The Cyber (Sanctions) (Overseas Territories) (No. 2) 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 2020 Present, 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 Cyber (Sanctions) (Overseas Territories) (No. 2) Order 2020 and comes into force immediately after the Sanctions (EU Exit) (Miscellaneous Amendments) (No. 4) Regulations 2020[^f00002] have come into force in the United Kingdom.

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

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

2

The Cyber (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 Cyber (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 Cyber (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—

• “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 25 (finance: powers to request information),regulation 26 (finance: production of documents),regulation 28 (disclosure of information), ... regulation 28A (finance: disclosure to the Governor), or regulation 29A (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 20(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;

• (ii) omit the definitions of “Treasury licence” and “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”;

• (f) at the end, insert—

(8) In this regulation— - “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 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.

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

Omit regulation 5 (power to designate persons) (including the heading).

7

Omit regulation 6 (designation criteria) (including the heading).

8

For regulation 8 (notification and publicity where designation power used), substitute—

(8) (1) Subject to paragraph (2), the Governor must— (a) publish a list of designated persons, and (b) keep the list up to date. (2) Where, in accordance with regulation 8 (notification and publicity where designation power used) (as it has effect in the United Kingdom) the Secretary of State is not required to publicise generally a designation, variation or revocation, the Governor must not include in the list under paragraph (1) any details of that designation, variation or revocation. (3) The Governor may publish the list under paragraph (1) in any form the Governor considers appropriate, including by means of a website. (4) For the purpose of this regulation, “designated person” means any person for the time being designated by the Secretary of State under regulation 5 (as it has effect in the United Kingdom).

9

In regulation 9 (confidential information in certain cases where designation power used)—

• (a) in the heading, omit “where designation power used”;

• (b) omit paragraph (1);

• (c) in paragraph (2)(a), for “that is to be treated as confidential in accordance with paragraph (1)” substitute “which the Secretary of State has specified is to be treated as confidential under regulation 9(1) (as it has effect in the United Kingdom)”;

• (d) in paragraph (7)—

• (i) for “High Court (in Scotland, the Court of Session)” substitute “Supreme Court of the Territory”;

• (ii) omit “(in Scotland, an interdict)”;

• (e) at the end, insert—

(9) In this regulation, “Supreme Court of the Territory” means— (a) in relation to Anguilla, Montserrat and the Virgin Islands, the High Court of the Eastern Caribbean Supreme Court; (b) in relation to the Cayman Islands, the Grand Court of the Cayman Islands; (c) in relation to the British Antarctic Territory, the British Indian Ocean Territory, the Falkland Islands, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands and the Turks and Caicos Islands, the Supreme Court of that territory; (d) in relation to the Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus, the Senior Judges’ Court of those Areas.

10

In regulation 10 (meaning of “designated person” in Part 3), for “under regulation 5 for the purposes of regulations 11 to 15” substitute “from time to time by the Secretary of State under regulation 5 (as it has effect in the United Kingdom) for the purposes of regulations 11 to 15 (as they have effect in the United Kingdom)”.

11

For regulation 17 (immigration) substitute—

(17) (1) A person who is designated from time to time by the Secretary of State under regulation 5 (as it has effect in the United Kingdom) for the purposes of regulation 17 (as it has effect in the United Kingdom) must not enter, transit or remain in the Territory. (2) Paragraph (1) does not apply to a person who— (a) belongs to the Territory, or (b) in respect of the Sovereign Base Areas, is permitted to reside in the Sovereign Base Areas under the law applicable to the Sovereign Base Areas. (3) Paragraph (1) does not apply to a person if the application of that paragraph to that person would be contrary to the United Kingdom’s obligations under— (a) the European Convention on Human Rights, or (b) the Refugee Convention. (4) Paragraph (1) is subject to regulation 22 (immigration directions). (5) For the purposes of this regulation, a person (“P”) belongs to the Territory if— (a) in respect of Anguilla, P is an Anguillian (within the meaning given to that term in the law of Anguilla); (b) in respect of the Cayman Islands, P is a Caymanian (within the meaning given to that term in the law of the Cayman Islands); (c) in respect of the Falkland Islands, P has Falkland Islands status (within the meaning given to that term in the law of the Falkland Islands); (d) in respect of Montserrat, P is a Montserratian (within the meaning given to that term in the law of Montserrat); (e) in respect of Pitcairn, P has the right of abode in Pitcairn under the law of Pitcairn; (f) in respect of St Helena, P has St Helenian status (within the meaning given to that term in the law of St Helena); (g) in respect of Tristan da Cunha, P has the right of abode in Tristan da Cunha under the law of Tristan da Cunha; (h) in respect of the Turks and Caicos Islands, P is a Turks and Caicos Islander (within the meaning given to that term in the law of the Turks and Caicos Islands); (i) in respect of the Virgin Islands, P belongs to the Virgin Islands (within the meaning given to that term in the law of the Virgin Islands). (6) In this regulation— - “the European Convention on Human Rights” means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on 4 November 1950 and the Protocols to the Convention[^f00005]; - “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention[^f00006]; - “Pitcairn” means Pitcairn, Henderson, Ducie and Oeno Islands; - “the Sovereign Base Areas” means the Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus.

12

In regulation 18 (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[^f00007] if it had its registered office (or if it does not have one, its head office) in the United Kingdom.

• (c) omit paragraph (8).

13

For regulation 18A (finance: exception for authorised conduct in a relevant country) substitute—

(18A) (1) Where a person’s conduct outside the Territory would, in the absence of this paragraph, contravene a prohibition in any of regulations 11 to 15 (asset-freeze etc.), the prohibition is not contravened if the conduct is authorised by a licence issued under regulation 20 (Treasury 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 11 to 15 (“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— (a) any of the Channel Islands; (b) the Isle of Man; (c) any British overseas territory other than the Territory.

14

For regulation 19 (exception for acts done for purposes of national security or prevention of serious crime), substitute—

(19) (1) Where an act would, in the absence of this paragraph, be prohibited by regulation 9(2) (confidentiality) or any prohibition in Part 3 (Finance), 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), 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.

15

For regulation 20 (Treasury licences), substitute—

(20) (1) The prohibitions in regulations 11 to 15 (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 by a particular person only where the Governor considers that it is appropriate to issue the licence for a purpose set out in Schedule 2. (4) A financial sanctions licence— (a) must specify the acts authorised by it; (b) may be general or may authorise acts by a particular person or persons of a particular description; (c) may— (i) contain conditions; (ii) be of indefinite duration or a defined duration. (5) Where the Governor issues a financial sanctions licence, the Governor may, with the consent of the Secretary of State, vary, revoke or suspend it at any time. (6) Where the Governor issues, varies, revokes or suspends a financial sanctions licence which authorises acts by a particular person, the Governor must give written notice to that person of the issue, variation, revocation or suspension of the licence. (7) Where the Governor issues, varies, revokes or suspends a financial sanctions licence which is general or which authorises acts by persons of a particular description, the Governor must take such steps as the Governor considers appropriate to publicise the issue, variation, revocation or suspension of the licence.

16

In regulation 21 (finance: licensing offences), for “Treasury licence”, in both places it occurs, substitute “financial sanctions licence”.

17

For regulation 22 (section 8B(1) to (3) of the Immigration Act 1971: directions) substitute—

(22) (1) The Governor may, with the consent of the Secretary of State, direct that, in relation to any person falling within regulation 17 (immigration) whose name is specified, or who is of a specified description, that regulation has effect subject to specified exceptions. (2) A direction under this regulation— (a) may contain conditions; (b) must be of a defined duration (and that duration may be expressed in any way, including, for example, being expressed in a way such that the direction ceases to have effect on, or within a specified period after, the occurrence of a specified event). (3) The Governor may, with the consent of the Secretary of State, vary, revoke or suspend a direction under this regulation at any time. (4) On the issue, variation, revocation or suspension of a direction under this regulation, the Governor may take such steps as the Governor considers appropriate to publicise the issue, variation, revocation or suspension of the direction. (5) In this regulation, “specified” means specified in a direction under this regulation.

18

In regulation 23 (finance: reporting obligations)—

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

• (b) for paragraph (5) substitute—