Memorandum submitted by Dr Neil Brodie
THE LICENSING OF ARCHAEOLOGICAL MATERIAL
FOR EXPORT FROM THE UNITED KINGDOM
1. INTRODUCTION
The problems
1.1 The trade in antiquities is clandestine
and not readily amenable to public exposure. Provenances (places
of origin) or ownership histories are not revealed at sales outlets
and so cover is provided for the entry onto the market of material
which was obtained originally by illicit means. Illicit antiquities
which have been looted from archaeological sites and monuments
around the world are fed secretly into the antiquities entrepots
of Europe and North America. Licit and illicit material becomes
hopelessly mixed and the response of dealers, when faced with
this confusion of their own creation, is to consider everything
licit unless proven otherwise (which if course rarely happens
as dealers and auction houses refuse to reveal details of provenance...).
Indirectly, therefore, the Trade encourages the looting and destruction
of the world's archaeological heritage. Professional codes of
ethics are rendered meaningless by this ongoing deception. The
only professional code adhered to is the one of secrecy.
1.2 The 1970 UNESCO Convention on the Means
of Prohibiting and Preventing the Illicit Import, Export and Transfer
of Ownership of Cultural Property and 1995 UNIDROIT Convention
on Stolen and Illegally Exported Cultural Objects have been drafted
specifically to combat the illicit trade in antiquities, but to
date HM Government has consistently refused to ratify either one.
It is difficult for those concerned to bring quantifiable arguments
to bear as information pertaining to the origin of antiquities
is deliberately withheld by members of the Trade who argue, without
revealing their sources, that the volume of the illicit trade
is in fact small, and does not justify the cost to the taxpayer
of ratification. Thus those who stand to lose from ratification
withhold information which has a direct bearing on Government
policy, and are able to stifle any properly informed discussion
of the issues involved.
1.3 The deliberate suppression of information
by the Trade also makes it difficult to mobilise public opinion
against the marketing of illicit antiquities. While details of
provenance are withheld a well-meaning collector cannot choose
only to buy licit material, but must instead take pot-luck. This
type of behaviour would not be tolerated in other areas of the
retail market—used cars for instance where the provision
of ownership history in the form of a logbook is standard procedure.
The withholding of provenance is a disreputable practice, and
one that damages the reputation of the much larger and better
regulated fine art market.
1.4 There is also increasing evidence that
drugs barons and other criminals are able to take advantage of
the darkness in which the international illicit trade in antiquities
carries on for laundering the proceeds of their crimes. There
have been several seizures in Miami in recent years of stolen
or smuggled antiquities, and Miami seems to have become a centre
of the illicit trade on account of the large quantities of "dirty
money" in circulation there.
1.5 London and, by extension, the United
Kingdom is a major transit point for the antiquities trade. The
export of antiquities is controlled and subject to licensing by
the DCMS. In theory, this is one area where the hidden flows of
the trade must come out into the light, to be recorded, described
and quantified. However, the DCMS do not allow public access to
their records, nor can it provide detailed information upon request.
This report, compiled largely from secondary sources, suggests
that, in addition, the operation of the licensing system is far
from perfect and that there is evidence of widespread misunderstanding
or evasion of its requirements.
The "Waverley Report"
1.6 During the eighteenth and nineteenth
centuries of its economic predominance, the United Kingdom amassed
large quantities of cultural material of all kinds and from all
quarters of the globe. By the beginning of the twentieth century,
however, its fortunes were on the slide, and what had, by then,
come to be seen as the nation's heritage was beginning to be bought
up by wealthy collectors and institutions abroad. In 1913 the
Curzon Committee reported that over 500 important paintings had
been lost to the nation, although it recommended that no system
of export control be instituted (Maurice and Turnor 1992: 274).
Subsequent calls for control in 1921 and 1922 were rejected by
the Chancellor of the Exchequer and no action was taken (ibid:
274).
1.7 The present system of export control
dates back to the 1939-45 war when the Import, Export and Customs
Powers (Defence) Act 1939 was enacted to prevent any flow of capital
out of the country, thereby protecting the foreign exchange reserves
of the United Kingdom. In 1940 antiques and works of art became
subject to this control and at the end of the war it was realised
that the Act could be used to stop the export of cultural material
(ibid: 274). The operation of this export control was not
well established however, so in 1949 a committee under the chairmanship
of Viscount Waverley was appointed by the Chancellor of the Exchequer
to investigate means of controlling the export of works of art.
Its report, known now as the "Waverley Report", was
published in 1952 (Committee on the Export of Works of Art etc
1952).
1.8 The primary objective of the Waverley
Committee was to design a system of export control which would
prevent the loss from the United Kingdom of what were termed "national
treasures", without at the same time placing undue hindrance
upon the free trade of other cultural material. "National
treasures" is a term used frequently in the Waverley Report,
which is focused largely on paintings and antique furniture, there
is little specific mention of archaeological material. Indeed,
with regard to antiquities and ethnographic material, the Report
recommended that:
Export control is an unsuitable means of safeguarding
objects of this type . . . and that, if experience shows that
any categories can be freed from control altogether, that step
should be taken as soon as it is possible to do so. (ibid:
42)
1.9 During its deliberations the Waverley
Committee consulted widely and invited comment from a range of
interested parties and expert witnesses. Only four paragraphs
of the Report (which extends to over 400) were devoted exclusively
to the particular problems of archaeological and ethnographical
material. Although various points were made by witnesses called
upon to advise the Committee only two are listed (ibid:
42):
— The undesirability of returning type
specimens to places where there are no facilities for looking
after them, or where the climatic environment is unfavourable.
— Antiquities are always being dug
up and that archaeologists are usually prepared to come to terms
about the distribution of types.
The identities or interests of these witnesses
were not revealed, and whatever archaeological opinion would have
made of these statements in 1952 it is certain that today there
is little to recommend them. There is no mention of assemblage,
context or provenance, all now key concepts in archaeological
practice.
1.10 A further 11 paragraphs of the Waverley
Report were devoted to the problem of re-exports. It noted cases
where export licences had been refused for objects which had only
recently been imported, and recognised the deleterious effect
of such decisions on the trade and the confidence of buyers in
the British market. The Committee emphasised that it was concerned
with export control from the point of view of safeguarding national
treasures, and recommended the establishment of a 50 year time
limit so that export of objects imported within that period could
be claimed as of right, and a licence automatically granted (ibid:
42). The volume of the antiquities trade at the time seems to
have been small. The British Museum for instance advised that
the majority of Greek and Roman antiquities exported were from
long established British collections (ibid: 12).
1.11 Since the Waverley Report there has
been increasing concern over the fate of archaeological, and indeed
of other types of collections, but to date there has been no positive
initiative from Her Majesty's Government. The licensing system
today is still focused on the concept of the individual object
as a treasure or work of art and there is no regard to its cultural
meaning or to the historical significance of its original context.
1.12 In general the Waverley Committee felt
that export control should be confined to limited categories of
objects of high importance and recommended two mechanisms by means
of which importance could be assessed. One was, quite simply,
the monetary value of an object. A series of monetary thresholds
were proposed for different categories of material and only objects
of a price exceeding the relevant threshold would require a licence.
If this criterion of monetary value was met, then the licence
application would be referred to an expert adviser, who might
assess the cultural or historical importance of an object by reference
to the Waverley criteria (ibid: 36). The criteria are:
I. is the object so closely connected with
our history and national life that its departure would be a misfortune?
II. is it of outstanding aesthetic importance?
III. is it of outstanding significance for
the study of some particular branch of art, learning or history?
1.13 The judgement of the expert adviser
would then be subject to the further arbitration of an appointed
Reviewing Committee, which would also be responsible for overseeing
the operation of the control. In practice only a few licence applications
for archaeological objects are referred to the Reviewing Committee,
and deferrals are usually granted after satisfaction of the third
criterion. Interestingly, though, in the Waverley Report, archaeological
material was only mentioned in connection with the first criterion
which, it was thought, might apply to:
. . . such archaeological discoveries as the
Battersea Shield and the Sutton Hoo Ship Burial in the British
Museum, which are not protected by the law of Treasure Trove.
(ibid: 37)
Mention of the Sutton Hoo burial carries an
implicit understanding of the importance of assemblage and context,
which is not otherwise mentioned, as it is the context, and not
the individual items, which provides the connection with British
history and which imbues the objects with a historical rather
than aesthetic importance.
1.14 As a result of the Waverley Report
two separate categories of material are now recognised by the
licensing system: material which has been in the UK for over 50
years and material imported within that time. Thus a distinction
is drawn between what is considered to be part of the national
heritage—material in Britain for more than 50 years—and
what is considered to be traded material—in Britain for
less than 50 years. The operation of the licensing system pays
great attention to the first category, indeed the system is designed
specifically to protect the national heritage so that many objects
will be reviewed individually. For the second category, however,
the traded material, the requirements are less stringent and licences
are granted more or less automatically. A cynical commentator
might be forgiven for observing that the system functions to protect
the heritage of the United Kingdom while at the same time allowing
the British economy to benefit from marketing the heritage of
others.
EC Regulation No. 3911/92
1.15 The system of export control changed
in 1993 with the implementation into British law of EC Regulation
No. 3911/92 on the export of cultural goods. This imposed a zero
monetary threshold on archaeological material and so required
that all antiquities exported to destinations outside the European
Union, whatever their value, should be subject to licence. The
Regulation attracted opposition from commercial interests for
what Brian Cook has called two reasons and an excuse (1995: 189).
The reasons were first, that it would be bad for the London art
market and, second, that the massive increase in licence applications
would place an insupportable burden upon the Government department
called upon to administer the system; the excuse was that it would
commit the United Kingdom to enforcing the export laws of other
countries. Under pressure from the trade, Her Majesty's Government
negotiated an exclusion clause.
1.16 HM Government had been prepared to
block negotiations in Brussels over this issue of licensing archaelogical
exports and as a result it was successful in obtaining an amendment
to the Regulation so that objects of limited archaeological or
scientific importance are now excluded from licensing requirements
(Morrison 1995: 208-9). In response to concerns over illicit exports
expressed by various Mediterranean countries the Reviewing Committee
(1991: 6) responded that: ". . . the trade in cultural goods
is an important area of trade and . . . the UK art trade operates
a voluntary code of practice, agreeing not to handle objects which
it has reasonable cause to believe are of dubious provenance".
Some later Reports have taken a less sanguine view (1994: 9,11)
and in 1992 the Committee felt that: "It may be . . . preferable
to handle only objects of clearly identified provenance even if
that would mean restricting the business to the contents of the
sculpture gallery of Charles Towneley and the Duke of Marlborough's
gem cabinet" (1992: 4). Needless to say, this happy circumstance
has not materialised.
1.17 At present the licensing system is
administered by the Export Licensing Unit of the Department for
Culture, Media and Sport and the Reviewing Committee reports to
the Secretary of State for Culture, Media and Sport. Guidelines
to the operation of the system are set out in the 1997 booklet
Export Licensing for Cultural Goods. In general, exports
to destinations outside the European Union require an EC licence
while exports to destinations within the European Union require
a UK licence. The EC licence was introduced in 1993 with the implementation
into British Law of EC Regulation 3911/92.
1.18 DCMS figures show that the large majority
of exports (of all classes of cultural material, and so presumably
also antiquities) are directed outside the EU (Table 1).
Table 1.
TOTAL VALUE IN £(000) OF EXPORTS OF CULTURAL MATERIAL (REVIEWING
COMMITTEE 1995: 61; 1996: 57; 1997: 55; 1998: 51)
| Total exports |
Exports
outside the EU | Percentage
|
| 1994-95 | 1,269,057 | 1,171,490
| 92.3 |
| 1995-96 | 1,298,144 | 1,189,532
| 91.6 |
| 1996-97 | 1,312,281 | 1,261,421
| 96.1 |
| | |
|
2. EXPORT LICENSING
REQUIREMENTS FOR
ARCHAEOLOGICAL MATERIAL
FOUND IN
UK SOIL OR
ITS TERRITORIAL
WATERS
Requirements
2.1 At the present time all archaeological material more
than 50 years old found in UK soil or its territorial waters,
whatever its value, requires a licence for export and is subject
to expert review.
Procedure
2.2 Licence application forms are obtained from the Export
Licensing Unit, and completed forms are returned to the Unit.
A description of the object to be exported must be provided but
there is no requirement for an accurate statement of provenance.
Applications are then forwarded to an expert adviser, who will
decide whether a licence should be granted or the application
deferred. The adviser will judge the application by reference
to the Waverley criteria, and if the object fails to satisfy any
of the criteria then the licence is granted. If, however, the
object is of Waverley standard (ie satisfies one or more of the
Waverley criteria), then the licence application is referred to
the Reviewing Committee on the Export of Works of Art. If the
Reviewing Committee agrees that the object is of Waverley standard
then it recommends to the Secretary of State that a decision on
the licence application should be deferred for a specified period
so that a British institution might come forward to purchase the
item at a fair price, thereby guaranteeing its retention within
the UK. If, on the other hand, the Reviewing Committee decides
that the object in question is not of Waverley standard, then
it recommends that an export licence be granted.
2.3 Staff at the British Museum's Departments of Prehistoric
and Roman Antiquities and Medieval and Later Antiquities act as
expert advisers. They regularly review the catalogues of the major
auction house (Sotheby's, Christie's, Bonhams and Phillips) but
not of smaller dealers. They occasionally see licence applications
from smaller dealers but not routinely.
Discussion
2.4 It is of interest to know what quantity of material
might be moving out of the country without licence. Table 2 shows
the number of export licences issues per year for archaeological
material of UK origin over a nine year interval. It is clear that
the numbers are not high, and the conclusion must follow that
many objects are exported without a licence. Some cases of this
sort are quite well known. The Icklingham Bronzes for instance,
bought by The Ariadne Galleries of New York, where shipped to
the US without any licence being issued. Many objects from the
Salisbury Hoard were also exported but not a single licence application
was made. Carolyn Morrison (1995: 208) has suggested that the
Government response to this obvious evasion was to look again
at the zero limit to see what part it plays in promoting clandestine
trade although, to date, it has not been revised.
Table 2. LICENCES GRANTED FOR ARCHAEOLOGICAL
MATERIAL OF UK ORIGIN. THE BAR INDICATES THE INTRODUCTION OF THE
EC LICENCE IN 1993. (THE REASON FOR THE INFLATED FIGURE NOTED
UNDER MEDIEVAL AND LATER FOR THE YEAR 1990-91 IS NOT CLEAR, IT
MIGHT HAVE BEEN CAUSED BY THE TEMPORARY EXPORT OF MATERIAL FOR
EXHIBITION).
| Year | Prehistoric and
Romano-British
| Medieval
and Later |
| 1989-90 | 1 | 81
|
| 1990-91 | 21 | 4,008
|
| 1991-92 | 12 | 9
|
| 1992-93 | 3 | 14
|
| 1993-94 | 54 | 18
|
| 1994-95 | 369 | 5
|
| 1995-96 | 88 | 28
|
| 1996-97 | 117 | 201
|
| 1997-98 | 175 | 63
|
| | |
2.5 Sometimes, at least, the failure to obtain a licence
might owe more to uncertainty over licensing requirements than
to deliberate evasion. One US company, for instance, organises
treasure hunting tours to Britain and is careful to meet all legal
requirements and works in collaboration with British museums.
In the past, however, it has only applied for export licences
for objects which would be designated under English law as Treasure,
and was in the past unaware of the need to licence all objects.
It estimates that for one of its tour groups, comprising about
40 metal detectorists, it would require many thousands of licences,
which gives some idea of the amount of unlicensed material leaving
the country. In 1999, however, after consultation with the Export
Licensing Unit, a system has been established whereby everything
discovered during the company's tours will be listed and passed
by the British Museum, and a licence will be issued. If, in any
one year, only a couple of hundred licence applications are reviewed
while at the same time thousands of objects are exported by a
single tour group then the true scale of unlicensed export is
a matter only for speculation.
3. EXPORT LICENSING
REQUIREMENTS FOR
ARCHAEOLOGICAL MATERIAL
FOUND IN
SOIL OR
WATERS OUTSIDE
THE UK AND
ITS TERRITORIAL
WATERS
Requirements
3.1 If an antiquity to be exported to a destination outside
the European Union is more than 100 years old then an EC Licence
is required. However, objects considered to be in one of the following
categories of limited archaeological or scientific interest do
not require an export licence:
— numismatic items of a standard type which are
pubished in a reference work on numismatics; and
— objects, other than numismatic items, which possess
no special or rare features of form, size, material, decoration,
inscription or iconography and which are not in an especially
fine condition for the type of object.
Objects falling within these categories do not require a
licence provided that:
— they do not form part of a recognised archaeological
collection of special historical significance;
— they are not the direct product of excavations,
finds and archaeological sites within a Member State [of the European
Union], ie they have not come straight onto the market after being
recently discovered;
— they are lawfully on the market. Objects which
are stolen would not qualify; and
— they do not fall within any other category of
the Annex [of EC Regulation 3911/92]. Category A2 in particular
may be relevant. That category covers elements forming an integral
part of a dismembered monument more than 100 years old.
It is worth emphasising this last point, made in the DCMS
leaflet Guidance to Exporters of Antiquities, that elements
forming an integral part of artistic, historical or religious
monuments of an age exceeding 100 years which have been dismembered
are subject to a zero monetary threshold and cannot be excluded
from licensing requirements on the grounds of limited interest.
Thus the large number of architectural fragments from Gandharan,
Tibetan, Cambodian etc temples, palaces and monasteries which
are presently flowing through the country should all be licensed.
Whether they are or not is not known.
3.2 Objects which have been imported from another EU
country within 50 years of the date of export are automatically
granted an EC licence provided it can be shown that the object
was legally despatched from its originating member state. Again,
this point needs emphasising. An application for an EC licence
has to be accompanied by documentary proof of legal despatch from
the EU country of origin. If the requirement for an EC licence
is waived then no check is made on the legality of its previous
export.
3.3 If an object to be exported has been in the United
Kingdom for more than 50 years, is more than 50 years old, and
is valued at over £39,600, an expert adviser will judge the
application by reference to the Waverley criteria, and a UK licence
is required.
The system is summarised on the next page:
Procedure
3.4 In practice, auction (and some dealers') catalogues
are circulated to expert advisers in relevant museums who decide
in advance of a sale which lots would require a licence for export,
or might satisfy one or more of the Waverley criteria and be referred
to the Reviewing Committee. Lists of lots requiring licences can
be obtained at pre-sale viewings. For dealers who do not produce
a catalogue licence applications are left to their own discretion
and they provide the Export Licensing Unit with quarterly returns.
Discussion
3.5 In theory, the only antiquities which are judged
by the Waverley criteria are those which have been in the United
Kingdom for over 50 years and which are valued over the relevant
monetary threshold (which is at present £39,600). In practice
this seems usually to be the case. The average values of antiquities
that are passed for expert judgement can be calculated from figures
provided in the Reports of the Reviewing Committee (Table 3).
It can be seen that for three categories of material over the
past three years average values have exceeded the monetary threshold,
except Greek and Roman in 1997-98, implying that antiquities valued
at less than the set threshold were passed for judgement. Why
this should have happened is not clear.
Table 3. TOTAL AND AVERAGE MONETARY VALUES
OF APPLICATIONS FOR LICENCE OF EXPORT OF ARCHAEOLOGICAL MATERIAL
NOT OF UK ORIGIN SUBMITTED FOR EXPERT REVIEW
| Total number
of objects
| Total value
(£) | Average value
(£)
|
| 1995-96 | |
| |
| Egyptian | 5 | 1,810,000
| 362,000 |
| Greek and Roman | 18 | 1,796,944
| 99,830 |
| Western Asiatic | 7 | 421,025
| 60,146 |
| 1996-97 | |
| |
| Egyptian | 11 | 885,825
| 80,529 |
| Greek and Roman | 10 | 713,823
| 71,382 |
| Western Asiatic | 10 | 395,213
| 39,521 |
| 1997-98 | |
| |
| Egyptian | 10 | 1,420,000
| 142,000 |
| Greek and Roman | 9 | 63,836
| 7,093 |
| Western Asiatic | 15 | 860,160
| 57,344 |
| | |
|
3.6 How many antiquities require a licence? At the public
viewings which precede auctions printed lists are available to
indicate which lots will need a licence for export. The figures
for two recent auctions held at Bonhams (for antiquities not of
UK origin) are noted in Table 4.
Table 4. NUMBER OF LOTS FOR SALE BY AUCTION
AT BONHAMS REQUIRING A LICENCE FOR EXPORT
| Number of lots |
Number
requiring
licence | Percentage
|
| 25 November 1999 | 310 |
13 | 4.2 |
| 22 April 1999 | 741 | 68
| 9.2 |
| | |
|
A preliminary conclusion to be drawn from these figures is
that something in the region of 7 per cent of all antiquities
exported should require a licence.
3.7 It is not possible to estimate how many antiquities
which arrived in the past 50 years (ie traded) are exported in
any one year. The Chairman of the Antiquities Dealers Association
(ADA) said in 1993 that its members had supplied a vast amount
of data to the Government when lobbying to change the EC Regulation
(Clayton 1993: 7), so when Carolyn Morrison, then head of the
cultural property unit, suggests that the dealers themselves argued
that upwards of half a million objects a year were leaving the
country (1995: 208), it is a figure to be taken seriously. Assuming
the dealers know their business, and half a million objects a
year are indeed exported, and from the previous paragraph it is
assumed that perhaps 7 per cent require a licence, then something
in the order of 35,000 licences a year should be issued. This
is not the case. The total number of licences issued per year
by the Export Licensing Unit are shown in Table 5, and these figures
are for all classes of cultural material, including fine art and
antique furniture, not just antiquities.
Table 5. TOTAL NUMBER OF CULTURAL OBJECTS
(IN THE UNITED KINGDOM FOR LESS THAN FIFTY YEARS) LICENSED FOR
EXPORT
| Number of objects licensed
|
| 1995-96 | 6,869 |
| 1996-97 | 7,728 |
| 1997-98 | 8,151 |
| |
Clearly, the number of licences issued for antiquities must
be lower, and considerably lower than the expected 35,000. There
are three possible explanations:
— There is widespread evasion of the licensing system.
— The figure of half a million objects suggested
by the trade in 1993 was grossly inflated, perhaps to over-emphasise
the economic importance of the trade so as to discourage the Government
from implementing fully the EC Regulation.
— The major part of antiquities sold are not exported,
in which case it is difficult to see how their sale can benefit
the UK economy as the trade continues to maintain.
It is not certain to what degree dealers comply with, or
even understand, the present system of export control. One dealer
has stated that a licence is only applied for when an object is
sold for more than £39,600, which is clearly in contravention
of present rules and harks back to the pre-1993 system. Another
dealer, when approached, merely stated that the UK only operates
the system out of selfish interest—it wants to keep the
best pieces for itself! The Chairman of the ADA warned his members
in 1993 that it was essential for antiquities dealers to comply
fully with the EC licensing system as the negotiated exclusions
are voluntary and could be withdrawn (Clayton 1993: 7). These
figures suggest that compliance is far from satisfactory and that
the exclusions should be reviewed.
3.8 Any cultural object which has come into the United
Kingdom from another EU Member State since 1993 must have valid
export documentation from its country of origin before the DCMS
will issue an EC licence for its export from the UK. This is to
stop material from parts of Europe with a stringent export regime
being exported from those (particularly the UK) with a more liberal
regime. In practice, however, there seem to be few checks on original
documentation because, as pointed out above, most material is
excluded from EC licensing requirements, presumably on the grounds
of limited importance. If an auction lot does not require a licence
then it can be exported without any check being made on its original
documentation.
A study of Classical Greek and Italian pottery offered for
sale at two recent auctions (Bonhams: 25 November 1998 and 22
April 1999) showed that out of a total of 61 lots only six had
any kind of a provenance and of the remaining 55 only one required
an EC licence for export. Thus 54 lots (106 pots) could have been
exported without being passed through the licensing procedure,
and with no check being made on their recent history. Included
in this number were at least four Apulian vases. These vases,
made during classical times in the area of what is now Puglia,
in Italy, have been exhaustively studied and catalogued by Australian
scholars. This means that any Apulian vase appearing on the market
today without a provenance has almost certainly been looted. Official
Italian statistics of illegal excavation show that between 1993-97,
of all Italian regions, Puglia was probably the hardest hit. 21
per cent of all looted antiquities recovered nationwide by the
Carabinieri were from this area. (Elia 1999.)
The failure in the UK of expert advisors to ask that such
material be licensed means that the original documentation of
antiquities such as the Apulian vases is not checked—there
is no check made on the legality of their original export from
Italy. This seems to undermine the purpose of the EC Licensing
System which is to prevent the illegal export of cultural material
from one member state to another, and can only facilitate the
movement of illicit material through the market.
3.9 Upon occasion the licensing system has been abused
when exporters have submitted recently imported antiquities for
Waverley judgement, the intention being, in effect, to acquire
a false provenance. (To be passed for a Waverley judgement the
object must have been in Britain for 50 years, thus if an antiquity
is passed through the Waverley reviewing procedure it effectively
acquires an official statement to this effect). The most celebrated
case of this sort was discussed in the Thirty-sixth Report of
the Reviewing Committee (1990). An Etruscan helmet, discovered
in 1965 15 kilometres south of Barcelona, was exported from Spain
illegally in 1988 and sold at Christie's to Robin Symes, who subsequently
exported it (legally) to the United States where it is now thought
to be in the collection of Leon Levy and Shelby White. Robin Symes
submitted his licence application for review, but the Committee
granted a licence after they were made aware of its status as
a recent import. They concluded that: "In future, therefore,
when the Expert Adviser has strong doubts as to the date at which
an object has been brought into this country, we shall recommend
that a licence should be granted even if the object is of Waverley
standard" (1990: 10). Despite his attempted abuse of the
system Robin Symes was invited to attend meetings of the Reviewing
Committee in 1997 as an independent assessor!
4. OPEN INDIVIDUAL
EXPORT LICENCES
4.1 Open Individual Export Licences exempt the holders
from the need to apply for individual licences for exports to
destinations within the EC of any object imported within the last
50 years. There are currently two in existence, and although the
DCMS cannot reveal the identities of the holders in the Thirty-seventh
Report of the Reviewing Committee (1991: 4) it was noted that
OEILs had been granted to Sotheby's and Christie's, and there
has been no subsequent notice of their withdrawal. It is notable
that in the Forty-third Report of the Reviewing Committee the
revelations made by Watson (1997) about the role played by Sotheby's
in the illegal movement of antiquities were passed over in silence.
The suitability of Sotheby's as a recipient of an OEIL was not
questioned, although the Government has the power to revoke these
licences if the holders engage in any form of disreputable practice.
5. DTI FIGURES
5.1 The Annual Reports of the Reviewing Committee also
provide export statistics derived from HM Customs and Excise trade
data, although there is little correspondence between these statistics
(compiled by the Department of Trade and Industry) and those which
record the value of export licences issued by the DCMS. As shown
in Table 6 the DTI figures are consistently lower, and by significant
amounts.
Table 6. VALUE IN £(000) OF CULTURAL
MATERIAL LICENSED (DCMS) AND EXPORTED (DTI) (REVIEWING COMMITTEE
1995: 12; 1996: 14, 1997:55).
| DTI | DCMS
|
| 1994-95 | 1,269,057 | 3,133,835
|
| 1995-96 | 1,298,144 | 3,371,449
|
| 1996-97 | 1,312,281 | 2,976,291
|
| | |
The DTI figures are taken from the Standard International
Trade Classification (SITC) Category 896 (Works of Art, Collectors
Pieces and Antiques) which encompasses most cultural material
licensed for export (including paintings etc), so there should
be a broad measure of agreement between the two sets of statistics.
If anything the value of material licensed should be lower than
the value of material exported, as not all material exported is
licensed. It shouldn't be almost three times as high, as it is
in the figures for 1996-97.
5.2 When approached, the DCMS suggests that objects between
50 and 100 years of age are excluded from the DTI figures, and
perhaps aeroplanes and motor cars too. Other classes of material
recorded by DCMS but not listed in SITC Category 896 might also
be suggested: books; scientific drawings, manuscripts; photographs;
scientific material. But still, over the years in question here
(1993-96), these classes together only accounted for about 5-8
per cent of the total value of material of British origin licensed
for export, which is not enough to explain the discrepancy. The
DCMS statistics also include material from National Museums and
Galleries leaving the country temporarily for exhibition, but
it is not clear what proportion of the total can be accounted
for by loans. Again, however, it is not likely to account for
the large size of the discrepancy.
5.3 However, the DTI statistics themselves are far from
convincing. The Department of Trade and Industry allows public
access to trade statistics which are compiled according to the
internationally agreed Standard International Trade Classification
(SITC). For cultural material, however, this classification is
far from ideal as the recording categories are too broad and imprecise.
Nevertheless, figures for exports to the US of category 896.50.
(collections and collectors pieces of zoological, botanical, mineralogical,
anatomical, historical, archaeological, palaeontological, ethnographic
or numismatic interest) are shown in Table 7. Unfortunately, however,
the official US trade statistics which record the value of imports
from the UK for the same category (896.50), also shown in Table
7, do not agree with the equivalent figures provided by the DTI
for British exports.
Table 7. ANNUAL VALUE OF EXPORTS FROM THE
UK TO THE US OF SITC CATEGORY 896.50. OFFICIAL US TRADE STATISTICS
FOR IMPORTS, AND UK STATISTICS FOR EXPORTS.
| Exports to US | 1996
| 1997 | 1998 |
| Total value (£000) | 22,320
| 18,214 | 33,172 |
| Imports from UK | 1996
| 1997 | 1998 |
| Total value ($000) | 9,100 |
13,700 | 13,700 |
| | |
|
Clearly there is a huge discrepancy between the figures provided
for US imports from the United Kingdom, and those for UK exports
to the United States. UK exports are valued at something like
two to three times more than US imports. The DTI can list thirteen
reasons for discrepancies such as these, which include reporting
timelags, differences in SITC categorisation and fraudulent declarations.
The cause of the discrepancy in this particular case is not immediately
clear.
6. CONCLUSIONS
6.1 It is in the public's interest for the trade in antiquities
to be properly monitored and for useable statistics to be compiled
and made readily available as there are, at present, no reliable
quantitative data available with which to describe the trade.
In their absence there can be no fully informed debate over the
merits or effectiveness of the UNESCO or UNIDROIT Conventions,
or the desirability of ratification by Her Majesty's Government.
6.2 It would also seem to be in the Government's interest,
if only for purposes of revenue collection, to have a recording
system that is comprehensive and coherent across different Departments.
6.3 There is also increasing concern about the abuse
of the antiquities trade for money laundering, and the trade might
be included in a new money laundering Directive presently being
drafted by the European Commission. Central features of any regulatory
code, whether statutory or voluntary, are the creation of "paper
trails" and the operation of a transparent market, as seen
to some extent in the new CoPAT Codes of Due Diligence. The Financial
Action Task Force (an inter-governmental body established by the
1989 G-7 summit in Paris to combat money laundering) noted in
1998 that an effective regime of export control deters the use
of cultural objects for money laundering, and mentioned the French
system. The French system requires that every object exported
should be licensed.
6.4 The export licensing system was never intended to
control the movement through the United Kingdom of antiquities
of foreign origin, thus it would be wrong to portray it as a mechanism
of control. However, given the present state of the antiquities
trade, which since 1952 has changed beyond recognition, and given
the political importance of the problems caused by the trade,
the licensing system could function as a useful, indeed necessary,
means of information acquisition. The EC Licence application form
requires that descriptions of the object to be exported be provided,
which for objects originating outside the UK goes some way towards
providing a provenance. Thus the information collected would allow
material flows to be identified and quantified. This would require
the present exclusions to be withdrawn, but otherwise no new legislation
would be needed.
6.5 The Reviewing Committee, which oversees the operation
of the export licensing system, is assisted by an Advisory Council
which has at present in excess of 60 members (see appendix) [16].
However, one—the Council for British Archaeology—could
be said unequivocally to represent archaeological interests. It
is surprising that English Heritage is not represented, nor indeed
is Cadw or Historic Scotland: these are Government agencies charged
with the protection of the nation's archaeological heritage. Similarly,
there are no representatives or archaeological organisations with
an interest in foreign archaeology, although the bulk of exported
antiquities are probably of foreign origin, and a large number
of British archaeologists have research interests abroad. They
often have first hand experience of the damage caused by looting
and so have a direct interest in the operation of the London market,
but have no voice. The Sotheby's (paragraph 4.1.) and Symes (paragraph
3.9) episodes show clearly that archaeological concerns are not
always uppermost in the minds of the Advisory Council. Clearly,
there is an urgent need for greater archaeological representation,
from the Institute of Field Archaeologists, English Heritage,
Cadw and Historic Scotland, and perhaps also from the British
membership of the European Association of Archaeologists and the
World Archaeological Congress.
6.6 In closing, the Waverley Report called for general
co-operation between museums, collectors and dealers, and recommended
in particular that dealers provide information and guidance regarding
sales (Committee on the Export of Works of Art etc 1952: 64).
It was intended that such co-operation would reduce the burden
on the Review Committee, but the policy of non-disclosure promoted
by the trade as a professional principle would seem to fly in
the face of this recommendation. It is a shame that now, nearly
50 years later, the British taxpayer might be called upon to help
monitor the activities of those who profit from the destruction
of the world's archaeological heritage.
RECOMMENDATIONS
1. HM Government should move to revoke exclusions to
the EC licensing requirements for archaeological material.
2. HM Government should ensure that information collected
by the Export Licensing Unit is made publicly available.
3. HM Government should look again at the constitution
of the Advisory Council, and promote increased archaeological
representation.
ACKNOWLEDGEMENTS
Thanks are due to Roger Bland, John Cherry, David Gurney,
Lynn Gates, Stuart Needham, James Normandi and Graham Suggett
for information supplied. The opinions expressed, however, remain
my own.
REFERENCES
Clayton, PA 1993. Antiquities legislation and the European
Community. Minerva 4, 1: 7.
Committee on the Export of Works of Art etc (1952). The
Export of Works of Art etc. Report of a committee appointed by
the Chancellor of the Exchequer, London: HMSO.
Cook, B 1995. The antiquities trade; a curator's view, in
K W Tubb (ed), Antiquities Trade or Betrayed: 181-192.
London: Archetype Publications.
Elia, R 1999. Apulian vases. Paper presented at the symposium
Illicit Antiquities: The Destruction of the World's Archaeological
Heritage, held at the McDonald Institute for Archaeological
Research, Cambridge, October 1999.
Maurice, C & Turnor, R 1992. The export licensing rules
in the United Kingdom and the Waverley Criteria. International
Journal of Cultural Property 1: 273-95.
Morrison, CR 1995 United Kingdom Export Policies in relation
to antiquities, in K W Tubb (ed.), Antiquities Trade or Betrayed:
205-210. London: Archetype Publications.
Reviewing Committee 1990. Export of Works of Art 1990-91.
Thirty-sixth Report of the Reviewing Committee. London: HMSO.
Reviewing Committee 1991. Export of Works of Art 1990-91.
Thirty-seventh Report of the Reviewing Committee. London:
HMSO.
Reviewing Committee 1992. Export of Works of Art 1991-92.
Thirty-eighth Report of the Reviewing Committee. London: HMSO.
Reviewing Committee 1994. Export of Works of Art 1993-94.
Fortieth Report of the Reviewing Committee. London: HMSO.
Watson, P 1997. Sotheby's Inside Story. London: Bloomsbury.
March 2000
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