Lord Redesdale
Main Page: Lord Redesdale (Liberal Democrat - Life peer)Cultural Property (Armed Conflicts) Bill [HL]
Lord Redesdale Excerpts
Lord Inglewood (Con)
On the point made by the noble Lord, Lord Howarth—and I also apologise for not having been able to be here at Second Reading—I have every sympathy with the thrust of what the noble Lord, Lord Stevenson, is saying. However, as I was listening to the discussion, it struck me that this Bill is intended to put on our domestic statute the provisions of the Hague convention, and it sits surrounded by a number of other Bills which relate to culture and crimes relating to culture. Surely the right answer is not to tamper with the interpretation of culture in the context of the Hague convention but to make sure that the definition of culture elsewhere on the statute book meets the requirements of the contemporary world.
Lord Redesdale (LD)
My Lords, this issue was raised on Second Reading and, although the noble Lord, Lord Howarth, was not there, his contributions to all things archaeological were mentioned—he has been contributing for many years, as have many of us.
On Second Reading, we raised the issue that to make changes to anything in the 1954 convention would make this a difficult Bill to pass and, I believe, would be outside the Short Title of the Bill. However, an issue which will be raised again and again—I shall put it on the table now and probably not speak to some of the amendments in the future—is that, while we have not been signed up to the 1954 convention, we have been implementing the broad outlines of it in other places. Will the Minister make sure that the concerns of your Lordships’ House are expressed when the outlines are set out, and repeated, for the cultural protection fund?
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport (Baroness Neville-Rolfe)
My Lords, I thank the noble Lord, Lord Stevenson, for his welcome for the Bill, and for his constructive approach to scrutiny with a view to helping those who will have to implement and interpret it. To respond to the noble Earl, Lord Clancarty, we will certainly take account of the points that have been made by Peers in considering this Bill as we come to implement it.
There is a concern that the Bill should enable appropriate protection of all forms of cultural property and that the definition of cultural property in the convention should be interpreted in a way which makes that possible. However, I have a few concerns about the proposed amendment.
First, we consider that the noble Lord’s amendment risks allowing the development of an interpretation of the definition in the United Kingdom which is not consistent with its internationally accepted interpretation. That would be undesirable. It would create uncertainty and inconsistency in the application of the convention and its protocols and could result in the UK failing to comply with its obligations under them. None of us wants that. The definition of cultural property set out in Article 1 is already wide ranging. The phrase,
“movable or immovable property of great importance to the cultural heritage of every people”,
is not limited, as has been said, to those things which are specifically mentioned. They are presented as examples of the sorts of cultural property which are protected by the convention. Other cultural property can also be protected under the convention if it is of great importance to the cultural heritage of every people. The definition is already sufficiently broad and flexible.
To answer the question from the noble Lord, Lord Stevenson, we can accommodate rare and unique films and modern forms of cultural property such as digital material in the form of physical recordings.
The noble Lord, Lord Howarth, and my noble friend Lord Inglewood—who are both welcome to our proceedings and were certainly missed at Second Reading —are right. I was interested to hear the point about the knock-on effects for the 127 countries involved.
The noble Lord, Lord Stevenson, rightly mentioned the BFI National Archive and we commend his work as a former director. The BFI could certainly be considered during our implementation process as the convention includes archives as an example of a building that could be considered to be cultural property and therefore protected under the convention. Indeed, it may even give me the opportunity to visit those splendid archives in the course of carrying our responsibilities forward.
I hope that that provides noble Lords with sufficient reassurance that the definition as drafted is necessary in order to meet our obligations under the convention but flexible enough to meet the concerns expressed about what sort of cultural property might be covered. I hope that the noble Lord will feel able to withdraw his amendment.
Baroness Berridge
On that discrete point, again, the resources that were available to the Metropolitan Police unit in this area were raised at Second Reading. If my noble friend is to write in relation to this matter, can she also tell your Lordships’ House how the military unit is to be set up in a way to pass relevant intelligence to the Metropolitan Police unit? It may glean information from the field that is relevant to the Metropolitan Police, which is not a usual situation to have, so it might be useful in that same letter to have clarification of the appropriate form of communication between that specialist unit and the private contractors, as well as back into the Met and probably more widely into Europol and so on.
Lord Redesdale
My Lords, while I almost support the theory behind these amendments, we might have difficulty with a couple of issues. I should say first that the attitude taken by the British Armed Forces in protecting cultural objects has been exemplary, especially recently in the targeting of Libya and the specific direction not to destroy archaeological sites.
However, there is an issue in relation to our troops being directed by other forces. In 2003, I went over to Qatar to talk to CENTCOM about the bombing that was being carried out by American forces. People there thought it was a particularly good day when I talked to them because they had convinced the American air force that not dropping ordnance during sandstorms and instead waiting until they could see the ground would be a good idea. There is the issue of how, if you are involved in a joint operation and under the command of others, you influence that commander, or whether you would even be able to.
Of course, this becomes a particular issue when fighting the types of warfare that are being fought now, whereby most of the information used for targeting enemy forces comes through drones and indirect forces. That process has to be based on information. I follow the point that of course we need information and expertise within the MoD to understand what sites can be used, because the real issue of Daesh funding its operations through the sale of antiquities means that, given the MoD’s primary duty of denying the enemy sustenance and funding, it needs to understand the implications of the looting of certain sites and the financial implications for the forces they are fighting.
Lord Stevenson of Balmacara
My Lords, I will speak briefly to the Clause 6 stand part debate, which is included in this group of amendments. The noble Baroness, Lady Northover, has raised a number of the points that I was going to raise, and I will not repeat them. I simply make three short points. I think this is the first time we have reached a point in the Bill where any amendment that might be put down would not interfere with our ability to sign up to the convention. This is an area where, for instance, the tariff of 30 years is not specified, so it would be at the discretion of the Government, should they wish to change that.
The points made by the noble Baroness were germane to this. We touched on this on Second Reading, and although 30 years was said to be appropriate for the maximum because it was in line with other areas, we are talking about a very narrow range of people who could be affected here: those who are under orders, or supposedly under orders, operating in a foreign territory with which we are at war. There may be circumstances that need a more considered view in the legislation, but we do not have a very strong view on this; as my noble friend Lord Touhig said, we are broadly in support of what is here, but this is an opportunity to make sure that we have the right approach as set out by the Minister when she comes to respond.
Lord Howarth of Newport
My Lords, I would like to support what has already been said by my noble friend Lord Stevenson, the noble Lord, Lord Renfrew, and the noble Baroness, Lady Berridge.
Article 19 of the convention, drafted 60 or so years ago, simply does not contemplate today’s realities. It addresses itself to situations of civil war. Of course, there is a civil war in Syria, but, although Daesh pretends to be a state, it is not a state. Not being a state, neither Daesh nor the Taliban nor Boko Haram can be covered by the provisions of the convention. So the formulation of international law is seriously defective in enabling the international community to address itself to the most appalling instances of iconoclasm and the systematic and strategic destruction of cultural heritage. That, of course, is what so many of us and so many members of the public are most intensely concerned about.
I think that they would be startled to think, as was said at Second Reading, that here we are legislating and in some sense playing an air shot; we simply are missing the ball. Of course it is right to implement the convention as it stands—nothing should disrupt that process—but I hope that when the Minister responds to this debate she will be able to tell us what the Government as a whole, the Foreign and Commonwealth Office and the Department for Culture, Media and Sport intend to do in developing international discussions and diplomacy to move towards the possible creation of a third protocol. It could take a considerable amount of time but the very fact that there was momentum in that direction—momentum initiated by our own Government—would be an excellent thing and is really important in terms of the crisis that the world faces.
Lord Redesdale
My Lords, while I support the idea of changing international law, we have waited 60 years for this treaty to be ratified by the Government and if we had to wait for the same period of time for the convention—if it happened tomorrow—I would be about 120. So I think it is a wonderful idea to come forward, and of course the irony is not lost that we are talking about ratifying one treaty while of course most of the thoughts in this place are about another treaty.
I will ask the Minister one thing on the specific problem of the situation whereby much of the cultural heritage being targeted by non-state groups happens in areas we know are destabilised already—and of course, the formation of the cultural protection fund is a way of actually protecting some of those issues. But could the Minister say what proactive measures are put in place in the formation of the cultural protection fund to make sure that culture we know is under threat is being protected? Of course, we discussed digital archives. One wonderful way of doing it is digitally archiving all the archives around the world or helping museums to protect their archives. Of course, as in the case of the museum in Baghdad, that was a problem in itself because they wanted to loot the archive to find out what they could steal. That of course is an issue that will come forward and while we are in the position of forming the cultural protection fund, I very much hope that the Minister can give some indication that we will be taking the issue of pre-emptive knowledge very seriously, rather than trying to reconstruct what has been destroyed.
Baroness Neville-Rolfe
My Lords, I am grateful for this interesting debate and for the amendments that have been laid. I should perhaps start by responding to the broader point that the noble Lord, Lord Stevenson, made and which my noble friend Lord Renfrew and the noble Lord, Lord Howarth, endorsed about the idea of a third protocol. I venture to say that in discussing the possibility of a third protocol, we are getting a bit ahead of ourselves. I think that we had all-party support for concentrating and pushing through rapidly a Bill so that, at last, the United Kingdom could ratify the existing convention and the existing protocols. This would make us the only permanent member of the UN Security Council to have ratified the convention and both protocols, and that would put us in a strong position as regards the protection of cultural property in the event of armed conflict, particularly when you look at other provisions that I will come on to mention. It also will allow us to attend meetings of state parties where we can discuss issues relating to the implementation and operation of the convention and the protocols. But I do not think it is the day to agree to a major new initiative for a third protocol.
I do think I should say something, however, about the application of the law to Syria, which is an important issue that is underlying this idea. I was clear at Second Reading that the UK does not recognise Daesh as a state and so the Bill’s application to Syria and other civil wars is limited. The dealing offence in Clause 17 does not apply to Syria because it covers only unlawfully exported cultural property from occupied territories, as we have all said.
Under international law, territory can be occupied only by another state. As, rightly, we do not recognise Daesh as a state, Syria cannot be classed as occupied territory. However, as my noble friend Lady Berridge said, this does not represent a serious gap in our provisions because sanctions already exist for cultural property removed from Syria since March 2011, and dealing in cultural property exported from Syria is prohibited under UK law.
A UK national fighting with Daesh in Syria can be prosecuted under our Bill in relation to,
“theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property”,
protected under the convention. To expand or extend this application would, of course, be a serious over- implementation of the convention in UK legislation. That, of course, is not the purpose of the Bill.
The Earl of Kinnoull (CB)
My Lords, in moving Amendment 16 I will also speak very briefly to Amendment 30A. I thank the Minister and her Bill team for their courtesy, time and efforts in these past weeks. I have been approaching this from the point of view of museums, art shippers and art insurers, thinking in particular about international art exhibitions. I declare my interests as set out in the register, in particular that for a good period of time I ran the art and private client division of Hiscox, Europe’s largest insurer of art, and I am currently chairman of the trust that runs the museums in Perth and Kinross, which last week announced its intention to ask the Commissioners for the Safekeeping of the Regalia to return the Stone of Scone to Perth, to a new, purpose-built, specific space, as part of a planned more than £20 million investment in our museums.
International art exhibitions that the public of so many countries enjoy so much take place only when museums will lend, shippers will ship and insurers will insure. Where any one of those three elements is missing, exhibitions either do not happen or happen with fewer objects. I have been in touch with museums, senior art shippers, insurers and insurance industry bodies to debate the Bill. In each case they very much wish this important Bill well, and these two probing amendments are designed simply to test whether some improvements could be made which would allow for clarity and proportionality of additional work for affected institutions. I hasten to add that no complaint is made about having to do some more work in helping to address the issues this admirable international convention deals with.
The amendments probe two issues. The first is: how does an ordinary front-line museum curator, art shipping manager or insurance underwriter establish that an object is not “unlawfully exported cultural property”? Secondly, how does a museum, art shipper or insurer carry out due diligence in a proportionate way and avoid having knowledge of wrongdoing imputed to their institution, which of course would be a criminal offence?
Turning to Amendment 16, Clause 16 is necessarily complex and I foresee that any compliance officer would struggle to write an easy-to-understand briefing note for his front-line colleagues. Most museums and other affected institutions do not have the luxury of a professional compliance officer and it would be left to the front-line person to establish whether they were potentially dealing with unlawfully exported cultural property. I note that in my experience, hooky material will always come with reassuring bogus evidence on these types of questions and yet, strangely, non-hooky material often comes with little or no evidence. The front-line person will ask themselves whether they should deny the loan of a piece of art or the shipment or insurance of that object when it cannot be proven when or from where an object came into a particular collection.
In fact, there is at least one major collection of the affected subject matter that I know well—a private collection in England which lends regularly to international museums—for which there is very little record of when and where the objects came into the collection. It would be most unfortunate if that wonderful collection was now marooned in the UK.
Accordingly, I felt that a “safe harbour” approach would assist. Amendment 16 simply allows the Minister to make regulations from time to time about what a proportionate safe harbour might be to help those in the international exhibition business. It may be that to start with there would be no regulations and one would simply watch the progress, but the existence of this ability would make a safe harbour available at any time if there was an unintended series of problems. The Minister would then be able to address problems rapidly and effectively within the Bill.
Turning briefly to Amendment 30A, the offence in Clause 17(1) has the mental element of knowledge or “reason to suspect”. Museums, art shippers and insurers are all bodies corporate. The question, therefore, is in what circumstances such knowledge can be imputed to the body corporate. I am very grateful to the Minister and her Bill team for their excellent work on this point, and indeed their very helpful letter of yesterday afternoon, and I am now wholly happy with the Bill as it stands. Accordingly, I will not move that amendment. I beg to move Amendment 16.
Lord Redesdale
My Lords, while I quite understand the good intention in questioning this provision, I have some difficulty with the idea behind the amendment because the convention was ratified in 1954 and you cannot have retrospective legislation. This refers to artefacts brought into the country after 1954 that would be affected only if their provenance cannot be proved. That is where I have real difficulty, because one issue with illicit antiquities is that we do not know their provenance, so if they have been taken from a site—or, in the case of Syria and Iraq, looted, even—the actual context of those objects has been destroyed. While the objects themselves might be considerable works of art and were probably created as such, that does not mean they have value in their own right. They might have financial value, but there is a duty of care on museum staff or those dealing in this subject to make sure that such objects are not covered by this statute. There can be very few articles which could not have a 1954 provenance. Many museums would not accept articles which did not have a provenance going back before 1954, and while I understand the concern that has been expressed, the really big problem is making sure where these objects come from in the first place. One of the reasons Daesh is selling these objects now is that nobody is questioning where they came from.
Lord Howarth of Newport
My Lords, I am very sympathetic to the objectives of the noble Earl, Lord Kinnoull. He raises an important practical consideration: how are those operating in the marketplace, or being asked to advise on or deal in particular objects, to satisfy themselves that they are in conformity with the legislation and are doing the right thing? I imagine that the answer lies partly in the promulgation of standards by professional bodies such as the Museums Association and the British Antique Dealers’ Association —and of course the Department for Culture, Media and Sport itself, which issues guidance on these matters and will no doubt wish to ensure that it is up to date. Training, methods of professional qualification and the certification of institutions and so forth all have a part to play. However, it would be helpful if the Minister gave us some idea of how the Government envisage that people who wish to act responsibly, professionally and properly can be confident they are in fact doing so.
Lord Renfrew of Kaimsthorn
My Lords, I warmly support the amendment in the names of the noble Earl, Lord Clancarty, and his colleagues. It makes a number of really important points. The first point, which he expressed very well, concerns transparency. It is extraordinary that at the moment there is no obligation on a seller at auction to indicate who is selling the object. That is needed at once. We talk of transparency but there are auctions of major antiquities, for instance, where the name of the vendor is not made clear.
The noble Earl is also absolutely right that if we are talking about, for example, an antiquity, it is useful to have its history over a period of time, although it may be overambitious to talk about an object passport. If it is a prehistoric object, we will not have the names and addresses of all previous owners. Perhaps we could specify all previous owners since 1970, using the date of the UNESCO convention. There are one or two places in the Bill where one could insert 1970. After all, as the Bill makes clear:
“Subsection (1) does not apply to property imported into the United Kingdom before this section comes into force”.
Therefore, we will not lose much if we insert 1970 at that point.
The principle of trying to establish the history of an object over a good number of years, preferably before 1970, is very important, and I very much like the suggestion of an object passport, although I realise that we must be careful not to introduce too much additional paperwork into the world. However, if one had an object passport, one would certainly want to have a photograph as one element of it. That would be very important, as one could certainly have the ownership history going back at least to 1970, and that would be very useful.
Although antiquity sales in this country have diminished in recent years, I have learned that Sotheby’s is proposing to reintroduce its sales of antiquities in London, which previously it exported to New York following the major scandal in Sotheby’s some years ago. I am not sure that that reimportation is a good thing but, if it is to be done, it should be done properly, as my noble friend Lord Inglewood said. Therefore, a clear provenance history is essential, and we ought to ask the auction houses and dealers to introduce it. Whether it can be done through a simple amendment to this Bill, I am not sure, but the principle in the amendment is crucial. The notion that there should be information on the identity of the seller of the item and as much history of the item’s ownership as possible is admirable. Although the idea of an object passport needs further thought, the suggestion that there would be a limit on the value and it would not apply to every small-value object would limit the bureaucracy involved.
I very much welcome the amendment. Although we heard about the virtues of the art market in London—I am sure that it has many virtues and is an important part of the economy; indeed, as my noble friend Lord Inglewood said, in recent years the antiquities dealers have tightened up and are applying stricter standards—the basic standard of knowing where the object comes from and who has owned it is essential and I would like to see it carried forward.
Lord Redesdale
My Lords, I rise to speak to this amendment and to say that I do not plan to move Amendment 29 because it raises this issue.
A number of us in this Chamber were responsible for pushing through the Dealing in Cultural Objects (Offences) Act. Although it is good to know that at least one prosecution has taken place under the Act, that did not stop it, at the beginning of the last Government, being put forward by the Conservative Back-Benchers as a piece of legislation that was redundant and could be got rid of because it had never been used. The problem is that such legislation gets moved in response to a specific event; in this case, it was the looting of the museum in Baghdad. The ratification of this Bill has been moved forward very much due to the cultural destruction that is taking place in Syria at the moment.
I do not believe that this Bill is the place for this amendment, even though I have put my name to it. However, it is probable that we could raise it again in any money laundering legislation that comes in front of the House in the future. As the noble Lord, Lord Renfrew, so adroitly pointed out, the real problem is that a lot of art provenance is not known, is written on dodgy pieces of paper, or is attested to collections that no longer exist in foreign countries. This is a problem.
I take on board the point made by the noble Lord, Lord Inglewood, that because there is a law, many people will not break it. However, there are many laws that people know are there and do break. The art market does not have the best of reputations from instances in the past. Therefore, if we are to clear up the art market, we need to make sure that there is some implication of having a law. That is why I put down the amendment to say that there should be a review each year. For example, we know that, in 2003, the amount of Mesopotamian artefacts on the marketplace drove down the price. We also know the source of those Mesopotamian artefacts, and, bizarrely, that trading was done very much in the areas that are next to the British Museum.
Provenance is a double-edged sword. Many of the artefacts that are now safe in the British Museum were illicitly lifted and their provenance is now based on the paperwork that proves they were filtered from the country of origin without the authorities’ knowledge. One could say that many of the collections of the great museums have a slight provenance issue.
Although this amendment will probably not be agreed, it raises the issue that, although we have the law, it has not been taken as seriously as it should be because it has not had the funding that it might require. Resources are needed to deal with this. The noble Lord, Lord Inglewood, raised the issue of trying to bring forward prosecutions to the police. However, the arts and antiquities squads were so underfunded that they resorted to trying to get special constables who were recruited from staff at the British Museum. In my view, that is not a well-funded or well-thought-out prosecution system to deal with a market that runs into the millions of pounds.
Lord Inglewood
My Lords, I would like to intervene to respond to remarks made by the noble Lord, Lord Redesdale, and by my noble friend Lord Renfrew. Anybody who is selling an item owns it. They have a duty under due diligence not to handle anything that is suspicious. That way, you always have somebody you can go against if it is, in fact, wrong. Is it really the case that providing the information up front in the auction catalogue—which if it is wrong will be false—is going to solve the problem?