In 2022, the UK government published a new Framework for transparent and accountable asset return, designed to ‘ensure consistency, transparency, and accountability’ in the return of funds by the UK government. This framework relates to funds returned under both Articles 57(3)(a) or (b) of the UN Convention Against Corruption (UNCAC) – in other words obligatory returns of funds stolen through corruption – and under Article 57(3)(c) of UNCAC, in cases where the return is discretionary. It therefore encompasses the majority of asset recovery cases the UK government might engage in. This post sets out what elements of this may be important to note for civil society working on asset recovery.
Recovery of reasonable expenses
The framework allows for the UK government to retain a portion of the assets to cover reasonable expenses incurred in the process of confiscation. Important to note though is that this should be:
- highlighted to the country of origin early on,
- done transparently and
- there should be criteria engaged for deducting those expenses, including considering the value of the loss sustained by the receiving country, the funds recovered, and the requested reasonable expenses to be deducted (paras. 14, 18).
Mechanism for return
The framework recognises that returns made under Art. 57 (c) should give priority consideration to prior legitimate owners and victims, but also recognises the difficulties in this and states that the usual method of return will be to the central government of the country of origin, who will be better placed to determine the former.
It also highlights though that this return can take place in several ways, including through direct asset return, an asset return fund, a multilateral/HMG-funded programme or through civil society, but that whichever method used should be taken with the agreement of the country of origin, transparently and should preclude benefitting the perpetrator(s) (paras. 21-22).
There is a commitment to share timelines on the recovery process with the country of origin, when known (para. 25). It is unclear whether this would also be shared publically.
The UK government will not return any funds without an agreement, and has stated it prefers a MoU to a treaty, warning that concluding a treaty will take longer (para. 26).
It also states that any agreement should include the steps needed to ensure that the funds are used as intended and, where possible, should include a reporting mechanism that ensures transparency and accountability. This reporting mechanism is specifically for the UK government (para. 30), so it is unclear here whether this means that it should be publicly available.
The framework recognises the role of civil society in the process. It encourages the UK government to engage relevant domestic and international CSOs promptly once a return is agreed in principle under the framework (para. 39) and puts this responsibility on the returning department to reach out to CSOs (para. 41).
It also puts an emphasis on CSO monitoring of returned funds. While stating that monitoring mechanisms should be determined on a case-by-case basis, it highlights that CSOs could be funded by the return to monitor the return (paras. 42-44)
The framework commits the UK government to publish all MoUs and other agreements relating to the return. It also, where possible, requires the publication of other documentation on the UK government website, and requires a record kept of all assets returned (paras. 45-46)
Overall, this framework marks a big step forward in formalising government commitment to asset recovery. While not all elements are as clearly transparent as may be desired, and while there is some scope for ambiguity at certain points as well as an unclear role for victims, it nevertheless sets a new standard in terms of commitment to transparency in MoUs, in engaging with civil society, ensuring returns are monitored and in providing clarity in terms of how returns will take place and how they will be determined.
For civil society, this framework will enable much greater engagement on returns coming from the UK and should addresses several of the challenges faced in other returns, particularly around information sharing.
For those interested in learning more, the framework has already been used and can be seen in the February 2022 MOU between UK and Nigeria in relation to a compensation payment of £210,610 : https://www.gov.uk/government/publications/mou-between-uk-and-nigeria-in-relation-to-a-compensation-payment-of-210610
Blog by Jackson Oldfield, CiFAR