Cultural Property (Armed Conflicts) Bill [HL]

Lord Deben Excerpts

Tuesday 6th September 2016 Lords Chamber

[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 Deben (Con)]

I beg the House’s pardon, but there is a little bit of a problem here, given that this is exactly the time that we in this country should be very careful about our international obligations. As we are busy trying to untangle ourselves from entirely sensible international obligations because of very un-sensible policies, this is the moment to make sure we do not make any other mistakes, and I hope very much that we will pass this amendment.

[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.