Lord Brown of Eaton-under-Heywood
Main Page: Lord Brown of Eaton-under-Heywood (Crossbench - Life Peer (judicial))Cultural Property (Armed Conflicts) Bill [HL]
Lord Brown of Eaton-under-Heywood Excerpts
Lord Brown of Eaton-under-Heywood (CB)
My Lords, I will move Amendment 3 and speak to Amendment 4 in the place of my noble and learned friend Lord Woolf, who yesterday underwent a knee operation. I am happy to tell the House that it all went well and that no doubt he will be ready to respond to the call for “Strictly” whenever it comes.
I confess to having played no part in earlier debates on the Bill, but I am a keen supporter of the principles and objectives that underlie it. As will readily be appreciated, these amendments to Clause 6 are designed to separate out the primary or principal offences under Clause 3; that is, serious violations of the convention and the Second Protocol from ancillary offences, which are dealt with separately in Clause 4. As presently drafted, all are subject to a maximum term of 30 years’ imprisonment. We propose in these amendments that in the case of ancillary offences—let me make clear, as does paragraph 37 of the Explanatory Notes, that we are talking not just about offences ancillary to the principal offences but to offences ancillary to ancillary offences—the maximum penalty should be reduced to 14 years. This point was first raised, and the change urged, by the Joint Committee on Human Rights, on which my noble and learned friend Lord Woolf serves. The chairman of the committee, Harriet Harman, pointed out in a letter to the department that an example of an ancillary offence is someone destroying evidence to conceal an attempt by a friend to steal property that is protected under the Hague convention.
Of course, I well recognise that a 30-year maximum sentence ultimately leaves it to the court to decide on what the appropriate punishment or sentence should be for any particular offending. In one sense, one might ask where on earth is the harm in having what is, I suggest, for ancillary offences an absurdly high maximum. But on that approach, why not have 40 years or life imprisonment? The fact is that the fixed maximum gives some indication of the relative gravity with which offending is viewed by Parliament. If, as here, it becomes wildly out of touch with reality, far from strengthening the legislation, I respectfully suggest that it actually weakens it. Better by far to keep the matter in a proper perspective.
A sentence of 14 years for an ancillary offence is itself likely to be way beyond any appropriate sentence, but at least it would highlight the true comparative gravity of a principal as opposed to an ancillary offence. I should just add that the department responded to the Joint Committee’s plea to change this by saying that the policy in this legislation is to mirror the position with regard to war crimes under the International Criminal Court Act 2001. That also provides for a 30-year maximum sentence to be applied equally to ancillary offences and principal offences. It is true that the definition of a war crime includes,
“intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments … provided they are not military objectives”.
I suggest that such an offence would be equivalent to one at the very upper end of offending under our convention, the Hague convention. Realistically, the 30-year limit prescribed for war crimes is rather more apt for classic war crime offences—genocide, crimes against humanity, crimes against peace and such like. In short, war crimes provide an imperfect parallel with our legislation, particularly with regard to ancillary offences, and it is for those that we propose in these amendments to reduce the maximum to 14 years. I beg to move.
Lord Foster of Bath (LD)
My Lords, my noble friend Lady Hamwee is one of the signatories to these amendments. Sadly, she cannot be in her place but she, too, is a member of the JCHR, to which the noble and learned Lord, Lord Brown, already referred, as he did to the letter to the department from the chairman of that committee. As the noble and learned Lord eloquently explained, the letter from Harriet Harman makes it very clear that we are talking about two sets of offences. One is the offence of a serious breach, the other is an ancillary offence—or, indeed, even an ancillary to an ancillary offence. These amendments clearly suggest that, in the light of the differences between them, there should be two sets of maximum penalties accorded to them. That has been very clearly laid down.
My only point is to ask a further question of the Minister that follows on from the letter that Harriet Harman sent, which says:
“Moreover, with an unusual offence of this kind, we would also ask whether the Government plans to request that the Sentencing Council issue guidelines (and if not, why not?)”.
The House would be interested in the Minister’s response to that query from Harriet Harman.
Lord Brown of Eaton-under-Heywood
My Lords, I am grateful to all those who have taken part in this short debate and to the Minister for his reply. I do not pretend to have been persuaded by most of what he said, or to believe that there is the close analogy between war crimes—even those of destroying buildings which are for cultural purposes—and the legislation which we are now concerned with. I respectfully endorse what the noble Lord, Lord Inglewood, said about the dangers of suggesting that other legislation is necessarily closely parallel to that which is under direct and immediate consideration. All that said, I am confident that at the end of the day the judges, in their discretion, will reach sensible solutions. It is a pity that Parliament looks by this to be a little out of touch. The maximum penalties cease to have quite the same conviction if they lose perspective but I am certainly not proposing to divide the House and I accordingly seek leave to withdraw the amendment.
(a) it is seized or forfeited under or by virtue of an order made by a court in the United Kingdom, and(b) the court is required to make the order under, or under provision giving effect to, an EU obligation or any international treaty.”
Lord Brown of Eaton-under-Heywood
My Lords, again in place of the noble and learned Lord, Lord Woolf, I move Amendment 6 on Clause 28. This amendment has been requested by not only the Joint Committee on Human Rights but also the Constitution Committee of this House. As drafted, Clause 28 prioritises compliance with Article 14 of the Hague convention over compliance with every other legal obligation that the United Kingdom may be under pursuant to EU or other international law. Under the amendment, if conflicting obligations do indeed arise under international law, it will be for the court to decide where, ultimately, the priorities should lie.
As your Lordships of course appreciate, Clause 28 deals with cultural property in the United Kingdom; it dictates that in certain circumstances, when it is protected it cannot be seized or forfeit. With this provision, there is, I respectfully suggest—contrary to the position under the matter I was discussing earlier—a useful and close analogy. As pointed out by the Joint Committee and the Constitution Committee, the analogy is with the Tribunals, Courts and Enforcement Act 2007 which, in order to facilitate loans of property to museums and galleries in this country, provides assurances that objects which are normally kept outside the United Kingdom will not be seized or forfeit here. In other words, to encourage foreign galleries or owners to lend property for exhibition here, there is the assurance that those objects in the United Kingdom will not be seized or forfeit. But importantly—this is the crunch point—Section 135 of that Act is subject to the proviso that it has no effect where a court is required to make an order,
“under, or under a provision giving effect to, an EU obligation or any international treaty”.
Essentially, it is just that same proviso which we are seeking, by Amendment 6, to introduce into this legislation.
It is true, as the department has said in the Minister’s letter that it is “very unlikely in practice” that there will be any conflict between our obligations under the Hague convention and any other international treaty obligations. But what possible disadvantage is there in providing for such a conflict to give the discretion to the court in case the conflict arises? Surely it is better to provide for it than not and to leave matters prioritising it, as the Bill as drafted does.
I urge the House to consider how moderate, how measured, how sensible and how restrained our amendment is when one compares it to the altogether more radical amendment which I suspect is shortly to be spoken to and which would delete Clause 28 altogether. I beg to move.
Lord Stevenson of Balmacara
My Lords, we have an amendment in this group. It is nice to be described as the radical party—I thought we had lost that tag. To be vigorous and radical with a proposal to delete a clause is always a good thing. However, our intention was exactly the same as that of the noble and learned Lord. The issues raised by the Constitution Committee needed a further outing, and he has expressed them in such a brilliant way that I see no need to add to that. I look forward to the Minister’s response.
Lord Ashton of Hyde
My Lords, I will address the noble and learned Lord’s amendment and the clause stand part amendment together, but will just start with the noble Lord, Lord Deben, who talked about not making any mistakes in our international obligations. I respectfully point out to him that this international obligation was made in 1954 and has therefore been an obligation for a very long time. We all agree that we should pass the Bill so that we can ratify our international obligations and bring this into domestic law.
The amendment tabled by the noble and learned Lord, Lord Brown, and moved by the noble and learned Lord, Lord Brown, seeks to make the protection from seizure or forfeiture explicitly subordinate to any other international or EU obligations. It would enable a court to order the seizure or forfeiture of a protected object if it was obliged to make such an order by virtue of another international or EU obligation, whereas the present Clause 28 provides contains no such caveat. I understand the noble and learned Lord’s intention is to address concerns about potential conflicts with other EU or international obligations.
I also understand that, as the noble Lord, Lord Stevenson, explained, the amendment to omit Clause 28 altogether was tabled with the same intention, but in fact I think it was really tabled so that we could have a discussion of these issues, which we are doing now. For the record, if the amendment in the name of the noble Lord, Lord Stevenson, were accepted, it would in fact prevent us from fulfilling any of our obligations under Article 14 of the convention and Article 18 of the regulations.
The matter of potential conflicts with other international or EU obligations was raised, as the noble and learned Lord said, by both the Constitution Committee and the JCHR. We have replied to explain that it is, in our view, highly unlikely—as, again, has been said—that a conflict would arise between our obligations under the Hague convention and those under other international or EU laws. Clause 28 is required to implement our obligations under Article 14 of the Convention and Article 18 of the regulations for the execution of the convention. It requires us to provide immunity from seizure or forfeiture for cultural property that is being transported to another country under special protection for safekeeping in line with Article 12 of the convention. It also provides for cultural property under special protection for which the United Kingdom has agreed to act as depository in order to safeguard the cultural property during an armed conflict.
It is our view, which is supported by academic commentary, that the obligation to provide immunity from seizure contained in Article 14 of the convention is absolute. It is worth noting that no state parties, including the vast majority of other EU member states, have made any reservations in relation to the immunity from seizure obligations. We believe, therefore, that accepting the proposed amendment would be incompatible with our obligations under the convention.
It is important to note that immunity will apply only in extremely limited, prescribed circumstances, and only during an armed conflict between states. Stringent requirements must be fulfilled for cultural property to be transported under special protection. Given those extremely limited circumstances in which immunity will be provided, we think it highly unlikely that a conflict could arise in future between our obligations under the Bill and any other EU or international obligation. We note that the Convention is a specialist treaty regulating a very particular subject matter in situations of armed conflict.
In addition, if there were ever any concerns about potential conflicts, the UK could refuse to accept transport of cultural property under special protection to or through its territory. It can also refuse to act as depository.
The noble and learned Lord referred to comparisons that have been made between Clause 28 and the qualified immunity provided under the Tribunals, Courts and Enforcement Act 2007 to objects on loan to museums and galleries. Under that Act, the immunity provided is expressly subject to any international or EU law obligations that would require a UK court to order the seizure or forfeiture of the otherwise protected object. We can understand the reasons for the comparison, but it is our view that to make the immunity in the Bill automatically subordinate to all other international and EU obligations is unnecessary. The 2007 Act is a purely domestic piece of legislation designed to facilitate exhibitions at museums and galleries, whereas the Bill is implementing our international obligations to protect, in very precise circumstances, the world’s most important cultural heritage in times of armed conflict.
We are unaware of any existing conflicting EU or other international law obligation and can take the necessary steps to avoid any potential conflict arising. We note that the vast majority of other EU member states will also wish to avoid such a conflict arising, given that they also are bound by absolute obligation to provide immunity. If a conflict did arise with our EU obligations, my officials advise that, if necessary, the courts would interpret Clause 28 as implicitly subject to EU law. If a conflict arose with international obligations, the UK court would be bound to apply the domestic legislation, but if the other international obligation had also been incorporated into our national law, the conflict between the two pieces of primary UK legislation would have to be resolved by the court in light of the relevant treaty obligations.
I hope that the House will understand that it is not our intention to elevate our obligations under the Hague convention above all other treaty obligations, but, equally, we do not think they should automatically be relegated to the bottom of the pile. With that in mind, I should be grateful if the noble and learned Lord would feel able to withdraw his amendment and that the noble Lord, Lord Stevenson, would withdraw his objection to clause stand part.
Lord Brown of Eaton-under-Heywood
My Lords, I am most grateful to the Minister for that full explanation of how the department sees this matter. I am reassured that it, too, would like to achieve the position where if, ultimately, in the improbable event that there is a conflict in international obligations that this country owes in respect of this property, it will be for the courts to resolve. I respectfully disagree that our amendment would make the obligations under the Hague convention subordinate. I respectfully suggest that they would have left the position substantially as the Minister says that we are now left with them: for the courts to determine any such conflict. However, I find his explanation as a whole altogether more satisfactory and reassuring, if I may say so, than that on the previous amendment and I therefore respectfully ask leave to withdraw the amendment.