Cultural Property (Armed Conflicts) Bill [Lords]

John Whittingdale Excerpts

2nd reading: House of Commons & Programme motion: House of Commons
Monday 31st October 2016 Commons Chamber

[Mr John Whittingdale (Maldon) (Con)]

I am delighted to welcome the Bill’s Second Reading. As has been pointed out, this is a Bill we have welcomed in the past; indeed, I chaired the Select Committee that considered the draft Bill in 2008, when we subjected it to pre-legislative scrutiny. At the time, we very much welcomed the Government’s intention to introduce it. We pointed out that then it was 55 years since the adoption of The Hague convention and that 118 countries had already signed it. Another eight years have passed since then, and I am proud that the Bill should finally go on to the statute book under a Conservative Government in their second Session in office.

When we took evidence, it was pointed out to us that there had been some examples of damage to heritage assets during the course of the Iraq war, particularly some in the city of Babel, that may have been caused by coalition forces. Although that was obviously not deliberate, it highlighted the importance of stressing the need to protect cultural assets.

[Chris Bryant]

I have a specific question on cluster munitions. The right hon. Gentleman just used the words “not deliberate” in reference to the fact that often some cultural objects are destroyed in war. Cluster munitions can be so indiscriminate and they spread across a wide area, and so their use is one reason why cultural objects are often destroyed. Is it not incumbent on us now as a country, having given up cluster munitions ourselves, to try to persuade all our allies to do the same?

[Mr Whittingdale]

I sympathise with the hon. Gentleman’s point. All signatories to the convention should certainly do their utmost to prevent damage to cultural assets and assets that have been identified as culturally important. I would therefore expect our allies who are signatories to adopt that approach as much as we do.

As has already been raised, however, there is a huge gulf between what may have happened as a result of actions by forces in the Iraq war and what we have seen being carried out by Daesh in Syria in recent years, in Palmyra in particular but in other places as well. The first priority has to be the humanitarian crisis and preventing loss of life, but the destruction of cultural assets is hugely damaging. As has been said, they are part of the history and national identity of a people. They are also, potentially, part of their salvation, for when conflict comes to an end cultural assets can represent economic assets from which one can rebuild an economy by attracting people to visit.

Cultural assets are also part of the world’s heritage, and we all have a duty to do our utmost to safeguard that heritage. For that reason, I was delighted when the Government established the cultural protection fund, worth £30 million, and I pay tribute to my right hon. Friend the Member for Tatton (Mr Osborne), Chancellor of the Exchequer when the fund was established, and the Education Secretary, who was then Secretary of State for International Development, for their part in agreeing to that, as a large part of the fund can be classified as international aid. I also pay tribute to Neil MacGregor—he has already been mentioned—who was the driving force for the establishment of the fund. He and I launched it together, and, as the director of the British Museum at the time, he took responsibility for the first phase, a £3 million fund administered by the British Museum to send archaeologists into Iraq to advise and help in restoration where damage had taken place.

I was also immensely privileged to meet Dr Maamoun Abdulkarim, who is director-general of antiquities in Syria. He was the boss of Khaled al-Asaad, whom the hon. Member for Cardiff West (Kevin Brennan) mentioned. Dr Abdulkarim described the courage shown by his colleague, who did not wish to divulge where very valuable artefacts had been concealed and as a result was beheaded by Daesh.

The question of whether Daesh comes under the definition of occupying forces has already been raised. Even if it did, one has to admit that it seems unlikely that the passage of an Act will prevent it from carrying out such horrific atrocities. But it will send a very important signal. It will also have an effect on our own forces.

[Tom Tugendhat]

My right hon. Friend makes a good point. Although I appreciate his point that the Bill is unlikely to dissuade Daesh from its actions, it may affect its ability to support itself financially, because one of the ways in which it currently fills its coffers is by selling looted artefacts.

[Mr Whittingdale]

My hon. Friend makes an extremely good point. Most of the attention has been on wilful destruction, but he is absolutely right that the trade provides finance to Daesh. We must do everything we can to stamp that out, which is why I support the principle that it should be unlawful to deal in illegally exported cultural property.

I pay tribute to the efforts already made by the Ministry of Defence and commanders in the field to abide by the terms of the convention, even when it was not ratified. When the Committee took evidence from the MOD, it said it would review and strengthen the commitment it had already given that training should take account of the absolute priority of abiding by the requirements of the convention.

The Committee heard concern about one aspect of the Bill: the offence of dealing in unlawfully exported cultural property. The first concern was about the definition of occupied territories. At the time, we were told that it was a very narrow definition, or that only a narrow group of countries or territories could be considered to be occupied. In 2008, the regulatory impact assessment identified the Golan heights, East Jerusalem and the west bank. Unfortunately since that time, the list of occupied countries has grown—I draw attention to Crimea. For the purposes of certainty for those dealing in cultural objects, it would help if we clarified exactly which territories we consider to be occupied.

The more serious concern related to clause 17, which makes it an offence

“to deal in unlawfully exported cultural property, knowing or having reason to suspect that it has been unlawfully exported.”

As has been pointed out by the legal advisers, there is a huge difference between “having reason to suspect” and “to suspect”, which is causing concern. If the definition of the offence covers “reason to suspect”, it gets into mens rea, as I understand lawyers call it. I will leave it to my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) to say more on that subject with considerably greater expertise.

The issue was flagged up for the Committee when we looked at the Bill eight years ago, which is why we suggested a clearer requirement of dishonesty. That is what currently applies in the Theft Act 1968, which carries a penalty of seven years, and in the Dealing in Cultural Objects (Offences) Act 2003, which also carries a penalty of seven years. The Bill introduces a penalty of seven years, and therefore it seems reasonable to ask that the same threshold should be required. I am delighted to hear from the Secretary of State that she is aware of that concern and will have further discussions.

[Kevin Brennan]

The right hon. Gentleman makes an important point. Is he aware how many people have been convicted under the 2003 Act? My understanding is that the number is very low, and perhaps even zero.

[Mr Whittingdale]

That point was made by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) earlier. The fact that there have been no convictions does not necessarily imply that the Act is not working—it is important to have it on the statute book. I do not believe that this country is full of dodgy art dealers who wilfully ignore the law and deal in plainly illegally exported objects.

[Sir Edward Garnier (Harborough) (Con)]

Nor should we go around lowering the threshold in order to scoop up innocent people.

[Mr Whittingdale]

My right hon. and learned Friend makes a perfectly valid point and I agree with him. The art market is determined and supports the Bill. The last thing it wants is for this country to become a place where people can deal in unlawfully exported objects. It is worth bearing in mind that the market is hugely competitive and the third biggest in the world—it was worth something like £9 billion in sales in 2014. I would not like to see it inadvertently put at a disadvantage compared with other markets around the globe. I hope the Government bear that in mind. As I have said, I very much welcome their commitment.

[Dr Matthew Offord (Hendon) (Con)]

Will my right hon. Friend give way?

[Mr Whittingdale]

If my hon. Friend will forgive me, I have finished my speech.

--- Later in debate ---

[Sir Edward Garnier (Harborough) (Con)]

I am delighted to follow my hon. Friend the Member for Somerton and Frome (David Warburton) but, with all due respect, if there are two speeches to which the Government should pay particular attention, they are those of my right hon. Friend the Member for Maldon (Mr Whittingdale) and my hon. Friend the Member for Newark (Robert Jenrick). Despite the excellence of the other speeches from both sides of the House, they are the two that really hit the problems on the head.

The Bill is welcome and I wholeheartedly support it, subject to one or two concerns that I shall touch on briefly. The first relates to the definition of cultural property, as mentioned by several hon. and right hon. Members. My right hon. Friend the Secretary of State for Culture, Media and Sport also touched on the topic in her opening remarks. The definition in the Bill lacks sufficient clarity. I accept that the Bill refers us to article 1 of The Hague convention for the protection of cultural property in the event of armed conflict but, taking the example of the shadow Minister, the hon. Member for Cardiff West (Kevin Brennan), film and so on were I suspect not considered when the convention was drawn up in the early 1950s. New forms of heritage—if that is not a contradiction in terms—have emerged since then, and the Government need to give the definition of cultural property a little more thought. That is not an aggressive point; I simply want to point out something that it would be sensible for the Government to look into.

The other area that also needs more thought is the absence of any definition of an occupied territory. My right hon. Friend the Member for Maldon mentioned that when he was Chairman of the Culture, Media and Sport Committee, the west bank, the Golan heights and perhaps another place—

[Mr Whittingdale]

East Jerusalem.

[Sir Edward Garnier]

East Jerusalem—they were designated as occupied territories. However, the world has moved on and, as my right hon. Friend correctly pointed out, there are now other parts of the world that could, either as a matter of fact or as a matter of law, be considered occupied territories. The Government must be more open, or at least clearer, about the definition of an occupied territory.

There is, however, perhaps an even more important matter that needs resolving, which involves the level of criminal intent for the offences described in clause 17. In framing my remarks, I am grateful for the help I have had from the British Art Market Federation, the British Antique Dealers’ Association, Mr Hugo Keith QC, and Professor Janet Ulph of the University of Leicester school of law. I stress, however, that what I shall say is my interpretation. If I have got things wrong, that is my fault and not the fault of those who valiantly tried to explain the matter to me. You will be glad to hear, Mr Speaker, that I cannot for reasons of time go into the detailed legal analysis undertaken by them, but I sent the Secretary of State a copy of Mr Keith’s opinion, which carefully explains why the use of “reason to suspect” in the context of this Bill is unwise and unfair.

Clause 17(1) makes it an offence to

“deal in unlawfully exported cultural property”

that the dealer knows or has

“reason to suspect… has been unlawfully exported.”

So far, so good. No one can support the dealing in unlawfully exported cultural property when they know it has been unlawfully exported, but the mens rea—criminal intent—required under the provision has caused concern in the London art market. The worry is that “reason to suspect” will place an unacceptable and stifling burden on the market. That aspect of the Bill was touched on only briefly in the other place but was not taken up by the Government.

Clause 17 creates an offence of dishonesty, carrying with it a sentence of imprisonment of up to seven years, as well as the destruction of reputation. The problem that worries me arises from the provision that relates to the state of mind, which must be proved before the defendant can be convicted. Dealing in prohibited property knowing that it has been unlawfully exported, the first offence created by clause 17, is simple, easily described, uncontroversial and comes within well-established and clearly understood principles of criminal law. Dealing in such prohibited property believing that it has been unlawfully exported would also be an equally straightforward offence. “Knowledge” or “belief” identify the mens rea, or criminal state of mind, accompanying the prohibited activity. To establish guilt, the prosecution would have to prove that at the time when the prohibited activity took place the defendant knew or believed that he was dealing in prohibited property.

That, however, is not what the second offence created by clause 17 provides. Rather, it defines the criminal activity—dealing in prohibited property—but by relating the criminal state of mind required for the offence to “suspicion” it introduces an unusual concept into the ordinary law that applies to offences of dishonesty. Indeed, it does not even provide that the offence is proved if the defendant personally suspected that he was dealing in prohibited property.