Imagine you wake up one morning and find all your credit cards frozen, along with your bank accounts and the other payment services you use on a daily basis. With great difficulty – since you have no right to demand an explanation – you discover you have been placed on a United Nations sanctions list. It is all a case of mistaken identity, you protest. The UN Security Council resolution was aimed at someone else with a similar name.
Your solicitor tells you the banks have locked your accounts in response to an order received from the Foreign & Commonwealth Office. You are advised that you can ask Boris Johnson to use his ‘best endeavours’ to have your name taken off the UN list. You ask; he refuses. You ask again and are told your request will not be reconsidered unless you can find a ‘significant matter which has not previously been considered by the secretary of state’. You are entitled to a review in three years’ time.
So you ask your lawyers to begin judicial review proceedings against the foreign secretary. The court grants your application and orders him to do his best to get you off the blacklist. He asks; the UN refuses. It is at this point that you discover that the UK courts may have no power to unfreeze your accounts.
That appears to be the effect of the Sanctions and Anti-Money Laundering Bill, currently being debated by the House of Lords, though the bill is far from clear. New legislation is needed because sanctions, anti-money laundering and counter-terrorist financing powers are drawn largely from the European Communities Act 1972, which will be repealed when the UK leaves the EU.
The sanctions bill has been seen as a dry run for the European Union (Withdrawal) Bill, to be considered by peers in the new year. So far, the omens are not good. The government takes the view that it would be in breach of international law if it failed to implement UN sanctions after Brexit. Indeed it would. But that is no reason to try to deprive our courts of the power to set aside a freezing order. Lord Pannick QC, the crossbench peer, proposed an amendment at the bill’s committee stage last Wednesday to ensure that our courts retain their current powers.
At present, UN sanctions listing requires procedural safeguards, including supporting evidence and effective judicial review. Orders can be quashed by the European Court of Justice if not proportionate. Why should our own judges have fewer powers than courts in other EU countries? Why should you have to wait three years for your case to be reviewed when, under the current EU system, blacklisting must be reviewed every six or 12 months?
There is more. The bill starts by giving Cabinet ministers the power to make sanctions regulations. These merely have to be ‘appropriate’: the minister does not even need to assert they are ‘necessary’. And regulations are not confined to implementing UN resolutions or other international obligations – they can be made if the minister thinks they are in the interests of international peace and security, or will further the UK’s foreign policy obligations. The regulations can impose restrictions on unnamed people merely because they are ‘connected’ to a specified country.
What if a bank releases your funds to you in error? That may be a criminal offence for which the banker may receive 10 years’ imprisonment. I say ‘may’ because we have no idea what the new crime will cover and no idea what burden or standard of proof will be required. And that, in turn, is because the offence will be created not by parliament but by Boris Johnson – or Emily Thornberry if she has succeeded him as foreign secretary by 2019. Parliament could block regulations of this kind but rarely does so.
The cross-party Lords Constitution Committee declared itself ‘deeply concerned’ last month, not just that serious crimes would be created by secondary legislation but that ministers would decide the rules of evidence and the available defences. ‘We consider that such regulation-making powers are constitutionally unacceptable and should not remain part of the bill,’ peers said bluntly.
These concerns are not just about the ‘Henry VIII’ powers that allow ministers to amend primary legislation, though the bill provides these too. Lord Judge, the former lord chief justice, complained that the government was ‘bulk-buying’ regulations, taking ‘extravagant’ powers without sufficient parliamentary scrutiny.
It must be tempting for civil servants to ask for all the powers they could possibly need. No doubt ministers believe they or their successors will always act benignly. But it is up to parliament to insist on adequate safeguards. If it fails to assert its authority over this bill, there is little hope it will keep control over the many more Brexit bills to come.