Sanctions and Anti-Money Laundering Bill [ Lords ] (First sitting)

Alan Duncan Excerpts

Tuesday 27th February 2018 Public Bill Committees

[The Chair]

Before we begin, can I ask everyone to ensure that all electronic devices are turned off or switched to silent mode? I remind Committee members that Mr Speaker says that teas and coffees are not allowed during sittings. Today, we will consider first the programme motion on the amendment paper, then a motion to enable the reporting of written evidence for publication.

[The Minister for Europe and the Americas (Sir Alan Duncan)]

I beg to move,

That—

(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 27 February) meet—

(a) at 2.00 pm on Tuesday 27 February;

(b) at 11.30 am and 2.00 pm on Thursday 1 March;

(c) at 9.25 am and 2.00 pm on Tuesday 6 March;

(2) the proceedings shall be taken in the following order: Clauses 2 to 5; Schedule 1; Clauses 6 to 18; Clause 1; Clauses 19 to 43; Schedule 2; Clauses 44 to 50; Schedule 3; Clauses 51 to 56; new Clauses; new Schedules; remaining proceedings on the Bill.

(3) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 6 March.

May I take this opportunity to welcome you to the Chair, Mr McCabe, and say what a pleasure it is to serve under your chairmanship? Because the Bill in its principles enjoys cross-party support, in the spirit of what I believe is cross-party agreement I am happy to offer to any member of the Committee the services of my officials, should they want any briefing or advice on any detail of the Bill.

Question put and agreed to.

[The Chair]

The deadline for amendments to be considered during the first two line-by-line sitting days of the Bill has passed. The deadline for amendments to be considered on the third line-by-line sitting day is the rise of the House on Thursday.

Resolved,

That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Sir Alan Duncan.)

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[Helen Goodman]

May I say what a pleasure it is to see you in the Chair on this bright and sunny, if cold, morning, Mr McCabe? I will not press the amendments, as they are simply a vehicle enabling me to ask a question: on trade sanctions, is there a loophole in relation to the Isle of Man?

[Sir Alan Duncan]

I thank the hon. Lady for her question. It is never unhelpful to be able to clarify a point of detail of this sort, and I hope I can now do that to her satisfaction.

Amendments 29 to 31 would cause the Bill to deviate from the established practice in export controls and customs matters where transfers of goods to the Isle of Man are not classified as exports and imports. The Isle of Man is part of a joint customs and indirect tax area within the United Kingdom, and across all customs matters goods transferred to the Isle of Man are not said to be exported from the United Kingdom, and goods transferred from the Isle of Man are not said to be imported into the United Kingdom. That is a long-standing customs arrangement and has been reflected in legislation as well as in custom and practice.

The Isle of Man is integrated into HM Revenue and Customs’ CHIEF—customs handling of import and export of freight—computer system, which enables it to operate UK customs. The Isle of Man mirrors UK export control and sanctions legislation and makes licensing decisions on exactly the same basis as the UK. The amendment, if it were carried, would put sanctions policy out of step with export control and customs. Only goods covered by sanctions legislation would be affected by this change and would in essence be subject to the same export controls twice. If a good were travelling to a sanctioned destination, via the Isle of Man under a licence, it would require one licence from the UK and another from the Isle of Man. The amendment would cause procedural and legal difficulties and increase administrative burdens for business and Her Majesty’s Government, and all for no observable benefit

I hope that I have persuaded the hon. Lady and given a satisfactory explanation in response to the amendment, which in any event she does not intend to press.

[Helen Goodman]

That is absolutely fine.

[Anneliese Dodds (Oxford East) (Lab/Co-op)]

Like my hon. Friend, I am grateful to you for chairing the Committee, Mr McCabe.

I am also grateful to the Minister for his explanation. Very briefly, he referred to the Isle of Man’s treatment under the CHIEF system, but we are moving to the contractual disclosure system—CDS—for customs policies. That should have happened by last year, but it has been delayed and there are many concerns about it. Will the Minister assure me that the Isle of Man will be treated properly in any new customs arrangements, and that is the Government’s understanding of the situation?

[Sir Alan Duncan]

Although I am not familiar with the exact details of the system the hon. Lady mentions, I think I can say confidently that the Isle of Man will be treated in the way that I described in my previous remarks.

[Helen Goodman]

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 1 agreed to.

Clause 6

Aircraft sanctions

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[Alison Thewliss (Glasgow Central) (SNP)]

I am happy to rise in support of the amendment moved by the hon. Member for Bishop Auckland (Helen Goodman). She makes some good points. We need to be mindful that there are people who are trapped in difficult situations, and if getting on a plane or into a boat is the only way to get out of that situation, and the alternative is almost certain death—particularly for people in Syria and Yemen—they will do that. We need to seek protection for those operating services for such people. I do not know whether Migrant Offshore Aid Station or Médecins Sans Frontières or any of those other people operating boats in the Mediterranean could fall foul of any sanctions regime. It would be good to get reassurance from the Minister on that, because those are important humanitarian services that rescue people and ensure that they are kept safe.

People are taking a huge risk. Recently there was a case of Somali refugees who sought first sanctuary in Yemen and then tried to leave Yemen because it is so dangerous there, and ended up being shot out of the sea by an airstrike. There are huge risks for people in the choices they make when they are trying to flee. We need to do everything we can to protect them in their efforts to get to a position of safety. I support the amendment.

[Sir Alan Duncan]

I genuinely thank hon. Members for raising this issue, which we dwelt on at some length on Second Reading. As the hon. Member for Bishop Auckland says, I am a former DFID Minister, so I feel these issues deeply. I am familiar with not only the plight of refugees, but the legal void in which they sometimes have to try to survive. The amendment is a laudable attempt to address that very issue and I make no criticism whatsoever of the intent behind it, because it is one that we all share.

The Government take seriously the impact that sanctions might or can have on a country’s civilian population. We also acknowledge the important work of NGOs and other humanitarian organisations working in difficult and often threatening situations—look at what is happening in Ghouta in Syria at the moment. The amendments are designed to exempt ships or aircraft from sanctions if they are being used to transport refugees. I agree with the principle, but in my opinion this is not the right way to achieve the desired effect.

I hope that hon. Members recognise that refugee status—and hence the ability to deem someone a refugee under the amendment—is usually granted after a person has fled from their country of origin: once they have reached safety, they can apply for asylum and be recognised as refugees. The amendment would not cover persons fleeing from their country of origin in order to claim asylum. I suspect that that does not reflect the good intentions of those who tabled it.

As I said earlier, the UK is very proactive in ensuring that NGOs can operate in countries subject to sanctions by providing licences and exceptions. In fact, the Bill would make it easier by allowing us to draft exceptions and grant general licences specifically aimed at assisting humanitarian activities, which include assisting refugees or displaced persons. There are good reasons why broad prohibitions are applied to a country, and licences are used to provide targeted exceptions. If we were to provide a general exception for ships and aircraft in those circumstances, aside from the practical difficulty with these amendments that I have mentioned, it could be subject to abuse and would be pretty well impossible to enforce.

--- Later in debate ---

[Helen Goodman]

Will the Minister give way?

[Sir Alan Duncan]

I will just take this through to the logical conclusion, and then of course I will give way. I am sure the hon. Lady can understand the difficulty that the situation I described would pose in respect of a person on a ship or aircraft making such a claim.

[Helen Goodman]

I understand the Minister’s point, but since he accepts the humanitarian case we are making, why did he not put down his own amendments to cover those asylum seekers, as well as refugees?

[Sir Alan Duncan]

Because the provision is already in the Bill. I would argue that it is in the Bill to the satisfaction of the hon. Lady, because the system of licences and exceptions in the Bill offers the best way to maintain the integrity of sanctions, while ensuring that NGOs can provide humanitarian support to refugees, asylum seekers and displaced persons. It is often the displaced persons who are greatest in number.

That is not a difference of principle; that is simply our interpretation of why this proposal would not work in practice and why the Bill does work in practice and achieves the objectives of the amendments that the hon. Lady has tabled. On that basis, I ask her not to press her amendments, because provision is in the Bill to meet the demands that she seeks.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Sir Alan Duncan]

It might be helpful, given the debate we have had, to rehearse the arguments for why we think clause 6 deservedly stands as it does without amendment. Clause 6 introduces provisions to ensure that the Secretary of State has the power to impose sanctions in respect of aircraft, most notably disqualified aircraft. Sanctions on transport form an important part of the suite of measures available to the UK. As a permanent member of the United Nations Security Council, the UK fully supports the imposing of transport sanctions on prescribed countries.

These powers would allow prohibitions and requirements to be introduced and directions to be issued to control the movement of disqualified aircraft as defined in subsection (6). Directions include preventing disqualified aircraft from entering UK airspace or, if they have already done so, detaining them in a UK airport or compelling them to leave UK airspace. More generally, where a designated person has a prescribed interest in an aircraft, the UK will ensure that this aircraft cannot be registered on the UK register. The UK will also have the power to remove such aircraft from the register. This clause also enables the UK to prevent aircraft from being registered in the prescribed country. Finally, the provisions would enable the UK to prevent British-controlled aircraft from overflying or landing in a prescribed country.

These clauses, therefore, will allow the UK to prevent the use of aircraft—where transport sanctions apply—by people connected to sanctioned countries such as North Korea. The powers in this clause are necessary for the UK to be able to develop and enforce transport sanctions and meet its international obligations. The implementation and enforcement of transport sanctions are a crucial element of the UK’s future foreign policy, and I believe this clause should stand part of the Bill.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Clauses 7 to 14 ordered to stand part of the Bill.

Clause 15

Exceptions and licences

[Helen Goodman]

I beg to move amendment 18, in clause 15, page 14, line 41, at end insert—

“(3A) Regulations must include provision for the establishment of a fast-track process for dealing with requests for exceptions and licences for humanitarian purposes.”

This amendment would mean that regulations have to provide a fast-track process for dealing with any requests for exceptions and licences for humanitarian purposes.

--- Later in debate ---

Humanitarian NGOs generally accept the need for regulation and due diligence, but the current weight of compliance demands by their banking partners is often seen as disproportionate—I have some quite interesting evidence of that, which I will come to in a minute—resulting in a need to spend donor money on additional staff and due diligence tools, as well as in increased administration costs, aid delivery and financial transfer delays, and, in some circumstances, even the closure of programmes to which funding cannot be delivered. Donors, and particularly Government agencies such as DFID, appear to have done little to alleviate this burden of compliance—I am not sure when the Minister for Europe left DFID.

[Sir Alan Duncan]

2014.

[Helen Goodman]

Right. The situation has left responsibility for the due diligence required for funds transfers with humanitarian NGOs operating in high-risk zones.

Banks and NGOs must cultivate relationships, with the support of the Charity Commission, that allow for reciprocal education with respect to compliance expectations, operating risks and mitigation steps. The Government therefore have a challenge in this situation. They need to provide guidance and clear messaging where there is ambiguity at the moment with respect to sanctions and counter-terrorism legislation.

I want to give the explanation for the fast-track process. We have a serious situation in Syria. Everyone knows that 400,000 people have died; 5 million have sought refuge overseas; 6 million have been displaced internally; and half a million people are in besieged areas. Yet this is what is going on. Saleh Saeed, the then chief executive of the Disasters Emergency Committee, said a couple of years ago about Syria:

“The DEC is concerned that the current regulatory regime is significantly slowing and seriously complicating legitimate transfers of much needed funds to pay for humanitarian aid operations inside Syria.”

The lengthy process for getting the money means that on one occasion a programme supporting 10,000 people simply had to close in 2013.

Emanuela Rizzo, who works for what I think is a French organisation, Terre des Hommes, is quoted as saying:

“Receiving money from Europe to Syria is a disaster,”.

The report states that the organisation made a request and waited:

“After 15 days of delay, it contacted the bank in Italy, which informed the NGO that the transfer had been rejected…The bank required a long list of documents, including the NGO’s agreement with the UN Office for Coordination of Humanitarian Affairs, its memorandum of understanding with the Syrian Arab Red Crescent, a letter vowing not to fund ‘terrorist’ groups, and a list of implementing partners.

After two months and a 200 euro…fee, TDH was able to get the money transferred through a different Italian bank with an affiliate in Syria. ‘But it’s becoming incredibly difficult’”.

The report states:

“Other aid agencies struggling to transfer money have resorted to wiring money to banks in Lebanon and physically driving across the border to pick it up. Aid coming in via social solidarity networks has had to do the same.

Since the beginning of the Syrian crisis in 2011, the USA, European Union, Turkey and the League of Arab States…have imposed a series of sanctions on Syria’s arms, banking, energy and oil sectors”—

all for perfectly good reasons—

“as well as on specific individuals, with the stated aim of stopping state repression of protests, initially, and later, of weakening the government.”

However, the sanctions regime has had significant unintended repercussions and second-order effects.

About 15 months ago, when I was on the Treasury Committee, we took evidence from the Charities Aid Foundation and UK Finance. We had some interesting exchanges, so I asked the Charities Aid Foundation what representations it had made. The witness said:

“We worked, for example, in changing proposition 8 in the FATF arrangements, which has a presumption that charities are high risk. We have now had that changed to a risk-based approach”.

However, that

“has created terrible distortions in the assessment of charities.”

The witness added:

“The best example that I could give you is in Egypt, which is scored very highly by FATF because it follows explicit rules in the treatment of charities. Yet all we have seen is a closing of civil society space in Egypt, where charities are simply closed down. That produces the best result, as far as FATF is concerned, because there is then no risk, since they are inherently high risk. Many of these charities are the ones that criticise the Government, so there is a real adverse effect coming through from some of these actions.”

On the question of compliance costs, I asked about the Financial Conduct Authority’s report, which had said that one large, well-known

“charity required £40k of advice on sanctions regimes in order to maintain operations in a number of jurisdictions.”

The Charities Aid Foundation witness said:

“The large international NGOs are spending significant amounts of money on compliance...DFID’s own recommendations in terms of the funding that it provides is that 7% of the cost of any grant that it gives may be used on compliance costs.”

In practice, he said, it is often twice that: between 7% and 14%. It is underwhelming for people who write their cheque for £100 to the Red Cross to know that only £86 of it gets through because the other £14 is spent on lawyers in the UK.

The Charities Aid Foundation would also like more guidance about acceptable risk. Its witness said:

“You could have Treasury-approved guidance, developed along the lines of the guidance that is available from the Joint Money Laundering Intelligence Taskforce for other areas of activity.”

There is a question as to whether we want general exemptions for large, well-known organisations such as the Red Cross or UNICEF, or particular, small licences. Our view is that there is a lot of confusion, and that the individual licences system is not working that well. It is not only non-governmental organisations that agree with that, but the banks too.

UK Finance says it is

“imperative that the UK legislative architecture clearly defines how new legislation will be applied…Our members are clear that the UK’s departure from the EU offers a timely opportunity to create a domestic licensing regime”.

It is asking for a consultation, because that is a complex matter. It is not something that we can sort out in five minutes or in a Bill Committee of amateurs—albeit well-intentioned ones—such as ourselves. It needs expertise.

Alongside the legislation, UK Finance is asking for consideration through

“a wider dialogue on longer-term sanctions implementation.”

It says that

“the impending UK legal sanctions framework will…introduce a new and extremely important dynamic…This will result in an increased scrutiny among globally operating corporate and financial institutions on the approach that will be taken by the UK towards pursing unilateral sanctions and extra-territorial enforcement activity…we would not wish either EU or overseas business to withdraw from the UK due to legal uncertainty, or for it to impede business reacting to potential future relaxation of sanctions”.

The situation is complex. UK Finance does not want people to not use British banks because we have a different and unclear set of rules that might bang up against the risk rules run by the Europeans or the Americans.

To summarise, UK Finance says that banks and international NGOs,

“have increasingly articulated that the current framework permitting humanitarian transactions into sanctioned and conflict environments needs re-thinking and an update.”

It proposes that,

“a new equilibrium be found that recognises the strategic importance of facilitating both humanitarian aid and permissible civilian transactions to higher risk jurisdictions subject to economic sanctions, whilst balancing expectations of appropriate sanctions compliance and counter terrorist controls”

that are required to make such movements of funds.

At the moment, banks and charities are,

“required to navigate a combination of complex multi-jurisdictional regulatory guidance and an inconsistent licensing regime which has led to a significant impact on the funding of humanitarian projects into certain conflict zones”

and other high-risk countries. The banks would like

“mutual recognition for humanitarian licences issued by ‘like minded’ competent authorities”

and

“general exemptions for certain mission critical activities”.

They, too, are interested in having a consultation.