UK Trends and Developments Contributed by: John Binns, BCL Solicitors LLP
The example of Russia The political and transnational nature of sanctions may help explain, if not excuse, the extent to which they sometimes fail to reflect moral values. Few would argue now with the proposition that the response of Europe to Russia’s invasion of Georgia in 2008, and its initial incursion into Ukraine in 2014, was wholly inadequate. The political context was a benevolent environment for Russian businesses, expatriates and investors in Europe, especially the UK (and, to at least an equal degree, its CDs and OTs) and a small but conspicuous handful of political allies and donors with ties to Russia. During this period, the UK was, in the years of its new Labour, David Cameron and Theresa May govern - ments, intensely relaxed about the entry of Russians and their money into its economy (including, most conspicuously, the London property market). Notably, this was despite widespread misgivings that some of it may derive from economic crime (or, more neutral - ly, the more maverick iterations of “shock treatment” capitalism) seen in Russia since the fall of the USSR, and a set of anti-money laundering (AML) laws that (on paper, at least) was among the most draconian in the world. Brexit The UK’s sanctions framework was one of a vast num - ber of issues that fell to be considered in the context of Brexit, and in which (with the UK’s rhetoric talk - ing up the importance of exiting the jurisdiction of EU courts) its parliamentary drafters busied themselves with legislation designed for a “no-deal” outcome to negotiations. The Sanctions and Anti-Money Laun - dering Act 2018 (SAMLA) effectively took control of all aspects of decision-making in sanctions (and in AML laws, which similarly had been derived from EU directives). Notably, having taken control, SAMLA largely ceded it to the Secretary of State – in practice, the Foreign, Commonwealth & Development Office (FCDO) – which would produce separate sets of sanctions regulations and designations for each regime, albeit with at least some degree of parliamentary scrutiny. In the first instance, these would mirror the EU’s regimes. But, even as the UK exited that system, it began creating
the ICC. Public pronouncements by members of the current administration seem to suggest a stance on international law somewhere between deep scepti - cism and outright contempt, suggesting that what - ever the justifications may be for imposing sanctions, a “rules-based international order” is not among them. “Targeted” sanctions Traditionally, sanctions were envisaged (and, to an extent, they are seen in this way today) as outside the scope of such values, given their nature as part of the prerogative of states’ executive leaders – whether emperors, kings or presidents – as an alternative to military action by one state against another. In the modern world, their nature and impact are very dif - ferent, essentially imposing criminal prohibitions with reference to (though not necessarily against) parties associated with conduct and/or countries that are deemed to be problematic in one way or another. The UK’s journey from “comprehensive” to “smart” or “targeted” sanctions since the early 21st century has been closely tied to its role in international institutions, particularly the UN and the EU. The idea of imposing asset freezes and travel bans on named individuals and entities developed from a growing recognition at the UN level that sanctions against Iraq had, while hav - ing depressingly little impact on the despotic regime of Saddam Hussein, literally starved and impoverished countless of his innocent citizens, and the need to find new ways of targeting international terrorism following the attacks on the US on 11 September 2001. For the best part of the two decades that followed, the UK’s sanctions policy and legal framework were largely based on those of the EU. Its intelligence and security expertise made the UK a key player in EU sanctions policy, but, from the perspective of those affected by sanctions, there was a notable gap in accountability and judicial scrutiny, where what rem - edies existed lay with the EU’s courts in Luxembourg, under the European Convention on Human Rights (ECHR) in Strasbourg, or (in rare cases) a bespoke UN ombudsperson system, rather than in the UK’s own courts.
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