Cultural Property (Armed Conflicts) Bill [Lords] – in a Public Bill Committee am 9:25 am ar 15 Tachwedd 2016.
We are very good friends, Ms Buck, so I do not need to remind you that I am Kevin Brennan, not Kevin Barron, although that mistake has been made previously; the Daily Mail online accidentally knighted me, briefly—
Very accidentally.
The hon. Lady is quite right. Like her, I am much more shovelry than chivalry.
Amendment 2 stands in my name and that of my hon. Friend the Member for Tooting. As with all the Opposition’s amendments to the Bill, it is a probing amendment. Having closely looked at what was said on Second Reading, Members will realise that we merely seek to scrutinise and stress test the Bill a little. The Bill has completed its stages in the House of Lords, but some outstanding issues remain that we need to explore in Committee, particularly through the amendments that my hon. Friend and I have tabled. An amendment has also been tabled by a Government Back Bencher.
We made it clear on Second Reading that we very much support the Bill, which has been a long time coming. It brings into UK law the 1954 Hague convention, which the UK did not ratify at the time and which has been hanging around waiting for ratification for some considerable time, including after the second protocol was added in 1999. Indeed, it was the Labour Government in 2004 that announced their intention to legislate in this way. They introduced a draft Bill in 2008, which was then scrutinised by a Select Committee but unfortunately ran out of time prior to the 2010 general election and then went into a deep sleep under the coalition Government. It has been revived by this Government, which we think is a good thing, although it is now 62 years since the convention was originally passed.
We are not seeking to challenge the spirit of the convention or the principles of the Bill. In fact, we understand that it is in many ways a different kind of Bill. As the Minister reminded us yesterday in the Programming Sub-Committee, the schedules are in effect there to give the Committee information, rather than to be debated or amended. They actually represent the wording of the convention and the subsequent protocols to it. The first six parts of the Bill are very much for us to debate and amend. As I have said, our amendments will, for the most part, be probing amendments, as this one is. I agree with what the Secretary of State said on Second Reading:
“We want to get on with it”.—[Official Report,
That is why we are here today. I hope that we will be able to conclude our proceedings in the plenty of time given by the programme motion that was agreed by the Government and the Opposition.
We would like the Government to clarify some aspects of the Bill that could create difficulties in future for those who have to interpret and implement it when it becomes law. Amendment 2, which we are considering in conjunction with amendment 6, speaks to one such difficulty. An inevitable consequence of the Bill’s 62-year gestation is that certain aspects of it may well have become outdated. The convention was written in the light of the cultural destruction of the second world war, but quite a lot has happened in the intervening period. The descriptions of the types of cultural property that are in need of protection, which can be found in schedule 1 to the Bill, show their age in the way they refer to physical artefacts and the buildings that house them, with no mention of, for example, those objects that take a digital, rather than physical, form.
The convention, as it is worded, covers cultural property that is “movable or immovable”, but the question that was quite reasonably raised in the other place is whether it covers digital cultural artefacts. For example, would it cover moving images as well as movable or immovable images? I understand that the list in schedule 1 is illustrative and not necessarily exclusive, and that the omission might be seen in some ways as a natural consequence of technological developments rather than any particular negligence at the time, but I still think that it would be useful for the Minister to set out the Government’s position on that.
Having said that it is because of technological developments, it may also reflect a change in mindset since 1954 with regard to what are regarded as cultural objects. It is quite telling that the wording of schedule 1 and the definition of cultural property under article 1 of the convention do not seem to say or to imply that, for example, film would be included as cultural property in that regard. Perhaps people in 1954 did not envisage that film, which was still a relatively new form of artistic expression, albeit more than half a century old, would fall into the category of a cultural object. Lord Stevenson spoke quite eloquently in the other place about the growing and indisputable importance of film, and subsequently television, and the way that they are woven into everyday life, and the way that they reflect, reproduce and challenge the worlds that we inhabit. Therefore, the national film archives in England, Wales, Scotland and Northern Ireland, as well as regional archives, are all of critical importance.
In fact, a couple of years ago I was fortunate enough to visit the British Film Institute’s archives, which are located near Milton Keynes—if the Minister gets an opportunity in her busy life, I recommend she visits them at some stage—to see the work being done to preserve the cultural heritage of the British film industry. In recent years we had the fantastic discovery of the very early Mitchell and Kenyon films, which catalogue life in the Edwardian era in an incredibly moving and powerful way. They reveal the cultural life of ordinary people in this country, not just so-called high culture, showing how they lived and spent their leisure time and their working lives more than 100 years ago with an amazingly vivid quality. While I was there, I was given a DVD of some of the early colour films of Claude Friese-Greene, who developed an early technique for making colour films but was largely forgotten for many years. There are amazingly vivid images of life in the UK from a tour he took in the 1920s.
To confirm that “cultural property” can be interpreted to include that which takes a digital form would clarify that items do not need to be ancient to be covered by the Bill and by the convention. Our creative industries are thriving, dynamic and constantly changing, producing precious commodities that deserve our protection. I therefore hope that the Minister will assure us that they will be granted the protection outlined in the Bill in the event of armed conflict.
The Minister may argue that the Bill, once passed, will take its place among other UK laws on the protection of cultural property and that we would be better off ensuring that digital culture is covered by those Acts, rather than risk amending the Bill. I understand that argument, which is why I outlined that this is a probing amendment to ensure that we have the Government’s position on the record. However, to ensure that we have informed the future interpretation of the Bill, we want to ensure that UK law is as consistent as possible and that there can be no doubt about the importance of digital cultural property or the severity or importance of anything done to destroy it. I hope that the concerns raised are remembered when we decide which items of cultural property are to be safeguarded by the cultural protection fund.
When this topic was debated in the House of Lords, the Minister, Baroness Neville-Rolfe, said that the wording of schedule 1—in other words, the 1954 convention—was
“flexible enough to meet the concerns expressed about what sort of cultural property might be covered.”
However, earlier in the same speech she responded to Labour’s amendment on the topic by saying
“the noble Lord’s amendment risks allowing the development of an interpretation of the definition in the United Kingdom which 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 its protocols and could result in the UK failing to comply with its obligations under them.”—[Official Report, House of Lords,
In those two statements there is some possibility of misunderstanding. Is interpreting cultural property so as to include that which takes a digital form a fair interpretation of flexible wording, as the Minister seemed to hint at one point in her remarks? Alternatively, is that interpretation—as expressed in a probing amendment in the House of Lords—a threat to the ratification of the convention? She seems to be suggesting that, and both those things cannot be true. We would be most grateful if the Minister clarified the Government’s exact position on that point. The more strongly she expresses the Government’s view that digital property is covered under the wording of the convention, and therefore by the Bill, the better.
Amendment 6 probes how part 3 of the Bill, which relates to the cultural emblem, fits into the digital age. Hon. Members will have noted that the Bill is unusual in another way, besides the fact that we are not debating the schedules, because it contains a picture. That is unusual in a parliamentary Bill.
As my hon. Friend the Member for Rhondda notes from a sedentary position, there is an analogy with the Red Cross symbol, in the sense that we are dealing with an international emblem recognised in law. The picture is not in colour, but the Bill tells us that the colours of the emblem, which is intended to indicate cultural property protected under the convention, should be royal blue and white.
As I mentioned earlier, it is inevitable that a Bill based on a convention written more than six decades ago will be framed partly in ways that are outdated. I have discussed that in relation to the definition of cultural property, but it may be equally applicable to the form of the emblem. There has been broad cross-party agreement on the importance of protecting cultural property. The cultural emblem is crucial to that process, making the protected status of an item known to all those surrounding it, and reducing the chances of it being damaged because that status was not known.
On Second Reading mention was made of the famous use of the cultural emblem in recent years, during the second Iraq war—perhaps in the first Iraq war as well—when it was painted on the roof of a museum in Iraq so that those flying above would know that it was under the convention’s protection. However, there is the potential for that to backfire, as it could signal to looters where cultural property is being stored—we know what happened in Iraq after the invasion.
Leaving that aside, the blue shield is often described as the cultural equivalent of the Red Cross symbol, as my hon. Friend the Member for Rhondda noted. I reiterate the point, made on Second Reading, that the Red Cross supports the Bill. That is a testament to the fact that culture is recognised as important to identity, even by those such as the Red Cross whose first responsibility is the protection of life. Given the importance of the blue shield, we have tabled the amendment to clarify the potential scope of its use.
We welcome the measures that protect against unauthorised use of the blue shield. Its impact should not be diluted. However, the wording in schedule 2 about its authorised uses may be slightly outdated. My concern is to ensure consistency as to formats and the protection available.
I appreciate that the wording of schedule 2 is flexible in the sense that the regulations on the execution of the convention specify that the cultural emblem
“may be displayed on flags or armlets; it may be painted on an object or represented in any other appropriate form.”
The Government have previously said that there is nothing to preclude the emblem being displayed in digital form, for example on a screen or by projection. There could be clear benefits to being able to use the blue shield in digital form; in certain circumstances, for example, it could be projected to prevent the need for it to be painted or physically fixed on protected objects. When this issue was discussed in the Lords, the Government said that digital property such as recorded music could be marked as protected by the emblem if it were added to the physical object containing the digital data.
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?
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.
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.
It is a pleasure to serve under your chairmanship, Ms Buck. I would like to declare that I am the president of the British Antique Dealers’ Association, and I have been advised by the British Art Market Federation, the Antiquities Dealers’ Association and LAPADA, all of which have made written representations to this Committee.
I wish to draw the Committee’s attention to the art and antique market’s concerns about the definition of cultural property in the clause, which draws on the convention. I am grateful to the Minister for her clarification. A number of representative bodies of the art and antiques market, which is the second largest such market in the world, have made written submissions to the Committee. I draw Members’ attention to the submissions from the British Art Market Federation, the Antiquities Dealers’ Association, Professor Janet Ulph and LAPADA, among others. They all make clear that they are fully supportive of the Bill.
It is particularly important that honest and well-intentioned dealers and auction houses do not risk criminal prosecution when conducting reasonable due diligence. As the Committee will have read in those submissions, the three aspects of the Bill that concern the trade relate to avoiding uncertainty in the art market and ensuring clarity in the practical operation of the law. There is no doubt that uncertainty hampers the successful operation of any market, and it is reassuring that my right hon. Friend the Secretary of State made it clear on the Floor of the House that she does not want the market to be hampered.
The clause 17 offence that we will come to later of dealing in unlawfully exported property depends directly on clarity and understanding of what is meant in the Bill by the term “cultural property”. As it stands, the punctuation used in sub-paragraph (a) of article 1 of the convention, which is reproduced in schedule 1 to the Bill, means that cultural property is not limited to property of great importance to the cultural heritage of every people, although the Minister has just clarified that cultural property can be protected if it is of great importance to every people. The market seeks absolute clarification of those points. Other categories of property are covered in the definition, regardless of their cultural significance, including works of art, manuscripts, books and other objects of artistic, historical or archaeological interest.
It has been drawn to my attention that the original—and, as article 29 states, equally authoritative—French and Spanish texts of the convention, which I have to hand, are not worded in that way. They use commas, not semi-colons. On account of that, in the French and Spanish versions a work of art must be of great importance to the cultural heritage of every people for the convention to apply to it. I was delighted that the Minister confirmed in the House on
Given what we know about the other versions of the convention and the Government’s intention that the Bill should apply only to objects that are of great importance to the cultural heritage of every people, it cannot surely be right for the wording of the law to be at odds with its intention. I have not tabled an amendment on this important point, but the Government might consider a little clarification on it.
The hon. Lady is making an important point. Given the benefit of her expertise, will she give an example of a cultural object located in the UK that she believes would pass the test in the convention, under the wording as she and the Government interpret it, and perhaps one that she thinks might not pass the test but that some might regard as an object of importance?
I cannot think of something instantly, but the important point is whether the restricted view should apply that the object should be
“of great importance to…every people”.
We are making sure that we do not by mistake include things that are not covered in the convention—in other words, that we do not, through loose punctuation, fail to make it absolutely clear which objects are covered.
To remove uncertainty, I want confirmation in the Bill that the convention will be interpreted as per the French and Spanish texts, which are of equal validity—in other words, that the phrase,
“property of great importance to the cultural heritage of every people”,
which I hope covers the hon. Gentleman’s comment, relates to the categories of objects listed in article 1 of the convention. I appreciate that the Minister has clarified this morning that cultural property can be protected if it is of great importance to every people.
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.