The noble and learned Lord made me imagine Henry VIII’s boots for a moment.
As regards thinking, I am forever thinking; I think it is a good thing to do. The Government are reflecting very carefully on all elements of the arguments noble Lords are putting forward on these amendments. I will say at the outset that I can see that a number of these amendments gather around a central theme—namely, the appropriate roles of Parliament and the Government when creating and implementing future policy on sanctions. I assure noble Lords that I recognise that this is a difficult balance to strike. As power flows back to the United Kingdom from the European Union —I say to the noble Baroness, Lady Northover, that it is a case of “when” we leave the EU—it will not be appropriate to simply follow the model in the European Communities Act 1972, where decisions of the EU either apply directly in UK law or are implemented through statutory instruments following the negative procedure.
I assure noble Lords that we have tried hard to strike the balance correctly in this Bill and ensure that Parliament has the right level of oversight of the Government’s exercise of sanctions policy. For example, we have ensured that the UK autonomous sanctions regulations must be approved by Parliament before they are put in place. I continue to listen very carefully to the points that have been made about the need for proper parliamentary scrutiny. I assure noble Lords that I will continue to reflect on those points—and not just in respect of these amendments.
It is perhaps worth remembering that sanctions are, in essence, as I have said repeatedly, a matter of foreign policy and national security, which fall more to the Government than Parliament. This was recognised by the great constitutional lawyer A V Dicey, who wrote that the “right of making treaties” was,
“left by law in the hands of the Crown, and are exercised in fact by the executive government”.
That is also the practice in other western countries with national sanctions regimes and legislation, such as Canada and Australia.
On the amendment we are discussing, it is important to recognise that the imposition of sanctions is not a punishment but an attempt to change the behaviour of those who are acting in a threatening or unacceptable manner. That is why the provisions provide ways of suspending, amending and revoking sanctions. Iran is an example of where sanctions have been suspended. Under the 2016 nuclear deal, Iran sanctions can be “snapped back” by the EU if there is a breach of the international commitments made by Iran in relation to nuclear development. Noble Lords will be aware that those suspension arrangements were part of a delicate political balancing act, which the UK is working hard with the EU and other partners to preserve.
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Amendments 63 and 64 seek to change the proposed procedures for approving the suspension of regulations. They would allow the Government to suspend regulations by procedures already outlined in the Bill for three 12-month periods. To suspend for more than three 12-month periods would require approval via the draft affirmative procedure. The proposed 12-month period for suspensions would not be suitable in all cases. It would restrict the ability of the Government to use their discretion on how long sanctions should be suspended to encourage improved behaviour. As it stands, the Bill allows the Government to determine the period of suspension, tailored to specific circumstances, including international commitments, such as those under the Iran nuclear deal. A yearly review and triennial vote may force the Government to publicly intervene in a way that may not be conducive to facilitating the improved behaviour that sanctions ultimately aim to achieve.
Amendment 64 would require any suspension to be approved after three years via the draft affirmative procedure. While recognising the importance of parliamentary oversight, the Government disagree with the amendment. As the Bill stands, regulations that suspend sanctions are subject to the negative procedure. Suspending sanctions lifts the prohibitions that impact on designated persons; that is one reason why we do not think that suspension justifies the higher level of scrutiny attached to creating sanction measures in regulations. In addition, the Government will be able to act more nimbly and confidently in international negotiations if the express approval of Parliament is not required to suspend sanctions.
Turning to revocation and the amendment of regulations, I recognise that these decisions merit close scrutiny, based on a careful assessment of whether the sanctions have achieved their political objective. Amendments 65, 67 and 68 seek to subject the revocation
of sanctions to the draft affirmative procedure, as well as obliging the Government to submit, alongside any regulation revoking sanctions, a written memorandum setting out the rationale of the original purposes of sanctions, as outlined in Clause 1. While agreeing with the principle of parliamentary scrutiny, I believe that the Bill as drafted provides the appropriate mechanisms.
Turning to UN sanctions, revocation would be an automatic response to a decision of the UN Security Council. Subjecting this to a draft affirmative procedure would introduce unnecessary delay and create doubt over whether we would fulfil our international obligations. In turn, this could complicate the international diplomacy necessary to secure changes of behaviour by those subject to UN sanctions, as I have already indicated with an example.
In the case of UK autonomous sanctions, the regulations could be revoked only by using the “made affirmative” procedure, allowing parliamentary oversight. To subject revocations in UK autonomous regimes to the draft affirmative, rather than “made affirmative”, procedure would slow down the process and potentially prevent us from acting in tandem with our allies. Given that revocations have only positive effects on the individuals concerned, we believe that this is an appropriate level of oversight and allows for sufficient flexibility and international co-ordination.
Amendment 72 would remove from the Bill the power to make certain modifications to existing primary and secondary legislation through regulations made under the Sanctions and Anti-Money Laundering Bill. Instead, future amendments to primary legislation would also need to be made through new primary legislation.
I recognise the concern in your Lordships’ House about the breadth of the regulation-making powers conferred by the Bill. The issue came up both at Second Reading and in Committee. But I hope that I can reassure noble Lords that the scope of the power in Clause 44(2) is limited: it can be used only to make provisions that are consequential, supplemental or incidental to the sanctions, and cannot be used for any changes to legislation that are independent of those sanctions or are not necessary to enable the sanctions to function. It does not give the Government a free hand, but rather confers on them a tool to make small changes that are necessary to make the main sanctions work.
However, I would like to explain one of the purposes for which this subsection has been included. On our departure from the European Union, all EU regulations, including those that implement sanctions, will be incorporated into UK law through what will become the European Union (Withdrawal) Act. This subsection provides the Government with the power to revoke EU sanctions regulations at the moment when we create our own UK sanctions regulations to take their place. It will, in our mind, provide legal clarity in this area by removing overlapping laws. It will also allow amendments to be made to other Acts of Parliament, but only where this would be needed to ensure that the UK sanctions regulations work properly. Inclusion of this power will help to ensure a smooth transition and avoid the lengthy delays that might be involved in
handling all of this through primary legislation. There are good precedents for this approach. Just as an example, I refer noble Lords to Section 85 of the Serious Crime Act 2015.
In line with the recommendations of the Delegated Powers and Regulatory Reform Committee, any regulations made which use this targeted power must be made under the draft affirmative procedure, so any proposed changes would not come into effect unless and until both Houses have given their assent. I have spent some time giving a detailed outline of the Government’s position and I hope that, with that explanation, noble Lords will be minded not to press their amendments.