Cultural Property (Armed Conflicts) Bill [HL]

Lord Inglewood Excerpts

Tuesday 6th September 2016 Lords Chamber

[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.

[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.