Cultural Property (Armed Conflicts) Bill [ Lords ] (Second sitting)

David Burrowes Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 15th November 2016 Public Bill Committees

[Kevin Brennan]

It is a great pleasure to serve under your chairmanship, Mr Turner. You missed an exciting sitting this morning, when the Committee Room was fizzing with debate on all sides—I am sure that it will be the same this afternoon. It is appropriate that you should be in the Chair, because I know that, as well as representing the Isle of Wight and its great cultural treasures, as you do so assiduously, you are originally from Coventry. The subject of the Bill was initially born of the experiences of world war two, when the cultural treasures of cities across Europe, such as Coventry and Dresden, were destroyed terribly by bombing. I am sure that the Bill will be close to your heart, and it is therefore appropriate that you should be chairing proceedings this afternoon.

Along with amendment 7, which was tabled by my hon. Friend the Member for Tooting and me, we are discussing amendment 1, which was tabled by the hon. Member for Kensington, who I am sure will want to speak to it in due course. We are all trying to tease out from the Government exactly what they are trying to achieve with this part of the Bill and what the practical effect of clause 17 will be on people who are dealing in cultural items when they have to operate under the Bill’s provisions.

Amendment 7 is another probing amendment, because we want further clarity on the Government’s intention. It proposes removing the phrase

“or having reason to suspect”

from the clause, which is on the offence of dealing in unlawfully exported cultural property. Some concern has been expressed about that particular phrase because of the so-called mens rea—I understand that is what lawyers call it—meaning the intention of someone accused of committing a criminal act of some sort. Would having that phrase in the clause affect honest people who are simply trying to do their job? Will the clause achieve what the Government undoubtedly intend it to achieve, which is to unambiguously target those with criminal intent?

Labour Members are supportive of the Bill, but as it stands the clause creates concerns that there would be a risk that a dealer or auction house might face a criminal prosecution when conducting what they would describe as honest due diligence.

[Mr David Burrowes (Enfield, Southgate) (Con)]

As I am a lawyer, anyone who mentions mens rea will make my ears prick up and get me excited after lunch. The shadow Minister mentioned the need to consider the practical effect, which is the important issue. Will he give an example of the practical effect that goes to the heart of both his amendment and that tabled by my hon. Friend the Member for Kensington and that would not be dealt with already, not least under the sanctions orders that cover Iraq and Syria, which are already having practical implications?

[Kevin Brennan]

I am very interested to hear what gets the hon. Gentleman excited after lunch, or indeed at any time of the day. To answer his point, I am sure he is anticipating what the Minister might say in response, but I shall rehearse the issues a little as I go through my remarks. It is important that we get these points on the record and air the concerns of those outside the Committee so that the Minister has an opportunity to respond. As I said, this is a probing amendment. At the end of our debate we will withdraw it, because we have sympathy with the point that the hon. Member for Enfield, Southgate makes. However, I want to ensure that the concerns expressed to us in representations are on the record and have been rehearsed.

Although a conviction might ultimately be avoided, no one wants to take a chance on the possibility of people being prosecuted, with all the reputational damage and cost that could be involved. Concerns have been expressed that the result could be to turn legitimate sales away from the UK, impacting upon the future success of the art market, which is a large industry in this country. It depends, crucially, on persuading sellers throughout the world to use the UK’s services. The British Art Market Federation states that its members

“are committed to conducting due diligence on artworks before they are sold. This may involve written evidence of provenance, consultation where necessary with external bodies, including databases of stolen objects and inquiries of the vendor.”

It goes on to argue:

“It is rare, however, that an artwork, particularly an older one, has an unbroken chain of provenance going back to the time it was created. It is also rare that there is comprehensive documentary evidence to support provenance, particularly the further back in time it goes.”

Often that evidence has been lost or perhaps never existed in the first place, as it may have been considered unnecessary at the time.

The retention of documents or records has assumed greater importance in recent years, as more and more claims have been made for the restitution of works of art that were looted during the second world war. Until relatively recently, owners rarely retained copies of export licences. As I understand it, the practice was that they were surrendered to customs authorities at the time of export. Even the authorities themselves did not retain such records beyond a limited time. I am told that objects that were legitimately exported many years ago, even from the UK, routinely lack such documentary evidence that might prove the provenance.

The argument has been put to the Committee that the absence or paucity of documentary evidence does not necessarily indicate that an object is of illicit origin. Due diligence, in practice, can therefore usually come down to trying to make judgments on the legality of an object and therefore whether or not it can be legally sold. As I am sure the hon. Member for Kensington will remind us, the BAMF is not the only body with a behavioural code. The Antiquities Dealers’ Association also has a code of practice that is meant to ensure that dealers buy and sell in good faith. Against that backdrop, it argues that clause 17, as drafted, could present its members with some difficulties.

It was pointed out on Second Reading that other offences dealing with crimes of dishonesty—for example, offences under the Dealing in Cultural Objects (Offences) Act 2003—opt for the phrase “knowing or believing”. Some argue that that phrase would be superior to the one used in the Bill, as there is a difference between having knowledge and acting in spite of it, and not having sought out that knowledge in the first place. Current principles indicate that under current law the former would be a criminal offence and the latter, although it would be frowned upon, probably would not meet the bar of being a criminal offence.

The BAMF argues that changing the phrasing of mens rea in the Bill to include the phrase “having reason to suspect” muddles the legal principle and could create ambiguity, and therefore the opposite outcome to the one we all want. It suggests that those who have acted criminally could be emboldened to exploit the muddled language to avoid conviction, while legitimate operators would be put off buying and selling by the potential of a criminal conviction. The issue has been raised many times during the passage of the Bill, so this is a probing amendment to understand fully why the Government have not responded and changed the wording.

From memory, the Secretary of State said on Second Reading—I will check the record when I sit down—that she would go away and consult the Minister and others to see whether the Government should take on board the concerns expressed on the Floor of the House and in the other place and then offer an amendment. I would be grateful if the Minister, when she responds, could indicate whether the Secretary of State has fulfilled that commitment and what the outcome of those discussions was.

--- Later in debate ---

[Mr Burrowes]

It is a pleasure to take part in the debate on clause 17, which drew a lot of attention from both Government and Opposition Members on Second Reading, as well as in the other place and among the all-party group on the protection of cultural heritage. I welcome the involvement and contributions of the Antiquities Dealers’ Association, the British Art Market Federation and others, which have drawn their expertise to the Committee’s attention in their submissions. I very much respect their concerns, amplified by my hon. Friend the Member for Kensington, about mens rea, which, as I said earlier, gets me interested.

Were one to have a blank canvas—I suppose this is an appropriate forum in which to discuss canvases—there would be an even greater weight to the argument. As a criminal lawyer, when I look across the family of dishonesty-type offences, I will plainly be looking at the state of mind. In the normal course of dishonesty-type cases, one would look to ensure that there is a subjective test that is consistent not only in terms of enabling a prosecution, but with an eye to how the judge would distinguish between or collate the subjective and objective elements in the summing up to the jury. I appreciate that everyone wants to ensure that prosecutions under the Bill are successful.

Having said all that, although I accept that there is genuine concern about the potential effect on the market, I say, respectfully, that it has been somewhat overstated. Given that we do not have a blank canvas, the idea that the implementation of the Bill will cause such repercussions on the market has been overstated. Elements of the canvas are relevant and show things working, albeit in a slightly different form. The Syria sanctions order and the UN’s Iraq sanctions order are relevant and give some texture to enable us to recognise that a precedent has been followed in relation to this particular element of the subjective and objective tests.

One can also look further afield. We can have our own views, but to give a sense of balance, if one looks at the recent written submissions to the Committee, some significant views have been brought to our attention. Mr Michael Meyer is head of international law at the British Red Cross, a respected body of international import when one is dealing with issues of international humanitarian law. In his written evidence, he makes the point that the British Red Cross is a neutral body that is keen to maintain its neutrality—the commonality of that view was shown in both this House and the other place.

In paragraph 5 of his submission, he outlines some concerns that have also been raised in this debate. He then says:

“However, it appears that, in practice, the clause should place no greater burden on dealers than already exists to conduct appropriate due diligence. In other words, the threshold of ‘reason to suspect’ is not so low as to have an adverse impact on the legitimate market, while at the same time acting as a necessary and suitable deterrent for those who may be less scrupulous. The wording is somewhat similar to that used in the existing Iraq and Syria sanctions orders. There is also very similar wording found in section 17 of New Zealand’s Cultural Property (Protection in Armed Conflict) Act 2012.”

Interestingly, the latter Act also dealt with the ratification of The Hague convention.

The written evidence from Peter Stone, the UNESCO chair in cultural property protection and peace, to whom I have referred previously, asks the Committee not to amend the Bill. He draws attention to clause 17 and prays in aid the note submitted by Professor Roger O’Keefe of University College London law school, who was involved in scrutinising the draft Bill before the Culture, Media and Sport Committee. He, too, very much supports the current wording and suggests that appropriate due diligence and legal advice can deal with concerns.

--- Later in debate ---

[Kevin Brennan]

We were discussing new clauses 1, 4 and 5. Before the Division bell rang, I was saying that the Metropolitan police does not have many special resources for the long-term storage of cultural property during legal proceedings and asking the Minister whether any more resources will be provided to the Metropolitan police unit, or whether it is intended that, should items need to be stored, they will be stored somewhere else in a specialist environment, such as the British Museum.

That brings me to museums, galleries and archives, some of which receive public funding. Baroness Neville-Rolfe stated that while she was slightly open-minded on the topic, she thought it generally inappropriate for establishments to display artefacts deposited there for safekeeping. Does the Minister feel that that rules out the possibility of museums, galleries, archives and the like covering the costs of safekeeping, if they want to put items on display, by charging for entry to see them? Again, I am not advocating that, but I wondered if that was a point that the Government had in mind. How should these sorts of institution be funded if they have to perform that task?

Furthermore, the question of joined-up governance returns. How will information pass between the agencies involved in enforcing the Bill? That is especially relevant in relation to the private military contractors and embedded soldiers mentioned previously. Institutions are not as homogeneous as one might think. In essence, the new clause asks how the Government plan to facilitate giving already fairly thinly stretched institutions more to do without any additional resources.

New clause 4 aims to probe the Government on the methods and criteria used to determine which items of cultural property are chosen for protection under the Bill. We have heard in previous debates how the value of cultural property is bound up in both money and morale. Its destruction is therefore used as a weapon of war; it is an attack on people’s pride and identity, and a method of funding further warfare.

There has been cross-party agreement that the importance of cultural property and heritage is a holistic matter. That understanding is crucial to the success of the Bill, but it also poses a challenge when designing criteria. We already have systems of classification for our heritage worldwide, such as designated world heritage sites, and in the UK, such as grade I listed buildings. Can the Minister explain how these criteria in various fields will be joined up, how objects in fields that do not necessarily have an internal ranking system will be incorporated, and which heritage bodies will be consulted in the process?

We said earlier that these cultural objects have to be of great importance and significance, but how one judges that is perhaps ultimately a matter of taste. For example, there are some—I am not necessarily among them—who think that Buckingham Palace is a particularly bad example of botched architecture, and that the way that it was converted to give it its current façade was the 19th-century equivalent of using concrete cladding on a house. However, one would expect a building of such eminence—it also contains significant artworks—to be a cultural object of significant importance, and to be covered by the provisions of the Bill. I mentioned grade I listed buildings. How far down the grades of buildings are the Government willing to offer protection under this legislation? In other words, can they give us some idea of how limited the protection is likely to be under the Bill?

Laying before Parliament a report that outlined a list of properties protected by the Bill would allow for crucial debate and discussion. As I mentioned at the outset, perhaps MPs could bid for the inclusion of an item of cultural property in their constituency that is of great importance to not just them and their constituents, but all peoples of the world. I would say that Llandaff cathedral in my constituency, which was bombed and badly damaged in the second world war, and which has an extremely beautiful and important modern statue by Epstein, is a piece of cultural property that should be of importance to all people. It is difficult to know where the threshold will be in the Bill, so I am interested to know how the Government will liaise with experts from various fields to ensure that adequate measures are taken. Preparing this report will ensure that the public and their elected representatives feel content that their precious heritage is covered. Can the Minister explain how the qualifying artefacts will be determined and what say, if any, the public would have in that process?

New clause 5, which is in my name and that of my hon. Friend the Member for Tooting, seeks to ensure the transparency and accountability of the cultural protection fund. We want to probe how the Government plan to provide for this fund, how it will be resourced and how its different parts will be joined up. We are happy that the Government have committed to giving the fund £30 million over four years, and have set out a timetable for bids and consultation on the fund. Do they have a view on the level of their commitment to the fund following the initial four years? Though the £30 million is welcome as a start, the fund’s aims are ambitious. Are there plans to enhance that level of funding?

The fund will

“support projects involved in cultural heritage protection; training and capacity building; and advocacy and education, primarily focused in the Middle East and north Africa.”—[Official Report, House of Lords, 6 June 2016; Vol. 773, c. 584.]

The proposed report would allow Parliament to monitor whether more funding was required to fulfil those ambitions, as I suspect it might well be.

We certainly welcome the co-operation between the Department for Culture, Media and Sport and the British Council, and agree with the consultation’s conclusion that the British Council’s network and management experience excellently complement the expertise of the heritage industry, and that this collaboration is important to the fund’s success. Can the Minister tell us more about that, and especially about training and resource sharing between those institutions? I understand that the Government have indicated that they are involved with the British Council in developing a long-term strategy. With regard to the long term, the report proposed in the new clause could facilitate debate about the future resource needs of the fund; what countries and technologies should be focused on; and striking a productive balance between providing emergency support for cultural property in areas of armed conflict and supporting the safeguarding of items in peacetime.

There are, of course, many parties that those running the fund will need to liaise with in order to accomplish this, including non-governmental organisations, the military, police, Border Force, museums, archives and galleries—all those bodies that I mentioned previously. I reiterate the proposal made by Lord Collins of Highbury, who argued that the fund’s work, especially on supporting economic and social opportunities through cultural heritage, should be carried out in collaboration with the Department for International Development. Will the Minister indicate whether that will be the case, and outline how the cultural protection fund will relate to the voluntary fund established under the second protocol and run by UNESCO? Again, that is a matter of joined-up government and ensuring good value for money.

As I understand it, the Government have pledged to make sure that the cultural protection fund will be included in their yearly report on this Bill if it is of direct relevance, and that its spending will be scrutinised biannually by the OECD. That commitment is appreciated, but this fund deserves scrutiny in itself, not conditionally depending on its relevance to the Bill. This new clause would provide a mechanism by which the fund’s resourcing and operating could be scrutinised by Parliament, and its impact could thereby be maximised. I look forward to the Minister’s response on new clauses 1, 4 and 5.

[Mr Burrowes]

I want to comment on two aspects of the new clauses. First, I commend Detective Sergeant Claire Hutcheon, who has led the Metropolitan police’s art and antiques unit so admirably, and who is retiring in January. She has done admirable work and gained from experience over many years. Although the unit is small in number, it certainly has the quality. She has spread her expertise around forces across the country, pulled in support and expertise, and shared good practice so that forces do what they can on illegal trade. She has also built up a good partnership with the trade, and there is good understanding and confidence there that needs to be continued. There is some concern that the new office holder may have to start again at zero. There needs to be proper good practice, which might perhaps benefit from the guidance that we might hear about in relation to this Bill. It would be good to hear from the Minister that there is continued support for that unit and for the resources; it has not been up to full strength for some time—I think it is pretty much up to a full strength of about three—but it certainly punches above its weight.

I also want to draw attention to the excellent cultural protection fund, which is in its early stages and has £30 million. I know that the Minister is competitive, and recognises that if we are in competition with France on the ratification of the protocols, we need to get there first, but there is also an issue of money, because François Hollande has announced $100 million as part of the global endeavour to protect cultural heritage. I ask the Minister whether there is support for the global endeavours. The second protocol provides for a voluntary fund for cultural heritage; I understand that that is distinct from our cultural protection fund. Nevertheless, there is an indication, and I hope an intention, that there will be a contribution to UNESCO. It takes its hits and criticisms but, particularly in this regard, we must recognise UNESCO’s pre-eminence and the support for it. I hope that there will be a mechanism that allows for support, particularly from ill-gotten gains, through the recycling of money into the fund. When these crimes are prosecuted, the proceeds could go into a global pot.

--- Later in debate ---

[Kevin Brennan (Cardiff West) (Lab)]

I beg to move, That the clause be read a Second time.

Having made remarkable progress during the day, we have reached our final debate on the Bill and amendments to it. New clause 2, which stands in my name and that of my hon. Friend the Member for Tooting, calls on the Government to set out what its priorities will be in the event that a third protocol to the convention becomes the subject of international discussion. Inevitably, this Bill does look back as we are ratifying The Hague convention of 1954, but as the first two protocols show there certainly is an appetite to ensure that the convention remains up to date, relevant and effective.

One could make many suggestions regarding what a third protocol could specify. During our discussions, two specific questions have been raised repeatedly and would benefit from being marked as UK priorities in the report proposed in the new clause. They are, first, the application of the convention to cultural property in digital form, and secondly, the applicability of the convention to conflicts such as the one in Syria. These are both areas where the age of the convention has started to show and which could be updated in a third protocol.

On Second Reading, I raised a question that many across the House have also asked about how the ratification of the convention would apply to conflicts such as those in Syria and Iraq. The Minister kindly circulated a note—actually, I think it was the Secretary of State rather than the Minister—using Syria as a case study and outlining how the convention and its protocols relate to conflicts not of an international character. I appreciate that, as it helped to clarify a few issues. I welcome the assurance that a UK national involved in the destruction of cultural property in a country that has signed the convention would be criminally liable. That is very important, not least in the light of recent developments. To be absolutely clear—I think we rehearsed this somewhat earlier on—I believe the Secretary of State’s note means the convention does apply during a civil war. The Minister also said earlier that it would apply to both parties in a civil war, even when one of them is not a recognised state. Clarity on that is important.

Ideally, we would need a ministerial note or clarification to explain whether or not and to what extent the convention applies to a certain type of conflict. A third protocol would be an opportunity to aim for a more standardised safeguarding strategy for cultural property worldwide where it is involved in any kind of armed conflict. I think this idea has some cross-party support. The hon. Member for Enfield, Southgate asked in Hansard in column 698—I am trying to remember whether it was on Second Reading or whether it was a question—

[Mr Burrowes]

I cannot remember the column, but it was on Second Reading.

[Kevin Brennan]

It was. The hon. Gentleman asked:

“are the Government supportive of looking at future conventions to try to make sure that Daesh comes within the provisions, although the Iraqi and Syrian sanction orders cover the gap?”—[Official Report, 31 October 2016; Vol. 616, c. 698.]

That is a very good question. A third protocol could offer an opportunity to streamline the law. Instead of plugging the gaps with new legislation, there could be a consistent and indubitable catch-all that would assure the necessary protections for the property most valuable to nations and their identities.

The destruction of cultural property in the middle east has been mentioned many times as one of the motivations for the passage of this Bill, yet the Bill does not apply to so many of those situations. In the light of the work carried out involving the cultural protection fund in that same region, it seems that protecting artefacts in Syria and its surroundings is a priority for us all. The Government acknowledge that too. A report would not only provide a platform to express that, but it could kick-start action to bolster protections and provisions where they are currently most needed.

I and my hon. Friends have highlighted the matter of digital content falling within the definition of cultural property. The Government indicated there should be a certain level of consistency with regard to an internationally accepted interpretation of what cultural property means. They said at the same time that amending the Bill to specifically include digital content could jeopardise that consistency. It seems to me that formalising an internationally accepted interpretation of cultural property that includes things such as digital content would be a crucial component of a third protocol, bringing the legislation firmly into the digital age.

The more consistency there is in both the wording and the interpretation of our international laws, the greater the chance of holding those who violate them to account. Our support of current and developing technologies should be unambiguous and undeniable. Given the importance of our national and regional film archives and that of the precious cultural property currently being created, I hope the Government agree that the protection of digital property should be championed by the UK on the international stage.

We cannot as a country unilaterally decide on the priorities and the announcement of any third protocol to the 1954 convention, but a report on the topics the UK would like to focus on allows for a productive and constructive dialogue on key issues, potentially putting such a protocol on the agenda of the international community. It would also provide the UK with an opportunity to demonstrate its desire both for international co-operation and to show leadership in this area, which I think we should be doing.

Internationally, the UK is in a position in which we are choosing to leave the European Union rather than, as some of us would have hoped, to be a leading player. With the sorts of turmoil we see going on in the world, including on the other side of the Atlantic, this would indicate that the UK can and will continue to work productively and co-operatively with other nations. We may be late in ratifying the convention, after 62 years, but we can show that this is not due to a lack of commitment to its ideals and ambitions.

Does the Minister agree that the two topics we have just discussed, and perhaps others, would be among UK priorities for a third protocol? What other topics might she consider? Do the Government have any plans to work towards developing a third protocol?