The UK can build a world-leading sanctions regime that preserves human rights and the rule of law
The British flag flying over the Foreign, Commonwealth and Development Office in Whitehall. The creation of a new sanctions regime offers the UK a 'significant opportunity to demonstrate global leadership', Anthony Metzer QC writes
The development of the UK’s domestic sanctions regime is of critical national importance and presents a significant opportunity for the UK to demonstrate global leadership in the design and operation of effective sanctions rules.
Though the UK’s newly independent regime for now largely mirrors that of the EU, it is anticipated that the flexible framework put forward in the UK’s Sanctions and Money Laundering Act 2018 may lead the UK to diverge markedly from the EU sanctions model.
As UK sanction rules embed and evolve, government must be mindful of its responsibility to ensure new regulations reflect the UK’s longstanding commitment to the rule of law and the defence of human rights. This process may prove fraught; unless considerable care is employed, we risk accidentally building a system of sanctions that fails to respect precisely the values it purports to uphold. I consider designations made under anti-corruption sanctions regulations must meet a range of important criteria in order to be legally justified, reflecting accepted and overwhelmingly important principles of fairness, transparency and proportionality.
Ministers will need to recognise that in certain circumstances, anti-corruption sanctions are essentially penal in nature. Although the imposition of sanctions does not necessarily constitute a criminal charge, important questions nonetheless arise over the extent to which the human rights of a designated individual are adequately protected in accordance with Article 6 of the European Convention on Human Rights. A designation under anti-corruption sanctions is that the individual risks being denoted and punished for certain behaviour on the basis of effectively-assumed guilt. Careful thought should be given as to whether it is more appropriate to focus on very recent incidents of corruption which have been evidenced, rather than historical allegations which have never been the subject of a criminal prosecution.
To the extent that sanctions rest upon alleged criminal behaviour, the designated individual must be entitled to the presumption of innocence under Article 6, which requires them not only to be informed of the precise basis for the sanctions, but to be given adequate opportunity to prepare a rebuttal and question the evidence upon which the designation is founded.
The policy paper issued by the Foreign, Commonwealth and Development Office on 6 July 2020 represents a sound starting point in this regard. However, the Government should put forward significantly greater detail around the process to be used to collect and examine evidence. In gathering evidence, it must cast its net widely and seek to embrace all pertinent information of as great a specificity as possible, regardless of whether it strengthens or weakens the case for designation. The gathering of such comprehensive evidence must in turn be fully disclosed.
Furthermore, the scheme should expressly provide for due consideration to be given to the source from which the evidence is derived. Experience in the sanctions field suggests that pressure can be brought upon governments to impose sanctions for a multitude of reasons, in some instances concealing commercial motives that underly seemingly political or humanitarian justifications. For example, it may prove crucial to understand an NGO’s principal sources of funding when evaluating the quality and reliability of the evidence it has presented.
Equally, important questions must be asked over the standard of proof required when evaluating such evidence. UK sanctions law currently requires that only the lowest level of certainty be met to prompt the imposition of sanctions, namely where there are “reasonable grounds to suspect” the presence of proscribed behaviour. Given the enduring and potentially punitive nature of sanctions imposed upon an individual I consider it appropriate that a higher and therefore more robust standard of proof be adopted, whereby Ministers are only satisfied of the grounds for sanctions being imposed when evidence is to the criminal standard namely “satisfied so that they are sure”. An elevated standard of proof should be considered the base rate subject to possible lowering under identified specific circumstances only.
Where the appropriate standard of proof has been met, it is necessary that sanctions are proportionate to the infringement. Anti-corruption sanctions cover a wide variety of different behaviours, ranging in severity from globally significant violations to relatively minor infractions of local financial regulatory law. The UK’s anti-corruption sanctions regime should make account for these variations in transgressions to ensure a fair and proportionate response.
In considering a proportionate response, care must be taken to avoid double jeopardy. A formal mechanism must be included within UK sanctions regulations whereby proportionality decisions take express account of any other punitive measures imposed in respect of the same conduct, whether by way of sanctions or otherwise. The extra-territoriality of anti-corruption sanctions is of particular importance here, where the designated individual may face a wide range of regulatory, civil and criminal processes across a range of differing jurisdictions in respect of the same underlying matter. That risk serves to highlight the importance of global cooperation and alignment between domestic sanctions regimes.
The UK sanctions regime must also make clear provision for the termination of sanctions should a designated person demonstrate the precise behavioural change the imposition of sanctions sought to achieve. It is therefore essential that the regime provides a respected system for challenging not simply the initial validity of a designation, but also its continued justification over time. Without such capacity for regular reassessment, sanctions would violate the principle of rehabilitation that has underpinned UK criminal law policy for many decades. It is the promise of their removal that underlies the effectiveness of sanctions as a catalyst of behavioural change. UK sanctions regulations must therefore provide and abide by a clear pathway of the routes to removal from designation, including what tangible steps can be taken, such as cooperation with anti-corruption compliance programmes.
Ensuring effective and impartial oversight of the regime is a particular concern. Important questions remain as to whether government ministers and their departments can provide an adequate, independent tribunal for Article 6 purposes. Undoubtedly, the oversight of an independent judicial body going beyond mere judicial review would be of reassurance and therefore advantageous.
The Government may also wish to consider the possibility of a regime for the payment of compensation where it is subsequently determined that the evidence upon which a designation was made was inaccurate and therefore wrongly imposed, causing direct and identifiable loss to the designated individual.
Finally, the UK sanctions regime must make adequate provisions by which it proposes to protect the designation process from being prejudiced by, and from prejudicing, other regulatory and criminal procedures in respect of the same underlying factual circumstances. Clearly, sanctions designations should be published, not least to ensure the transparency and integrity of the whole regime; but in this regard, the publication of a person’s designation is likely to have a directly prejudicial effect on any trial in process or in the future which would amount to a risk of contempt of court in other circumstances.
The UK sanctions regime is at a significant moment. The Government needs to find a way to balance the competing priorities of, on the one hand, maintaining an uncompromising stance in opposing global corruption everywhere it occurs, whilst simultaneously upholding not only the human rights of those involved, but also the rule of law and democratic principles underpinning the whole regime.
Anthony Metzer QC is Head of Goldsmith Chambers
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