Cultural Property (Armed Conflicts) Bill [HL]

Lord Touhig Excerpts

Tuesday 28th June 2016 Lords Chamber

Moved by

[Lord Touhig]

5: Clause 5, page 4, line 27, at end insert—
“( ) The Secretary of State shall ensure that the military guidance in this section is reflected in the Joint Service Manual of the Law of Armed Conflict.”

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[Lord Touhig (Lab)]

My Lords, Amendments 5, 6, 7, 8 and 9 in my name and that of my noble friend Lord Stevenson of Balmacara are probing. We seek a better understanding of how the legislation will operate. We hope that the Minister will enlighten us when she replies. Also listed in this group is the proposal that Clause 6 stand part of the Bill, which we oppose. My noble friend Lord Stevenson of Balmacara will speak to that.

Amendment 5 would place a duty on the Secretary of State for Defence to ensure that military guidance is updated to reflect the responsibilities that Clause 5 places on commanding officers and their superiors. We argue that this is best done by inclusion in the Joint Service Manual of the Law of Armed Conflict. That way there would be no ambiguity about the duties and responsibilities of commanding officers. More than that, it would also help to ensure that other ranks are aware of what is required of their commanders.

In 2004, the Chiefs of Defence Staff and the Permanent Secretary in the Ministry of Defence, in publishing the Joint Service Manual of the Law of Armed Conflict, said:

“Law, both domestic and international, plays an increasingly important part in Defence activities”.

They said it must be clear therefore that:

“When undertaking operations, Commanders must take into account a broad and increasingly complex body of operational law”.

They went on to say:

“The Law of Armed Conflict is a part of that wider body of applicable law, but it merits a manual in its own right because of its great importance to all those involved in the use of force and in wider military activities”.

For that reason, we believe that the objective set out in Amendment 5 is correct.

Amendment 6 places a further duty on the Secretary of State for Defence each year to lay before Parliament,

“a list of all ranking military commanders who are responsible for a section 3 offence committed by forces under the commander’s effective command”.

This is at the very heart of the transparency we should expect if we are truly serious about protecting cultural property from theft or destruction. As I said, these two amendments are probing by nature, so the Minister will have the opportunity to explain in more detail how the Government see this part of the Bill working in practice.

Amendment 7 deals with the somewhat vexed question of the jurisdiction over our embedded forces. The Secretary of State for Defence has already said in a Statement that the Government will not be advising Parliament when our forces, embedded in the forces and under the command of a foreign power, enter into conflict. We on this side have raised this matter quite a few times in recent months, fearing that the use of this doctrine, which the Defence Secretary promulgated in April this year, is becoming the rule rather than the exception. Of course, we recognise—and I have stated in the past—that there will be occasions when, for reasons of national security and the safe operating of our forces, it would not be desirable to make a Statement in Parliament or seek parliamentary consent beforehand.

However, we on these Benches are not alone in worrying about the more extensive use of embedded forces. The House will consider the Armed Forces Deployment (Royal Prerogative) Bill on 8 July. Such is the concern felt by others that the noble Baroness, Lady Falkner of Margravine, on the Liberal Democrat Benches has been motivated to introduce that Bill, which will regulate how the Government can commit embedded forces and will require Parliament to be informed. Because of our concern, we have been motivated to table Amendment 7, which will make it clear that,

“a person subject to UK service jurisdiction serving under the military command of the armed forces of another country”,

will be as liable for their actions under this Bill as those listed in Clause 3(4)(a) and (b).

Our Amendment 8 would ensure that this legislation applies equally to,

“private military contractors and individuals within private military contractors”,

as it does to British service personnel. All too often in recent years we have seen a real growth in the number of private military contractors operating in post-conflict situations such as Iraq, and it is right, in our view, that they be subject to this legislation.

Finally, Amendment 9 places a duty on the Secretary of State for Defence to publish a report annually on how the Government have,

“introduced into military regulations the requirements of Article 7 of the Convention”,

as well as detailing what steps they have taken to ensure that the Armed Forces have adopted the spirit of the convention to protect cultural property. Article 7 of the convention details the “military measures” that states taking part in a conflict should adopt. In addition, it details how the participating states must commit to establishing in peacetime,

“services or specialist personnel whose purpose will be to secure respect for cultural property and to co-operate with the civilian authorities responsible for safeguarding it”.

Adopting this amendment would bring absolute clarity to the military measure requirements in the convention. This would ensure the clearest understanding of the duties placed on the military for protecting cultural property. I beg to move.

[Baroness Northover (LD)]

My Lords, I, too, am sorry that I could not be here for Second Reading. I was in Angola, itself a country devastated in the recent past by conflict. However, as a former historian—in a much earlier life—at University College London, and more recently as a DfID Minister, I am delighted to see the Bill coming forward.

As we have heard, Amendment 7 applies the provisions of the Act to,

“a person subject to UK service jurisdiction serving under the military command of the armed forces of another country”,

and Amendment 8 applies the Act to private military contractors. These amendments appear to show a gap in the provisions of the Bill, as the noble Lord, Lord Touhig, laid out, so I look forward to the Minister’s response to the points that have just been made.

Clause 6 sets out that those “guilty of an offence” or ancillary offence under the Bill are,

“liable on conviction on indictment to imprisonment for a term not exceeding 30 years”.

This is the maximum term of imprisonment. We are pleased that there is not a minimum mandatory term set out in the Bill, as we prefer the specification of maximum rather than minimum terms. Nevertheless, what range of sentences does the Minister anticipate would be employed under the Bill? What discussions have the Government had with the Sentencing Council and when do they anticipate that the council will begin consulting on the range of offences in the Bill?

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[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.

[Lord Touhig]

My Lords, I thank all noble Lords who took part in this very short debate. The noble Baroness, Lady Northover, and I certainly believe that there are gaps in the Bill, and we will study the Minister’s response very carefully to see if she has managed to plug them or if we will be pressing a little further. The interventions from my noble friend Lord Howarth of Newport were very important, particularly when he talked about the cultural property protection unit. He asked four key questions about its budget, its resources and its scale of functions and how the lines of communication work. I am not sure the Minister was able to give the answers to all those questions, but doubtless she will write.

[Baroness Neville-Rolfe]

I thank the noble Lord for giving way. I think I acknowledged that I had not managed to answer his penetrating question. We explained a little at Second Reading about how it would be set up. He was talking about resourcing, while my noble friend Lady Berridge made a good point about the link to policing. We need to return to the “embedded” question, because although I gave the noble Lord an answer I am not sure that we were quite getting at the point that he was making, which is why I was perhaps a little nervous in answering his question. We will look at that issue. The point is that our intentions in this area are clearly positive, and we will certainly write before Report on the issues that have been raised.

[Lord Touhig]

What I was basically going to say is that I am sure the Minister will want to share her letters with the rest of the Committee when she does that. An important point that was well made by the noble Baroness, Lady Berridge, is that we need joined-up government in this respect. The noble Lord, Lord Redesdale, talked about the very practical issue that he discovered when he was in the Middle East. That will also bear further consideration.

The Minister told us in her reply that the various manuals are updated regularly, which is good. She believes that Amendments 7 and 8 are already covered by the Bill. Perhaps we could have a little more clarity on that when she is able to write to us; I am sure she will write on a number of issues.

We have had a useful short debate. There are issues that cause worry, particularly the question of embedded forces. As a result of the interventions from my noble friend Lord Howarth, I realise that this is an issue that I had not considered when I tabled the amendment. We will certainly want to know more about that and how we can practically respond to it. With those remarks, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.