Earl of Clancarty
Main Page: Earl of Clancarty (Crossbench - Excepted Hereditary)Cultural Property (Armed Conflicts) Bill [HL]
Earl of Clancarty Excerpts
Lord Howarth of Newport (Lab)
My Lords, I regret that I was unable to participate at Second Reading—the aeroplane I was in did not land until mid-afternoon—but I hope I may join in the proceedings today on this very important measure. I add my welcome and thanks to the Minister for introducing this Bill in your Lordships’ House.
I fully sympathise with the desire of my noble friend to ensure that the provisions that we legislate are up to date and that the definition of culture is as contemporary as it can be and is, as far as possible, future-proof. However, does he feel that the term “movable property” may, with sufficient ingenuity and latitude taken by the courts, satisfy what he seeks to achieve? The subsequent list of examples given in the definition in Article 1 of the convention, to which he referred, is illustrative only. It does, of course, reflect conceptions of culture that were prevalent at that date. However, I am concerned and would be grateful if my noble friend would explain how he deals with the very practical legal objection that has been put forward by Professor Roger O’Keefe, who warns us that it is dangerous to mess about—not his words but mine—with the definition or its interpretation. He says:
“The definition is found in a treaty to which 127 states are currently parties. International law dictates that the definition be the same and be interpreted the same way by all states parties”.
He is concerned that, if we now attempt to alter a definition that has been acceded to by 127 other states parties, difficulties may arise. Among those, he suggests that there could be,
“knock-on effects under international law. Not the least of these would be that the UK would be asserting forms of extraterritorial jurisdiction”,
with all the sensitivities that go with that.
While I fully sympathise with the objective of my noble friend, it would help the Committee if he would explain how he would deal with that technical, but very important, objection that we have been advised of.
The Earl of Clancarty (CB)
My Lords, I too am sympathetic to the aims of Amendment 1, moved by the noble Lord, Lord Stevenson, and supported by the noble Lord, Lord Collins. This should not just be about new technology, since new art and culture are being made as we speak, using traditional media as well. We should not forget that art, and much of our culture, is made by people and, indeed, people tragically die making a contribution to the culture of their country. I am thinking in particular of the confirmation this week of the tragic deaths of the five Syrian journalists at the hands of ISIS, as well as that of the Syrian journalist Khaled al-Essa.
On the amendment—although this is not to do with military conflict—I know that I, and many others, in recent times felt a considerable sense of loss after the Momart fire in 2004. Fortunately, that was a rare event, but it included the destruction of over 50 of the best major works by the artist Patrick Heron. I mention this simply to say that culture does not have to be 2,000 years old for a great loss to be felt, and newer work in new and old formats is precious as well.
The noble Lord, Lord Stevenson, mentioned film. It might be added that old cine-film and old photographs are very old indeed in terms of the development of these technologies and art forms through the 20th and 21st centuries.
Lord Inglewood (Con)
On the point made by the noble Lord, Lord Howarth—and I also apologise for not having been able to be here at Second Reading—I have every sympathy with the thrust of what the noble Lord, Lord Stevenson, is saying. However, as I was listening to the discussion, it struck me that this Bill is intended to put on our domestic statute the provisions of the Hague convention, and it sits surrounded by a number of other Bills which relate to culture and crimes relating to culture. Surely the right answer is not to tamper with the interpretation of culture in the context of the Hague convention but to make sure that the definition of culture elsewhere on the statute book meets the requirements of the contemporary world.
The Earl of Clancarty
The Earl of Clancarty
My Lords, I thank the noble Lord, Lord Stevenson, for his support for this amendment and Roger O’Keefe, Professor of Public International Law, University College London, for his briefing. The issue here is one of clarity, consistency and accuracy. The term “violation” was adopted by the conference finalising the Second Protocol and my understanding is that this was done quite deliberately so that the terminology would be distinct from that used in the Geneva Convention: namely, the term “breach”. I appreciate that the legislation to ratify this convention around the world will be in different languages. However, it does seem logical that the terminology used in English ought to follow the terminology in English of the Hague Convention itself.
There are two additional problems. One is the inconsistent use of terminology. The word “breach” is used in the heading of Clause 3, which I cannot myself alter by an amendment, yet the term “violation” occurs in the text on page 2 at line 7, so both terms are used in the same clause, which is confusing. The more serious issue is that “violation” in the text is not referred to here as “serious violation”, although “serious breach” is used in the heading, which would distinguish this kind of violation in Article 15 of the Second Protocol from the so-called “other violations” in Article 21. This is important because it is a question of the order of violation referred to. It needs to be changed.
As the Minister herself said at Second Reading, the meaning of “breach” and “violation” is the same. But this is not the point. The issue here is one of consistency and accuracy of use. At the moment it is perhaps a little too sloppy. The 2008 draft Bill used the same terminology as the current Bill, so the Government have inherited it. Will the Minister look at this closely to see if these changes can be made? I beg to move.
Lord Stevenson of Balmacara
My Lords, I rise briefly to support the amendment proposed by the noble Earl, Lord Clancarty. He said that it was aimed at clarity, consistency and accuracy, and I can add no more to that. This is an issue where the Minister may be able to help us further. The substance of the amendment is to make sure that we do not unwittingly create any uncertainty.
Baroness Neville-Rolfe
My Lords, I thank the noble Earl, Lord Clancarty, for his amendments and the noble Lord, Lord Stevenson, for supporting them. I know that many noble Lords will have been in touch with Professor Peter Stone about the use of “breach” as opposed to “violation” in this clause. I had an extremely productive meeting with him only this morning and I will take this opportunity to thank him for his impressive contribution to the field of cultural protection. The nature of the offence is already established in this clause, so it does not need to be set out separately in the first line.
I recognise that there is some uncertainty, as the noble Earl explained so eloquently, and perhaps confusion, as to why we are using “breach” in the title of this part and clause when the convention and protocol refer to a “violation”. The reason for the Government’s approach is very straightforward: breach is a more familiar term in English law, although its meaning in this context is the same as violation. The term “violation” is used in subsection (1)(b) because it is repeating the text of the convention and the Second Protocol. The point has been raised by a number of people, including Members of this House, so I will take the matter away and consider very carefully whether we have got this right before Report. I hope that, on that basis, the noble Earl will feel able to withdraw his amendment.
The Earl of Clancarty
My Lords, I thank the noble Lord, Lord Stevenson, again for his contribution and the Minister for that encouraging reply. I beg leave to withdraw the amendment.
Lord Inglewood
My Lords, I should have mentioned earlier that I am president of the British Art Market Federation, which is in my declaration of interests. The noble Lord, Lord Howarth, made the point very well: there is a real risk that we invent cleverly worded legislation which in effect inhibits the kind of thing the noble Earl talked about. What matters is actually securing convictions where serious crimes have taken place. If we try to finesse everything too much, the risk is that we will not get the convictions and there will no exhibitions of art across borders. That would be a loss, so it is important that my noble friend spell out, in simple terms that people can understand, exactly how we can devise a straightforward and clear way of dealing with the problems that have been alluded to.
The Earl of Clancarty
My Lords, I, too, am sympathetic to the concerns of the noble Earl, Lord Kinnoull, but can we compare notes with or learn from other European countries such as Germany, which has important museums and has operated the second protocol since 2004?
Lord Stevenson of Balmacara
My Lords, I am looking forward to the Minister’s response to the main amendment in this group but I would like to touch on Amendment 30A. Here, we are back with our friends clarity, consistency and accuracy, and as the noble Baroness is also a Minister in the department for business, I am sure she will want to follow this one through carefully. There is some merit in trying to make sure that we replicate the position in other areas where criminal activity might follow from acts by a corporate body, and it will be interesting to hear what she has to say on that.
Lord Collins of Highbury
My Lords, this follows on aptly from previous debate. The purpose of the amendment is to provoke an even stronger debate. The context of the convention is 1954, the context of post-war Europe, where we had a totalitarian state looting property, forcing works of art to be sold, forcing people to give up their property in a quasi-judicial legal way, leading to difficulties over provenance, et cetera. It was a weapon of war.
In fact, in some of the conflicts we have seen in Europe, that sort of looting has become a common feature of war. Actually, as we heard in previous debates, cultural property is not just becoming a weapon of war whereby you culturally attack and undermine people’s wealth or possessions, but is now used to fund war and conflict. It has become an income stream for quasi-states. One of the reasons why we have tabled this amendment is to provoke the sort of debate that we have just had and to ask how effective these measures are. The purpose is not to criminalise art dealers or to attack people. In a sense, by the time a work of art has reached a dealer, it is too late. We are seeking to get the Government to think hard about how to stop the trade being used by the groups that we have been talking about. We have examples. In the antiques trade, it is quite common. We have been talking about endangered species and the use of ivory. We have set a very clear date when ivory cannot be traded. My problem is that if we do not address the fundamental issue of cultural property being used not only as a weapon of war but as an income stream, the issues we heard about in the previous debate about how you prove provenance become very difficult, hence the proposal for the reversal of proof.
We heard a bit about this in the previous statement. We have existing legislation and the codes of practice that have been adopted from existed legislation. There is a useful description on page 7 of the impact assessment of all the different codes of practice for the control of international trading in works of art. The Antiquities Dealers’ Association’s code of practice includes members agreeing to make purchases in good faith and to establish identity. All this is extremely appropriate and good, but has it been enough? Is it sufficient to stop the sort of things that we know are going on? That is the purpose of this amendment: to generate that debate and to ask the Government properly to review whether the existing arrangements and the codes that follow from the convention are sufficient. I hope the Minister will be able to take these points into consideration. I beg to move.
The Earl of Clancarty
My Lords, I shall speak to Amendment 18 in this group, and I thank the noble Lord, Lord Redesdale, and the noble Baroness, Lady Bonham-Carter, for their support for this amendment.
I am attacking the problem from the other end to the noble Lord, Lord Collins. The purpose of the amendment is to remove the long-standing culture of secrecy in the art and antiques trade in the UK, which is a hindrance to the protection of cultural property. London is the second-biggest antiquities market in the world and is perhaps the biggest for Islamic objects. Last year, UNESCO stated that looting in the Middle East is operating on an industrial scale. We know that there is significant illegal trade in London in antiquities from the Middle East from considerable anecdotal evidence and from undercover research, such as that carried out for the excellent Channel 4 “Dispatches” programme, to which the noble Baroness, Lady Bonham-Carter, referred at Second Reading, in which Dick Ellis, the founder and former head of the Metropolitan Police art and antiques Unit, which the noble Baroness, Lady Berridge, and the noble Lord, Lord Howarth, referred to earlier, said that the current three-person team of that unit is simply not large enough to deal with the problem.
I say at the outset that the antiques trade and auction houses do an important job. I am not against the trade, which according to the British Art Market Federation’s website, was worth £9 billion in 2014. Indeed, I am one of a large number of people up and down the country who have bought items at auction, of whatever value. However, the convention of maintaining the secrecy of both sellers and buyers is wrong, and runs counter to everything that art historians and archaeologists try to do, which is to build a historical record and discover the provenance of an object. It is worth saying that the major part of the meaning of cultural property lies in its provenance, often as part of that property’s original environment. Where art historians, experts in ancient manuscripts and other experts try to lift the lid on history, the art and antiques trade obfuscates. Auction houses sometimes provide provenance—sometimes whole auctions will be dedicated to the sale of items owned by a particular celebrity collector, for example. However, the auction houses do this selectively when it suits them, when it is clear that it gives a sale a particular cachet; it is not the general rule.
To peg this amendment to the Bill, it is rightly framed in terms of looted property, but there are other reasons to have the amendment. There is the protection of our own cultural property to consider, whether or not it is looted, and we should not be complacent about that protection. I stand corrected by the Minister when she said at Second Reading that there had been one prosecution under the Dealing in Cultural Objects (Offences) Act 2003—just one, it has to be added, in the last 13 years. My substantive point, which was that there had been no prosecutions for looting in the Middle East—the purpose for which the Act was set up in the first place—still holds. The one prosecution, which happened in the last few weeks, is of someone who stole religious artefacts from churches in the UK. Nevertheless, this is instructive in itself, since to make this looting worth while there have to be buyers for such stolen property.
The art and antiques trade of course says that it is doing what it can to tighten up checks on provenance internally and adheres to its voluntary code of due diligence, but that is not good enough—we need transparency. We expect transparency in so many other walks of life, and we should expect it in the dealing of cultural objects. This brings me to the third good reason for this amendment, which is simply that it is an issue of consumers’ rights. Thinking in particular about the possibility of introducing object passports, I do not see why, if in the instance of buying a car we have the right to know its history and previous owners, and have a logbook as proof of that, we do not grant the same rights for the purchase of an artefact above a certain market value. What is it about being a seller or a buyer that is so shameful that one cannot be revealed to the other, let alone to the rest of the public? When I have bought something at an auction, or even wanted to, what I want to hear from the auction house if I ask them for information on the item is not, “Oh, we can’t tell you who the seller is, sir, we have to protect their confidentiality”, but “We will absolutely provide you with as much information as possible about the object’s history”. Until we have a culture of openness, one that will allow the object to be tracked back from the current buyer, however that purchase is made—of course many purchases are now made online—we have an unhelpfully secretive art and antiques market that breaks the links of the historical record for the object at every transaction in its history.
Baroness Bonham-Carter of Yarnbury (LD)
My Lords, I support not only the amendment but all the words of the noble Earl, Lord Clancarty. In fact, many of the things I was going to say he has already said.
The looted treasure that the likes of Daesh are acquiring is funding terrorism. As we know, the antiquities industry runs on trust, which cannot always be right. As well as the Channel 4 programme that the noble Earl and I both watched, I read a Guardian investigation. Every time its undercover buyer, who is actually an archaeologist of Iraqi origin,
“zones in on something that seems likely to be from an area now controlled by Isis, the dealer … grows vague about the item’s origin”.
Another suggests that a small statue from either Iraq or Syria,
“was bought at an auction. There is never any paperwork”.
This cannot be right.
The amendment seeks to make the antiquities trade and auction houses transparent about the background to the items that they are selling, to contribute to tackling this illegal trade in combating the source of funding for those who bring terror to our shores. I echo what the noble Baroness, Lady Berridge, and the noble Lord, Lord Howarth, have been saying throughout the afternoon about the need for resources for policing. If the amendment is to be successful, there need to be more than three policemen following up on this terrible trade.
The Earl of Kinnoull
My Lords, I, too, support the thinking behind Amendments 20, 26 and 27, particularly in respect of helping the police and Border Force discharge their duties. Having long experience as an insurer, I know that stolen items often spend time with the police or—certainly in one case that I can think of—Border Force, and for understandable reasons. With no intention on the part of the police but simply because they have no expertise in the handling of materials, problems arise. One example comes to mind immediately, where it was a case not so much of a policeman putting his foot in it as of his putting a foot through it—through a major canvas. Therefore, as the noble Lords, Lord Rosser and Lord Howarth, said, some guidelines would be very helpful to the policemen on the front line. The fine art and antiques squad at Scotland Yard is greatly reduced these days; it used to have inspector-level command but is now down to a sergeant. The number of people there is very few, so they cannot ring internally for help, where written help would be enormously useful in these matters.
Cultural objects of the type that we are discussing are usually exceptionally fragile and therefore much more susceptible to mishandling, either through the action of damp and water or simply through being roughly handled. I look forward to hearing what the Minister has to say.
The Earl of Clancarty (CB)
My Lords, I support Amendment 20 in the names of the noble Lords, Lord Rosser and Lord Stevenson, on the basis that it is essential that the UK Border Force is properly trained and seen to be so. There are many different aspects to such training. One obvious thing to say about our borders is that looted property is not stopped. It is worth quoting on this Dick Ellis, the former director of the now much-mentioned Metropolitan Police’s art and antiques unit. He said earlier this year:
“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. At a time when … 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?”.
This is a very good question. The public have a right to know whether and when looted property is stopped and held and what it is. Those data should be published.
Part of the practice of the UK Border Force must be to work closely with other agencies—communication between agencies was referred to by the noble Baroness, Lady Berridge, and the noble Lord, Lord Howarth—as well as experts from universities and museums. That should be part of the code of practice. There should be training in the sensitive handling of objects, as referred to by the noble Earl, Lord Kinnoull, and a good understanding of what is at stake in terms of cultural property.
It is important that objects should not suffer because they have been illegally imported. We talked earlier about the possibility of destruction when objects are held. I have at the back of my mind what happened earlier this year in Miami as a result of the blanket ban that came into force last year in America on importing anything with ivory in it. British importers bringing objects to the art and antiques fair in Miami were forced to destroy antiques that were more than 200 years old because they contained small inlays of ivory. I do not know whether our Border Force destroys anything, but it needs a sophisticated understanding of the significance of cultural property if this or any other kind of conflict arises.
Baroness Neville-Rolfe
I am grateful to the noble Lord, Lord Rosser, for his amendment. It is evident that many Members of the House are, rightly, interested in the role that Border Force and other enforcement agencies can play in the context of this Bill. His involvement shows how wide-ranging is this Bill and the need for joined-up government. I thank him for his pertinent questions, which I shall try to answer.
It is appropriate to clarify once again that the drafting changes made to Part 4 are necessary to reflect the transfer of responsibility from HMRC to Border Force between initial drafting of the Bill in 2008 and now. The substance and policy behind the Bill remain the same, and the wide breadth of support for it is much appreciated.
I can confirm that we foresee no additional costs as a result of moving cultural property under the Bill due to the low volume of unlawfully exported property from occupied territories. The impact assessment was published in good time, but it was not cleared by the RPC at that stage—the RPC is looking at it. I shall bear in mind the point made about business costs, which is what it is concerned with.
Border Force already has nationally published guidance available to all officers via the Border Force intranet site on “cultural goods”, and “cultural goods” are also listed in the Border Force operating mandate. Border Force will update these instructions when the new legislation comes into force to take account of the new powers and ways of working. Border Force staff are already dealing with such responsibilities through its enforcement of the 2003 Act and the Iraq and Syria sanctions.
I think that many would agree that it would be inappropriate to require the publication of guidance about Border Force’s “enforcement practices”. Enforcement practices relating to combating smuggling are often the same regardless of the type of goods. To place this information in the public domain has the potential to impede customs controls and even to jeopardise national security. Moreover, it is extremely difficult for Border Force officials to make a judgment as to the provenance of an object of cultural property at the border. Expert advice is likely to be required involving the Clause 17 offence, so it is unlikely that Border Force will spontaneously seize many objects as a result of this Bill. It seems more likely that its role in enforcing the Bill will be in assisting other law enforcement agencies.
Given the expertise required to identify cultural property unlawfully exported from occupied territories, we do not see Border Force playing a major role in discovering the objects, but in the rare event that an officer can clearly identify something as having been illegally exported from an occupied territory, or has been tipped off, powers of seizure under the Police and Criminal Evidence Act 1984 can be used.
This way of working to tackle illicit trade is well established in the UK and Border Force already works with partners. For example, it prevents the illegal trading of Iraqi and Syrian antiquities, including in the UK, through the implementation of UN and EU sanctions and the use of the International Council of Museums red lists, which have not been mentioned today, which classify the endangered categories of archaeological objects and works of art in the most vulnerable areas of the world.
Lord Stevenson of Balmacara
My Lords, the obligations placed on Her Majesty’s Government as a result of ratifying this treaty go both ways. As I have already mentioned, they apply when British forces, however controlled, take the field in interstate or state-to-state warfare, and they also apply in a situation where we should be preparing for any unfortunate exercise of war against the United Kingdom. Obviously, we hope that that is a very remote situation; nevertheless, it raises questions about the exact order of priorities for the cultural properties and artefacts which fall to our nation to preserve and hold for future generations.
Through the papers that have been prepared and the issues relating to the Bill, we have sought guidance on this, but we have not yet received very much. We had a briefing from Historic England, which has obviously been involved, in which it points out that very few other countries have fulfilled their obligations under the convention to provide lists. However, some have and interestingly, the view appears to be that you should first look to world heritage sites, to UNESCO contexts and other statements made by UNESCO, and then work gradually through to internal arrangements such as listings, and whether it is grade 1 in England or category A in Scotland and other places. Obviously, that could provide a very long list of valuable properties: this country has a large number of buildings that we want to preserve, and that list increases hugely if one thinks about the artefacts gathered over the years that we want to protect.
Some guidance should therefore be forthcoming at some point, whether now or later in the passage of the Bill. Before we finish considering the Bill, it would be helpful to have a better understanding of what approach the Government are taking, what sorts of bodies will be involved, what sorts of buildings and artefacts we are talking about, and, having identified them, whether there are sufficient plans and resources in place to make sure that these precious items have been, will be and could be looked after during any period of warfare that might arise. I beg to move.
The Earl of Clancarty
My Lords, I support Amendment 28 in the names of the noble Lords, Lord Stevenson and Lord Collins. It is worth mentioning that UNESCO requests countries to fill in an extensive questionnaire every four years explaining how they are protecting their cultural property. There is a more general aspect: protection. The last questionnaire completed by Germany can be found online and includes, for example, what has been done to protect cultural property from flooding. It is all very well to say that you have done everything in your power to protect your cultural property from the effects of armed conflict, but if it has deteriorated or been harmed for other reasons, that rather negates the whole point of the exercise. Although military conflict can be devastating, most protection of cultural property takes place in peacetime, and that protection needs to be framed within this wider context.
Baroness Neville-Rolfe
My Lords, the obligation on states party to the convention to safeguard their own cultural property against the foreseeable effects of an armed conflict is obviously an important one. I have already agreed to update the noble Lord, Lord Howarth, on some of our plans more generally, which is probably relevant to this amendment as well. I should say, however, that we have concerns because the safeguarding requirements that are the subject of this amendment seem to relate to administrative arrangements rather than those covered by the Bill. I have already referred, in response to an earlier amendment, to the UNESCO report to which the noble Earl, Lord Clancarty, referred with an interesting example of German good practice. We will be making that report every four years. The UK Government will already be reporting on the safeguarding of cultural property as a matter of good practice, in line with the reporting obligation in Article 26 of the convention, so it does not seem necessary to introduce a separate statutory obligation on this point.
We are already considering the administrative measures that will be needed to implement the convention once the Bill is passed into law and I will reflect, as I have said, on the issues raised during the passage of the Bill so far. In practice, there will be existing safeguarding measures in place for the majority of cultural property under general protection in the UK. 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. These include: the preparation of inventories; the planning of emergency measures for protection against fire or structural collapse—presumably flooding would come under that broad heading—preparation for the removal of movable cultural property or provision for adequate in-situ protection of such property; and the designation of competent authorities responsible for the safeguarding of cultural property.
The early thinking is that the most appropriate body to undertake peacetime safeguarding measures is the existing owner, guardian or trustee of a cultural property. I hope that has given noble Lords some reassurance about safeguarding cultural property, both in relation to substance and process, and I ask them to withdraw their amendments.