The Mali (Sanctions) (Overseas Territories) Order 2020

EXPLANATORY NOTE

(This note is not part of the Order)

This Order extends with modifications the Mali (Sanctions) (EU Exit) Regulations 2020 (S.I. 2020/705) (“the Mali Regulations”) as amended from time to time to all British overseas territories except Bermuda and Gibraltar (which implement sanctions under their own legislative arrangements). It also implements in those territories the travel ban in respect of UN designated persons required by paragraph 1 of resolution 2374 (2017) adopted by the Security Council on 5th September 2017 (which in the United Kingdom is implemented by way of the Immigration Act 1971 (c.77) rather than the Mali Regulations).

Section 63(3)(c) of the Sanctions and Anti-Money Laundering Act 2018 (c.13) (“the Sanctions Act”) provides that Her Majesty may by Order in Council provide for any provision of Part 1 of that Act, or any regulations under Part 1 of that Act, to extend with or without modifications to any of the British overseas territories. Section 63(4) provides that this includes the power to extend any regulations as amended from time to time.

Section 1 of the United Nations Act 1946 (c.45) provides that Her Majesty may by Order in Council make such provision as appears to Her necessary or expedient for enabling the effective application of certain measures where, under Article 41 of the Charter of the United Nations, the Security Council has called upon Her Majesty’s Government in the United Kingdom to apply such measures to give effect to any decision of that Council. In accordance with subsection (2) of that section, such Orders in Council may extend to the British overseas territories.

The Mali Regulations were made under Part 1 of the Sanctions Act to establish a sanctions regime in relation to Mali for the purpose of promoting resolution of the conflict, respect for human rights, compliance with international humanitarian law, and respect for democracy, the rule of law and good governance; the Mali Regulations also implement the UN sanctions regime in respect of Mali.

The Mali Regulations, as modified and extended to the British overseas territories listed in Schedule 1 by this Order (“the modified Regulations”), provide that a person named by the UN or designated by the Secretary of State for being, or having been, involved in certain activities, is a designated person for the purposes of the modified Regulations. Designated persons may be excluded from the territory and may be made subject to financial sanctions, including having their funds or economic resources frozen.

The modified Regulations provide for certain exceptions to this sanctions regime (for example to allow for frozen accounts to be credited with interest or other earnings and to allow acts done for the purpose of national security or the prevention of serious crime). The Governor of a British overseas territory to which the modified Regulations extend may, with the consent of the Secretary of State, issue a financial sanctions licence in respect of activities that would otherwise be prohibited under the modified Regulations. Schedule 2 sets out the purposes under which the Governor will issue a financial sanctions licence. The modified Regulations also require the Governor of the territory to publish an up-to-date list of designated persons.

The modified Regulations prescribe powers for the provision and sharing of information to enable the effective implementation and enforcement of the sanctions regime. The modified Regulations also prescribe enforcement powers relating to the issue of search warrants. The modified Regulations make it a criminal offence to contravene, or circumvent, any of the prohibitions in the modified Regulations and prescribe the penalties that apply to such offences.

The modifications set out in Schedule 2 to this Order include a modification to a provision in the Mali Regulations which is prospectively amended by the Sanctions (EU Exit) (Miscellaneous Amendments) (No. 5) Regulations 2020 (S.I. 2020/1397) (“the amending regulations”). Therefore, article 1(1) provides that this Order comes into force immediately after the amending regulations have come into force in the United Kingdom. The amending regulations will be brought into force on a day appointed by the Secretary of State in regulations under section 56 of the Sanctions Act.

This Order also extends to the territories for the purposes of the modified Regulations specific provisions of Part 1 of the Sanctions Act, namely provisions relating to protection for acts done for purposes of compliance, Crown application and saving for prerogative powers.

This Order also provides that, subject to certain exceptions, UN designated persons must not enter, transit or remain in the territories.

An Impact Assessment has not been prepared for this instrument: the territorial extent of the instrument is the British overseas territories listed in Schedule 1, and no, or no significant, impact is foreseen on the private, voluntary or public sectors in the United Kingdom.