The Missing Piece in UK’s Unexplained Wealth Order Mechanism

All of a sudden politicians, public figures, and oligarchs – such as Russian First Deputy Prime Minister Ignor Shuvalov and former Nigerian Oil Minister Diezani Alison-Madueke – have to explain how they are able to afford the swanky apartments in London’s posh Mayfair neighborhood on their modest official salaries. This is due to the UK’s new Criminal Finances Act (CFA), which came into force in February and is meant to crack down on the flow of dirty money into the UK—a flow that has given London in particular a reputation as a “Death Star” of global kleptocracy. Most notably, the CFA adds a new investigative tool, the Unexplained Wealth Order (UWO), into the civil recovery regime. Originally proposed by Transparency International UK a few years ago, a UWO is an order granted by the High Court in cases where there are reasonable grounds to believe (1) the respondent owns some property worth more than £50,000; (2) either the respondent is a politically exposed person (PEP), or the respondent or a person connected to the respondent has been involved in a serious crime; and (3) respondent’s lawfully earned income would not be sufficient to obtain the property in question. If there are reasonable grounds to believe that each of these three conditions is satisfied, the High Court may issue an order requiring the respondent to provide information regarding the nature of her interests in the property in question and how she was able to lawfully obtained such property. If the respondent is unable to provide a reasonable explanation, the UK Government can subsequently initiate the civil forfeiture process and seize these assets.

Lauded as “a powerful new weapon in[] the anti-corruption arsenal,” UWOs are expected to be particularly helpful when there is no conviction against the respondents in their countries of origin, or when efforts to get a corrupt foreign government to cooperate with investigations have led to naught. Moreover, even though UWOs are a civil enforcement mechanism, the information they uncover may be useful in pursuing criminal investigations, and if respondents recklessly or knowingly make false statements or mislead the enforcement body in responding to an order, they may be criminally prosecuted. There’s already some evidence that the new law will make a difference: In March, a month after the promulgation of the CFA, two UWOs were issued requiring a tycoon in Central Asia to explain how he is able to afford real properties in the UK totaling £22 million.

Yet notwithstanding the enthusiasm for UWOs in some quarters, the effectiveness of the UFO mechanism is likely to be hampered by an important missing piece in the UK’s anticorruption framework, namely an effective means for ensuring genuine transparency regarding the beneficial ownership of real and movable property. Without knowing who really owns what, the new law is unlikely to realize its full potential, and indeed may not make much difference outside of a handful of cases involving particularly careless criminals.

In order to make use of the UWO mechanisms, enforcement authorities must first form a reasonable suspicion that a covered respondent actually owns some expensive property. But clever kleptocrats can and usually do disguise their purchase of luxury homes in the UK (and elsewhere) by conducting the transactions through frontmen or overseas companies, with the true purchaser’s identity hidden behind layers of special purpose vehicles in secrecy jurisdictions, including the UK’s Overseas Territories and Crown Dependencies. Indeed, over 75% of real estate purchases in Britain involve anonymous companies, often incorporated offshore.

When kleptocrats and other criminals can successfully obscure their ownership of expensive properties, the UWO mechanism is rendered much less effective. Without ownership transparency, suspicions that the certain properties actually belong to certain kleptocrats are not easy to confirm, at least so long as the kleptocrats employ service trust and company service providers who arrange the purchases in a sufficiently careful and inconspicuous manner. That’s not to say that enforcement authorities will never be able to clear the hurdle for seeking a UWO, but doing so will be much harder when the authorities have to comb through all publicly available information (such as court documents), closely monitor transactions of high-end goods or apartments, and gather information from insiders or leaks.

Therefore, the key to the successful implementation of UWOs is to create more transparency of ownership interests, for example through a public registry of beneficial ownership, or mandatory disclosure of overseas companies purchasing properties in the UK. Yet despite some recent progress, beneficial ownership transparency is still a weak point in the UK. True, the UK made an important stride toward enhancing corporate transparency by establishing, in 2016, the first public registry of “People with Significant Control” (PSC) among the G20 countries. Because of this, when the enforcement agencies cross-reference the information in the PSC registry with that in the Land Registry (where assets and properties of UK companies are recorded), they can identify the ultimate owner of the properties fairly straightforwardly. But foreign companies do not appear on the UK register. This is a major loophole, which the UK should plug by establishing a beneficial ownership registry for foreign-registered companies (at least those that intend to purchase property in the UK). To the disappointment of many anticorruption activists, however, legislation of establishing a public registry of beneficial ownership for foreign companies has been put on the backburner, with implementation postponed for another three years. Moreover, a proposed amendment of the Sanctions and Anti-Money Laundering Bill in the House of Lords to force British Overseas Territories and Crown Dependencies to publish registries of beneficial ownership did not succeed.

The enactment of the CFA, and with it the creation of the UWO mechanism, is no doubt a step in the right direction. Yet without knowing exactly who owns what, this mechanism is likely to fall short of its proponents’ hopes. But if the UK government continues to move forward by complementing the CFA with new mechanisms that ensure beneficial ownership transparency for both foreign and domestic corporations that purchase UK property, we may yet witness a real clampdown on global kleptocracy.

7 thoughts on “The Missing Piece in UK’s Unexplained Wealth Order Mechanism

  1. The loopholes you identify in this legislation are certainly troubling! I also wonder, given the conditions you outline above for the law to apply (value of property, PEP or crime status, lawfully earned income), how would this law apply to politically exposed persons who are independently wealthy, even if their current lawfully earned income is not enough to purchase the property? I assume that if the respondent can prove that he independently has enough money to make the purchase—even if the actual funds at issue are dirty money—then the law would not be able to track whether the funding source is illegal. Curious to hear your thoughts on this point.

    • Thanks, Vicky for your comment. Indeed when the respondent is independently wealthy, the difficulties of detecting dirty money double. But the key is to EXPLAIN how, for example, a PEP, is able to afford the assets, and I believe in order to make a convincing case, the source of wealth would necessarily be disclosed in the explanation.

  2. Pingback: U.K. to Probe Russian Wealth in London  | Anti Corruption Digest

  3. Fascinating. I had know idea that over 75% of real estate purchases in Britain involve anonymous companies, which seems like a staggering number. In particular, I’d be curious to know if there were substantive arguments against requiring the overseas territories from publishing the registries of beneficial ownership, apart from typical privacy and cost concerns.

    • Re Kees Thompson’s comment, the post is inaccurate in terms of the 75%. The TI-UK quote reads as follows: ‘over 75% of the UK properties under criminal investigation for grand corruption use offshore corporate secrecy’.

  4. Pingback: The Missing Piece in UK’s Unexplained Wealth Order Mechanism – Legal Note to Self

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.