The Counter-Terrorism (Sanctions) (Overseas Territories) Order 2020

Made: 16th December 2020

Coming into force in accordance with article 1(1)

At the Court at Windsor Castle, the 16th day of December 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 Counter-Terrorism (Sanctions) (Overseas Territories) Order 2020 and comes into force immediately after both the Sanctions (EU Exit) (Miscellaneous Amendments) (No. 3) Regulations 2020[^f00002] and the Sanctions (EU Exit) (Consequential Provisions) (Amendment) Regulations 2020[^f00003] have come into force in the United Kingdom.

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

Extension of the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019

2

The Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019[^f00004] 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: general

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 Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019 (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.

Extension of the Sanctions and Anti-Money Laundering Act 2018: Governor’s designation powers

4

The following provisions of the Sanctions and Anti-Money Laundering Act 2018 extend, with the modifications specified in Schedule 3, to each British overseas territory listed in Schedule 1 for the purposes of the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019 (as modified and extended to the territories by this Order)—

• (a) section 22 (power to vary or revoke designation made under regulations);

• (b) section 23 (right to request variation or revocation of designation);

• (c) section 24 (periodic review of certain designations);

• (d) section 38 (court review of decisions);

• (e) section 39 (court reviews: further provision).

Extension of the Sanctions Review Procedure (EU Exit) Regulations 2018

5

The Sanctions Review Procedure (EU Exit) Regulations 2018[^f00005] as amended from time to time extend, with the modifications specified in Schedule 4, to each British overseas territory listed in Schedule 1 for the purposes of the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019 (as modified and extended to the territories by this Order).

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 Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019 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 23 (finance: powers to request information),regulation 24 (finance: production of documents),regulation 26 (disclosure of information), ... regulation 26A (finance: disclosure to the Governor), or regulation 27A (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 19(1) or 19A(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;

• “Supreme Court of the Territory” means—in relation to Anguilla, Montserrat and the Virgin Islands, the High Court of the Eastern Caribbean Supreme Court;in relation to the Cayman Islands, the Grand Court of the Cayman Islands;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;in relation to the Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus, the Senior Judges’ Court of those Areas;

• (ii) omit the definitions of—

• (aa) “Treasury licence”, and

• (bb) “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)—

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

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

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

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

• (e) 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[^f00006] 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 (purposes)—

• (a) in paragraph (1), for “The regulations contained in this instrument that are made under section 1 of the Act” substitute “These Regulations”;

• (b) in paragraph (2)(a), after “United Kingdom” insert “, the Territory,”.

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

In regulation 5 (power to designate persons)—

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

• (b) in that paragraph, for “Treasury” substitute “Governor”;

• (c) after paragraph (1), insert—

(2) The Governor must consult the Secretary of State before making a designation under paragraph (1).

7

In regulation 6 (designation criteria)—

• (a) for paragraph (1), substitute—

(1) The Governor may not designate a person under regulation 5 (power to designate persons) unless the Governor— (a) has reasonable grounds to suspect that that person is an involved person, and (b) considers that the designation of that person is appropriate, having regard to— (i) the purposes stated in regulation 4 (purposes), and (ii) the likely significant effects of the designation on that person (as they appear to the Governor to be on the basis of the information that the Governor has).

• (b) in paragraph (5), for the definition of “relevant territory” substitute—

• “relevant territory” means the Territory.

8

In regulation 8 (notification and publicity where designation power used)—

• (a) in the heading, insert “Governor” before “designation power used”;

• (b) for paragraph (1), substitute—

(1) Paragraph (2) applies where the Governor— (a) has made a designation under regulation 5 (power to designate persons), or (b) has by virtue of section 22 of the Act varied or revoked a designation made under that regulation.

• (c) in paragraph (2), for “Treasury” substitute “Governor;

• (ca) in paragraph (3), for “Treasury”, in each place it occurs, substitute “Governor”;

• (cb) in paragraph (3A), for “Treasury”, in each place it occurs, substitute “Governor”;

• (d) in paragraph (4)—

• (i) in the opening words, for “the Treasury know, or have” substitute “the Governor knows, or has”;

• (ii) in sub-paragraph (a) for “Treasury” substitute “Governor”;

• (e) in paragraph (5)—

• (i) for “Treasury consider” substitute “Governor considers, with the consent of the Secretary of State,”;

• (ii) in sub-paragraph (b), for “United Kingdom” substitute “Territory”;

• (f) in paragraph (6)(b), for “Treasury consider” substitute “Governor considers”;

• (g) in paragraph (7)—

• (i) in sub-paragraph (a), for “Treasury” substitute “Governor”;

• (ii) in sub-paragraph (b)—

• (aa) for “Treasury consider” substitute “Governor considers, with the consent of the Secretary of State,”;

• (bb) in paragraph (ii), for “United Kingdom” substitute “Territory”;

• (h) in paragraph (9), for “Treasury” substitute “Governor”.

9

After regulation 8, insert—

(8A) (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 Treasury 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 Treasury under regulation 5 (power to designate persons) (as it has effect in the United Kingdom).

10

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

• (a) in the heading, insert “Governor” before “designation power used”;

• (b) in paragraph (1)—

• (i) for “Treasury”, in both places it occurs, substitute “Governor”;

• (ii) for “inform” substitute “informs”;

• (c) in paragraph (4)—

• (i) in sub-paragraph (a), for “Treasury” substitute “Governor”;

• (ii) in sub-paragraph (c), after “any other enactment” insert “applicable in the Territory”;

• (d) in paragraph (7)—

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

• (ii) in sub-paragraph (b), for “Treasury” substitute “Governor”;

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

• (e) omit paragraph (8).

11

After regulation 9, insert—

(9A) (1) A person (“P”) who— (a) is provided with information which the Treasury has specified is to be treated as confidential under regulation 9(1) (confidential information in certain cases where designation power used) (as it has effect in the United Kingdom), or (b) obtains such information, must not, subject to paragraph (2), disclose it if P knows, or has reasonable cause to suspect, that the information is to be treated as confidential. (2) The prohibition in paragraph (1) does not apply to any disclosure made by P with lawful authority. (3) For this purpose information is disclosed with lawful authority only if and to the extent that— (a) the disclosure is by, or is authorised by, the Treasury, (b) the disclosure is by or with the consent of the person who is or was the subject of the designation, (c) the disclosure is necessary to give effect to a requirement imposed under or by virtue of these Regulations or any other enactment, or (d) the disclosure is required, under rules of court, tribunal rules or a court or tribunal order, for the purposes of legal proceedings of any description. (4) This regulation does not prevent the disclosure of information that is already, or has previously been, available to the public from other sources. (5) A person who contravenes the prohibition in paragraph (1) commits an offence. (6) The Supreme Court of the Territory may, on the application of— (a) the person who is the subject of the information, or (b) the Treasury, grant an injunction to prevent a breach of the prohibition in paragraph (1). (7) In paragraph (3)(c), “enactment” has the meaning given by section 54(6) of the Act.

12

For regulation 10 (meaning of “designated person” in Part 3) substitute—

(10) In this Part, a “designated person” means— (a) a person who is designated from time to time by the Treasury under regulation 5 (power to designate persons) (as it has effect in the United Kingdom) for the purposes of regulations 11 to 15 (asset-freeze etc.) (as they have effect in the United Kingdom), or (b) a person designated by the Governor under regulation 5 for the purposes of regulations 11 to 15.

13

In regulation 17 (finance: exceptions from prohibitions)—

• (a) omit paragraph (6);

• (b) in paragraph (8), 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 (9).

14

For regulation 17A (finance: exception for authorised conduct in a relevant country) substitute—

(17A) (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 19 (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—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.

15

For regulation 18 (exception for acts done for purposes of national security or prevention of serious crime), substitute—