Sanctions and Anti-Money Laundering Bill [HL]

Lord Flight Excerpts

Wednesday 17th January 2018 Lords Chamber

[Lord Flight (Con)]

My Lords, I very much agreed with the constitutional points made, particularly by the noble Earl, Lord Kinnoull. More widely, I suggest that this amendment would be counterproductive in its effect. It is interesting to note that law enforcement agencies do not support public registers, particularly in such territories, as they do not improve law enforcement capabilities.

As David Lewis, head of the world’s anti-money laundering standard-setter, the Financial Action Task Force, and formerly of the UK National Crime Agency, said:

“Incomplete, unverified, out of date information in a public register is not as useful as law enforcement agencies being able to access the right information at the point they need it”.


Moreover, the UK’s overseas dependencies have already shown themselves extremely efficient in responding to the requests of policing and other agencies. Interestingly, tax authorities do not support public registers either, as people report less candidly than when information is available only to public authorities. The OECD’s Keeping It Safe states that to,

“comply with their obligations under the law, taxpayers need to have confidence that the often sensitive financial information is not disclosed inappropriately”.

Australia’s chief tax collector opposes public registers. Interestingly, UK intelligence and law enforcement, a key foreign policy asset, is likely to be undermined. UK law enforcement has access to information in the overseas territories’ central platforms. This can be exchanged with other countries to secure reciprocity or other benefits to the UK. Public registers remove this leverage and facilitate identity theft. The Financial Times has reported that directors are twice as likely to be victims of identity theft due to the Companies House public register of directors.

It is pretty clear that international standards do not require public registers but do require verification. That is the key point: you can have effective verification when registers are not public. However, as the, I am afraid, rather disappointing results of what has happened in the UK show, you cannot have verification with an open system. For once, even the EU was correct: it withdrew its proposal for public registers in December 2016 on the grounds that they disproportionately infringe human rights. The EU’s Legal Service stated that introducing public registers was a disproportionate infringement of the right to privacy and the European Data Protection Supervisor stated that it would breach data protection principles.

I think everyone is in favour of the objective; the question is how you achieve it most effectively. I have been a commissioner on the Guernsey Financial Services Commission for a number of years and have had some involvement in what Guernsey has done. Interestingly, Guernsey scores higher than the UK for general regulatory effectiveness and compliance. However, the crucial thing is that the registers are accurate, have been verified and can be used swiftly by the proper authorities that need that information. I am afraid that making them public undoes a lot of the point of them.

[Lord Naseby (Con)]

My Lords, I had the privilege of speaking in Committee, when I declared my interests as a vice-chairman of the All-Party Parliamentary Group for the Cayman Islands, and the fact that I have family working in the Cayman Islands.

I reflected on what the noble Baroness, Lady Stern, said in Committee, particularly the examples she gave of developing countries being fleeced by the operations of the overseas territories—my words, not hers. I did a bit of research and asked the Cayman Islands for information on the type of operations conducted there. I give a case history that I think your Lordships will find interesting. Money does not stay in the Cayman Islands but flows through them to support growth in onshore jurisdictions, including in developing countries. An example of this is the World Bank’s International Finance Corporation, which invested more than $400 million through Cayman-based investment vehicles in 2015 alone. The money supported critical development projects in more than 24 developing countries. That is not just a one-off example; there are many others in what I call the leading overseas territories. I will not repeat what the noble Earl, Lord Kinnoull, said; I am grateful to him for the research that he has done.

I point out that the Cayman Islands had a new constitution in 2009, which was approved at Lancaster House and contained measures on the rule of law and human rights that meet the most stringent international and European standards. Included in their Bill of Rights is the right to privacy and strong laws on data protection.

It has already been made clear that most countries are not adopting public registers. Certainly, for the overseas territories in the Caribbean, the rival centres are the United States, Hong Kong and Singapore. They have all looked at public registers but not one has agreed to it. So if we force the overseas territories to have public registers, the effect will be that business will move away—there will be none of the sort of business that I have just cited, which is increasingly the nature of the business done in the overseas territories. Furthermore, the information Her Majesty’s Government get on money laundering or anything else they require would certainly be weakened greatly because the activities that people are interested in would not be available. My noble friend Lord Flight mentioned the situation in the EU, which takes the view that it would disproportionately infringe on human rights. I do not need to expand on that.

I will finish on a key constitutional point—perhaps, as someone who took the Maastricht treaty through, I had to learn something about constitutional law. I re-emphasise that the overseas territories are self-governing territories, and legislating for them is constitutionally questionable. It is true that Orders in Council have been used to impose legislation on the overseas territories, but only for constitutional or human rights issues. The need to consider the overseas territories’ interests was confirmed by the House of Lords in 2008. To use an Order in Council for financial regulation when the overseas territories have already adopted international standards while the UK has not would expose the UK to legal challenge as potentially irrational and therefore could be overturned on judicial review. It would also be provocative, as my noble friend has indicated, to Scotland and the other devolved Administrations in the United Kingdom. I for one will certainly, with a clear conscience, vote totally against this amendment.