My Lords, I shall speak about Amendment 92 in the names of the noble Lord, Lord Coaker, and the noble Baroness, Lady Kramer, which would introduce a new clause headed:
“Asset freezing in respect of individuals considered for sanctions”.
Before I address that amendment, I need to give a fuller description of my interests—or, more accurately, my non-interests—than I would normally give. The reason for that is because in the House of Commons last week during the Second Reading debate on this Bill, Mr Matt Hancock complained that the 2018 Act contained amendments that
“came from those who are acting for oligarchs and then legislating for loopholes.”—[Official Report, Commons, 7/3/22; col. 31.]
The Home Secretary responded that she “wholeheartedly” agreed with Mr Hancock.
The position is this: with the noble and learned Lord, Lord Judge, who I see is in his place, I tabled amendments to what became the 2018 Act. They were designed to ensure a fair procedure and compliance with the rule of law. On Report, on 15 January 2018, the Government brought forward at column 442 amendments of their own on these subjects which were supported by me and, much more importantly, by the Labour and Liberal Democrat Front Benches. The House of Commons was content with the provisions approved by your Lordships’ House.
It is correct that in 2017 and 2018 I did not mention that I have advised and represented one client on sanctions matters in the last 10 years. I mention it today for the avoidance of any doubt. It was President Putin’s close associate Arkady Rotenberg. I represented
him in 2014 and 2015 in the Court of Appeal on a sanctions issue in family law proceedings. I also advised him in relation to his claim in the General Court of the EU in mid-2015 challenging the sanctions against him, although I did not represent him at the hearing of his case in Luxembourg in 2016.
Of course, I did not put forward amendments to the sanctions Bill in late 2017 and early 2018 to legislate for loopholes. I put forward amendments with the noble and learned Lord, Lord Judge, as I have done on so many other Bills, because I am concerned about the width of ministerial powers and the need for fair procedures.
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I did not refer to the Rotenberg case in 2017 and early 2018 because the Guide to the Code of Conduct, even in the latest version, makes clear at paragraph 111 that:
“Declarable interests are usually current interests … Former interests may exceptionally be declarable”.
I took the view—I hope correctly—that there was and is no exceptional reason to refer to the Rotenberg matter. First, I had done no work for Mr Rotenberg for over two years and secondly, as the Minister, the noble Lord, Lord Ahmad of Wimbledon, said at Second Reading, the Bill was
“about powers and not policy”.—[Official Report, 1/11/17; col. 1374.]
He described it as “a technical Bill” to create a legal framework for a domestic sanctions regime after we left the EU. In his closing speech at Second Reading, the Minister said that
“it is a Bill based on principle”.—[Official Report, 1/11/17; col. 1420.]
I also did not think, and do not think, that I need exceptionally to refer to a past case because of the role of a barrister. I advise people on the law and argue their case in court, whoever they are and whether I agree with them or find them or their views or their conduct objectionable or, indeed, reprehensible. It is my professional duty under the Bar code of conduct. To quote from the code of conduct, a barrister cannot refuse to represent a potential client
“on the ground that the nature of the case is objectionable”
or
“on the ground that the conduct, opinions or beliefs of the prospective client are unacceptable to him or to any section of the public”.
The code of conduct adds that any such discrimination is
“inherently inconsistent with your role in upholding access to justice and the rule of law”.
I am quoting from the Bar Standards Board Code of Conduct, rules C28 and C29.d and the guidance at gC88.
The fact that I advised and acted in 2014 and 2015 for Arkady Rotenberg certainly does not mean that I support his conduct, sympathise with him, or would wish to change the law to promote his interests or those of other friends and associates of Putin. Indeed, I have also acted in the last 10 years for Mikhail Khodorkovsky, a prominent opponent of Putin who, for that very reason, spent many years in prison in Siberia. I represented him and his business partner in the European Court of Human Rights in a series of cases which established that they had not received a fair trial.
I am grateful to noble Lords for giving me the opportunity to explain the position. I very much care about the opinion of noble Lords and my reputation in this House. I have no declarable interests and I did not have any in 2017 and 2018
I turn to Amendment 92. I can understand that the 2018 Act needs revision in the light of President Putin’s appalling behaviour. I can understand concern at the slow pace at which the Government have proceeded to sanction individuals. I do not accept that the contents of the 2018 Act explain that slow pace. The EU has acted much more speedily even though it has a general requirement that sanctions, like any other administrative action, must satisfy a test of proportionality and comply with the European Convention on Human Rights. The real impediment to speedy action here—it is the subject of Amendment 92—is the lack of sufficient officials to address the cases.
In my opinion, Amendment 92 is unnecessary. Clause 53 introduces a new urgent procedure to designate anyone who has been sanctioned by the EU, the USA or our other allies and I do not understand or accept why another urgent procedure is required, especially one that will impose very substantial restrictions on individuals merely because, to quote Amendment 92, a person
“is being considered as a subject for sanctions.”
That would be an enormously broad discretionary power for the Secretary of State in circumstances where he or she does not currently have a proper basis for making a designation.
The power would be draconian indeed. Simply because the person is being considered for sanctions, they would, under proposed new subsection (3), only be allowed on pain of criminal penalty to spend money to meet “basic needs”, which are confined to ensuring
“that they and … family members are not imperilled.”
This could go on for six months, until the Secretary of State decides, as may be the case, that there is no basis for designating such a person.
As the noble and learned Lord, Lord Hope of Craighead, said in paragraph four of his Supreme Court judgment in HM Treasury v Ahmed in 2010, to freeze the assets of people makes them
“effectively prisoners of the state”.
The noble and learned Lord added that designation orders are
“intrusive to a high degree”.
There are, of course, cases where designation orders are appropriate and we have seen many of them in the last weeks, particularly in the last few days. But I do not accept that it is appropriate or necessary for Ministers to have a power to freeze someone’s funds simply because they are being “considered” for sanctions. That would be an unacceptably broad power which would be quite impossible to reconcile with the rule of law.