Cultural Property (Armed Conflicts) Bill [Lords]

Debate between Lord Garnier and Victoria Borwick

3rd reading: House of Commons
Monday 20th February 2017 Commons Chamber

[Victoria Borwick]

Of course we all hope that is the case, but that is why we all in this House, jointly I believe, are seeking clarification: we do not want unsubstantiated allegations that something was illegally removed from an occupied territory, or a request for something that was legally exported. The allegation might be totally groundless when something is just about to be sold or exhibited, but the seller, genuinely believing that the item had not been illegally exported, would fear that the allegation could be deemed “a reason to suspect”, and that could lead to the item then being withdrawn from sale. The time-dependent opportunity to sell it would be lost and the very act of withdrawal could well then damage the artwork’s future saleability. The mere making of an unfounded allegation that an item was unlawfully exported from a potentially occupied territory after 1954 may place in the mind of a potential dealer or auctioneer a reason to suspect that it has been unlawfully exported, and although that might not later turn out to be the case, he will not go near it because it has been tainted.

I give as an example an old master picture that has changed hands on the legitimate open market in Europe in the past few years. It is sent to London for sale by auction. Due diligence is carried out and its known provenance is investigated, as is its sale history, and checks are made that the item has not been stolen. The picture is then included in an auction catalogue which is published several days before a sale. An allegation is then made that it was removed from an occupied eastern European country in the 1960s. Time is necessarily short to investigate whether that is true. Attempts to resolve the matter beyond doubt before the auction do not succeed, and even though it may well prove groundless, the allegation itself represents a reason for suspicion under the terms of the Bill as currently drafted. Not wishing to run the risk of prosecution, the auction house has no alternative but to withdraw the picture from the auction, to the disadvantage of its owner who, at best, will have to wait for another auction and, at worst, will face financial loss, as marketing it for a second time could adversely affect its value. The rarer and more valuable a picture or piece of art it is, the greater is the risk that a successful sale will be prejudiced by its withdrawal from an auction. In time, the allegation could well prove groundless, but the damage will have been done.

I recall the Secretary of State saying on the Floor of the House on 31 October that

“It is important that we are clear that the Bill will not hamper the way in which the art market operates.”—[Official Report, 31 October 2016; Vol. 616, c. 700.]

The closest existing legislation to the current Bill is the Dealing in Cultural Objects (Offences) Act 2003, to which my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) referred earlier. It is concerned with illegally removed archaeological material and objects that have been taken illegally from monuments or historical structures. However, unlike the Bill—in which the types of cultural property covered are extensive and could even include cultural property in people’s family collections—the 2003 Act does not cover works of purely artistic interest. The Act states:

“A person is guilty of an offence if he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted.”

[Sir Edward Garnier]

My hon. Friend refers to the 2003 Act. She and I will recall that the genesis of the Act was the ministerial advisory panel’s report on illicit trade, which was published in 2000. The report suggested that the gap in the Theft Act 1968 should be filled by what became the 2003 Act and by the “knowing or believing” test for mens rea. Is it not a pity that the Government do not seem to remember that, and that they seem to be moving down a different route?

[Victoria Borwick]

I thank my right hon. and learned Friend for giving us the benefit of his experience, which I hope will prompt the Government to reconsider.

As the British Art Market Federation and others have stated, the existing statutes mean that a dealer acting with honest intent and conducting reasonable due diligence is highly unlikely to run the risk of prosecution, unless it can be shown that they have wilfully acted dishonestly. I understand that the Government have cited article 21 of the second protocol of the convention as justification for a lower level of mens rea, but I draw my hon. Friend the Minister’s attention to article 15 of the protocol, which indicates that an offence has occurred if a person intentionally commits an act of theft or misappropriation against cultural property protected under the convention. Surely that suggests that an element of dishonest criminal intent is required by the convention. I seek that assurance. If the Bill were to introduce a lower threshold of mens rea, that would amount to gold-plating, which appears to run counter to Baroness Neville-Rolfe’s assurances in the other place that

“the Government intend to do only what is necessary to meet our obligations under the convention and its protocols.”—[Official Report, House of Lords, 6 June 2016; Vol. 773, c. 586.]

For all those reasons, I am concerned that the words “having reason to suspect” are inappropriate. Terms such as “believing” or even “suspecting” carry greater certainty and clarity. I emphasise that this is a point of law; it does not weaken or water down the Bill. We all understand that the objective is squarely to target those with criminal intent. I ask the Minister to consider these views and those of the art and antiques industry when drawing up the detailed regulations that will ensue from this legislation.

[Mr Burrowes]

It is a pleasure to take part in the later proceedings of this important Bill. I am co-chair of the all-party parliamentary group on cultural heritage; it is excellent to see the Bill on its way and at long last to enable our ratification of The Hague convention, which will be very welcome. Having said that, I very much respect this level of scrutiny and the concerns outlined by my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) and my hon. Friend the Member for Kensington (Victoria Borwick). We also had exchanges on this issue in the Bill Committee. I welcome that because the concern among dealers has been outlined, not least to the all-party parliamentary group.

The British Antique Dealers Association, the British Art Market Federation, the Antiquities Dealers Association and LAPADA all made considered written representations, which need to be fully respected, and I join them in wanting to ensure confidence in the market. The last thing we want to happen is for the Bill in any way to provide uncertainty or ambiguity in the codes of practice and guidance, which are very welcome—they are welcomed not least by the all-party parliamentary group. We want London to be the centre of excellence for dealers’ associations, and we want there to be true confidence in the market.

The all-party parliamentary group has deliberated on some of the scaremongering stories out there. We recognise that the London dealers’ market has a very good record, and we want to ensure continuing confidence in that market. I have due respect for the concerns that have been expressed, and I look forward to further roundtable meetings and the publishing of guidance.

My right hon. and learned Friend the Member for Harborough, a former Law Officer, pleaded for guidance to be published at this stage. As he will know, some of us who scrutinised the Bill in Committee, including the shadow Justice team, are on his side in pleading for such guidance to be published before the end of our proceedings. Sadly, those pleas have been made in vain in some ways. I share his concern that there should be as much transparency as possible.

It is important to recognise that other stakeholders are concerned about amending clause 17. Although the antiquities and antiques dealers’ associations are important and must be listened to, we must also listen to the police. I understand that police representatives have said that they support the Bill as currently drafted. I have an interest as a criminal defence solicitor, and I am not necessarily surprised that the police support the current wording, but it is worth taking account of other interested parties, such as the British Red Cross and the British Museum.