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Extraterritorial US Legislation (Sanctions against Cuba, Iran and Libya) (Protection of Trading Interests) (Amendment) (EU Exit) Regulations 2022

Volume 826: debated on Monday 5 December 2022

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Extraterritorial US Legislation (Sanctions against Cuba, Iran and Libya) (Protection of Trading Interests) (Amendment) (EU Exit) Regulations 2022.

My Lords, I am pleased to open the debate on this instrument, which amends the Extraterritorial US Legislation (Sanctions against Cuba, Iran and Libya) (Protection of Trading Interests) Order 1996, which I shall refer to from here as the 1996 order.

It aims to correct a minor and technical deficiency arising from the United Kingdom’s withdrawal from the European Union. Specifically, it updates a single cross-reference to Section 30(3) of the Small Business, Enterprise and Employment Act 2015, so that it matches an update made to that provision that was itself made during the withdrawal process. That is all this instrument does; it really is a very minor and technical amendment.

However, as noble Lords might expect, I will provide as much information as possible on the background to this instrument. The 1996 order is part of the legislation setting out the United Kingdom’s protection of trading interests regime. This also includes the Protection of Trading Interests Act 1980 and the retained version of Council Regulation (EC) 2271/96, the EU version of which is also known as the blocking regulation or the countermeasures regulation.

Together, these concern a matter vital to the interests of the United Kingdom as an international trading nation: they seek to protect against and counteract the effects of so-called extraterritorial domestic legislation made by other countries. That is legislation that seeks to enforce those countries’ economic and commercial policies beyond the normal bounds of national jurisdiction as recognised in international law.

To provide your Lordships with an example, most countries impose sanctions on persons that rely on either a territorial or nationality-based jurisdictional nexus. To be clear, when I say “persons”, I mean both individuals and corporations. However, certain countries claim extraterritorial jurisdiction to apply sanctions beyond their borders to all persons, regardless of their connection to the issuing country. These measures can be unilaterally deployed by third countries to coerce UK operators to withdraw from activities that are otherwise lawful in the UK—in effect, imposing their domestic law extraterritorially. These currently include US sanctions against Iran and Cuba.

Despite the title of the 1996 order, this instrument does not currently concern US sanctions against Libya. When the 1996 order was originally drafted, one of the proscribed sanctions laws for the purposes of the blocking regulation was the United States’s Iran and Libya Sanctions Act of 1996. This was removed from the list of proscribed US legislation in the blocking regulation by an amendment in 2018. In practice, this issue of extraterritorial sanctions legislation primarily arises in relation to the US, although it is right that we take similar action against other countries as the necessity arises.

By way of a more concrete example, consider a UK company with no connection to the US importing something—shall we say cigars?—to the UK from Cuba. It might find itself being denied insurance for those imports by a UK bank, on the grounds that providing such insurance could breach US sanctions laws. The protection of trading interests legislation provides that it would be unlawful for the bank to refuse insurance on this basis, protecting the importer’s trading interests and those of the UK more broadly.

The function of the retained blocking regulation and the 1996 order is then to protect UK entities from being forced to comply with such extraterritorial laws, including sanctions. The retained blocking regulation also allows UK entities to recover damages arising from the application of sanctions imposed by another country.

I now turn to the detail of the instrument before us. The 1996 order initially provided the mechanism for implementing the EU blocking regulation in domestic law by setting out the offences and penalties relating to that regulation. It has continued to provide the same function in relation to the retained blocking regulation.

Article 4 of the 1996 order, as amended in 2018, sets out various requirements for carrying out a five-yearly review of the regulatory provisions contained in that order. In particular, Article 4(4) cross-references and paraphrases Section 30(3) of the Small Business, Enterprise and Employment Act 2015. That cross-reference specifies that a review carried out under Article 4 must, as far as is reasonable, have regard to the rules on penalties applicable to infringement of the EC countermeasures regulation and the measures taken to implement them in other EU member states.

There are two deficiencies in the current drafting. First, the cross-reference to Section 30(3) of the Small Business, Enterprise and Employment Act 2015 is out of date and does not reflect changes made to that section following the UK’s withdrawal from the EU. Secondly, similarly, following our withdrawal from the EU, the EC blocking regulation no longer applies to or in the UK. Therefore, the instrument seeks to both update the cross-reference to Section 30(3) and remove the obsolete reference to EU law and EU member states. Instead, the replacement text provides for considering other applicable international obligations, in line with the current wording of Section 30(3). This will allow us to tailor our assessment to the UK’s relevant international obligations and properly reflect our departure from the European Union.

As I said at the beginning, the proposed amendment is a technical fix; it does not change His Majesty’s Government’s approach to this issue. Ultimately, the blocking regulation has a single and non-contentious objective: to ensure that commercial decisions by UK persons are not subject to the extraterritorial laws of other countries which exceed the boundaries of the international law on jurisdiction. The instrument laid before this Committee ensures that the 1996 order, as amended, remains fit for purpose. I beg to move.

My Lords, I thank the Minister for that explanation, which I understand. There seems to be a theme in these SIs this afternoon. The Explanatory Memorandum explains that the change is needed to

“correct deficiencies arising from the UK’s withdrawal from the EU”

and to

“ensure consistency across the statute book”.

I must say that I smiled when I read this. Does it give the Minister pause for thought? As was referred to in the previous debate, who knows how many SIs would need to pass through Parliament to meet an arbitrary deadline for the removal of vast amounts of EU-derived legislation if we are dealing with this kind of problem this afternoon? What inconsistencies, deficiencies and unintended consequences does he think that would have while departments are also trying to get on with their primary purposes? My sympathies—as also expressed by the noble Lord, Lord Benyon—are with the officials having to pump these things out and deal with all the corrections, as we saw with the last group of statutory instruments and as we will see with the following ones.

However, since we are discussing this, I ask the Minister: do we remain totally in line with the EU in relation to sanctions, given that we know that sanctions applied by a number of jurisdictions are more effective than acting alone? The noble Lord, Lord Ahmad, readily agrees to and rightly emphasises that.

We know that, in relation to Cuba and Iran in particular, we are not always in alignment with the United States. That is one reason why we need this SI. We also know that sanctions applied to companies by the United States have a chilling effect far further and that even if the UK exempts companies from sanctions, which is appropriate, their concern about ending up in the US courts can mean that they nevertheless pay particular heed to the US sanctions. That is not really dealt with by this tinkering with the deficiency.

Can the Minister say what conversations are occurring in regard to Cuba, for example? There was a significant thawing of relations between Cuba and the United States in recent years, particularly since the end of Castro’s period. I am slightly surprised that we need to deal with some of the restrictions put in place in earlier years.

Can the Minister also update us in relation to Iran? That is another area where we have not always been in alignment with the United States. For example, we and the EU support the Iran nuclear deal that President Trump pulled out of. I wonder whether we are more aligned now as attempts are made to reinstate that nuclear deal, which was negotiated primarily by the noble Baroness, Lady Ashton, within the EU.

As I said, my sympathies are very much with the officials having to deal with this, but it is nothing by comparison with what the Government apparently wish to do over the next year. I would like the Minister to comment on that and I look forward to his general response.

My Lords, I thank the noble Viscount, Lord Younger, for his characteristically thorough and detailed explanation of this regulation before the Committee. I gave notice to him that I would be brief, and I intend to keep to that.

As we have heard, this SI updates the cross-reference in Article 4(4) of the 1996 order to reflect the wording in Section 30(3) of the 2015 Act, as amended by the EUWA 2018, and remove the reference to the EU countermeasures regulation. That is the sexy bit of what I am going to say.

Obviously, this side of the Committee supports the regulations, but I have a couple of questions for the Minister, if he would care to speculate. First, what would the implications have been if this had not been fixed—can he speculate on that? Secondly, are any further changes expected or anticipated, especially given that the previous update to legislation seemed to have missed these specific updates which are now before the Committee? With that, I shall leave it to the Minister to consider briefly, and perhaps he can give us a response.

My Lords, I thank the Committee for its response and thank the noble Baroness, Lady Northover, and the noble Lord, Lord Lennie, for their general support for these regulations. I will do my best to answer the rather rapid series of questions that cropped up.

I start by gently saying to the noble Baroness, Lady Northover, that she asked a few slightly leading questions about pausing for thought and inconsistencies and deficiencies. I ask her to forgive me for saying so, but we have left the EU and we need to make the very best of it. This is part of that, and however many SIs we need to take through this Committee or indeed the Chamber, that is the way it should really be. But I hope I can answer some of the noble Baroness’s questions as well.

On her question about Cuba, the UK considers that the continued US embargo against Cuba is counterproductive, and we consistently vote in support of the annual United Nations General Assembly resolution calling for it to be lifted. The UK continues to consider the activation of Titles III and IV of the Helms-Burton Act, which strengthen and continued the embargo against Cuba, to be contrary to international law. We have made our position very clear on that and regularly engage US officials on this issue through our embassy in Washington, as well as with the US embassies in Havana and London. That gives a very much high-level answer to the question, which I hope very much helps the noble Baroness.

On the noble Baroness’s question about Iran, it is fair to say that we are all appalled by what is going on there and we will continue to hold Iran to account for its repression of women and girls and the shocking violence it has inflicted on its own people. Across international fora and working closely with our partners we will continue to expose the regime’s appalling human rights violations, pursue accountability and amplify the voice of the Iranian people. I note that the noble Baroness raised the issue of a nuclear deal; something may be forthcoming on that in a moment and, if it is not, I shall certainly write to her, because that is germane.

The noble Lord, Lord Lennie, asked a couple of questions. I think one of them was about what happens if this instrument does not pass—in other words, how significant is this SI for life, if I may put it that way. The DIT could be expected to then publish a report regarding penalties applicable in the EU and measures taken to implement EU law, specifically EC Regulation 2271/96, by EU member states, notwithstanding that the EU law in question no longer applies to the UK. That is a slightly detailed answer. Therefore, it is important that we pass this legislation.

On the question raised by the noble Baroness, Lady Northover, of whether we remain in line with the EU on sanctions, she will be aware that this instrument does not concern UK sanctions directly. However, we continue to work closely with the EU on sanctions and seek to align where appropriate. On the question, from the noble Lord, Lord Lennie, of whether any further changes are required, the answer is no. I hope that is a very succinct repeat of his question and a succinct answer.

As I said earlier, this amendment is very much a technical fix. I am gaining a reputation for taking through some rather detailed minor and technical legislation, but nevertheless, as ever, each piece is important in its own way. The instrument does not change the Government’s approach to this issue or any other diplomatic or trade issue. It simply updates the 1996 order to reflect that the United Kingdom has left the European Union. Nothing in this regulation represents a change for British businesses. With that, I beg to move.

Motion agreed.