Baroness Berridge
Main Page: Baroness Berridge (Conservative - Life peer)Cultural Property (Armed Conflicts) Bill [HL]
Baroness Berridge Excerpts
Lord Stevenson of Balmacara
My Lords, the two amendments in this group are in the same vein as the one we have just discussed; they seek clarity, consistency and accuracy. The Bill is very specific in many areas to do with how the law is to be adapted to accommodate the convention, but curiously allows for a variation in Scotland and Northern Ireland in the criminal liabilities that occur. We have no reason to suppose that these are in any sense defective, but the Bill should be the best possible and as clear and consistent as possible, so might this be an opportunity for the Minister to respond, explaining why there is a difference or, if there is an unintended difference, how that could be remedied? I beg to move.
Baroness Berridge (Con)
My Lords, I raised this matter at Second Reading. The issue of inchoate offences is very important, particularly in this context. It sends the criminal law much further down, into preparatory acts. In these situations you often have a group of people acting—passing on information to buyers, et cetera. You often need to scoop quite a large number of people, so I would be grateful for confirmation from the Minister, because the inchoate offences in this context are an incredibly important part of stamping down all activity in relation to this illegal trade.
Baroness Neville-Rolfe
My Lords, in addressing these two amendments I hope to satisfy noble Lords, but if I do not we should speak between now and Report. I appreciate that the aim of the amendments is to ensure that the Bill allows the UK to meet all our obligations under the convention and its two protocols. Clause 4, as currently drafted, already allows the UK to meet its obligations under Article 15(2) of the Second Protocol and the legislation will comply with,
“general principles of law and international law”.
I will outline my main points now, although, given that this is a technical and complicated issue to explain briefly, I will reflect on what has been asked and send noble Lords a note setting out the Government’s position on this amendment.
The purpose and effect of Clause 4 are to ensure that the UK has extraterritorial jurisdiction to try all ancillary offences in the same circumstances in which Clause 3 establishes such jurisdiction to try the substantive offences. It does not establish the ancillary offences, which already exist under at least five different and relevant pieces of legislation. The good news is that these apply automatically to offences under Clause 3. In respect of England and Wales and Northern Ireland, the definitions of,
“An offence ancillary to an offence under section 3”,
are limited to the offences of attempting, conspiring, assisting and concealing, because it is only in relation to these offences that there might be doubt as to their extraterritorial application.
Where the existing law is clear as to extraterritorial application—which it is in relation to aiding and abetting and the offences under the Serious Crime Act 2007, which replaced the previous offence of incitement—no provision is made. However, as noble Lords will appreciate, to make such provision unnecessarily would be bad drafting practice and could create doubt as to the other situations where no such express provision is made.
The position in relation to Scottish criminal law is different and this is taken into account in the drafting of Clause 4(6). I assure noble Lords that the Scottish Government have, of course, been consulted on this provision.
I hope that brief explanation, together with the note that I am planning to send to noble Lords, will provide sufficient explanation and reassurance that we have taken the correct approach on ancillary offences, and that the noble Lord will feel able to withdraw the amendment.
Lord Howarth of Newport
My Lords, I would like to follow up the important points raised by my noble friend Lord Touhig and the noble Baroness, Lady Northover, with some questions to the Minister, if I may. Can she tell us a little more about the cultural property protection unit that is already being established in the Ministry of Defence? What is its budget, and what assurances can she give us as to the future resources that will be made available to that unit? We know that there is always fierce competition for resources within the MoD budget and that periodically that budget is subject to a squeeze. Some people might see this particular function as somewhat marginal to the main purposes of the MoD—although I would assert that, for a civilised country, the purposes with which the unit is entrusted are extremely important—and the resources of that unit could be vulnerable. It would therefore be helpful if the Minister could tell us a little more about its scale, its functioning and its resources, and reassure us that it will continue to function at full strength.
Can the Minister also tell us how the lines of communication will work? How will the services and expertise of that unit be made available to people serving in the field, and not only those under the direct command of our own Armed Forces? In addition—my noble friend Lord Touhig raised this important point in the debate on two of his amendments—how will it be able to communicate to embedded forces: the people who are,
“subject to UK service jurisdiction serving under the military command of the armed forces of another country”—
and to “private military contractors” or individuals working “within private military contractors”? I have a memory that private military contractors, and perhaps Halliburton in particular, were guilty of grievous and appalling violations of cultural property in very important archaeological sites during the Iraq war, so how in practice does the Ministry of Defence expect to exercise its influence to prevent a recurrence of such disasters? This might be an unfair question to pose to the Minister personally, but if she is not yet briefed on it she may be able to write, or perhaps her noble friend Earl Howe would be good enough to write to us on these matters.
Baroness Berridge
On that discrete point, again, the resources that were available to the Metropolitan Police unit in this area were raised at Second Reading. If my noble friend is to write in relation to this matter, can she also tell your Lordships’ House how the military unit is to be set up in a way to pass relevant intelligence to the Metropolitan Police unit? It may glean information from the field that is relevant to the Metropolitan Police, which is not a usual situation to have, so it might be useful in that same letter to have clarification of the appropriate form of communication between that specialist unit and the private contractors, as well as back into the Met and probably more widely into Europol and so on.
Lord Redesdale
My Lords, while I almost support the theory behind these amendments, we might have difficulty with a couple of issues. I should say first that the attitude taken by the British Armed Forces in protecting cultural objects has been exemplary, especially recently in the targeting of Libya and the specific direction not to destroy archaeological sites.
However, there is an issue in relation to our troops being directed by other forces. In 2003, I went over to Qatar to talk to CENTCOM about the bombing that was being carried out by American forces. People there thought it was a particularly good day when I talked to them because they had convinced the American air force that not dropping ordnance during sandstorms and instead waiting until they could see the ground would be a good idea. There is the issue of how, if you are involved in a joint operation and under the command of others, you influence that commander, or whether you would even be able to.
Of course, this becomes a particular issue when fighting the types of warfare that are being fought now, whereby most of the information used for targeting enemy forces comes through drones and indirect forces. That process has to be based on information. I follow the point that of course we need information and expertise within the MoD to understand what sites can be used, because the real issue of Daesh funding its operations through the sale of antiquities means that, given the MoD’s primary duty of denying the enemy sustenance and funding, it needs to understand the implications of the looting of certain sites and the financial implications for the forces they are fighting.
Lord Renfrew of Kaimsthorn (Con)
My Lords, this amendment has a great deal to commend it. As the noble Lord, Lord Stevenson, has indicated, its intention is not to disrupt the nature of the Bill or to introduce matters that would disrupt its passage or expand it in a way that would unilaterally broaden what it is an international convention. The amendment seems to find a middle way. It proposes an addition to the Bill that would not in any way disrupt the definitions as they apply but would meet the concern many people have that the outrages that have concerned us most in recent years—the events in Palmyra, the damage to the Winged Bull at Nineveh and the events in the museum in Mosul—are not in fact covered by the Bill, as the noble Baroness confirmed at Second Reading. It is fair to say that she did not give a very detailed analysis of the situation in response, but it is not covered by the Bill.
The nature of warfare perhaps has changed, but the point is that Daesh, or ISIL, is not recognised as a state, and that is why this is not an international phenomenon. As the situation is regarded as being an internal insurrection or civil war, it does not fall within the scope of the Bill directly. Therefore, it is a very helpful suggestion that we should acknowledge the—I will not say “defect” of the Bill, although I regard it as such—limitation of the Bill, without in any way disrupting its passage now or impinging on its application.
Everybody in the House is very keen to see this. It was originally a convention of 1954 and it is time it is passed by the House with the two recent protocols. The ingenious suggestion of a third protocol, which is not being proposed now—we are not delaying the Bill in any way but it could be an agenda for the future—is a very helpful one that should be taken very seriously.
Baroness Berridge
My Lords, as I understand the situation in relation to the matters, for instance, with Daesh, they are currently covered by other domestic legislation as a result of a Security Council resolution. Therefore, they would be offences but only within the confines of that additional legislation.
This amendment has a lot to commend it. It is the first example of us perhaps attempting to look at the wider problem of international human rights law, which was mainly drafted at a time when the main villains we were trying to deal with were states. It is a problem that goes across many treaties: when the villains are non-state or third-party actors, we find that there are very large gaps in some of the treaties. We have to start somewhere in trying to look at these situations because, more and more, there is international human rights law in treaties for which we are going to have to do something to fill the gaps. Daesh is almost certainly not the last example of a group that we might have to deal with, with Boko Haram being just one of the others.
Lord Howarth of Newport
My Lords, I would like to support what has already been said by my noble friend Lord Stevenson, the noble Lord, Lord Renfrew, and the noble Baroness, Lady Berridge.
Article 19 of the convention, drafted 60 or so years ago, simply does not contemplate today’s realities. It addresses itself to situations of civil war. Of course, there is a civil war in Syria, but, although Daesh pretends to be a state, it is not a state. Not being a state, neither Daesh nor the Taliban nor Boko Haram can be covered by the provisions of the convention. So the formulation of international law is seriously defective in enabling the international community to address itself to the most appalling instances of iconoclasm and the systematic and strategic destruction of cultural heritage. That, of course, is what so many of us and so many members of the public are most intensely concerned about.
I think that they would be startled to think, as was said at Second Reading, that here we are legislating and in some sense playing an air shot; we simply are missing the ball. Of course it is right to implement the convention as it stands—nothing should disrupt that process—but I hope that when the Minister responds to this debate she will be able to tell us what the Government as a whole, the Foreign and Commonwealth Office and the Department for Culture, Media and Sport intend to do in developing international discussions and diplomacy to move towards the possible creation of a third protocol. It could take a considerable amount of time but the very fact that there was momentum in that direction—momentum initiated by our own Government—would be an excellent thing and is really important in terms of the crisis that the world faces.
Lord Stevenson of Balmacara
My Lords, we now move away from emblematic conventions to the realpolitik of this, which is dealing with artefacts that are seized and the criminal practices that might follow. There is also the question of what happens to the artefacts themselves. Clause 14 specifies what happens if a person is convicted of an offence under Clause 9 by using a design on an article which was not authorised and was not appropriate. It moves on quickly to forfeiture, but one step away from that is the disposal or destruction of the artefact. Disposal one can probably understand, but destruction is always a slight worry. When going through the Bill we considered that we ought to raise this as an issue and ask the Minister to explain the circumstances in which she envisaged that Clause 14(3) might arise. Our suggestion is that a rider could be added that expert advice should be sought, or provision for that made in the Bill, so that full consideration of the ramifications of destruction are taken into account. We have heard already from the noble Earl, Lord Clancarty, of worries and concerns about the destruction of valuable material and we do not want to encourage that as the process which is followed. I beg to move.
Baroness Berridge
My Lords, this also brings into view an issue raised at Second Reading. Many of these articles, when they are the subject of legal proceedings or they are seized by the police prior to forfeiture, are then stored for months if not years. It is not at all clear that the Metropolitan Police has the necessary funding or facilities barring an evidence room in which to store what obviously can be items of cultural heritage. It is important that my noble friend the Minister should outline whether under cultural protection funds an agreement will be made with the British Museum that certain of these artefacts need to be stored very carefully. This is not like storing the evidence from crime scenes and we need to be assured on this point.
We may end up in situations where, at the end of lengthy court proceedings, we discover that the cultural artefacts have been stored in conditions that have caused them to deteriorate during the course of those proceedings. There seems to be ample funding in place, so perhaps the Minister could write to the British Museum to see how it could help the Metropolitan Police to ensure that items which are not forfeited or destroyed are not left in a condition that causes them to deteriorate. Funding and a simple arrangement could be made to preserve items during court proceedings, a point which as I say was raised at Second Reading.
Lord Howarth of Newport
My Lords, the noble Baroness has raised a very important point about the resourcing of what I think is called the Arts and Antiques Unit of the Metropolitan Police. It is staffed by the most excellent people but with funding that is derisory. Perhaps the Minister will be able to tell us what the present state of affairs is, but not long ago that unit was actually obliged to raise its own money because no funding was forthcoming for it from the main budget of the Metropolitan Police, yet it is performing a crucially important role in terms of our policies to protect and to prevent the looting and violation of cultural property and ensure that the law is upheld. It is acting on behalf of the nation as a whole, so to say the least it is deeply regrettable that it has not been provided with adequate resources.
The Minister spoke vigorously about the need for good co-ordination between the MoD and the Metropolitan Police and appeared to accept the argument that the resourcing has to be adequate to enable the purposes of the policy to be fulfilled. It would be helpful if she is able to say something on this matter.