Watching the apocalypse

My feedreader is subscribed to the flood of Statutory Instruments that pour out of OPSI. This is really just so I can skim through them once a day and see whether or not some godawful new provision has received a commencement order, or if some rules about something that affects my work have changed: keeping up with this stuff is a tedious but essential part of the job and this is a fairly easy way to keep an eye on things. The vast majority of them are remarkably tedious. Have a look at this page, for example. We start with the Veterinary Surgeons (Examination of Commonwealth and Foreign Candidates) (Amendment) Regulations Order of Council 2008, and move to the thrilling heights of the A4123 Trunk Road (Sandwell and Dudley) (Detrunking) Order 2008 (and yes, something like that might be relevant to one sideline of my practice, though I hope rarely so). Admittedly then we have commencement orders for a couple of important criminal statutes but by and large this is the unbelievably tedious minutiae of government.

That's the page immediately before the current one, where suddenly the drama of Recent and Ongoing Events rears its head - The Heritable Bank plc Transfer of Certain Rights and Liabilities Order 2008, The Transfer of Rights and Liabilities to ING Order 2008, The Kaupthing Singer & Friedlander Limited Transfer of Certain Rights and Liabilities Order 2008 and The Landsbanki Freezing Order 2008

The Treasury believe that action to the detriment of the United Kingdom’s economy (or part of it) has been or is likely to be taken by certain persons who are the government of or resident of a country or territory outside the United Kingdom.

[...] 3.—(1) The following are specified persons for the purposes of this Order— (a) Landsbanki; (b) the Authorities; and (c) the Government of Iceland.

[...] 4.—(1) The provisions of this article apply in relation to the following funds (“frozen funds”)— (a) funds owned, held or controlled by Landsbanki; and (b) funds relating to Landsbanki and owned, held or controlled by— (i) any of the Authorities; or (ii) the Government of Iceland. (2) A person must not make frozen funds available to or for the benefit of a specified person. (3) A person must not make frozen funds available at the direction or instruction of a specified person.

As the Explanatory Memo makes clear, the order is made "under the Anti-terrorism, Crime and Security Act 2001, in exercise of the power under sections 4 and 14 and Schedule 2*". My, we do live in interesting times: this rather seems to amount to an accusation against Iceland of committing a terrorist act. And while criminal and terrorist law always seemed a very long way from my practice, banking law, insolvency law and freezing orders are well within it (including these quasi-criminal freezing orders: I have worked on one of those, albeit in another jurisdiction, or rather several other jurisdictions), far more, thankfully than detrunking orders..

Incidentally, re the news that an awful lot of local authorities seem to have put their deposits in the Icelandic banks - I can't help thinking of the last time the local authorities (who tend to have very large sums of money sitting around much of the time and probably ought to do something productive with it) got into trouble re their money management (the mistaken idea in the late 80s that they were allowed to punt on the interest rate swaps market, though I'm also reminded many of them lost a packet in BCCI). That resulted in a host of landmark House of Lords judgments, first deciding it was illegal (ultra vires, to be precise) and then trying to unravel the consequences of that decision: Hazel v Hammersmith & Fulham, Westdeutsche v Islington, the various Kleinwort Benson cases including in particular Kleinwort Benson v Lincoln City Council, Kleinwort Benson v Glasgow City Council (HL and ECJ) and so on ad infinitum...

ETA meanwhile solicitors' firms are beginning to wonder about the client account - even a smallish provincial firm is likely to have a client account worth worrying about. The Times seems to think many of them may well be with RBS... (the main point in issue is whether protection would cover one £35/50k, or £35/50k for each client with funds in the client account)

ETFA Prompted by Charon I've been finding the CityUnslicker an interesting read recently: see in particular his comment on events in Iceland and Pakistan: A real game of Risk

*The section says:

4 (1) The Treasury may make a freezing order if the following two conditions are satisfied. (2) The first condition is that the Treasury reasonably believe that— (a) action to the detriment of the United Kingdom’s economy (or part of it) has been or is likely to be taken by a person or persons, or (b)action constituting a threat to the life or property of one or more nationals of the United Kingdom or residents of the United Kingdom has been or is likely to be taken by a person or persons.

Query whether as a matter of statutory construction section 4(2)(a) requires a reasonable belief in a mens rea of intent to cause such detriment on the part of the person in the context of the Act as a whole. If not, why is it in this Act, which is clearly about criminals and terrorists (An Act to amend the Terrorism Act 2000; to make further provision about terrorism and security; to provide for the freezing of assets; to make provision about immigration and asylum; to amend or extend the criminal law and powers for preventing crime and enforcing that law; to make provision about the control of pathogens and toxins; to provide for the retention of communications data; to provide for implementation of Title VI of the Treaty on European Union; and for connected purposes." ), rather than, say, FSMA, which is about market regulation?