UK Trends and Developments Contributed by: John Binns, BCL Solicitors LLP
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 and 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 creat - ing new ones: inspired by the legacy of Sergey Mag - nitsky (the Russian prisoner who was tortured and killed after investigating corruption), the then Foreign Secretary, Dominic Raab, signed off regimes targeting corruption and human rights abuses. The aims and the means A glance at the purposes for which (other than com - pliance with UN or other international obligations) ministers can impose sanctions, as set out in Sec - tion 1 (2) of SAMLA, provides a high-level insight into their intended moral dimension, and the trust placed in ministers to impose them for purposes that will (in their view): • further the prevention of terrorism; • be in the interests of national or international peace and security; • promote the resolution of armed conflicts or the protection of civilians in conflict zones; • provide accountability for or be a deterrent to gross violations of human rights, or otherwise promote compliance with international human rights law or respect for human rights; • promote compliance with international humanitar - ian law;
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. 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.
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