Rules of the Court of Judicature (Northern Ireland) (Amendment) (EU Exit) 2019 Civil Procedure (Amendment) (EU Exit) Rules 2019

Stephen Doughty Excerpts

Monday 25th February 2019 General Committees

[Sir Alan Duncan]

It is a pleasure to serve under your chairmanship, Ms McDonagh.

Colleagues will recall that the Sanctions and Anti-Money Laundering Act 2018 provides the UK with the legal powers to impose, update and lift sanctions regulations, and to update our anti-money laundering framework after we leave the EU. An important feature of the sanctions Act, which was discussed in detail during its passage, is the right provided to designated persons to challenge their designation. Chapter 2 of the Act provides a route for the designated person to request that the Minister carry out an administrative review of their designation.

The Sanctions Review Procedure (EU Exit) Regulations 2018 came into force on 7 January and set out the process to be applied in relation to such reviews. A review could be requested for various reasons, including when a designated person believes that the reasons for their designation are incorrect or that particular information associated with the designation is not correct. If, following the review, the Minster’s decision is to uphold the designation, the designated person has the right, under section 38 of the sanctions Act, to apply to the High Court in England and Wales and in Northern Ireland, and to the Court of Session in Scotland, to have the decision made against them set aside.

The statutory instruments set out the process that is applicable to such court challenges. They are a technical step in the establishment of the new autonomous UK sanctions regimes. They make technical amendments to the Civil Procedure Rules 1998 for England and Wales, and to the Rules of the Court of Judicature (Northern Ireland) 1980. They do not make any new substantive provisions. The instruments provide the procedure that will apply when challenges to sanctions decisions are brought before the courts of England and Wales and of Northern Ireland under the 2018 Act.

[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

Will the Minister give way?

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[Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)]

It is a pleasure to serve under your chairmanship, Ms McDonagh.

I have a few questions for the Minister, the first of which is a technical one. There is no statutory instrument for Scotland, so I assume a similar process is being gone through in the Scottish Parliament or in a different statutory instrument Committee. Will he clarify that, so that we have coherence about the sanctions regime across the UK as a whole?

Secondly, I share the concerns of my hon. Friend the Member for Bishop Auckland on the Front Bench about the use of secret courts and closed sessions more generally. Having served alongside those working in government and with sensitive material, in particular in the international sphere, I understand the need for such courts in certain cases, but I believe fundamentally that those cases should be very restricted. We do not want to set any wider precedent for our courts or such services.

[Helen Goodman]

The other thing that the statutory instrument lacks is any process for review of how the process is working—not the individual sanctions, but the process and its secret aspect.

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[Stephen Doughty]

Indeed. I was going to ask the Minister a similar question—who will act as an oversight body? Will it be the Lord Chancellor or the Ministry of Justice, or will an independent body review such materials? Will individuals who are security cleared to the appropriate level, for example, review how information is used and whether those secret sessions are operating appropriately? Personally, I am always happy to accept the independent assurances of those with the appropriate clearances who review such matters, but will the Minister reassure us at that level?

I ask that because I have concerns about how secrecy is used in other cases, such as under the arms export control legislation. For example, secret hearings were held about the arms sold to Saudi Arabia in relation to Yemen. Obviously, in most cases I want to be able to support the Government in their efforts to impose sanctions on those who have done wrong or put our national security or financial services under threat, but the danger is that by using such powers in this area, we might unnecessarily set a precedent in other areas, which could be used by the Government to go about business that I believe should be fully in the public domain, with the appropriate oversight.

Will the Minister tell us what additional steps are being taken to ensure that there are safeguards for those wrongly caught up in sanctions and anti-money laundering legislation? The statutory instruments are part of that, but many of us had the experience of being caught up in the new PEP—politically exposed person—regulations. Doing simple transactions as an MP or a person of public interest is often a lot more difficult these days because we are subject to those safeguards. I totally appreciate why they need to be in place, but in some cases individuals wrongly end up on sanction or travel ban lists just because of their name—a mis-spelling or a common name—with those of Islamic or middle eastern origin often being confused. Will the Minister provide some reassurances about how such people can receive redress?

Overall, in relation not only to the statutory instruments but to the more general Brexit legislation in this area, does the Minister believe that there will, regretfully, be a degradation in our ability to co-operate with others across Europe on such matters? One of the strengths of the European sanctions regime has been the co-ordinated effort by many countries that are interlinked financially and in other respects. Unfortunately, by setting up our own separate regime, however much we choose to ally ourselves with countries across Europe, we risk creating loopholes and gaps for individuals to exploit.

I appreciate that in some areas we could apply higher sanctions and tests, which others may not agree with, but can the Minister provide reassurance in that respect, not least given the involvement of Russia and other foreign states, and of individuals with money, in attempts to undermine our democratic processes—the very actions that these rules are concerned with? The public and those investigating these matters have many unanswered questions.

[Sir Alan Duncan]

I am grateful to hon. Members for their pertinent questions. Let me first address the general point on the right to challenge that the hon. Member for Bishop Auckland made at the beginning of her comments.

When we were preparing the 2018 Act, I sought ardently to ensure that there were initially easy ways of challenging a designation. If we get the wrong Igor or the wrong Ahmed, for instance, it is right that someone should be able to walk straight into the government system—I am exaggerating, but hon. Members know what I mean—and say, “Oi, you’ve got the wrong bloke here,” without having to go to court. I thought it was very important for the 2018 Act to contain a process that allowed someone inexpensively, and simply by presenting the facts, to point out where a mistake might have been made, rather than having to spend a lot of money with lawyers. One of the reasons I felt so strongly about that is that 15 years ago, a company in my constituency was sanctioned because someone got the wrong company of the same name. I therefore thought it was very important to embody that early stage of redress in the process.

However, inevitably, in this world of sanctions, where we are dealing with people who may be very rich or corporately very clever and sneaky, we must also have a proper court process. [Interruption.] Excuse me—say something!

[Stephen Doughty]

The Minister is making an important point about redress. We share information about sanctions and those who are sanctioned with our Five Eyes partners and others. Perhaps he will confirm, after he has enjoyed a drink of water, the importance of having redress numbers and other identifiers so people are not caught up in the US electronic system for travel authorisation, for example.

[Sir Alan Duncan]

May I express my deep gratitude to the hon. Gentleman for his learned and well-timed intervention?