Does the UK have an independent sanctions policy?

The poisoning of Yulia and Sergei Skripal in Salisbury earlier this year has raised questions about the UK imposing sanctions on Russia, and whether or not the UK has an independent sanctions policy. With the passage of the Sanctions and Anti-Money Laundering Act 2018, some have assumed that the UK can now impose sanctions without reference to the EU. The relevant parts of the Sanctions Act are not yet in force, but other pieces of legislation have been in force for some time, that allow sanctions to be imposed independently. Here we look at the existing powers available to the UK, and consider how Brexit will change sanctions policy.

 

EU powers are still being used until Brexit

At present the UK is using the European Communities Act 1972 to apply most sanctions, meaning that agreement at the European Council is needed. That is because, although legislation providing a new legal basis for sanctions after Brexit has been passed, the relevant sections of the Sanctions and Anti-Money Laundering Act have not yet come into force. The power to make sanctions regulations in Section 1 of the Act will be brought into force by the Secretary of State through regulation.

Section 1 of the European Union (Withdrawal) Act 2018 sets out that the European Communities Act 1972 will be repealed on exit day (March 29, 2019), so by then the sanction-creating powers in the 2018 Sanctions Act would have been brought into force. They would then become the main legal tool for imposing sanctions.

 

The UK’s independent powers

There are other pieces of legislation that give the Government sanction-making powers, however, without reference to the EU.

Anti-terrorism, Crime and Security Act 2001

Section 4 of the Anti-terrorism, Crime and Security Act 2001 provides powers to freeze assets if the Treasury reasonably believe that:

  1. action to the detriment of the United Kingdom’s economy (or part of it) has been or is likely to be taken by a person or persons, or
  2. action constituting a threat to the life or property of one or more nationals of the United Kingdom or residents of the United Kingdom has been or is likely to be taken by a person or persons.

If one person is believed to have taken or to be likely to take the actions outlined above, the second condition is that the person is—

  1. the government of a country or territory outside the United Kingdom, or
  2. a resident of a country or territory outside the United Kingdom.

The suspects in the alleged poisoning of Yulia and Sergei Skripal in Salisbury could eventually be found to meet these conditions, although the grounds for filing charges by the Crown Prosecution Service don’t yet reach the threshold for ‘reasonable belief’. If a future official investigation finds conclusive evidence that the suspects did indeed poison the Skripals, that could be enough to meet the conditions.The sequence of events leading to the freezing of the assets of the suspects in the Alexander Litvinenko case illustrates this.

In 2007, Andrey Lugovoi was charged with Litvinenko’s murder. A public inquiry was established into the death. The resulting Owen Report, published on 21 January 2016, found that the evidence the inquiry had seen “clearly establishes that […] Mr Lugovoy did in fact, with Mr Kovtun, poison Mr Litvinenko.” As a result, using the Anti-terrorism, Crime and Security Act powers, the Lugovoi and Kovtun Freezing Order 2016 was made on 22 January 2016.

Terrorist Asset-Freezing Etc. Act 2010

There is also the Terrorist Asset-Freezing etc. Act 2010,  which provides powers for imposing financial restrictions on persons believed to be involved in terrorist activities. The threshold in this legislation is “reasonable belief”, as in the Anti-terrorism, Crime and Security Act 2001.

The 2010 Act has not been used much, however. The Government is required to make regular statements on the operation of the UK’s asset-freezing regimes and the latest of these shows that the value of assets currently frozen under EU anti-terrorism regimes is far higher: only £9,000 is frozen under the 2010 Act, while close to £170,000 was frozen as at 31 March 2018 under the EU process.

 

What might happen post-Brexit?

Will Brexit and the establishment of a new legal framework for sanctions have a big impact? Or could the UK end up simply transposing EU sanctions regimes using its independent sanctions legislation?

The UK Government agrees that sanctions are more effective when coordinated with allies and says that the UK’s commitment to European security is unconditional. There will be close collaboration with the EU on sanctions and some sort of consultation mechanism will probably be set up.

But the Government says that sanctions policy will be ‘closely coordinated’ with the EU, not aligned, so a formal agreement to implement sanctions created by the EU seems unlikely.

 

Further reading

The future of sanctions, House of Commons Library.

 

Ben Smith is a Senior Library Clerk at the House of Commons Library, specialising in international affairs and defence.