Andrey Lugovoy and Dmitri Kovtun Freezing Order 2020

Baroness Kramer Excerpts

Tuesday 11th February 2020 Grand Committee

Finally, I want to ask about the Magnitsky clauses in the 2018 Act. Why are they not now put into effect? The clauses relate to asset freezes and visa bans. Had they been in effect, they could have been used in this case. I accept that the Government say that an SI will be put down to bring forward the Magnitsky clauses. They argue that they were restrained by EU membership. That is nonsense on stilts. There is no such restraint by EU membership. If there were, why have the Baltic countries—also EU members—had Magnitsky clauses of this sort, on the same lines as legislation in Canada and the USA and that being considered in Australia? The EU did not in any way restrain this. The Government’s argument is wholly without merit. I pay tribute to all those who, on a cross-party basis, led by Andrew Mitchell MP, persuaded the Government, rather against their will, to put forward those Magnitsky clauses. The Government’s best argument is that they are doing this because they are doing it. I only wish that someone had the nous and courage to say, “Enough is enough. We should stop at this point”.

[Baroness Kramer (LD)]

My Lords, I believe that on balance it is necessary to renew the order, simply because not to renew it would send the wrong message, but I agree with many of the comments made by the noble Lord, Lord Anderson. I spoke on this issue back in 2018—I will not repeat the whole of that speech, as that would be to test the patience of the Committee. I used that opportunity to pay tribute to Marina Litvinenko, who fought so hard against the Home Secretary of the day for the public inquiry that should have come almost automatically but did not. The reality is that, because of the many delays, Andrey Lugovoy and Dmitri Kovtun had years in which to move out any assets that they had in the UK or within the scope of the UK. From the moment that the order was established, it was unlikely that it would have any personal impact on them, but at least it sent some sort of message.

At the time, I asked the Minister of the day to be sure that all assets were encompassed by the various definitions, including crypto-assets, and I received an assurance that they were. Is there an ongoing mechanism to make sure that, as new financial mechanisms develop, they are covered and automatically caught by the order? That would be a useful discipline to have in these instances.

I was also concerned to know to what extent these two individuals would be able to make use of Crown dependencies and overseas territories, many of which do not have a public register that would enable any civil society person to identify whether they were making use of financial services capabilities in those locations. Without that, the UK or the enforcement arm, presumably the Metropolitan Police, would need to initiate an investigation into assets in the names of the two individuals and into any shell companies that they might be involved in or any other kind of entities that were making use of those Crown dependencies and overseas territories. I am not sure how active that process is and whether we are serious about making sure that these two individuals are at least excluded from UK-related financial capacity.

I also asked about property ownership. As the Minister will be aware, we have public registers of beneficial owners, but not yet in the case of property, although I believe that that process is in train. I very much hope that he can assure me that the necessary monitoring is in place to ensure that neither of those individuals, or the shell companies that they use, has managed to get around the system by using the loophole of the absence of beneficial ownership.

[Lord Anderson of Swansea]

Surely the argument put forward by the noble Baroness would have some merit if one had any suspicion that those two individuals had any form of asset—be it property or finance—or any possibility of obtaining a loan, given their lack of creditworthiness.

[Baroness Kramer]

I think it is understood that those two individuals at some point had assets in the UK. Hence my frustration that the long delay and the public inquiry meant that they had every opportunity to remove those assets. We cannot guarantee that they used them, but they certainly had the opportunity. I fear that, with the way that various shell companies work, it is not as simple as looking at one individual’s creditworthiness: there are many other ways. I assume that these two people, within their own context, are considered to be very successful individuals who are not short of the ready, and therefore have the opportunity through various mechanisms to exploit financial services. If the order is to mean anything, there must be some enforcement capability to it, and I am inquiring whether there is.

I noticed that the debate that we had in 2018 was in February, towards the end of the month. To reinforce the point of the noble Lord, Lord Anderson, that this is not really a deterrent of any sort, the attack on the Skripals happened on 4 March that year, days later. That says everything about the weakness of the deterrent effect. It would be incumbent on the Treasury to rewrite its note in the light of the Salisbury poisonings. We need to pay great respect in understanding the suffering not only of the Skripals but of Dawn Sturgess, who died as a consequence.

I also wondered—I ought to know the answer to this but do not, so I am simply inquiring—whether the same orders now apply to the two individuals identified as being involved in the Skripal poisonings, Colonel Anatoliy Chepiga and Dr Alexander Mishkin, both of the GRU. If this is a principle, it ought at least to be more broadly applied. I very much agree with the noble Lord, Lord Anderson, that we need to implement the legislation passed in both Houses.

A more robust response to the poisoning of Litvinenko and the attempted poisoning of Skripal is fundamentally necessary. Will we wait for a third or fourth poisoning before we start looking at more senior figures within the Russian establishment? Clearly, all the people we have mentioned who face freezing orders were under orders from far more senior people. It is a great weakness in our position not to have recognised that much more clearly and to have considered whether, if we believe that constraining people from using UK financial services has an impact on their behaviour, making that work up the chain will be a lot more useful than simply applying it to the individuals who we have been able to identify but who are, frankly, in every case, pretty small fry.

--- Later in debate ---

[The Earl of Courtown]

I thank all noble Lords for their contribution to this short debate. I will do my best to cover all the points raised but should I miss any out, I will write to noble Lords. The noble Baroness, Lady Kramer, asked how the asset freeze affects real property—land, buildings et cetera. She also mentioned cryptocurrencies, which she had referred to in the previous debate, two years ago. Under an asset freeze, all funds and economic resources must be frozen. No funds or economic resources can be made available, directly or indirectly, to a designated person or for their benefit. To do so may be a criminal offence. Funds generally mean financial assets and benefits of every kind. Economic resources—this relates to the noble Baroness’s point about property—generally refers to assets of every kind, tangible or intangible, moveable or immoveable, which are not funds but which may be used to obtain funds, goods or services. This includes, but is not limited to, property. As confirmed in the previous debates, crypto-assets are also covered by this.

[Baroness Kramer]

I do not want to create a problem for the noble Earl, because this may be outside his general scope, but where there is no public register of beneficial interests, the problem is that civil society groups—which do a lot of the monitoring on behalf of us all—cannot see through to identify whether there is abuse. In those particular circumstances, the only way to find out whether somebody has acquired property in the UK, which will be under various other names, shell companies, and whatever else, is by active intervention by UK enforcement authorities. Until we get the public register, that is limited. That was the question I was trying to focus on.

[The Earl of Courtown]

The noble Baroness’s point is basically about transparency. I do not have any information on that issue to hand, but I will write to the noble Baroness.

The next point was about a link between the 2018 order and the Salisbury event. As noble Lords are aware, the murder of Alexander Litvinenko and the attack on Salisbury are part of a pattern of Russian aggression over the past decade, which includes its actions in Georgia, Crimea and Ukraine, and campaigns of reckless and irresponsible cyberattacks. We took a range of measures following the attacks in Salisbury, including co-ordinating the expulsion of 153 Russian intelligence officers, the largest mass expulsion in history. We continue to believe that, in conjunction with the other measures which the Government have taken in response to the murder of Alexander Litvinenko, this freezing order sends a message to others who might consider committing similar acts in future that the UK Government will not tolerate such action. After the Salisbury attack, four Russian individuals were sanctioned under the Chemical Weapons (Asset-Freezing) and Miscellaneous Amendments Regulations 2018 for their roles in transporting and using a toxic nerve agent—Novichok—in Salisbury in March 2018.

The noble Lord, Lord Anderson, raised a number of issues relating to his thoughts on whether it was worth while going through this exercise. Obviously, Her Majesty’s Government feel that it is, but he also mentioned the Magnitsky sanctions and asked why we were not introducing the asset freeze under them. The Government have announced their intention to establish UK-autonomous global human rights Magnitsky-style sanctions, as he said. These will be coming forward shortly, once we have left the European Union—which I imagine we have.