The Iraq (Sanctions) (Overseas Territories) Order 2020

Made: 11th November 2020

Coming into force in accordance with article 1(1)

At the Court at Windsor Castle, the 11th day of November 2020Present,The Queen’s Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred on Her by section 63(3)(c) and (4) of the Sanctions and Anti-Money Laundering Act 2018[^f00001], is pleased, by and with the advice of Her Privy Council, to make the following Order:

Citation, commencement and extent

1

• (1) This Order may be cited as the Iraq (Sanctions) (Overseas Territories) Order 2020 and comes into force on IP completion day[^f00002].

• (2) This Order extends to each British overseas territory listed in Schedule 1.

Extension of the Iraq (Sanctions) (EU Exit) Regulations 2020

2

The Iraq (Sanctions) (EU Exit) Regulations 2020[^f00003] as amended from time to time extend to each British overseas territory listed in Schedule 1 with the modifications specified in Schedule 2.

Extension of the Sanctions and Anti-Money Laundering Act 2018

3

Subject to the modification set out in paragraph (c), the following provisions of the Sanctions and Anti-Money Laundering Act 2018 extend to each British overseas territory listed in Schedule 1 for the purposes of the Iraq (Sanctions) (EU Exit) Regulations 2020 as modified and extended to the territories by this Order—

• (a) section 44 (protection for acts done for purposes of compliance);

• (b) section 52(3) (Crown application);

• (c) section 53 (saving for prerogative powers), except that, in its application to a particular British overseas territory, the reference in subsection (1) of that section to the United Kingdom is to be read as a reference to that territory.

SCHEDULE 1 — British overseas territories

• Anguilla

• British Antarctic Territory

• British Indian Ocean Territory

• Cayman Islands

• Falkland Islands

• Montserrat

• Pitcairn, Henderson, Ducie and Oeno Islands

• St Helena, Ascension and Tristan da Cunha

• South Georgia and the South Sandwich Islands

• The Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus

• Turks and Caicos Islands

• Virgin Islands

SCHEDULE 2 — Modifications to be made in the extension of the Iraq (Sanctions) (EU Exit) Regulations 2020 to each British overseas territory listed in Schedule 1

1

In regulation 1 (citation and commencement)—

• (a) in the heading, omit “and commencement”;

• (b) omit paragraph (2).

2

In regulation 2 (interpretation)—

• (a) the existing text becomes paragraph (1);

• (b) in that paragraph—

• (i) in the appropriate places, insert the following definitions—

• “aircraft” has the same meaning as it has in section 6(9) of the Act;

• “authorised officer” means, in relation to the Territory—a member of Her Majesty’s forces in the Territory,a police or customs officer of the Territory,a person authorised by the Governor for the purposes of exercising, whether generally or in a particular case, any power conferred by—regulation 42 (finance: powers to request information),regulation 43 (finance: production of documents),regulation 45 (trade: information powers),regulation 47 (general trade licences: inspection of records),regulation 48 (disclosure of information),regulation 48A (finance: disclosure to the Governor),regulation 49A (suspected ships, aircraft or vehicles), orregulation 49B (search warrants), orany person acting under the authority of a person falling within any of paragraphs (a) to (c);

• “financial sanctions licence” means, in relation to the Territory, a licence issued by the Governor under regulation 35(1);

• “the Governor” is to be read in accordance with regulation 4A;

• “Her Majesty’s forces” does not include a force of any country, other than the United Kingdom, that is a member of the Commonwealth;

• “ship” has the same meaning as it has in section 7(14) of the Act;

• “territorial sea of the Territory” means the territorial sea as defined in an enactment applicable in the Territory or, in the absence of such an enactment, the territorial sea adjacent to the Territory;

• “Territory aircraft” means, in relation to the Territory—an aircraft registered in the Territory, oran aircraft which is not registered under the law of a country outside the Territory but is wholly owned by persons each of whom is a Territory person;

• “Territory person” means, in relation to the Territory, a person who is—an individual ordinarily resident in the Territory who is—a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,a person who under the British Nationality Act 1981[^f00004] is a British subject, ora British protected person within the meaning of that Act, ora body incorporated or constituted under the law of any part of the Territory;

• “Territory ship” means, in relation to the Territory—a ship registered in the Territory, ora ship which is not registered under the law of a country outside the Territory but is wholly owned by persons each of whom is a Territory person;

• “vehicle” means a land transport vehicle.

• (ii) omit the definitions of—

• (aa) “the Commissioners”,

• (bb) “Treasury licence”, and

• (cc) “United Kingdom person”;

• (c) after that paragraph insert—

(2) In the application of these Regulations to a particular British overseas territory, the expression “the Territory” means that territory.

3

In regulation 3 (application of prohibitions and requirements outside the United Kingdom)—

• (a) in the heading, for “United Kingdom” substitute “Territory”;

• (b) in paragraphs (1) and (4), for “United Kingdom person” substitute “Territory person”;

• (c) in paragraphs (1), (4) and (7), for “United Kingdom” substitute “Territory”;

• (d) in paragraphs (2) and (5), after “in the territorial sea” insert “of the Territory”;

• (e) in paragraphs (3) and (6), for “Treasury licence” substitute “financial sanctions licence”.

4

In regulation 4 (purpose), for “the regulations contained in this instrument that are made under section 1 of the Act” substitute “these Regulations”.

5

At the end of Part 1 (General), insert—

(4A) (1) In these Regulations, “the Governor” means, in relation to the Territory, the person holding or acting in the office of Governor of the Territory, or, if there is no such office, the officer for the time being administering the Territory. (2) The Governor may, to such extent and subject to such restrictions and conditions as the Governor thinks proper, delegate or authorise the delegation of any of the Governor’s powers under these Regulations to any person, or class or description of persons, and any references in these Regulations to the Governor are to be construed accordingly. (3) In the exercise of any power conferred on the Governor by these Regulations, the Governor is to act in their discretion.

6

At the end of Part 2 (Designation of persons), insert—

(5A) (1) The Governor must— (a) publish a list of designated persons, and (b) keep the list up to date. (2) The Governor may publish the list under paragraph (1) in any form the Governor considers appropriate, including by means of a website. (3) For the purposes of this regulation, “designated person” means— (a) a person who is a designated person for the purposes of regulation 8 (partial asset-freeze in relation to the former Government of Iraq and its state bodies, corporations or agencies) by reason of regulation 5(1), and (b) a person who is a designated person for the purposes of regulations 9 to 13 (asset-freeze etc. in relation to persons connected with the former Iraqi regime) by reason of regulation 5(2).

7

In regulation 16 (interpretation of other expressions used in this Part)—

• (a) for paragraph (1) substitute—

(1) For the purposes of this Part— (a) “export” means export from the Territory, (b) “import” means import to the Territory, and (c) goods transported out of the Territory by aircraft or ship as stores within the meaning of CEMA (see section 1(1) and (4) of that Act) are to be regarded as exported. (1A) Paragraph 36 of Schedule 1 to the Act (trade sanctions) applies for the purpose of interpreting expressions in this Part.

• (b) for paragraph (2) substitute—

(2) In this Part, any reference to the Territory includes a reference to the territorial sea of the Territory.

8

In regulation 17 (export of military goods), at the end insert—

(3) A person who contravenes a prohibition in paragraph (1) commits an offence, but it is a defence for a person charged with the offence of contravening paragraph (1) to show that the person did not know and had no reasonable cause to suspect that the export was to, or the goods were for use in, Iraq (as the case may be).

9

In regulation 18 (supply and delivery of military goods), in paragraph (4) for “United Kingdom, the Isle of Man” substitute “Territory”.

10

In regulation 21 (brokering services: non-UK activity relating to military goods and military technology)—

• (a) in the heading, for “non-UK” substitute “non-Territory”;

• (b) for paragraph (4) substitute—

(4) In this regulation, “third country” means a country that is not the Territory or Iraq.

11

In regulation 22 (export and import of illegally removed Iraqi cultural property), at the end insert—

(4) A person who contravenes a prohibition in paragraph (1) or (2) commits an offence, but it is a defence for a person charged with the offence of contravening paragraph (1) or (2) to show that the person did not know and had no reasonable cause to suspect that the goods were illegally removed Iraqi cultural property.

12

In regulation 23 (supply and delivery of illegally removed Iraqi cultural property), in paragraph (4) for “United Kingdom or the Isle of Man” substitute “Territory.”

13

In regulation 26 (brokering services: non-UK activity relating to illegally removed Iraqi cultural property)—

• (a) in the heading, for “non-UK” substitute “non-Territory”;

• (b) in paragraph (1)(c), for “non-UK country” substitute “third country”;

• (c) for paragraph (4) substitute—

(4) In this regulation, “third country” means a country that is not the Territory.

14

In regulation 30 (finance: exceptions from prohibitions)—

• (a) omit paragraph (6);

• (b) in paragraph (7), for the definition of “relevant institution” substitute—

• “relevant institution”, in relation to the Territory, means a person domiciled in the Territory who would satisfy the threshold conditions for permission under Part 4A of the Financial Services and Markets Act 2000[^f00005] if it had its registered office (or if it does not have one, its head office) in the United Kingdom.

• (c) omit paragraph (8).

15

For regulation 33 (exception for authorised conduct in a relevant country) substitute—

(33) (1) Where a person’s conduct outside the Territory would, in the absence of this paragraph, contravene a prohibition in any of regulations 8 to 13 (partial asset-freeze and asset-freeze etc.) or Chapter 2 of Part 4 (Trade), the prohibition is not contravened if the conduct is authorised by a licence issued under regulation 35 (Treasury licences) (as it has effect in the United Kingdom) or regulation 36 (trade licences) (as it has effect in the United Kingdom). (2) Where a person’s conduct in a relevant country would, in the absence of this paragraph, contravene a prohibition in any of regulations 8 to 13 or Chapter 2 of Part 4 (“the relevant prohibition”), the relevant prohibition is not contravened if the conduct is authorised by a licence or other authorisation which is issued— (a) under the law of the relevant country, and (b) for the purpose of disapplying a prohibition in that jurisdiction which corresponds to the relevant prohibition. (3) In this regulation— - “relevant country” means—any of the Channel Islands,the Isle of Man, orany British overseas territory other than the Territory. (4) Nothing in this regulation affects the application of a prohibition in a case where it would be incompatible with a UN obligation for the prohibition not to apply.

16

For regulation 34 (exception for acts done for purposes of national security or prevention of serious crime), substitute—

(34) (1) Where an act would, in the absence of this paragraph, be prohibited by any prohibition in Part 3 (Finance) or Part 4 (Trade), that prohibition does not apply to the act if the act is one which— (a) a responsible officer has determined would be in the interests of— (i) national security, or (ii) the prevention or detection of serious crime in the United Kingdom or elsewhere, or (b) the Governor, with the consent of the Secretary of State, has determined would be in the interests of the prevention or detection of serious crime in the Territory. (2) Where, in the absence of this paragraph, a thing would be required to be done under or by virtue of a provision of Part 6 (Information and records) or Part 8 (Maritime enforcement), that requirement does not apply if— (a) a responsible officer has determined that not doing the thing in question would be in the interests of— (i) national security, or (ii) the prevention or detection of serious crime in the United Kingdom or elsewhere, or (b) the Governor, with the consent of the Secretary of State, has determined that not doing the thing in question would be in the interests of the prevention or detection of serious crime in the Territory. (3) In this regulation, “responsible officer” means a person in the service of the Crown or holding office under the Crown in the United Kingdom, acting in the course of that person’s duty. (4) Nothing in this regulation affects the application of a prohibition or requirement in a case where it would be incompatible with a UN obligation for the prohibition or requirement not to apply.

17

For regulation 35 (Treasury licences), substitute—

(35) (1) The prohibitions in regulations 8 to 13 (partial asset-freeze and asset-freeze etc.) do not apply to anything done under the authority of a licence issued by the Governor under this paragraph. (2) The Governor may issue a financial sanctions licence only with the consent of the Secretary of State. (3) The Governor may issue a financial sanctions licence which authorises acts in relation to a designated person which would otherwise be prohibited by regulation 8 or 9 (partial asset-freeze and asset-freeze) only where the Governor considers that it is appropriate to issue the licence for the purpose set out in Part 2 of Schedule 2. (4) The Governor may issue a financial sanctions licence which authorises acts in relation to a designated person which would otherwise be prohibited by regulations 10 to 13 (making funds or economic resources available to, or for the benefit of, persons connected with the former Iraqi regime) only where the Governor considers that it is appropriate to issue the licence for a purpose set out in Part 3 of Schedule 2.

18

In regulation 36 (trade licences)—

• (a) the existing text becomes paragraph (1);

• (b) in that paragraph, for “Secretary of State” substitute “Governor”;

• (c) at the end insert—

(2) The Governor may issue a licence under paragraph (1) only with the consent of the Secretary of State.

19

In regulation 37 (licences: general provisions)—

• (a) in paragraph (1), for “Treasury licences” substitute “financial sanctions licences”;

• (b) in paragraph (5), after “a licence may” insert “, with the consent of the Secretary of State,”.

20

In regulation 38 (finance: licensing offences), for “Treasury licence”, in both places it occurs, substitute “financial sanctions licence”.

21

In regulation 40 (finance: reporting obligations)—

• (a) for “Treasury”, in each place it occurs, substitute “Governor”;

• (b) for paragraph (5) substitute—

(5) A relevant institution must inform the Governor without delay if that institution credits a frozen account in accordance with regulation 30(4) (finance: exceptions from prohibitions).

22

For regulation 41 (“relevant firm”) substitute—