the overseas territories.
Let me be absolutely clear: the overseas territories are British, but they are separate jurisdictions with their own democratically elected Governments, responsible for their own fiscal matters and are not represented in this Parliament. We have legislated for them without their consent only in exceptional circumstances, for example to decriminalise homosexuality in certain territories to ensure that they were compliant with international human rights obligations. By contrast, financial services are an area of domestic responsibility for territory Governments, where they surpass—an important point to remember—international standards in the context of beneficial ownership. Legislating for these jurisdictions without their consent in this field effectively disenfranchises their elected representatives.
We are also fully cognisant of the territories’ concerns that the economic impact of imposing public registers on them will be significant—and these are not under normal circumstances. As noble Lords know, the British Virgin Islands, Anguilla and the Turks and Caicos Islands are still recovering from the two unprecedented category 5 hurricanes of last September. In the British Virgin Islands, nine out of 20 schools still remain closed and are accommodating their students in tents. The tourism industry has experienced a drop of 50% and is only now starting to recover. There remains a real risk that this will destabilise the reconstruction efforts of the hurricane affected territories, and all of this shortly before the next hurricane season begins in June. Accordingly, our preference would have been not to legislate in this manner without the territories’ consent, and let me assure noble Lords that our aim remains to work consensually and collaboratively with them to achieve the best possible outcome following the amendment.
As the reaction of the territories and their leaders has demonstrated, legislating for them without their consent risks damaging not only our long-standing constitutional arrangements respecting their autonomy but also our very proactive, positive and progressive relations with the overseas territories. Let me assure noble Lords that I have held a number of meetings with leaders and their London-based representatives since our debates at Report stage, and I have reaffirmed the importance that the United Kingdom attaches to our relationship with their jurisdictions. Equally, I would place on the record our gratitude to the overseas territories and to the Crown dependencies for the work that they have undertaken to implement the bilateral arrangements on the exchange of beneficial ownership information we concluded with them in 2016. In a relatively short timeframe, they have passed new primary legislation and delivered technological improvements to comply with the terms of these arrangements.
All Crown dependencies have central registers in place. Of the seven overseas territories with financial centres, Bermuda, the British Virgin Islands, the Cayman Islands, Gibraltar and the Turks and Caicos Islands already have central registers or similarly effective systems in place. Montserrat has also committed to establishing a public register, and we have recently signed a memorandum of understanding with Anguilla to fund its electronic search platform. In the case of Anguilla, the British Virgin Islands and the Turks and Caicos Islands, progress has been made notwithstanding some of the most challenging circumstances caused by last year’s hurricanes.
These arrangements, which provide UK law enforcement authorities, on request, with access to beneficial ownership information within 24 hours and within one hour in urgent cases, are already bearing fruit. As of 8 February, they had been used more than 70 times and the information obtained by UK law enforcement authorities as a result has been used to enhance intelligence leads and to support ongoing criminal investigations into illicit finance. It is important that we continue to work with the overseas territories and the Crown dependencies to implement fully these arrangements and, where necessary, to make improvements to the mechanisms for the exchange of information. We also have the statutory review of these arrangements that will report to Parliament by July 2019, and I remain confident that that will provide further evidence to all concerned of the benefits this provides to law enforcement authorities.
We should be clear that the arrangements go beyond the current international standards set by the Financial Action Task Force; these do not yet require private, let alone public, registers, reflecting a lack of international consensus in this important area. Imposing public registers on the overseas territories now carries with it the risk of a flight of business from them to other less regulated jurisdictions where our law enforcement authorities would not have the same level of access to beneficial ownership information as they do under the existing arrangements.
The Government have been consistently clear about their desire for public registers to become the global standard. Let us also be clear that the overseas territories do not oppose this, once there is an international standard. As I set out in my Written Ministerial Statement on 1 May, the Government will use their best endeavours, diplomatically and with international partners, to promote public registers of company beneficial ownership as the global standard by 2023. We would also expect the Crown dependencies to adopt public registers in that event.
I should also like to take this opportunity to place on record my deep concern about some of the intemperate language that was used in the other place about our overseas territories. References to “slave labour” and “money will go to where it is darkest” are liable to be misconstrued and are quite unacceptable in this context.
I would also like to use this opportunity to rebut the widely held misconceptions about the overseas territories. They are important financial centres for investors around the world. They have successful industries because they comply with regulatory standards and have taken significant steps on transparency. All overseas territories with financial centres have committed to greater tax transparency, by adopting the new global OECD standard for the automatic exchange between jurisdictions of taxpayer financial account information, and have started to exchange this information. In addition, HMRC has received data since September 2016 on accounts held in the overseas territories by UK taxpayers. Taken together, these measures are an important tool in combating tax evasion, and we welcome the co-operation and collaboration that we have received from both the overseas territories and the Crown dependencies in this area.
I thank noble Lords for their indulgence in allowing me to put on record the Government’s position and our thoughts on where we currently are. The overseas territories are an important part of what constitutes Britain today. However, notwithstanding the arguments I have made, the other place has sought to change the basis. Let me reiterate, with the words with which I started, that the Government will ultimately respect the will of Parliament on this issue and will now work constructively and collaboratively with the overseas territories towards the best possible outcomes. Let me assure noble Lords—and our overseas territories as well—that we will use our best endeavours and a supportive, constructive and collaborative approach in the international sphere to promote public registers of company beneficial ownership as the global standard, so that we can, as the overseas territories agree, achieve a level playing field in this area—a principle that we are all agreed on. I beg to move.
Amendment 22A (as an amendment to the Motion on Amendment 22)
Lord Naseby (Con)
My Lords, in speaking to Amendment 22A I declare an interest as vice-chairman of the All-Party Group for the Cayman Islands; I also have family working in financial services in the Cayman Islands.
Last weekend, 100,000 people lined the route of the wedding party. There was great joy there and in the rest of the country. Some 100,000 people in the overseas territories shared the joy of the Royal Family, except that every one of them was fearful for the future of their families. As matters stand today, what happened in the Commons—we have now heard from the Minister that the Government are not prepared to overturn it—is a catastrophe for financial services in the overseas territories. That cannot be taken lightly.
Your Lordships will remember that Prime Minister Cameron, who started the idea of public registers, thought he should lead in the world. He did not work out, however, what the impact would be on the rest of the overseas territories. He was more interested, I suspect, to lead, and to lead at a time when, if you look at our own Companies House, you cannot today get a really up-to-date situation on a great many companies, because Companies House is rarely up to date. Indeed, Companies House looks carefully at perhaps only one-third of companies that register. So that is not the answer. Why did Her Majesty’s Government not think a little further at that time about what was going to happen?
Lord Flight (Con)
My Lords, I want to speak out against Amendment 22 and in favour of Amendment 22A. I also declare my own interests as in the register: I am a regulator in the island of Guernsey.
As the Minister argued well, Amendment 22 raises major constitutional issues which the noble Lord, Lord Naseby, has described in even greater detail, but it is also the wrong approach to addressing the very problem of money laundering. It is shameful that the UK has a far worse record than the overseas territories. The reforms in the UK do not work because they do not include any non-British company and have no verification, whereas the arrangements that both the Crown dependencies and overseas territories have put in place provide all the necessary information to the appropriate authorities on asking. It is also a much more tightly and accurately kept register.
The legislation invites the overseas territories to discuss the constitutional position with government; it may be suitable to go for judicial review. I am sure that some will feel that the UK Government are trying to push them in the direction of a UDI. The UK Government’s position was set out extremely well back in 2015, at the beginning of debates on this territory, by the noble Baroness, Lady Neville-Rolfe, when she was Under-Secretary of State at the Department for Business. She said:
“The noble Lords, Lord Watson, Lord Mitchell and others, asked why we are not including the overseas territories and Crown dependencies in this legislation. The Prime Minister made clear that he would like a publicly accessible central registry of company beneficial ownership information to be the new international standard. We would therefore like the overseas territories and Crown dependencies to match our policy. We respect, however, the fact that the overseas territories and Crown dependencies are separate jurisdictions with their own elected Governments, under which they are responsible for fiscal matters”.—[Official Report, 19/1/15; col. GC 321.]
That was the British Government setting out our position quite straightforwardly, but they are now standing on their head and, as commented, putting the overseas territories out to dry.
The UK treats overseas territories and Crown dependencies alike, so it is rather strange that there is one arrangement for one category and one for another. Amendment 22 empowers the United Kingdom Government to impose publicly accessible registers on overseas territories but not on Crown dependencies. If any overseas territory has not met the timetable by the end of December 2020 as advised, the Secretary of State is apparently mandated to draft Orders in Council requiring them so to do. I hope that, as time passes, if this legislation goes ahead, ways will be found to implement it in a more balanced manner and, potentially, for it to be amended at some future stage.
In the other place, Sir Alan Duncan repeated the point about overseas territories being,
“separate jurisdictions, with their own democratically elected Governments”.
He went on:
“They are responsible for their own fiscal matters, and they are not represented in this Parliament”,—[Official Report, Commons, 1/5/18; col. 181.]
which does not legislate for them. A deal was done 30 or 40 years ago in which, in essence, the British Government said, “We’re not going to support you financially. You’ve got to develop your own economy but we won’t interfere with your doing that”. However, they now represent a serious threat, as my noble friend Lord Naseby pointed out, to these jurisdictions.
Lord Anderson of Swansea
My Lords, the use by Russia of dirty money was highlighted in the report today of the Foreign Affairs Committee in respect of counterterrorism and so on. It is clear that although the two Members who have just spoken did so with great passion and knowledge, they failed to take on board the actual figures. Global Witness says that at the moment there is £34 billion of Russian money in the overseas territories, £30 billion of which is in the BVI. Why does the Russian money go there? Is it suggested that all that money is clean? Noble Lords will recall that when the noble Lord, Lord Faulks, and I among others were pointing out areas of property investment in London, we said there are several streets in the Royal Borough of Kensington and Chelsea, which we both know well, where the lights never go on at night because money—
Lord Flight
My Lords, does the noble Lord, Lord Anderson, have the figure for black Russian assets in the UK? I imagine that there is substantially more than £30 billion.
Lord Anderson of Swansea
My Lords, with the public register of beneficial ownership it should be possible to obtain those figures. It would be absurd if money that fled from the London property market went to the overseas territories and sought a haven there. Anyway, the figures that are given—I am very happy be told that the they are incorrect—are that £34 billion of Russian money is currently in the overseas territories, £30 billion of which is in the BVI, and there has been over £100 billion over the past decade. Surely a proportion of that at the very least is dirty money, and the question must therefore be posed: are we prepared to countenance dirty money finding a haven in the overseas territories? That is what is suggested.
We have to respond very sensitively. Of course there will be an economic impact, and that will only be exacerbated by the impact of the hurricane, particularly in the BVI. Because of the UK’s responsibility to these overseas territories, we will have to bear at least part of the cost, but surely we should not countenance the position that I have mentioned. If the Minister has figures other than this £34 billion, I am very happy to hear them, and if he suggests that none of that is dirty money then I will be happy to hear his view, but surely it is in everyone’s interest that dirty money be pursued wherever it is and that there be a publicly accessible register.
At the same time, the economic impact should be recognised, along with the possible damage to the constitutional position. If those countries wish to go independent, so be it. Fairly recently there was a report on the contingent liabilities to the British taxpayer of the overseas territories. I wonder where the balance would lie, if a number of these countries went independent, regarding the amount currently spent by the British taxpayer. I am happy with that, but the question must remain: if these figures are correct, and if it must be that a portion of that sum is dirty, are we prepared to allow that to continue?
Lord Northbrook (Con)
My Lords, is the noble Lord, Lord Anderson, aware that none of the overseas territories is on the EU blacklist of non-co-operative tax jurisdictions as of December last year?
Lord Anderson of Swansea
That may well be the case, but I pose the question again. There is this £34 billion of Russian money. We know that the oligarchs look for areas where they can usefully hide their assets. Are we prepared to continue to allow that?
Lord Neuberger of Abbotsbury (CB)
My Lords, I strongly support the amendment of the noble Lord, Lord Naseby. The clause which he seeks to remove from the Bill is a classic example of a proposal which may seem right to many people—for the reasons given so clearly by the noble Lord, Lord Anderson of Swansea—but, after proper consideration can be seen to be very wrong.
Unlike most countries, our constitutional arrangements are based on conventions and mutual respect rather than pieces of paper, and we break those conventions and trample on that mutual respect at our peril. As the 2012 White Paper on the territories recognised, the UK’s legislative power over the territories is in practice and by convention limited to,
“external affairs, defence, internal security (including the police) and the appointment, discipline and removal of public officers”—
and, I would add, compliance with the UK’s international obligations. Accordingly, the proposal would run contrary to the established distribution of powers—quite apart from the points made about the constitution of some of the territories.
Not only that, it would do so in a most inappropriate way. There has been no consultation with the democratically elected Governments of any of the territories about the legislation. There has been no investigation of the effectiveness of this law in relation to any of the territories. There has been no inquiry as to the economic and social consequences of the legislation on any of the territories. That is in circumstances where, to go back to what the White Paper said, the UK Government aim,
“to work with Territories to strengthen good governance arrangements, public financial management and economic planning”,
to work with the territories.
I regret to say that the proposed law appears to be old-style colonialism at its worst: damaging legislation which has no cost for the legislating country but which will cause hardship to the victim countries, and does so not merely without representation but without consultation or full investigation. But it gets worse. The law is imposed in circumstances in which it is indisputable that the BVI, Cayman and Bermuda comply with all current international transparency and taxation requirements, such as those laid down by the OECD. This was recognised by the very full and generally rather critical December 2017 EU Muscovici report, which identifies which countries are unco-operative by hiding assets, and so on, and it does not include any of the territories.
Lord Flight
Is it not the case that they also comply with all the FATF requirements, which the UK does not?
Lord Neuberger of Abbotsbury
I believe that is the case, yes. I was going on to say that in many respects it appears that all three territories which I mentioned have a regulatory regime which in many respects is stricter than that of this country.
On top of all this, this proposal imposes a financially damaging regime on at least three territories in the Caribbean area with significant financial service industries for which the UK has responsibility, while not doing so for the Crown dependencies with substantial financial service industries closer to home: Jersey, Guernsey and the Isle of Man, for example. That adds discriminatory insult to unconstitutional and unfair injury. Let me make it clear to the Crown dependencies that I say this to oppose the proposed law applying to the territories, not to support it applying to the dependencies.
Finally, what will happen if this unfair and unjustified law is brought into force, apart from leading to a real sense of grievance and of being let down on the part of small states which it is our duty to protect? It will do no good. If there is the hot money to which the noble Lord, Lord Anderson of Swansea, referred, it will quickly move away from the BVI, Cayman and Bermuda to places which do not have respected democratic Governments and independent and respected courts, where the Judicial Committee of the Privy Council, which I had the honour to chair for five years, has no power. In effect, it will not be upholding the rule of law, it will be undermining it.
It will be only when we have universal acceptance of such regulation that, I respectfully suggest, it will be appropriate to impose it on these territories.
Lord Anderson of Swansea
With respect, is that not avoiding the question in an Augustinian way: make me good, but not yet, not until everybody else is good?
Lord Neuberger of Abbotsbury
So we have to sacrifice other people many miles away who have no say in it for the purpose of feeling good and leading the way? That seems to me, if I may say so, a very selfish attitude to take. It is simply inappropriate for us to do this for other countries.
Lord Collins of Highbury
If there was international agreement, is the noble and learned Lord suggesting that we should then impose on the territories?
Lord Neuberger of Abbotsbury (CB)
Judging by how the territories have behaved in the past, it seems pretty clear that we would not need to. They would comply, as they are currently doing, as the noble Lord, Lord Flight, said, with all their international requirements—indeed, going further than what is required. I would respectfully suggest that we should be supporting the amendment of the noble Lord, Lord Naseby.
Lord Beith (LD)
We should surely consider very carefully when what seems like a very necessary measure to tackle a great evil confronts a constitutional objection; this is not the way in which such a measure ought to be introduced. There are also qualifications I might make about the potential effectiveness of the public open registers to be imposed on these territories in dealing with the evil being addressed. But there is no question that those who are advancing the case are doing so because they see an urgent need to tackle this evil and see this as likely to help.
However when it comes to a constitutional objection, we have to think carefully. There are two constitutional issues at play: one is that the elected House has made a clear decision, following debates in both Houses, that we should proceed along this road. We have to accept that, as the Government have done. But we cannot do so without reflecting on the impact this will have, and in particular on the constitutional status of the territories concerned. They are, of course, a wide variety of territories, defined in Schedule 6 to the Nationality Act. That includes not just the British Virgin Islands, the Cayman Islands and Bermuda but the British Antarctic Territory, the British Indian Ocean Territory and the Pitcairn Islands, with about 50 inhabitants. It is not entirely clear how the Minister with responsibility—the noble Lord, Lord Ahmad, of course—will deal with the situation as it will affect some of those territories.
That variety also illustrates that there is a range of democratic and other development in this list of territories which includes many at different stages. The territories that have attracted most attention are those which, by and large, have well-embedded constitutional arrangements, introduced by this country, of which a major component is legislative autonomy. The question that we now have to answer is: what do we do about the legislative autonomy that we purport to have given to people, if outside the parameters set when we gave that autonomy we then seek to legislate for them? That question remains unanswered in this process.
When Britain decided what its policy towards former colonies would be, it did not take the French approach. The French approach, in relation to a number of territories, including neighbours of the territories we are talking about today, was to treat them as integral parts of France and give them representation in the National Assembly. We are having this argument and nobody from any of the overseas dependent territories is able to take part in the debate; it is all being done by people who, for different reasons, are aware of them, friendly towards them or simply, in my case, see it as a constitutional issue for them.
We did not take that approach. Are we now saying that the idea of developing them as separate democracies through legislative autonomy is not one that we will pursue any more? We will have to give them some kind of assurance if they are to understand what their constitutional relationship is. Britain is not just a franchise brand that we offer and take away at a moment’s notice. It is a country which has promoted the democratic development of its former colonies and we have to ask whether we can really do that if we insist on legislating for them in areas for which we have given legislative autonomy.
There was a question from the Labour Front Bench a moment ago about what would happen if there was an international standard and one of the territories declined to implement it which, as has been pointed out, has not been their practice up to now. They have implemented all the international standards. However, it is a perfectly legitimate question and the answer is that this is an area in which we have not given legislative autonomy to those territories. We have retained UK responsibility to deal with their international relations and their compliance with international treaties. We would indeed impose, in those circumstances, exactly within the parameters of legislative autonomy that has been given.
I pay tribute to the efforts devoted to this subject by the Minister, which I think are partly motivated by the fact that he has to deal with the consequences. He is the person who is responsible for our relations with these territories. But how can we reassert the constitutional relationship between the United Kingdom and those territories to which it has given legislative autonomy in the context presented by the decision that the House of Commons has taken?
Baroness Butler-Sloss (CB)
My Lords, I am a vice-chairman of the All-Party Parliamentary Group for Gibraltar, which, apart from one brief mention by the Minister, has not been so far commented on. Listening to the noble Lord, Lord Anderson, I wondered, as between the United Kingdom and many of the overseas territories, where the mote and the beam lay. I will not pursue that any further, but I think that it may be where the noble Lord may not appreciate that it is.
Gibraltar is entirely compliant with all the current requirements. It is bringing a public register into its law early next year. It is unnecessary, unhelpful and inappropriate that Gibraltar should be held under the clause proposed in Amendment 22. It is not an appropriate way in which to deal, as the noble and learned Lord, Lord Neuberger, and the noble Lord, Lord Beith, have already said, with a country that has had its own constitution since 2006 and is entirely compliant. It is sad to find that countries such as Gibraltar should be under a proposed regime that would interfere with its constitution, as has already been set out.
It is obvious that what should have happened—it seems to me that the Minister was making it very clear—is that there should be encouragement to those countries that are not yet sufficiently compliant. However, that does not apply to any of the countries that have so far been referred to. It is very sad indeed that the way in which the other place has behaved on this matter brings us to this unhappy situation, pointed out so admirably by the noble Lord, Lord Beith.
Lord Faulks
My Lords, I think that the noble and learned Baroness is quite right with her mote and beam analogy. We must think about London, as my noble friend Lord Naseby, said. In 2016, David Cameron announced his intention in respect of anti-corruption and a register of beneficial interests. Since then we have had the Criminal Finances Act 2017 and this Bill. In both of those, my noble friend Lord Hodgson and I were keen to ensure that the Government did their best to stem the flood of dirty money, particularly into property money in London, by setting up a register of beneficial ownership which, when combined with unexplained wealth orders, might really do something to prevent what is a real obscenity about London property at the moment. So much money is flooding into the market yet so few people who start their work in London can afford to live. That is the mote that we have in London.
I wanted to press the matter to a vote, because our intention was to hurry this up, but I was met with formidable opposition from the Government, explaining how difficult the whole thing was. Finally, just before a vote might otherwise have taken place, I was reassured that there was much activity in this regard and there would be regular updates and a ministerial Statement. Sadly, the earliest the register would be legislation-ready was 2021—so five years after David Cameron’s summit. Here we have an amendment put down in the Commons after very little of the preliminaries, as has been quite rightly pointed out, with no consultation and nothing of the sort that one would expect with such a radical procedure. It states:
“The Secretary of State must, no later than 31 December 2020, prepare a draft Order in Council”.
It is a “must”, not a “may”. The only part of this amendment which is, perhaps, acceptable, is the very first part, describing the reasonable assistance to be given to the Governments of the British Overseas Territories. However, I apprehend that that is being—and has been—given for some considerable time. I disagree with my noble friend Lord Naseby on only one point: the Minister, not only today but in responding to the amendment so eloquently moved by the noble Baroness, Lady Stern, on Report, vigorously defended the position of the Government and of the British Overseas Territories in their attempt to comply with the natural desire that we all have to stamp out corruption.
This amendment goes on to require an Order in Council to be laid before Parliament, but then provides that it ceases to have effect,
“if not approved by a resolution of each House of Parliament before the end of 28 days”.
I wonder if a resolution of that sort would meet with the approval of both Houses of Parliament, having regard to the hasty way in which this amendment was introduced and to the real difficulties that it will cause to our friends in the British Overseas Territories.
This amendment is ill thought out, no doubt born out of an entirely proper desire to stem the flood of corruption. However, in so doing it damages our relationship with the British Overseas Territories at a time when we need all the friends we can get outside this country. The amendment asks them to do what is required in a timeframe which is much shorter than that for this country: the mote and beam analogy is entirely appropriate.
The Earl of Kinnoull (CB)
My Lords, I declare my interests as set out in the register of the House, particularly those in respect of financial services. I support Amendment 22A, in the name of the noble Lord, Lord Naseby. How well we know what a stramash would result if Westminster sought to legislate for Scotland, in a matter of devolved competence, without even consulting the Scottish Parliament. Parliament developed the Sewel convention to cope with this very situation. We have heard, in a very powerful speech, from the noble and learned Lord, Lord Neuberger, and others just how this convention now expressly extends to our overseas territories.
The overseas territories are proud and sophisticated countries and deserve our respect. Constitutionally, our respect includes conventions. Money laundering is, rightly, a devolved matter for them. Bermuda, the Cayman Islands and the British Virgin Islands are large and sophisticated financial centres with well-respected regulators. Accordingly, to legislate without even consulting these Parliaments is conventionally wrong. This is why I feel that the Sewel convention should apply. Westminster has the power to intervene and should exercise this only when things are badly awry. However, evidence of “awryness” is, in fact, the other way.
As other noble Lords have mentioned, Pierre Moscovici delivered a report last year, and this was adopted by the European Council on 5 December. On page 5 of that 35-page report, the Council affirms that,
“these actions collectively taken by EU Member States are in line with the agenda promoted by the G20, the OECD and other international fora”.
None of the overseas territories is on the blacklist.
Annexe 2 of the adopted conclusions, which was updated twice in March this year, lists countries in various categories that have agreed to make changes by the end of this year; it is a large list. In other words, provided that changes are made by those countries, in the EU Council’s view they will be fully compliant with EU, G20 and OECD thinking in this area. Only four of the 14 overseas territories feature on the list of co-operative countries. The other 10 do not; in other words, they are absolutely clean in the eyes of Pierre Moscovici and his very substantial and hard-working staff. In that respect, the 10 that are clean are doing rather better than Switzerland or Hong Kong, which both appear on the list. Indeed, 29 countries are making changes to improve transparency; none of the overseas territories is listed. Twenty-seven countries are making changes to anti-BEPs measures, which are sophisticated corporate tax dodges; none of the overseas territories is listed. Twenty-eight countries, including Switzerland and Hong Kong, are making changes to amend or abolish harmful tax regimes. None of the overseas territories is listed. Nine countries, including Bermuda, Anguilla, the BVI and the Cayman Islands, have agreed to,
“address concerns relating to economic substance”.
Among those nine countries are Guernsey, Jersey and the Isle of Man, the only time their names appear in the annexe at all. Those three islands do not appear in the Commons amendment and, as other noble Lords have observed, I cannot believe that is fair.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, if it is not improper to say so, I hugely regret the decision of the Speaker in the other place not to have permitted the Government to suggest other solutions to this problem without the need to override the overseas territories’ sovereignty rights. However, we are now faced with the Commons amendment and, although I recognise how powerful the speeches of all those who have supported the amendment in the name of the noble Lord, Lord Naseby, have been, and although I am deeply sympathetic to the overseas territories for the wholly undeserved insult to which this provision now appears to expose them, for my part I hope that the amendment in the name of the noble Lord, Lord Naseby, will not be pressed. If it is, I should, regretfully, feel unable to support it. This is not an appropriate occasion for yet another vote in this House that would override the considered view of the elected Chamber—after a full debate, which I read in Hansard this morning—moreover, in circumstances in which it would be bound most mischievously to be misrepresented as a vote by a privileged, unelected body intent, no doubt in the view of some, on preserving opportunities for the continued secretion of illicit funds abroad. It would be a wholly false slur on us, but I fear that it would be placed upon us by many. I hope that this is not judged an unduly pusillanimous approach.
Assuming the new clause is agreed, one can only hope that, two and a half years hence, it will not have proved necessary to make the contemplated Order in Council and, accordingly, that we shall never learn whether the opinion of the noble Lord, Lord Pannick, on its prospects were it to be challenged by the Judicial Committee of the Privy Council, was or was not correct.
Lord Hope of Craighead (CB)
My Lords, I had not intended to speak in this debate. With respect to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, we owe a debt to the noble Lord, Lord Naseby, for tabling his amendment, because it has given us an opportunity to set the record straight. I hope that those in the affected overseas territories will take some comfort from the points in the very powerful speeches that have been made right across this House to express the great dismay at what happened in the other place.
I emphasise the opportunity that the noble Lord has given us to express our feelings, and personally endorse entirely what was said by the noble and learned Lord, Lord Neuberger, and the noble Earl, Lord Kinnoull, who set out very fully the arguments for supporting the noble Lord, Lord Naseby—although I know he will not press his amendment to a vote. It is very important, as I am sure the Minister will agree, that we have debated this and made the House’s position absolutely plain—while regretting that we have to accept the decision of the House of Commons.
Lord Judd (Lab)
My Lords, first let me say how much I appreciate the tremendous amount of work undertaken by the Minister in all that he has done on this front. I know that he has shown a great deal of personal commitment—as indeed did his predecessor. That should be put on record by all of us. We have moved a long way forward.
The noble Lord, Lord Naseby, said that he would not take lessons from Oxfam and Save the Children because of their record. I declare an interest: in the 1980s and 1990s I was a director of Oxfam and I have stayed very close to that organisation all my life, and remain as close now as I ever was—perhaps closer. I want to tell the noble Lord that the dismay and disgust in Oxfam at what happened in Haiti at the beginning of the decade cannot be overstated. There is profound dismay at what some people decided to do, and at the damage it has inevitably done both to the organisation and, more importantly, to thousands of people whom the organisation is now unable to help in the way that it would have liked because resources have inevitably dwindled.
That brings me to why this debate is so important. We have been discussing the technicalities of law and the constitution, and talking about the democratic rights of people—but what we are really talking about is justice, social responsibility and the accountability of wealth and power in the world. My noble friend Lord Anderson referred to the Select Committee’s report. It is a very important report, which we should all take very seriously, but it is operating in the context of parliamentary democracy and responsibility. All this Russian and other accumulated wealth that we are talking about—let us not dodge it; we have had allusions to property wealth finding its way to some of these territories as well—is not simply the wealth of those who are handling it; it is wealth that has come from countless ordinary people throughout society. That means that we all have a responsibility to ask: what are we doing, with teeth, to make sure that people who deceive, cheat and accumulate riches wrongly and unfairly are brought to account?
That is why I say how much I appreciate the tremendous work that the Minister has been doing. He has demonstrated the importance of diplomacy and the reality of the world that we live in. It is a matter not just of stating these things, however strongly we state them, but of how you move towards achieving what you want to achieve, and I take his arguments very seriously.
In the time that remains for this debate, I ask your Lordships to remember that we are talking not about money, although that may be a way of measuring the size of the problem, but about people—people from whom this money was accumulated and the countless people across the world for whose benefit it could be used through fair systems of taxation and through policies devised to meet the needs and help the development and emancipation of those who are exploited. This is not just a technical debate. I know that it is not fashionable to say it in this House but it has to be said: it is a debate about morality, justice and fairness. We have to stop sentimentalising about our commitment to those things; we have to make sure that there are teeth and muscle in meeting that commitment.
Perhaps I may come back for a moment to the challenge thrown down by the noble Lord, Lord Naseby, about my old organisation. I invite any of your Lordships to come and meet the staff, the trustees, the volunteers and the people across the world in the organisation who are busting a gut to make sure that something that happened at the beginning of the decade and let down the whole cause can never occur again.
Lord Northbrook (Con)
My Lords, I support the amendment in the name of my noble friend Lord Naseby. The Minister, to his credit, spent quite a lot of his speech arguing against government Amendment 22. I wondered why the Deputy Speaker did not call the government amendments and had some suspicions, now proved, that they were tabled too late. I add my disappointment at the seemingly lackadaisical attitude of the FCO. That, as my noble friend Lord Naseby said, is deeply disappointing when the issue is so important.
I should like to refer to one or two points that have been raised. First, none of the overseas territories ais on the EU blacklist of non-co-operative tax jurisdictions. Secondly, as I understand it, money laundering is a devolved issue for the overseas territories. Therefore, I question the assertion of the noble Lord, Lord Beith, that it comes under the area of international relations or international treaties. To legislate without even consulting their parliaments, let alone asking for their consent, is deeply wrong. In addition, the EU withdrew its proposal for public registers in December 2016 on the ground of concern about human rights. Could this be another case that the overseas territories could pursue?
Most countries are not adopting public registers. For the Caribbean overseas territories, the rival centres are the USA, Hong Kong and Singapore. They do not have public registers. To use an Order in Council for financial regulation, when the overseas territories have already adopted international standards, could expose the UK to legal challenge and be overturned on judicial review. I do not regard this as an exceptional circumstance where the UK Government should make laws.
The other place may think it good short-term politics, but the serious economic consequences and damage to our relationship with the overseas territories, and with the Commonwealth, will be long lasting. Perhaps one of the noble and learned Lords in the House will give their services pro bono for judicial review.
Lord Mackay of Clashfern (Con)
My Lords, I want to raise with the Minister the question of how the amendment we are discussing can come into force. It is not covered by the existing list of sections that come into force when the Bill receives Royal Assent. Therefore, it requires to be brought in by regulation. If it is correct—and I must say, I assume that the authorities who have spoken on it already are certainly correct—that it is contrary to the legal rights of the territories, it may be that the regulations seeking to bring this provision into force would be challengeable by judicial review.
In any case, we know from experience that the mere fact that something has been put into statute does not mean that it will happen; if it is subject to being brought into law by a ministerial action, it may never be brought into law at all. I have fairly profound experience of that myself. Certainly, considerable consideration of this by the law officers of the Crown would be required if the Government were going to make an order under the commencement provisions in respect of something that is legally challengeable.
I raise this question as a matter of justice, and justice of course requires that justice be done to all. One of the difficulties with this provision is that attempting to do justice in these territories may lead to injustice to these territories, in that the business they have will go to other places where there is no such regulation, doing nothing to help the ultimate situation and in fact bringing into effect a different type of injustice. Justice is a difficult thing to operate across the world, as we all know, and it may not be easy to effect it in this situation.
My main point is on the commencement provision and the extent of the Bill, which is subject to Privy Council regulation. There is a fair amount to be done before this becomes law.
Lord McNally
My Lords, I gladly gave way to the noble and learned Lord, Lord Mackay, because I know from long experience that his contributions are always of great help to the Minister at the Dispatch Box, as they were for me for a number of years.
The overseas territories cannot say that they have not been represented in the House this afternoon. There have been passionate speeches, not least by the noble Lord, Lord Naseby. I am not going to be so hypocritical as to advise him that he should not challenge the wisdom of the other place, having only a couple of hours ago extolled to your Lordships the very virtues of this House occasionally challenging the views of the other place.
Following on from the intervention of the noble Lord, Lord Judd, this has to be put in context. The noble and learned Lord, Lord Neuberger, said that we had no direct interest in this legislation, but when places are called the British Virgin Islands or the British Overseas Territories, we have a reputational responsibility we cannot avoid. If we do, we will damage our reputation. It is therefore right to look at this issue.
I was Minister for the Crown Dependencies—I see the noble Lord, Lord Faulks, nodding—and my noble friend Lord Beith and I worked closely together precisely to avoid the impasse we have now reached. We recognised that we had to work out the problems so that Britain could take on its proper responsibilities for these matters without doing too much damage to the dependencies which were trying to catch up. The way it has worked is one of the reasons why the dependencies qualify so well in the temperature-taking of various international organisations.
However, we have to go beyond the technicalities. Much of the cynicism, particularly among young people, is caused by issues such as the Panama papers and other exposures. Yes, the City of London has to take responsibility for the obscene avoidance of taxes and its co-operation with criminality in moving large amounts of money around in a dark economy. It is that which produces the cynicism that undermines our democracies. Ever since I have been in politics we usually blame the French, but we cannot simply use the argument that if we stop doing it, the French will do it. That is not an excuse for not doing the right thing and trying to set standards. David Cameron was quite right in trying to do this.
It is quite clear, not least from the interventions of the distinguished jurists we have in this House, that there is a problem. The solution was given by the noble and learned Lord, Lord Brown. My opinion of the Minister is boundless—he is going to have a couple of tough years ahead—and it would give him an opportunity to engage with the overseas territories to see whether the full implications of this legislation can be avoided by co-operation and initiatives, rather than the kind of process suggested by the noble and learned Lord, Lord Mackay. We have to see this in the context of a general public who are looking with nausea at what seems to be the ability of this money to find a home outside proper accountability.
I refer the noble Lord, Lord Naseby, to the briefing from 12 highly respected charities, and I understand the passion of the noble Lord, Lord Judd, in defending Oxfam. Although he did not name the Members of the other place, I will do so. In fact, Margaret Hodge and Andrew Mitchell are very well respected for their knowledge of and interest in these areas. We have to realise that the other place has been neither impetuous nor ill-informed in what it wants to do. But within the wider moral context set out by the noble Lord, Lord Judd, I hope that the Minister will find this debate useful in the very difficult diplomatic task that he now faces.
Lord Hunt of Wirral (Con)
My Lords, I declare my interests as set out in the register. I want only to say how much I agree with the noble and learned Lord, Lord Hope of Craighead, when he paid tribute to my noble friend Lord Naseby for giving us the opportunity to discuss this matter. When the noble Lord, Lord McNally, was in charge of our overseas territories, together with others, he embarked on a very positive consultation with them. What we are now trying to put right are a number of intemperate comments made in the House of Commons during its debate, and here I want to thank my noble friend the Minister for the way in which he opened the debate in this House. He recognised that a number of people in the British Overseas Territories feel outraged about some of those comments. However, as the noble and learned Lord, Lord Neuberger of Abbotsbury, pointed out, we are in the process of legislating for British Overseas Territories without proper prior consultation with their respective parliaments. I think it was my noble friend the Minister who said that this in effect disenfranchises their elected representatives.
Because of my connections to one of the territories, Bermuda, I am aware of the huge concern about some of the comments which have been made. It is sad that this year Bermuda’s constitution will celebrate 50 years of enactment. Moreover, Bermuda’s Parliament dates back to 1612 and is the third-oldest continuous parliament in the world, with the first assembly meeting in 1620. The Bermudians are very proud of that, and rightly so. When those intemperate comments were made, one person emailed me immediately to say that the Bermudian Mary Prince was the first slave to present an anti-slavery petition to these Houses and the first black woman to write and publish an autobiography in 1831. Her experience of the horrors she endured was the first of its kind to be documented by a slave and her words were instrumental in this House in contributing to the abolition of the slave trade in British colonies in 1838, some 30 years following the abolition of slavery in this country. We have to recognise the huge amount of pride among Bermudians about their history. I think that they have every right to feel insulted, which is the word that several of them have used to me.
Furthermore, under the Bermudian constitution, the application of an Order in Council to the island would be technically illegal, and I hope that my noble friend the Minister will think carefully about the words of my noble and learned friend Lord Mackay of Clashfern, in that there really must be a way through this somewhere. I suppose we ought to put on the record that for some 80 years Bermuda has been a world-leading public authority with a central register of beneficial ownership which long predates those in developed countries, including the United Kingdom. At every stage the island has shared this information upon request with legitimate international authorities. Moreover, Bermuda provides the information within 24 hours or, in extreme cases, two hours. I hope that my colleagues understand that we must have this debate to put on record the case for the overseas territories and what they have done so well for so long.
Baroness Hooper (Con)
My Lords, with all due respect to those who have spoken against the amendment, anybody listening to the arguments that have been put forward in support of my noble friend Lord Naseby’s amendment would happily follow him into the Division Lobby should he decide to test the opinion of the House. I declare a long-standing interest in the overseas territories: I am a vice-chairman of the Overseas Territories All-Party Parliamentary Group and an officer of many of those for individual overseas territories.
It seems extraordinary that these territories, which keep all the required records available to be shown to the appropriate authorities, should be required to publish them as a result of what seems to have been a last-minute decision in the other place. I had not intended to speak to the amendment, but I was tempted to do so to show my support for the overseas territories and my noble friend’s amendment.
Baroness Northover
My Lords, I will address the principles of this. The proposal was narrowly defeated in the Lords and has been debated for many years. Personally, I was delighted by the coalition across the parties in the Commons on this issue and I commend the Government on recognising that coalition. I especially commend the noble Baroness, Lady Stern, my noble friends Lady Kramer and Lord McNally, and others on their long fight on this issue. The transparency of public registers of beneficial ownership is the key issue and it will bring change. I have seen the positive effect of the unexpected spotlight provided, for example, by the Panama papers in some of the areas on which I focus in Africa. I have seen steady change and I welcome the decision to adopt public registers of beneficial ownership in the United Kingdom. London has not collapsed: Brexit may do more damage. I have seen the effect that bribery legislation in the United States, Europe and elsewhere has had on companies trading around the world and I have seen the change as a result, which we will see here too.
I recall some saying that the Bribery Act would differentially damage UK business. Ken Clarke saw those people off and rightly so. The noble Lord, Lord Naseby, did his right honourable friend Andrew Mitchell a disservice: he worked for many years in banking and spent many years supporting international development, so he does know both sides. Therefore our position is that we do not support the amendment of the noble Lord, Lord Naseby, for the reasons I have given of that change occurring across the world over time: it is very beneficial and if the overseas territories are concerned about losing that business then it is probably, as the noble Lord, Lord Anderson, indicated, business that they should not wish to have.
Lord Collins of Highbury
My Lords, I might as well begin by declaring what is not really a direct interest. My father was born in Bermuda and his father was born in Bermuda, so I think that entitles me to go and live there at some point and not have to deposit the $30 million that I think is currently needed if you want to live there. It is a very nice island, and I do love it and I love its people.
This debate is a reflection of constitutional concerns. There are concerns over the rights of people to determine their own laws and no one can disagree with that. But it is also a very strong moral debate, because we know that developing countries lose three times as much in tax avoidance as they get in all the international aid that is available to them. That is the scandal of this world we now live in. The Paradise papers and the Panama papers highlighted just how much of an issue this really is, and that is why we have such huge public concern. If we want to break the business model of stealing money and hiding it in places where it cannot be seen, transparency is the answer. I agree completely with the words of David Cameron in 2013 when he spoke about ripping aside “the cloak of secrecy” and repeated the well-known mantra that “sunlight is the best disinfectant”. I think that that commitment by David Cameron in 2013 is what this debate is about.
Last week, I had the opportunity of meeting the Prime Minister and Leader of the Opposition of the British Virgin Islands. They made their case very strongly to me about their concerns over this amendment. However, whatever position you are taking constitutionally, no matter what the concerns are, there is one thing that everyone agrees on, and that is that the scandal of money flowing out of countries and being hidden is something that has to stop. The Prime Minister of the British Virgin Islands acknowledges that transparency is important. We have heard about the actions of Bermuda and other places. David Cameron was actually trying to change the global position, to get to a position where we would have global agreement on addressing this issue.
How do we get global agreement? David Cameron believed it was by giving a lead. There is an issue here about reputation and being able to influence things. While we are in the European Union and saying, “You’ve got to ensure that all territories within the European Union comply with this”, and when we are in other global fora, we should be able to say that we will be acting on this. We know that the excuse of the overseas territories is often used by others to say, “If you’re not doing it there, why should we do it here?”. That is something that we have to address.
I absolutely understand the need to ensure that all the territories have the proper opportunity to consider this, but this is something that they have been acting on for some time. I respect the Minister’s undertaking to ensure that they have the necessary means as well as the necessary policy and advice.
Lord Northbrook
When the noble Lord talks about the relevant means, does that mean he expects the UK Government to substitute the revenue that these overseas territories are going to lose? He may say that some dodgy money will go out there, but some reputable people with money out there will take their money elsewhere. Is he saying the UK Government will have to take their place with our duty of supporting these overseas territories?
Lord Collins of Highbury
I am grateful to the noble Lord for raising that point. We have been talking about money flowing out. We have had debates elsewhere. I have also spent time working in Gibraltar and I know that on financial matters—Bermuda is another good example—it has built its reputation on having proper transparency and controls. That is what we need to establish: that there is a good way of doing this that will help expand the industry. Reputational interests are incredibly important.
The noble and learned Lord, Lord Brown, is absolutely right that we do have time; the point was also addressed by the noble and learned Lord, Lord Mackay. We have had some considerable time already on this issue, but we have time to ensure that we can get everybody on board with this principle. The only way we will get global agreement is for the United Kingdom to go into those international fora and say, “No more—we need transparency”, because transparency is what will ensure that we can find all those activities, particularly tax avoidance.
Lord Faulks
The noble Lord says that we have time. I understand why he says that. But the provision of the new clause says that all this must be done—the Order in Council must be drafted—no later than 31 December 2020. Is he satisfied that that is sufficient time, given the complexities?
Lord Collins of Highbury
Since David Cameron first made this commitment in 2013, there has been a substantial amount of time. When people say, “When will this come into effect? Will it be done by regulation? What is the commencement date?”, all these things are important considerations, but what the world sees, what the public see—what the citizens of developing countries have seen—is that this country makes a declaration in 2013 and by 2020 nothing has happened. That is what Parliament decided; that is what the debate in the other place was about. I stress that the debate saw cross-party concern about this issue. They know that the court of public opinion will judge this Parliament if we fail to act on the biggest problem that the world faces.
We have had debates in this Chamber about ODA and development support. I have argued that we should create a world where people are self-sufficient; we do not want people to be dependent on aid, but we are giving the means for that aid to be spirited away. That is what we need to stop.
Lord Ahmad of Wimbledon
My Lords, I am grateful to all noble Lords for an extensive, well-reasoned, well-argued and expert debate in your Lordships’ House. I am grateful in particular to my noble friend Lord Naseby, who presented a case for the overseas territories which I empathise with. Noble Lords who were in the Chamber when I opened this debate would have heard the points that I made. I will respond to a few specific points and questions raised, but I want first to set the record straight. First and foremost, the Government’s position is what it was when the Bill left your Lordships’ House. As the noble Baroness, Lady Northover, said, the Government defeated the amendment tabled by the noble Baroness, Lady Stern. That was done because of reasoned debate and expert insight, which has been reflected in your Lordships’ House again today.
As my noble friend Lord Hunt said, my noble friend Lord Naseby has allowed us all an opportunity again to demonstrate the wisdom, insight and expertise your Lordships have, but the point of principle highlighted by the noble and learned Lord, Lord Brown, remains: notwithstanding the valuable discourse that we have had, the House of Commons has sought to vote otherwise. In that regard, I want to clarify a few points.
My noble friend Lord Northbrook mentioned that it was a government amendment. Of course, it was not; it was tabled from the government Benches—it was a joint amendment. In light of the support that the amendment had gathered, the Government decided not to oppose it. My noble friend Lord Naseby referred to the Government’s amendment being tabled late in the day. Let me assure my noble friends and your Lordships’ House that we had been in extensive negotiations with many Members of Parliament, including those of other parties and most notably the Scottish National Party, on the important issues of the constitution and about this Parliament voting on something that would apply to parliaments that did not have a say in the debate taking place—a point well made by the noble Earl, Lord Kinnoull. We were trying to find a way forward that respected both the drive for transparency, which many noble Lords have raised today, and the constitutional settlement with the overseas territories and Crown dependencies. It was also important that we continued to do this to reach the cross-party consensus that was being sought. We brought further amendments forward on 30 April and brought that to the attention of the House to find that consensus. That is why conversations were still ongoing throughout that morning. The amendment we tabled was taken as in order but, as I said in my opening remarks, it was not then debated or taken for debate by the Speaker of the House of Commons.
That said, we have had an extensive debate. The noble Lord, Lord Anderson, who I see is not in his place as such, asked for comment on the Foreign Affairs Committee’s report. We are looking at that report, which was issued this morning, carefully but the Prime Minister has made the general principle clear. I say to all noble Lords that there is not a difference between ourselves and the Governments of the overseas territories. Everyone wants to see us tackle illicit finance effectively. Let me assure the noble Lord, Lord Collins, that it remains a priority for this Government and that we will continue to take a leading role in this respect.
The noble Lord, Lord Beith, my noble friend Lord Naseby and my noble and learned friend Lord Mackay all touched on the important issues of the constitutional arguments. Our position in the light of the circumstances set out in the 2012 White Paper has not changed. We believe that the fundamental structure of our constitutional relationships is the right one. Of course, we retain the power to legislate directly and have done so, as I said in my opening remarks, but in this case we would prefer not to have done so without consent. However, as we have all heard, we are all in this situation since the decision taken by the House of Commons.
My noble and learned friend Lord Mackay raised how this provision will come into force. As I always do, I listened carefully to his insight on this matter and I can confirm that it will not come into force through Royal Assent; it will come into force and commence by regulations. We need to establish the detail, as he said, but I listened carefully to the points he raised in this respect.
My noble friend Lord Faulks asked about the next Bill and I again pay tribute to his efforts in this regard. Let me assure him once again that we have committed to bring forward legislation early in the next Session on the important issue, which he has raised during debate on this Bill, of the register of overseas companies that own UK property. We anticipate that that register will be ready for use in 2021.
The noble and learned Baroness, Lady Butler-Sloss, pointed to other jurisdictions such as Gibraltar. At this point, I acknowledge the contributions of my noble friend Lord Naseby and other noble friends, and noble Lords across the Chamber, who acknowledged the efforts that our overseas territories have made. While I totally accept the principle highlighted by the noble Lord, Lord Collins, and the noble Baroness, Lady Northover, of the importance of transparency—of seeing that flow of illicit finance coming to an end—let us not forget that, in the UK, we have a public register. This is not a panacea to end this issue. It needs concerted action, which is why I have been vocal in my defence of the overseas territories and not just, as the noble Lord, Lord Beith, pointed out, because I am the Minister responsible. Genuinely, when we look at the track record from the overseas territories—the exchange of notes that are operational and which we are reporting back on, or the accessibility for tax and law enforcement agencies—those jurisdictions have been co-operating fully and effectively. That is why I, as the Minister responsible, made that robust defence of the overseas territories. Not only has progress been made; the overseas territories are ahead of the curve. There is just not a case for not doing something until the others catch up, as they are already fully co-operating.
Several noble Lords alluded to the EU list. Anguilla, Bermuda, the BVI, the Cayman Islands and all three Crown dependencies are not included on any list because they are deemed to have been holding back by the EU Code of Conduct Group. They have been put on lists and acknowledged for being co-operative jurisdictions. All our Crown dependencies and overseas territories with financial centres are already committed to global tax transparency standards, which we all agree on, and the commitments that they have made go beyond those. I say again for the record that there is no grey list. All the overseas territories, as the noble Earl, Lord Kinnoull, highlighted, have made great strides, ahead of many other jurisdictions, in ensuring that they adhere not to any international standard but to the principles of ensuring that they can address the fact that law authorities and tax authorities can access such registers.
That said, we are in a position where the other place has decided—on a cross-party basis in certain respects, as the noble Lord, Lord Collins, said—that it is its will to go forward with public registers for the overseas territories, and it is the Government’s position that we have accepted that point of the elected Chamber. In doing so, though, I assure my noble friend Lord Naseby and others who have spoken about the overseas territories that from a government perspective we will seek to ensure that we collaborate and co-operate fully and work with the overseas territories to ensure that we get the results we want. We do not want to disable the overseas territories and we do not want them to lose out, but there is a reality of decisions that this Parliament has taken, and they have implications. We need to ensure that we work effectively and collaboratively with those overseas territories to ensure that we can still sustain and strengthen their economies for years to come.
I put on record for my noble friend Lord Naseby that I am very grateful to him for once again allowing me to articulate the Government’s position and my position as the Minister responsible for the overseas territories. I am also grateful for, as I am sure my noble friend has acknowledged, the great and wise expertise that we have heard from around your Lordships’ House, demonstrating again the wise insight on this subject and many. However, mindful of the fact that the other place has decided to pursue the issue of public registers with the overseas territories, an amendment that the Government have now accepted, I hope that after listening to the debate my noble friend is minded to withdraw his amendment.
Lord Naseby
My Lords, those were fine words from the Minister, and we have heard fine words from my colleagues who have supported me this evening. I hope those fine words have some strength behind them. Many noble Lords will know that I have been in the two Houses for 44 years. I deeply respect the rights of the House of Commons, so it is not with an easy heart that I resist the temptation to test the views of this House.
I have reflected deeply on this. I am trusting my noble friend on the Front Bench to move this forward. As my noble and learned friend Lord Mackay of Clashfern said: justice for all—which means, in particular, justice for all the overseas territories. I shall watch, be vigilant and challenge, but on this occasion I beg leave to withdraw the amendment.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 23.
“( ) Nothing in this Act affects any power exercisable in relation to ships by virtue of the prerogative of the Crown.”
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendment 24.
“(3) Regulations under section 1 may amend the definition of “terrorist financing” in section 43(4) so as to remove any reference to a provision of regulations that is revoked by regulations under section 1.
(3A) Regulations under section 1 may amend the definition of “terrorist financing” in section 43(4) so as to add a reference to a provision of regulations under section 1 that contains an offence, but only if—
(a) each purpose of the regulations containing the offence, as stated under section 1(3), is compliance with a UN obligation or other international obligation, or
(b) paragraph (a) does not apply but the report under section 2 in respect of the regulations containing the offence indicates that, in the opinion of the appropriate Minister making those regulations, the carrying out of a purpose stated in those regulations under section 1(3) would further the prevention of terrorism in the United Kingdom or elsewhere.”
Lord Ahmad of Wimbledon
I am sure the House willed that I move this formally but for good order I should speak to it, although I am sure I am not expressing the Deputy Speaker’s sentiments in any way.
This group contains the remainder of the amendments to the Bill made in the other place. Amendment 26 seeks to clarify the interaction of the powers in the sanctions Bill and the European Union (Withdrawal) Bill. It has been prompted by amendments to the European Union (Withdrawal) Bill tabled by the Government during its passage. Amendment 26 does not change the intent of the sanctions Bill, nor does it change the scope of the powers contained in the Bill. It makes clear that any restrictions in the European Union (Withdrawal) Bill on the modification of retained EU law do not prevent sanctions Bill powers being exercised as they were intended. The Government believe that the amendment is necessary to provide certainty and avoid any confusion about the interaction of the two Bills in this area.
Amendment 29 is a routine procedural amendment that removes the privilege amendment inserted in this House, which ensures that there are no amendments that would raise taxes or impose charges.
Amendment 24 makes changes to the ability to update the definition of terrorist financing, fulfilling a commitment that the Government made on Report in your Lordships’ House. It retains the ability to remove obsolete references from the definition, but restricts the ability to add new terrorist financing measures by way of sanctions regulations. Those new measures can now be added to the definition of terrorist financing only if the new measures are made either for the purpose of compliance with international obligations, or for the purpose of furthering the prevention of terrorism in the UK or elsewhere.
Noble Lords will be aware that Schedule 2 to this Bill, as already approved by your Lordships’ House, provides an express power permitting the Government to make anti-money laundering regulations that correspond or are similar to the money laundering regulations 2017, or to amend or revoke those regulations. These powers will enable the Government to update the UK’s anti-money laundering regime to reflect evolving international standards and address emerging risks.
Amendment 33 is also consequential on amendments to the EU withdrawal Bill, and confirms that these powers can be used once we leave the EU, in connection with the EU funds transfer regulation—which regulates payment service providers—and other EU-level legislation made under the fourth money laundering directive. This applies in particular to the existing EU list of high-risk third countries, in connection with which enhanced due diligence is required. This amendment provides legal certainty regarding the Government’s ability to update this legislation, which will be part of UK law, using the powers conferred through the Bill. This will ensure consistent treatment of the money laundering regulations 2017 and the closely interlinked legislation which also came into force last year. With those explanations, I beg to move.
Baroness Northover
I could say that I am going to test the opinion of the House, but I do not think that that would work. I just take the opportunity of this group to thank the Minister and the Bill team for their careful and constructive engagement on the Bill. Obviously, we would prefer that we were not having to take this legislation through, but if we leave the EU it will indeed be needed.
I also thank those on these Benches who have assisted on the Bill: my noble friends Lady Sheehan and Lord McNally and, especially on the anti-money laundering part, Lady Kramer and Lady Bowles, who single-handedly analysed and proposed restructuring of that part of the Bill and engaged with the Bill team and the Treasury, drawing on her experience as a former chair of the economics committee of the EU.
I also thank the noble Lord, Lord Collins, and his team, and the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for their deep and constructive engagement.
As the Minister quickly discovered, although the subject matter of sanctions and anti-money laundering is not exactly controversial, the means of tackling it and the carryover into wider Brexit legislation in terms of powers taken meant that this was a forerunner to the EU withdrawal Bill. Above all, I thank the Minister and his team for their patience and engagement. Judging by the previous group, it sounds as though he still has much to do.
Lord Ahmad of Wimbledon
My Lords, I am grateful to the noble Baroness, Lady Northover, and again put on record my thanks to her—and to the noble Baroness, Lady Bowles, in particular, on the issue of money laundering. In the same way, I extend my thanks to the Labour Front Bench, particularly the noble Lord, Lord Collins, and others in your Lordships’ House.
As I said when the Bill passed from your Lordships’ House, we have seen co-operation and your Lordships at their best. I said right at the beginning that we were in listening mode, and I think that has been reflected during the course of the Bill in both your Lordships’ House and the other place. I hope that the noble Baroness is also minded to note that we learn from the wise words of others such as the noble Lord, Lord McNally, and that in introducing this group, I resisted using the word “technical”. I commend the amendments.
Lord Ahmad of Wimbledon
That this House do agree with the Commons in their Amendments 25 to 34.
“Duties to lay certain reports before Parliament: further provision
(1) In this section “a reporting provision” means section 2(4), (Report in respect of offences in regulations)(2) or 40(2) or paragraph 20A(2) of Schedule 2 (duties to lay before Parliament certain reports relating to regulations).
(2) Where more than one reporting provision applies in relation to particular regulations under section 1, the reports to which those provisions relate may be contained in a single document.
(3) If a reporting provision is not complied with, the appropriate Minister who should have complied with that provision must publish a written statement explaining why that Minister failed to comply with it.
(4) Subsection (5) applies where a reporting provision applies and—
(a) a statutory instrument containing the regulations concerned, or
(b) a draft of such an instrument, is laid before the House of Commons and House of Lords on different days.
(5) Where this subsection applies, the reporting provision in question is to be read as requiring the laying of a copy of the report to which that provision relates—
(a) before the House of Commons at the time the instrument or draft mentioned in subsection (4) is laid before the House of Commons, and
(b) before the House of Lords at the time that instrument or draft is laid before the House of Lords.”
“Retained EU rights
(1) If and to the extent that anything in the European Union (Withdrawal) Act 2018 would, in the absence of this section, prevent any power within subsection (2) from being exercised so as to modify anything which is retained EU law by virtue of section 4 of that Act (saving for certain rights etc), it does not prevent that power from being so exercised.
(2) The following powers fall within this subsection—
(a) any power conferred by this Act, or by regulations under this Act, on a Minister of the Crown within the meaning of the Ministers of the Crown Act 1975 (however that power is expressed);
(b) any power conferred by regulations under Schedule 2 on a supervisory authority.
(3) In this section “modify” has the same meaning as in the European Union (Withdrawal) Act 2018.”
“( ) section (Periodic reports on exercise of power to make regulations under section 1);”
“27A(1) For the purpose of the enforcement of any relevant prohibition or requirement, regulations under this paragraph may modify any provision of CEMA which—
(a) determines whether any thing is liable to forfeiture under CEMA by virtue of a contravention of the prohibition or requirement,
(b) provides for the treatment of any thing which is so liable by virtue of such a contravention, or
(c) confers any power exercisable in relation to a ship, aircraft or vehicle.
(2) In sub-paragraph (1) a “relevant prohibition or requirement” means a prohibition or requirement—
(a) imposed for a purpose mentioned in Part 1, and
(b) specified in the regulations under this paragraph.”
(a) creating criminal offences for the purposes of the enforcement of requirements imposed by or under regulations under section 43, and
(b) dealing with matters relating to any offences created for such purposes by regulations under section 43,
but see paragraphs 18 and 19.”
“20A(1) In this paragraph “relevant regulations” means regulations under section 43 which create any offence for the purposes of the enforcement of any requirements imposed by or under regulations under section 43.
(2) The appropriate Minister making any relevant regulations (“the Minister”) must at the required time lay before Parliament a report which—
(a) specifies the offences created by the regulations, indicating the requirements to which those offences relate,
(b) states that the Minister considers that there are good reasons for those requirements to be enforceable by criminal proceedings and explains why the Minister is of that opinion, and
(c) in the case of any of those offences which are punishable with imprisonment—
(i) states the maximum terms of imprisonment that apply to those offences,
(ii) states that the Minister considers that there are good reasons for those maximum terms, and
(iii) explains why the Minister is of that opinion.
(3) Sub-paragraph (4) applies where an offence created by the regulations relates to particular requirements and the Minister considers that a good reason—
(a) for those requirements to be enforceable by criminal proceedings, or
(b) for a particular maximum term of imprisonment to apply to that offence,
is consistency with another enactment relating to the enforcement of similar requirements.
(4) The report must identify that other enactment.
(5) In sub-paragraph (3) “another enactment” means any provision of or made under an Act, other than a provision of the regulations to which the report relates.
(6) In sub-paragraph (2) “the required time” means the same time as the draft of the statutory instrument containing the regulations is laid before Parliament.
(7) This paragraph applies to regulations which amend other regulations under section 43 so as to create an offence as it applies to regulations which otherwise create an offence.”
“(a) subject to any modifications the appropriate Minister making those regulations considers appropriate, make provision corresponding or similar to any provision of retained money laundering Regulations as those Regulations have effect immediately after being saved by section 2 or 3 of the European Union (Withdrawal) Act 2018;
(b) amend or revoke any retained money laundering Regulations.
(1A) In sub-paragraph (1) “retained money laundering Regulations” means— (a) the Money Laundering Regulations 2017;
(b) Regulation (EU) 2015/847 of the European Parliament and of the Council of 20 May 2015 on information accompanying transfers of funds;
(c) any provision made under Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing by virtue of Article 290 or 291(2) of the Treaty on the Functioning of the European Union.”
“( ) In paragraph 15 (offences), any reference to regulations under section 43 includes the Money Laundering Regulations 2017.
( ) In paragraph 20A (report in respect of offences)—
(a) the reference in sub-paragraph (1) to requirements imposed by or under regulations under section 43 includes requirements imposed by or under the Money Laundering Regulations 2017, and
(b) the reference in sub-paragraph (7) to other regulations under section 43 includes the Money Laundering Regulations 2017.”