Baroness Northover
Main Page: Baroness Northover (Liberal Democrat - Life peer)Cultural Property (Armed Conflicts) Bill [HL]
Baroness Northover Excerpts
Lord Touhig (Lab)
My Lords, Amendments 5, 6, 7, 8 and 9 in my name and that of my noble friend Lord Stevenson of Balmacara are probing. We seek a better understanding of how the legislation will operate. We hope that the Minister will enlighten us when she replies. Also listed in this group is the proposal that Clause 6 stand part of the Bill, which we oppose. My noble friend Lord Stevenson of Balmacara will speak to that.
Amendment 5 would place a duty on the Secretary of State for Defence to ensure that military guidance is updated to reflect the responsibilities that Clause 5 places on commanding officers and their superiors. We argue that this is best done by inclusion in the Joint Service Manual of the Law of Armed Conflict. That way there would be no ambiguity about the duties and responsibilities of commanding officers. More than that, it would also help to ensure that other ranks are aware of what is required of their commanders.
In 2004, the Chiefs of Defence Staff and the Permanent Secretary in the Ministry of Defence, in publishing the Joint Service Manual of the Law of Armed Conflict, said:
“Law, both domestic and international, plays an increasingly important part in Defence activities”.
They said it must be clear therefore that:
“When undertaking operations, Commanders must take into account a broad and increasingly complex body of operational law”.
They went on to say:
“The Law of Armed Conflict is a part of that wider body of applicable law, but it merits a manual in its own right because of its great importance to all those involved in the use of force and in wider military activities”.
For that reason, we believe that the objective set out in Amendment 5 is correct.
Amendment 6 places a further duty on the Secretary of State for Defence each year to lay before Parliament,
“a list of all ranking military commanders who are responsible for a section 3 offence committed by forces under the commander’s effective command”.
This is at the very heart of the transparency we should expect if we are truly serious about protecting cultural property from theft or destruction. As I said, these two amendments are probing by nature, so the Minister will have the opportunity to explain in more detail how the Government see this part of the Bill working in practice.
Amendment 7 deals with the somewhat vexed question of the jurisdiction over our embedded forces. The Secretary of State for Defence has already said in a Statement that the Government will not be advising Parliament when our forces, embedded in the forces and under the command of a foreign power, enter into conflict. We on this side have raised this matter quite a few times in recent months, fearing that the use of this doctrine, which the Defence Secretary promulgated in April this year, is becoming the rule rather than the exception. Of course, we recognise—and I have stated in the past—that there will be occasions when, for reasons of national security and the safe operating of our forces, it would not be desirable to make a Statement in Parliament or seek parliamentary consent beforehand.
However, we on these Benches are not alone in worrying about the more extensive use of embedded forces. The House will consider the Armed Forces Deployment (Royal Prerogative) Bill on 8 July. Such is the concern felt by others that the noble Baroness, Lady Falkner of Margravine, on the Liberal Democrat Benches has been motivated to introduce that Bill, which will regulate how the Government can commit embedded forces and will require Parliament to be informed. Because of our concern, we have been motivated to table Amendment 7, which will make it clear that,
“a person subject to UK service jurisdiction serving under the military command of the armed forces of another country”,
will be as liable for their actions under this Bill as those listed in Clause 3(4)(a) and (b).
Our Amendment 8 would ensure that this legislation applies equally to,
“private military contractors and individuals within private military contractors”,
as it does to British service personnel. All too often in recent years we have seen a real growth in the number of private military contractors operating in post-conflict situations such as Iraq, and it is right, in our view, that they be subject to this legislation.
Finally, Amendment 9 places a duty on the Secretary of State for Defence to publish a report annually on how the Government have,
“introduced into military regulations the requirements of Article 7 of the Convention”,
as well as detailing what steps they have taken to ensure that the Armed Forces have adopted the spirit of the convention to protect cultural property. Article 7 of the convention details the “military measures” that states taking part in a conflict should adopt. In addition, it details how the participating states must commit to establishing in peacetime,
“services or specialist personnel whose purpose will be to secure respect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it”.
Adopting this amendment would bring absolute clarity to the military measure requirements in the convention. This would ensure the clearest understanding of the duties placed on the military for protecting cultural property. I beg to move.
Baroness Northover (LD)
My Lords, I, too, am sorry that I could not be here for Second Reading. I was in Angola, itself a country devastated in the recent past by conflict. However, as a former historian—in a much earlier life—at University College London, and more recently as a DfID Minister, I am delighted to see the Bill coming forward.
As we have heard, Amendment 7 applies the provisions of the Act to,
“a person subject to UK service jurisdiction serving under the military command of the armed forces of another country”,
and Amendment 8 applies the Act to private military contractors. These amendments appear to show a gap in the provisions of the Bill, as the noble Lord, Lord Touhig, laid out, so I look forward to the Minister’s response to the points that have just been made.
Clause 6 sets out that those “guilty of an offence” or ancillary offence under the Bill are,
“liable on conviction on indictment to imprisonment for a term not exceeding 30 years”.
This is the maximum term of imprisonment. We are pleased that there is not a minimum mandatory term set out in the Bill, as we prefer the specification of maximum rather than minimum terms. Nevertheless, what range of sentences does the Minister anticipate would be employed under the Bill? What discussions have the Government had with the Sentencing Council and when do they anticipate that the council will begin consulting on the range of offences in the Bill?
Baroness Neville-Rolfe
We have made this a priority. I was going to say that my noble friend Lady Berridge made a good point about the link to the police. We have the military—the monuments men whom we heard about last time, one of them a 100 year-old woman—and the police effort. Together they need to have adequate resource, as I explained last time. Although it is an operational decision for the Met, working with the Mayor’s Office for Policing and Crime, to determine the available resources, in the spending review the Government pledged strong support for the police.
On the monuments men and the monuments lady in particular, I will come back to noble Lords on exactly what our plans are. The good news is that they are well geared up and are starting to recruit specialists into the Army Reserve pending final approval of the Bill now that we have, at last, found parliamentary time.
The working group will continue to provide updates on its progress, but I do not feel that a statutory requirement on the Secretary of State to produce a report a year after the Act is passed would be appropriate at such an early stage of its development. I hope the noble Lord will feel able to withdraw his amendment.
The noble Lord, Lord Stevenson, talked about the penalties when he spoke about whether the clause should stand part. Concerns have been expressed about the 30-year term. To some degree, I sympathise. I felt that when I saw the provisions. I am pleased to say that officials have now outlined the detailed reasons behind the approach, and I agree with their reasoning. The introduction of the penalty is considered appropriate to comply with Article 15(2) of the second protocol, which obliges parties to adopt measures necessary to establish in their domestic law criminal offences as set out in Article 15(1) of the same protocol and to make them punishable by appropriate penalties. While at first sight it may seem surprising that an offence of this nature and ancillary offences, such as attempting or conspiring, attract the same maximum penalty as war crimes, this flows naturally from the seriousness with which these offences are considered in international law. It is worth noting, as the noble Lord acknowledged, that this is a maximum penalty. In practice, the penalty may be a much shorter sentence or even a fine and the maximum sentence is likely to be reserved for only the most heinous crimes against cultural property.
The noble Baroness, Lady Northover, asked whether we have consulted the Sentencing Council. We have not consulted it, but we will certainly look into this. I also thank the noble Lord for raising this point.
There are a number of important amendments in this group. The military is already very much behind this work, and we are gearing up for further work following the Bill’s passage—smoothly and rapidly, I hope—through the two Houses of Parliament, if that is possible these days. I will write to noble Lords with a little more detail about the working group.
Baroness Northover
Is the Minister able to give any kind of answer to the noble Lord, Lord Howarth? He asked a very pertinent question about what happens when our military might be embedded with others. I realise that at Second Reading there was mention of the situation in Yemen, which is a case in point. If there is a response that might suddenly inspire the Minister—I think that one might have arrived—it would be helpful to have it now rather than in a letter.
Lord Howarth of Newport
May I add a gloss to the intervention that I made? We really have to think about a situation in which we are working with an ally who might have signed the convention but not both protocols.
Lord Inglewood
My Lords, in her response to my intervention on the previous amendment the Minister responded to some things I wanted to touch on and raise under this amendment—so it was nice to hear from her in advance of my comments.
First, speaking as president of the British Art Market Federation, I emphasise that the federation warmly welcomes the Bill—and does so for two completely different reasons. The first is that it is inherently a good and a right thing to do. Secondly, the British art market, which is based particularly in London but not exclusively so, needs to have the reputation as a clean market. If it is not a clean market, it will not be able to benefit those who deal in it as well as it would if it were. This is as true of a stock exchange or the City of London as it is of the British art market.
The Minister told the Committee at the end of her remarks on the previous amendment what she expected of the British art market. I listened carefully and I think that I understood everything accurately. I can say that not only is that what we expect of the British art market but that she missed two things out. The first is that we expect those who break the law to be prosecuted and then convicted. Secondly—this was an important point made by the noble Lord, Lord Collins—we are not ultimately interested in prosecuting people for crimes; we want to see a world where these crimes do not take place in the first instance. If you have a market which succeeds in prosecuting criminals who operate in and around it, you will go a long way towards achieving just that.
I will touch on some comments I made at the conclusion of my contribution to the discussion on the previous clause. It seems that we need to get two important things right in the context of the criminal law here. The first is that the mens rea needs to be right—I think that my noble friend knows this. We feel that the mens rea as drafted in the Bill is a bit woolly. If you have a slightly woolly definition of what the necessary mens rea is, clever lawyers will be able to get slippery individuals off, and that is not a good thing. We believe, bearing in mind the way in which the criminal law is construed in this country, that a mens rea of knowing or suspecting will assist in bringing criminals to book. Secondly, the particularity of what is required of people should be clear, straightforward and doable. As I said earlier, this is not an exercise in writing a paper which may get you a First in your finals at university but an exercise in bringing bad lads to book.
Against that background, we have heard quite a lot of remarks about the extent of criminality in the London art market, particularly in the context of the tragic events in the Middle East. As I understand it—and I do not have a lot of first-hand knowledge—undoubtedly during the Iraq war there was a significant amount of trade in illegal objects which derived from Iraq at that time. Since then, in the context of the Syrian conflict, my understanding is that the London art market has hardly been involved. This is partly to do with the cultural property offences Act, which we have already had reference to, and partly to do with the fact that those who are engaged in this activity, which is undoubtedly happening, are no longer using the London art market as the place from which to disseminate their ill-gotten goods. In corroboration of this, I understand that the Metropolitan Police has put it on the record that London is now a much cleaner market than it was before.
One reason for that is the expansion of proper due diligence. If you use due diligence, you do not necessarily need to have in front of you an enormous schedule of provenance. After all, these days a good provenance enhances the value of a work of art, and most people sell works of art in order to make as much money as possible. But, in the context of the kind of object that might have been looted, not having appropriate provenance gives rise to suspicion and, if there is suspicion, you will potentially be liable to prosecution. If you look at it like that, do not prescribe the rules too tightly and allow the application of principle in dealing with these matters, you will almost certainly be more successful.
Earlier, we heard a number of suggestions regarding illegal trade going on in London. I would just say: do not raise them on the Floor of the House of Lords; go to the police and get the criminals banged up. That is what is required. There have been so few prosecutions and it has been suggested to me that the reason is that there has not been the evidence to justify bringing them. I am not saying that everything is perfect—but that again goes back to the fact that, in the case of the current conflict, this is not the principal place where people wish to launder these sorts of items.
The noble Lord, Lord Howarth, is absolutely right: we must not overlook the fact that the art market, like all markets in this country, is subject to comprehensive and extensive money-laundering regulation. That, as much as anything else, ought to answer certain criticisms that have been made. The noble Lord is probably right that changing the burden of proof in the way described would be a pretty fundamental change to the way that things are done in this country. It would probably drive the bad lads underground, because you can always sell things privately. We do not know what goes on when things are sold privately but I suspect that it is a much easier way to fence stuff. So I urge the Government to look very carefully at what is proposed because I doubt that it will have the result that its proponents suggest. It could have a damaging effect on the honest market, and if you do not have an honest market there is always the temptation for a parallel dishonest market to develop.
Baroness Northover
My Lords, I support the amendment in the names of the noble Earl, Lord Clancarty, and my noble friends Lord Redesdale and Lady Bonham-Carter. I emphasise the vital importance of not only preserving the world’s cultural heritage but doing our best to curtail funding for terrorist groups. People tend to think of oil or extortion as funding terrorism, but we know that people trafficking and, as the noble Lord, Lord Collins, has just said, the wildlife trade, as well as the trafficking of cultural objects, also fund terrorism. That is not what people—the consumers, to whom the noble Earl, Lord Clancarty, refers—think as they buy a beautiful or historic object, which is why these provisions are so important: transparency is absolutely vital.
Can the Minister tell me whether the funding of the Arts and Antiques Unit in the Metropolitan Police, as with other areas in which the Met is pursuing corruption overseas, counts towards our overseas development assistance—ODA—calculations? Also, given Brexit and the potential shrinking of the economy, can she say whether our commitment to 0.7% of GNI for ODA will continue—and what provisions have been made if that does not happen?
Baroness Northover
My Lords, noble Lords from these Benches mentioned at Second Reading that we welcomed the introduction of the cultural protection fund. In a letter to my noble friend Lady Bonham-Carter, who is very sorry that she cannot be here at present—hence she has asked me to say this—the Minister mentioned that the Government were working with the British Council to establish a long-term strategy for the fund. We obviously welcome that.
This amendment seeks to ensure that the strategy, and the impact of the fund, is kept under annual scrutiny, as the noble Lord, Lord Collins, just said, and that it is used effectively. We argue that the strategy should have training at its core and that co-ordination is essential. There needs to be a central team based in London with credibility among the heritage community, the military, police, Customs and NGO sectors. Challenging cases will clearly include liaising with military units on standby which do not know precisely where they are going. The strategy will also need to look to the future to try to identify countries at particular risk and prepare for what might happen, especially given how cultural artefacts can be targeted, as we now see in the Middle East. It will also need to strike a balance between emergency response and long-term support. In addition, the funds should be used to leverage funds from other countries as well.
As I mentioned, the Minister wrote an incredibly helpful letter to my noble friend Lady Bonham-Carter. She would very much appreciate it if some of the comments in that letter could be put on the record. I hope very much that the Minister will do that.
Lord Howarth of Newport
My Lords, I support my noble friend’s proposal that there should be a requirement for the Secretary of State to make periodic reports to Parliament on the work of the cultural protection fund in supporting the implementation of the Hague convention. I emphasise how much I applaud the Government for creating the cultural protection fund. It is an excellent initiative and greatly to their credit, particularly in this time of austerity. I particularly congratulate the Secretary of State, the right honourable John Whittingdale.
These are difficult times. All the same, we must recognise that a fund amounting to £30 million over four years is not a large amount of money. At Second Reading, the Minister explained that grants from the cultural protection fund would,
“support projects involved in cultural heritage protection; training and capacity building; and advocacy and education, primarily focused in the Middle East and north Africa”.—[Official Report, 6/6/16; col. 584.]
That is a lot of objectives to be funded out of a fairly limited sum of money. Therefore, while praising the Government, I ask them to do everything they can to ensure that the value of the fund is maintained, because these are difficult times in terms of public spending.
How is the British Council developing its expertise in these matters as I understand that this has not been an area of particular responsibility for it in the past and it will need to build up its strength? That leads me to ask what the role of the blue shield will be and whether the Government expect there to be a blue shield unit based in London. As we have noted in the past, this is a remarkable opportunity for Britain to lead internationally in this matter. It is very important in terms of heritage, upholding the Hague convention and our soft power objectives and diplomacy. I would be grateful if the Minister would respond to those questions.
Lord Stevenson of Balmacara
I am sure that the Minister will not mind debating my favourite topic, which I know she shares. I will not in any sense apologise for the lateness of the hour because it ain’t late.
When we were preparing for these debates, we obviously had regard to the substance of the Bill and the need to make sure that we lived up to the promise that we gave that there would be satisfactory scrutiny. I hope that we have done that today; I certainly feel as though we have. I am grateful to the Minister and the noble Earl, Lord Courtown, for their responses, which will be in Hansard and will be very important in fleshing out the wording of the Bill in relation to how it will apply to those who have to implement it and take it forward. That is a very important part of this process.
There may be one or two things that we will want to come back to on Report but I do not see them being very significant or necessarily contested. I think there will just be more clarification or perhaps a chance to exemplify or build on stuff that has already been covered today. Indeed, we have already found that much of the stuff we did today was raised also at Second Reading. So we will have had a very full canter through these issues.
We should not in any sense demean the value of the Bill in terms of how it will change and shape what British forces and others involved in the protection of cultural property will do in the future—it is a Bill that we want to see go through in its present form and we do not wish to change it—but it occurred to me that I could not let Clause 32 pass without going back to my favourite topic, which is the need to minimise the burden on business by reducing the number of dates on which regulation floods in under the agency of a Government who are supposedly trying to cut back on red tape. The Minister will argue—rightly, I am sure—that the Bill does not apply primarily to business and therefore probably escapes the prohibitions that might come from statutory instruments deriving from it being implemented randomly through the year and therefore there will be no need for compensation, but I am sure she will want to share with me two things.
First, you cannot really let a Bill get through scot free. It should have one amendment, I think. If she wants to do that, here is one. It is not a Christmas tree Bill. These are not Christmas tree presents, but it is a nice, gentle little amendment which will show that we really have exercised the authority, wisdom, history and grandeur of the House of Lords in these troubled times. Secondly, it is a good thing to restrict the number of days on which regulations come in, and I hope she will respond to that. I beg to move.
Baroness Northover
My Lords, I rise simply to express the hope that the Bill speeds through rapidly, whatever else is happening around us, and that it is commenced as soon as possible. We have waited a very long time—since 1954—for this Bill to be put in place.
Baroness Neville-Rolfe
My Lords, I feel very well scrutinised today. I thank the noble Baroness, Lady Northover, for her support in relation to the speedy passage of the Bill.
The Government recognise the importance of giving as much advance notice as possible of when new regulations and requirements will come into force, particularly where they have an effect on business, as has been said. Of course, common commencement dates are not defined in law, they are a matter of policy, and we are not aware of any precedent for referring to them in legislation. In order to refer to them in the Bill, a definition would need to be included. But our intention is to bring the provisions of the Bill into force as soon as possible after Royal Assent.
The noble Lord, Lord Stevenson, knows that I share his passion for common commencement dates, and if we can bring the Bill in on a common commencement date we will of course do so, but we have to balance that with the need to get ahead and implement the convention and the protocols. As I see it, the sooner we are able to bring the provisions of the Bill into force, the sooner we will be able to ratify the convention and its protocols and ensure that cultural property has the protection it needs, which is provided for in the Bill, and hold our head up high in international institutions that are concerned with cultural property.