Cultural Property (Armed Conflicts) Bill [Lords]

Tom Tugendhat Excerpts

2nd reading: House of Commons & Programme motion: House of Commons
Monday 31st October 2016 Commons Chamber

[Karen Bradley]

I again pay tribute to my hon. Friend’s work in campaigning on this issue. He rightly identifies the fact that sanctions regimes are in place regarding the Iraqi and Syrian conflicts, and touches on the question of Daesh’s standing in international legal circles. We must take great care that we do not deal with one wrong by creating more wrongs elsewhere, but I am happy to write to him about the specifics of the issue.

The convention was prompted by the widespread destruction and looting of cultural property in the second world war. It defines cultural property as movable or immovable property of great importance to the cultural heritage of every people, such as monuments, works of art, or buildings whose main purpose is to contain such cultural property. The definition is broad and the list of examples is not exhaustive. As well as traditional works of art, the definition could also include, as was made clear during discussions in the other place, modern or digital types of cultural property such as very rare or unique film or recorded music.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

On cultural property, I know that the Bill does not cover this issue, but does my right hon. Friend agree that we should have a discussion about religious and ethnic culture, including languages, poetry and other forms of art and heritage that have for so long been ignored but that are now being destroyed in Iraq? The Mandaeans in northern Iraq and the Yazidis in eastern Syria are struggling to keep any form of culture at all.

[Karen Bradley]

My hon. Friend makes an important point, but he will accept that it is beyond the convention and, therefore, the Bill.

The first protocol requires parties to seize cultural property that has been illegally exported from an occupied territory and to return it at the end of hostilities. The second protocol sets out violations that are to be made criminal offences and provides an enhanced protection regime for cultural property.

The UK signed the convention in 1954, but decided not to ratify because its terminology was considered to be insufficiently clear and it did not provide an effective regime for the protection of cultural property. The 1999 second protocol removed those concerns, and in 2004 the Government of the day announced their intention to ratify.

The ways in which we will implement the specific obligations of the convention and its protocols generated a great deal of interest in the other place. We have been looking carefully at implementation, particularly considering what categories of cultural property should be afforded general protection under the convention in the UK.

A previous Administration undertook a consultation on implementation of the convention and its protocols in 2005. Although the majority of the findings set out in the 2006 response to the consultation remain relevant, we will also hold discussions with key stakeholders, including from the devolved Administrations and from agencies, to ensure that those conclusions are up to date.

The Bill will introduce the domestic legislation necessary for the UK to meet the obligations contained in the convention and its two protocols. Part 2 makes it an offence to commit a serious violation of the second protocol to the convention either in the UK or abroad. The Bill also makes provision to ensure that ancillary offences committed abroad can be prosecuted and that commanders and superiors can be held responsible in appropriate circumstances.

Following debate in the other place, we made a minor and technical change to ensure that the Bill’s provisions relating to ancillary offences have the intended effect in Scotland. That amendment was tabled by the Government following consultation with the Crown Office and the Scottish Government.

We have also changed the headings of part 2 and clause 3 by replacing the word “breach” with “violation”. Concern was expressed in the other place that there was a lack of consistency between the language of the Bill and the second protocol, and we made that change to address that. I am grateful to Professor Roger O’Keefe of University College London for his work on that particular point and on the Bill as a whole. I appreciate all the advice and feedback that we have received from experts in the field, which has been invaluable in shaping the Bill.

The maximum penalty for those offences is 30 years. It is important to emphasise that that is a maximum penalty, and it will be for the courts to decide the appropriate penalty in any particular case. It is critical that the penalty reflects the seriousness of the violations of the second protocol and that it is consistent with other penalties for related offences.

Part 3 recognises in UK law the blue shield—the distinctive blue and white emblem created by the convention, which is viewed by many as the cultural equivalent of the Red Cross. The emblem will be used to identify cultural property that is protected under the convention, as well as the people tasked with protecting it. The blue shield will be protected from misuse by making its unauthorised use an offence.

Part 4 implements measures to deal with cultural property that has been unlawfully exported from occupied territory.

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[Kevin Brennan]

I thank the Secretary of State for doing so. It is characteristically generous of her, and I am sure that my hon. Friend and the House are grateful.

The Hague convention is based on the consensus that cultural property, moveable and immoveable, is central to identity. Such items embody a society’s past and encapsulate its ideas and often its ideals. Because of the consensus on the importance of cultural property, attacks on it in recent armed conflicts have drawn the attention of the international media. Daesh’s destruction of Palmyra and al-Qaeda’s demolition of mosques and mausoleums in Timbuktu have, quite rightly, sparked international outrage. For those who live in areas of armed conflict, the destruction of cultural property adds another layer of pain to the process of recovery in terms of both money and morale. Cultural property is a precious resource. When conflicts are over, monuments and their equivalents are key to kick-starting tourist-related industries, so cultural property can be crucial to economic regeneration.

[Tom Tugendhat]

Does the hon. Gentleman agree that although Daesh brutality is obvious in places such as Palmyra, a more common example might be the golden mosque in Samarra, or the ethnic cleansing and the destruction of churches in places such as Mosul? Does he agree that cultural destruction often goes in hand with forms of ethnic cleansing, whether religious or sectarian?

[Kevin Brennan]

I strongly agree with the hon. Gentleman on that point. Palmyra was visited each year prior to 2011 by 150,000 tourists, and a UNESCO mission to the site in April this year found that the triumphal arch and the temple of Bel had been smashed to smithereens. In such circumstances, preserving and sometimes restoring as much as possible of these ancient structures is crucial to rebuilding. The Bill aims to provide the ways and means to allow states to do so.

In that respect, the offences and subsequent sanctions created by the Bill for damaging cultural property are particularly welcome, as is the introduction of immunity from seizure for cultural property that is being moved to or through the United Kingdom from an area of armed conflict for safekeeping. It is important to note that the UK armed forces already abide by the terms in the Bill and respect cultural property during conflict. The impact assessment that accompanies the Bill shows that their behaviour would need to change very little as a result of the introduction of the Bill. However, ratifying the 1954 convention would send a clear signal to the international community of what we already know at home: that the preservation of cultural property is a priority for the United Kingdom.

As I have mentioned, there are consequences for morale as well as for money when monuments are destroyed and when stone is turned to sand. When it comes to art and architecture, we expect continuity and longevity—a bridge between what was and what will be. Hon. Members will be familiar with the words of John Keats, who wrote about a Grecian urn:

“When old age shall this generation waste,

Thou shalt remain, in midst of other woe

Than ours, a friend to man”.

Just as preserving culture is about projecting pride and history, so the destruction of cultural property is bound up in power and subjugation. Hon. Members might have seen an interview that was given to the BBC by Mirza Hussain last year. In 2001, when he was 26, the Taliban took over his city in Afghanistan and ordered him to destroy the Buddhas of Bamiyan. The Buddhas were up to 55 metres tall and were carved into a cliff face in the sixth century, but the Taliban believed that they were idols.

Among a group of prisoners, Mirza was fed very little, left freezing cold at night and saw his fellow prisoner shot. He was then forced to detonate trucks of dynamite below the Buddhas, and when that did not work, two or three explosions were carried out every day until the Buddhas were destroyed. He said:

“We drilled holes into the statue to plant the dynamite. We didn’t have proper tools. The whole process took 25 days.”

He went on to say:

“I regretted it at that time, I regret it now and I will always regret it. But I could not resist, I didn’t have a choice because they would have killed me.”

I am sure that that will bring to hon. Members’ minds the tragic death of Khaled al-Asaad, the archaeologist who had worked at Palmyra for 40 years and was brutally murdered by Daesh in August last year at the age of 82 for refusing to reveal the whereabouts of Palmyra’s treasures.

That leads me to one of the central concerns about the Bill. We will support it on Second Reading tonight and throughout its later stages. However, although the Bill has been brought forward in the context of the aftermath of the destruction of cultural treasures in recent conflicts, it does not, as I understand it, cover the actions I have described because they were carried out by occupying forces that are not recognised states. I hope that the Minister will correct me if I am wrong, but the Bill will not necessarily prevent extremists from intimidating people into complying. In her response to the debate, will she tell us whether that comes within the Bill’s scope or powers?

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[Kevin Brennan]

I think the hon. Gentleman is going to mention that in his speech.

In that light, the particular attention paid in part 4 of the Bill to the export of property from occupied territory is especially important. With Britain’s history in mind, the ratification of the first protocol could be said to indicate that we have at least learned something from any past transgressions and that the UK is committed to supporting other states in avoiding that sort of event.

I understand—the Minister will correct me if I am wrong—that no one has ever been charged with the destruction of the Buddhas of Bamiyan. That brings me to some of the technical concerns about the Bill. Will the Minister say how, if at all, The Hague convention would apply to the conflict in Afghanistan and other such recent conflicts? Likewise, there are concerns that a convention written in the 1950s, of which the most recent component—the second protocol—was drawn up in the relatively early years of the internet, will not sufficiently protect cultural property in digital form. We have come a long way from the days of Keats’ Grecian urn. The success of the landmark legal case against Uber on Friday is part of an ongoing effort to bring legislation up to date in relation to digital advancements, and the Government must bear that in mind. My hon. Friend the Member for Sheffield, Heeley (Louise Haigh) and I have been busy working away in Committee on the Digital Economy Bill, which is meant to update legislation to reflect the digital revolution.

Lord Stevenson raised that issue during this Bill’s Committee stage in the Lords in relation to how cultural property is defined, and he received assurances from the Minister, Baroness Neville-Rolfe, that the wording was “flexible enough” to encompass technological advancements. If the Minister is willing to do so in her summing up, will she reinforce that reassurance that digital formats will equally be protected and included in the Bill’s definition of cultural property? As the convention dates from 1954, some of the definitions may seem slightly arcane, but some of the finest cultural objects in this country are things such as the archive of the British Film Institute—I have visited it—which can only be described as an absolute treasure trove of this country’s culture. Confirmation from the Government that such cultural artefacts are covered by the Bill, in bringing the convention into UK law, would be very helpful.

I want to ask one or two questions about how joined-up the thinking is. During the Second Reading debate in the Lords, Lord Redesdale mentioned the Ministry of Defence’s plans to create a squad of monuments men—and, presumably, women as well—whose focus would be to safeguard cultural property during armed conflicts. As I understand it, they would be soldiers with archaeology qualifications and the like. Meanwhile, the Department for Education has been campaigning against so-called soft subjects, leading to exam boards ending archaeology, art history and classical civilisation A-levels. The AQA explained its decision to cut A-level archaeology as follows:

“Our number one priority is making sure every student gets the result they deserve…the complex and specialist nature of the exams creates too many risks on that front”—

I am not sure how not offering an exam in a subject will make it any less specialist than it already is. On history of art, the AQA stated that the decision had nothing to do with the importance of the subject and

“won’t stop students going on to do a degree in it”.

That logic seems flawed to me. But it does not make a pretty picture overall, let alone a masterpiece, to have the Ministry of Defence wanting more soldiers with knowledge of art history and archaeology and the Department for Education cutting those same subjects from our classrooms, while the Department for Culture, Media and Sport is ratifying conventions and proclaiming that a national priority.

[Tom Tugendhat]

The hon. Gentleman is making a very fine speech, but had he spent any time in an officers’ mess, he would realise that art history surrounds people, archaeology is what they are equipped with and history of culture is often what they are eating. I do not feel that there is a need for much more qualification than that.

[Kevin Brennan]

I have spent a lot less time in officers’ messes than the hon. Gentleman, but I have spent a lot of time in the classroom as a teacher. The loss of those subjects undermines the Government’s stated aims. I will make this next point very carefully, but it seems to me that it should not only be those who have had access to those subjects through private education, who may well form a disproportionate number of officers in the armed forces—[Interruption.] I will allow the hon. Gentleman to correct me that score, but it should not be only those people who qualify for these jobs in the monuments squad that the MOD says is necessary and wants to recruit. Will the Minister therefore indicate which policy is the outlier? I am sure that she will produce a very creative argument to explain everything to the House.

I have outlined some of the issues that need to be clarified, but we support the principles behind the Bill because they firmly chime with our own. At the core of the convention is the belief that we must co-operate to promote human wellbeing. The 1954 convention states that

“damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”.

The Labour party has championed those beliefs throughout our history—that everyone is entitled to their culture and heritage and their right to express it, that the success of one is tied to that of all society and that we must work in solidarity with each other because we are all the better for it when we do so.

Given the unfortunate and occasionally ugly tone of political discourse in recent times, the Bill is a welcome reminder of internationalist values and shared civilisation and culture. We have had an increase in attacks since the Brexit vote. In that context, the Bill recognises the importance of preserving our collective past and cultures and the fact that that is now more important than ever, whatever someone’s heritage and background.

The Bill is a signal to the international community not just of our national priorities but of the UK’s remaining willingness to co-operate on an international scale and a recognition that we can often enact change better together. It gives welcome hope that, although occasionally some Government rhetoric may shrink towards little England, Britain still has great aspirations to play a leading role in a rules-based world. The Bill may not be controversial, but it is a small beacon showing that the Government recognise that division is not the way forward, that we have more to gain through co-operation internationally and that we should extend to Syrian people fleeing conflict and seeking refuge the same respect that we give to their ancient architecture and monuments. We will not oppose the Bill; rather we hope the principles behind it will permeate through the Government’s principles.

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[Mr Whittingdale]

I sympathise with the hon. Gentleman’s point. All signatories to the convention should certainly do their utmost to prevent damage to cultural assets and assets that have been identified as culturally important. I would therefore expect our allies who are signatories to adopt that approach as much as we do.

As has already been raised, however, there is a huge gulf between what may have happened as a result of actions by forces in the Iraq war and what we have seen being carried out by Daesh in Syria in recent years, in Palmyra in particular but in other places as well. The first priority has to be the humanitarian crisis and preventing loss of life, but the destruction of cultural assets is hugely damaging. As has been said, they are part of the history and national identity of a people. They are also, potentially, part of their salvation, for when conflict comes to an end cultural assets can represent economic assets from which one can rebuild an economy by attracting people to visit.

Cultural assets are also part of the world’s heritage, and we all have a duty to do our utmost to safeguard that heritage. For that reason, I was delighted when the Government established the cultural protection fund, worth £30 million, and I pay tribute to my right hon. Friend the Member for Tatton (Mr Osborne), Chancellor of the Exchequer when the fund was established, and the Education Secretary, who was then Secretary of State for International Development, for their part in agreeing to that, as a large part of the fund can be classified as international aid. I also pay tribute to Neil MacGregor—he has already been mentioned—who was the driving force for the establishment of the fund. He and I launched it together, and, as the director of the British Museum at the time, he took responsibility for the first phase, a £3 million fund administered by the British Museum to send archaeologists into Iraq to advise and help in restoration where damage had taken place.

I was also immensely privileged to meet Dr Maamoun Abdulkarim, who is director-general of antiquities in Syria. He was the boss of Khaled al-Asaad, whom the hon. Member for Cardiff West (Kevin Brennan) mentioned. Dr Abdulkarim described the courage shown by his colleague, who did not wish to divulge where very valuable artefacts had been concealed and as a result was beheaded by Daesh.

The question of whether Daesh comes under the definition of occupying forces has already been raised. Even if it did, one has to admit that it seems unlikely that the passage of an Act will prevent it from carrying out such horrific atrocities. But it will send a very important signal. It will also have an effect on our own forces.

[Tom Tugendhat]

My right hon. Friend makes a good point. Although I appreciate his point that the Bill is unlikely to dissuade Daesh from its actions, it may affect its ability to support itself financially, because one of the ways in which it currently fills its coffers is by selling looted artefacts.

[Mr Whittingdale]

My hon. Friend makes an extremely good point. Most of the attention has been on wilful destruction, but he is absolutely right that the trade provides finance to Daesh. We must do everything we can to stamp that out, which is why I support the principle that it should be unlawful to deal in illegally exported cultural property.

I pay tribute to the efforts already made by the Ministry of Defence and commanders in the field to abide by the terms of the convention, even when it was not ratified. When the Committee took evidence from the MOD, it said it would review and strengthen the commitment it had already given that training should take account of the absolute priority of abiding by the requirements of the convention.

The Committee heard concern about one aspect of the Bill: the offence of dealing in unlawfully exported cultural property. The first concern was about the definition of occupied territories. At the time, we were told that it was a very narrow definition, or that only a narrow group of countries or territories could be considered to be occupied. In 2008, the regulatory impact assessment identified the Golan heights, East Jerusalem and the west bank. Unfortunately since that time, the list of occupied countries has grown—I draw attention to Crimea. For the purposes of certainty for those dealing in cultural objects, it would help if we clarified exactly which territories we consider to be occupied.

The more serious concern related to clause 17, which makes it an offence

“to deal in unlawfully exported cultural property, knowing or having reason to suspect that it has been unlawfully exported.”

As has been pointed out by the legal advisers, there is a huge difference between “having reason to suspect” and “to suspect”, which is causing concern. If the definition of the offence covers “reason to suspect”, it gets into mens rea, as I understand lawyers call it. I will leave it to my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) to say more on that subject with considerably greater expertise.

The issue was flagged up for the Committee when we looked at the Bill eight years ago, which is why we suggested a clearer requirement of dishonesty. That is what currently applies in the Theft Act 1968, which carries a penalty of seven years, and in the Dealing in Cultural Objects (Offences) Act 2003, which also carries a penalty of seven years. The Bill introduces a penalty of seven years, and therefore it seems reasonable to ask that the same threshold should be required. I am delighted to hear from the Secretary of State that she is aware of that concern and will have further discussions.