Cultural Property (Armed Conflicts) Bill [HL]

Lord Hope of Craighead Excerpts

Tuesday 6th September 2016 Lords Chamber

[Lord Stevenson of Balmacara]

I am looking sideways because Hansard will not be able to record this unless I explain what has happened between me and my noble kinsman, the noble and learned Lord, Lord Hope. When this point first arose in Committee, I rather stupidly intervened ahead of the noble and learned Lord and he rose magisterially, if that is not too otiose a phrase, to explain that, even though I hail from Scotland and carry a Scottish town in my title, I was hopelessly under-read about how the law operates in Scotland and I should know better than to try to amend a Bill that he was able to assure us was in good order at that time.

Or was it? I did not know very much about it—and did not intend to say that I did—but, in the tradition of these Bills, I tabled a probing amendment. We rarely have an opportunity to see probing amendments come home to roost with such extraordinary felicity—I am still nervous that the noble and learned Lord will jump up and shout at me—but I relish that this has now happened. I also welcome the fact that we are having a good afternoon with two concessions already, so I shall not say any more.

[Lord Hope of Craighead (CB)]

Perhaps I may follow those kind remarks by saying that I entirely approve of this amendment. The phrase originally used in that part of the clause was rather too terse. These additional words certainly have resonance in Scotland and it is wise to include them.

Amendment 2 agreed.

--- Later in debate ---

[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.

[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.