Cultural Property (Armed Conflicts) Bill [HL]

Lord Ashton of Hyde Excerpts

Tuesday 6th September 2016 Lords Chamber

[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.

[The Earl of Clancarty]

My Lords, I thank the Minister for agreeing to make the changes to the headings. This is a small amendment but one that strengthens the Bill. On the understanding that the headings of Part 2 and Clause 3 will be amended as has been promised, I beg leave to withdraw Amendment 1.

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Moved by

[Lord Ashton of Hyde]

2: Clause 4, page 3, line 15, at beginning insert “aiding, abetting, counselling, procuring or”

[Lord Ashton of Hyde]

My Lords, I take this opportunity to introduce an amendment to Clause 4 which has arisen as a direct result of the scrutiny and debate on the Floor of this House and to put on record the substance of the letter that I sent to noble Lords last week to explain the amendment.

As was discussed in detail in Committee, Clause 4 deals with the extraterritorial application of ancillary offences. For example, it means that if an individual abroad attempts or conspires to commit an act, that act would be an offence under this legislation.

Noble Lords may recall that in Committee, the noble Lords, Lord Touhig and Lord Stevenson, tabled an amendment to subsections (4) and (5) of Clause 4, which makes provisions for England, Wales and Northern Ireland. The essence of the amendment is to try to understand why these provisions were drafted differently from those relating to Scotland. My predecessor, my noble friend Lady Neville-Rolfe, explained that this was due to a difference in Scottish criminal law. While subsection (6) was not the subject of the noble Lords’ amendment, the debate prompted the Government to reflect on the drafting of this clause and to conclude that the original drafting would benefit from some clarification to ensure that the Bill’s provisions relating to the ancillary offences had the intended effect in Scotland. The Scottish Government and the Crown Office in Scotland have been consulted regarding this amendment and have agreed the appropriate drafting.

I hope noble Lords will accept the amendment. I am grateful that the close consideration this House has given the Bill has resulted in this improvement in its drafting. I beg to move.

[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.

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[Lord Inglewood (Con)]

My Lords, having heard the remarks of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, it seems to me that the point he makes is very pertinent. In particular, a concern I sometimes have is that parliamentary draftsmen, when bringing forward proposals, identify equivalence between different statutes which, perhaps under further closer examination, are not as equivalent as they would like you to believe. Therefore, there is an underlying and important point in that respect.

Also, now I am on my feet, I will say that in Committee I suggested some proposals on mens rea and Clause 17. I put on record that I am having a constructive and cordial dialogue with my noble friend the Minister on that, which is why there is nothing on the Marshalled List about it today.

[Lord Ashton of Hyde]

My Lords, I thank the noble and learned Lord, Lord Brown, for taking on this brief. I also take this opportunity to wish the noble and learned Lord, Lord Woolf, a speedy recovery from his operation.

The amendments give us the opportunity to discuss the important concerns of the Joint Committee on Human Rights in relation to the maximum penalty for ancillary offences under Part 2 of the Bill. Noble Lords referred to the fact the JCHR raised this matter in its letter of 29 June, to which my predecessor replied on 8 July.

I understand the concern that the penalty for ancillary offences should not be disproportionate in any particular case. The Government have carefully considered the amendment but we have concluded that we should retain a maximum penalty of 30 years for ancillary offences. This is primarily for reasons of consistency with existing UK legislation: namely, the International Criminal Court Act 2001 and its Scottish equivalent. That legislation provides, as has been said, for a maximum penalty of 30 years for the offence of committing a war crime, and provides expressly that the same maximum penalty applies in relation to ancillary offences. I think that that answers the noble and learned Lord’s question about why it should not be 40 years or life. It is the same as the existing legislation.

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[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 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.

[Lord Brown of Eaton-under-Heywood]

My Lords, I am most grateful to the Minister for that full explanation of how the department sees this matter. I am reassured that it, too, would like to achieve the position where if, ultimately, in the improbable event that there is a conflict in international obligations that this country owes in respect of this property, it will be for the courts to resolve. I respectfully disagree that our amendment would make the obligations under the Hague convention subordinate. I respectfully suggest that they would have left the position substantially as the Minister says that we are now left with them: for the courts to determine any such conflict. However, I find his explanation as a whole altogether more satisfactory and reassuring, if I may say so, than that on the previous amendment and I therefore respectfully ask leave to withdraw the amendment.