Examination of witnesses (Questions 249
- 259)
TUESDAY 18 APRIL 2000
MR ANTHONY
BROWNE, MR
ANTHONY MAIR,
MS RENA
MOULOPOULOS, MR
CHARLES HILL
and SIR THOMAS
LIGHTON
Chairman: Lady and Gentlemen, welcome.
I think you have been listening to some of the previous proceedings
which I think I can accurately describe as rather sardonic.
Mr Fearn
249. You identify the need for an international
database for stolen art. How would this differ from the Art Loss
Register which we have just been looking at?
(Mr Browne) Most of the members of this Federation
are shareholders in the Art Loss Register and use it regularly,
as you have heard. I do not think it is instead of, it would be
maybe a development of that. We see this as solving perhaps the
single most important problem that confronts the open and legitimate
art market we represent which is when the illicit art market comes
into contact with the legitimate art market in trying to establish
due diligence and trying to establish whether or not something
has been stolen. Clearly for our mind, a rarely sophisticated
database, using the modern technology available in terms of search
engines and the Internet would be a huge stride forward. I have
no doubt that this could be done based on the ALR, yes.
250. Do you consider it wrong in principle to
trade in objects which have been illegally exported from their
country of origin?
(Mr Browne) Yes.
251. Yes is the answer?
(Mr Browne) Yes, we do. We have very firm rules in
the organisations I represent that we do not knowingly. The problem
is that very often you have no way of actually checking and that
is where we come back to the database idea. People do not want
to set out to trade in things that people do not have the right
title to. I may say, incidentally, that I would question how sensible
some of the export laws of some countries are in terms of the
fact that they find it very, very difficult to police them and
their citizens clearly do not think they are particularly fair
when they are bona fide owners. We have to respect the laws of
the countries of origin, yes.
252. Certainly the export laws of Greece and
Italy, for instance.
(Mr Browne) Yes, enormous steps are made. I do not
know whether, Rena, you would like to develop on some of those.
We take great steps to ensure we do not handle things.
(Ms Moulopoulos) It is very clearly Sotheby's policy,
and I think many members of the trade's policy, that if we know
something is illegally exported we will not sell it. I think most,
certainly Sotheby's and many other members of the trade, take
the steps where we can to try to ascertain whether it was illegally
exported or not. The obvious first line of inquiry is to enquire
of a seller. Then, I personally or somebody in my department will
sit down with the specialist and further question the specialist
if there are questions they have not thought out or other lines
of inquiry we can make. We automatically send our catalogues through
to the Art Loss Register to see if anything has been registered.
There are 10,000 objects that the Italian police have photographs
of. We do not have the photographs but we do the best we can in
terms of the Art Loss Register. We will send a catalogue of the
image to the major collectors, major museums, free catalogues
to the embassies of the countries that we think would be interested
as well as other material in advance of the sale so they are aware
of what the sale schedule is. Then there is a public exhibition.
Often we will have people from the consulates or the embassies
asking to come to the gallery to personally examine or have their
own professors or archaeologists see if they were from site. Archaeologists
get many catalogues. We feel we are doing everything we can do
and there are many steps that the trade can take to investigate,
to try to figure out "Okay, was this illegally exported or
not?" The auction houses pretty uniformly also get a promise
from the seller to the buyer, directly to the buyer, that the
property was exported and imported properly. If something is sold
inadvertently without knowledge and a few years later a government
comes forward or a victim comes forward, the seller is financially
on the hook, so when they come to a public forum they are financially
going to be liable into the future for their acts. I think there
are many steps that we are taking to try to deal with the illegal
export in the "unprovenanced" art vagaries in the business.
253. The UNESCO Convention, what are your thoughts
on that? Why has this country not actually joined the UNESCO Convention?
(Mr Browne) Our thoughts, as we submitted in the written
evidence, are that the aims of the UNESCO Convention we entirely
endorse. It is the practical workings where it falls down in terms
of the complexity of different laws of the exchange of title of
ownership, in terms of the limitation periods making it very,
very difficult to administer. There are a number of technical
issues. One of the reasons why I brought along Antony Mair is
because he is a lawyer who specialises in this. There are major
practical problems associated with the UNESCO Convention.
254. Such as?
(Mr Browne) Antony, could you amplify?
(Mr Mair) There are two problems which immediately
come to mind. The definition of cultural property covered by the
Convention is extremely wide. You have an international Convention
which is proposing some fairly draconian restrictions on the way
cultural property is dealt with, without, for example, there being
value thresholds at all. That is an immediate problem. It is interesting,
I think, that the US when they ratified the Convention actually
implemented it in an extremely restricted way so that it only
applies in the United States when a foreign state claims that
its cultural patrimony is in jeopardy from pillage and that it
has itself taken measures consistent for the protection of that
patrimony. Then it is open to the United States to bring in local
measures. It is suggested sometimes that the United States has
implemented the whole Convention which would result in restrictions
on internal disposals of cultural property which are really not
realistic.
255. Why could we not do the same thing? Do
we do not do it anyway? Have we not got restrictions anyway?
(Mr Mair) Restrictions on?
256. The illicit trade, for instance?
(Mr Mair) You have got restrictions on dealing in
stolen property. In some foreign countries, Egypt I think is an
example, something which is illegally exported is automatically
considered as stolen under the law of Egypt because it is nationalised.
Consequently, if it is dealt with in this country there is an
offence of handling which will be created. In that way, yes, we
have existing law already which covers it. Also, we have within
the European Union a mechanism for a Member State to reclaim something
which has been stolen or illegally exported from that Member State.
But there is not a general mechanism with worldwide effect at
the moment in this country which enables another country to ask
the Government here to intervene in relation to something which
has been generally illegally exported if it does not fall into
the categories I have mentioned.
257. Is there an on-going dialogue at the moment
with UNESCO or other countries to change the Convention or alter
it, take part in it or what?
(Mr Mair) I think that the UNESCO Convention has largely
been overtaken by the UNIDROIT Convention which is aiming at some
of the same areas. The focus has rather moved to the UNIDROIT
Convention instead, which people are equally unhappy with or perhaps
marginally less unhappy with, because similar failings of breadth
of definition of cultural property. I think the whole problem
in this is that you really have to focus on what the public interest
issue is. I do not think that anybody would really feel that it
would be sensible for Parliament to pass laws which would regulate/enable
Member States or other countries to intervene for items of negligible
value, for example. This seems to be a case of over-regulation.
The difficulty with Conventions at the moment is that they are
really too broad brush and they are not really focusing on the
outstanding items of importance.
258. What I am really after is who is working
on that here in this country? Who is trying to change it or is
it just a dead duck?
(Mr Mair) I would say that I am not aware of any single
body which is working on an international convention to work out
items of outstanding importance being protected. There is no one
body. There is an instance where it has actually been neglected
in so far as under the EC Treaty the definition of national treasures
which would come within the derogation from prohibitions on export
has never been tested in the courts. No other Member State, and
the UK would be a prime instance of somebody who would be able
to make a complaint to the Commission about the breadth of Southern
Member States' export laws, nobody has taken that cudgel up in
spite of the Commission actually inviting people to do it. No
government, no member of the trade, nobody has looked at it, so
it has generally been neglected.
Chairman
259. Your last response to Mr Fearn confirms
the view I took when we were listening to Mrs Schneider of UNIDROIT
in Rome, that it is a very formidable Convention but she admitted
that in terms of practical results they were practically nil.
Conventions may well be acceptable as declaratory but they are
not enforceable. Do you not think then that in this country we
ought to make it a criminal offence to trade in objects illegally
exported from other countries?
(Mr Mair) As a matter of public policy I can sympathise
with that entirely if you were to sympathise with the nature of
the export laws of those foreign countries. For example, where
the Italian export laws are so draconian and extend to items of
such minor value, and where the European Commission themselves
believes that they are in derogation of the Treaty, it strikes
me as being rather invidious to introduce criminal sanctions which
actually encourage something which is in breach of the Treaty.
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