Cultural Property (Armed Conflicts) Bill [Lords]

Debate between John Whittingdale and Lord Garnier

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

[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.

--- 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.