Cultural Property (Armed Conflicts) Bill [ Lords ] (First sitting) Debate
Full Debate: Read Full DebateTracey Crouch
Main Page: Tracey Crouch (Conservative - Chatham and Aylesford)Cultural Property (Armed Conflicts) Bill [ Lords ] (First sitting)
Tracey Crouch ExcerptsTuesday 15th November 2016
(7 years, 6 months ago)
Public Bill CommitteesRead Full debate Cultural Property (Armed Conflicts) Act 2017 View all Cultural Property (Armed Conflicts) Act 2017 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 15 November 2016 - (15 Nov 2016)
Kevin Brennan
The Minister refers from a sedentary positon to MP4. I do not think we would meet the high bar required for cultural property.
I remain concerned that the Government’s previous statements on the importance of consistent interpretation could prohibit such an understanding on digital data being implemented in practice. Will the Minister reiterate and expand on the assurance that the emblem could take a digital form? Could the wording of the schedule be interpreted as allowing the emblem to be included in digital format—in a digital file which is protected—as well as on its casing?
Tracey Crouch
It is a pleasure to take my first Bill through Committee under your chairmanship, Ms Buck. I look forward to receiving wise counsel and guidance if I get anything procedurally incorrect.
I am grateful to the hon. Member for Cardiff West and the Opposition for their support for the Bill on Second Reading and in Committee, here and in the other place. Members should always feel honoured to be on a Bill Committee, but I am sure colleagues share my pride in being on this particular Bill Committee ratifying The Hague convention and both protocols, which will make us the first permanent member of the UN Security Council to do so. That will give us great gravitas and status around the world and ensure that we protect cultural property in the future.
I am grateful to the hon. Gentleman and to Lord Stevenson for the amendments. It is important to recognise Members’ concerns that the Bill should enable appropriate protection of all forms of cultural property, including those which have been created using modern digital technology. The tabling of these probing amendments enables us to reassure hon. Members and to reiterate that we do believe that that is the case, and that the amendments are therefore not necessary.
On amendment 2, the definition of cultural property set out in article 1 of the convention and incorporated into clause 2 of the Bill as
“movable or immovable property of great importance to the cultural heritage of every people”
is broad and flexible. It is not limited to those things that are specifically mentioned in article 1 of the convention, which are presented as examples of the sorts of cultural property that are protected by the convention. Other cultural property can also be protected under the convention if it is
“of great importance to the cultural heritage of every people”.
We consider that the definition is already sufficiently broad and flexible and can accommodate modern forms of cultural property such as digital material.
As Members will have seen, Professor Roger O’Keefe of University College London states in his written evidence to the Committee:
“There is no ground for concern and no cause for doubt on this point.”
We also received support on this point from Michael Meyer, the head of international law at the British Red Cross. In his view:
“The examples set out under Article 1 are extensive, but not exhaustive”
and the definition in the convention is
“able to apply to a very broad range of items, which may well include those of a digital nature, such as rare and/or important film and music.”
I reiterate the statement made in the other place that using the definition from the convention does not mean that it is not flexible enough to include modern types of cultural property.
As we stated in the other place, there is also a risk that the amendment would allow the development of an interpretation of the definition in the United Kingdom that is not consistent with its internationally accepted interpretation. That would be undesirable. It would create uncertainty and inconsistency in the application of the convention and the protocols, and it could result in the UK failing to comply with its obligations under them. I must therefore oppose amendment 2.
On amendment 6, the Bill specifies not the format in which the cultural emblem should be displayed, but only the design. The regulations to the convention provide that the emblem may be represented in any appropriate form. The emblem was devised in the ’50s, and although at the time there may have been an expectation that it would be fixed to or painted on objects, there is nothing to preclude it being displayed in a digital format—for example, on screen or by projection. For modern, born-digital material, such as films and music, in practice we would expect the emblem to be displayed on the physical object on which the material is stored or on the building in which the physical storage object is kept, rather than being displayed digitally. That would help to ensure that the emblem is readily visible. That is not to say that it cannot also be depicted in digital form. Next month, we will be holding a roundtable on particular aspects of the implementation of the convention, which will provide a further opportunity to discuss implementation measures. This issue will be on the agenda.
The Government are not aware of any other state parties that have raised concerns about the definition or the rules for displaying the emblem. When the second protocol was agreed in 1999, the definition and the rules relating to the emblem were still considered to be appropriate at a time when digital culture was already well developed.
In conclusion, the amendment is unnecessary and I oppose it. I thank the hon. Member for Cardiff West for giving us the opportunity to clarify that we believe that that issue is included within the wider definition of the convention.
Kevin Brennan
I thank the Minister for her response and for giving the Opposition access to her officials before Second Reading. For a Bill of this kind, it is very helpful to be able to have such discussions and to clarify things in advance.
In a sense, the Minister did not address my point about the potential conflict between Baroness Neville-Rolfe’s remarks in the House of Lords that clarifying the Bill by amending it to include the words “in digital form” would damage the international interpretation of what is meant by cultural property and that the wording of the convention effectively includes digital cultural property. I am not going to press that point, because the Minister and the Government have made it clear that they believe that the definition should be flexible enough to include digital property. It is useful for her to put that on the record and repeat it to the Committee today.
Later in the Bill we will get on to the very interesting subject—hon. Members from both sides of the Committee might want to contemplate this—of which cultural objects and what cultural property in this country, and indeed in each of our constituencies, are regarded as being of sufficient importance to all the people of the world, not just to us and our constituents, to be worthy of protection under the convention. I am sure everybody will spring to life later to give examples from their constituencies, because every hon. Member has in their constituency a cultural treasure that is important to all the people of the world. I look forward to hearing about the cultural richness of this country, including Queen’s Park and north London—your part of the world, Ms Buck, although you are not allowed to talk about it. I accept the Minister’s assurances on amendment 6. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Tracey Crouch
I am grateful to my hon. Friend the Member for Kensington for her contribution. The clause defines cultural property by reference to the definition in article 1 of the convention, as we discussed in the debate on the amendments. This is a broad definition, covering a wide range of movable and immovable property of great importance to the cultural heritage of every people.
The convention provides a non-exhaustive list of examples, simply mentioning monuments, buildings, historical and archaeological sites, books, objects and scientific collections. We are clear that all cultural property must be of the greatest importance to all people to be covered by the definition; the punctuation should not be seen as limiting the definition to only the first items listed.
The definition includes buildings where cultural property is preserved or exhibited, such as museums, major libraries and archives, but is sufficiently broad and flexible, as has been said, to accommodate modern forms of cultural property, such as rare or unique film or recorded music, because the list of objects covered is not exhaustive.
Although the definition was drafted some time ago, it is sufficiently flexible to deal with the developments of the digital age. Changing it would risk the development of a definition in the UK that is inconsistent with the current international interpretation. However, I confirm and reiterate that the definition will cover only a very small and special category of objects.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Offence of serious violation of Second Protocol
Kevin Brennan
I beg to move amendment 3, in clause 3, page 2, line 16, leave out “or”.
Kevin Brennan
These are probing amendments in my name and that of my hon. Friend the Member for Tooting. Amendment 3 is a technical drafting amendment that allows amendments 4 and 5 to make sense. We are exploring which military personnel are bound by the second protocol, specifically in relation to foreign nationals embedded in UK armed forces. At the heart of this debate is the question: who is classed as being subject to UK jurisdiction, for the purposes of the convention and the Bill, and who is not?
I said earlier that it is inevitable when ratifying a convention that was written more than six decades ago that some elements will no longer chime with modern reality and practice, and we are limited in how we can amend the Bill because it forms part of an international convention. The hon. Member for Kensington illustrated the complications when referring to whether the difference between a comma and a semicolon could lead to misinterpretation. She said that she had the Spanish translation available; I am sure that my hon. Friend the Member for Rhondda could cast his eye over that. Although I am tempting him, he is not contributing with his fluent Spanish.
The passage of time provides less of an excuse for uncertainty regarding those parts of the Bill that were written more recently, so gaining clarity is all the more important. On amendment 4, which refers to embedded soldiers, I welcome the fact that the Minister, Baroness Neville-Rolfe, said in the Lords that under the Armed Forces Act 2006,
“regular members of the Armed Forces remain subject to UK service law”—[Official Report, House of Lords, 28 June 2016; Vol. 773, c. 1488.]
even when they are embedded within another army. They remain under the UK’s jurisdiction, and so would remain bound by the second protocol. It is also important to note that the UK armed forces already behave, and are instructed to behave, as if they were bound by the convention and its protocols, and that the impact assessment for the Bill showed that their conduct will have to change very little when the Bill becomes law.
However, the Government have not quite clarified the reverse, which is how the convention and its protocols apply when a foreign national is embedded in UK armed forces, particularly if that other nation is not a state party to the convention or its second protocol. That concern is particularly pressing as the use of embedded forces has become much more prevalent since the convention was originally passed in 1954. The Armed Forces Deployment (Royal Prerogative) Bill, which is awaiting its Committee stage in the other place, is testament to the growing concern about how, when and where the UK armed forces use embedded forces.
The uncertainty that amendments 4 and 5 aim to clarify points to one of the Bill’s vague points: while it is clear about which institutions will be affected, it does not address their internal nuances, or how those institutions interact with each other. That is particularly obvious in clause 5; its interpretation and implementation is complicated by the frequency of use of coalition forces, and the rise in the use of private security firms.
During line-by-line scrutiny of the Bill in the House of Lords, Lord Howarth of Newport recalled that private military contractors had participated in terrible destruction of cultural property at crucial archaeological sites during the Iraq war. However, when asked whether such contractors and the individuals in them would be bound by the Bill, Baroness Neville-Rolfe concluded her remarks by saying:
“I think they are covered.”—[Official Report, House of Lords, 28 June 2016; Vol. 773, c. 1489.]
It is not enough, for our purposes, for a Minister to say “I think”, so I look to the Minister to confirm that they are most certainly covered. Given that we all agree on the severity of the crimes listed in the Bill, it is absolutely right and only fair that we ask for more certainty on who exactly is considered to be under UK jurisdiction—and so criminally liable if they commit such crimes.
I appreciate that the Government have previously referred to clause 29, which states that senior managers of private military contractors are criminally liable for actions committed by their company if they were involved in making those decisions. Our amendments are intended to clarify the remaining ambiguity surrounding the criminal liability of individuals who are under the command of UK armed forces without being members of them, and are not necessarily UK nationals.
In the same debate, Baroness Neville-Rolfe went on to say:
“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.”—[Official Report, House of Lords, 28 June 2016; Vol. 773, c. 1489.]
In my experience, doubt and confusion are created by a lack of clarity, not an abundance of it, so clarity is what we need from the Minister in responding to our amendments. Will she provide us with that? Will foreign nationals embedded in the UK armed forces, private military contractors and the individuals in those contractors, including those contracted by the UK armed forces, be bound by the second protocol and the provisions of the Bill?
Tracey Crouch
I thank the hon. Gentleman for tabling the amendments; that allows the Government to reassure the Committee on this important issue. It also allows me to pay tribute to the UK armed forces, which, as he said, already apply the convention in their actions and behaviours. We should take a moment to thank them for doing so. In addition, it allows me to pay tribute to the excellent monuments men and women, who have done a great deal to protect cultural heritage in conflict zones. We cannot praise them enough for what they have done.
The amendments seek to extend the UK’s jurisdiction over the offences described in article 15(1)(d) and (e) of the second protocol. Under the second protocol, the UK is required to establish jurisdiction over such acts only when they are committed on UK territory or by UK nationals. Extending that to foreign nationals committing these acts abroad would be exceeding our obligations under the convention and protocols.
The amendments would mean that foreign nationals committing such offences abroad would come under our jurisdiction if they were serving under the military command of the UK armed forces, or were private military contractors or their employees. To deal with embedded forces first, when any foreign military personnel are embedded in UK forces, a bespoke status of forces agreement or memorandum of understanding is drawn up that sets out responsibility for the individual involved. That will normally outline that the embedded individual continues to be subject to the jurisdiction of their home state. We would expect that same principle to apply to UK military personnel embedded in overseas militaries.
Therefore, if a foreign soldier were to commit an act set out in article 15(1)(d) or (e) while embedded in a UK unit, we would dismiss them and send them back to their home state to be dealt with for disobeying orders. The individual would face the consequences of their actions on their return home, and there is no loophole for embedded forces; that would apply whether or not a foreign state had ratified the convention or protocols, as the individual would be disobeying an order. Similarly, if a UK soldier embedded in the armed forces of another state broke military rules, we would expect them to be dealt with under the UK’s jurisdiction.
Our concern in the Bill must be to focus on protecting cultural property in the UK and to set clear rules for how UK military personnel and UK nationals operate abroad. We should not be extending our jurisdiction to police foreign nationals committing crimes abroad; that is beyond what is required by the convention and protocols. Private military contractors and their staff are already covered and would be criminally liable in the same way as any other legal or natural person. That means that if an employee of a private military contractor who is a UK national or subject to UK service jurisdiction vandalised or looted cultural property, they would be potentially criminally liable under clause 3 on the same basis as any other person.
Clause 29 also ensures that the senior management of private military contractors are personally liable for offences committed by their organisations if they consented to or connived in the offence. That ensures that senior managers cannot escape the consequences of the actions of their organisations if they were personally involved in them. However, in accordance with our obligations under the protocol, that is limited to UK nationals and those subject to UK service jurisdiction for the offences in article 15(1)(d) and (e) of the second protocol.
To extend our jurisdiction to non-UK nationals for all offences committed abroad would be to go beyond what is required to become party to the convention and protocols. It should be remembered that jurisdiction over the acts in article 15(1)(a) to (c) already extends to foreign nationals committing the most grave offences abroad, as required by the convention and protocols. We would be extremely concerned if amendments to the Bill were to lead the UK to extend our jurisdiction beyond what is necessary to become party to the convention and protocols.
I am sure that we all agree that the UK should not attempt to exceed the boundaries set out in this internationally agreed approach, or become a world policeman in going beyond that. I hope that I have clarified the Government’s thinking on this matter, and that the hon. Gentleman will feel able to withdraw the amendment.
Kevin Brennan
Although we have not tabled amendments to the clauses in this part of the Bill, it would be useful if the Minister briefly explained this clause and some of the others as we go along.
Tracey Crouch
I am delighted to respond to the hon. Gentleman’s request to explain the clause, which contains one of my favourite subsections of all time. I am one of those Members of Parliament who likes to read the legislation that we pass, alongside the explanatory notes. I know that is a terribly quaint thing to do these days. I draw hon. Members’ attention to the wonderfully worded subsection (7), which states that
“an offence that is ancillary to an offence under section 3 includes a reference to an offence that is ancillary to such an ancillary offence, and so on.”
It is an infinite provision, and I thoroughly enjoyed trying to work it out.
Kevin Brennan
On that point, will the Minister explain subsection (7) to the Committee?
Tracey Crouch
I need not do so, because the explanatory notes do it absolutely brilliantly. The lesson for anybody reading legislation is that they should do so alongside the explanatory notes, because that is what they are there for. May I instead recommend that the hon. Gentleman read paragraph 37 on page 10 of the explanatory notes, which gives an absolutely excellent explanation? When I took a picture of the clause and put it up on my personal Facebook page, a lot of my friends who have nothing to do with politics found it as interesting as I did.
Turning to the clause itself, the second protocol requires parties to extend criminal responsibility to persons other than those who directly commit an act outlined in article 15, paragraph 1, of the protocol. It also obliges parties to assert extraterritorial jurisdiction in specified circumstances. The clause ensures that those obligations are fully implemented. Its purpose is to ensure that the UK has extraterritorial jurisdiction to try all ancillary offences in the same circumstances in which clause 3 establishes jurisdiction to try the substantive defence. It does not itself establish the ancillary offences, which already exist under other legislation and apply automatically to offences under clause 3. It applies only to ancillary offences if there is uncertainty about their extraterritorial application. Where the existing law is clear about extraterritorial application, as it is in relation to aiding and abetting and offences under the Serious Crime Act 2007, no provision is made. To make such express provision unnecessarily would be bad drafting practice and could create doubt about other situations for which no express provision is made.
Subsections (1) to (3) set out provisions about jurisdiction that mirror those for the principal offence set out in clause 3. In relation to any of the acts listed in article 15, paragraph 1, sub-paragraphs (a) to (c) of the second protocol, a person can be prosecuted for an ancillary offence committed abroad, regardless of their nationality. In contrast, in relation to ancillary offences concerned with the other acts set out in the article, only a UK national or a person subject to UK service jurisdiction can be prosecuted for an offence committed abroad.
Subsections (4), (5) and (6) take into account the differences in the criminal law in the different legal systems of the UK with regard to the definition of ancillary offences. The intention is to produce the same effect in each legal system. On Report in the other place, an amendment was made to subsection (6) to ensure that the Bill’s provision relating to ancillary offences has the intended effect in Scotland. The amendment was tabled by the Government following consultation with the Crown Office and the Scottish Government. I am grateful to the devolved Administrations for their help and support in drafting the Bill.
Subsection (7) ensures that offences that are ancillary to ancillary offences are also provided for.
I hope that, following that explanation, the Committee is fully appraised of the intention of the clause.
Kevin Brennan
I thank the Minister for a thorough explanation. As I understand it, an example of an offence ancillary to an ancillary offence under subsection (7) might be when someone involved in the theft of an item of cultural property decides to destroy evidence in relation to the theft, and the clause provides for such an offence to be covered.
Kevin Brennan
The Minister is nodding, so I take it that that is also her understanding. Although she is right that we should always read the Bill and the explanatory notes, the explanatory notes—I intend no particular criticism here—do not always tell us much more than the clause. They sometimes seem just to paraphrase rather than attempt to elucidate or give a figurative example. However, on the basis of what she has said, we shall not oppose the clause.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Responsibility of commanders and other superiors
Question proposed, That the clause stand part of the Bill.
Kevin Brennan
As previously, I would be grateful if the Minister outlined the meaning of the clause for the Committee.
Tracey Crouch
The clause provides an additional form of individual criminal responsibility—that of commanders and superiors for the actions of their subordinates. That concept is one of the recognised principles of international law referred to in article 15, paragraph 2, of the second protocol, which parties to the protocol are obliged to implement.
The wording of the clause is based on article 28 of the statute of the International Criminal Court, which is regarded as an authoritative statement of the general principles of international law in relation to criminal liability. It mirrors the UK’s implementation of other international law, in particular the International Criminal Court Act 2001.
Subsection (1) provides that liability under the provision is to be treated as aiding and abetting in England, Wales and Northern Ireland, and being art and part in Scotland. That takes into account the different criminal law in Scotland. A distinction is drawn between the standards expected of military commanders in relation to the military forces under their command, and other superiors, such as Government officials. That distinction is made to recognise that the latter may not have the same degree of control over their subordinates.
In the case of a military commander, liability will arise only if he or she knew, or owing to the circumstances should have known, that his or her forces were committing or about to commit an offence. In contrast, a superior who is not a military commander will commit an offence only if they knew or consciously disregarded information clearly indicating that the subordinate was committing or about to commit an offence. Importantly, subsection (7) makes it clear that liability under the clause does not preclude any other criminal liability in relation to the same event, so a commander can still be prosecuted as a principal offender under clause 3 as well as under this clause.
The clause ensures that the UK adheres to the requirements of article 15, paragraph 2, of the second protocol, and complies with the general principles of international law in relation to criminal liability.
Stephen Doughty (Cardiff South and Penarth) (Lab/Co-op)
It is a pleasure to serve under your chairmanship, Ms Buck. I apologise for my late arrival in Committee this morning; I was at a Select Committee meeting.
I have some specific questions for the Minister about how the clause will be put into practice. I have had the pleasure of seeing UK armed forces being trained, at very close quarters. I saw infantry, artillery and tank training, and I have always been impressed by the teaching in practice of compliance with international law, including the Geneva conventions. I was in Canada last year at the BATUS training area—British Army Training Unit Suffield—where much of our heavy armour training is done. The Bill will clearly be very much applicable to conduct with respect to artillery, tanks and other vehicles capable of seriously damaging cultural property, so will the Minister say a little about how it will be incorporated into training and what plans the Ministry of Defence has to bring that about?
A point has been made about embedded forces, and situations when UK forces are in command of forces from other countries. The clause states that
“references to a military commander include a reference to a person effectively acting as a military commander”.
There have been circumstances where civilians from the Department for International Development and the Foreign Office have held senior command roles—for example, in the provincial reconstruction teams in Afghanistan. Will the Minister say a little about the practical arrangements for ensuring that personnel, whether they be military, foreign military or civilians acting in a military capacity, comply with the terms of the Bill?
Tracey Crouch
I am grateful for the hon. Gentleman’s contribution. He will of course understand and appreciate that I am not an expert on all things military, but I can tell him that the Bill applies equally to all the armed forces. No distinction is made for the specific services.
Cultural property protection is included in the annual training of all services of the UK armed forces. Specific cultural protection training is not tailored to the RAF, Army or Navy, but is provided for individuals across all three services when a certain deployment determines it necessary. For example, specific cultural property protection issues are covered on the joint targeting course run at RAF Cranwell and the Royal School of Artillery. Those courses are held for all three services and are attended by personnel who have responsibility for target selection and planning. The graduates of those courses have to demonstrate an awareness of cultural property protection issues in various planning exercises throughout the course.
As the hon. Gentleman pointed out, we should recognise that such training is already heavily embedded in our armed forces and we should be incredibly proud of that. There is a great deal of co-operation between the Department for Culture, Media and Sport and the Ministry of Defence in ensuring the ratification of the convention through the Bill, and work is being done to ensure the continued expansion of that. Members will be aware of the specific unit being set up in the Ministry of Defence. That is well under way and a great deal of progress is being made. Everybody, right from the very top of the Ministry of Defence down to the early recruits undergoing training, is certainly 100% behind making sure that we protect cultural property.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Penalties
Question proposed, That the clause stand part of the Bill.
Kevin Brennan
The clause refers to the penalties that could be handed out to someone guilty of an offence under section 3, or, as discussed earlier, an offence ancillary to such an offence, or indeed an offence ancillary to an offence that is ancillary to the offence under section 3, although that is not specifically mentioned in this clause.
Kevin Brennan
And so on, ad infinitum—and perhaps reductio ad absurdum. The penalty envisaged in clause 6 includes
“imprisonment for a term not exceeding 30 years.”
That is a lengthy term of imprisonment. We know that we are talking about some potentially serious offences, but it would be helpful to the Committee and to those observing our proceedings if the Minister clarified the severity of offence that would be likely to attract a sentence of that length. Clearly, that would not apply to all offences that might be committed under the Bill, although these are offences that, as we heard earlier, relate to cultural property of importance to all people, so an offence committed under the Bill would be a serious offence against all peoples of the world.
If the Minister clarified the thinking on the term of imprisonment and on the kinds of offence that might attract that length of sentence, I am sure the Committee would be enlightened.
Tracey Crouch
The clause sets the maximum penalty for section 3 offences and the associated ancillary offences. The second protocol obliges parties to make the criminal offences established in their domestic law to meet the obligations of paragraph 1 of article 15 “punishable by appropriate penalties”. A person found guilty of an offence under section 3, or a related ancillary offence, is liable on conviction on indictment to a prison term not exceeding 30 years. The maximum penalty introduced by the clause aligns with related provisions in both the International Criminal Court Act 2001 and its Scottish equivalent, and the Geneva Conventions Act 1957.
At first sight, it may seem surprising that offences of that nature, and ancillary offences, attract the same maximum penalty as war crimes covered by the relevant provisions of the 2001 Act, but that flows naturally from the seriousness with which those offences are considered under international law. It is worth noting and stressing that that is a maximum penalty. In practice, the sentence may be much shorter, or even a fine. The maximum sentence is likely to be reserved for only the most heinous crimes against cultural property. Each sentence must be considered case by case, and the Government believe that it should be left to the courts to determine the appropriate penalty based on the facts of the individual case.
The offence in clause 3 could be committed in a wide range of scenarios, with an equally wide variety of possible ancillary offences. I do not think it would be right for us to attempt to address that variety of scenarios by setting different penalties in the Bill. If an individual was responsible for deliberately destroying one of our national cultural landmarks during an armed conflict, I am sure we would wish to see the severest punishment. Likewise, we would want a similar sentence to be available for an individual who masterminded such destruction, or an army commander who ordered it as part of a campaign in full knowledge that the object in question was protected cultural property. That should also apply to UK nationals taking part in cultural destruction of a similar nature during an armed conflict overseas. Accordingly, the maximum penalty is considered appropriate for ancillary offences, as well as for the principal offence.
The clause reflects the seriousness with which the UK views serious violations of the second protocol. It is consistent with existing UK legislation and allows the UK successfully to meet its obligations under that protocol.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Consent to prosecutions
Question proposed, That the clause stand part of the Bill.
Stephen Doughty
I will ask a simple question; I am not an expert on these matters when it comes to Scottish law. Why does the clause make no reference to consent for prosecutions with regard to Scotland? It references only the Attorney General in England and Wales and, for Northern Ireland, the consent of the Director of Public Prosecutions for Northern Ireland. Is that particular quirk due to the way the Scottish legal system works or something else?
Tracey Crouch
I am not an expert on Scottish law, but I can answer that question. There is no equivalent provision in relation to Scotland as the position of the Lord Advocate, as master of the instance in relation to all prosecutions in Scotland, means that such a provision is unnecessary.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
The cultural emblem
Question proposed, That the clause stand part of the Bill.
Mr David Burrowes (Enfield, Southgate) (Con)
It is a great pleasure and a privilege to take part in the proceedings of the Committee, not least as I am co-chair of the all-party parliamentary group for the protection of cultural heritage. I will not say too much, not least because I do not have much a voice, but I will say that this a particularly uncontentious part of a relatively uncontentious Bill.
I draw particular attention to the emblem of the blue shield, which is, as we know and as has already been mentioned by the hon. Member for Cardiff West, a symbol used to identify cultural sites protected by the convention and the personnel engaged in protecting such property. I also draw attention to the work of the Blue Shield network, which provides support in the promotion of the ratification of the convention and its protocols, as we are doing today. It is also part of the International Committee of the Blue Shield, which is a voluntary NGO, but one that has already been said to be the equivalent of the International Red Cross and Red Crescent Movement, and it needs to be given proper status and support.
The International Committee of the Blue Shield provides an unrivalled body of expertise, which allows the organisation to collect and share information on threats to cultural property worldwide. This is a hugely significant organisation that encourages the safeguarding and restoration of cultural property and raises national and international awareness of cultural heritage. It also provides an important focus for the promotion of not only the ratification but the implementation of the convention, and its work with the Government and with other countries, in terms of the protocols and the convention, is no doubt ongoing. It is worth noting in the submissions to the Committee the support for the Bill from the International Committee of the Red Cross and the offer to support the Government in the promotion of the blue shield emblem, which it has done so admirably with the red cross. I would be interested to hear from the Government on the progress of that in terms of social media and other forms of media that have developed in the 60 years since the introduction of the convention.
Tracey Crouch
I am grateful to my hon. Friend the Member for Enfield, Southgate for his contribution. He is an expert, and he should not understate the work he has done on the issue over a number of years. He should be congratulated on his commitment and dedication to the protection of cultural property. I am very grateful for the advice he has given me and my Department in recent months.
My hon. Friend’s contribution allows me to pay tribute to the UK Committee of the Blue Shield and put on the record my gratitude to Professor Peter Stone for the work he has done in advising on the Bill and beyond. My hon. Friend mentioned Professor Stone’s plans for a Blue Shield centre, which I and my Department will continue to work with him on. I agree with my hon. Friend that it will allow us to take an international lead on the issue.
Clause 8 relates to the cultural emblem. The hon. Member for Cardiff West said that the Bill is a piece of legislation with a picture in it. I humbly suggest that if there were more pictures in Bills, more people outside this place might read them.
Tracey Crouch
If it protects beautiful heritage and culture, one might suggest otherwise.
The cultural emblem takes the form of a blue and white shield and allows cultural property protected under the convention to be marked to facilitate its recognition. In introducing the emblem, we will recognise for the first time in the United Kingdom the only symbol in international law for the protection of cultural property during armed conflict. It will act as a means of identification for this country’s most important cultural property and safeguard it in the event of an armed conflict.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9
Offence of unauthorised use
Question proposed, That the clause stand part of the Bill.
Kevin Brennan
I am not sure whether this will meet with your agreement, Ms Buck, but it seems to me that, as we debate clause 9 stand part, the Minister might go a little further and discuss how the clause relates to clauses 10, 11 and 12, which are about the authorised uses. The offence is created by clause 9. If that is convenient to the Committee, it might be a sensible way of discussing those clauses.
Tracey Crouch
Clause 9 introduces a new criminal offence of the unauthorised use of the cultural emblem, or any other design capable of being mistaken for it. That offence will meet our obligations under the convention, which sets out rules for the emblem’s use. It also requires parties to prosecute or impose sanctions on unauthorised use.
This will be the first time that the UK legally recognises this important symbol. Our policy is to afford the cultural emblem equivalent protection to that afforded the Red Cross and other distinctive emblems under section 6 of the Geneva Conventions Act 1957. As with the Red Cross, the breadth of the offence reflects the need to protect the potency of the emblem by forbidding its unauthorised use. An offence under this clause will be punishable by a fine. As with prosecutions under clause 3, prosecution under this clause can take place only with the appropriate consent in England, Wales and Northern Ireland. The position of the Lord Advocate makes a consent provision for Scotland unnecessary.
Clause 10 gives the appropriate national authority the power to give general or specific permission for particular uses of the cultural emblem to be authorised. It also enables the national authority to withdraw permission, for example when it is no longer necessary or appropriate. This will ensure protection for the cultural emblem and allow for urgent authorisation of cultural property, which can display the emblem, as may be required in the event of war or armed conflict. Subsection (2) imposes an additional requirement, as required by the convention, that the distinctive emblem may not be placed on any immovable cultural property unless a copy of the authorisation is displayed.
Clause 11 authorises the use of the cultural emblem for moveable cultural property in the circumstances permitted by the convention and regulations. It authorises the use of the cultural emblem when it is used to identify moveable cultural property and the use of three cultural emblems in a triangle to identify cultural property undergoing protected transportation. Finally, it outlines what is meant by cultural property undergoing protected transportation. That meaning is provided for in the convention. For example, should an armed conflict occur in one part of the United Kingdom, the cultural emblem triangle could be displayed on moveable cultural property during its transportation under special protection to a refuge in an area of the United Kingdom not affected by the armed conflict. That will help to ensure that cultural property is not exposed to damage and destruction during its transportation out of a conflict zone. I hope that clarifies the three clauses—10, 11 and 12 —and that they will stand part of the Bill.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clauses 10 to 12 ordered to stand part of the Bill.
Clause 13
Defences
Question proposed, That the clause stand part of the Bill.
Kevin Brennan
Again, it might be useful if the Minister outlined the circumstances in which use of the emblem would be subject to a reasonable defence against a prosecution.
Tracey Crouch
Clause 13 sets out three defences to the offence of unauthorised use of the cultural emblem. This is to ensure that any person who already legally uses the emblem, or a sign that so nearly resembles the emblem that it could be mistaken for it, is not disadvantaged and criminalised as a result of the new clause 9 offence. Under subsection (2) it will be a defence to show that use of the cultural emblem is for a purpose for which it had previously been lawfully used before clause 9 came into force. Under subsection (3) it will be a defence to show that the emblem forms part of a trademark registered before clause 9 came into force, and that the trademark was being used lawfully in relation to the goods and services for which it was registered.
Under subsections (4) and (5) it will be a defence for a person to show that a design used on goods was: first, applied to the goods by their manufacturer or someone trading in those goods before they came into the possession of the accused; and secondly, that the person applying the design was using it lawfully in relation to the same type of goods before the clause came into force. The defence in those subsections is intended to protect purchasers of goods already bearing the emblem, or a design closely resembling it. Subsection (6) makes it clear that where the defendant can provide evidence that a defence exists, the burden to prove the offence still lies with the prosecution.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14 ordered to stand part of the Bill.
Clause 15
“Appropriate national authority”
Question proposed, That the clause stand part of the Bill.
Kevin Brennan
I think that it would be useful, in this age of devolution, if the Minister outlined the reasoning behind the way in which the appropriate national authorities have been set out in the Bill.
Tracey Crouch
I am very happy to do so. Clause 15 defines the appropriate national authority for each part of the United Kingdom. This explains the term that is used in clauses 10 and 12. For the purposes of part 3, the appropriate national authorities are: for England, the Secretary of State; for Wales, the Welsh Ministers; for Scotland, the Scottish Ministers; and for Northern Ireland, the Department for Communities. I reassure the Committee that these definitions, as set out in the Bill, were agreed with the devolved Administrations.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16
“Unlawfully exported cultural property” etc
Question proposed, That the clause stand part of the Bill.
Tracey Crouch
I thought it would be particularly helpful for the Committee to discuss clause 16, because it sets the scene for the discussion on clause 17, which I know we are due to have because amendments have been tabled. Part 4 of the Bill deals with cultural property that has been unlawfully exported from occupied territory. Clause 16 defines what is meant by “unlawfully exported cultural property” and sets out how it is determined whether territory is occupied.
Unlawfully exported cultural property is defined as cultural property that has been exported from an occupied territory contrary to either the laws of that territory or international law. At the time of the export, the territory concerned must have been occupied by another state. Either the occupying state or the state of which the occupied territory is a part must have been a party to the first or second protocol. That means that the earliest date on which cultural property could have been unlawfully exported for the purposes of the Bill is 7 August 1956, which is when the first protocol came into force. If neither of the states concerned became a party to the first or second protocol until a later date, that will be the date from which cultural property can fall within the definition.
The clause sets out what is meant by “occupied territory”. The test for that is based on article 42 of the regulations concerning the laws and customs of war on land, which were agreed at The Hague on 18 October 1907. The article states:
“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to territory where such authority is established and in a position to assert itself.”
Whether a territory is occupied now, or was occupied at a particular time, is a matter that must be determined on a case-by-case basis. The clause provides that a certificate issued by the Secretary of State shall be conclusive evidence as to whether, at a particular time, territory was occupied. That is standard procedure for determining such matters that concern international relations and are considered to be matters of state.
Kevin Brennan
The Minister may not have this information available, and may want to write to the Committee with it, but do the Government have a list of territories that they currently consider to be occupied under that definition?
Tracey Crouch
I do not have that information to hand now, but I do not think we have an official list, because this is often a controversial point. May I suggest that if we are still on clause 16 when we return this afternoon, we perhaps clarify or confirm that point then?
Kevin Brennan
I am grateful. I understand her not having the information now. It might be useful to clarify, for example, whether the Government consider Crimea to be an occupied territory.
Tracey Crouch
Again, if we are still debating clause 16 this afternoon—or perhaps even when we debate clause 17 —if the hon. Gentleman wants to raise the point then, I may be able to give him more information. However, as he can imagine, the definition of occupied territories is sometimes controversial, and it is often open for discussion.
A certificate may not be issued in all cases. Alternative evidence may be used to prove the status of a particular territory. Before I conclude, I have been reliably informed that, yes, Crimea is considered an occupied territory; that at least covers one of the questions that the hon. Gentleman might have wanted to return to this afternoon, allowing us more time for other matters.
Victoria Borwick
I thank the Minister for that clarification, because we all seek greater clarity about what is in the Bill.
I have previously mentioned the uncertainty inherent in clause 2 and how our art market is keen to avoid uncertainty. Another area of uncertainty is an auctioneer’s or dealer’s ability to identify the occupied territories to which the law applies, particularly if an item may have been here previously; of course there is a lot of trading going on all the time, which is why the points about certainty and dates need to be clarified.
Clause 16(6) states that the Secretary of State’s confirmation that a territory was occupied is conclusive evidence of that status once legal proceedings have begun. If the Secretary of State’s word may be provided after the beginning of proceedings, cannot a list of the occupied territories, together with the relevant dates of occupation, be drawn up for all to see? Alternatively, could the criteria that a Secretary of State would apply when determining whether and when a territory is considered to have been occupied be clarified? Examples have already been given, but I could add East Jerusalem, the west bank, northern Iraq, Libya or southern Sudan and I am sure others could add alternatives. For the avoidance of doubt, dealers will need to know at what points since 1954 a particular territory is covered by the legislation.
Mr Burrowes
I want to raise an issue brought up on Second Reading and in the other place, about the Bill’s applicability to non-state actors, particularly in relation to Daesh, which has prompted a huge wave of concern about cultural property destruction and added an extra dimension to the process that we are in of ratifying the convention and protocols. I am particularly grateful to the Secretary of State for clarifying the categories in the Bill that are applicable and for clarifying where the UK can prosecute.
The Hague convention already extends to non-state actors, and the offences in article 15 of the second protocol may be committed by non-state actors in non-international armed conflicts. The question is how that will be prosecuted. As Syria is not party to the second protocol, there is no possibility of prosecuting the most serious offences in article 15. However, there is scope to prosecute UK nationals involved in Daesh under clause 3 of the Bill.
Is there evidence of UK nationals being involved in such damage or in stealing cultural property in Syria? If there is, we will be able to prosecute them for those heinous crimes after the enactment of the Bill. Many of us, including the UNESCO chair, consider such acts to be on the same level as a war crime, and they need to be dealt with appropriately and punitively.
Tracey Crouch
I am grateful to colleagues for raising a number of important issues. I will respond as best I can.
First, I remind the Committee that this law is not solely concerned with dealing in cultural property; it is about protecting cultural property at home and abroad. We need to keep reminding ourselves of what we are trying to achieve with this Bill. That said, some important issues have been raised.
Colleagues will appreciate that extremely sensitive foreign relations issues are in play when drawing up a list. It is important to reiterate the point made by my hon. Friend the Member for Kensington that the Government are not aware that any of the other 127 state parties to the convention have produced a list of territories that they consider to be or to have been occupied since the convention came into force in 1956. In practice, very few territories are likely to be deemed to be or to have been occupied within the meaning of the Bill. The amount of cultural property from such territories that dealers are likely to come across is expected to be extremely small. That said, I realise that there are concerns.
Legal advice will be available to those who have concerns. If in doubt, dealers can seek appropriate legal advice from a solicitor or barrister who is familiar with public international law. The Bill does not impose any requirements on those who deal in cultural property beyond the normal due diligence that they should carry out in accordance with industry standards, such as the code of practice for the control of international trading in works of art. In the event of legal proceedings, the burden of proof will be on the prosecution to show that the person knew, or had reason to suspect, that the cultural property had been unlawfully exported from an occupied territory.
We will discuss the wording later, but I remind the Committee that the Government will not be publishing a list of occupied territories. It will be determined on a case-by-case basis. Anyone who has a question or any doubt can seek appropriate legal advice. Like the other 127 state parties to the convention, we have no intention of publishing a list.
Victoria Borwick
I am concerned on behalf of traders that there will inevitably be a great deal of cost. As you and the Secretary of State have been kind enough to say that you do not wish to place additional burdens, I am concerned that you are appearing—
Victoria Borwick
I apologise, Ms Buck. High legal costs might be incurred, but I do not understand that to be the Minister’s intention.
Tracey Crouch
I repeat that I do not think that the clause imposes any more requirements on those who deal in cultural property beyond the normal due diligence that they undertake now in accordance with industry standards, so I am not convinced that there will be additional costs. We need to remind ourselves that the offence is not retrospective; it applies only to cultural property unlawfully exported from occupied territories after the date that the convention and protocol came into force for those countries that are party to it, and cultural property needs to be imported into the UK after the Bill comes into force to be an offence.
To clarify exactly what sort of cultural property we are talking about and the dating of that property, I will briefly repeat messages back to my hon. Friend the Member for Enfield, Southgate about Syria. It is important to take this opportunity to clarify how the Bill applies to the situation in Syria. The Bill’s application to the situation in Syria is limited for two reasons: first, while Syria is party to the convention and the first protocol, it has not ratified the second protocol; secondly, the UK does not recognise Daesh as a state.
With regard to the first point, the current conflict in Syria is defined as a non-international armed conflict—a civil war, in other words—and the offences listed in article 15 of the second protocol may be committed during civil wars. However, the application of clause 3 is complicated as it varies depending on whether the state experiencing civil war is a party to the convention and/or the second protocol. The Bill’s application to Syria is limited to the offence set out in article 15(1)(e) of the second protocol, which is
“theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.”
Because Syria is party to the convention, its cultural property is protected against that offence. The Bill’s application is limited in some respect because Syria is not yet party to the second protocol, which means that the UK cannot prosecute for any of the other four offences set out in article 15 of the second protocol.
Kevin Brennan
I saw the Secretary of State’s letter, together with an explanatory note, that she provided following Second Reading. It made it clear that the Bill could, in effect, apply in civil wars, although that is not the phrase that she used; I think the Minister has confirmed that with what she just said. I am just trying to understand exactly what the Minister meant in relation to the first and second protocols. Is it that Daesh could not be covered by the Bill because it is not a state party or a recognised state, or is it because the second protocol to the convention has not been ratified by Syria?
Tracey Crouch
It is probably both, actually. First, Daesh is not a recognised state, and secondly, not all parts of article 15 apply because Syria has only signed up to the convention. Article 15(1)(e) applies because Syria has ratified the convention, but articles 15(1)(a), (b), (c) and (d) do not apply because Syria has not signed up to the second protocol.
Kevin Brennan
To be clear, does that mean that the Bill could apply to only one side in a civil war—namely, to a recognised Government who were signatories to the convention—while the other side, despite committing identical actions, was not covered because it was not a recognised state under the convention?
Tracey Crouch
We ae going beyond the specific purpose of this legislation. I can tell the hon. Gentleman that the Bill will apply if there is evidence that a UK national has joined Daesh and damaged or stolen cultural property while in Syria. The UK could seek to prosecute that individual under clause 3 on their return to the UK. As I stated, article 15(1)(e) applies to
“theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.”
Article 15(1)(e) is broad enough to take into account everything protected under the convention, which Syria has signed, but article 15(1)(a), (b), (c) and (d) all refer to aspects that are in the second protocol, to which Syria is not a signatory. I hope that clarifies the point. I appreciate that this is incredibly complicated, but we are limited to talking about some issues relating to UK nationals in Syria.
On the question raised by my hon. Friend the Member for Enfield, Southgate, we are not aware of any UK nationals who have been involved in cultural destruction in Syria. On the second point in relation to Syria, clause 17 creates the criminal offence of dealing with cultural property that has been unlawfully exported from occupied territory. Territory belonging to one country can only be occupied by another state. The UK does not recognise terrorist groups such as Daesh as states, so Syria cannot be classed as an occupied territory, and the dealing offence is not engaged. There is no loophole in our approach to dealing in Syrian cultural property, as sanctions already exist for the sorts of objects that have been illegally removed from Syria. I can confirm that the second protocol would apply to both sides in a civil war if the state had ratified the second protocol, which Syria has not.
Kevin Brennan
The hon. Gentleman is an eminent lawyer and understands these matters much better than I do. I am sure that he is correct to say that that is part of the problem, but I imagine that agreeing on a list internationally will be much more difficult than the UK Government drawing up their own list of territories that they consider to be occupied. After all, we are bringing these provisions into UK law, so it would be during proceedings in the UK when this would be a matter of importance. I do not think that there is any great logic in why the Government have said that they are not prepared to produce a list. We will not vote against the clause, but if the Minister has anything further to add, I am sure it will be helpful.
Tracey Crouch
The only thing that I would like to add is that the hon. Member for Cardiff West is a very experienced and somewhat naughty man for leading me down a garden path; I will now no doubt get a smacked bottom from the Foreign Secretary for declaring, on the record, that comment about Crimea. It is important to stress that this is an incredibly complex area, involving sensitive issues relating to foreign affairs. No other state that is part of the convention has produced a list. I appreciate that the hon. Gentleman does not think that a reliable or worthy response to the issue. We want to make sure that we introduce the Bill and ratify The Hague convention properly, so that we protect cultural property in the United Kingdom and abroad.
We firmly believe that the Bill does not place any further burdens or restrictions on the art market. There is nothing in the Bill that those in the art market do not already do, in terms of due diligence. Where they have concerns, we would expect them to seek appropriate legal advice, as they currently do. There is a whole wealth of people out there who are able to provide that.
Victoria Borwick
I want to take the Minister up on the due diligence point, if I may. Inevitably, there are different levels of due diligence, and different categories. There is no accepted level of due diligence. This goes back to the point made about getting absolute clarity in the Bill, because nobody wants there to be confusion later. We all have the right spirit here; we are just making sure that things are absolutely clear. There are inevitably different levels of due diligence for different categories of objects, with the risk of forfeiture and potentially a prison term.
Tracey Crouch
I hope that those in our art market, with all their expertise and with the market’s worldwide reputation for being one of the best, have the highest standards of due diligence, and that when it comes to these specific cultural objects of great importance to all people, as defined by the convention, they take particular care with due diligence, as set out by their own industry codes and standards of ethics. They are self-regulated, and they provide a gold standard of best practice for the rest of the world, and I hope that they will continue to do so.
I reiterate that we do not think it is necessary to produce a list; we do not think that it would be helpful in a wider sense. A certificate from the Secretary of State would only be used during a dispute on an issue. We believe that this is the right way forward, and I hope that the clause will stand part of the Bill.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.