Cultural Property (Armed Conflicts) Bill [HL]

Lord Stevenson of Balmacara Excerpts

Tuesday 6th September 2016 Lords Chamber

[The Earl of Clancarty (CB)]

My Lords, I thank the noble Lord, Lord Stevenson, for his support for this amendment. It has a straightforward intention, which is to ensure that the language used in the Bill is consistent and, crucially, consistent with the language used in the Second Protocol. I refer your Lordships to Articles 15 and 21 of the Second Protocol, which use the terms “serious violation” and “violation”.

We have already discussed this matter in Committee in detail, so I will be brief. What is required is simply that the headings to Part 2 and Clause 3 of the Bill are amended so that, in both, “serious breach” is changed to “serious violation”. I am not permitted to do that through an amendment, but I understand that the Government can make these changes if they were to look favourably on the spirit of this amendment. I beg to move.

[Lord Stevenson of Balmacara (Lab)]

My Lords, I will be very brief indeed. I simply want to endorse what has been said by the noble Earl, Lord Clancarty, and point out that this matter can be resolved at relatively short notice when the Bill is reprinted prior to its next stage. I look forward to the Government’s response on that point.

[The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord Ashton of Hyde) (Con)]

My Lords, it is a great pleasure to respond for the Government to the noble Earl’s amendment, especially as I hope to give him an answer that he will approve of. I am very conscious that I have come late to this Bill and that many noble Lords did sterling work at Second Reading and in Committee, not least my noble friends Lady Neville-Rolfe and Lord Courtown, to whom I am very grateful for getting us this far. And now, before the Deputy Chief Whip intervenes to say that I am breaking the rules for Report, I shall return to the noble Earl’s amendment.

I recognise that there are concerns in some quarters about the differences in terminology between the titles of this Bill, the convention and the Second Protocol, and the potential for confusion that this may cause. My noble friend Lady Neville-Rolfe explained in Committee that we have used the term “breach” in the titles of Part 2 and Clause 3 because that is the more widely recognised term in English law and the meaning in this context is the same. However, we have listened to the points made in debate by noble Lords, and I am pleased to inform your Lordships that the Government have agreed to change the word “breach” to “violation” in the titles of Part 2 and Clause 3 when the Bill is next reprinted, which, I believe, will be before it goes to the other place. Therefore, it will now say, “Offence of serious violation of Second Protocol”.

I hope this will fully address the concerns that the noble Earl and the noble Lord, Lord Stevenson, have raised. In the light of this commitment from the Government to change the titles, I hope the noble Earl will withdraw his amendment.

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[Baroness Bonham-Carter of Yarnbury (LD)]

My Lords, I welcome the noble Lord to his position and thank him for his previous acceptance of the noble Earl’s amendment and for this amendment. We all agree that this is a good Bill and I am grateful for these two improvements to it.

[Lord Stevenson of Balmacara]

I am looking sideways because Hansard will not be able to record this unless I explain what has happened between me and my noble kinsman, the noble and learned Lord, Lord Hope. When this point first arose in Committee, I rather stupidly intervened ahead of the noble and learned Lord and he rose magisterially, if that is not too otiose a phrase, to explain that, even though I hail from Scotland and carry a Scottish town in my title, I was hopelessly under-read about how the law operates in Scotland and I should know better than to try to amend a Bill that he was able to assure us was in good order at that time.

Or was it? I did not know very much about it—and did not intend to say that I did—but, in the tradition of these Bills, I tabled a probing amendment. We rarely have an opportunity to see probing amendments come home to roost with such extraordinary felicity—I am still nervous that the noble and learned Lord will jump up and shout at me—but I relish that this has now happened. I also welcome the fact that we are having a good afternoon with two concessions already, so I shall not say any more.

[Lord Hope of Craighead (CB)]

Perhaps I may follow those kind remarks by saying that I entirely approve of this amendment. The phrase originally used in that part of the clause was rather too terse. These additional words certainly have resonance in Scotland and it is wise to include them.

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Moved by

[Lord Stevenson of Balmacara]

5: Clause 23, page 11, line 2, at end insert—
“( ) For the avoidance of doubt, a warrant under this section may not be issued in respect of the Parliamentary Estate.”

[Lord Stevenson of Balmacara]

My Lords, this matter was discussed at some length in Committee. At the time of that sitting, we were in receipt of letters from the noble Lord, Lord Lang of Monkton, on behalf of the Constitution Committee, and from the noble Baroness, Lady Neville-Rolfe, as the Minister in response. It was made clear in Committee that this was a slightly moving target. The purpose of this amendment, therefore, is to invite the Minister to bring us up to date with where things have got to and to make it clear to us whether there are any outstanding issues that he might wish to return to at later stages.

It is worth mentioning this issue because I think it will come up again in the following amendment. It is about the powers that the Bill needs to contain so that it can empower the Government to sign the convention in relation to seizure, primarily of goods in transit where they are found to have originated in a conflict area and therefore become subject to the Act or the convention. In the discussions in Committee, the noble Baroness, Lady Neville-Rolfe, made it clear that the Government are seeking to fulfil an obligation under the First Protocol to be able to return the property that I have described to its country of origin. She pointed out:

“That obligation is absolute and does not allow for any exceptions”.

It therefore needs to be the case, she said,

“that the police have the power to search for and seize unlawfully exported cultural property wherever it may be in the United Kingdom”—[Official Report, 28/6/16; col. 1532]—

including in Parliament.

During the debate, however, it turned out that, in December 2015, the Constitution Committee had made it clear to the Leaders of both Houses that:

“When Bills contain provisions that could apply to Parliament”,

in relation to legislative drafting, including the type that we are talking about,

“the authorities in each House are meant to be consulted at an early stage”.

I think we picked up from the noble Baroness’s response at that time that the DCMS had not been as effective in communicating its wishes to the parliamentary authorities as it might have been. So we have an issue which raises and engages with the powers of our Parliament and the way in which the powers to enter and seize property operate within the Parliament, and an issue of consultation. I invite the Minister to bring us up to date and to explain where we stand on these matters.

[Lord Ashton of Hyde]

My Lords, I am grateful to the noble Lord, Lord Stevenson, for the opportunity to discuss the important concerns that he and the Constitution Committee have raised about search and seizure powers, which the committee outlined in its letter of 15 June. As the noble Lord said, my noble friend Lady Neville-Rolfe replied to that letter on 27 June. My officials are also liaising with the relevant parliamentary authorities.

The purpose of the search and seizure provision is to enable the UK to fulfil our international obligations, as the noble Lord said. This is in relation to cultural property which has been unlawfully exported from occupied territory. In particular, it enables us to fulfil our obligation under paragraph 2 of the First Protocol to return such property to its country of origin. That obligation is absolute and does not allow for any exceptions. The provision also enables the UK to fulfil our obligation under Article 21 of the Second Protocol to take the necessary measures to suppress illicit export, removal or transfer of ownership of such property.

Therefore we need to ensure that the police have power to search for and seize unlawfully exported cultural property wherever it may be in the United Kingdom. I listened carefully to the noble Lord’s arguments and I read the debate in Committee. We consider it right in principle that the search and seizure powers in Clause 23 apply equally to the Parliamentary Estate, and we consider that the drafting of the Bill allows for this. As we know, the Bill has been roundly welcomed and it is right that Parliament should be seen to be leading the way, rather than expecting special treatment or exemption from the Bill’s requirements. It is highly unlikely that unlawful dealing in cultural property, particularly this sort of cultural property, would take place within the Palace of Westminster, but if it does, the appropriate enforcement powers should be available. This building should not be a haven from the law or our international obligations.

In her letter to the Constitution Committee my noble friend Lady Neville-Rolfe noted that we consider that this provision applies to the Palace but that any search or seizure taking place within the Palace of Westminster would, of course, need to be exercised in a way that respects the privileges of Parliament. Of course, in practice, we would expect there to be a high degree of co-operation between the police and the House authorities, both with regard to the need to obtain a warrant at all and with regard to the execution of any warrant obtained.

The noble Lord also raised the mistake that my department made about notifying the House authorities. That has been done, and it has undertaken in future to do it at an earlier stage. There have been various exchanges of correspondence with the House authorities since my officials wrote to them on 22 June. The question of the privileges of the House are a matter for the House authorities. There are differences between this House and the other place. I note that there is a protocol in the other place outlining how these things should be dealt with. There is no such protocol here, but the privileges of the House and how they are dealt with are a different issue and not for this Bill.

It is important that this House is subject to the powers. I therefore hope that the noble Lord will feel that these provisions have been appropriately considered and that he can withdraw the amendment.

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[Lord Stevenson of Balmacara]

I thank the Minister for his response. I just reinforce the point, although I am sure that I made it clear, that drafting was never the issue. The wording of the Bill is, of course, appropriate and we support it. The question was really about the processes surrounding the necessary consultation with the House authorities, which the Minister explained was not done in the way that had been suggested by the committee. That point has been noted. He has now read into the record confirmation that the Government would expect that the appropriate processes in place in both parts of Parliament would be followed in the unlikely event of any case being raised in respect of the Bill. I am not sure that I entirely followed him on whether there was a bit of a gap emerging over the protocols that should apply in this part of Parliament. Although it is not a matter for us—I am sure it is way above my pay grade—I hope the Clerk of the Parliaments has noted the point. He is nodding, so I think he has. Perhaps there is something that the Government might wish to raise with him arising from the Bill about the need for a proper protocol to be prepared so that we are ready should this event occur. With that bit of business in place, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

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[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 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.