Cultural Property (Armed Conflicts) Bill [HL]
Debate between Lord Inglewood and Lord Howarth of Newport
Lord Howarth of Newport
My Lords, my noble friend Lord Collins of Highbury and the noble Earl, Lord Clancarty, the noble Baroness, Lady Bonham-Carter, and their co-signatories address a very important issue. While I fully understand the nature of my noble friend’s concern I have some reservations about his specific proposal, which has something of the character of martial law about it. It is an important feature of our legal tradition that people are innocent until proved guilty. Only where motoring offences are concerned is there a presumption of guilt and you have to demonstrate your innocence, and I am not sure that I want to see that reversal applied in the art market. None the less, there is a very serious problem within the London art, antiques and antiquities markets.
I emphasise that the London art market is a jewel in the nation’s crown. There are some magnificent businesses that do enormous credit to this country, bring it prosperity and play a leading role in its cultural distinction. However, the London market is a mixed bag and unfortunately there are some dodgy characters and spivs—and spivs in blue suits are spivs no less. It is therefore absolutely right that we should seek through this legislation to address ourselves to this kind of criminality.
We see here the interaction of two very disturbing problems. One is the funding of terrorism. As we know, ISIL is systematically engaged through what it calls its “Ministry of Antiquities” in looting the cultural heritage of the areas it occupies and selling important items of cultural heritage on the global market, and in particular the London market, to finance its continuing terrorism. It also takes a levy from others who for whatever reasons find opportunities to sell items of cultural heritage. So that is happening and it is a major concern.
There is also the whole problem of money laundering across global markets. One of the most convenient ways for people to launder money is to purchase works of art or precious antiquities and in that way bring their money into what appears to be the legitimate market. When we have that interaction of two major criminal processes, vigorous and well-thought-through action is clearly needed.
I have a great deal of sympathy for what is proposed in Amendment 18, and in particular, as the noble Earl just suggested, its emphasis on clarity of ownership so that people engaged in these markets can know who they are transacting with and the provenance of the items that they are buying. The opacity of the market is obviously very convenient for criminality and makes it difficult for people who collect or wish to deal for perfectly honourable and proper purposes to be confident that they are acting properly. Sunlight, as is often observed, is a very good disinfectant, and the thrust of Amendment 18 is right.
It would be helpful if the Minister could say how this legislation will interact with the criminal finances Bill, which we have not yet seen but which the Government have promised—presumably it will be introduced quite soon—and which will deal with the problems of corruption that were addressed by the Prime Minister and the Government as a whole in the summit they held earlier this year. Certainly, if we had information about the identity of buyers or potential buyers and sellers, that should be a contribution towards enabling the better identification and prosecution of money launderers. I would add that the legislation should require that ultimate beneficial ownership is identified, and not just the person who happens to be acting for the time being, who may well be acting on behalf of others and may be at the top of many layers of transactions and intermediary financial devices.
So that is important. But all this should be seen in the context of the need for a fully co-ordinated, energetic, purposeful drive by the Government to prosecute offences in this area, with all the departments of Whitehall working together and the police, the National Crime Agency and Her Majesty’s Revenue & Customs all engaged in a fully developed strategy, working of course with the relevant business and professional associations, those in the art market and with other Governments internationally—a point I made in the debate we had on 14 January. It would be helpful if the Minister would give us an update on how the Government are seeking to address these problems coherently.
Lord Inglewood
My Lords, in her response to my intervention on the previous amendment the Minister responded to some things I wanted to touch on and raise under this amendment—so it was nice to hear from her in advance of my comments.
First, speaking as president of the British Art Market Federation, I emphasise that the federation warmly welcomes the Bill—and does so for two completely different reasons. The first is that it is inherently a good and a right thing to do. Secondly, the British art market, which is based particularly in London but not exclusively so, needs to have the reputation as a clean market. If it is not a clean market, it will not be able to benefit those who deal in it as well as it would if it were. This is as true of a stock exchange or the City of London as it is of the British art market.
The Minister told the Committee at the end of her remarks on the previous amendment what she expected of the British art market. I listened carefully and I think that I understood everything accurately. I can say that not only is that what we expect of the British art market but that she missed two things out. The first is that we expect those who break the law to be prosecuted and then convicted. Secondly—this was an important point made by the noble Lord, Lord Collins—we are not ultimately interested in prosecuting people for crimes; we want to see a world where these crimes do not take place in the first instance. If you have a market which succeeds in prosecuting criminals who operate in and around it, you will go a long way towards achieving just that.
I will touch on some comments I made at the conclusion of my contribution to the discussion on the previous clause. It seems that we need to get two important things right in the context of the criminal law here. The first is that the mens rea needs to be right—I think that my noble friend knows this. We feel that the mens rea as drafted in the Bill is a bit woolly. If you have a slightly woolly definition of what the necessary mens rea is, clever lawyers will be able to get slippery individuals off, and that is not a good thing. We believe, bearing in mind the way in which the criminal law is construed in this country, that a mens rea of knowing or suspecting will assist in bringing criminals to book. Secondly, the particularity of what is required of people should be clear, straightforward and doable. As I said earlier, this is not an exercise in writing a paper which may get you a First in your finals at university but an exercise in bringing bad lads to book.
Against that background, we have heard quite a lot of remarks about the extent of criminality in the London art market, particularly in the context of the tragic events in the Middle East. As I understand it—and I do not have a lot of first-hand knowledge—undoubtedly during the Iraq war there was a significant amount of trade in illegal objects which derived from Iraq at that time. Since then, in the context of the Syrian conflict, my understanding is that the London art market has hardly been involved. This is partly to do with the cultural property offences Act, which we have already had reference to, and partly to do with the fact that those who are engaged in this activity, which is undoubtedly happening, are no longer using the London art market as the place from which to disseminate their ill-gotten goods. In corroboration of this, I understand that the Metropolitan Police has put it on the record that London is now a much cleaner market than it was before.
One reason for that is the expansion of proper due diligence. If you use due diligence, you do not necessarily need to have in front of you an enormous schedule of provenance. After all, these days a good provenance enhances the value of a work of art, and most people sell works of art in order to make as much money as possible. But, in the context of the kind of object that might have been looted, not having appropriate provenance gives rise to suspicion and, if there is suspicion, you will potentially be liable to prosecution. If you look at it like that, do not prescribe the rules too tightly and allow the application of principle in dealing with these matters, you will almost certainly be more successful.
Earlier, we heard a number of suggestions regarding illegal trade going on in London. I would just say: do not raise them on the Floor of the House of Lords; go to the police and get the criminals banged up. That is what is required. There have been so few prosecutions and it has been suggested to me that the reason is that there has not been the evidence to justify bringing them. I am not saying that everything is perfect—but that again goes back to the fact that, in the case of the current conflict, this is not the principal place where people wish to launder these sorts of items.
The noble Lord, Lord Howarth, is absolutely right: we must not overlook the fact that the art market, like all markets in this country, is subject to comprehensive and extensive money-laundering regulation. That, as much as anything else, ought to answer certain criticisms that have been made. The noble Lord is probably right that changing the burden of proof in the way described would be a pretty fundamental change to the way that things are done in this country. It would probably drive the bad lads underground, because you can always sell things privately. We do not know what goes on when things are sold privately but I suspect that it is a much easier way to fence stuff. So I urge the Government to look very carefully at what is proposed because I doubt that it will have the result that its proponents suggest. It could have a damaging effect on the honest market, and if you do not have an honest market there is always the temptation for a parallel dishonest market to develop.