My Lords, first, I thank the noble and learned Lord for tabling his amendment. Again, I also thank him for the extensive discussions we have had in this respect.
The amendments seek to remove the ability to make provision in sanctions regulations creating offences for breaches of sanctions. I say from the outset that I sympathise with the concerns that noble Lords have expressed during various parts of the debate, not just today but in previous stages. I am sure noble Lords will also acknowledge that we have done a lot of work to try to respond to these concerns. I have tabled some government amendments in this area, which the noble Lord, Lord Collins, acknowledged.
The powers in question enable offences to be created for breaches of sanctions, in line with our current practice when implementing EU legal acts. They also enable other enforcement tools to be used, such as deferred prosecution agreements or serious crime prevention orders. Having the power to punish individuals and entities for breaching sanctions deters non-compliance and ensures the measures are robust. Sanctions without teeth, as I am sure noble Lords acknowledge, are essentially meaningless. Indeed, we debated earlier an amendment that would have included preventing,
“the violation of sanctions regulations”,
as one of the explicit purposes to be set out in Clause 1. Although I argued against that amendment on technical grounds, I agree with the spirit.
EU sanctions against countries such as Russia and Syria are imposed through EU legal acts that require member states to put in place enforcement measures at a national level. In line with that requirement, the UK routinely creates criminal offences for breaches of sanctions by way of statutory instruments made under
powers in the European Communities Act 1972, as well as other legislation such as the Export Control Act 2002 and the Policing and Crime Act 2017. Other EU member states implement similar enforcement measures through their national legislation.
As foreshadowed in the White Paper consultation before this Bill was introduced, the Government want to be in a position to maintain continuity in this area. Whatever one’s views on Brexit, I think there is wide support for the principle that the UK and EU should remain closely aligned on sanctions policy. If the UK’s future sanctions regime against Russia was stripped of any enforcement provisions, I am sure noble Lords would agree that this would send a very unfortunate signal to our EU partners and to other close allies. Amendments 45 and 47 would mean that breaching a sanctions regime would not be an offence. If they are passed, as existing criminal offences in EU retained law fall away when new UK regimes are introduced, we would be unable to replicate those offences in the new regimes.
We have covered some of these issues previously, and I hope that what I have said will persuade the noble Lord to withdraw his amendment. As I have said, I understand the concerns that have been expressed, including today, about the scope of these powers and will set out in a moment the government amendments that I have tabled in response. But the abolition of offences from sanctions regulations clearly undermines the purpose of the Bill and would make the UK a weak link in broader international implementation of sanctions, which I am sure is not noble Lords’ intention. I know and totally accept that this House is concerned about the creation of criminal offences through secondary legislation, a point eloquently made by the noble and learned Lord, Lord Judge, the noble Lord, Lord McNally, and my noble friend Lord Deben. I can provide this House with the following reassurances.
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First, the powers in Clause 16 would be used only to create offences within categories of offences that already exist in relation to sanctions. The categories are: offences for breaching prohibitions and requirements contained in sanctions regulations made under the Bill—for example, breaches of the prohibition on exporting items to North Korea—and offences relating to prohibitions or requirements imposed under regulations made under the Bill, such as breaches of or the circumvention of licence conditions.
The powers would not—indeed, could not—be used to create any new terrorism offences other than those relating specifically to sanctions. The Bill repeals the sanctions regime under Part 1 of the Terrorist Asset-Freezing etc Act 2010 and aligns counterterrorism sanctions with other sanctions. This was of course first proposed in the White Paper. The government response to the consultation made it clear that consolidation of all counterterrorism powers was beyond the purpose of the Bill, the primary objective of which was to allow the Government to implement UN sanctions and impose UK autonomous sanctions after the UK leaves the EU. It indicated that the sanctions Bill would sit alongside other extant counterterrorism legislation, providing specific counterterrorism powers in relation to sanctions only.
I assure your Lordships that the powers in Clause 16 are accordingly limited to enforcement in relation to sanctions made under the Bill: the Bill does not give Ministers the powers to create any wider terrorism offences, nor does it change or repeal any other legislation dealing with terrorism offences. The Bill and the counterterrorism sanctions made under it will work alongside the other legislation that operates in this sphere.
Secondly, an appropriate Minister could not use these powers in a way that was incompatible with the basic and fundamental rights of people subject to UK jurisdiction. Section 6 of the Human Rights Act 1998 forbids it.
Thirdly, we do not intend to create offences with maximum penalties higher than those currently set out in existing legislation. The existing maximum sentences for breaches of trade and financial sanctions will be based on existing primary legislation. These are 10 years for trade sanctions, based on the Export Control Act 2002, and seven years for financial sanctions, based on the reforms made by the Policing and Crime Act 2017. We are well aware that imposing criminal offences and setting penalties is a serious matter not to be undertaken lightly. In addition to the protections already built into the Bill, I have therefore tabled government amendments that offer additional safeguards in relation to Clause 16.
Amendment 46 deletes the wording “defences and evidentiary matters” and replaces it with “including provision creating defences”. This retains the Government’s ability to create defences in regulations, including any defences that already exist for sanctions offences in the current law, while removing their ability to make provision for unspecified evidentiary matters. I recognise this has been a focus of criticism in your Lordships’ House, and I hope that the new drafting makes it clear that the Government are not removing defences or protections in the rules of evidence.
Amendments 48 and 49 would make clear in the Bill “the maximum permitted period” for prison sentences in the cases of different prohibitions and requirements. For breaches or circumvention of licence provisions and information provisions, the maximum permitted sentence will be two years’ imprisonment, and for breaches of sanctions prohibitions and requirements, up to 10 years. These reflect existing maximum sentences established through primary legislation, which would be unaffected by this Bill.
Together with the reassurances I have offered, I hope that these government amendments will go further to convince noble Lords that sufficient safeguards are being put in place regarding the creation of offences through sanctions regulations, which I know has been a primary concern for the noble and learned Lord, Lord Judge. Preserving these provisions is crucial to ensure that the Bill achieves its purpose and that the UK can continue to implement and enforce sanctions in lock-step with the European Union, the US and other close allies.
The noble and learned Lord, Lord Judge, said there was no need for these powers. I stress again that without this power we would have no offences for
sanctions such as those relating to Russia and Syria, which currently emanate from the EU. These sanctions would not fall within international obligations after the UK leaves the EU. Moreover, as the noble Lord, Lord Collins, alluded to, the Delegated Powers Committee acknowledged in its report that it was appropriate to use secondary legislation to legislate for sanctions and the powers that need to be widely drawn to cater for the broad range of circumstances in which they need to be applied.
I have said that I have listened, and I continue to listen. I appreciate the time and concern that the noble and learned Lord, Lord, Lord Judge, in particular, has taken, and the detail into which he has gone. The Government appreciate the concerns that have been raised. I give a commitment that, as the Bill proceeds through this House and the other place, we are willing to work with noble Lords further to explore this area. In particular, we would like to explain further some of the difficulties—we have had some of these discussions with the noble and learned Lord—associated with the suggestion that an offence in the Bill could safely and coherently apply to a prohibition contained in sanctions regulations yet to be written. I therefore hope that noble Lords, particularly the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, will take up the offer of a further meeting. I was seeking to confirm this not only with the Bill team but with parliamentary counsel to ensure that we can explain the difficulties and challenges. I know that the noble and learned Lord acknowledges the complexity of what is proposed.
With those reassurances, qualifications, checks and balances, and in the light of the government amendments that have been tabled, I hope the noble and learned Lord is minded to withdraw his amendment.