The Libya (Financial Sanctions) Order 2011

Statutory Instruments

2011 No. 548

United Nations

The Libya (Financial Sanctions) Order 2011

Made

at 5.00 p.m. on 27th February 2011

Coming into force

at 5.15 p.m. on 27th February 2011

Laid before Parliament-

28th February 2011

At the Court at Windsor Castle, the 27th day of February 2011

Present,

The Queen's Most Excellent Majesty in Council

The Security Council of the United Nations adopted Resolution 1970 (2011) on 26th February 2011.

In that Resolution, the Security Council decides that Member States shall apply asset freezing measures in response to the situation in the Libyan Arab Jamahiriya.

Accordingly, Her Majesty, in exercise of the powers conferred on Her by section 1 of the United Nations Act 1946 M1 , is pleased, by and with the advice of Her Privy Council, to order as follows:

Marginal Citations

M1 1946 c.45.

Citation, commencement and application U.K.

1.—(1) This Order may be cited as the Libya (Financial Sanctions) Order 2011 and comes into force at 5.15 p.m. on 27th February 2011.

(2) An offence under this Order may be committed by conduct wholly or partly outside the United Kingdom by—

(a) a UK national, or

(b) a body incorporated or constituted under the law of any part of the United Kingdom.

(3) In paragraph (2)—

“conduct” includes acts and omissions;

“UK national” means—

(a)

a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,

(b)

a British subject under Part 4 of the British Nationality Act 1981 (British subjects) M2 with the right of abode in the United Kingdom, or

(c)

a British protected person within the meaning of that Act.

Marginal Citations

M2 1981 c.61. Part 4 was amended by the British Overseas Territories Act 2002 (c.8), section 1(1)(b) and the Nationality, Immigration and Asylum Act 2002 (c.41), sections 15 and 161, Schedule 2, paragraph 1(i) and Schedule 9.

Interpretation U.K.

2.—(1) In this Order—

“the 2000 Act” means the Financial Services and Markets Act 2000 M3 ;

“designated person” means an individual or entity—

(a)

listed in Annex II to the Security Council Resolution, or

(b)

designated by the Committee established in accordance with the Security Council Resolution;

“document” includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include producing a copy of the information in legible form;

“relevant institution” means—

(a)

a person who has permission under Part 4 of the 2000 Act (permission to carry on regulated activities) M4 ;

(b)

an EEA firm of the kind mentioned in paragraph 5(b) of Schedule 3 to the 2000 Act (EEA passport rights) M5 which has permission under paragraph 15 of that Schedule M6 as a result of qualifying for authorisation under paragraph 12 of that Schedule M7 to accept deposits; or

(c)

an undertaking which by way of business operates a currency exchange office, transmits money (or any representations of monetary value) by any means or cashes cheques which are made payable to customers;

“Sanctions Committee” means the Committee of the Security Council established under the Security Council Resolution;

“Security Council” means the Security Council of the United Nations;

“Security Council Resolution” means Resolution 1970 (2011) adopted by the Security Council on 26th February 2011.

(2) The definition of “relevant institution” in paragraph (1) must be read with—

(a) section 22 of the 2000 Act (the classes of activity and categories of investment),

(b) any relevant order under that section M8 , and

(c) Schedule 2 to that Act (regulated activities).

Marginal Citations

M3 2000 c.8.

M4 As amended by the Financial Services Act 2010 (c.28), section 3.

M5 As amended by S.I. 2006/3221.

M6 As amended by S.I. 2003/2066, S.I. 2007/3253, the Enterprise Act 2002 (c.40), section 278(1), Schedule 25, paragraphs 19(a) and 40(1), and the Consumer Credit Act 2006 (c.14), section 33(9).

M7 As amended by S.I. 2007/126 and S.I. 2007/3253.

M8 The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2001 (S.I. 2001/544) as amended, most recently by the Financial Services and Markets Act 2000 (Regulated Activities) Order 2011 (S.I. 2011/133).

Freezing of funds, financial assets and economic resources U.K.

3.—(1) A person (“P”) must not deal with funds, other financial assets or economic resources owned or controlled, directly or indirectly, by—

(a) a designated person;

(b) an individual or entity acting on behalf, or at the direction, of a designated person; or

(c) an entity owned or controlled by a designated person,

if P knows, or has reasonable cause to suspect, that P is dealing with such funds or economic resources.

(2) In paragraph (1) “deal with” means—

(a) in relation to funds and other financial assets—

(i) use, alter, move, allow access to or transfer;

(ii) deal with the funds or financial assets in any other way that would result in a change in volume, amount, location, ownership, possession, character or destination; or

(iii) make any other change that would enable use, including portfolio management; and

(b) in relation to economic resources, exchange or use in exchange for funds, goods or services.

(3) Paragraph (1) is subject to articles 8 and 9.

Making funds or other financial assets available to a designated person U.K.

4.—(1) A person (“P”) must not make any funds or other financial assets available to a designated person if P knows, or has reasonable cause to suspect, that P is making the funds or other financial assets so available.

(2) Paragraph (1) is subject to articles 8 and 9.

Making funds or other financial assets available for the benefit of a designated person U.K.

5.—(1) A person (“P”) must not make any funds or other financial assets available to any person for the benefit of a designated person if P knows, or has reasonable cause to suspect, that P is making the funds or other financial assets so available.

(2) For the purposes of this article—

(a) funds or other financial assets are made available for the benefit of a designated person only if that person thereby obtains, or is able to obtain, a significant financial benefit, and

(b) “financial benefit” includes the discharge of a financial obligation for which the designated person is wholly or partly responsible.

(3) Paragraph (1) is subject to articles 8 and 9.

Making economic resources available to a designated person U.K.

6.—(1) A person (“P”) must not make economic resources available to a designated person if P knows, or has reasonable cause to suspect—

(a) that P is making the economic resources so available, and

(b) that the designated person would be likely to exchange the economic resources, or use them in exchange, for funds, goods or services.

(2) Paragraph (1) is subject to article 9.

Making economic resources available for the benefit of a designated person U.K.

7.—(1) A person (“P”) must not make economic resources available to any person for the benefit of a designated person if P knows, or has reasonable grounds to suspect, that P is making the economic resources so available.

(2) For the purposes of this article—

(a) economic resources are made available for the benefit of a designated person only if that person thereby obtains, or is able to obtain, a significant financial benefit, and

(b) “financial benefit” includes the discharge of a financial obligation for which the designated person is wholly or partly responsible.

(3) Paragraph (1) is subject to article 9.

Credits to a frozen account U.K.

8.—(1) The prohibitions in articles 3 to 5 are not contravened by a relevant institution crediting a frozen account with—

(a) interest or other earnings due on the account, or

(b) payments due under contracts, agreements or obligations that were concluded or arose before the account became a frozen account.

(2) The prohibitions in articles 4 and 5 on making funds or other financial assets available do not prevent a relevant institution from crediting a frozen account where it receives funds transferred to the account.

(3) A relevant institution must inform the Treasury without delay if it credits a frozen account in accordance with paragraph (1)(b) or (2).

(4) In this article “frozen account” means an account with a relevant institution which is held or controlled (directly or indirectly) by a designated person.

Licences U.K.

9.—(1) The prohibitions in articles 3 to 7 do not apply to anything done under the authority of a licence granted by the Treasury.

(2) A licence must specify the acts authorised by it and may be—

(a) general or granted to a category of persons or to a particular person;

(b) subject to conditions;

(c) of indefinite duration or subject to an expiry date.

(3) The Treasury may vary or revoke a licence at any time.

(4) On the grant, variation or revocation of a licence, the Treasury must—

(a) in the case of a licence granted to a particular person, give written notice of the grant, variation or revocation to that person,

(b) in the case of a general licence or a licence granted to a category of persons, take such steps as the Treasury consider appropriate to publicise the grant, variation or revocation of the licence.

(5) A person commits an offence who, for the purpose of obtaining a licence, knowingly or recklessly—

(a) provides information that is false in a material respect, or

(b) provides or produces a document that is not what it purports to be.

(6) A person who purports to act under the authority of a licence but who fails to comply with any conditions included in the licence commits an offence.

Contravention and circumvention of prohibitions U.K.

10.—(1) A person who contravenes any of the prohibitions in articles 3 to 7 commits an offence.

(2) A person commits an offence who intentionally participates in activities knowing that the object or effect of them is (whether directly or indirectly)—

(a) to circumvent any of the prohibitions in articles 3 to 7, or

(b) to enable or facilitate the contravention of any such prohibition.

Information provisions U.K.

11.  The Schedule (which contains provisions concerning information gathering and disclosure) has effect.

Cooperation with UK or international investigations U.K.

12.  The Treasury must take such steps as they consider appropriate to cooperate with any investigation, in the United Kingdom or elsewhere, relating to the funds, other financial assets, economic resources or financial transactions of a designated person.

Officers of a body corporate etc. U.K.

13.—(1) Where an offence under this Order committed by a body corporate—

(a) is committed with the consent or connivance of any director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, or

(b) is attributable to any neglect on the part of any such person,

that person as well as the body corporate is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) In paragraph (1) “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(3) Paragraph (1) also applies in relation to a body that is not a body corporate, with the substitution for the reference to a director of the body for a reference—

(a) in the case of a partnership, to a partner;

(b) in the case of an unincorporated body other than a partnership—

(i) where the body's affairs are managed by its members, to a member of the body;

(ii) in any other case, to a member of the governing body.

Penalties U.K.

14.—(1) A person guilty of an offence under article 9 or 10 is liable—

(a) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both;

(b) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum or to both.

(2) A person guilty of an offence under paragraph 1(5) or 4(1) of the Schedule is liable on summary conviction to imprisonment for a term not exceeding three months or to a fine not exceeding level 5 on the standard scale or to both.

Proceedings U.K.

15.—(1) Proceedings against any person for an offence under this Order may be taken before the appropriate court in the United Kingdom having jurisdiction in the place where that person is for the time being.

(2) In England and Wales an information relating to an offence that is triable by a magistrates' court may be so tried if it is laid—

(a) at any time within three years after the commission of the offence, and

(b) within twelve months after the date on which evidence sufficient in the opinion of the prosecutor to justify the proceedings comes to the knowledge of the prosecutor.

(3) In Scotland—

(a) summary proceedings for an offence may be commenced—

(i) before the end of twelve months from the date on which evidence sufficient in the Lord Advocate's opinion to justify the proceedings came to the Lord Advocate's knowledge, and

(ii) not later than three years after the commission of the offence; and

(b) section 136(3) of the Criminal Procedures (Scotland) Act 1995 M9 (time limit for certain offences) applies for the purpose of this paragraph as it applies for the purpose of that section.

(4) In Northern Ireland summary proceedings for an offence may be instituted—

(a) at any time within three years after the commission of the offence, and

(b) within twelve months after the date on which evidence sufficient in the opinion of the prosecutor to justify proceedings comes to the knowledge of the prosecutor.

(5) For the purposes of this article a certificate of the prosecutor (or in Scotland, the Lord Advocate) as to the date on which such evidence as is referred to above came to their notice is conclusive evidence.

Marginal Citations

M9 1995 c.46.

Consent to prosecution U.K.

16.—(1) Proceedings for an offence under this Order (other than a summary offence) may not be instituted—

(a) in England and Wales, except by or with the consent of the Attorney General,

(b) in Northern Ireland—

(i) where the offence is committed wholly or partly outside Northern Ireland, except by or with the consent of the Advocate General for Northern Ireland;

(ii) for all other offences, except by or with the consent of the Director for Public Prosecutions for Northern Ireland.

(2) Nothing in paragraph (1) prevents—

(a) the arrest of a person in respect of an offence under this Order, or

(b) the remand in custody or on bail of any person charged with such an offence.

Notices U.K.

17.—(1) This notice has effect in relation to any notice to be given to a person by the Treasury under article 9.

(2) Any such notice may be given—

(a) by posting it to the person's last known address, or

(b) where the person is a body corporate, partnership or unincorporated body other than a partnership, by posting it to the registered or principal office of the body or partnership concerned.

(3) Where the Treasury do not have an address for the person, they must make arrangements for the notice to be given to the person at the first available opportunity.

The Crown U.K.

18.—(1) This Order binds the Crown.

(2) No contravention by the Crown of a provision of this Order makes the Crown criminally liable.

(3) The High Court or, in Scotland, the Court of Session may, on the application of a person appearing to the court to have an interest, declare unlawful any act or omission of the Crown that constitutes a contravention of a provision of this Order.

(4) Nothing in this article affects Her Majesty in her private capacity.

(5) Paragraph (4) is to be read as if section 38(3) of the Crown Proceedings Act 1947 M10 (meaning of Her Majesty in her private capacity) were contained in this Order.

Marginal Citations

M10 1947 c.44.

[F1 The Libya (Asset-Freezing) Regulations 2011 U.K.

19.   This Order does not apply to any transaction or other act which is prohibited by regulations 3 to 7 of the Libya (Asset-Freezing) Regulations 2011 or which would be so prohibited if regulation 8 (credits to a frozen account) or 9 (licences) did not apply.]

Textual Amendments

F1 Art. 19 inserted (3.3.2011 at 3.30 p.m.) by The Libya (Asset-Freezing) Regulations 2011 (S.I. 2011/605), regs. 1(1), 20 (with reg. 18)

Judith Simpson

Clerk of the Privy Council

Article 11

SCHEDULE U.K. Information Provisions

Reporting obligations of relevant institutions U.K.

1.—(1) A relevant institution must inform the Treasury as soon as practicable if—

(a) it knows, or has reasonable cause to suspect, that a person—

(i) is a designated person, or

(ii) has committed an offence under article 9 or 10, and

(b) the information or other matter on which the knowledge or suspicion is based came to it in the course of carrying on its business.

(2) Where a relevant institution informs the Treasury under sub-paragraph (1), it must state—

(a) the information or other matter on which the knowledge or suspicion is based, and

(b) any information it holds about the person by which the person can be identified .

(3) Sub-paragraph (4) applies if—

(a) a relevant institution informs the Treasury under sub-paragraph (1) that it knows, or has reasonable cause to suspect, that a person is a designated person, and

(b) that person is a customer of the institution.

(4) The relevant institution must also state the nature and amount or quantity of any funds, other financial assets or economic resources held by it for the customer at the time when it first had the knowledge or suspicion.

(5) A relevant institution that fails to comply with any requirement of sub-paragraph (1), (2) or (4) commits an offence.

Powers to request information U.K.

2.—(1) The Treasury may request a designated person to provide information concerning—

(a) funds, other financial assets or economic resources owned, held or controlled by or on behalf of the designated person, or

(b) any disposal of such funds, other financial assets or economic resources.

(2) The Treasury may request a designated person to provide such information as the Treasury may reasonably require about expenditure—

(a) by or on behalf of the designated person, or

(b) for the benefit of the designated person.

(3) The power in sub-paragraph (1) or (2) is exercisable only where the Treasury believe that it is necessary for the purpose of monitoring compliance with or detecting evasion of this Order.

(4) The Treasury may request a person acting under a licence granted under article 9 to provide information concerning—

(a) funds, other financial assets, or economic resources dealt with under the licence, or

(b) funds, other financial assets or economic resources made available under the licence.

(5) The Treasury may request any person in or resident in the United Kingdom to provide such information as the Treasury may reasonably require for the purpose of—

(a) establishing for the purposes of this Order—

(i) the nature and amount or quantity of any funds, other financial assets or economic resources owned, held or controlled by or on behalf of a designated person;

(ii) the nature and amount or quantity of any funds, other financial assets or economic resources made available to, or for the benefit of, a designated person; or

(iii) the nature of any financial transactions entered into by a designated person.

(b) monitoring compliance with or detecting evasion of this Order; or

(c) obtaining evidence of the commission of an offence under this Order.

(6) The Treasury may specify the manner in which, and the period within which, information is to be provided.

(7) If no such period is specified, the information which has been requested must be provided within a reasonable time.

(8) A request may include a continuing obligation to keep the Treasury informed as circumstances change, or on such regular basis as the Treasury may specify.

(9) Information requested under this paragraph may relate to any period of time during which a person is, or was, a designated person.

(10) Information requested under sub-paragraph (1)(b), (2) or (5)(a)(iii) may relate to any period of time before a person became a designated person (as well as, or instead of, any subsequent period of time).

Production of documents U.K.

3.—(1) A request under paragraph 2 may include a request to produce specified documents or documents of a specified description.

(2) Where the Treasury request that documents be produced, they may—

(a) take copies of or extracts from any document so produced;

(b) request any person producing a document to give an explanation of it; and

(c) where that person is a body corporate, partnership or unincorporated body other than a partnership, request any person who is—

(i) in the case of a partnership, a present or past partner or employee of the partnership,

(ii) in any other case, a present or past officer or employee of the body concerned, to give such an explanation.

(3) Where the Treasury request a designated person or a person acting under a licence granted under article 9 to produce documents, that person must—

(a) take reasonable steps to obtain the documents (if not already in the person's possession or control);

(b) keep the documents under the person's possession or control (except for the purpose of providing them to the Treasury or as the Treasury may otherwise permit).

Failure to comply with request for information U.K.

4.—(1) A person commits an offence who—

(a) without reasonable excuse, refuses or fails within the time and in the manner specified (or, if no time has been specified, within a reasonable time) to comply with any request made under this Schedule;

(b) knowingly or recklessly gives any information, or produces any document, which is false in a material particular in response to such a request;

(c) with intent to evade the provisions of this Schedule, destroys, mutilates, defaces, conceals or removes any document; or

(d) otherwise intentionally obstructs the Treasury in the exercise of their powers under this Schedule.

(2) Where a person is convicted of an offence under this paragraph, the court may make an order requiring that person, within such period as may be specified in the order, to comply with the request.

General power to disclose information U.K.

5.—(1) The Treasury may disclose any information obtained by them in the exercise of their powers under this Order (including any document so obtained and any copy or extract made of any document so obtained)—

(a) to a police officer;

(b) to any person holding or acting in any office under or in the service of—

(i) the Crown in right of the Government of the United Kingdom;

(ii) the Crown in right of the Scottish Administration, the Northern Ireland Administration or the Welsh Assembly Government;

(iii) the States of Jersey, Guernsey or Alderney or the Chief Pleas of Sark;

(iv) the Government of the Isle of Man; or

(v) the Government of any British overseas territory;

(c) to any law officer of the Crown for Jersey, Guernsey or the Isle of Man;

(d) to F2 ... the Scottish Legal Aid Board or the Northern Ireland Legal Services Commission;

(e) to the [F3 Financial Conduct Authority, the Prudential Regulation Authority], the Jersey Financial Services Commission, the Guernsey Financial Services Commission, the Isle of Man Insurance and Pensions Authority and the Isle of Man Financial Supervision Commission;

(f) for the purpose of giving assistance or co-operation, pursuant to the Security Council Resolution, to—

(i) any organ of the United Nations, or

(ii) any person in the service of the United Nations, the Council of the European Union, the European Commission or the Government of any country;

(g) with a view to instituting, or otherwise for the purposes of, any proceedings—

(i) in the United Kingdom, for an offence under this Order, or

(ii) in any of the Channel Islands, the Isle of Man or any British overseas territory, for an offence under a similar provision in any such jurisdiction; or

(h) with the consent of a person who, in their own right, is entitled to the information or to possession of the document, copy or extract, to any third party.

(2) In sub-paragraph (1)(h) “in their own right” means not merely in the capacity as a servant or agent of another person.

Textual Amendments

F2 Words in Sch. para. 5(1)(d) omitted (E.W.) (1.4.2013) by virtue of The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential, Transitional and Saving Provisions) Regulations 2013 (S.I. 2013/534), reg. 1, Sch. para. 12(1)(2)(m)

F3 Words in Sch. para. 5(1)(e) substituted (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 200

Application of provisions U.K.

6.—(1) Nothing done under this Schedule is to be treated as a breach of any restriction imposed by statute or otherwise.

(2) But nothing in this Schedule authorises a disclosure that—

(a) contravenes the Data Protection Act 1998 M11 , or

(b) is prohibited by [F4 any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016].

(3) Nothing in this Schedule is to be read as requiring a person who has acted as counsel or solicitor for any person to disclose any privileged information in their possession in that capacity.

(4) This Schedule does not limit the circumstances in which information may be disclosed apart from this Schedule.

(5) This Schedule does not limit the powers of the Treasury to impose conditions in connection with the discharge of their functions under article 9.

(6) In this paragraph—

“information” includes documents;

“privileged information” means information with respect to which a claim to legal professional privilege (in Scotland, to confidentiality of communications) could be maintained in legal proceedings.

Textual Amendments

F4 Words in Sch. para. 6(2)(b) substituted (27.6.2018) by The Investigatory Powers (Consequential Amendments etc.) Regulations 2018 (S.I. 2018/682), reg. 1(3), Sch. 1 para. 10 (with reg. 4)

Marginal Citations

M11 1998 c.29.

Explanatory Note

(This note is not part of the Order)

This Order, made under section 1 of the United Nations Act 1946, gives effect in the United Kingdom to certain provisions of Resolution 1970 (2011) of the Security Council of the United Nations adopted on 26 January 2011 (“the Security Council Resolution”), in response to the situation in Libya.

The Security Council Resolution requires states to take measures to freeze the assets of persons listed in Annex II of the Resolution, or designated by the Committee of the Security Council established under the Security Council Resolution.

Article 2 defines designated persons as any person named in Annex II to the Security Council Resolution or designated by the Committee established under the Security Council Resolution.

Articles 3 to 7 provide prohibitions against dealing with the funds, financial assets or economic resources of a designated person, or making funds, financial assets or economic resources available to, or for the benefit of, a designated person.

Article 8 provides an exception to the prohibitions in articles 3 to 5 in the circumstances set out in the Security Council Resolution where a relevant institution credits a frozen account for a permitted reason.

Article 9 provides a licensing procedure to enable funds, financial assets and economic resources to be exempted from the prohibitions.

Article 10 creates offences when the prohibitions in articles 3 to 7 are contravened. Articles 13 to 16 contain provisions about penalties, proceedings and who, in relation to bodies corporate and other bodies, may be prosecuted for an offence under the Order.

The Schedule makes provision for information gathering and information disclosure.

A list of designated persons is available on the Internet at: www.hm-treasury.gov.uk/fin_sanctions_index.htm.

Further information is available from the Asset Freezing Unit, HM Treasury, 1 Horse Guards Road, London SW1A 2HQ and on the HM Treasury website (www.hm-treasury.gov.uk).