House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Seventh Report

IV. INTERNATIONAL INITIATIVES AND LEGISLATIVE CHANGE

The rationale for international initiatives and a British response

55. The problems relating to the illicit transfer of cultural property are inherently international in nature. Criminals are said to engage in an "active export policy" and to seek to exploit differences in national legislative approaches.[150] The principle behind many international initiatives is to reduce the differences between these different approaches in order to "suffocate the illicit trade".[151] For that principle to be successful in practice, there must be an expectation of national legislative change.[152]

56. There were strong differences of opinion about whose national legislation should change, particularly in the context of the illicit trade in antiquities. Some portrayed that illicit trade as essentially driven by the demand of collectors in what might be termed "market States". Dr Maurice Davies of the Museums Association put this argument straightforwardly:

"Markets are stimulated by people at the end of the chain purchasing stuff. If nobody bought things which did not have a clear provenance, then no-one would dig it up. It is a simple relation really. There would be a time lag, but if it became clear out in Peru that if something is looted out of the ground there is no market for it, people would soon stop digging it up because financially it would have no value."[153]

According to Dr Davies, there was "full-scale organised destruction going on in order to feed the market" and it was "the collectors and the dealers which cause the trade".[154] That portrayal of market demand providing a "strong pull" was endorsed by Lord Renfrew.[155] According to that view, measures to reduce demand in "market States" were the key to stopping the illicit trade.[156]

57. That analysis was directly contested in other evidence, which argued that the problem of looting and illicit excavation was best tackled by action in the source countries, the "victim States".[157] Two particular forms of action by such States were advocated: a more effective approach to chance finds and measures to meet demand from a greater range of legitimate sources.

58. Mr Andrew Selkirk, editor of Current Archaeology, argued that the root cause of looting was the absence of an incentive for finders to declare the discovery of antiquities and for landowners to protect the antiquities on their land. Because antiquities were seen as the property of the State in most countries, there was a disincentive to report finds. He argued that the solution therefore lay in effective rewards for finders and landowners in line with the system in England.[158] It is an acknowledged aspect of the illicit trade that the original finder receives only a small proportion of the profits from that trade, so that rewards would not have to equate to the international market price.[159] Any effective reward system would also increase knowledge about the location of finds.[160]

59. There are, however, reasons why a more liberal reward system should not be seen as a panacea to the problems of looting. Any system for rewarding chance finds faces fundamental problems in distinguishing such finds from the products of deliberate looting, past and present. There is a danger that a reward system would encourage not the reporting of chance finds, but attempts to profit from destructive, unsupervised excavation.[161] Such a system would presumably have no effect on the process characterised as "organised looting by criminal gangs".[162] It also needs to be borne in mind that looting does take place under the liberal régime in England and Wales advocated by some for other countries.[163]

60. A second approach to alleviation of the problem of the illicit trade is based on the principle that "victim States" can reduce the illicit trade by increasing the licit trade.[164] There are three possible sources for an increased legitimate trade. First, there could be legitimised international sale of items held in private hands in source countries.[165] Second, there could be a trade in items held by museums in those countries.[166] Third, there could be a sale of items recovered during controlled and recorded excavations.[167]

61. It has been questioned whether this increased legitimate supply could be achieved in practice. There was scepticism about whether museums had reserve holdings of marketable antiquities. Dr Brodie, for example, told us:

"I have worked in three provincial museums in Greece and I have never seen a lot of material lying around in the storeroom; it is on display. If there are objects that people would be willing to buy on the market here, there they are on display in museums. What you see in the storerooms are boxes full of fragments and broken pots, which by and large I do not think people here would want to buy."[168]

Even if such items are available, it has been questioned whether they should be sold. For example, is it the duty of British museums to meet the demand for British antiquities by commercial sale?[169] Any such supply would necessarily be limited and thus might only be a temporary solution to the problem.[170] The pursuit of excavation to provide items for the market has been seen as contrary to the primacy of information retrieval integral to modern archaeology.[171]

62. Even if a legitimate trade could be enhanced in this way, its capacity to reduce the illicit trade is open to question. First, the case for an enhanced licit trade assumes that additional items would be clearly preferable to unprovenanced items on the market and that these "good" antiquities would continue to drive out "bad" antiquities despite the noted habit of the antiquities market of losing track of ownership histories. Second, the argument rests to some extent on the assumption that the market for antiquities is inelastic, in other words, that demand in the market will not simply expand to absorb the increased flow of antiquities.[172]

63. The argument for an increased legitimate trade in antiquities is both part of and contingent upon a wider argument for a more liberal approach to the export of cultural property by "victim States". The Antiquities Dealers Association argued that the export laws of countries such as Greece, Egypt and Turkey, which usually implied a strict embargo on export, created a false, two-tiered market, in which a far better price was available following illegal export than within a constrained domestic market. According to the Association, free trade in antiquities in private hands which were not of national importance would reduce the problems of the illicit trade.[173]

64. The British Art Market Federation similarly believed that the tight controls on export of cultural property operated by some States rendered their export laws less effective. The controls were not seen as fair by legitimate owners and were consequently harder to police.[174] Mr Antony Mair, a lawyer giving evidence on behalf of that Federation, contended that the export laws of some southern Member States of the European Union were in breach of the provisions of the EC Treaty and that the European Commission itself considered that these laws were "in derogation of the Treaty".[175]

65. Mr Mair sought to justify this last claim in written evidence. He noted that the relevant Article of the EC Treaty permits Member States to prevent the export of "national treasures possessing artistic, historic or archaeological value". He argued that this phrase could be best equated to the Waverley criteria applied by the United Kingdom's export régime—where export is generally permitted without undue restriction except for items of national importance—and that the terms of the Treaty did not provide sufficient legal authority for the broader controls enforced by countries such as Italy. He noted that those views were shared by a member of staff of the European Commission who had invited "members of the trade" to lodge complaints with the European Commission against excessive export controls.[176]

66. There are several problems with Mr Mair's claims that certain export laws breach the EC Treaty. First, the language of the Treaty is most ambiguous. According to the member of staff of the European Commission to whom Mr Mair referred, the text of the Treaty in Italian, Spanish, Portugese and Dutch permits export controls not on "national treasures" but on the "national artistic, historic or archaeological patrimony".[177] The term "patrimony" is thus an accepted term in authoritative texts of the Treaty and one much broader in meaning than "national treasures". Second, the EC Directive on the return of unlawfully removed cultural objects and the related Regulation on the export of cultural goods both recognise unequivocally that it is the right of Member States to define their national treasures.[178] Finally, no attempt appears to have been made to test the legality of any Member State's export laws for cultural property in court, even though this option is open to those who protest most vocally about them.[179] In short, the contention that the export laws of countries such as Italy are in breach of the EC Treaty is unsustained and quite possibly unsustainable.

67. Even if the legality of sweeping export controls on cultural property is accepted, the wisdom of such controls is in doubt. Lord Renfrew was concerned that a stress on enforcement of export laws might lead to a neglect of the primary problem of the destruction of archaeological sites.[180] Major General Conforti accepted that there was a case for reviewing Italian export laws "because perhaps some of the more restrictive rules entail the possibility of illegal trade".[181] Mr Alan Howarth CBE MP, Minister for the Arts, was sympathetic with the notion that laws should go "with the grain of human nature" and permit the export of works of art "unless they are of absolutely outstanding national importance".[182] He referred to "problems that are generated by [export] régimes that are so restrictive that they almost drive people into illegal and, you might say, improper behaviour".[183]

68. We are sympathetic with a number of the arguments produced in evidence to suggest that at least part of the solution to the problems of the illicit trade lies in source countries. More effective domestic controls to prevent or discourage damage to the archaeological and cultural heritage and more realistic measures to define and regulate the scope of illicit export in source countries are likely to be significant contributors to a more effective international effort to control the illicit trade in cultural property and to protect the world's cultural heritage.

69. However, these arguments should not be interpreted as justifications for inaction in the United Kingdom. In examining the case for liberalisation of the trade in classical antiquities and of the export laws of some European States, it is possible to lose sight of the worldwide impact of the illicit trade in cultural property. The "victim States" are not simply countries such as Greece, Italy, Egypt and Turkey, but increasingly include countries such as Thailand, Cambodia, Mali, Peru, Mexico, Guatemala, Cyprus and Afghanistan.[184] It is important to bear in mind the view that many indigenous communities have a prior claim to their own cultural property whatever the wishes of western collectors.[185] In many cases, local populations are the victims rather than the perpetrators of looting. The burden of the illicit trade bears most heavily on developing countries, who lose both records of their past and opportunities for tourist development.[186]

70. The United Kingdom's voice as an advocate for legislative and practical action in other countries is unlikely to be heard while the perception remains that the United Kingdom has done little to contribute to the worldwide effort to combat the illicit trade in cultural property.[187]

The 1970 UNESCO Convention

71. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was the first worldwide treaty on illicit traffic in cultural property. The Convention is based on the principle that the unauthorised import, export and transfer of cultural property should be "illicit". It prescribes measures State Parties should take to protect their own cultural heritage and to prevent the wrongful import or acquisition of designated cultural property stolen in or illegally exported from other State Parties. It includes provision for return of certain stolen or illegally exported cultural property requested by another State Party. It is not retrospective in effect. In April 2000, there were 91 State Parties to the Convention.[188]

72. The United Kingdom is not one of these. The last Government opposed accession, considering its provisions "unrealistic and totally disproportionate to the end ... which it is designed to achieve".[189] In June 1997, the new Government announced that it intended to consider whether to sign the UNESCO Convention "over the coming months".[190] Before he left office in the summer of 1998 the last Minister for the Arts, Mr Mark Fisher MP, was "disinclined to sign the UNESCO Convention".[191] In March 1999, the Government stated that it had "not yet taken a view about whether to sign the 1970 UNESCO Convention".[192] On 9 February 2000, the Government announced that it had decided not to sign the Convention.[193] However, on 29 February 2000, the Government said that it was "willing to look again at the difficulties of implementing the Convention".[194] Mr Howarth confirmed to us in evidence that he was still considering the possibility of subscribing to the Convention.[195]

73. A number of concerns about the Convention have been raised by the Government and those opposed to the United Kingdom becoming a State Party. It has been suggested that the Convention's definition of cultural property is too broad and does not focus on items of outstanding importance, implying that the United Kingdom would have to enforce other countries' "unreasonable export laws" through its own domestic law.[196] HM Customs and Excise said that its major concern was that "the definitions in the Convention are not sufficiently clear to provide a sound basis for enforcement".[197]

74. A contentious aspect of the Convention is the undertaking by State Parties

"as appropriate for each country, [to] oblige antique dealers, subject to penal or administrative sanctions, to maintain a register recording the origin of each item of cultural property, names and addresses of the supplier, description and price of each item sold and to inform the purchaser of the cultural property of the export prohibition to which such property may be subject".[198]

The British Art Market Federation considered that the Convention would create "a compliance cost disproportionate to the benefit achieved".[199] Mr Howarth was also worried by the burden on "quite small businesses" implied by this provision.[200]

75. The Convention requires the introduction of procedures of an unspecified nature to permit the return of stolen or illegally exported cultural property.[201] The Government's legal advice was that probably it would need to alter the civil law to limit the circumstances in which it was possible to give good title to illegally exported objects.[202] Sotheby's pointed out that the return provisions of the Convention had been little used, a factor which may have contributed to the scepticism shared by the Metropolitan Police Service and Mr Howarth about the practical effects of the Convention.[203]

76. The Government also considered that full compliance with the UNESCO Convention would require additional domestic measures which might not otherwise be regarded as appropriate. The Government was advised that it would be necessary to conduct a national survey to identify all public and private cultural objects whose export would constitute an appreciable impoverishment of our cultural heritage.[204] Mr Howarth thought that this would be "a massively burdensome, bureaucratic and expensive process".[205] Legal advice to the Government also indicated that it would be necessary to create a new function of supervising archaeological excavations.[206] There would also be a need "to establish rules, in conformity with the ethical principles of the Convention, governing the conduct of curators, collectors and dealers" and "to introduce a new criminal offence of importing cultural property stolen from a museum or other cultural or religious institution in another State Party".[207]

77. Lyndel Prott, the Director of the International Standards Unit of UNESCO, sought to allay a number of concerns about the implementation of the UNESCO Convention. She noted that cultural property was left undefined in detail for countries implementing the Convention; it was for each State to designate cultural property covered by the Convention.[208] She argued that the seemingly onerous obligation to draw up a list of protected moveable cultural property was not an obligation at all; the categories of the Waverley criteria were said to suffice, as had been demonstrated by the approach of Australia and Canada.[209] Finally, she disputed the Government's interpretation that the Convention necessitated the creation of a new criminal offence of importing cultural property stolen from a museum or similar institution.[210]

78. Mr Howarth considered Lyndel Prott's evidence to be "helpful, because it suggests that some of the apprehension we had about the burdensome nature of proper compliance may have been exaggerated".[211] However, this evidence also reinforced his impression that the UNESCO Convention was "loosely drafted".[212] He considered that "it is a tradition in this country that if we sign international conventions ... we do so honestly and genuinely with an intention to apply them scrupulously".[213]

79. The UNESCO Convention has attracted the adherence of many countries which would no doubt consider that they have a similar tradition, some of which also have active art markets. Australia, Canada and France are State Parties and Sweden and Switzerland have both announced their intention to accede.[214] Perhaps most importantly, the United States of America has chosen to adopt the Convention in part in a manner which merits closer consideration.

80. The United States Convention on Cultural Property Implementation Act 1983 is more narrow in scope than the UNESCO Convention and a limited exception to the United States policy of not enforcing the export control laws of other countries. The Act has three main strands. It provides for the United States to respond to requests from other State Parties to impose temporary restrictions on imports where it is established that the cultural patrimony of the requesting State is in jeopardy from the pillage of archaeological or ethnographical materials, that internal protective measures are in place and that the United States is a market for the material in question. Bilateral agreements are in place with Canada, El Salvador, Guatemala, Mali and Peru. The Act also provides for the imposition of emergency export controls without bilateral agreements where pillage is considered to have reached "crisis proportions". Emergency import restrictions are in place for Cyprus and Cambodia. Finally, the Act renders it illegal to import stolen cultural property that is "documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution" in another State Party.[215]

81. United States protection under the 1983 Act is prospective only. The legislation's emphasis is on the protection of cultural property that remains in situ in the country of origin. It requires an importer to establish either that the item was exported from the country of origin legally, or that the item was outside the relevant country prior to the effective date of the specific restriction. Thus, it is permissible to import into the United States Cambodian items that are legally owned and that were outside Cambodia prior to 2 December 1999. It is not required that the importer establish when or how the item was exported from Cambodia prior to that date.[216]

82. Even the limited approach by the United States to adoption of the UNESCO Convention demonstrates that acceptance and effective implementation of the Convention are inseparable from domestic legislative measures. We therefore return to the case for or against the United Kingdom becoming a State Party to the Convention after we have considered possible changes in domestic legislation.

The 1995 UNIDROIT Convention

83. The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was designed to complement the 1970 UNESCO Convention by dealing with the private law aspects of the illicit trade. It was prepared by UNIDROIT, the International Institute for the Unification of Private Law. The Convention has two main provisions. First, it permits an individual to claim the return of a stolen object from its possessor in another State by suing the possessor. For these purposes, stolen property includes objects which have been unlawfully excavated where that is consistent with the law of the State in question. The Convention makes provision for time limits on such claims and compensation for a possessor in certain circumstances. Second, the Convention provides for a State Party to seek the return of illegally exported cultural property where it can be shown that such export had significantly impaired certain interests or related to an object of significant cultural importance. In such cases, provision is made for compensation for the possessor, provided that the possessor neither knew nor ought reasonably to have known at the time of acquisition that the object had been illegally exported.[217]

84. The 1995 UNIDROIT Convention had 22 signatories and 12 State Parties in April 2000.[218] The United Kingdom was not one of them. Both the Government and representatives of the British art market had reservations about the desirability of the United Kingdom acceding to the Convention. As with the UNESCO Convention, it is contended by the British Art Market Federation that the UNIDROIT Convention permits too broad an interpretation of cultural property, leading to the de facto enforcement under the return provisions of "unreasonable export laws".[219] The UNIDROIT Convention is also subject to criticisms of provisions which are not mirrored in the UNESCO Convention, relating to limitation periods, compensation for possessors and due diligence.

85. The UNIDROIT Convention imposes special limitation periods for claims for return of cultural property. These enable claims for return to be made up to 50 years from the time of a theft or illegal export, or up to 75 years or longer for objects from an identified monument or archaeological site or from a public collection.[220] These provisions would, if implemented in this country's law, effectively override the terms of the Limitation Act 1980, under which a purchaser acquires good title six years from a good faith purchase and the original owner's title is extinguished.[221] The separate limitation periods implied by adherence to the Convention would, according to the British Art Market Federation, exacerbate "the already unsatisfactory legal uncertainties for buyers of cultural property".[222]

86. The UNIDROIT Convention provides in certain circumstances for fair and reasonable compensation to be paid to the possessor of cultural property which subsequently proves to have been stolen or illegally exported.[223] The Government was concerned that the provision for payment of compensation by a claimant implied "arguably a less generous position for original owners of objects which are later stolen".[224] In certain circumstances under United Kingdom law, the true owner could recover his goods without payment of compensation. According to the Government, this current law "could be said to be hard on innocent purchasers but, whatever the merits of the English position as a whole, it was not clear that stolen cultural property deserved to be a special exception to the general rule".[225]

87. Compensation for the possessor of a stolen object is available only if that possessor "neither knew nor ought reasonably to have known that the object was stolen" and can prove that he "exercised due diligence when acquiring the object". Under the terms of the Convention,

"In determining whether the possessor exercised due diligence, regard shall be had to all the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural objects, and any other relevant information and documentation which [the possessor] could reasonably have obtained, and whether the possessor consulted accessible agencies or took any other step that a reasonable person would have taken in the circumstances".[226]

This text did not meet with the approval of the British Art Market Federation, which maintained that "there is no defined test of due diligence" in the Convention.[227] The Federation was also concerned at the "double burden of proof" placed upon the possessor, both to demonstrate that he neither knew nor ought reasonably to have known that the object was stolen and that he exercised due diligence in acquiring the object.[228]

88. Advocates of United Kingdom accession to the 1995 UNIDROIT Convention sought to refute these criticisms. Mr Richard Crewdson, a lawyer involved in the drafting of the Convention, argued that a broad definition of cultural property was appropriate to a Convention which was permissive in nature and did not pose direct obligations on State Parties as did the UNESCO Convention.[229] He suggested that it would be possible for domestic legislation implementing the provisions for the return of illegally exported cultural property to restrict its provisions only to items of outstanding cultural importance.[230]

89. The separate limitation periods for cultural property were felt by some to be fully justified by the special nature of cultural property. According to Mr Crewdson, "to apply the standard limitation period to cultural property is harsh because each piece of cultural property is unique, and the remedial benefits of insurance cannot provide adequate recompense in the way they do routinely for the loss of consumer durables".[231] An icon stolen from a church or a family portrait are different in nature from most stolen property; they can have a particular cultural value to the owner. In addition, cultural property is unusual in that it tends to appreciate in value and the market thus offers financial incentives for storage, which extended limitation periods are designed to off-set.[232] Supporters of these provisions pointed to the recent experience of claims for property looted by the Nazi régime, which we examine later, as an illustration of why standard limitation periods were not always appropriate for cultural property.[233]

90. The compensation provisions were also supported by some. It was pointed out that there is a tendency to exaggerate the beneficial position of an original owner under English law. For six years from a good faith purchase, a true owner can regain possession and there is no compensation for the good faith purchaser. Thereafter, the positions are reversed. The good faith purchaser has acquired good title and the true owner has no entitlement to the object or to any compensation. A good faith purchaser who publicly displays an object after purchase may end up with nothing; a purchaser who can prove good faith but in no way publicises his ownership for six years extinguishes the original owner's title.[234] It is argued that provision for compensation enables a fairer balance to be struck between the legitimate interests of the original owner and of any subsequent possessor who has exercised due diligence and that such compensation could be an insurable risk.[235] Lyndel Prott also emphasised that it is possible within the terms of the Convention to vary the compensation provisions so that the original owner is no worse off than at present; it would thus be acceptable to provide that compensation only becomes payable six years after a purchaser exercising due diligence acquires possession.[236]

91. The claim by the British Art Market Federation that there was no defined test of due diligence in the Convention was also strongly contested. The description of due diligence in the Convention which we have already cited in extenso was seen as a revolutionary development and an important standard-setting device to improve market ethics which was already having beneficial effects.[237] The concept of "due diligence" enshrined in the Convention was seen by its advocates as a significant advance upon the concept of "good faith".[238]

92. Whatever the merits of the Convention's drafting, it cannot yet report practical success in terms of its return provisions, which have not yet been invoked.[239] This may be because of current limited accession to the Convention; France is the major "market State" to have ratified it.[240] UNIDROIT itself did not see this limited use as a necessary indicator of failure because the Convention's emphasis was on prevention: "it seeks in effect to obviate the need for requests for the restitution or return of stolen or illegally exported cultural objects by fostering greater awareness on the part of the purchaser prior to acquisition".[241] It should also be borne in mind that the Convention is not retrospective in effect; it will only be concerned with thefts or illegal exports which take place after it has entered into force.[242]

93. The Government is currently exploring the introduction of primary legislation adopting at least some of the principles of the UNIDROIT Convention in such a way as not to conflict with existing United Kingdom law.[243] Assuming that such an approach is conceived as an alternative to becoming a State Party to the Convention, it would almost certainly imply forgoing one of the principal advantages of the UNIDROIT Convention—that instrument's capacity to provide for claims for the return of cultural property stolen in the United Kingdom and then taken abroad. The Art Loss Register and English Heritage appeared to support the Convention on these grounds.[244] Without adherence to an agreed international framework such as the UNIDROIT Convention, the current situation seems set to continue, in which the rightful owner of cultural property stolen in this country has little prospect of regaining possession through civil proceedings abroad once an object has left the United Kingdom.[245]

The EC Directive on the return of cultural objects

94. While successive United Kingdom Governments have refrained from supporting the UNESCO and UNIDROIT Conventions, this country has been at the forefront in giving effect to the provisions of an EC Directive on the return of cultural objects unlawfully removed from the territory of a Member State.[246] A draft of that Directive formed part of the subject matter of the very first inquiry by the National Heritage Committee in 1992, during which that Committee heard optimistic assessments of the likely effect of the Directive on the return of objects looted from archaeological sites by Lord Renfrew and pessimistic assessments of its likely effects on the art trade from representatives of that trade.[247] The then Government successfully sought changes to the draft Directive before it was finalised.[248] Secondary legislation giving effect to its provisions came into force in the United Kingdom on 2 March 1994 and comparable legislation has followed in other Member States.[249]

95. Since coming into effect the Directive does not appear to have had the beneficial effects anticipated by Lord Renfrew or the adverse effects feared within the art market. The United Kingdom has not made or received requests for return of cultural objects under the Directive, nor is it aware of any other Member States receiving such a request, although the Government knew of one instance where return took place without recourse to the Directive's provisions.[250] Some attributed the failure to use the Directive to the complexity of its provisions.[251] Mr Richard Ellis, Managing Director of TRACE and a former head of the Metropolitan Police Art and Antiques Squad, attributed the Directive's non-use to the fact that it was cheaper and quicker to pursue a claim through the criminal code.[252]

96. The EC Directive is nevertheless significant in the opinion of some because it entails the fact that some of the principles of the UNIDROIT Convention are already established in United Kingdom law.[253] The Regulations giving effect to the Directive provide cultural objects from EC Member States with a special legal status in respect of limitations, permitting return for periods up to 75 years after illegal export.[254] The principle of entitlement of a possessor to compensation is also reflected in the 1994 Regulations.[255] Any compensation is contingent upon the possessor having "exercised due care and attention in acquiring the object", although the meaning of this phrase is not illuminated in the same way as the phrase "due diligence" is in the UNIDROIT Convention.[256]

United Kingdom export controls

97. Along with most other countries in the world, the United Kingdom operates a special export régime for cultural property. We have not examined the operation of this régime in detail, but have considered its effectiveness with regard to combatting the illicit trade. The United Kingdom operates two export licensing systems in tandem, one aiming to give special protection to items of outstanding importance and the other seeking to give effect to general European Community controls for exports to third countries.[257]

98. The general export system for the United Kingdom was established following the Report of the Waverley Committee in 1952 and is based on the principle that undue hindrance should not be placed on the trade in cultural material, but that an opportunity ought to be provided to prevent the sale abroad of items of particular cultural or historical importance. The system was specifically intended not to erect barriers to the export of objects recently imported into the United Kingdom so as not to jeopardise the British art market. As such, the system was unsurprisingly not designed with contemporary concerns about the illicit trade in cultural property in mind.[258]

99. With the introduction of the European single market, new arrangements were introduced which effectively require all Member States to operate certain common controls on exports of cultural property to third countries. In consequence, some objects require an export licence to ensure they are vetted in relation to the Waverley controls and some objects require a licence under the terms of the EC licensing régime as implemented in United Kingdom law. Licences are issued by the Export Licensing Unit of the Department for Culture, Media and Sport. No licence will be issued for an object which has been illegally exported from another Member State on or after 1 January 1993 and proof of legal export is required in the case of objects which entered into this country after that date. Where there is reason to believe that an object for which a licence is sought has been stolen, this is reported to New Scotland Yard.[259] There is therefore potential for this dual export licensing régime to detect objects which have been illicitly traded.

100. Some evidence questioned whether the export licensing régime was particularly effective in this regard in practice. Dr Brodie considered that there was "evidence of widespread misunderstanding or evasion of its requirements".[260] There are a number of recorded instances where British antiquities have appeared on the international market without a necessary export licence having been obtained.[261] Between 1996-97 and 1998-99 HM Customs and Excise made seizures of 200 separate consignments of cultural goods worth a total of £79 million lacking the appropriate export licence.[262] There have been no recent cases of prosecution for deliberate evasion of the controls.[263] Although some cultural goods require an export licence for export to another EU State, there are no systematic Customs controls affecting such exports.[264]

101. Both Lord Renfrew and Dr Neil Brodie argued that changes could be made to the export licensing system to reduce the possibility of the United Kingdom being a centre for the "laundering" of illicit antiquities. It was suggested that further information about provenance could be sought before export licences were issued.[265] These suggestions are, of course, linked to the wider case for greater provenance requirements for objects to be sold on the legitimate antiquities market.

102. We are not persuaded that the case for change to United Kingdom export controls on cultural property has been established. We are not certain it would be appropriate to impose further information requirements on exports which do not apply to domestic trade in objects such as non-United Kingdom antiquities. We are also not convinced that it would be appropriate for the United Kingdom to express sympathy for the development of more liberal export régimes in other countries, as Mr Howarth did in oral evidence, while also seeking to make United Kingdom export controls more restrictive.[266] We do not wish to recommend any changes to the United Kingdom's current controls on the export of cultural property.

Possible import controls and related offences

103. At present, there are no import controls on cultural property entering the United Kingdom unless they are subject to controls for some other reason, for example, in relation to firearms.[267] In consequence, it is not an offence to import into this country cultural objects which have been illicitly excavated in or illegally exported from their countries of origin.[268]

104. Several witnesses argued that this existing legal position was untenable. The Museums Association viewed the current attitude to the import of illegally exported material as "shocking".[269] Lord Renfrew said:

"It is a scandal, that it is a thieves' kitchen, or it could be so described, the freedom with which illicit antiquities may enter this country, and it is not even officially disapproved of in any way".[270]

The Egyptian Ambassador considered that legislation should be introduced urgently "to make it a criminal offence both to import and to deal in cultural property which has been illegally exported (smuggled) from its country of origin".[271] Lord Renfrew said that he would support such a change.[272] The Metropolitan Police Service indicated that it would welcome the introduction of practical and effective legislation to enable police action against cultural property illegally exported from another country.[273] Mr Richard Ellis, a former head of that Service's Art and Antiques Squad, stressed that the criminal process provided an important deterrent to those engaged in the illicit traffic in cultural property. Criminal proceedings would achieve more than the return provisions of the UNESCO and UNIDROIT Conventions and the EC Directive, which had no direct bearing on criminals.[274] Mr Howarth said that he was "uncomfortable personally with the notion that it is legal in this country to import and deal in items that have been illegally exported from other countries. I do not like that." He stressed, however, that there had to be a "hard practicality" to any measures proposed.[275]

105. HM Customs and Excise argued that, for it to enforce an import control system, there would be a need for a licensing mechanism based on clear and unambiguous definitions of which goods would require a licence.[276] HM Customs presumed that the Department for Culture, Media and Sport would issue import licences linked to verification of legal export.[277] HM Customs also indicated that, "in the absence of specific intelligence or reasons to target a particular consignment, we would have no means by which to routinely enforce an import licensing system on movements from within the [European] Community".[278] HM Customs considered that a prohibition on importation of certain categories of cultural property without a licensing system "would not be terribly effective" because there would be little evidence ascertainable by the Customs service to lead it to detain a consignment.[279]

Conclusions and recommendations

106. We have considered the arguments put to us suggesting that the most effective measures to combat the illicit trade in cultural property can be taken in "victim States" and we have much sympathy with these arguments. In the context of illicit activities relating to antiquities in particular, prevention of looting must be a key priority. More generally, a less restrictive approach to exports of cultural property in source countries might lead to more effective controls. However, we are not convinced that these arguments absolve the United Kingdom from its responsibility to seek to make a full contribution to the international effort to combat the illicit trade in cultural property and ensure that the British art market does not unintentionally become a safe haven for illicitly-traded cultural property.

107. We have concluded that the single most important measure to be taken is a change to the criminal law of the United Kingdom relating to the illicit trade. It is unacceptable that this country continues to have no specific criminal sanction against the trade in cultural objects which it is known have been illegally excavated in or illegally exported from another country. Unlike international civil measures, criminal penalties bear directly upon and should deter those engaged in the criminal elements of the illicit trade. At the same time, we are mindful of the need to ensure that any new offence is practical and enforceable. For this reason, and in the light of the evidence of HM Customs and Excise, we have rejected the proposal that it should be an offence to import into the United Kingdom cultural objects illegally exported from another country.

108. The Metropolitan Police Service told us that it would be helpful to its own efforts to combat such activities if it were illegal to trade in objects illegally exported from another country.[280] For any such legislation to be effective, it would have to fulfil several criteria. First, it should not be retrospective in effect. It should apply only to trade in items which can be shown to have been illegally exported after new legislation enters into force. Second, it would need to be restricted to carefully defined categories of cultural goods. We expect these would include items on a specified database or specified databases, inventoried objects stolen from museums or public monuments abroad and archaeological objects in a category which has been the subject of significant and documented looting. Third, the legislation should not be general in application, but should be confined to objects stolen or illicitly excavated in or illegally exported from designated countries which have a proven record of effective action against the illicit trade and which co-operate in making available information necessary for the identification of objects covered by the legislation. Finally, the legislation should be realistic in providing for a defence in law based on the concept of "due diligence" as defined in that legislation, a definition which we expect would draw upon the provisions of the Council for the Prevention of Art Theft Codes of Due Diligence and Article 4 (4) of the 1995 UNIDROIT Convention. We recommend that the Government introduce legislation creating a criminal offence of trading in cultural property in designated categories from designated countries which has been stolen or illicitly excavated in or illegally exported from those countries after the entry into force of the legislation, with a defence in law based on the exercise of due diligence as defined in that legislation.

109. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property represented an important milestone in raising international awareness of, and promoting international action against, the illicit trade in cultural property. The principles underlying it are important and deserving of support. However, some of its provisions appear to be unduly prescriptive or lack the clarity of the equivalent provisions in the 1995 UNIDROIT Convention. We consider that the prohibition on the import of cultural property illegally taken from other State Parties in certain circumstances would be difficult to implement. Assuming that the other recommendations in this section of the Report are implemented, we do not recommend that the United Kingdom become a party to the 1970 UNESCO Convention.

110. The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects is a more tautly drafted and precise legal instrument than the 1970 UNESCO Convention. We consider many of the objections to the Convention unsustainable. It is appropriate that special limitation periods should apply to cultural property to reflect the cultural and personal importance of its ownership and the possibilities of unique identification; this principle is already established in United Kingdom law under the Return of Cultural Objects Regulations 1994. The provisions relating to compensation in the UNIDROIT Convention are sound and offer some advantages over existing English law. Most significantly, the UNIDROIT Convention opens up the prospect of the rightful owners of cultural property stolen in the United Kingdom and then taken abroad seeking restitution in foreign courts, a prospect which no domestic alternative can offer. We recommend that the United Kingdom sign the 1995 UNIDROIT Convention and that the Government bring forward legislation to give effect to its provisions and facilitate early ratification.

111. The measures which we have recommended would mark a sea change in the British approach to the illicit trade in cultural property. We are convinced that such a change is needed. We also consider that these measures will be for the long-term benefit of the British art market. With the standards already defined as applicable to much of that market on a voluntary basis, compliance with the additional and carefully defined legal provisions we recommend should not be unduly onerous. Speedy and effective implementation of these measures would redound to the credit of the art market in the United Kingdom and enhance its already high reputation.

150 Evidence, pp 72, 151. Back

151 Q 124. Back

152 Evidence, p 340. Back

153 Q 45. Back

154 QQ 49, 69. Back

155 Q 80. Back

156 Evidence, p 264. Back

157 Evidence, pp 247, 248. Back

158 Evidence, p 321. Back

159 Q 43; Trade in Antiquities, p 77. Back

160 Ibid. Back

161 QQ 81, 82, 139. Back