Introduction and the Import of Cultural Goods (Revocation) Regulations 2021

Lord Parkinson of Whitley Bay Excerpts

Wednesday 30th June 2021 Grand Committee

Moved by

[Lord Parkinson of Whitley Bay]

That the Grand Committee do consider the Introduction and the Import of Cultural Goods (Revocation) Regulations 2021.

[Lord Parkinson of Whitley Bay (Con)]

My Lords, this draft statutory instrument was laid before the House on 19 May 2021. This is a short but important instrument that will bring clarity and certainty for the UK’s museums and art market. Its effect is to remove from the statute book those provisions of the EU regulation on the introduction and the import of cultural goods which became UK law as retained EU law at the end of the transition period, but which are now redundant or legally deficient. It will not affect the provisions which already exist in UK law to protect cultural goods or our ability to tackle the illicit trade in cultural goods.

It may be helpful if I begin by setting out some context. EU regulation 2019/880 on the introduction and the import of cultural goods aims to tackle the illicit trade in cultural goods and to prevent the proceeds of that trade being used to fund terrorism. The regulation came into force on 28 June 2019. However, not all its provisions became applicable on that date. In particular, a provision known as the “general prohibition”, which prohibits entry into the EU customs territory for cultural goods which were unlawfully removed from the country in which they were created or discovered, only began to apply on 28 December 2020. Provisions which require importers of certain cultural goods to present an import licence or an importer statement, to guarantee the legal provenance of the goods, will become applicable only when an EU-wide IT system is in place, or from 28 June 2025 at the latest.

At the end of the transition period, on 31 December 2020, all those provisions of the regulation which had become applicable by that date became UK law as retained EU law—that is, those provisions which became applicable when the regulation came into force together with the general prohibition provision. The provisions requiring import licences and importer statements did not become UK law, and there is therefore no legal obligation for us to implement them. We have always made it clear that we would not implement these provisions if there was no legal obligation to do so.

Many of the provisions which have become UK law are redundant, because they create obligations in relation to the EU or relate to measures to prepare for the introduction of import licences and importer statements. The general prohibition provision has become legally deficient and cannot be enforced in UK law. It relates to the “introduction of cultural goods”, which is defined in the regulation as,

“entry into the customs territory of the Union”.

Great Britain is no longer part of the EU customs union, so the provision cannot be applied to Great Britain. We have therefore decided to address this legal deficiency, and at the same time remove the redundant provisions from the statute book, by revoking the regulation.

I make it clear that the regulation will continue to apply directly to Northern Ireland by virtue of having been added to annexe 2 of the Ireland/Northern Ireland protocol. Revocation of the regulation from UK law does not affect this.

There are two important reasons why we have decided to revoke the general prohibition provision. First, even if this provision were not legally deficient in the way that I have described, it would still raise issues of concern and create complexity and confusion for importers and for our customs and border authorities. These arise because the provision applies to almost all cultural goods created or discovered in non-EU countries, regardless of their age, value or date of export, and because there is no requirement in the regulation for any person to provide evidence to demonstrate either lawful export or unlawful removal from the country of creation or discovery. In the event of a claim of unlawful export, it is not clear where the burden of proof would lie or what evidence would be required. These issues could result in cultural goods being delayed or detained at the border, and might deter people from importing cultural goods to sell in the UK art market or museums from lending objects for exhibitions in this country. It would be possible to address these issues, but we consider that this is not necessary. This brings me to our second reason for revoking the regulation.

We consider that we already have sufficient legal powers to tackle the illicit trade in cultural goods and the import of cultural goods which have been unlawfully removed from another country. These powers are set out in existing domestic law, and in some cases also derive from our obligations in international law—to name but a few, the Customs and Excise Management Act 1979, the Dealing in Cultural Objects (Offences) Act 2003, and the Cultural Property (Armed Conflicts) Act 2017, as well as the Theft Act 1968 and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.

The effectiveness of our existing legislation was demonstrated very recently, when we returned to Libya a statue which had been unlawfully removed from that country and which was found and detained by HMRC at Heathrow Airport. This is only the most recent example. In the last few years, thanks to the diligent efforts of our police, customs and border authorities, we have been able to return other important cultural objects to the countries from which they had been unlawfully removed. In view of the existing, effective provisions in our law, we consider that the general prohibition in the EU regulation is unnecessary.

In summary, therefore, this instrument will revoke those provisions of the regulation which have become UK law. It will provide clarity and certainty, and ensure that there is no confusion as to the rules and requirements for the import of cultural goods, but it will not mean that we are any less able to prevent the import of unlawfully removed cultural goods. I beg to move.

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[Lord Parkinson of Whitley Bay (Con)]

I am grateful to noble Lords for their comments and questions on these regulations. I will do my best to cover the range of questions raised but, as ever, will make sure I consult the exchanges and write with further detail, where I am not able to do so.

The noble Lord, Lord Stevenson of Balmacara, asked why we have chosen to revoke rather than amend the regulations. As I tried to set out in opening, even if these regulations were not legally deficient, the general prohibition would raise other issues of concern for us. It applies to a wide range of cultural goods, regardless of their age or value, who is importing them, for what purpose or when they were exported from their country of creation or discovery. That gives it a very broad scope. Any cultural goods within its scope could be prohibited from entering the United Kingdom if they were believed to have been unlawfully exported from their country of creation or discovery, even if they have been, to all intents and purposes, lawfully owned for years, decades or, in some cases, even centuries by private owners or museums, without their legal provenance being questioned. We think that it could prevent cultural goods created or discovered within Great Britain from being returned, if they had previously been unlawfully exported from this country.

Moreover, there is no requirement for anyone to provide evidence of either lawful export or unlawful removal from the country of creation or discovery. In the event of a claim that cultural goods were unlawfully removed, it is not clear where the burden of proof should lie. I hope that sets out some of the concerns we had with the regulations and the thinking that underpinned our decision to revoke. As we already have existing legislation that has proved to be effective in tackling the illicit trade in cultural goods, we think it better to revoke the general prohibition to clarify the position and avoid confusion.

The noble Lord, Lord Stevenson, also referred to the Hague convention of 1954 which, he rightly points out, is some time ago. The UK is also party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The requirements and obligations of both those conventions are reflected in our domestic law, most notably in the Dealing in Cultural Objects (Offences) Act 2003 and the Cultural Property (Armed Conflicts) Act 2017, both of which are more recent pieces of legislation. The UK and its authorities are members of international organisations, such as Interpol and the World Customs Organization, which enable them to co-operate and share information and intelligence with their counterparts in other countries, as well as make sure that our response is fully up to date in the ways the noble Lord raised. I should point out that the other types of culture that he mentioned in his question are not reflected in the EU regulation either.

I will take the noble Lord, Lord Stevenson, up on his offer to write, after I have checked with lawyers why they chose the word “tangentially” in paragraph 7.5.9 of the Explanatory Memorandum. I would be happy to write when I have that explanation, and I shall take back the suggestion that he made about the Law Commission to the department.

The noble Lord politely suggested that I had glossed over the impacts on Northern Ireland. That was not my intention, although I do not think that is what he was suggesting either. The Northern Ireland protocol has been and continues to be well debated in your Lordships’ House. We do not expect the general prohibition to have a significant impact on the import of cultural goods into Northern Ireland, including from Great Britain. At this stage, it is not possible to say how significant that impact might be.

The noble Lord, Lord German, asked about the application of the law to Scotland. The 2003 Act does not apply to Scotland, but other legislation and relevant international law does. I mentioned a couple of Acts in opening—the Customs and Excise Management Act 1979 and the Cultural Property (Armed Conflicts) Act 2017—both of which apply to Scotland. Retained EU law is, of course, a matter for the UK Government.

The noble Lord, Lord German, and others suggested that revoking these regulations might risk sending the wrong message about the UK’s commitment to tackling the illicit trade in cultural goods. We do not believe that is the case and are determined to tackle that illicit trade. The UK has a strong record of finding and returning unlawfully removed cultural goods. In opening, I mentioned the example of a statue that was recently returned to Libya. To give another example, in 2019, a Mesopotamian kudurru or boundary stone, which was probably stolen in 2003, was seized by HMRC at Heathrow Airport and subsequently forfeited to the Crown. It was formally returned to Iraq in March 2019. Over 150 Mesopotamian cuneiform tablets, seized by HMRC in 2011, were also returned to Iraq in August 2019. So I hope there is no doubt about our commitment, determination or track record in tackling the illicit trade in cultural goods.

We will explore the issue which the noble Lord, Lord German, raised about a database, but it is worth saying that we already share intelligence via our role in Interpol, where we are a key player, and through the World Customs Organization.

The noble Lord, Lord Clement-Jones, suggested that Northern Ireland risks becoming a gateway for unlawfully removed cultural goods to enter the EU from the UK. We do not believe that will be the case. Importing unlawfully removed cultural goods into the EU via Northern Ireland would be a lengthy and costly route for anyone who chose to do so, and there would be many opportunities along the way for unlawfully removed cultural goods to be detected and seized. Our customs and border authorities will continue to do their utmost to prevent unlawfully removed cultural goods entering the UK and ensure that such goods are not transferred to Northern Ireland with the intention of moving them on from there to the EU.

To address the point made by the noble Lord, Lord Clement-Jones, no export licence will be required for movement from Great Britain to Northern Ireland. Other checks are a matter from HMRC but will not include any new measures for the general prohibition. The noble Lord also referred to our art market, which is the second-largest in the world and has a notable and deserved worldwide reputation. There is no evidence that it is underhand or acts outside the law. I am sure that is not what he was suggesting.

To respond to the point made by the noble Baroness, Lady Merron, I do not regret the way I set out these regulations. I hope that the consideration that your Lordships have given them in Grand Committee today has afforded the proper opportunity for scrutiny and, through my answers, some clarification. I will follow up in writing with further points where that is needed.

We believe that this statutory instrument will provide clarity and certainty for the UK’s museums and art market, allowing them, and their partners and clients, to bring cultural objects into the UK without fear that they will be delayed or detained at the border because of any unsupported claim of unlawful removal from another country at some point in the distant past. Our existing legislation was robust in protecting cultural goods before the general prohibition came into effect, and it will continue to provide protection against the illicit trade in cultural goods. In cases where there is evidence or information that an object was unlawfully removed from another country, our customs and border authorities will still be able to detain it and deal with it accordingly, using their existing powers and procedures. I end by re-emphasising that this statutory instrument will not change that.

Motion agreed.

[The Deputy Chairman of Committees (Baroness Barker) (LD)]

The Grand Committee stands adjourned until 4.10 pm. I remind Members to sanitise their desks and chairs before leaving the Room.