Cultural Property (Armed Conflicts) Bill [HL]

Lord Hope of Craighead Excerpts

Tuesday 28th June 2016 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, we are back in Scotland. In several parts of the Bill we find very detailed requirements placed on the authorities in England and Wales and sometimes in Northern Ireland, but Scotland appears to have eluded us. I wondered therefore if it would be helpful to put down an amendment that asked for a bit more clarity about why this is the case. I fully expect there to be a perfectly reasonable explanation, but it would be good to have it on the record.

There is a wider question regarding Clause 7, which is why in this group we also have Clause 7 stand part: why is it considered necessary in the Bill to require the Attorney-General, whether this applies just to England and Wales and Northern Ireland or also includes Scotland, to give consent to proceedings? Either these offences are grievous enough to attract substantial tariffs of up to 30 years or they are not and need leave to proceed, which is a slightly uncomfortable situation. In either case, it would be appropriate if the Minister responded. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I will speak briefly to Amendment 10 which, with great respect, is based on a misunderstanding of the prosecution system in Scotland. Unlike the system in England and Northern Ireland, all prosecutions in Scotland are brought under the authority of the Lord Advocate—every prosecution in every court is under his authority—so it has never been practice in statutes for an amendment of this kind to be inserted, as the word “only” would contradict the idea that every prosecution is brought under that system. Therefore, no statutory authority is needed. I entirely sympathise with the view that it would be interesting to see more mention of Scotland and that the Scottish position has been considered, but the best way of considering the Scottish position is in fact for the amendment not to be pressed, on the understanding that it is not needed in that country.

[Lord Skelmersdale (Con)]

My Lords, before the noble and learned Lord spoke I was about to say that I find this a very odd clause indeed. It could be read that proceedings for an offence can be brought in England and Wales, and in Northern Ireland, but not in Scotland. I am no lawyer, but is the noble and learned Lord entirely correct that we do not need some reference to Scotland within the Bill for proceedings to take place?

[Lord Hope of Craighead]

It is standard practice not to mention this Scottish system of prosecution. It is necessary in England and Wales to distinguish between cases that require the authority of the Attorney-General and those that do not, but it is not necessary to say that for Scotland. That Scotland is not mentioned does not mean that proceedings cannot be brought there; it is simply that they are brought under this well-established procedure, which requires no further statutory authority.

[The Earl of Courtown (Con)]

My Lords, I thank all noble Lords who have taken part in this short debate, particularly the noble and learned Lord, Lord Hope. Clause 7 ensures that prosecutions for the offence of serious breach of the Second Protocol or for related ancillary offences may only be brought in England and Wales by or with the consent of the Attorney-General. Clause 7(b) provides that in Northern Ireland the consent of the Director of Public Prosecutions for Northern Ireland is required. We of course need to take into account the legal differences in all the constituent parts of the United Kingdom affected by this legislation. Hopefully, my response will reassure noble Lords that the Government’s approach is considered and appropriate.

The position of Lord Advocate as master of the instance in relation to all prosecutions in Scotland means that no specific provision is necessary in the Bill, as the noble and learned Lord said. The difference from the other United Kingdom jurisdictions is due to the specific role of the Lord Advocate and the different position regarding private prosecutions in Scotland. This is standard drafting practice and is consistent with other legislation. In particular, the absence of a specific consent provision for Scotland in Clause 7 is consistent with the International Criminal Court (Scotland) Act 2001, which makes no such provision regarding prosecutions for war crimes in Scotland.

The noble Lord, Lord Stevenson, also spoke to Clause 7 stand part. As a whole this clause is necessary to ensure that the Bill is consistent with existing related UK legislation. As I mentioned earlier, it mirrors Section 53(3) of the International Criminal Court Act in relation to England and Wales. In relation to Northern Ireland, it mirrors Section 60(3) of that Act when read together with section 41(2) of the Justice (Northern Ireland) Act 2002. Given the similarity between some of the acts that are considered to be war crimes under the International Criminal Court Act 2001 and the offence that will be created by Clause 3 of this legislation, it seems appropriate for the same requirement to apply. The Government believe that it would be sensible to strive for consistency between these rules and avoid creating a patchwork of different approaches to such similar offences.

A consent requirement is considered appropriate in relation to a Clause 3 offence to prevent prosecutions being brought in inappropriate circumstances—in particular because cases may involve sensitive issues concerning military and international relations and because there may also otherwise be a risk of vexatious private prosecutions. For those reasons, I hope noble Lords will agree that Clause 7 should stand part of the Bill.