Sanctions and Anti-Money Laundering Bill [HL]

Baroness Kramer Excerpts

Committee: 4th sitting (Hansard): House of Lords
Tuesday 12th December 2017 Lords Chamber

[Baroness Kramer (LD)]

My Lords, perhaps I may just add a word on this occasion. I welcome the comments of the noble Lord, Lord Collins, and the speech of my noble friend Lady Bowles, but I would be far less concerned about trying to change the regulatory procedures we are considering today if we had in Clause 41 an appropriate policy framework under which regulations were to be placed—that is, the safeguards, the range of powers and the proper kind of scope that I think every noble Lord has considered normal in primary legislation. That layer is completely missing. The whole range of safeguards, including policy safeguards, rests with the Executive, while Parliament will have an opportunity to express itself only through its response to statutory instruments. If that were the end state at which we arrived then I think that anything other than provision for the super-affirmative procedure would be so undemocratic as to be offensive to this House.

I still think that the better solution is for the Government to accept that this is an area of genuine policy which requires genuine safeguards and genuine scope, and they should take on the responsibility of putting those safeguards in primary legislation. I do not understand why they have chosen not to do so. The reasons they have given are, first, that some things need to be done fast, though I think we have agreed across the House that it could be done through a carve-out; and, secondly, that there will need to be a transposition from EU law, although that too can be handled on a mere technical basis.

The issue is the absence of primary legislation as the framework for this process. There is no sunset clause on this provision; that is almost a side issue. The fact that the Government are seeking to manage this entire process without bringing crucial issues back to be dealt with by Parliament, in the proper and democratic way, troubles me hugely. I do not think we have heard any explanation from the Government as to why it is crucial to change the balance of power between Parliament and the Executive or why they are using this Bill as an instrument to do so.

[Lord McNally (LD)]

My Lords, there is always a temptation in these processes, as the noble and learned Lord, Lord Judge, said, to make the same speech over and over again, but perhaps this speech will suffice for the other issues we will cover today and in the course of this Bill and other Bills.

Of course one of the big worries about the process on which the Government are embarked is—as has been said before, and has just been remarked on—this movement of sovereignty from Parliament to the Executive. I think that this House is doing its job by being very aware of that, but there is another issue in the background to this. I welcome the publication of the anti-corruption strategy. It is keeping faith with a process that has gone on over the past number of years, with all three parties that have been in government, to try to get our house in order regarding our reputation in dealing with corruption, money laundering and associated crimes.

The truth is that we must not be complacent about this. The noble Lord, Lord Hain, was quite right: there is a taint about the behaviour of some in the City. There is a taint about some of the operations of overseas territories, which we will be looking at later. When I was the Minister responsible for the Crown dependencies, my one piece of advice to them was to make sure that they were as transparent as possible in meeting the highest national and international standards. One of the things that the Government and both Houses have to think about as we go through this process that the Government are embarked on is that there are still those who see our future as the buccaneers of world trade, and believe that London and the UK will become a haven for practices that we do not approve of.

That is why it is important that what we put in place during this period will be the base and foundation of our reputation. Those of us who want to see that reputation based on upholding the highest standards—and I fully accept that the Minister shares this—have to understand that each piece of legislation we put forward will be tested against the questions: what do they mean by this, are they going to slip from previous commitments, and are they going to be as tough as they were? Those are the tests that are going to be put to us. Both Houses, and this House in particular, will have to be on their guard to make sure that those highest standards are maintained.

--- Later in debate ---

[Baroness Bowles of Berkhamsted]

My Lords, Amendment 77, which is in my name and that of my noble friend Lady Kramer, takes your Lordships again to the issues of the Ahmed case. The amendment would delete the first three subsections of Clause 47, which repeal the Terrorist Asset-Freezing etc Act 2010, so would stop that Act being revoked. We do not agree with the repeal of that Act and its replacement by a general power to do anything, which is what the Bill does.

There have already been significant contributions from noble Lords, and especially noble and learned Lords, in respect of powers in Clauses 10, 11, 16 and 32 which reach into the same issues. If anything, the amendments proposed already have not gone far enough. The rights of appeal as well as review that are contained in the Terrorist Asset-Freezing etc Act 2010 should not be dispensed with.

The Supreme Court struck down the Treasury’s previous regime as an oppressive one that had devastating effects on families, which led to the 2010 Act. It looks like the Government are giving themselves power to do that again. We come back to worthy intentions, but the safeguards must be there. Under the current law, the court hears appeals against designation decisions, not just reviews. That should be maintained.

This amendment revisits issues debated at the time of the 2010 Act, such as who decides questions of fact and the scope of error allowed to the administrative decision-maker. There will be noble and learned Lords who have a better grasp of the issues than me, and as I mentioned, we have already been around that loop in previous debates on other clauses. However, to me, it is a question of principle: to seek to increase power and simultaneously reduce defences is not acceptable, all the more so when there is no relevant change in circumstances or threats brought about by Brexit. It is no excuse to ravage what have previously been just defences. I beg to move.

[Baroness Kramer]

My Lords, I will speak briefly. I am no expert on the relevant legislation that is being repealed under this clause, but I have spoken to those who are, and the response I have had is one of shock. Legislation that went through both Houses of Parliament, with great care, debate, consideration and amendment, is now being swept away, to be replaced by a regulatory power, which, again, is not bounded in any way. It could be identical or it could be completely different, but it is not discussed or laid out anywhere in this legislation.

In the past we have talked primarily of powers that have come through a democratic process in Brussels: through the European Parliament’s scrutiny, consultation and voting processes, and through votes of the Council. In this case, we are talking about sweeping away, to be replaced by regulation, significant legislation that came through this Parliament in a democratic process. I do not understand, nor have I heard any explanation, why the Government are choosing to take this route.

[Lord Ahmad of Wimbledon]

My Lords, I draw noble Lords’ attention to the White Paper that preceded the Bill, in which we noted that the terrorist threat has evolved since the enactment in 2010 of the Terrorist Asset-Freezing etc Act—TAFA—which the noble Baroness, Lady Kramer, just referred to. We need to ensure that UK counterterrorist sanctions powers remain a useful tool for law enforcement and intelligence agencies. We therefore propose to use the Bill to establish a common approach to designations under counter- terrorism and country sanctions regimes, including the asset-freezing powers set out in Clause 2.

--- Later in debate ---

[Baroness Northover]

My Lords, I support the amendment. As the noble Lord, Lord Collins, indicated, we have heard enough during the debate on the Bill to know that much needs to change in it. The noble Lord proposes a sunset clause for the Bill—in that way it will not be on the statute books in perpetuity—and I like the notion that it breathes its last in five years and simply expires.

Meanwhile, the Government can work out their relationship with the EU—and where, in the light of that, legislation is required—and develop appropriate primary legislation both on the UK’s sanctions regime and anti-money laundering measures, which can be properly scrutinised in Parliament.

I note that the noble Lord, Lord Collins, said, “in the event that we leave the EU”. There is indeed a question mark about this and what our relationship with the EU will be if we do. So it is no wonder that drafting the Bill was a difficult challenge.

A sunset clause is a useful backstop. However, as the noble Lord, Lord Collins, and others made clear, it still leaves in place a flawed Bill that we will need to address further on Report.

[Baroness Kramer]

My Lords, it is the responsibility of this House and the other place to ensure that any legislation that leaves our hands is properly drafted, with the necessary clauses and relevant safeguards and instructions. That is our responsibility. I look at sunset clauses as an absolute last resort. They can be appropriate where legislation is, by definition, short term and deals with an event that will disappear. However, neither sanctions nor money laundering fall into that category. Therefore, although I believe we are talking about “when” not “if” we will withdraw from the EU, I would hate to see that become the rationale for legislation that we do not feel is as good as it could be in delivering the purposes of the two Houses.

I support the amendment as a backstop. However, in a sense, it is incredibly sad that we are having to contemplate such a clause because the Bill itself is so inherently flawed. The House will know from the many comments I have made that I think that there are many flaws in it. However, the most fundamental is that, through a back door, in effect—the Bill does not state this and nor have Ministers been willing to state it—it shifts significantly the balance of power between Parliament and the Executive. We have generations of history in battling to prevent that change—whether through front doors or back doors—and I hope that the Bill can be amended on Report or at Third Reading so that it no longer engineers that shift in power and will not still be an example of a Bill that requires a sunset clause because it is so inherently inappropriate.

[Lord Judge]

I am going to say much the same as the noble Baroness. I am ever an optimist about this. I think that when the Minister has had time to reflect on the wisdom of some of the amendments that have been proposed that will eradicate some of the less desirable features of this Bill, and make it a much better Act in consequence, we will not need a sunset clause. Oh dear—I have reflected that I may be being optimistic, but I think that I am also being utterly naïve.

I shall not support the amendment at this stage—but if when we come the next stage we have had no improvements in the Bill, then I shall.