Cultural Property (Armed Conflicts) Bill [Lords]

Debate between Victoria Borwick and David Burrowes

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

[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.

--- Later in debate ---

[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’”.