Richard Ekins

Head of the Judicial Power Project Read Full Bio

Sir Stephen Laws

Senior Fellow, Judicial Power Project Read Full Bio

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Legislating about sanctions

Mar 5, 2022

 
The UK’s delay in imposing sanctions on Russian oligarchs and officials is verging on national embarrassment.  The delay undermines the foreign policy imperative of acting swiftly to punish Russia for its aggression, raising the material and psychological cost to the regime and chipping away at the Russian state’s capacity to maintain its lawless invasion. For obvious reasons, sanctions delayed may be much less effective than sanctions speedily imposed, because those who anticipate being targeted by sanctions will arrange their affairs accordingly.  The continuing delay in designating relevant Russian nationals also undermines the unity of the Western response to the invasion of Ukraine.  In contrast to its leadership on economic sanctions more broadly, the UK is lagging behind the EU and US in imposing sanctions on named individuals.

Why the delay and what can be done to overcome it?  Ministers are reportedly frustrated by the difficulty of designating named persons to be the target of sanctions, which seems to require a legal case to be worked up in relation to each individual, a case that needs to be watertight if the government is to avoid litigation seeking compensation for unjustified sanctions.  Oligarchs are likely to reach for their lawyers and the government – or at least the civil service – fears that unless a compelling case has been developed against each individual, it will lose in court.

It is likely that civil servants are being too cautious, failing to support ministers in moving boldly to impose sanctions on relevant Russian nationals.  It seems extraordinary that ministers have not yet acted against those who face sanctions in the EU or the US, relying on the fact that they have been designated by our close allies.  However, the problem is not just learned helplessness on the part of the civil service in the face of legal risk; the Sanctions and Anti-Money Laundering Act 2018 does make it difficult for ministers to act decisively.  

The 2018 Act distinguishes between sanctions imposed in order to comply with a UN obligation or another international obligation, on the one hand, and sanctions imposed for other purposes, including in the interests of national security, foreign policy, suppression of terrorism, and international peace and security.  In relation to the former type of sanctions, the process for designating a person to be the target of sanctions is relatively straightforward – we keep pace with, and rely on, the UN’s decision-making.  In relation to the latter, partly because of amendments made in the Lords, the process is more complex, with ministers having to satisfy themselves of the appropriateness and reasonableness of sanctions and to prepare a lengthy written case in relation to each individual.  The statutory language has been understood to import ECHR protections for the right to property and procedural fairness, which means that the idea of proportionality looms large, and the process for deciding to sanction any one oligarch or official has unsurprisingly become laborious, time-consuming and legalistic.  

Imposing sanctions on a person is a major decision, interfering with their property rights and freedom to travel and trade.  One can see why the House of Lords, in 2018, was concerned about the breadth of the sanctions regime and insisted on various procedural protections.  But this process is unworkable and inapt in the context of international armed conflict, where the UK is acting with its allies to punish and hobble the aggressor state.  Russia wields a veto so there is no prospect of a Security Council resolution in response to its invasion of Ukraine, but its actions warrant such a response and sanctions should be pitched accordingly.  

The solution is for Parliament immediately to enact emergency legislation that directly imposes sanctions on named Russian oligarchs and officials.  The legislation should list the relevant persons in a schedule, including at a minimum every Russian national who has been the target of sanctions by the EU and US.  We should be able to move in tandem with the EU and US as we do with the UN.  Civil servants might protest that without working up a case against each individual, as the 2018 Act requires, there would be no legal basis for imposing sanctions.  This would miss the point – the emergency legislation would itself provide the legal basis.  The legislation should authorise the Secretary of State to add the names of other Russian nationals to the schedule (or remove them from it).  The power could be limited to keeping pace with EU and US sanctions lists or, better, could authorise the minister to add any Russian national, other than a dual citizen of the UK, if the minister considers this justified in order to respond to the invasion of Ukraine.  

One objection to legislating in this way is that a bill that names individuals will be subject to the hybrid-bill procedure, which entitles the individuals in question to be heard and would make emergency legislation (enacted in one or two days) impossible.  The answer is that the Houses of Parliament should be invited, as in past cases, to approve a motion suspending the standing orders that require theconsideration and adoption of the hybrid-bill procedure.  The legislation is urgently required for foreign policy reasons, to help restore international peace and security, and should not be slowed down.

If sanctions on Russia and its nationals are directly imposed by primary legislation, there is much less risk of litigation undermining the sanctions regime.  The targeting of individual oligarchs would have a clear and unquestionable legal foundation, expressly ruling out payment of compensation.  The emergency legislation should enable the swift action that Russia’s lawless actions warrant, but this is consistent with maintaining procedural protections in due course, that is permitting individuals to ask ministers to reconsider their case or to access their funds for reasonable expenses.  The risk of injustice to the targeted individuals can be minimised and is not a reason for inaction.

Legislation of this kind – targeting named individuals and freezing their assets – might be compared to an Act of Attainder, but would not involve criminal punishment without trial.  This would be a remarkable exercise of legislative power but is justified in the circumstances, particularly as further delay might well result in avoidance measures being taken that would limit the effectiveness of the sanctions.  It would be comparable to implementation of a Security Council resolution targeting terrorists or others, which in our law is possible by way of secondary legislation.  It would be less harsh than measures taken in relation to Rhodesia and Apartheid South Africa, let alone in relation to enemy aliens during wartime, when legislation has authorised widespread seizure of property.  

The UK is not at war with Russia and avoiding a war involving a great power is a foreign policy imperative.  However, Russia is a hostile state engaged in lawless war which the UK is opposing by every means short of international armed conflict.  The UK would be within its rights to impose sanctions on all Russian nationals, dual citizens aside, denying them entry into the UK and freezing their assets.  This might well be counter-productive, and unjust, especially in view of how many ordinary Russians, especially those living in the UK, oppose the Putin regime.  But the point is that it is open to Parliament to impose wide-ranging sanctions on Russian nationals in response to the Russian state’s actions and it can do so immediately without first considering each individual case.  

Legislating in this way may be controversial.  It would, of course, limit property rights but it would not be an unreasonable interference with them and ministers should confidently assert that emergency legislation to this effect iscompatible with the UK’s international obligations.  The Strasbourg Court might take a different view in due course, but this seems unlikely, and is not a reason for Parliament to refrain from acting boldly to answer the Russian state’s lawless aggression.

Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government; Sir Stephen Laws KCB, QC (Hon) is Senior Fellow, Policy Exchange’s Judicial Power Project and former First Parliamentary Counsel

Richard Ekins

Head of the Judicial Power Project Read Full Bio

Sir Stephen Laws

Senior Fellow, Judicial Power Project Read Full Bio

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