Cultural Property (Armed Conflicts) Bill [Lords]

Lord Garnier Excerpts

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.

[Victoria Prentis (Banbury) (Con)]

Can my right hon. and learned Friend think of any other examples of mens rea of this type that are in use?

[Sir Edward Garnier]

One often sees the type currently drafted into clause 17 when a defendant has to rebut a presumption—the possession of certain items in sexual offences or drugs offences. It is also to be found under certain rarely used disclosure offences, such as under section 119 of the Companies Act 2006—something that we speak about so frequently in the clubs and bars of Market Harborough. As regards the substantive criminal law and the making of a substantive criminal offence, my hon. Friend is right to say that this is a rare and wholly unusual distinction, and I quietly urge the Government to think again.

As drafted, this provision abandons the principle that it is the defendant’s state of mind that must be “criminal”, whether defined in terms of belief or even suspicion, for an objective test: whether he had reason to suspect. What may arise from an offence defined in that way can be quickly described. The defendant may be offered property which, because of the circumstances, he may have reason to suspect may be prohibited. Just because he wishes to proceed with caution, and to avoid committing a criminal offence, after sensible inquiry and investigation he may in good faith decide that his suspicions have been allayed and proceed to deal in the property. For a defendant acting in good faith to be convicted of an offence of dishonesty is a novel proposition. It may be suggested that the offence is not intending to apply to such an individual, but only to the individual who, notwithstanding any investigations he may make, turns a blind eye to reasonable grounds for suspicion, but that is not what the clause says. The offence can and should be defined in terms of the defendant’s belief or suspicion, and currently it is not.

Surely the question to ask is whether the defendant did or did not believe, or did or did not suspect. The more powerful the evidence that he had reason to suspect, the more likely it is that the jury would conclude that he did indeed believe or suspect, and that the offence is proved. In short, where the defendant did indeed have “reason to suspect”, that would provide the evidence to establish that he did indeed believe or suspect that he was dealing in prohibited property. That however goes to the evidence available to prove guilt; it should not define the offence.

It would be unusual for an offence of dishonesty to be created that did not focus on the defendant’s personal state of mind. It would also be unusual to create two offences in a single provision which make provision for separate and distinctive forms of criminal intent: knowledge, which is entirely subjective; and reason to suspect, which is not. Any summing up in an indictment which alleges the two offences as alternatives would not be straightforward. Worse still, it would be unwise, and it would make for significant complexity in any trial for two statutes with the same objective—the protection of the cultural heritage of every nation—not to define criminal intent in exactly the same way.

Section 1 of the Dealing in Cultural Objects (Offences) Act 2003 states—

[Mr Speaker]

Order. I do apologise to the right hon. and learned Gentleman, but when he leant down like that, I thought it was because he was approaching his peroration. That may have been a triumph of optimism over experience.

[Tim Loughton]

Ungallant.

[Sir Edward Garnier]

Ms Bell, I think, has spoken on my behalf. I was just advising you, Mr Speaker, about section 1 of the 2003 Act, which I know you want to hear about.

[Mr Speaker]

Indeed.

[Sir Edward Garnier]

At least I am right about that. [Laughter.] It states:

“A person is guilty of an offence if he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted.”

This Bill says that it is

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

For the reasons that I have been briefly explaining, I suspect that the 2003 Act provides the better wording. The provision in this Bill is not following well-established principles relating to the prosecution of offences of dishonesty. I am concerned that the Bill, which is concerned with the same issues, fails properly to take into account that set of principles. As drafted, it may result in the prosecution and conviction for an offence of dishonesty of a defendant who has, or may have, acted in good faith.

It is one thing for a defendant to be convicted of handling stolen goods where they have been shown to have known or believed the goods were stolen—the law is clear and the defendant knows when he is convicted that the jury was sure he knew or believed the goods were stolen—but under this Bill, as currently framed, a convicted defendant cannot be sure that his conviction reflects his actual state of knowledge or belief and that he was not convicted simply for lacking curiosity. Absence of curiosity may be regrettable and sometimes stupid or negligent, but it should not lead to a conviction, with all the reputational damage that flows from it.

Beyond that, I urge the Government to consider what effect this provision will have on the art market here in London. As was said by my hon. Friend the Member for Newark, who speaks with the advantage of being not only a lawyer, but a former director of Christie’s, this will have a stifling effect. It may be that there will not be many convictions or many arrests, but the mere threat of the reputational damage caused by this possibility is enough to put the mockers on this valuable and entirely legitimate aspect of the London art market. The art market will go elsewhere and the crooks will get away with it. If we want to catch the bad boys, and if we want to inhibit this wrong and immoral market, why not stick to the 2003 wording or something similar to it, rather than allowing this Bill to contain an error of principle which could confound the interests of all of us who wish to see the destruction and the dealing in cultural objects that have been stolen brought to an end?

[Tim Loughton (East Worthing and Shoreham) (Con)]

I am delighted to follow my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier), peroration and all. I declare an interest, as the chairman of the all-party groups on archaeology and on the British Museum, and as a fellow of the Society of Antiquaries.

As we have all agreed, the Bill has been a long time coming—it is 62 years old. As I glance around the room, I hazard a guess that that makes it older than anybody in the Chamber, now that my right hon. Friend the Member for Mid Sussex (Sir Nicholas Soames) has left.

[Sir Edward Garnier]

rose—

[Tim Loughton]

I am delighted to be put right by my right hon. and learned Friend, although we would never know it, Mr Speaker.

I also pay tribute to what is left of the Labour Opposition and the remarkable dexterity of the hon. Member for Cardiff West (Kevin Brennan) who, in a debate on cultural artefacts, managed to mention Keats, Uber taxi drivers, the temple of Bel and an attack on private education. He certainly gave us his money’s worth, even if he does not have many mates with him to support this excellent Bill.

I very much welcome the Bill. We know that the original protocol and convention were passed in 1954, largely as a reaction to the destruction of cultural artefacts of the second world war. We know that the second protocol, which came about in 1999, mostly followed in the wake of great destruction in the former republic of Yugoslavia. We recall the familiar scenes at the UNESCO world heritage sites such as the Mostar bridge, which really brought home the futility of war and the destruction of our culture, which we just do not get back. That protocol recognised that the desecration of cultural property could become a war crime and identified the blue shield scheme, which many Members have referred to. It also set up an international non-governmental organisation advisory body to the intergovernmental committee for the convention. There were therefore great hopes in 1999 that we might follow suit. We have made reference to the heritage Minister Andrew McIntosh, who brought forward in 2004 a commitment to ratify the convention. That led to a Bill in 2008, which was scrutinised by the Select Committee, led by my right hon. Friend the Member for Maldon (Mr Whittingdale). The Bill was supported by the Ministry of Defence and the whole heritage sector, but the excuse given for what happened was that it became overshadowed by the financial crisis and ran out of parliamentary time. Then in 2011, my right hon. Friend the Member for Wantage (Mr Vaizey), as a Minister, reconfirmed the Government’s commitment to ratification at the “earliest possible opportunity”.

In 2014, there was another great body blow when the Cabinet Committee said that it had not been able to grant drafting authority for a Bill—not even a handout Bill. The commitment of successive Governments was in question when their warm words were not followed up by definitive action. At long last, that earliest possible opportunity has arrived. I particularly pay tribute to my right hon. Friend the Member for Maldon—he is not in his place at the moment—whose personal commitment to this matter and lobbying of the powers that be at No. 10 has made this Bill a reality.

The announcement in last year’s autumn statement of the £30 million cultural protection fund together with a summit of heritage experts really gave flesh to that commitment. The legislative wheels grind frustratingly slowly, and, as with the second protocol, it has taken the cultural cleansing atrocities in Syria and Iraq to concentrate the minds of those in a position to bring forward this ratification today.

I do not want to be churlish, because I really welcome the Bill and the commitment behind it. I absolutely praise all those who have played an integral part in this. Many of them have been mentioned today. I am talking about Sir Neil MacGregor, the former outstanding director of the British Museum, and my hon. Friend the Member for Newark (Robert Jenrick) who, in his relatively short time in this House, has made a big impact in this area. It is really important now that we get on with it. We need to gain the moral high ground and become the only one of the five permanent UN Security Council member countries to ratify both the protocols and the convention.

Why is this important? At a time when we are seeing horrific scenes of women, children and men being bombed, murdered and executed in the most grotesque fashion by Daesh in the tragic conflicts in both Syria and Yemen, why should we be concerned about a bunch of old rocks and relics? My hon. Friend the Member for Newark described just a couple of examples. Let me mention Professor Assad, the director of antiquities at Palmyra, which I was privileged enough to visit just before the civil war in Syria—it is the most magical archaeological site imaginable, and I speak as someone who studied Mesopotamian archaeology and who has visited many sites—and the guards at Nineveh. These people gave their lives because they appreciated and understood the importance of protecting culture as the spirit of a nation, and that it makes mankind what it is and is what separates mankind from savages. As the Heritage Alliance put it:

“The destruction of cultural capital is a powerful propaganda tool and is part of a long history of demoralising communities by destroying the symbols of their nationhood.”

As Irina Bokova, the director general of UNESCO, said, this is “cultural cleansing”, and we must view it as such and in the same terms as trafficking.

Cultural Property (Armed Conflicts) Bill [Lords]

Lord Garnier Excerpts

3rd reading: House of Commons
Monday 20th February 2017 Commons Chamber

[Kevin Brennan]

I do not think that is a question for me to answer. It is one for the Minister to answer in her response. As for his comments about those on the Benches behind, I always prefer these odds when debating in the House of Commons.

What assessment has been made of whether this matter constitutes a risk or a loophole? In Committee, the Minister mentioned that when a foreign national is embedded,

“a bespoke status of forces agreement or memorandum of understanding is drawn up that sets out responsibility for the individual involved.”—[Official Report, Cultural Property (Armed Conflicts) Public Bill Committee, 15 November 2016; c. 14.]

Is responsibility for protecting cultural property a part of that understanding? If it is not, will it be following the passage of the Bill?

As the House knows, the UK armed forces already abide by the terms of the convention. I very much welcome that, and I want to take this opportunity to pay tribute to their work and their outstanding contribution. I hope the Minister will be able to reassure the House that although the armed forces are a complex organisation, the application of the Bill will be consistent for everybody who serves in them.

The other amendments in this group were tabled by Government Members. We had fairly extensive discussions in Committee on the impact of the Bill on the arts market so I do not propose to say anything further on that matter.

[Sir Edward Garnier (Harborough) (Con)]

I am very sympathetic to the shadow Minister, the hon. Member for Cardiff West (Kevin Brennan). He has ploughed a lonely furrow with great elegance and humour. At least he can claim to have 100% support from the representatives of the Labour party today. I am not entirely sure that I can, but I will have a go and see whether I can tempt the House towards supporting my amendments—amendments 1, 2 and 3. I am very happy to say that they were co-signed by my hon. Friends the Members for Kensington (Victoria Borwick) and for North West Norfolk (Sir Henry Bellingham). Like the shadow Minister, although we are few in number we are very high in quality.

[Tim Loughton]

And modesty.

[Sir Edward Garnier]

Modesty is not a word I have ever heard of. It may be, to refer to the Dealing in Cultural Objects (Offences) Act 2003, a cultural object, but clearly one that is far too expensive for me to have ever clapped eyes on.

If I may, I would like to tease out from the Government further information on, and their thoughts about, their policy in relation to clause 17, which sets up the offence of dealing in unlawfully exported cultural property. I should say by way of introduction—if, three minutes into my speech, I am entitled to call these words an introduction—that it strikes me that the Bill is, by and large, entirely uncontroversial, deeply unexciting and about 50 years too late. That said, if we are to introduce uncontroversial Bills 50 years too late, we might as well get the law right. It strikes me that clause 17 contains a self-evident defect, which I dealt with on Second Reading on 31 October 2016. If I may, I would like briefly to rehearse those arguments for the following reasons.

I convinced myself—I remain convinced and have yet to be persuaded otherwise by the Government—that the second element of the criminal intent provision in clause 17, which I criticised, is legally incoherent. Beyond that, I have yet to be persuaded by the Secretary of State and the Minister of either the content or quality of the counterpoints they made in response to the concerns identified in my three amendments. We have had a number of meetings, both one-on-one and collectively —possibly with my hon. Friend the Member for Kensington, but certainly with other representatives of the art market—and I think it is fair to say that our concerns about the wording “having reason to suspect” in clause 17 have not been answered satisfactorily.

There has been some assertion: “This wording is better,” say the Government. There has been further assertion that the wording that I prefer, which comes from the Dealing in Cultural Objects (Offences) Act 2003, has failed to lead to the prosecution of any people guilty or suspected of being guilty of offences under that Act and that therefore the level of criminal intent needs to be lowered.

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

I apologise for missing the start of my right hon. and learned Friend’s speech—

[Sir Edward Garnier]

That was the best bit.

[Mr Burrowes]

My right hon. and learned Friend does himself an injustice: repetition can be a good thing, if he is right, but it might not be such a good thing if the point is overstated. I refer him to the Iraq (United Nations Sanctions) Order 2003, as well as the EU Council regulation on Syrian cultural property, where the wording is:

“had no reason to suppose”.

That is similar to the wording in the Bill, and I understand that there has been no grave injustice served on those law-abiding, prudent antique dealers who have been observing those provisions.

[Sir Edward Garnier]

My hon. Friend anticipates me: that was the fourth point I was going to make in due course. The difficulty in his making that point—I am grateful that, either through his own research or thanks to assistance from other hon. Friends, he has been able to make it to me—is that those are statutory instruments, which were never debated on the Floor of the House. I am not even sure they were debated in Committee. The whole point about passing criminal legislation that could lead to an individual being sentenced to seven years’ imprisonment or, if a company, to an unlimited fine is that we ought to pass good law. We ought to debate it and we ought to allow an idea to be tested, sometimes to destruction. The Afghanistan and Iraq orders that my hon. Friend talks about have not been tested in this place. The 2003 Act was tested in this place and this Bill is being tested in this place, and if the Government do not enjoy that, well I am sorry for them.

[Mr Burrowes]

My right hon. and learned Friend is dealing with his fourth point, but I wonder whether one of his subsequent points deals with international best practice in relation to United Nations resolutions, including paragraph 7 of Security Council resolution 1483 of 22 May 2003 or Security Council resolution 2199 of 2015, which focus on the same provision of “reasonable suspicion” that is in the Bill, which are obviously binding on all UN members and which are also part of the international legal architecture of our accession to The Hague convention.

[Sir Edward Garnier]

I am sure that my hon. Friend will have plenty of opportunity in the next two or three hours to make his own speech, but I am always very happy to take his interventions. If, however, he looks at The Hague convention—which is being brought into our criminal law by this Bill—he will see that there is no rubric or form of words that are required by that convention to be imported into our criminal law. If we are to base our criminal law on a form of precedent, I would look to the most recent statute, which is the 2003 Act, rather than two undebated and, I think, time-limited statutory instruments. But anyhow, my hon. Friend will no doubt have an opportunity over the next few hours to develop the points that he has thought a great deal about.

I have yet to be persuaded that the Government’s counter-arguments, which I rudely describe as mere assertions, deal with the points that I made on Second Reading. I will not repeat what I said on Second Reading—I know that the hon. Member for Cardiff West, speaking from the Opposition Front Bench, has carefully read what I said on 31 October and recited it every week at the Labour party parliamentary meetings, which is why Labour Members have not attended this afternoon—but I make a serious point: the content of clause 17 sets up two systems, which is to say, actual knowledge, which is fair enough, and “reason to suspect”, which in my view is not fair enough and could lead to the conviction of people for lacking curiosity or being careless, rather than for having the requisite criminal knowledge.

During the meetings, as I say, the Government undertook to find out from the Crown Prosecution Service how many cases had been dropped or not pursued by virtue of what was described as the high level of criminal intent required under the 2003 Act. As I understand it—the Minister will correct me if I am wrong—there is no information to support that assertion. That argument, it seems to me, falls away.

To persuade me and those who think like me who come from the art market rather than from Parliament that this is a perfectly acceptable way to design this clause, it has been said, “Don’t worry; we will produce some guidance to the CPS, or the CPS itself will produce some guidance, which will inform the decisions of the police or prosecutors about whether to prosecute under the ‘reason to suspect’ arm of clause 17.” Of course, we have not seen that guidance, and we do not know where it is or what it will say; neither do we know what its legal effect will be.

I repeat that we are here creating an offence that could lead to somebody being sent to prison for seven years. Now if I am about to be sent to prison for seven years, I would rather like to know why. If I am to be prosecuted—even if I am later acquitted—I would again like to have some clearer information about the basis on which I am to be prosecuted.

I would hope, too, that all of us in the Chamber would like to keep an eye on the public expenditure implications of running prosecutions. We all know that the court system is overloaded; we all know that bringing prosecutions is expensive and has to be paid for by the taxpayer. If we are asked to introduce into our criminal law wording that foments uncertainty and a sense of unfairness, we should all be a little more careful before permitting such wording to go ahead.

As I said a few moments ago, I shall not repeat everything I said on 31 October, because it is there on the record for everyone to see. Let me finish, however, with this plea. If the Government are not persuaded to get the law right, simply because so few people are interested in this subject, and they know that they can whip the Government party to come in here and vote for whatever it is they want, I say fair enough in that I accept the arithmetic of our legislative democracy. It would be foolish of me to think that by standing up and speaking on a Monday afternoon I could persuade others to defeat the Government.

I am not going to press my amendments to the vote. I do not know whether my hon. Friends the Members for Kensington and for North West Norfolk have other plans, but for my part, I shall not urge them to press these amendments. What I do urge, however, is that the Government at least condescend to tell us what on earth they are on about. So far, we have not had any genuine information or any genuine evidence or any thoughtful response to the concerns that I have expressed. As I said on the previous occasion, these are not just my concerns; they are shared by many who have worked for many years in the art market and have practical experience of the difficulties caused by woolly wording.

My arguments have also been assisted by and based on what has been said by people who have far greater legal expertise than I have. I listed their names on Second Reading. They include a former Lord Chief Justice, a professor of law at Leicester University, a highly respected Queen’s Counsel who specialises in criminal law, and many others who—while approving of the policy behind the Bill and the inclusion of this ancient convention—fear that we are setting off on a wrong track that may lead to injustice. I know that my hon. Friend the Minister hates injustice of all sorts, and I suspect that, when she finds it in a Bill of which she has the conduct, she will probably want to do something to correct it.

--- Later in debate ---

[Victoria Borwick]

Of course we all hope that is the case, but that is why we all in this House, jointly I believe, are seeking clarification: we do not want unsubstantiated allegations that something was illegally removed from an occupied territory, or a request for something that was legally exported. The allegation might be totally groundless when something is just about to be sold or exhibited, but the seller, genuinely believing that the item had not been illegally exported, would fear that the allegation could be deemed “a reason to suspect”, and that could lead to the item then being withdrawn from sale. The time-dependent opportunity to sell it would be lost and the very act of withdrawal could well then damage the artwork’s future saleability. The mere making of an unfounded allegation that an item was unlawfully exported from a potentially occupied territory after 1954 may place in the mind of a potential dealer or auctioneer a reason to suspect that it has been unlawfully exported, and although that might not later turn out to be the case, he will not go near it because it has been tainted.

I give as an example an old master picture that has changed hands on the legitimate open market in Europe in the past few years. It is sent to London for sale by auction. Due diligence is carried out and its known provenance is investigated, as is its sale history, and checks are made that the item has not been stolen. The picture is then included in an auction catalogue which is published several days before a sale. An allegation is then made that it was removed from an occupied eastern European country in the 1960s. Time is necessarily short to investigate whether that is true. Attempts to resolve the matter beyond doubt before the auction do not succeed, and even though it may well prove groundless, the allegation itself represents a reason for suspicion under the terms of the Bill as currently drafted. Not wishing to run the risk of prosecution, the auction house has no alternative but to withdraw the picture from the auction, to the disadvantage of its owner who, at best, will have to wait for another auction and, at worst, will face financial loss, as marketing it for a second time could adversely affect its value. The rarer and more valuable a picture or piece of art it is, the greater is the risk that a successful sale will be prejudiced by its withdrawal from an auction. In time, the allegation could well prove groundless, but the damage will have been done.

I recall the Secretary of State saying on the Floor of the House on 31 October that

“It is important that we are clear that the Bill will not hamper the way in which the art market operates.”—[Official Report, 31 October 2016; Vol. 616, c. 700.]

The closest existing legislation to the current Bill is the Dealing in Cultural Objects (Offences) Act 2003, to which my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) referred earlier. It is concerned with illegally removed archaeological material and objects that have been taken illegally from monuments or historical structures. However, unlike the Bill—in which the types of cultural property covered are extensive and could even include cultural property in people’s family collections—the 2003 Act does not cover works of purely artistic interest. The Act states:

“A person is guilty of an offence if he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted.”

[Sir Edward Garnier]

My hon. Friend refers to the 2003 Act. She and I will recall that the genesis of the Act was the ministerial advisory panel’s report on illicit trade, which was published in 2000. The report suggested that the gap in the Theft Act 1968 should be filled by what became the 2003 Act and by the “knowing or believing” test for mens rea. Is it not a pity that the Government do not seem to remember that, and that they seem to be moving down a different route?

[Victoria Borwick]

I thank my right hon. and learned Friend for giving us the benefit of his experience, which I hope will prompt the Government to reconsider.

As the British Art Market Federation and others have stated, the existing statutes mean that a dealer acting with honest intent and conducting reasonable due diligence is highly unlikely to run the risk of prosecution, unless it can be shown that they have wilfully acted dishonestly. I understand that the Government have cited article 21 of the second protocol of the convention as justification for a lower level of mens rea, but I draw my hon. Friend the Minister’s attention to article 15 of the protocol, which indicates that an offence has occurred if a person intentionally commits an act of theft or misappropriation against cultural property protected under the convention. Surely that suggests that an element of dishonest criminal intent is required by the convention. I seek that assurance. If the Bill were to introduce a lower threshold of mens rea, that would amount to gold-plating, which appears to run counter to Baroness Neville-Rolfe’s assurances in the other place that

“the Government intend to do only what is necessary to meet our obligations under the convention and its protocols.”—[Official Report, House of Lords, 6 June 2016; Vol. 773, c. 586.]

For all those reasons, I am concerned that the words “having reason to suspect” are inappropriate. Terms such as “believing” or even “suspecting” carry greater certainty and clarity. I emphasise that this is a point of law; it does not weaken or water down the Bill. We all understand that the objective is squarely to target those with criminal intent. I ask the Minister to consider these views and those of the art and antiques industry when drawing up the detailed regulations that will ensue from this legislation.

[Mr Burrowes]

It is a pleasure to take part in the later proceedings of this important Bill. I am co-chair of the all-party parliamentary group on cultural heritage; it is excellent to see the Bill on its way and at long last to enable our ratification of The Hague convention, which will be very welcome. Having said that, I very much respect this level of scrutiny and the concerns outlined by my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) and my hon. Friend the Member for Kensington (Victoria Borwick). We also had exchanges on this issue in the Bill Committee. I welcome that because the concern among dealers has been outlined, not least to the all-party parliamentary group.

The British Antique Dealers Association, the British Art Market Federation, the Antiquities Dealers Association and LAPADA all made considered written representations, which need to be fully respected, and I join them in wanting to ensure confidence in the market. The last thing we want to happen is for the Bill in any way to provide uncertainty or ambiguity in the codes of practice and guidance, which are very welcome—they are welcomed not least by the all-party parliamentary group. We want London to be the centre of excellence for dealers’ associations, and we want there to be true confidence in the market.

The all-party parliamentary group has deliberated on some of the scaremongering stories out there. We recognise that the London dealers’ market has a very good record, and we want to ensure continuing confidence in that market. I have due respect for the concerns that have been expressed, and I look forward to further roundtable meetings and the publishing of guidance.

My right hon. and learned Friend the Member for Harborough, a former Law Officer, pleaded for guidance to be published at this stage. As he will know, some of us who scrutinised the Bill in Committee, including the shadow Justice team, are on his side in pleading for such guidance to be published before the end of our proceedings. Sadly, those pleas have been made in vain in some ways. I share his concern that there should be as much transparency as possible.

It is important to recognise that other stakeholders are concerned about amending clause 17. Although the antiquities and antiques dealers’ associations are important and must be listened to, we must also listen to the police. I understand that police representatives have said that they support the Bill as currently drafted. I have an interest as a criminal defence solicitor, and I am not necessarily surprised that the police support the current wording, but it is worth taking account of other interested parties, such as the British Red Cross and the British Museum.

[Sir Edward Garnier]

I was puzzled by the reference to the British Red Cross in a letter from the Minister, so I checked it with the Secretary of State for Culture, Media and Sport, and she, too, was a little puzzled by the reference. I am not sure that the Red Cross has anything whatever to do with this. This is all about preventing the unlawful trade in items unlawfully exported from occupied territory. The Red Cross has lots of things to worry about, but I am not sure its main aim in life is supporting this Bill.

[Mr Burrowes]

I do not often disagree with my right hon. and learned Friend, but the British Red Cross has a great deal of interest because, in many ways, it is the pre-eminent body in dealing with issues of international humanitarian law. What we are doing here is ratifying The Hague convention, in which the Red Cross plays a crucial role.

I quoted Mr Michael Meyer, the head of international law at the British Red Cross, in Committee. If you will forgive me, Mr Deputy Speaker, I will repeat what I quoted because it is of direct relevance:

“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.”

That Act followed New Zealand’s ratification of The Hague convention. What that international lawyer says is relevant because, although I respect the well-made point that this Parliament is considering how the convention is applied domestically through our courts, we are catching up on ratifying The Hague convention and setting ourselves on an equal footing from an international legal standing. I pray that in aid.

I am arguing against myself to some extent here, but I recognise that if we were dealing with a simple issue relating to another dishonesty offence being added to the criminal legal handbook, I would be joining my right hon. and learned Friend in expressing concern about the disparity on mens rea in respect of this offence and the normal panoply of dishonesty offences. However, we are dealing with a unique offence in unique circumstances.

The shadow Minister made a point about the impact assessment and the view that there will be one prosecution. That is relevant because we are talking about an exceptional prosecution in respect of an exceptional piece of property that comes through to the market in this country and how it is then dealt with. We should therefore not overstate the concern, and we need to take into account the confidence of the market. We are dealing with exceptional cases, which need to be dealt with appropriately and carefully. That is why we need to have regard for what is already in place, not least how other cases are dealt with in international practice and how we have applied other relevant legislation.

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That is particularly relevant here, as it is an equivalent provision to the one in clause 17. Interestingly, the provision is more onerous, as it shifts the burden on to the defendant, with the onus on them to prove that they had no reason to suppose that the property had been illegally removed, whereas in clause 17 the onus is on the prosecution to provide the proof. I have not heard concern from the dealers’ association and others about this order and how it goes even further in shifting the onus in respect of people dealing illegally with removed Iraqi cultural property. I am not aware of any case in which an antiquities dealer has been unjustly convicted—or, indeed, even prosecuted or arrested—under that order, even though it goes a lot further than clause 17 in shifting the burden on to the defence.

[Sir Edward Garnier]

Does it follow from what my hon. Friend is saying that he does not know whether any convictions under the statutory instrument have been for the “knowing” or for having “had no reason to suppose”? He does not know either way, does he?

[Mr Burrowes]

What I do know either way is that no antiquities dealer has come forward about being unjustly convicted and there has not been a campaign about such. None seems to have been unjustly convicted under this order—or there has been no evidence that there has been an iniquity in relation to an arrest, prosecution or seizure under the order or, indeed, under the other relevant provision, the European Union Council regulation on Syrian cultural property. That refers to

“Syrian cultural property goods and other goods of archaeological…importance…where there are reasonable grounds to suspect that the goods have been removed from Syria without the consent of their legitimate owner”.

Again, I am not aware of any antiquities dealer having fallen foul of those provisions, with the complaint being that the net is cast too widely.

I concede that, in terms of mens rea, there is a difference between normal dishonesty offences and this particular offence, but in respect of the actual impact of the Bill, I am not aware of a serious problem. Rather, the answer is that, with the appropriate legal advice and the due diligence that one would expect of any decent, law-abiding antiquities dealer, they will be able to chart their way through the legislation.

Another relevant aspect is international practice. We are in the process of ratifying The Hague convention and putting ourselves into line internationally. It is important to refer to paragraph 7 of UN Security Council resolution 1483, which came into being on 22 May 2003 and is obviously binding on all UN member states. It was made in direct response to the looting of cultural institutions in the immediate wake of the invasion of Iraq. All member states signed up to taking

“appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations”.

Paragraph 7 says specifically that that should be done

“by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed”.

Similar wording is used in United Nations resolutions.

That similarity continued in paragraph 17 of UN Security Council resolution 2199, from 12 February 2015. Again, it is binding on UN member states. It was adopted in direct response to the looting of Iraqi and Syrian cultural property in the course of the ongoing armed conflicts in those states. The Security Council reaffirmed its decision and recognised that there was a corresponding obligation for cultural property illegally removed from Syria since 15 March 2011. On the standard of knowledge considered sufficient by the Security Council, of which the UK is of course a permanent member—we want to ensure we are right up there in terms of signing up to ratifying the two protocols—there was the same equivalence in relation to reasonable suspicion.

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My hon. Friend the Member for Kensington raised this issue by using the example of an old master. I know that art market stakeholders are concerned that claims about the provenance of an object that are made in a phone call or published on a blog shortly before a sale could stop that sale proceeding. That might be the case on very rare occasions, but this is already an issue for the art market and it will not be solved by watering down the Bill. If new, convincing evidence is presented about an object’s provenance shortly before an auction, we already expect dealers to pause and consider whether they need to undertake further due diligence. If, however, a claim is made with no evidence to back it up, it may be perfectly legitimate for a dealer to disregard that and proceed with the sale. Such claims are unlikely to be considered a reason to suspect that an object has been unlawfully exported. When unlawfully exported cultural property is imported into the United Kingdom, it is important that we are able to protect it by deterring and, if necessary, prosecuting those who would deal in it.

[Sir Edward Garnier]

The Minister’s point is confusing. She says that the examples she gave do not provide reason to suspect. In fact, they provide reason to suspect, but it might be that that suspicion is not true. That is the distinction that the Government fail to understand.

[Tracey Crouch]

But my point is that this issue already exists in the art market—the Bill does not alter that at all. Art market dealers should be carrying out due diligence in all cases. The hypothetical circumstances and examples that have been given make no difference as to whether such cases are covered by the Bill or by existing legislation. The Government consider that the offence as drafted is the most appropriate way to achieve the protection needed to deter people from unlawfully importing exported cultural property into the UK.

The offence created by clause 17 is consistent with similar offences created by the Iraq and Syria sanctions orders, which use “reason to suppose” and “reasonable grounds to suspect” as the basis for determining criminal liability. The offences in the sanction orders are the most appropriate comparators for the offence created in the Bill, as they also deal with cultural property that is unlawfully removed from conflict zones. We therefore refute the suggestion that the drafting of the Bill is novel or contentious, as some have suggested. The Iraq sanctions order has been in place since 2003, and the Syria sanctions order since 2013, and they have not had an adverse impact on the art market. While I hear what my right hon. and learned Friend says about the fact that they are statutory instruments, they are still the law. The fact is that they have not had an adverse impact on the art market, and we still think they are the best comparators.

Thirdly, key stakeholders, including the police, academics, museums and the Council for British Archaeology, support us in our view that the threshold is appropriate. One leading academic, Professor Roger O’Keefe of University College London, has confirmed his view that the drafting of the offence reflects international best practice, as was highlighted by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes). Furthermore, we have discussed the issue at length with art market stakeholders, and we have listened to their concerns carefully, but they have provided no clear evidence that the mens rea in the Bill would create insurmountable problems for the market or increase the due diligence that dealers need to undertake. It will, however, provide a deterrent for those unscrupulous dealers who might be tempted to deal in unlawfully exported cultural property.

My right hon. and learned Friend the Member for Harborough also mentioned guidance. To reassure those with concerns on this issue, we made a commitment to work with art market stakeholders, with a view to providing guidance where necessary to assist the art market in understanding the new dealing offence and complying with the Bill. My officials are taking that forward with art market stakeholders, the Crown Prosecution Service and the police. A meeting to discuss the issue was held last week, and a further meeting is planned for 1 March.

With that, I hope my colleagues are reassured and feel that they do not need to press their amendments to clauses 3 and 17.

Amendment 4 negatived.

Third Reading

Queen’s consent signified.

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[Sir Edward Garnier]

I thought, listening to all these paeans of praise, that I had wandered into the BAFTAs, but they are well placed, and I congratulate my hon. Friend the Minister. She says it is the first Bill she has conducted through this place as a Minister, and I hope it is not the last. I wish her every success.

That having been said, as we used to say, this is not simply formulaic; there is a purpose in having a Third Reading debate, albeit that such debates are now very truncated and that as I think we all agree, apart from my point of disagreement, this is a wholly uncontroversial and utterly worthwhile Bill. Its genesis was several decades before my hon. Friend was even a twinkle in her parents’ eyes; sadly, I am older than the convention, but there we are. Perhaps I am a cultural object.

[Tracey Crouch]

A treasure.

[Sir Edward Garnier]

I know I am a treasure, but the Minister is so kind.

I will make three quick points, if I may. First, it is important not to confuse evidence for an offence with the definition of an offence. Those are two different legal concepts, and in our enthusiasm to pass this Bill into law, we are in danger of allowing that confusion to remain. Despite the fact that I accept the political reality, I think clause 17(1) is and remains flawed, and I am not yet convinced that what the Government propose is the right answer, but there we are, I have lost that particular argument.

Secondly, I hope we will see the guidance for prosecutors and the police soon. As my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) said, Governments often talk about guidance and secondary legislation is often drafted to achieve clarity. It is no good just saying things; we need to do things. I hope that we will see the guidance long before the end of the summer, and that it will be available to be considered in published form.

Thirdly and finally, I urge my hon. Friend the Minister to press the Foreign Office to come up with some form of definition of “occupied territories”. It is a movable feast, and I appreciate that the facts on the ground and the law relating to the status of particular parts of the world change almost week by week. However, if there is to be guidance on whether it is appropriate to prosecute under clause 17(1) for “having reason to suspect”, we equally need guidance on what an occupied territory is as a matter of fact and as a matter of law.