Lord Howarth of Newport
Main Page: Lord Howarth of Newport (Labour - Life peer)Cultural Property (Armed Conflicts) Bill [HL]
Lord Howarth of Newport Excerpts
Lord Howarth of Newport (Lab)
My Lords, I regret that I was unable to participate at Second Reading—the aeroplane I was in did not land until mid-afternoon—but I hope I may join in the proceedings today on this very important measure. I add my welcome and thanks to the Minister for introducing this Bill in your Lordships’ House.
I fully sympathise with the desire of my noble friend to ensure that the provisions that we legislate are up to date and that the definition of culture is as contemporary as it can be and is, as far as possible, future-proof. However, does he feel that the term “movable property” may, with sufficient ingenuity and latitude taken by the courts, satisfy what he seeks to achieve? The subsequent list of examples given in the definition in Article 1 of the convention, to which he referred, is illustrative only. It does, of course, reflect conceptions of culture that were prevalent at that date. However, I am concerned and would be grateful if my noble friend would explain how he deals with the very practical legal objection that has been put forward by Professor Roger O’Keefe, who warns us that it is dangerous to mess about—not his words but mine—with the definition or its interpretation. He says:
“The definition is found in a treaty to which 127 states are currently parties. International law dictates that the definition be the same and be interpreted the same way by all states parties”.
He is concerned that, if we now attempt to alter a definition that has been acceded to by 127 other states parties, difficulties may arise. Among those, he suggests that there could be,
“knock-on effects under international law. Not the least of these would be that the UK would be asserting forms of extraterritorial jurisdiction”,
with all the sensitivities that go with that.
While I fully sympathise with the objective of my noble friend, it would help the Committee if he would explain how he would deal with that technical, but very important, objection that we have been advised of.
The Earl of Clancarty (CB)
My Lords, I too am sympathetic to the aims of Amendment 1, moved by the noble Lord, Lord Stevenson, and supported by the noble Lord, Lord Collins. This should not just be about new technology, since new art and culture are being made as we speak, using traditional media as well. We should not forget that art, and much of our culture, is made by people and, indeed, people tragically die making a contribution to the culture of their country. I am thinking in particular of the confirmation this week of the tragic deaths of the five Syrian journalists at the hands of ISIS, as well as that of the Syrian journalist Khaled al-Essa.
On the amendment—although this is not to do with military conflict—I know that I, and many others, in recent times felt a considerable sense of loss after the Momart fire in 2004. Fortunately, that was a rare event, but it included the destruction of over 50 of the best major works by the artist Patrick Heron. I mention this simply to say that culture does not have to be 2,000 years old for a great loss to be felt, and newer work in new and old formats is precious as well.
The noble Lord, Lord Stevenson, mentioned film. It might be added that old cine-film and old photographs are very old indeed in terms of the development of these technologies and art forms through the 20th and 21st centuries.
Lord Howarth of Newport
My Lords, I would like to follow up the important points raised by my noble friend Lord Touhig and the noble Baroness, Lady Northover, with some questions to the Minister, if I may. Can she tell us a little more about the cultural property protection unit that is already being established in the Ministry of Defence? What is its budget, and what assurances can she give us as to the future resources that will be made available to that unit? We know that there is always fierce competition for resources within the MoD budget and that periodically that budget is subject to a squeeze. Some people might see this particular function as somewhat marginal to the main purposes of the MoD—although I would assert that, for a civilised country, the purposes with which the unit is entrusted are extremely important—and the resources of that unit could be vulnerable. It would therefore be helpful if the Minister could tell us a little more about its scale, its functioning and its resources, and reassure us that it will continue to function at full strength.
Can the Minister also tell us how the lines of communication will work? How will the services and expertise of that unit be made available to people serving in the field, and not only those under the direct command of our own Armed Forces? In addition—my noble friend Lord Touhig raised this important point in the debate on two of his amendments—how will it be able to communicate to embedded forces: the people who are,
“subject to UK service jurisdiction serving under the military command of the armed forces of another country”—
and to “private military contractors” or individuals working “within private military contractors”? I have a memory that private military contractors, and perhaps Halliburton in particular, were guilty of grievous and appalling violations of cultural property in very important archaeological sites during the Iraq war, so how in practice does the Ministry of Defence expect to exercise its influence to prevent a recurrence of such disasters? This might be an unfair question to pose to the Minister personally, but if she is not yet briefed on it she may be able to write, or perhaps her noble friend Earl Howe would be good enough to write to us on these matters.
Baroness Berridge
On that discrete point, again, the resources that were available to the Metropolitan Police unit in this area were raised at Second Reading. If my noble friend is to write in relation to this matter, can she also tell your Lordships’ House how the military unit is to be set up in a way to pass relevant intelligence to the Metropolitan Police unit? It may glean information from the field that is relevant to the Metropolitan Police, which is not a usual situation to have, so it might be useful in that same letter to have clarification of the appropriate form of communication between that specialist unit and the private contractors, as well as back into the Met and probably more widely into Europol and so on.
Baroness Neville-Rolfe
I thank noble Lords for tabling these important amendments and the noble Lord, Lord Touhig, for his helpful explanation. It is good to welcome the noble Baroness, Lady Northover, to our consideration. As she said, she brings her experience as a DfID Minister, with whom I was happy to serve.
I will say by way of introduction that it is absolutely right that government departments, including of course the Ministry of Defence, and the Armed Forces work closely together in bringing this Bill through to implementation to make sure that they understand the obligations that ratification of the convention will place on them. I hope we were all reassured on Second Reading when I explained that both the MoD and the Armed Forces were fully supportive of the Bill—I repeat that for those of your Lordships who missed Second Reading—and that all our Armed Forces already act as if bound by the convention and both protocols, but the legislation and its implementing provisions are extremely important.
The Joint Service Manual of the Law of Armed Conflict is already updated periodically by military lawyers, who will ensure that the necessary rules, regulations, legislation and advice regarding the Hague convention and its two protocols are fully reflected in the manual once ratification has taken place. I do not believe it is necessary to place a legal requirement, as Amendment 5 seeks to do, on the Secretary of State to ensure that this happens.
Turning to Amendment 6, command appointments within our Armed Forces change regularly, so laying a list before Parliament of all ranking military commanders who are responsible for a Section 3 offence committed by forces under their effective command would quickly require updating or become obsolete. Commanders are responsible for ensuring compliance of their forces and forces under their control with a wide range of national and international legislation. Singling out the Hague convention as the only piece of domestic or international legislation where such a list is required could set an unhelpful precedent.
I turn to Amendments 7 and 8, concerning the proposed new clauses on embedded forces and private military contractors. I think that their intended effect is already covered in the Bill and I have concerns about potential unintended consequences if we were to make the amendments. First, the Armed Forces Act 2006 provides that regular members of the Armed Forces remain subject to UK service law at all times. This includes times when they are under the command of another country. Embedded personnel would therefore still be within the definition in Clause 3 (6) of,
“person subject to UK service jurisdiction”,
and the Bill would apply to them in the same way as if they remained under UK command.
The noble Lords, Lord Touhig and Lord Howarth, talked about private military contractors. Such contractors and their individual staff are also already covered by the Bill and will be criminally liable in the same way as any other legal or natural person. For example, should an employee of a private military contractor who is a UK national or subject to UK service jurisdiction commit an act abroad of a kind described in Article 15(1)(d) or (e) of the Second Protocol, they could be criminally liable under Clause 3 on the same basis as any other person—so I think they are covered.
Lord Howarth of Newport
What is the position of British service personnel embedded in the armed services of another country that has not signed the convention? If they found that the armed forces of that other country were about to do something in violation of the convention, what would be their position and obligations, and how would they receive advice from the authorities and commanders in this country?
Baroness Neville-Rolfe
If the noble Lord will bear with me for a minute, I will see whether we can clarify that. In the meantime, I point to Clause 29, which ensures that senior management of private military contractors are personally liable for offences committed by their organisations if they consented or connived in the offence. This ensures that senior managers cannot escape the consequences of the actions of their organisations if they were personally involved in them—another reassurance.
I am also concerned that the amendment might have unintended consequences for this and other legislation. By making explicit reference to embedded forces and private military contractors in the Bill, we could risk creating doubt and confusion in the interpretation of both the Bill and other legislation. That is a general point that I have made already in relation to other amendments.
Turning to Amendment 9—forgive me for having to go through this in this degree of detail, but I think it is helpful ahead of Report—this suggests a new clause on reporting to Parliament on military measures. The joint military cultural property protection working group, which has been mentioned, is already working to review the current cultural property protection training within the UK Armed Forces. Those forces already act as if bound by the Hague convention, and respect for cultural property is upheld across the UK’s Armed Forces in military law, targeting policy, training, in-battle area evaluation and assessment.
This review will ensure that we are fully compliant with all military obligations, including Article 7 under the Hague convention and its two protocols. This will be complemented once the UK becomes a high contracting party, which I think is three months after Royal Assent, with an implementation report every four years, as required by UNESCO, giving information of all the measures being taken to fulfil our obligations under the convention. Article 7 is one of a number of issues outlined by UNESCO which national authorities may wish to take into account when preparing their national reports. Having looked at this, I believe that these two reports will be sufficient to monitor our obligations under the convention and its protocols and to ensure they are fulfilled following ratification.
Lord Howarth of Newport
Is the Minister able to assist the Committee with any observations about the resources that will be available to the cultural property protection unit now and in future?
Baroness Neville-Rolfe
We have made this a priority. I was going to say that my noble friend Lady Berridge made a good point about the link to the police. We have the military—the monuments men whom we heard about last time, one of them a 100 year-old woman—and the police effort. Together they need to have adequate resource, as I explained last time. Although it is an operational decision for the Met, working with the Mayor’s Office for Policing and Crime, to determine the available resources, in the spending review the Government pledged strong support for the police.
On the monuments men and the monuments lady in particular, I will come back to noble Lords on exactly what our plans are. The good news is that they are well geared up and are starting to recruit specialists into the Army Reserve pending final approval of the Bill now that we have, at last, found parliamentary time.
The working group will continue to provide updates on its progress, but I do not feel that a statutory requirement on the Secretary of State to produce a report a year after the Act is passed would be appropriate at such an early stage of its development. I hope the noble Lord will feel able to withdraw his amendment.
The noble Lord, Lord Stevenson, talked about the penalties when he spoke about whether the clause should stand part. Concerns have been expressed about the 30-year term. To some degree, I sympathise. I felt that when I saw the provisions. I am pleased to say that officials have now outlined the detailed reasons behind the approach, and I agree with their reasoning. The introduction of the penalty is considered appropriate to comply with Article 15(2) of the second protocol, which obliges parties to adopt measures necessary to establish in their domestic law criminal offences as set out in Article 15(1) of the same protocol and to make them punishable by appropriate penalties. While at first sight it may seem surprising that an offence of this nature and ancillary offences, such as attempting or conspiring, attract the same maximum penalty as war crimes, this flows naturally from the seriousness with which these offences are considered in international law. It is worth noting, as the noble Lord acknowledged, that this is a maximum penalty. In practice, the penalty may be a much shorter sentence or even a fine and the maximum sentence is likely to be reserved for only the most heinous crimes against cultural property.
The noble Baroness, Lady Northover, asked whether we have consulted the Sentencing Council. We have not consulted it, but we will certainly look into this. I also thank the noble Lord for raising this point.
There are a number of important amendments in this group. The military is already very much behind this work, and we are gearing up for further work following the Bill’s passage—smoothly and rapidly, I hope—through the two Houses of Parliament, if that is possible these days. I will write to noble Lords with a little more detail about the working group.
Baroness Northover
Is the Minister able to give any kind of answer to the noble Lord, Lord Howarth? He asked a very pertinent question about what happens when our military might be embedded with others. I realise that at Second Reading there was mention of the situation in Yemen, which is a case in point. If there is a response that might suddenly inspire the Minister—I think that one might have arrived—it would be helpful to have it now rather than in a letter.
Lord Howarth of Newport
May I add a gloss to the intervention that I made? We really have to think about a situation in which we are working with an ally who might have signed the convention but not both protocols.
Baroness Neville-Rolfe
I thank the noble Lord for pressing the point. I hope it will help if I say that British forces will act as if bound by the Act whether they are embedded or not. If they were involved in destruction under command, we would use our discretion on prosecution.
Baroness Berridge
My Lords, as I understand the situation in relation to the matters, for instance, with Daesh, they are currently covered by other domestic legislation as a result of a Security Council resolution. Therefore, they would be offences but only within the confines of that additional legislation.
This amendment has a lot to commend it. It is the first example of us perhaps attempting to look at the wider problem of international human rights law, which was mainly drafted at a time when the main villains we were trying to deal with were states. It is a problem that goes across many treaties: when the villains are non-state or third-party actors, we find that there are very large gaps in some of the treaties. We have to start somewhere in trying to look at these situations because, more and more, there is international human rights law in treaties for which we are going to have to do something to fill the gaps. Daesh is almost certainly not the last example of a group that we might have to deal with, with Boko Haram being just one of the others.
Lord Howarth of Newport
My Lords, I would like to support what has already been said by my noble friend Lord Stevenson, the noble Lord, Lord Renfrew, and the noble Baroness, Lady Berridge.
Article 19 of the convention, drafted 60 or so years ago, simply does not contemplate today’s realities. It addresses itself to situations of civil war. Of course, there is a civil war in Syria, but, although Daesh pretends to be a state, it is not a state. Not being a state, neither Daesh nor the Taliban nor Boko Haram can be covered by the provisions of the convention. So the formulation of international law is seriously defective in enabling the international community to address itself to the most appalling instances of iconoclasm and the systematic and strategic destruction of cultural heritage. That, of course, is what so many of us and so many members of the public are most intensely concerned about.
I think that they would be startled to think, as was said at Second Reading, that here we are legislating and in some sense playing an air shot; we simply are missing the ball. Of course it is right to implement the convention as it stands—nothing should disrupt that process—but I hope that when the Minister responds to this debate she will be able to tell us what the Government as a whole, the Foreign and Commonwealth Office and the Department for Culture, Media and Sport intend to do in developing international discussions and diplomacy to move towards the possible creation of a third protocol. It could take a considerable amount of time but the very fact that there was momentum in that direction—momentum initiated by our own Government—would be an excellent thing and is really important in terms of the crisis that the world faces.
Lord Redesdale
My Lords, while I support the idea of changing international law, we have waited 60 years for this treaty to be ratified by the Government and if we had to wait for the same period of time for the convention—if it happened tomorrow—I would be about 120. So I think it is a wonderful idea to come forward, and of course the irony is not lost that we are talking about ratifying one treaty while of course most of the thoughts in this place are about another treaty.
I will ask the Minister one thing on the specific problem of the situation whereby much of the cultural heritage being targeted by non-state groups happens in areas we know are destabilised already—and of course, the formation of the cultural protection fund is a way of actually protecting some of those issues. But could the Minister say what proactive measures are put in place in the formation of the cultural protection fund to make sure that culture we know is under threat is being protected? Of course, we discussed digital archives. One wonderful way of doing it is digitally archiving all the archives around the world or helping museums to protect their archives. Of course, as in the case of the museum in Baghdad, that was a problem in itself because they wanted to loot the archive to find out what they could steal. That of course is an issue that will come forward and while we are in the position of forming the cultural protection fund, I very much hope that the Minister can give some indication that we will be taking the issue of pre-emptive knowledge very seriously, rather than trying to reconstruct what has been destroyed.
Baroness Neville-Rolfe
I thank the noble Lord for his comments. It is indeed delightful and unusual to have a cultural emblem on the face of legislation—I think I am not meant to flash legislation in the House, but I am delighted. On a lighter note, I was also delighted to see that Professor Peter Stone had a badge showing the emblem when he came to see me today. I am slightly worried that he might not be able to continue to use the badge, which shows him as a supporter, but I hope we can ensure that is not the case, because it is totemic and important. I am also grateful for the opportunity to clarify the circumstances in which digital material could be protected, although we have touched on it already.
Relatively modern types of cultural property such as film or recorded music could indeed be covered by the definition of “cultural property”. In practice, this would be in the form of physical recordings and storage, even if the film or music was digital. We would expect the emblem to be displayed on the physical object containing the recording or digital data.
The regulations to the convention provide that the emblem may be represented in any appropriate form. That gives full flexibility on how it can be displayed, which may be valuable. As has been said, this was evidenced when the blue shield was painted on the roof of the National Museum of Iraq to protect the building from air strikes. Therefore, there is nothing to preclude the emblem being displayed in digital form; for example, on a screen or by projection.
Ensuring the authorised use of the cultural emblem is especially important given that the blue shield has been said to be the cultural equivalent of the Red Cross. I certainly see it that way. This might be a good point at which to welcome the work done by Michael Meyer, the head of international law at the British Red Cross, who is, and remains, a champion of work in this field and a strong advocate of the Bill.
On introducing a statutory requirement to publish criteria on permission for use the blue shield, this would create inflexibility when flexibility and rapid reaction are most needed. Of course, techniques change.
Any such criteria should not be prescribed by the Secretary of State alone. The relevant national authorities should determine the basis on which they will grant permission for use of the cultural emblem. Our intention is that permissions may be granted to relevant organisations to allow them to use the emblem in specific ways and in specific circumstances. Authorisation may also be given for certain educational purposes.
I do not need to say why this clause is important. The noble Lord has already accepted that it is and I hope he will feel able to withdraw his amendment.
Lord Howarth of Newport
My Lords, I fully understand the Minister’s desire that the Government should not be bound by an inflexible regime legislated to prevent them making sensible decisions and using their discretion appropriately. However, there has to be a policy. It would be helpful to the Committee if the noble Baroness would give at least some indication of what she anticipates the policy will be and the criteria that will be used to identify those items of our cultural heritage and cultural property that should be designated and have the blue shield applied to them. We are talking about listed buildings, great works of art, parks, gardens, monuments, archives? How will they be selected? Will it be according to the criteria that are already applied to identify those parts of our heritage that are the most important? On a point of detail, does she know the view of Historic England as to the appropriateness of painting the blue shield on top of grade 1 listed buildings?
Baroness Neville-Rolfe
It would not be appropriate or helpful to publish criteria for the reasons I have already stated. We had some discussion at Second Reading about the process we were setting up and the areas that might be included. I shall look at this again, consult on it and perhaps have a cup of tea with the noble Lord and discuss it. It is not intended to put the criteria into the Bill. We have a process going forward and, as I explained in a previous intervention, it is important that the heritage bodies and so on should be comfortable with this, as I am sure the noble Lord agrees.
Lord Howarth of Newport
I will be very happy to pay for the cup of tea. Will the Minister also undertake to write to Members of the Committee casting light on these issues?
Baroness Berridge
My Lords, this also brings into view an issue raised at Second Reading. Many of these articles, when they are the subject of legal proceedings or they are seized by the police prior to forfeiture, are then stored for months if not years. It is not at all clear that the Metropolitan Police has the necessary funding or facilities barring an evidence room in which to store what obviously can be items of cultural heritage. It is important that my noble friend the Minister should outline whether under cultural protection funds an agreement will be made with the British Museum that certain of these artefacts need to be stored very carefully. This is not like storing the evidence from crime scenes and we need to be assured on this point.
We may end up in situations where, at the end of lengthy court proceedings, we discover that the cultural artefacts have been stored in conditions that have caused them to deteriorate during the course of those proceedings. There seems to be ample funding in place, so perhaps the Minister could write to the British Museum to see how it could help the Metropolitan Police to ensure that items which are not forfeited or destroyed are not left in a condition that causes them to deteriorate. Funding and a simple arrangement could be made to preserve items during court proceedings, a point which as I say was raised at Second Reading.
Lord Howarth of Newport
My Lords, the noble Baroness has raised a very important point about the resourcing of what I think is called the Arts and Antiques Unit of the Metropolitan Police. It is staffed by the most excellent people but with funding that is derisory. Perhaps the Minister will be able to tell us what the present state of affairs is, but not long ago that unit was actually obliged to raise its own money because no funding was forthcoming for it from the main budget of the Metropolitan Police, yet it is performing a crucially important role in terms of our policies to protect and to prevent the looting and violation of cultural property and ensure that the law is upheld. It is acting on behalf of the nation as a whole, so to say the least it is deeply regrettable that it has not been provided with adequate resources.
The Minister spoke vigorously about the need for good co-ordination between the MoD and the Metropolitan Police and appeared to accept the argument that the resourcing has to be adequate to enable the purposes of the policy to be fulfilled. It would be helpful if she is able to say something on this matter.
Baroness Neville-Rolfe
There are a number of amendments here and I will try to deal with them in turn and answer the questions that have been raised. The noble Lord, Lord Stevenson, questioned whether a court should be able to order the destruction of an article bearing the cultural emblem unless it had been given permission by an expert. It is probably worth saying that the circumstances for destruction that I think this is intended to address is where the emblem is on items such as cards or T-shirts—it is not about destroying original cultural property. I agree that the court should not, in any event, order the destruction of articles unless it is clear that it is necessary and appropriate to do so. The current drafting only permits the court to make such an order as appears to it to be necessary.
We do not feel that it would be appropriate for expert evidence to give permission to the court to order the destruction of an article as that would mean that expert opinion would be allowed to override the views of the court. Of course, it is for the court to determine what to do with an article which is subject to forfeiture on the basis of relevant factors and evidence, which would include consideration of what was involved. That could, of course, include expert evidence but it would be for the court to decide that. I do not believe that the court would order the destruction of any article unless it was sure that it was necessary, but we believe that it is right for the court to have this option if it is the most appropriate means of upholding the authority of the cultural emblem, thus ensuring compliance with the convention. That is the background to that provision.
It has been suggested that a court could vary an order for forfeiture of cultural property in connection with a dealing offence only where it is a response to new evidence—this relates to Amendment 19. The potential reasons for a court varying provision under this section are not necessarily related to new evidence, so it would be inappropriate to limit the court’s discretion in this way. For example, the court may have made provision for the forfeited property to be retained at a specific site which was subsequently deemed to be no longer suitable for storage of that property.
On Amendment 22, which deals with compensation, it is of course right that those who, through no fault of their own, find themselves in possession of unlawfully exported cultural property should be compensated if the court orders their property to be forfeited so that it can be returned to its rightful owner. Paragraph 4 of the first protocol requires compensation to be paid by the state party whose obligation it was to prevent the unlawful export of cultural property from territory occupied by it. Which state that is will depend on the facts of each case. There is no obligation under the convention for anyone else to pay compensation, although in certain cases someone else may do so; for example, to ensure that the cultural property concerned can be forfeited before the forfeiture order lapses.
Ensuring that compensation is paid may require sensitive and potentially time-consuming negotiations between the United Kingdom and the occupying state. It would not be appropriate for the court to state who is responsible for the costs of compensation while negotiations are in progress. Indeed, that could put the success of those negotiations at risk. There is also a risk that forfeiture proceedings would become unnecessarily complicated and drawn out by arguments over who is responsible for paying compensation, with those states potentially responsible becoming involved in the proceedings. The noble Lord’s amendment risks complicating both the court proceedings and efforts to ensure that the occupying state pays the compensation that is due.
On Amendment 23, the noble Lord, Lord Howarth, raised the issue of police resourcing and the noble Baroness, Lady Berridge, raised the question of storage. We would be happy to have discussions with the British Museum on this, but we do not expect the number of objects falling within the scope of the Bill to be an enormous burden for museums. However, the noble Lord has raised the point and I will consult them. I am already writing on the general issue of resourcing in relation to the Armed Forces and the police, so I will make sure that we cover the necessary ground.
On Amendment 23 and the requirement for the court to,
“make public the location and conditions of … storage”,
of cultural property, I agree that information about where an item of cultural property should be stored, and the conditions under which it is to be kept, should generally be available to the public. A court order is of course a matter of public record, and can normally be obtained by members of the public upon request, so there is no need for a separate provision allowing the court to make public any particular aspects. I should add that in some circumstances it may be necessary for a court to order that the location be kept secret if, for example, the cultural property in question is under particular threat. The general power contained in Clause 22(1) would enable a court to make such an order. We are satisfied that the current drafting of these provisions gives the appropriate courts full flexibility to make appropriate provisions and orders and to take account of the relevant circumstances. I hope that in those circumstances the noble Lord feels able to withdraw the amendment.
Baroness Neville-Rolfe
As the noble Lord knows, I am always happy to have cups of tea with him and they are usually extremely wide-ranging.
Lord Howarth of Newport
I am a little worried that we are turning into the Tea Party movement here.
Lord Stevenson of Balmacara
We live in cultural times. I beg leave to withdraw the amendment.
Lord Redesdale
My Lords, while I quite understand the good intention in questioning this provision, I have some difficulty with the idea behind the amendment because the convention was ratified in 1954 and you cannot have retrospective legislation. This refers to artefacts brought into the country after 1954 that would be affected only if their provenance cannot be proved. That is where I have real difficulty, because one issue with illicit antiquities is that we do not know their provenance, so if they have been taken from a site—or, in the case of Syria and Iraq, looted, even—the actual context of those objects has been destroyed. While the objects themselves might be considerable works of art and were probably created as such, that does not mean they have value in their own right. They might have financial value, but there is a duty of care on museum staff or those dealing in this subject to make sure that such objects are not covered by this statute. There can be very few articles which could not have a 1954 provenance. Many museums would not accept articles which did not have a provenance going back before 1954, and while I understand the concern that has been expressed, the really big problem is making sure where these objects come from in the first place. One of the reasons Daesh is selling these objects now is that nobody is questioning where they came from.
Lord Howarth of Newport
My Lords, I am very sympathetic to the objectives of the noble Earl, Lord Kinnoull. He raises an important practical consideration: how are those operating in the marketplace, or being asked to advise on or deal in particular objects, to satisfy themselves that they are in conformity with the legislation and are doing the right thing? I imagine that the answer lies partly in the promulgation of standards by professional bodies such as the Museums Association and the British Antique Dealers’ Association —and of course the Department for Culture, Media and Sport itself, which issues guidance on these matters and will no doubt wish to ensure that it is up to date. Training, methods of professional qualification and the certification of institutions and so forth all have a part to play. However, it would be helpful if the Minister gave us some idea of how the Government envisage that people who wish to act responsibly, professionally and properly can be confident they are in fact doing so.
Lord Howarth of Newport
My Lords, my noble friend Lord Collins of Highbury and the noble Earl, Lord Clancarty, the noble Baroness, Lady Bonham-Carter, and their co-signatories address a very important issue. While I fully understand the nature of my noble friend’s concern I have some reservations about his specific proposal, which has something of the character of martial law about it. It is an important feature of our legal tradition that people are innocent until proved guilty. Only where motoring offences are concerned is there a presumption of guilt and you have to demonstrate your innocence, and I am not sure that I want to see that reversal applied in the art market. None the less, there is a very serious problem within the London art, antiques and antiquities markets.
I emphasise that the London art market is a jewel in the nation’s crown. There are some magnificent businesses that do enormous credit to this country, bring it prosperity and play a leading role in its cultural distinction. However, the London market is a mixed bag and unfortunately there are some dodgy characters and spivs—and spivs in blue suits are spivs no less. It is therefore absolutely right that we should seek through this legislation to address ourselves to this kind of criminality.
We see here the interaction of two very disturbing problems. One is the funding of terrorism. As we know, ISIL is systematically engaged through what it calls its “Ministry of Antiquities” in looting the cultural heritage of the areas it occupies and selling important items of cultural heritage on the global market, and in particular the London market, to finance its continuing terrorism. It also takes a levy from others who for whatever reasons find opportunities to sell items of cultural heritage. So that is happening and it is a major concern.
There is also the whole problem of money laundering across global markets. One of the most convenient ways for people to launder money is to purchase works of art or precious antiquities and in that way bring their money into what appears to be the legitimate market. When we have that interaction of two major criminal processes, vigorous and well-thought-through action is clearly needed.
I have a great deal of sympathy for what is proposed in Amendment 18, and in particular, as the noble Earl just suggested, its emphasis on clarity of ownership so that people engaged in these markets can know who they are transacting with and the provenance of the items that they are buying. The opacity of the market is obviously very convenient for criminality and makes it difficult for people who collect or wish to deal for perfectly honourable and proper purposes to be confident that they are acting properly. Sunlight, as is often observed, is a very good disinfectant, and the thrust of Amendment 18 is right.
It would be helpful if the Minister could say how this legislation will interact with the criminal finances Bill, which we have not yet seen but which the Government have promised—presumably it will be introduced quite soon—and which will deal with the problems of corruption that were addressed by the Prime Minister and the Government as a whole in the summit they held earlier this year. Certainly, if we had information about the identity of buyers or potential buyers and sellers, that should be a contribution towards enabling the better identification and prosecution of money launderers. I would add that the legislation should require that ultimate beneficial ownership is identified, and not just the person who happens to be acting for the time being, who may well be acting on behalf of others and may be at the top of many layers of transactions and intermediary financial devices.
So that is important. But all this should be seen in the context of the need for a fully co-ordinated, energetic, purposeful drive by the Government to prosecute offences in this area, with all the departments of Whitehall working together and the police, the National Crime Agency and Her Majesty’s Revenue & Customs all engaged in a fully developed strategy, working of course with the relevant business and professional associations, those in the art market and with other Governments internationally—a point I made in the debate we had on 14 January. It would be helpful if the Minister would give us an update on how the Government are seeking to address these problems coherently.
Lord Inglewood
My Lords, in her response to my intervention on the previous amendment the Minister responded to some things I wanted to touch on and raise under this amendment—so it was nice to hear from her in advance of my comments.
First, speaking as president of the British Art Market Federation, I emphasise that the federation warmly welcomes the Bill—and does so for two completely different reasons. The first is that it is inherently a good and a right thing to do. Secondly, the British art market, which is based particularly in London but not exclusively so, needs to have the reputation as a clean market. If it is not a clean market, it will not be able to benefit those who deal in it as well as it would if it were. This is as true of a stock exchange or the City of London as it is of the British art market.
The Minister told the Committee at the end of her remarks on the previous amendment what she expected of the British art market. I listened carefully and I think that I understood everything accurately. I can say that not only is that what we expect of the British art market but that she missed two things out. The first is that we expect those who break the law to be prosecuted and then convicted. Secondly—this was an important point made by the noble Lord, Lord Collins—we are not ultimately interested in prosecuting people for crimes; we want to see a world where these crimes do not take place in the first instance. If you have a market which succeeds in prosecuting criminals who operate in and around it, you will go a long way towards achieving just that.
I will touch on some comments I made at the conclusion of my contribution to the discussion on the previous clause. It seems that we need to get two important things right in the context of the criminal law here. The first is that the mens rea needs to be right—I think that my noble friend knows this. We feel that the mens rea as drafted in the Bill is a bit woolly. If you have a slightly woolly definition of what the necessary mens rea is, clever lawyers will be able to get slippery individuals off, and that is not a good thing. We believe, bearing in mind the way in which the criminal law is construed in this country, that a mens rea of knowing or suspecting will assist in bringing criminals to book. Secondly, the particularity of what is required of people should be clear, straightforward and doable. As I said earlier, this is not an exercise in writing a paper which may get you a First in your finals at university but an exercise in bringing bad lads to book.
Against that background, we have heard quite a lot of remarks about the extent of criminality in the London art market, particularly in the context of the tragic events in the Middle East. As I understand it—and I do not have a lot of first-hand knowledge—undoubtedly during the Iraq war there was a significant amount of trade in illegal objects which derived from Iraq at that time. Since then, in the context of the Syrian conflict, my understanding is that the London art market has hardly been involved. This is partly to do with the cultural property offences Act, which we have already had reference to, and partly to do with the fact that those who are engaged in this activity, which is undoubtedly happening, are no longer using the London art market as the place from which to disseminate their ill-gotten goods. In corroboration of this, I understand that the Metropolitan Police has put it on the record that London is now a much cleaner market than it was before.
One reason for that is the expansion of proper due diligence. If you use due diligence, you do not necessarily need to have in front of you an enormous schedule of provenance. After all, these days a good provenance enhances the value of a work of art, and most people sell works of art in order to make as much money as possible. But, in the context of the kind of object that might have been looted, not having appropriate provenance gives rise to suspicion and, if there is suspicion, you will potentially be liable to prosecution. If you look at it like that, do not prescribe the rules too tightly and allow the application of principle in dealing with these matters, you will almost certainly be more successful.
Earlier, we heard a number of suggestions regarding illegal trade going on in London. I would just say: do not raise them on the Floor of the House of Lords; go to the police and get the criminals banged up. That is what is required. There have been so few prosecutions and it has been suggested to me that the reason is that there has not been the evidence to justify bringing them. I am not saying that everything is perfect—but that again goes back to the fact that, in the case of the current conflict, this is not the principal place where people wish to launder these sorts of items.
The noble Lord, Lord Howarth, is absolutely right: we must not overlook the fact that the art market, like all markets in this country, is subject to comprehensive and extensive money-laundering regulation. That, as much as anything else, ought to answer certain criticisms that have been made. The noble Lord is probably right that changing the burden of proof in the way described would be a pretty fundamental change to the way that things are done in this country. It would probably drive the bad lads underground, because you can always sell things privately. We do not know what goes on when things are sold privately but I suspect that it is a much easier way to fence stuff. So I urge the Government to look very carefully at what is proposed because I doubt that it will have the result that its proponents suggest. It could have a damaging effect on the honest market, and if you do not have an honest market there is always the temptation for a parallel dishonest market to develop.
Lord Howarth of Newport
My Lords, my noble friend Lord Rosser has made some very important points about the Border Force and the transport industry. The Border Force is under immense pressure and public expectations of what the Border Force, with its funding at a very precarious level, should be able to do to prevent illegal immigration into our country are very high. It is not reasonable to expect that the Border Force should form part of that coherent multi-agency and multi-departmental drive to deal with the problems of the importation of illicitly derived works of art that I mentioned earlier. We need the Border Force to be in the team along with the National Crime Agency, HMRC, the police and others. Among the industries and operators who need to be properly invigilated and need to be very well aware that there is a serious chance that they would be caught out if they were doing illegal things, and that serious consequences would ensue, must be those who knowingly carry arts and antiquities that ought not to be imported, derived from conflict zones or other illegal sources.
My noble friend has made an excellent point. Perhaps the Border Force needs a dedicated unit, as the Metropolitan Police has its own such unit. The difficulty is that, if the dedicated unit consists of only three members of staff, it will not be tremendously effective. Moreover, if there is a dedicated unit, there is a risk that other members of the Border Force might say, “Well, it’s the job of the dedicated unit”, so this has to be a matter for the whole culture and training of the Border Force and it must be correspondingly resourced.
My noble friend’s Amendment 24 deals with the rank of the police officer who might enter premises. It would appear that we do not have many such police officers available for the purpose. I wonder what my noble friend’s response would be to a real-life story touched on by the noble Lord, Lord Redesdale, in debate on an earlier amendment. What about the case of an archaeologist employed by the British Museum who is deeply knowledgeable about the issues of looting and damage to the archaeological heritage, cares very much about them and volunteers to become a special constable? He knows more than most people in the world about these issues. However, he has the most junior rank in the police as a special constable. It is important that we do not amend the legislation to preclude this individual from carrying out the work that he has volunteered to do as an archaeological expert and as a very good citizen.
The Earl of Kinnoull
My Lords, I, too, support the thinking behind Amendments 20, 26 and 27, particularly in respect of helping the police and Border Force discharge their duties. Having long experience as an insurer, I know that stolen items often spend time with the police or—certainly in one case that I can think of—Border Force, and for understandable reasons. With no intention on the part of the police but simply because they have no expertise in the handling of materials, problems arise. One example comes to mind immediately, where it was a case not so much of a policeman putting his foot in it as of his putting a foot through it—through a major canvas. Therefore, as the noble Lords, Lord Rosser and Lord Howarth, said, some guidelines would be very helpful to the policemen on the front line. The fine art and antiques squad at Scotland Yard is greatly reduced these days; it used to have inspector-level command but is now down to a sergeant. The number of people there is very few, so they cannot ring internally for help, where written help would be enormously useful in these matters.
Cultural objects of the type that we are discussing are usually exceptionally fragile and therefore much more susceptible to mishandling, either through the action of damp and water or simply through being roughly handled. I look forward to hearing what the Minister has to say.
Baroness Northover
My Lords, noble Lords from these Benches mentioned at Second Reading that we welcomed the introduction of the cultural protection fund. In a letter to my noble friend Lady Bonham-Carter, who is very sorry that she cannot be here at present—hence she has asked me to say this—the Minister mentioned that the Government were working with the British Council to establish a long-term strategy for the fund. We obviously welcome that.
This amendment seeks to ensure that the strategy, and the impact of the fund, is kept under annual scrutiny, as the noble Lord, Lord Collins, just said, and that it is used effectively. We argue that the strategy should have training at its core and that co-ordination is essential. There needs to be a central team based in London with credibility among the heritage community, the military, police, Customs and NGO sectors. Challenging cases will clearly include liaising with military units on standby which do not know precisely where they are going. The strategy will also need to look to the future to try to identify countries at particular risk and prepare for what might happen, especially given how cultural artefacts can be targeted, as we now see in the Middle East. It will also need to strike a balance between emergency response and long-term support. In addition, the funds should be used to leverage funds from other countries as well.
As I mentioned, the Minister wrote an incredibly helpful letter to my noble friend Lady Bonham-Carter. She would very much appreciate it if some of the comments in that letter could be put on the record. I hope very much that the Minister will do that.
Lord Howarth of Newport
My Lords, I support my noble friend’s proposal that there should be a requirement for the Secretary of State to make periodic reports to Parliament on the work of the cultural protection fund in supporting the implementation of the Hague convention. I emphasise how much I applaud the Government for creating the cultural protection fund. It is an excellent initiative and greatly to their credit, particularly in this time of austerity. I particularly congratulate the Secretary of State, the right honourable John Whittingdale.
These are difficult times. All the same, we must recognise that a fund amounting to £30 million over four years is not a large amount of money. At Second Reading, the Minister explained that grants from the cultural protection fund would,
“support projects involved in cultural heritage protection; training and capacity building; and advocacy and education, primarily focused in the Middle East and north Africa”.—[Official Report, 6/6/16; col. 584.]
That is a lot of objectives to be funded out of a fairly limited sum of money. Therefore, while praising the Government, I ask them to do everything they can to ensure that the value of the fund is maintained, because these are difficult times in terms of public spending.
How is the British Council developing its expertise in these matters as I understand that this has not been an area of particular responsibility for it in the past and it will need to build up its strength? That leads me to ask what the role of the blue shield will be and whether the Government expect there to be a blue shield unit based in London. As we have noted in the past, this is a remarkable opportunity for Britain to lead internationally in this matter. It is very important in terms of heritage, upholding the Hague convention and our soft power objectives and diplomacy. I would be grateful if the Minister would respond to those questions.
Baroness Neville-Rolfe
Noble Lords have rightly emphasised today that we need to be transparent and open about the cultural protection fund. It is absolutely right that this House has the opportunity to understand how the fund is supporting the work of cultural heritage protection at risk of, or already damaged by, conflict.
We established the £30 million fund in response to acts of cultural destruction and damage. I am pleased to say that the fund is now live and open for applications. It is always difficult, even in normal times, to make budgetary promises but I can say that we are very committed to this area, and the noble Baroness, Lady Northover, made some important points. We also monitor and report on the fund throughout its operation to ensure that it is successfully meeting the object of protecting cultural heritage affected by damage and destruction. In line with these general objectives, the Government will publish an annual report. Alongside this, the spend will be scrutinised and published by the OECD—all the more important an institution now given the way that things are going—on a biennial basis.
If the fund has any direct relevance to today’s legislation, we will make sure that that is included in the report. For example, there is an obligation in the second protocol to take measures in peacetime to safeguard cultural property. This may include activity such as the preparation of inventories which could potentially be awarded funding.
The noble Baroness, Lady Northover, asked about the central team in London and made wider points. I will pass her points on to the British Council. She was kind enough to refer to the letter that I wrote to the noble Baroness, Lady Bonham-Carter. This covered some important points on Yemen, the cultural protection fund and its future, work with the British Council and the division of work on emergency response and long-term support. Given the lateness of the hour, I think the easiest thing I can do is to circulate copies to noble Lords so that they can see it, and make sure that a copy is in the Library of the House. I am grateful to the noble Baroness for cross-referencing that and delighted that it was found to be useful.
The noble Lord, Lord Howarth, asked about the British Council and its specialist assessors. I am sure he will be glad to know that it is currently collating a wide pool of specialist assessors who will be drawn upon to advise on specific projects. As well as this, sector experts will be drawn upon at intervals to sense check and advise on the general direction of the fund.
I see this cultural protection fund as a great opportunity. I think that it complements the Bill that we are putting forward. I hope that in the circumstances the noble Lord will feel able to withdraw this amendment.