Business of the House
Debate between Lord Garnier and John Bercow(8 years ago)
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Mr Speaker
Order. Given the pressure on time, to which I referred earlier, I should now appreciate single, short supplementary questions.
Sir Edward Garnier (Harborough) (Con)
I welcome the announcement by the Leader of the House that there is to be a debate on the European Union and workers’ rights next week. Could he also provide an opportunity for the House to debate the rights of this House, because without our supporting our own rights, there are no rights for workers? The Court this morning reinforced the importance of parliamentary sovereignty. Will my right hon. Friend make it abundantly clear that this House believes in its own powers and privileges; that they should be sustained; and that we should not enter into the farce that we entered into last Monday, when Parliament made a mistake in relation to Select Committees? [Interruption.]
Mr Speaker
It is being chuntered from a sedentary position that the right hon. and learned Gentleman is a lawyer. He is indeed a very distinguished lawyer, but I fear that we will have to wait for the next question to get a brief one.
Mr Speaker
The right hon. and learned Gentleman is also a Member of Parliament, and we have heard him with great courtesy and, indeed, a degree of charity.
Cultural Property (Armed Conflicts) Bill [Lords]
Debate between Lord Garnier and John BercowMonday 31st October 2016
(8 years ago)
Commons ChamberRead Full debate Cultural Property (Armed Conflicts) Act 2017 View all Cultural Property (Armed Conflicts) Act 2017 Debates Read Hansard Text Amendment Paper: HL Bill 3-R-I Marshalled list for Report (PDF, 65KB) - (2 Sep 2016)
Sir Edward Garnier
One often sees the type currently drafted into clause 17 when a defendant has to rebut a presumption—the possession of certain items in sexual offences or drugs offences. It is also to be found under certain rarely used disclosure offences, such as under section 119 of the Companies Act 2006—something that we speak about so frequently in the clubs and bars of Market Harborough. As regards the substantive criminal law and the making of a substantive criminal offence, my hon. Friend is right to say that this is a rare and wholly unusual distinction, and I quietly urge the Government to think again.
As drafted, this provision abandons the principle that it is the defendant’s state of mind that must be “criminal”, whether defined in terms of belief or even suspicion, for an objective test: whether he had reason to suspect. What may arise from an offence defined in that way can be quickly described. The defendant may be offered property which, because of the circumstances, he may have reason to suspect may be prohibited. Just because he wishes to proceed with caution, and to avoid committing a criminal offence, after sensible inquiry and investigation he may in good faith decide that his suspicions have been allayed and proceed to deal in the property. For a defendant acting in good faith to be convicted of an offence of dishonesty is a novel proposition. It may be suggested that the offence is not intending to apply to such an individual, but only to the individual who, notwithstanding any investigations he may make, turns a blind eye to reasonable grounds for suspicion, but that is not what the clause says. The offence can and should be defined in terms of the defendant’s belief or suspicion, and currently it is not.
Surely the question to ask is whether the defendant did or did not believe, or did or did not suspect. The more powerful the evidence that he had reason to suspect, the more likely it is that the jury would conclude that he did indeed believe or suspect, and that the offence is proved. In short, where the defendant did indeed have “reason to suspect”, that would provide the evidence to establish that he did indeed believe or suspect that he was dealing in prohibited property. That however goes to the evidence available to prove guilt; it should not define the offence.
It would be unusual for an offence of dishonesty to be created that did not focus on the defendant’s personal state of mind. It would also be unusual to create two offences in a single provision which make provision for separate and distinctive forms of criminal intent: knowledge, which is entirely subjective; and reason to suspect, which is not. Any summing up in an indictment which alleges the two offences as alternatives would not be straightforward. Worse still, it would be unwise, and it would make for significant complexity in any trial for two statutes with the same objective—the protection of the cultural heritage of every nation—not to define criminal intent in exactly the same way.
Section 1 of the Dealing in Cultural Objects (Offences) Act 2003 states—
Mr Speaker
Order. I do apologise to the right hon. and learned Gentleman, but when he leant down like that, I thought it was because he was approaching his peroration. That may have been a triumph of optimism over experience.
Sir Edward Garnier
Ms Bell, I think, has spoken on my behalf. I was just advising you, Mr Speaker, about section 1 of the 2003 Act, which I know you want to hear about.
Sir Edward Garnier
At least I am right about that. [Laughter.] It states:
“A person is guilty of an offence if he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted.”
This Bill says that it is
“an offence for a person to deal in unlawfully exported cultural property, knowing or having reason to suspect that it has been unlawfully exported.”
For the reasons that I have been briefly explaining, I suspect that the 2003 Act provides the better wording. The provision in this Bill is not following well-established principles relating to the prosecution of offences of dishonesty. I am concerned that the Bill, which is concerned with the same issues, fails properly to take into account that set of principles. As drafted, it may result in the prosecution and conviction for an offence of dishonesty of a defendant who has, or may have, acted in good faith.
It is one thing for a defendant to be convicted of handling stolen goods where they have been shown to have known or believed the goods were stolen—the law is clear and the defendant knows when he is convicted that the jury was sure he knew or believed the goods were stolen—but under this Bill, as currently framed, a convicted defendant cannot be sure that his conviction reflects his actual state of knowledge or belief and that he was not convicted simply for lacking curiosity. Absence of curiosity may be regrettable and sometimes stupid or negligent, but it should not lead to a conviction, with all the reputational damage that flows from it.
Beyond that, I urge the Government to consider what effect this provision will have on the art market here in London. As was said by my hon. Friend the Member for Newark, who speaks with the advantage of being not only a lawyer, but a former director of Christie’s, this will have a stifling effect. It may be that there will not be many convictions or many arrests, but the mere threat of the reputational damage caused by this possibility is enough to put the mockers on this valuable and entirely legitimate aspect of the London art market. The art market will go elsewhere and the crooks will get away with it. If we want to catch the bad boys, and if we want to inhibit this wrong and immoral market, why not stick to the 2003 wording or something similar to it, rather than allowing this Bill to contain an error of principle which could confound the interests of all of us who wish to see the destruction and the dealing in cultural objects that have been stolen brought to an end?
Outcome of the EU Referendum
Debate between Lord Garnier and John Bercow(8 years, 5 months ago)
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Mr Speaker
The right hon. and learned Member for Beaconsfield (Mr Grieve) has only just started bobbing, but I think we should hear from him.
Mr Speaker
Has the right hon. and learned Gentleman spoken for his chum as well?
Mr Speaker
A single eloquent sentence from an illustrious QC? I call Sir Edward Garnier.
Sir Edward Garnier (Harborough) (Con)
In addition to the work that the unit of the Chancellor of the Duchy of Lancaster will be doing to look outwards to the European Union and our relations with it, will he also look at the preservation of the United Kingdom?
Oral Answers to Questions
Debate between Lord Garnier and John Bercow(9 years, 5 months ago)
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Sir Edward Garnier
None of the prisoners in that prison—it was not too far from Lichfield!—was ever going to leave prison to work in a hairnet factory. Will my hon. Friend please ensure that proper wages are paid for the work we tell prisoners to do, so that they can support their families, rather than the welfare state, and can leave prison and get a job that they want to do?
Mr Speaker
I think the hairnet has been replaced, to judge by the length of the question, but we greatly enjoyed the right hon. and learned Gentleman’s question.