Cultural Property (Armed Conflicts) Bill [Lords]

Kevin Brennan Excerpts

3rd reading: House of Commons
Monday 20th February 2017 Commons Chamber

[Kevin Brennan (Cardiff West) (Lab)]

I beg to move amendment 4, page 2, line 6, at end insert

“, which includes a digital attack if the cultural property in question is in digital form.”

This amendment would make explicit that an offence is committed if the act committed under paragraphs (a) to (e) of paragraph 1 of Article 15 of the Second Protocol is a digital attack, where the cultural property in question is in digital form.

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 5, page 2, line 17, at end insert

“, or

(c) a foreign national serving under the military command of the UK Armed Forces.”

This amendment would ensure that an offence is committed if an act described in paragraph 1(d) or (e) of Article 15 of the Second Protocol is committed by any foreign national serving under the military command of the UK Armed Forces.

Amendment 1, in clause 17, page 8, line 12, leave out

“or having reason to suspect”.

Amendment 2, page 8, line 12, leave out “having reason to suspect” and insert “believing”.

Amendment 3, page 8, line 12, leave out “having reason to suspect” and insert “suspecting”.

[Kevin Brennan]

The amendment seeks to probe the Government’s thinking on whether digital attacks on cultural property would be considered as damaging cultural property under the Bill. I say in passing that we very much support the Bill, having first introduced it ourselves, but sadly we ran out of time in the Parliament prior to 2010. The Bill will bring into domestic law the offence created by article 15 of the second protocol to the 1954 Hague convention, so it is not before time. I am glad that there is House-wide support for the Bill, but we want to probe a few more points during the remaining stages, to make sure that the Government’s position is clear and on the record before it is sent for Royal Assent.

During previous debates, both here and in the other place, there have been many discussions about the digital reach of the Bill. Given that the original convention was written in 1954, with a subsequent protocol, that was obviously long before issues of digital property would have been actively considered. We welcome the numerous assurances provided by the Government, including by the Minister in Committee, that cultural property in digital form could be protected. If it is true that digital property is protected under the Bill, it would be natural that digital attacks on that property are also covered. The purpose of the amendment is to get the Government to confirm whether that is the case.

It would not be reasonable to recognise digital cultural property but not digital attacks on such property. Given that the Bill involves creating criminal offences, it is important that the Government put their thinking on the record. Their response to an amendment discussed in Committee highlights the need for clarity. We debated whether the cultural emblem of the blue shield, which the Bill introduces from the convention and which marks a protected item, could be shown in digital form. The Minister said:

“For modern, born-digital material, such as films and music, in practice we would expect the emblem to be displayed on the physical object on which the material is stored or on the building in which the physical storage object is kept, rather than being displayed digitally. That would help to ensure that the emblem is readily visible. That is not to say that it cannot also be depicted in digital form.”––[Official Report, Cultural Property (Armed Conflicts) [Lords] Public Bill Committee, 15 November 2016; c. 9.]

That could be interpreted as assuming that cultural property, even that which is digital, would be attacked only in a physical sense—in other words, that any attacker would be in close physical proximity to the item and able to see the blue shield on its casing. In reality, however, digital content is more likely to be attacked by way of hacking, in which case the question of how the blue shield could flag up digital cultural property to a potential attacker is relevant. Somebody hacking into a database of some sort will not see the shield on the hard drive’s casing.

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[Tom Tugendhat (Tonbridge and Malling) (Con)]

The question is slightly harder to answer than it might initially appear. On operations, foreign armed forces are embedded with and serve alongside British troops in various guises and in many different capacities. Unless the hon. Gentleman can be more specific, I can understand the MOD’s difficulty.

[Kevin Brennan]

It is certainly within the power of the Ministry of Defence to answer the question in terms of its own definitions. However, it cannot have been that hard, because the Minister for the Armed Forces subsequently changed his mind and wrote to me, telling me that he could give me some information. It is always dangerous to intervene too early during the development of an argument. On 28 November, the Minister decided that he could provide some information, albeit not as precise as one might have desired.

[Tom Tugendhat]

There you go.

[Kevin Brennan]

I will give the hon. Gentleman five out of 10 on that basis. The Minister for the Armed Forces wrote:

“As my formal PQ response made clear—a definitive response to your question could only be provided at disproportionate cost.

However, it is roughly estimated that at least 200 members of foreign armed forces are either liaison officers or on exchange officer roles annually across the three services.”

He went on to confirm that the Department “does not routinely collect” the requested information about embedded foreign armed forces.

That does at least tell us what kind of numbers we are talking about, albeit not in precise terms. However, the point of my question was to get a general idea of how many people might be impacted by this legislation and to understand whether the Government had a grip on the rough ballpark figures.

Our concern was how the Bill would impact on foreign nationals embedded in the UK armed forces who were involved in the destruction or illegal exportation of cultural property. In her response to my amendment in Committee, the Minister said that

“if a foreign soldier were to commit an act set out in article 15(1)(d) or (e) while embedded in a UK unit, we would dismiss them and send them back to their home state to be dealt with for disobeying orders. The individual would face the consequences of their actions on their return home, and there is no loophole for embedded forces; that would apply whether or not a foreign state had ratified the convention or protocols, as the individual would be disobeying an order.”––[Official Report, Cultural Property (Armed Conflicts) Public Bill Committee, 15 November 2016; c. 14.]

Now that we have a figure from the Government on the number of foreign nationals to whom the Bill will apply, albeit a rough one, I just wonder—

[Tim Loughton (East Worthing and Shoreham) (Con)]

I appreciate that these are probing amendments, because if the hon. Gentleman were to press them to the vote, I do not think he would get much support from the people behind him. However, will he explain what he thinks is the difference between the terminology in the Bill, which is

“a person subject to UK service jurisdiction”,

and that in his amendment, which is

“a foreign national serving under the military command of the UK Armed Forces”,

because he has not answered that question yet?

[Kevin Brennan]

I do not think that is a question for me to answer. It is one for the Minister to answer in her response. As for his comments about those on the Benches behind, I always prefer these odds when debating in the House of Commons.

What assessment has been made of whether this matter constitutes a risk or a loophole? In Committee, the Minister mentioned that when a foreign national is embedded,

“a bespoke status of forces agreement or memorandum of understanding is drawn up that sets out responsibility for the individual involved.”—[Official Report, Cultural Property (Armed Conflicts) Public Bill Committee, 15 November 2016; c. 14.]

Is responsibility for protecting cultural property a part of that understanding? If it is not, will it be following the passage of the Bill?

As the House knows, the UK armed forces already abide by the terms of the convention. I very much welcome that, and I want to take this opportunity to pay tribute to their work and their outstanding contribution. I hope the Minister will be able to reassure the House that although the armed forces are a complex organisation, the application of the Bill will be consistent for everybody who serves in them.

The other amendments in this group were tabled by Government Members. We had fairly extensive discussions in Committee on the impact of the Bill on the arts market so I do not propose to say anything further on that matter.

[Sir Edward Garnier (Harborough) (Con)]

I am very sympathetic to the shadow Minister, the hon. Member for Cardiff West (Kevin Brennan). He has ploughed a lonely furrow with great elegance and humour. At least he can claim to have 100% support from the representatives of the Labour party today. I am not entirely sure that I can, but I will have a go and see whether I can tempt the House towards supporting my amendments—amendments 1, 2 and 3. I am very happy to say that they were co-signed by my hon. Friends the Members for Kensington (Victoria Borwick) and for North West Norfolk (Sir Henry Bellingham). Like the shadow Minister, although we are few in number we are very high in quality.

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Clearly no one objects to the word “knowing” in the relevant subsection. If a dealer knows that cultural property was unlawfully exported from an occupied territory, they are guilty of an offence. The problem lies with the additional criterion for committing an offence when someone has “reason to expect” that an item was unlawfully exported. Despite carrying out appropriate provenance checks on an item of cultural property, a dealer or auctioneer might, just prior to exhibiting it at an auction or antiques fair, receive an unsubstantiated allegation that it was illegally removed from an occupied territory.

[Kevin Brennan]

Does the hon. Lady take any comfort from the Government’s impact assessment of the Bill, which envisages that there would be one prosecution every 30 years under the Act?

[Victoria Borwick]

Of course we all hope that is the case, but that is why we all in this House, jointly I believe, are seeking clarification: we do not want unsubstantiated allegations that something was illegally removed from an occupied territory, or a request for something that was legally exported. The allegation might be totally groundless when something is just about to be sold or exhibited, but the seller, genuinely believing that the item had not been illegally exported, would fear that the allegation could be deemed “a reason to suspect”, and that could lead to the item then being withdrawn from sale. The time-dependent opportunity to sell it would be lost and the very act of withdrawal could well then damage the artwork’s future saleability. The mere making of an unfounded allegation that an item was unlawfully exported from a potentially occupied territory after 1954 may place in the mind of a potential dealer or auctioneer a reason to suspect that it has been unlawfully exported, and although that might not later turn out to be the case, he will not go near it because it has been tainted.

I give as an example an old master picture that has changed hands on the legitimate open market in Europe in the past few years. It is sent to London for sale by auction. Due diligence is carried out and its known provenance is investigated, as is its sale history, and checks are made that the item has not been stolen. The picture is then included in an auction catalogue which is published several days before a sale. An allegation is then made that it was removed from an occupied eastern European country in the 1960s. Time is necessarily short to investigate whether that is true. Attempts to resolve the matter beyond doubt before the auction do not succeed, and even though it may well prove groundless, the allegation itself represents a reason for suspicion under the terms of the Bill as currently drafted. Not wishing to run the risk of prosecution, the auction house has no alternative but to withdraw the picture from the auction, to the disadvantage of its owner who, at best, will have to wait for another auction and, at worst, will face financial loss, as marketing it for a second time could adversely affect its value. The rarer and more valuable a picture or piece of art it is, the greater is the risk that a successful sale will be prejudiced by its withdrawal from an auction. In time, the allegation could well prove groundless, but the damage will have been done.

I recall the Secretary of State saying on the Floor of the House on 31 October that

“It is important that we are clear that the Bill will not hamper the way in which the art market operates.”—[Official Report, 31 October 2016; Vol. 616, c. 700.]

The closest existing legislation to the current Bill is the Dealing in Cultural Objects (Offences) Act 2003, to which my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) referred earlier. It is concerned with illegally removed archaeological material and objects that have been taken illegally from monuments or historical structures. However, unlike the Bill—in which the types of cultural property covered are extensive and could even include cultural property in people’s family collections—the 2003 Act does not cover works of purely artistic interest. The Act 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.”

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[Kevin Brennan]

I echo all the thanks given by the Minister. I also note our achievement in saving A-level art history along the way as well. We raised the issue on Second Reading and managed to save the Government from themselves, so this outbreak of cross-party collaboration has been worth while.

We do not oppose the Bill, as we have said all along. On the contrary, we are very proud to support the ratification of the 1954 Hague convention. The Bill has been 63 years in the making and I am pleased that the ratification of the convention will show that protecting cultural property is a UK priority. Culture is essential to society. It is not an added luxury. It preserves our past, inspires our future and enriches us as human beings.

The convention is particularly laudable in its internationalism and collectivism, and in its acknowledgement that the culture of one is important to the culture of all across the world. As has been pointed out many times during our debates, the process of ratifying the convention has been done on a cross-party basis in this House and in the other place. The process was begun by the last Labour Government. Unfortunately it was not completed by 2010, but I thank my colleagues and former colleagues for putting the issue on the national agenda as far back as 2004 and for publishing a draft Bill in 2008. In 2015, the Government announced their intention to ratify the convention, and thanks are due to the right hon. Members for Maldon (Mr Whittingdale), the former Secretary of State, and for Wantage (Mr Vaizey), who played a part at that stage.

Likewise, I thank the Minister for her contributions in this Chamber and in Committee; for her responses to the sometimes annoying amendments that we tabled in Committee; and for granting us access to her officials during the course of the Bill, which was extremely helpful. The Bill is about co-operation and mutual respect, so it was entirely appropriate that we co-operated across party lines in order to get it on the statute book. The way in which the Minister has steered the Bill through and the courteous manner in which she has conducted herself throughout the debates is a useful example that all Ministers in her Department and others should follow.

Likewise, we should thank all those individuals and organisations that submitted evidence and participated in discussions, as well as those who campaigned for the convention’s ratification in the intervening years. I also thank my colleagues in the other place, particularly Lord Stevenson of Balmacara and Lord Collins of Highbury, for their robust and informed questioning as the Bill went through its respective stages in the House of Lords.

I am also grateful for the previous work of my hon. Friend the Member for Bishop Auckland (Helen Goodman) and for the work of the Clerks, Hansard reporters and Door Keepers in making possible the passage of the Bill.

Before our debate comes to an end, I want to re-emphasise a point I made on Second Reading that, in the light of recent events, has sadly become even more relevant. The destruction of Palmyra in Syria has been mentioned many times during our debates as a tragedy and an outrage that made clear the importance of ratifying a convention that pledges to protect cultural property, even if it does not directly apply to that circumstance.

While the Bill was proceeding through its stages, the Government recently announced their plan to suspend the scheme inspired by Lord Dubs’s amendment and to stop accepting unaccompanied young refugees. All of us who strongly support the Bill would assent to the notion that Governments should be judged principally on how they treat people, rather than how they treat palaces. I hope that rather than being an inconsistency, the passage of the Bill will mark a turning point in this Government’s thinking. We should extend to Syrian people fleeing conflict and seeking refuge the same respect and protection that we are offering to their ancient architecture.

Again, we are proud to support the Cultural Property (Armed Conflicts) Bill. It is not often that the House is united in passing a Bill of such historical significance with such a degree of consensus, and I also welcome the support of SNP colleagues throughout this process. I hope that the passage of the Bill gives the UK an opportunity to demonstrate international leadership and to create a legacy of which all of us can be proud.