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.