Outside some of the most FBPE corners of Twitter, the United Kingdom seems broadly viewed to have acquitted itself well in its support for Ukraine over the past few weeks and months.
Whilst the Western alliance has latterly solidified around a truly extraordinary regime of economic sanctions (albeit with carve-outs for oil and gas, Russia’s biggest exports), the abiding image of the build-up to the war on this front is probably those maps of British arms shipments to Ukraine having to bypass German airspace.
According to polling by Lord Ashcroft, the Ukrainians themselves take a favourable view of British efforts; so too seems the Government in Kiev. The UK pushed early for Russia’s expulsion from the SWIFT system of international payments.
Yet when it comes to sanctioning individual Russians in the West, a very different picture emerges. Here it appears that Britain is lagging behind: it has sanctioned fewer individuals than the European Union (although not as few as has been suggested), and long lead-in times are allowing those affected to move their assets out of the country. Why?
To some, inevitably, it’s evidence of conspiracy: a government in hoc with wealthy donors proving slow to crack down on its mates. But after speaking to sources currently or previously involved in sanctions efforts at the Foreign Office, it seems much more likely to be a familiar story of state-capacity failure.
As it was explained by someone who used to write so-called ‘sanction packs’, existing legislation does not allow the Government to simply impose penalties on whomever it pleases; they need to be actually involved with, or controlled by, Vladimir Putin’s regime.
Government sources also say that hostile amendments to the Sanctions and Anti-Money Laundering Act 2018 restricting the executive’s freedom of action and were, contra the protestations of those who tabled them, always going to result in delays; Richard Ekins of Policy Exchange has gone into detail about the shortcomings of the legislation.
Not only can sanctions be challenged in court, but individuals subject to sanction can only spend their money on two things: subsistence (not likely to concern an oligarch) and… mounting legal challenges against the sanctions.
Therefore before sanctions are applied, the FCDO prepares a dossier of evidence – in some cases, up to 20 pages or more – which is then sent out to a lawyer to be assessed against the current legislative criteria. They then provide advice, and ministers make a decision.
Such a system produces several bottlenecks. First, the FCDO simply does not have many lawyers on hand to prepare the briefings. Second, there was likely (at least initially) insufficient bureaucratic capacity assigned to preparing the cases for assessment in the first place.
(All of which is compounded by the UK’s infamous libel laws; oligarchs are very litigious, and as a result, there is less evidence than there might be that this or that individual has dodgy connections which might justify sanctioning them.)
Add in a risk-averse institutional culture and wariness on the part of ministers of the political embarrassment of having sanctions overturned in court, and you get a recipe for delay. A cynic might also suggest this explains the puzzling ‘grace periods’; allowing assets to be moved out of the UK makes it less likely that the sanctions will be legally challenged, allowing for the appearance of action whilst minimising the risk of defeat in court.
Those we spoke to believe that the best route to a more effective sanctions regime is a new statutory instrument with less onerous criteria for sanctions. The Government has announced that new legislation will allow it to replicate the EU sanctions list. Further legislation also seems to be the preferred course for Opposition figures, as well as the above-lined Policy Exchange view.
Inevitably, all of this is getting dragged into the Brexit forever war. But setting aside the fact that the UK’s overall approach to Ukraine stands head-and-shoulders above that of many Member States, such criticisms rather miss the point. The virtue of Parliament having to make its own decisions lies not in its getting every call right, but in its having the freedom to self-correct.
Whatever you think the law should be on seizing the assets and passports of people in Britain, it should be Britain making that law.