Sanctions and Anti-Money Laundering Bill [Lords]

Nick's speech in the Second Reading debate

Nick Herbert speaking in the Commons debate on the Sanctions and Anti-Money Laundering Bill (20.02.18)

Nick Herbert (Arundel and South Downs) (Con)

I agree with what the right hon. Member for Barking (Dame Margaret Hodge) said and with what my right on. Friend the Member for Sutton Coldfield (Mr Mitchell) said in welcoming the measures in this Bill. I would go further and welcome the steps that the Government are taking to tackle corruption. However, I also agree with the right hon. Lady and my right hon. Friend that we need to go further now on the issue of transparency in our overseas territories—an issue I spoke about almost exactly a year ago in this House. Specifically, it is necessary in the fight against corruption that a public register of beneficial ownership of companies is established.

Much has been made of the effect of criminal activity, the ability of those engaged in such activities to launder money and the impact of the lack of transparency in supporting crime and corruption. The right hon. Lady pointed out that the United Nations Conference on Trade and Development estimates the cost of tax havens to developing countries to be some $100 billion a year. These are costs that are falling on the poorest developing countries. It should also be pointed out that tax avoidance costs us, too. It costs taxpayers in developed countries. A 2014 United States Senate report pointed out that the US loses some $150 billion in tax revenues a year owing to offshore tax schemes.

The Panama Papers, and subsequently the Paradise Papers, revealed the extent of the problem. However, as President Obama said after publication of the Panama Papers, the problem is that most

“of this stuff is legal, not illegal.”

That goes to the heart of the issue. Companies are able to operate perfectly legally in environments where there is not sufficient transparency. The losses are legitimate in the sense that they are not unlawful but they are avoiding taxation; the activities may be legally possible, but they are illegitimate morally. They may also, however, involve criminal activity. All of those are reasons why transparency is so important.

That is why it was such a major step forward when David Cameron announced in 2013 that action would be taken and when, in April 2014, he wrote to the leaders of the overseas territories, following the action taken in global summits, and said that Britain wanted the overseas territories, in partnership with us, to publish public registers. As he argued, these were the gold standard in transparency and would support law enforcement. That was the Government’s position at the time, but does it remain their position? They have never said that they will insist that the overseas territories produce public registers, even though the then Prime Minister urged them to do so in the strongest possible terms. I will explain why that is a necessity.

It is not clear to me whether it remains the Government’s position to urge the overseas territories to introduce public registers as soon as possible. That does not seem to be their position any longer. I think they are now saying that the overseas territories should move towards the creation of public registers once that becomes the gold standard globally. If hon. Members and non-governmental organisations have noticed this change of emphasis, surely the overseas territories will have noticed it, too. What progress can we reasonably expect them to make if they have sensed that the pressure from the UK Government to introduce those registers has eased?

Luke Graham (Ochil and South Perthshire) (Con)

I agree with many of my right hon. Friend’s points about transparency. I also agree with some of the fine points ade by the right hon. Member for Barking (Dame Margaret Hodge). My right hon. Friend mentioned a change of emphasis. I am a member of the Public Accounts Committee. I understand from speaking to some of the United States authorities that there has clearly been a change of emphasis. We are getting quite a clear picture from the United States that it is not intending to go all the way with public registers of beneficial ownership, and certainly not as far as we would like to go. Therefore, we need to be clear about where we want to show leadership, but, at the same time, we have a duty to our overseas territories to ensure that, if we limit their economies in some way, we think about other measures that can support them in the short run.

Nick Herbert

I agree with my hon. Friend that it is necessary for us to show leadership, and I will say more about the support that we will need to give to the overseas territories in that respect.

A number of arguments have been advanced as to why it is not a good idea to require the overseas territories to introduce public registers. The first is that others will take advantage, and that criminal activity will simply relocate if we say that it can no longer take place in the overseas territories without visibility.

That argument is completely without moral credibility. It is also an admission that such activity is taking place in those areas. To say that we should not act because there might be an economic effect as a result of a reduction in criminal activity would be to argue that the Government should never take action against crime. We have to look at what steps might be necessary to compensate for and mitigate those effects, and to support the overseas territories, to whom we have an obligation in many ways. Simply to say that we will not insist on these changes because their economies would be damaged by the ensuing reduction in criminal activity would be akin to arguing that there would be no point in the police arresting a major drugs dealer in the UK because another drugs dealer might sell drugs in his place.

That argument cannot be sustained. If we believe that a wrong is being done to developed and developing countries—as it is—by the absence of transparency enabling tax evasion and worse, it is our responsibility to tackle that wrong by any means we can. If we simply stand back and wait for change to happen, we cannot expect it to do so.

The second argument that is put forward is that the measures are unnecessary because allowing law enforcement agencies specific access to information on the beneficial ownership of companies is better. It might be the case that law enforcement agencies require a particular level of information, and they can get it through the introduction of central registers, which is a welcome initiative, but if people are seriously arguing that transparency is unnecessary for law enforcement, why did we introduce transparency in the UK? It is self-evident and intuitively obvious that transparency is an aid to law enforcement, because law enforcement agencies cannot be expected always to go after criminals. Criminal activity has to be exposed, and publication is a way of exposing and preventing it. It is telling that a lot of this activity has surfaced only because of leaks. We cannot rely on the law enforcement agencies alone, even with the assistance of central registers and the exchange of information, to deal with all these issues. Also, they cannot deal with tax evasion issues hat might be lawful but morally illegitimate. If it was right for the UK to do this, it is right for others to do it, especially our overseas territories.

That leads me to the third argument, which is an important and difficult one. To what extent should the UK insist that the overseas territories do anything? Would we be behaving in a neo-colonialist manner if we did so? This argument has surfaced more recently in relation to the decision by the legislature in Bermuda to reverse a decision of the Supreme Court relating to same-sex marriage. The UK Government made the difficult decision that it was not proper for them to intervene and that this was a matter for the Bermudian authorities. However, we took action in previous years when we reversed the colonial laws that we had bequeathed to the overseas territories in relation to the criminalisation of homosexuality. The very fact of the relationship between ourselves and the overseas territories—and the very fact that we can change the law there by orders in the Privy Council—reveals a relationship that requires us to hold to certain standards.

I accept that there could be unusual circumstances in which the UK Parliament would seek to intervene, but when it comes to global law enforcement, the harm that is being done is so general that it surely justifies action. There is a danger that, if the Government are seen to be stepping back in relation to human rights issues and to corruption, far from winning praise for allowing the devolution of power and the expression of local democratic decision making in the overseas territories, we will actually be harming ourselves and our international reputation for not upholding our obligations to the highest standards. Therefore, on balance, the argument is made not only that we have the power to intervene but that we have a duty to do so if the harm that is being done is otherwise so great.

Let us be clear that the tide is now turning in the direction of increasing transparency. As we have heard from the official Opposition, the EU is adopting measures to ensure that that takes place, and it is significant that the developing countries—those that are most harmed by the absence of transparency—are often the most supportive of these measures. Countries such as Kenyan, Nigeria and Afghanistan are committed to introducing public registers of beneficial ownership. Are we really saying that our own overseas territories will not be required to do so when developing countries such as those are committed to taking that action?

The uncomfortable truth is that some of our overseas territories are the worst culprits when it comes to tax havens. Everyone knows that; the papers that have been published reveal it and the time has come to deal with it. I agree with the right hon. Member for Barking that the time has come to insist that our overseas territories deal with this issue because frankly we will not make progress unless we press them. That is why, if a sensible amendment is tabled to the Bill to set a reasonable timetable for the overseas territories to produce registers of beneficial ownership—an amendment that has cross-party support, that includes commitments to ensure redress for any economic harm and that is respectful of the great economic damage done by the terrible hurricanes to some of our overseas territories—I will support it. I hope that such an amendment will command support n both sides of the House. This is, after all, the policy set by a Conservative Prime Minister and this Conservative Government, and it is the right policy.

Tax havens harm the world’s poorest most of all. Tax havens harm developing countries, and they harm us. They harm us economically, but they also harm our reputation. We live in an age of accountability and transparency. We must continue to lead this argument and not be behind it, which is why I urge my right hon. and hon. Friends on the Front Bench to take very serious note of what is being said in the House this evening and to act.

…

The Minister for Europe and the Americas (Sir Alan Duncan)

As my right hon. Friend the Foreign Secretary said in his opening speech, this Bill is necessary to ensure that we can continue to use sanctions and anti-money laundering regulations to support our foreign policy and national security goals as we leave the European Union. We have had a lively and passionate Second Reading debate, but I sense that the setting up of a UK sanctions regime on our departure from the EU would appear to enjoy the broad support of this House.

It is often invidious in winding up a debate to pick out some speeches but not all, but forgive me, Mr Speaker, if I do that this evening, because I think the two strongest nd most remarkable speeches were those of the right hon. Member for Barking (Dame Margaret Hodge) and my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell), with whom I worked very closely as his deputy in DFID. I appreciate the passion of the right hon. Lady; we will no doubt debate these matters at great length in Committee and on Report, and we will take on board the strength of the arguments we have heard tonight, and which, of course, we have heard before. Likewise, my right hon. Friend made an impassioned plea for humanitarian agencies to be fully considered, and I will come to that shortly. He also spoke of Magnitsky, as did many Members; I will go into more detail later, but for now I will say that this Bill has wide-ranging powers to sanction people for human rights abuse. On open registers, we share my right hon. Friend’s view on wanting to bear down on illicit money flows; as he said, the registers are open to instant access by regulatory authorities, but I quite understand his view that such action alone does not suffice.

I have a small point to make to my hon. Friend the Member for Huntingdon (Mr Djanogly), who asked if we could publish the anti-corruption strategy; we did so in December of last year. The hon. Member for Brighton, Kemptown (Lloyd Russell-Moyle) asked why nobody has been prosecuted for export control offences; in fact, there have been 23 not just prosecutions, but convictions, for export control offences in the 10 years from 2006 to 2016, and a number of these prosecutions relate to exports to countries covered by UN and EU sanctions regimes.

This being a Second Reading debate, I want to dwell on a few key principles contained in the legislation, as I have no doubt that we will discuss the closer detail further in Committee. The first such issue is that of delegated powers. They are rightly coming under scrutiny in this place today. However, it is important to recognise that Ministers implement sanctions and anti-money laundering regulations by using delegated powers now, through secondary legislation under the European Communities Act 1972, and this Bill will not change that approach. In fact, in the future Parliament will have greater oversight of sanctions than it currently does, with votes needed in both Houses when the UK acts outside the requirements of the UN, and given the need to respond quickly to global events, the Government believe that regulations remain the best mechanism for implementing and amending sanctions and anti-money laundering regimes.

There is, however, the question of creating criminal offences, as referred to by the hon. Member for Glasgow Central (Alison Thewliss), and I am confident this will be addressed before Report. We have listened to these concerns and we are working on a solution that we hope will be accepted by those who expressed them in another place. Indeed, Lord Judge, whom we have been talking to, and his colleagues did not disagree that breaches of sanctions should be criminal offences, and we will introduce amendments to fix this and address their concerns in due course.

On procedure, we believe we have the right balance of affirmative and negative resolutions. Regulations that implement UN regimes will be made under the negative procedure; regulations that do not implement UN sanctions regimes will be made under the made-affirmative procedure.

The hon. Member for Glasgow Central talked about the ability to amend devolved legislation as being “monstrous”. I think she slightly misunderstands the process here. Sanctions are a matter of foreign policy.

Helen Goodman (Bishop Auckland) (Lab)

On negative and affirmative resolutions, the Minister is choosing to draw a distinction based on the origin of the sanctions—whether they are from the UN or the EU—but would there not be a greater logic in drawing a distinction between individual sanctions on people, which obviously have to be done quickly, and the rules of the game for the regimes, where the House would be reasonable in seeking to be consulted before they are introduced?

Sir Alan Duncan

The reason that we have made this distinction in terms of procedure is that we are obliged in law to implement UN sanctions. Once the sanctions have been agreed at the UN Security Council, the UK has an obligation to implement them under the UN charter. Not to do so would leave the UK in breach of international law—hence the distinction in the procedure that we are using.

Returning to what the hon. Member for Glasgow Central described as “monstrous”, I say again that sanctions are a matter of foreign policy and so are reserved to this Parliament...

…We consulted the devolved Administrations—that answers a question that the hon. Lady asked—and they did not disagree with us. The ability to make changes to devolved legislation that can be used only to make changes required as a result of sanctions does not injure the devolution settlement. Their primary purpose is for a reserved matter.

Let me move on to the issue of Magnitsky. I recognise the concerns expressed about the importance of taking a stand against individuals responsible for committing gross abuses of human rights. We recognise and indeed share those concerns. I would like to make it clear that this Government are committed to promoting and strengthening universal human rights, and this Bill will permit us to do so. We already have a range of powers to take action against those who commit gross human rights abuses, most recently through the Proceeds of Crime Act 2002, as amended by the Criminal Finances Act 2017. The Home Secretary also has the power to exclude individuals whose presence we believe to be contrary to the public good, and we keep track of potentially dangerous individuals to prevent them from entering the UK. To complement this, we also have a range of domestic asset-freezing powers.

We are already committed to using sanctions in this area. This is demonstrated by the number of countries against whom we use human rights-related sanctions. They include the Democratic Republic of the Congo, Iran, Libya, Mali, South Sudan, Venezuela and Zimbabwe. The Bill will rightly continue this, allowing the UK to continue to implement existing sanctions regimes and to impose new sanctions in the future. I reiterate my point that paragraphs (f) and (h) of clause 1(2) will empower the Government to implement sanctions on human rights grounds. These are broad powers that will provide maximum flexibility and allow us to include all sorts of abuses, including but not only gross human rights abuses.

I should like to refer to the comments made by my right hon. Friend the Member for Sutton Coldfield about humanitarian access and freedoms. This is an important point. The Government recognise the concerns expressed in the House about the humanitarian impact of sanctions, and we understand the need for engagement with non-governmental organisations and other humanitarian actors. We fully support the work of NGOs operating in difficult areas, and we recognise that they are important partners in delivering the UK’s objectives in challenging environments. I want to reassure the House that the Government have been actively engaging with NGOs. As part of the consultation for the Bill, we held a roundtable to understand their concerns. Within the past couple of months, we have also met organisations involved in humanitarian, development and peace-building work.

The Bill provides a number of tools that will enable the Government to tailor each regime to help to meet the needs of NGOs. In particular, it will enable the Government to make exemptions for humanitarian reasons and to issue licences for legitimate activity. EU case law currently limits our ability to issue general licences, but the Bill will provide greater flexibility by allowing us to do so in circumstances where Ministers judge it appropriate. It will also help to prevent the exploitation of NGOs by those seeking to circumvent sanctions. We have committed to remain engaged with the humanitarian sector and to provide it with high-quality guidance on the implementation and enforcement of individual regimes. We will continue to work with NGOs and other stakeholders to develop the best possible system.

Beneficial ownership has been at the heart of tonight’s debate. We will no doubt discuss it in Committee and perhaps on Report. It is important to recognise that the UK is the only member of the G20 with a public register of company beneficial ownership. We welcome the fact that the EU is catching up with us, but, when it does, public registers of beneficial ownership will still not be a global standard. The non-EU members of the G20 will still not have them.

We hope to work with the Financial Action Task Force and other partners to establish registers of beneficial ownership as a global standard, the effect of which will be not to allow companies or people simply to shift from one regime to another and hide their assets somewhere else. In the meantime, we should remember that the overseas territories are well ahead of most jurisdictions, including many G20 partners, in developing private registers.

In the exchange of notes in 2016, the overseas territories with significant financial centres each committed to holding central or equivalent registers of company beneficial ownership and to making information held on those registers available to UK law enforcement and tax authorities. Those arrangements are almost complete, with some of the territories understandably slightly delayed by last year’s devastating hurricanes.

Moreover, the overseas territories are separate jurisdictions with their own democratically elected Governments. The UK respects the constitutional relationship with the overseas territories and Crown dependencies. It is entirely right to work consensually with them, rather than to impose legislation. The UK has only legislated directly without the overseas territories’ consent in the most exceptional of circumstances, such as on capital punishment.

We do not generally legislate for the overseas territories, and to do so would have the effect of overruling their own legislatures and could be interpreted as disenfranchising the citizens who voted for them. The overseas territories have taken great steps forward in this area, further indeed than many other jurisdictions, and I urge the House to appreciate the importance of not jeopardising what has been agreed with them.

Until we leave the European Union, the United Kingdom will continue to exercise all the rights and obligations of membership, including with respect to common foreign and security policy, sanctions and anti-money laundering. After we leave, this Government intend to continue working closely with our European neighbours to ensure our collective peace and security. Sanctions and anti-money laundering regulations will continue to be a powerful tool in that effort.

Through this Bill, the Government intend to ensure that these important foreign policy instruments continue to be fully available for the United Kingdom to use wherever it is deemed appropriate so to do. I commend the Bill to the House.

To read the Hansard of the full debate see here. 

To read Nick's article on tackling tax havens see here.