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

Victoria Borwick Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 15th November 2016 Public Bill Committees

[Kevin Brennan]

I thank the Minister for her response and for giving the Opposition access to her officials before Second Reading. For a Bill of this kind, it is very helpful to be able to have such discussions and to clarify things in advance.

In a sense, the Minister did not address my point about the potential conflict between Baroness Neville-Rolfe’s remarks in the House of Lords that clarifying the Bill by amending it to include the words “in digital form” would damage the international interpretation of what is meant by cultural property and that the wording of the convention effectively includes digital cultural property. I am not going to press that point, because the Minister and the Government have made it clear that they believe that the definition should be flexible enough to include digital property. It is useful for her to put that on the record and repeat it to the Committee today.

Later in the Bill we will get on to the very interesting subject—hon. Members from both sides of the Committee might want to contemplate this—of which cultural objects and what cultural property in this country, and indeed in each of our constituencies, are regarded as being of sufficient importance to all the people of the world, not just to us and our constituents, to be worthy of protection under the convention. I am sure everybody will spring to life later to give examples from their constituencies, because every hon. Member has in their constituency a cultural treasure that is important to all the people of the world. I look forward to hearing about the cultural richness of this country, including Queen’s Park and north London—your part of the world, Ms Buck, although you are not allowed to talk about it. I accept the Minister’s assurances on amendment 6. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[Victoria Borwick (Kensington) (Con)]

It is a pleasure to serve under your chairmanship, Ms Buck. I would like to declare that I am the president of the British Antique Dealers’ Association, and I have been advised by the British Art Market Federation, the Antiquities Dealers’ Association and LAPADA, all of which have made written representations to this Committee.

I wish to draw the Committee’s attention to the art and antique market’s concerns about the definition of cultural property in the clause, which draws on the convention. I am grateful to the Minister for her clarification. A number of representative bodies of the art and antiques market, which is the second largest such market in the world, have made written submissions to the Committee. I draw Members’ attention to the submissions from the British Art Market Federation, the Antiquities Dealers’ Association, Professor Janet Ulph and LAPADA, among others. They all make clear that they are fully supportive of the Bill.

It is particularly important that honest and well-intentioned dealers and auction houses do not risk criminal prosecution when conducting reasonable due diligence. As the Committee will have read in those submissions, the three aspects of the Bill that concern the trade relate to avoiding uncertainty in the art market and ensuring clarity in the practical operation of the law. There is no doubt that uncertainty hampers the successful operation of any market, and it is reassuring that my right hon. Friend the Secretary of State made it clear on the Floor of the House that she does not want the market to be hampered.

The clause 17 offence that we will come to later of dealing in unlawfully exported property depends directly on clarity and understanding of what is meant in the Bill by the term “cultural property”. As it stands, the punctuation used in sub-paragraph (a) of article 1 of the convention, which is reproduced in schedule 1 to the Bill, means that cultural property is not limited to property of great importance to the cultural heritage of every people, although the Minister has just clarified that cultural property can be protected if it is of great importance to every people. The market seeks absolute clarification of those points. Other categories of property are covered in the definition, regardless of their cultural significance, including works of art, manuscripts, books and other objects of artistic, historical or archaeological interest.

It has been drawn to my attention that the original—and, as article 29 states, equally authoritative—French and Spanish texts of the convention, which I have to hand, are not worded in that way. They use commas, not semi-colons. On account of that, in the French and Spanish versions a work of art must be of great importance to the cultural heritage of every people for the convention to apply to it. I was delighted that the Minister confirmed in the House on 31 October that the Government intend to take the same restricted approach to the definition of cultural property and that the clause 17 offence of dealing in unlawfully exported property will apply only to a very small but very special category of cultural objects—those which are of great importance to the cultural heritage of every people. I thank the Minister for her clarification on that point this morning.

Given what we know about the other versions of the convention and the Government’s intention that the Bill should apply only to objects that are of great importance to the cultural heritage of every people, it cannot surely be right for the wording of the law to be at odds with its intention. I have not tabled an amendment on this important point, but the Government might consider a little clarification on it.

[Kevin Brennan]

The hon. Lady is making an important point. Given the benefit of her expertise, will she give an example of a cultural object located in the UK that she believes would pass the test in the convention, under the wording as she and the Government interpret it, and perhaps one that she thinks might not pass the test but that some might regard as an object of importance?

[Victoria Borwick]

I cannot think of something instantly, but the important point is whether the restricted view should apply that the object should be

“of great importance to…every people”.

We are making sure that we do not by mistake include things that are not covered in the convention—in other words, that we do not, through loose punctuation, fail to make it absolutely clear which objects are covered.

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[Tracey Crouch]

Again, if we are still debating clause 16 this afternoon—or perhaps even when we debate clause 17 —if the hon. Gentleman wants to raise the point then, I may be able to give him more information. However, as he can imagine, the definition of occupied territories is sometimes controversial, and it is often open for discussion.

A certificate may not be issued in all cases. Alternative evidence may be used to prove the status of a particular territory. Before I conclude, I have been reliably informed that, yes, Crimea is considered an occupied territory; that at least covers one of the questions that the hon. Gentleman might have wanted to return to this afternoon, allowing us more time for other matters.

[Victoria Borwick]

I thank the Minister for that clarification, because we all seek greater clarity about what is in the Bill.

I have previously mentioned the uncertainty inherent in clause 2 and how our art market is keen to avoid uncertainty. Another area of uncertainty is an auctioneer’s or dealer’s ability to identify the occupied territories to which the law applies, particularly if an item may have been here previously; of course there is a lot of trading going on all the time, which is why the points about certainty and dates need to be clarified.

Clause 16(6) states that the Secretary of State’s confirmation that a territory was occupied is conclusive evidence of that status once legal proceedings have begun. If the Secretary of State’s word may be provided after the beginning of proceedings, cannot a list of the occupied territories, together with the relevant dates of occupation, be drawn up for all to see? Alternatively, could the criteria that a Secretary of State would apply when determining whether and when a territory is considered to have been occupied be clarified? Examples have already been given, but I could add East Jerusalem, the west bank, northern Iraq, Libya or southern Sudan and I am sure others could add alternatives. For the avoidance of doubt, dealers will need to know at what points since 1954 a particular territory is covered by the legislation.

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[Tracey Crouch]

I am grateful to colleagues for raising a number of important issues. I will respond as best I can.

First, I remind the Committee that this law is not solely concerned with dealing in cultural property; it is about protecting cultural property at home and abroad. We need to keep reminding ourselves of what we are trying to achieve with this Bill. That said, some important issues have been raised.

Colleagues will appreciate that extremely sensitive foreign relations issues are in play when drawing up a list. It is important to reiterate the point made by my hon. Friend the Member for Kensington that the Government are not aware that any of the other 127 state parties to the convention have produced a list of territories that they consider to be or to have been occupied since the convention came into force in 1956. In practice, very few territories are likely to be deemed to be or to have been occupied within the meaning of the Bill. The amount of cultural property from such territories that dealers are likely to come across is expected to be extremely small. That said, I realise that there are concerns.

Legal advice will be available to those who have concerns. If in doubt, dealers can seek appropriate legal advice from a solicitor or barrister who is familiar with public international law. The Bill does not impose any requirements on those who deal in cultural property beyond the normal due diligence that they should carry out in accordance with industry standards, such as the code of practice for the control of international trading in works of art. In the event of legal proceedings, the burden of proof will be on the prosecution to show that the person knew, or had reason to suspect, that the cultural property had been unlawfully exported from an occupied territory.

We will discuss the wording later, but I remind the Committee that the Government will not be publishing a list of occupied territories. It will be determined on a case-by-case basis. Anyone who has a question or any doubt can seek appropriate legal advice. Like the other 127 state parties to the convention, we have no intention of publishing a list.

[Victoria Borwick]

I am concerned on behalf of traders that there will inevitably be a great deal of cost. As you and the Secretary of State have been kind enough to say that you do not wish to place additional burdens, I am concerned that you are appearing—

[Kevin Brennan]

She.

[The Chair]

I remind the hon. Lady about addressing the Chair.

[Victoria Borwick]

I apologise, Ms Buck. High legal costs might be incurred, but I do not understand that to be the Minister’s intention.

[Tracey Crouch]

I repeat that I do not think that the clause imposes any more requirements on those who deal in cultural property beyond the normal due diligence that they undertake now in accordance with industry standards, so I am not convinced that there will be additional costs. We need to remind ourselves that the offence is not retrospective; it applies only to cultural property unlawfully exported from occupied territories after the date that the convention and protocol came into force for those countries that are party to it, and cultural property needs to be imported into the UK after the Bill comes into force to be an offence.

To clarify exactly what sort of cultural property we are talking about and the dating of that property, I will briefly repeat messages back to my hon. Friend the Member for Enfield, Southgate about Syria. It is important to take this opportunity to clarify how the Bill applies to the situation in Syria. The Bill’s application to the situation in Syria is limited for two reasons: first, while Syria is party to the convention and the first protocol, it has not ratified the second protocol; secondly, the UK does not recognise Daesh as a state.

With regard to the first point, the current conflict in Syria is defined as a non-international armed conflict—a civil war, in other words—and the offences listed in article 15 of the second protocol may be committed during civil wars. However, the application of clause 3 is complicated as it varies depending on whether the state experiencing civil war is a party to the convention and/or the second protocol. The Bill’s application to Syria is limited to the offence set out in article 15(1)(e) of the second protocol, which is

“theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.”

Because Syria is party to the convention, its cultural property is protected against that offence. The Bill’s application is limited in some respect because Syria is not yet party to the second protocol, which means that the UK cannot prosecute for any of the other four offences set out in article 15 of the second protocol.

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[Kevin Brennan]

That is very interesting. I am still slightly struggling to understand how the second protocol could apply to both sides in a civil war if one of the sides was not a recognised state, Government or signatory to the protocol, but I will let that lie for now; it might be something that we cogitate on, and there might be a way of discussing that when we come to later amendments and new clauses.

I understand what the Minister was saying about clause 16: that the Government will not produce a list because no one else has produced one. That is not necessarily a good argument for a country that is seeking to be a leader in this field. The Minister quite rightly boasted that we will become the first permanent member of the Security Council of the United Nations to ratify both protocols, although we will be the last to bring in the convention overall, so that is not entirely something to boast about—and that goes for Governments of all kinds. Saying that we should not produce a list because no one else has produced seems to be not an argument, but a simple statement of our position and that of other countries.

The Minister hinted that the reason why the Government were reluctant to produce such a list was because it is sensitive—she used that terminology—to talk about whether a country has been occupied since 7 August 1956, which is the date that she mentioned. We are not producing a list because no one else has, and because it might be sensitive to do so, but she said, without feeling too sensitive about doing so—I welcome that very much—that the UK Government considered Crimea to be occupied. That is what I do not understand. If it is possible to say clearly that Crimea is considered an occupied territory, why is it not possible to say whether the UK Government consider other territories to have been occupied since 1956? That makes no sense whatever, unless we are engaged in some kind of history seminar, which we are not; we are talking about the UK Government’s position on whether territories have been occupied since 1956. The Government are happy to say that Crimea is occupied, but not whether they consider other countries or territories to have been occupied in that period.

[Victoria Borwick]

I think the point is that if a Security Council resolution regards a territory as being occupied, surely that is on the record.

[Kevin Brennan]

It may well be on the record, but the hon. Lady herself made the point that clause 16(6) says that territory is considered occupied if, once proceedings have begun, a certificate is issued by the Secretary of State, whatever the UN has said. The Bill says:

“a certificate by the Secretary of State is conclusive evidence as to whether, at a particular time, territory was occupied by a party to the First or Second Protocol or by any other state.”

Can the Minister add further clarity to that? We have not really had a full explanation as to why the Government are reluctant to produce that list. There may be reasons, but I am not sure that we have teased them out yet.

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[Tracey Crouch]

The only thing that I would like to add is that the hon. Member for Cardiff West is a very experienced and somewhat naughty man for leading me down a garden path; I will now no doubt get a smacked bottom from the Foreign Secretary for declaring, on the record, that comment about Crimea. It is important to stress that this is an incredibly complex area, involving sensitive issues relating to foreign affairs. No other state that is part of the convention has produced a list. I appreciate that the hon. Gentleman does not think that a reliable or worthy response to the issue. We want to make sure that we introduce the Bill and ratify The Hague convention properly, so that we protect cultural property in the United Kingdom and abroad.

We firmly believe that the Bill does not place any further burdens or restrictions on the art market. There is nothing in the Bill that those in the art market do not already do, in terms of due diligence. Where they have concerns, we would expect them to seek appropriate legal advice, as they currently do. There is a whole wealth of people out there who are able to provide that.

[Victoria Borwick]

I want to take the Minister up on the due diligence point, if I may. Inevitably, there are different levels of due diligence, and different categories. There is no accepted level of due diligence. This goes back to the point made about getting absolute clarity in the Bill, because nobody wants there to be confusion later. We all have the right spirit here; we are just making sure that things are absolutely clear. There are inevitably different levels of due diligence for different categories of objects, with the risk of forfeiture and potentially a prison term.

[Tracey Crouch]

I hope that those in our art market, with all their expertise and with the market’s worldwide reputation for being one of the best, have the highest standards of due diligence, and that when it comes to these specific cultural objects of great importance to all people, as defined by the convention, they take particular care with due diligence, as set out by their own industry codes and standards of ethics. They are self-regulated, and they provide a gold standard of best practice for the rest of the world, and I hope that they will continue to do so.

I reiterate that we do not think it is necessary to produce a list; we do not think that it would be helpful in a wider sense. A certificate from the Secretary of State would only be used during a dispute on an issue. We believe that this is the right way forward, and I hope that the clause will stand part of the Bill.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

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

Victoria Borwick Excerpts

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

[Kevin Brennan]

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

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

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

It goes on to argue:

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

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

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

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

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

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

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

[Victoria Borwick (Kensington) (Con)]

It is a pleasure to serve under your chairmanship, Mr Turner. I declare an interest as president of the British Antique Dealers’ Association. I have also been advised by the British Art Market Federation, the Antiquities Dealers’ Association and LAPADA, all of which have made written representation to the Committee.

Amendment 1, which stands in my name, relates to the most important point made in the submissions from the art and antiques trade, including from the British Art Market Federation, the Antiquities Dealers’ Association and LAPADA, and from Professor Janet Ulph. I have spoken before of the need for certainty in law—a point that other colleagues have made—so that well intentioned and honest dealers and auction houses are clear as to what is permitted. That is even more important when there is the possibility of a criminal conviction. The concern is over the level of knowledge of wrongdoing required before a dealer or auctioneer can be judged to have committed a criminal offence—what I understand the lawyers call mens rea—and whether that has been expressed to an appropriate level in the Bill.

Clearly no one objects to the word “knowing” in the relevant subsection. If a dealer knows that cultural property was unlawfully exported from an occupied territory, they are guilty of an offence. The problem lies with the additional criterion for committing an offence when someone has “reason to suspect” that an item was unlawfully exported. Despite carrying out appropriate provenance checks on an item of cultural property, a dealer or auctioneer might, just prior to exhibiting it at an antiques fair or auction, receive an unsubstantiated allegation that it was illegally removed from an occupied territory, or a request for evidence that it was legally exported. The allegation might be totally groundless, but the seller, despite 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 them to withdraw the item from sale. The time-dependent opportunity to sell it would be lost, and the very act of withdrawal could well damage the artwork’s future saleability.

My right hon. and learned Friend the Member for Harborough (Sir Edward Gamier), a former Solicitor General, made that point succinctly in an article in The Times on 3 November—it has been appended to the submission from the Antiquities Dealers’ Association. He wrote:

“The mere making of an unfounded allegation that an item was unlawfully exported from an occupied territory after 1954 may place in the mind of the potential dealer or auctioneer a reason to suspect that it has been unlawfully exported; and although it may later turn out to be untainted, he will not go near it.”

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[Kevin Brennan]

It is me again, I’m afraid, Mr Turner. Hopefully we will be able to get through our proceedings fairly expeditiously this afternoon. I will make some brief remarks on the clause before I turn to new clause 3.

To return to what we were just discussing, the Bill’s focus on preventing the illegal exportation of cultural property from occupied territories is certainly vital, and we very much welcome that. Daesh, which sometimes calls itself ISIS, has set up a so-called ministry of antiquities. If ever there was a perverse use of that terminology or an example of Orwellian newspeak on stilts, that is it, because that body exists simply to turn cultural property into income streams for that terrorist organisation by exporting and selling stolen precious items abroad. We have discussed the concerns regarding the phrase “reason to suspect” in clause 17(1), so I do not intend to rehearse those points.

New clause 3, which stands in my name and that of my hon. Friend the Member for Tooting, aims to ensure that the art market produces and keeps records necessary to determine whether an item has been illegally exported. Once again, it is a probing amendment, but we want to hear the Government’s response to our suggestion. We have heard that there is not always a good paper trail in the arts market for objects of the kind that we are discussing, so the new clause is an attempt to look at the problem of ineffective accountability from a different angle. It is no use punishing legitimate operators for a lack of knowledge when there is little reliable paperwork. That could divert resources away from stopping criminals carrying out the activities that the Bill intends to deter people from doing. If we ensure that reliable paperwork is produced and kept, perhaps we can hold the market to account more effectively.

I mentioned on Second Reading that cultural property is important in at least two ways. The first is through its monetary value, and the second is through its importance culturally and to the morale of a particular country—or, indeed, the world. We have heard much about the importance of heritage to morale, in terms of cultural, national and personal identity. We have also heard how groups such as Daesh mobilise cultural property for money by illegally exporting artefacts and selling them on the international market. UNESCO found that looting is happening on an industrial scale in the middle east, and that is what we are trying to discuss and seek a way of tackling with the new clause.

I have outlined the challenges that the art market faces in trying to assert provenance. Paperwork stretches back only so far, and that which existed before the 1990s was not always kept by owners or authorities. That has resulted in what some have seen as a culture of non-disclosure in the art market. With our earlier amendment 7, I was keen to show that we do not in any way oppose the art market. Rather, we want to support those who work to make it exemplary, by providing a legal backstop to their codes of practice and due diligence. As I have mentioned, this is a very valuable industry, worth many billions of pounds under some estimates, and London’s art market is the second largest in the world. We want to support those who work to ensure that its reputation remains high, and that it therefore continues to hold a pre-eminent role in the world.

Of course, an object’s entire paper trail cannot be retroactively reconstructed, but we can put in place robust measures to ensure that records are reliable from this point. We should aim for the transparency that we demand in other industries because, as in every industry, there are activities and actions of individuals within it that have to be deterred and prevented. A lot of investigative work was done by both Channel 4’s “Dispatches” and The Guardian into some of those activities. I understand that the Metropolitan police have stated that the market has improved recently, largely due to the due diligence practices that we have discussed. Building on that, it is not unreasonable to expect, as a minimum, that the identity of an item’s owner and buyer should be made known, as referred to in subsection (1) of the new clause.

Subsection (2) would have the Secretary of State bring forward regulations regarding specific requirements for transparency. I think that a similar amendment was proposed in the House of Lords, to which the Government objected because it would have put too much detail in the Bill. That is always an objection that Governments, often reasonably, but at other times unreasonably, bring forward. In this version, we have allowed the Secretary of State the opportunity to bring forward those regulations on what would be specifically required for transparency. That is so that there can be appropriate consultation with the market, and an opportunity for others to make representations on the exact detail of what that transparency would consist of. It is not possible to trace the entire provenance of every item, but if the Secretary of State were to ask, or require, that an effort be made to identify owners since 1970—the date of the UNESCO convention—that would go a long way towards helping to improve the market.

I have outlined that there are self-regulatory codes of practice in place in the art market. I am happy to praise the industry for putting those in place and for the improvements in recent years. However, the Government have acknowledged that that is partly due to the effect the 2003 Act had in incentivising due diligence, so legislation can have an impact on improving due diligence. With this new clause, we are suggesting that we should not be complacent. The Bill is an opportunity to incentivise further transparency and deter further fraudulent behaviour. Does the Minister agree with that? We are approaching the same issue of criminality from a different angle, and our aim is to establish effective enforcement and deterrents. I look forward to hearing the Minister’s response on new clause 3.

[Victoria Borwick]

I wish to comment on new clause 3 on behalf of the art and antiques trade, because I believe that it is entirely inappropriate. I believe that there is considerable misunderstanding about the information available for millions of works of art, antiques and antiquities owned by citizens and institutions in this country. The submissions from the trade make it clear that the vast majority of cultural objects, whether held privately, in museums, or being bought or sold on a daily basis, are not supported by historical or documentary evidence of previous ownership, or the dates and locations of their previous whereabouts—what the art market calls provenance.

That is inevitable when you consider that works of art have been entering and leaving this country for hundreds of years. Documentary evidence may never have existed, may have been lost with the passage of time, or may never have been considered necessary. Until very recently, owners of objects rarely retained copies of export licences, and the originals would have been surrendered to the authorities. Although it would now be considered good practice to retain such information, it is not possible retrospectively to create a paper trail for the majority of objects where none exists.

The absence of such documentary evidence by no means necessarily indicates that an object is of illicit origin. On a daily basis those in the trade have to make honest judgments for the majority of objects for which no documentary evidence exists. Taking that into account, when a dealer is in possession of information demonstrating that an object was legally exported, then all is well and good. If they have information to suggest that it was illegally exported, they would be breaking the law if they sold it.

As I have mentioned, the vast majority of cultural works of art on sale in this country are, for historical reasons, not accompanied by such information. Although specialists will often be able to identify the date of manufacture and country of origin from the style, condition and craftsmanship exhibited by an item, in the case of an item likely to have been made abroad, the date it left the country of origin and the date it arrived in Britain will often simply not be known.

My final comment about new clause 3 concerns client confidentiality. The Minister in the other place, Baroness Neville-Rolfe, expressed concerns that passports containing details of previous owners would infringe article 8 of the European convention on human rights. The retention of the names and addresses of previous owners would interfere with the right to respect for private and family life.

[Kevin Brennan]

Does the hon. Lady acknowledge that the detail proposed in the amendment that was tabled in the Lords is not included in this new clause, and that any such detail would be outlined in regulation after discussion with industry?

[Victoria Borwick]

Although I accept that, it is also an important briefing point today as to why the art and antiquities associations feel so strongly about this. The Government’s opinion is that such a level of interference could not be justified as necessary for the aim of protecting cultural objects. I maintain that the same considerations would apply to the proposals contained in the new clause, and I therefore ask my colleagues to reject it.

[Tracey Crouch]

I actually agree that it is important that dealers in cultural property provide appropriate information on the provenance of the items they sell, but I am unable to support new clause 3, for the following reasons. First, it would introduce a statutory requirement for the art market to provide information about provenance for the first time. As I have said before, I believe that it is appropriate to allow the art and antiquities trade to regulate itself. The established trade associations possess codes of ethics that they expect their members to abide by, and we expect them to enforce those codes strictly.

Furthermore, we believe that the existing legal framework, along with the new offence we are creating, provides a sufficient incentive for legitimate dealers to ensure that they do their due diligence and pass on relevant information concerning an object’s provenance. The Government are not in the business of imposing disproportionate regulatory burdens on well functioning markets. Indeed, we have a manifesto commitment to cut red tape further. We believe that the current self-regulatory approach to the art market works well and that there is no need to add an additional statutory burden.

Secondly, new clause 3 appears to be an attempt—I am not sure whether this was the Opposition’s intention—to shift responsibility for making decisions about whether a cultural object has lawful provenance to the buyer. It seems strange to put the focus on the buyer in this way. It could result in buyers being far more cautious about purchases, which would genuinely risk slowing down the art market. Our expectation is that dealers should carry out due diligence, seeking advice as appropriate and taking a view on an object’s provenance before offering it for sale. If there is a question mark over provenance, it simply should not be for sale.

Thirdly, we cannot understand the Opposition’s motivation in tabling both new clause 3 and amendment 7, which I appreciate has now been withdrawn. Raising the threshold of the mens rea to such a high level and putting the onus on buyers to make decisions about whether or not an object has lawful provenance would significantly water down clause 17, while at the same time putting additional burdens on both buyer and seller. I must therefore strongly resist new clause 3.

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[Kevin Brennan]

The Minister says “Tory Government” from a sedentary position. I hope that she is not saying that they are not paying the people in the monuments squad for their work. We in the Opposition certainly believe in the rate for the job when somebody is working. I am sure that she will clarify that in her response.

The second body mentioned in our new clause is the Border Force, which we all know has been subject to large budget cuts—more than £300 million in the run-up to 2015 by the coalition Government—and simultaneously came under the increasing pressure of public expectation in relation to preventing illegal immigration. As we see with every public service, expectations are high, but it is difficult for those expectations always to be met if funding is continuously cut. That said, I understand from the Government’s assurances in the Lords that any new costs incurred by the Border Force in enforcing the Bill will not be significant, and that its new responsibilities will not differ greatly from its current day-to-day business.

The Government have stated that the Border Force already carries out the functions required by the Bill in relation to the 2003 Iraq and Syria sanctions. Will the Minister assure us that that is indeed the case? Furthermore, while the work derived from the Bill may not differ significantly from the current everyday business, is there likely to be an increase in workload in relation to the Bill? If so, what provisions are the Government making?

It has been stated that, in regard to a code of practice, resources on cultural goods are available on the Border Force intranet site, and I understand that the Border Force will be expected to seize goods when instructed to do so, rather than be expected to discover the goods’ illegally-exported status itself. As I mentioned, many duties under the Bill are already performed by the Border Force. Does the Minister think that the passage of the Bill will require further robust training in the handling of cultural goods?

Baroness Neville-Rolfe stated:

“Enforcement practices relating to combating smuggling are often the same regardless of the type of goods.”—[Official Report, House of Lords, 28 June 2016; Vol. 773, c. 1529.]

While that may be true, there are also unique sensitivities when dealing with often antiquated and fragile items of cultural property, which, as all parties have agreed, are of immeasurable value. This question is particularly relevant in the light of comments made by the former director of the unit within the Metropolitan police, Dick Ellis, who said:

“These pieces are moving through customs, they’re moving through our ports all the time. And yet not a single item is seized in this country… these sorts of objects when they’re looted in Syria, when they’re looted in Iraq, are helping to fund terrorism, why on earth aren’t we doing more to stop them coming on to the market?”

That is not just a question for the Border Force, because, as the new clause specifies, institutions need to communicate and co-operate with each other to protect cultural property. The Government have clarified the fact that the Border Force would not be expected to identify illegal goods, so the matter of how those separate institutions, with their separate but related functions, will be joined up is therefore crucial.

Does the Minister feel that a dedicated unit within the Border Force, with a close communication link to the equivalent unit within the Metropolitan police, is necessary properly to enforce the Bill and, crucially, to provide a robust and credible deterrent with respect to those who would attempt to bring illegally exported cultural property into the UK?

I turn now to the arts and antiquities unit of the Metropolitan police, which is composed—

[Victoria Borwick]

As a point of record, because it keeps coming up as an error, it is the art and antiques unit. I believe that point has been made before. It is not art and antiquities; it is the art and antiques unit.

[Kevin Brennan]

I stand corrected.

[Victoria Borwick]

I have visited it.

[Kevin Brennan]

I am pleased to have that correction, because my notes say “antiquities” so I shall correct myself as I go along. I turn to the arts and antiques unit of the Metropolitan police, which I understand is composed of three people. As the hon. Lady has visited, perhaps she can tell me whether I am right in that.

[Victoria Borwick]

indicated assent.

[Kevin Brennan]

The hon. Lady is nodding, so at least I got that right.

For now, suffice it to say that regulating this industry—which, particularly in relation to the auction market, is sometimes lacking in information regarding who owns what, as we have heard already—poses a rather large challenge for this team of three people.

Indeed, Dick Ellis, the aforementioned founder of the unit, has acknowledged that the team is not big enough—again, the hon. Lady is nodding—to solve the problems in the industry. Furthermore, it seems that, apart from an evidence room, this team does not have any special resources or equipment.

Does the Minister foresee this unit’s workload, and of course the subsequent cost, increasing in any way following the passage of the Bill, given the lack of special resources for the long-term storage of cultural property during legal proceedings? Will the Metropolitan police unit receive more resources or will items be kept elsewhere— [Interruption.]

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[Victoria Borwick]

Antiques!

[Kevin Brennan]

It says “antiquities” in the Government’s own impact assessment, I am afraid.

[Victoria Borwick]

rose—

[Kevin Brennan]

The hon. Lady cannot intervene on me because I am intervening on the Minister. The number of personnel to be trained from that unit is four. We heard earlier that there were only three people in that unit, so I hope that is a helpful sign that the Government anticipate that the unit will expand.

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[Tracey Crouch]

I am sure that if it says that in the impact assessment, that is indeed the correct interpretation, but I am happy to provide further information on that on Report if that helps.

I will go back to the points on policing that the hon. Gentleman raised with regard to new clause 1. He will, of course, be aware that we have created elected police and crime commissioners to give strategic direction and to hold police forces to account for operational policing decisions, including how resources are directed between different units and functions. In London, the Mayor of London has that responsibility. We do not think it is necessary or desirable for the Government to cut across that democratic approach to accountability in policing by requiring the Secretary of State to take a specific interest in the funding of individual police units or functions. Moreover, it does not seem to me to be particularly helpful to isolate the implementation and enforcement of the Bill from the excellent wider work being done by so many bodies to protect cultural property.

That also applies to the provision in subsection (3) of the new clause, relating to communication and co-operation between public bodies. As with the costs, I do not think it is helpful to treat that separately from the regular contacts between public bodies on wider cultural protection work. Public bodies are required to report on their work costs and spending, and hon. Members are always extremely assiduous in holding them to account for their use of public money and the way in which they implement and enforce legislation. I am sure that the Bill will be no exception. A separate statutory obligation on the Government to report to Parliament on the costs associated with the Bill therefore seem unnecessary, which is why we oppose new clause 1.

New clause 4 deals with matters of an administrative nature that are not specifically covered by the Bill. We are already considering the administrative measures that will be needed to implement the convention and its protocols once the Bill is passed into law. We will reflect on issues raised during the passage of the Bill as part of that process. The hon. Gentleman mentioned specific items. We do not think it is appropriate to confirm whether a specific cultural object will be afforded protection.

We want to ensure that the views of stakeholders are heard. Next month we are holding a round table discussion with key stakeholders to discuss the categories of cultural property that will be afforded general protection under the convention, and what additional safeguarding measures might be required. The hon. Gentleman might be interested to know that our provisional thinking is that general protection status would extend to buildings, historical gardens or parks of grade I or category A status; cultural world heritage sites; and nationally important collections in museums, galleries and universities, as well as in the national record offices and our five legal deposit libraries. However, we are still determining our categories, and discussions with key stakeholders are ongoing.

[Victoria Borwick]

Will the Minister consider inviting members of the trade and those who deal in cultural objects to participate in the consultation, to ensure that we have effective legislation?

[Tracey Crouch]

I will certainly take that away, discuss it with officials and report back to my hon. Friend.

In practice, a range of safeguarding measures will already be in place for most cultural property under general protection in the UK. Existing listing, designation and accreditation schemes generally require certain measures to be in place to protect cultural property from, for example, fire, flood and other emergencies and natural disasters. Article 5 of the second protocol expands on the meaning of “safeguarding cultural property” by giving some examples of the kind of preparatory measures that should be taken in peacetime. Those include the preparation of inventories, the planning of emergency measures for protection against fire or structural collapse, the preparation for the removal of movable cultural property or the provision for adequate in situ protection of such property, and the designation of competent authorities responsible for the safeguarding of cultural property. The first three measures all represent common-sense precautions and are likely to be covered by existing contingency planning for an emergency or natural disaster.

Once we have decided which cultural property will receive general protection, we will be in a position to decide which are the most appropriate competent authorities for safeguarding that cultural property in the event of armed conflict. Our current thinking is that the most appropriate body to undertake the peacetime safeguarding measures is the existing owner, guardian or trustees of a cultural property.

It is also important to note that article 26 of the convention requires state parties to report at least every four years to the director general of UNESCO on their implementation of the convention. In practice, UNESCO asks state parties to provide information on the measures they have undertaken in relation to relevant peacetime safeguarding provisions as part of the periodic reporting, and those reports are published on the UNESCO website. The UK Government will therefore already be reporting on the safeguarding of cultural property as a matter of good practice, in line with the reporting obligation in article 26. A separate statutory obligation to report to Parliament on matters that are administrative and not part of the Bill appears to be unnecessary.

On new clause 5, I know that many hon. Members are interested in the cultural protection fund and wish to be kept informed about it. However, the cultural protection fund is not part of the Bill, and the new clause therefore introduces a new subject that is beyond the scope of the Bill. It is also unnecessary. The British Council, which is responsible for administering the cultural protection fund, will publish an annual report on the work of the fund. That report will be publicly available. If the fund supports projects with direct relevance to the Bill and to the convention and its protocols, we will work with the British Council to ensure that the annual report includes appropriate mention of them. Our priority is to work with the British Council on the first round of bids, but we cannot make future funding commitments at this stage. I hope the hon. Member for Cardiff West is reassured that information about the cultural protection fund will be made available.

With regard to a point made by my hon. Friend the Member for Enfield, Southgate, parties to the second protocol are not obliged to contribute to the fund for the protection of cultural property in the event of armed conflict, but once the UK has ratified the convention and its protocols, we will begin to consider our role as an active state party. It would not be appropriate—certainly not on the face of the Bill—for the Government to commit to any funding prior to becoming a party to the convention or its protocols. However, I assure him, not just as a consequence of my own competitiveness but because it is morally right to do so, that we will continue to play, or wish to continue to play, a leading role in the the world on this issue. Those are the reasons why I oppose new clauses 1, 3 and 5, but I hope the hon. Member for Cardiff West is reassured by my comments.

Cultural Property (Armed Conflicts) Bill [Lords]

Victoria Borwick Excerpts

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

[Brendan O’Hara]

I will be very brief indeed, Mr Deputy Speaker.

We know that there has been systematic looting of priceless artefacts, and that a flood of artefacts are coming on to the market throughout Europe, America and the far east. We must do everything that we can to protect those artefacts, and I hope that the Government will take on board the amendments tabled by the hon. Member for Cardiff West. I think it incumbent on all of us to protect the cultural heritage, regardless of whose it is. I look forward to supporting the Government, and I am sure that they will accept the amendments.

[Victoria Borwick (Kensington) (Con)]

I declare that I am president of the British Antique Dealers’ Association and that I have also been advised by the British Art Market Federation, the Antiquities Dealers’ Association and LAPADA, all of which have made written representations on this Bill. I concur with the comments of my colleagues that the art and antiques industry is fully supportive of the principles and aims of this Bill.

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[Kevin Brennan]

Does the hon. Lady take any comfort from the Government’s impact assessment of the Bill, which envisages that there would be one prosecution every 30 years under the Act?

[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.

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[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.

[Victoria Borwick]

On the point about the uncertainties, perhaps the Minister will clarify whether the legislation is going to be retrospective. Is it going to apply to items that are imported in future, or to items that are currently in the country? Alternatively, will it apply only to what happens after the Bill is passed? We are talking about items that move from country to country, particularly those in areas of potential conflict, so it would be helpful if there was clarity in the Bill about the date on which an item was imported.

[Mr Burrowes]

I am happy to facilitate the Minister’s being able to respond to that question.

On 18 January 2012, before the adoption of paragraph 17 of Security Council resolution 2199, an EU Council regulation emphasised the same points made in the Security Council resolutions. It referred to situations in which

“there are reasonable grounds to suspect that the goods have been removed from Syria without the consent of their legitimate owner or have been removed in breach of Syrian law or international law”.

The amendments have been tabled in good faith and are well intentioned, and in ordinary circumstances I would think they were well merited and had substance. In this particular case, however, given the context, I do not think they are necessary or, indeed, desirable, especially when one takes into account the international best practice or hears from stakeholders such as the Red Cross and the British Museum. I shall conclude with the words of the latter:

“We feel it is particularly important that there is no watering down of responsibilities or requirements in the Bill. Specifically, we feel that in regard to the Clause 17…it is imperative that the working should remain ‘knowing or having reason to suspect that it has been unlawfully exported’”.

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[Victoria Borwick]

As president of the British Antique Dealers’ Association, I know, as I have said previously, that the arts and antiques industry fully supports the aims of the Bill. There are still areas of concern, however, which have been mentioned. In particular, it is important that honest and well intentioned dealers and auction houses do not risk criminal prosecution when conducting reasonable due diligence. We have discussed the aspects of the Bill concerning the trade that relate to avoiding uncertainty in the art market and ensuring clarity in the practical operation of the law. There is no doubt that uncertainty hampers any market. It is reassuring that the Minister has made it clear on the Floor of the House today and previously that she does not want the market to be hampered. I thank her for that assurance.

The clause 17 offence of dealing in unlawfully exported property depends directly on the clarity and understanding of what is meant in the Bill by the term “cultural property”. As it stands, the punctuation that is used in article 1(a) of the convention, which is reproduced in schedule 1, means that cultural property is not limited to

“property of great importance to the cultural heritage of every people”.

Although the Minister has previously reassured us that cultural property can be protected if it is of great importance to every people, the market seeks absolute clarification on these points, as has been said by other hon. Members. Other categories of property are covered by the definition, regardless of their cultural significance, including

“works of art; manuscripts, books and other objects of artistic, historical or archaeological interest”.

I am delighted that the Minister today confirmed her statement in the House of 31 October that the Government intend to take the same restricted approach to the definition of “cultural property” and that the clause 17 offence of dealing in unlawfully exported property will apply to only a very small but special category of cultural objects—those that are of great importance to the cultural heritage of every people.

Another area of uncertainty is an auctioneer or dealer’s ability to identify the occupied territories to which the law applies, particularly if an item may have been here previously. Of course, a lot of trading goes on between countries all the time. That is why the points that have been made about certainty and the dates of an occupied territory need to be clarified.

Clause 16 states that the Secretary of State’s confirmation that a territory was occupied is “conclusive evidence” of that status once legal proceedings have begun. If the Secretary of State’s word may be provided after the beginning of proceedings, cannot the list of occupied territories, together with the relevant dates of occupation, be drawn up for all to see? Alternatively, could the criteria that the Secretary of State would apply when determining whether and when a country is considered to have been occupied be clarified? I could add to the list east Jerusalem, the west bank, northern Iraq, Libya or southern Sudan. I am sure that other countries could be added. For the avoidance of doubt, art and antique dealers need to know at what point since 1954 a particular territory is covered by the legislation, and whether or not that will be retrospective.

Even if those operating in the art market can identify the territories and the periods when they were considered to be occupied, there is the added issue of determining whether objects left those territories during the period of occupation or at another time, and whether those objects were here before, during or after that period. We need that clarity. The precise historical date or year when an object left a territory could well be difficult to ascertain, which is why the trade asks for clarity in and guidance on the final definitions. We are talking about territories that were deemed to be occupied prior to 1954, so surely this is historical and factual information that should be readily available to the arts and antiques trade, and others, to provide absolute clarity.

In 2008, the Government’s response to the territory question was that a dealer who had carried out proper due diligence checks would be unlikely to be convicted of a criminal offence. I urge the Minister to ensure that that response is clarified and brought up to date.

The Government added that they were unaware of any other parties to the convention having drawn up such a list. I struggle to understand how a law concerned solely with objects unlawfully exported from occupied territories can be expected to operate effectively when there is no means by which anyone is able to identify those territories. Do the Government expect a dealer or auction house to submit requests for confirmation of a territory’s status to the Secretary of State on a case-by-case basis, prior to handling an antique, as part of their due diligence? I urge the Government to prepare a list of the territories covered and the relevant dates, so that proper guidance can be given. As the application is retrospective to 1954, that information must be available and must be a point of record. I ask the Minister to consider these points and others when preparing the regulations governing the Bill.

Question put and agreed to.

Bill accordingly read a Third time and passed, without amendment.