Cultural Property (Armed Conflicts) Bill [HL]

Lord Foster of Bath Excerpts

Tuesday 6th September 2016 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I will move Amendment 3 and speak to Amendment 4 in the place of my noble and learned friend Lord Woolf, who yesterday underwent a knee operation. I am happy to tell the House that it all went well and that no doubt he will be ready to respond to the call for “Strictly” whenever it comes.

I confess to having played no part in earlier debates on the Bill, but I am a keen supporter of the principles and objectives that underlie it. As will readily be appreciated, these amendments to Clause 6 are designed to separate out the primary or principal offences under Clause 3; that is, serious violations of the convention and the Second Protocol from ancillary offences, which are dealt with separately in Clause 4. As presently drafted, all are subject to a maximum term of 30 years’ imprisonment. We propose in these amendments that in the case of ancillary offences—let me make clear, as does paragraph 37 of the Explanatory Notes, that we are talking not just about offences ancillary to the principal offences but to offences ancillary to ancillary offences—the maximum penalty should be reduced to 14 years. This point was first raised, and the change urged, by the Joint Committee on Human Rights, on which my noble and learned friend Lord Woolf serves. The chairman of the committee, Harriet Harman, pointed out in a letter to the department that an example of an ancillary offence is someone destroying evidence to conceal an attempt by a friend to steal property that is protected under the Hague convention.

Of course, I well recognise that a 30-year maximum sentence ultimately leaves it to the court to decide on what the appropriate punishment or sentence should be for any particular offending. In one sense, one might ask where on earth is the harm in having what is, I suggest, for ancillary offences an absurdly high maximum. But on that approach, why not have 40 years or life imprisonment? The fact is that the fixed maximum gives some indication of the relative gravity with which offending is viewed by Parliament. If, as here, it becomes wildly out of touch with reality, far from strengthening the legislation, I respectfully suggest that it actually weakens it. Better by far to keep the matter in a proper perspective.

A sentence of 14 years for an ancillary offence is itself likely to be way beyond any appropriate sentence, but at least it would highlight the true comparative gravity of a principal as opposed to an ancillary offence. I should just add that the department responded to the Joint Committee’s plea to change this by saying that the policy in this legislation is to mirror the position with regard to war crimes under the International Criminal Court Act 2001. That also provides for a 30-year maximum sentence to be applied equally to ancillary offences and principal offences. It is true that the definition of a war crime includes,

“intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historical monuments … provided they are not military objectives”.

I suggest that such an offence would be equivalent to one at the very upper end of offending under our convention, the Hague convention. Realistically, the 30-year limit prescribed for war crimes is rather more apt for classic war crime offences—genocide, crimes against humanity, crimes against peace and such like. In short, war crimes provide an imperfect parallel with our legislation, particularly with regard to ancillary offences, and it is for those that we propose in these amendments to reduce the maximum to 14 years. I beg to move.

[Lord Foster of Bath (LD)]

My Lords, my noble friend Lady Hamwee is one of the signatories to these amendments. Sadly, she cannot be in her place but she, too, is a member of the JCHR, to which the noble and learned Lord, Lord Brown, already referred, as he did to the letter to the department from the chairman of that committee. As the noble and learned Lord eloquently explained, the letter from Harriet Harman makes it very clear that we are talking about two sets of offences. One is the offence of a serious breach, the other is an ancillary offence—or, indeed, even an ancillary to an ancillary offence. These amendments clearly suggest that, in the light of the differences between them, there should be two sets of maximum penalties accorded to them. That has been very clearly laid down.

My only point is to ask a further question of the Minister that follows on from the letter that Harriet Harman sent, which says:

“Moreover, with an unusual offence of this kind, we would also ask whether the Government plans to request that the Sentencing Council issue guidelines (and if not, why not?)”.

The House would be interested in the Minister’s response to that query from Harriet Harman.

[Lord Hope of Craighead]

My Lords, I suggest the Minister might be rather cautious about the length of the sentence referred to in the amendment. I am in sympathy with the idea of separating the principal offence and the ancillary offence and looking at them separately—but, drawing on my experience as a prosecutor in Scotland and referring to the phrase “art and part” in Clause 4(6)(a), very often the difference between a person who is found guilty of being art and part in the commission of a crime and the principal actor is very thin. It is quite difficult, in the absence of hard facts, to establish precisely where the line should be drawn between the two maximum sentences.

I suggest that if the Minister is inclined to follow the suggestions made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, he might be wise to consult the Crown Office in Scotland to see whether it has a view as to whether the maximum suggested sentence of 14 years is realistic, given there can be a much closer alignment between a person found art and part and the person who is the principal actor. I would not quarrel with the idea of separating the two; I simply introduce this note of caution as to whether the right figure has been selected.