MEMORANDUM SUBMITTED BY THE DEPARTMENT
FOR CULTURE, MEDIA AND SPORT
ROLE OF
DCMS
1. The Secretary of State for Culture, Media
and Sport has responsibility for the issuing of export licences
for cultural goods, both under the Import, Export and Customs
Powers (Defence) Act 1939 and Council Regulation (EEC) No 3911/92
of 9 December 1992 on the export of cultural goods (as amended
by Council Regulation (EC) No 2469/96 of 16 December 1996).
2. He is also responsible for international
agreements and the implementation of European Community measures
on the return of illegally exported cultural objects. Council
Directive 93/7/EEC of 15 March 1993 on the return of cultural
objects unlawfully removed from the territory of a Member State
was implemented into UK law via The Return of Cultural Objects
Regulations 1994 (SI 1994/501) which came into force on 2 March
1994. Council Directive 93/7/EEC was amended by Directive 96/100/EC
of the European Parliament and of the Council of 17 February 1997.
This was implemented into UK Law via The Return of Cultural Objects
(Amendment) Regulations 1997 (SI 1997/1719) which came into force
on 1 September 1997.
3. Policy on the return of cultural objects
in museums and galleries in the UK, which are claimed by their
countries of origin, also rests with the Department.
4. In addition, the Secretary of State has
recently announced the establishment of the Spoliation Advisory
Panel to advise the parties involved in claims on objects in museums
and galleries which might have been the subject of spoliation
during the Nazi era.
EXPORT LICENSING
UNDER UK LEGISLATION
5. Under the Import, Export and Customs
Powers (Defence) Act 1939, the Secretary of State has the power
to make Orders. The current Order, the Export of Goods (Control)
Order 1992 (as amended by the Export of Goods (Control) Order
1994) provides that any goods manufactured or produced more than
50 years before the date of exportation require an export licence
(with certain exceptions, eg personal papers).
6. However, in order to remove the need
for certain cultural objects to require an individual export licence
to be obtained from this Department, a number of Open Licences
have been issued.
7. The Open General Export Licence (OGEL)
is available for use by any exporter and permits the export of
certain categories of object which are worth less than the monetary
limits specified in the OGEL. The OGEL also permits common temporary
exports, for example vintage cars for social purposes.
8. A number of Open Individual Export Licences
(OIELs) have also been granted to for example named individuals,
museums and auction houses. An OIEL is available for use by the
person to whom it is granted and permits the export of the categories
of object specified in the OIEL.
9. In all other cases, an individual export
licence is required from this Department. Normally a licence is
granted for objects which have been imported within the last 50
years (except imports from the Channel Islands, although see paragraph
11 below for restrictions imposed by European legislation on objects
imported from another Member State). All other applications are
referred to one of our Expert Advisers in the national museums
and galleries; and the process of the identification and protection
of UK national treasures is commenced.
10. These licensing requirements under UK
legislation are operating in tandem with European legislation
on export controls (see below); and HM Customs and Excise is responsible
for policing these at the ports.
EUROPEAN LEGISLATION
11. Council Regulation on the export of
cultural goods provides that an export licence must be presented
for certain cultural goods when being exported to a destination
outside the European Union. An Annex to the Regulation specifies
the categories of object which require such a licence, the categories
in the Annex being restricted by age and monetary value. The Regulation
does not permit us to issue a licence for an object which has
been illegally exported from another Member State on or after
1 January 1993.
12. Council Directive on the return of cultural
objects unlawfully removed from the territory of a Member State
provides a mechanism under which one Member State may request
the return from another Member State of a cultural object which
was illegally exported on or after 1 January 1993. To be a cultural
object within the meaning of the Directive, the object must be
a "national treasure" (as defined under the requesting
Member State's national legislation) and belong to one of the
categories listed in the Annex to the Directive or form part of
a public collection. The Annex is identical to that contained
in the Regulation.
13. Both instruments are subject to review
by the European Commission triennially, with the first review
due to have taken place in 1996. Member States can make suggestions
to the Commission for amendments to the Regulation and Directive;
but formal proposals for amendment can only emanate from the Commission
itself. In particular Article 10 of the Regulation states:
". . . the Council, acting on a proposal
from the Commission, shall examine every three years and, where
appropriate, update the amounts indicated in the Annex, on the
basis of economic and monetary indicators in the Community."
14. The Commission issued a questionnaire
at the beginning of 1996 as part of the first review, but this
was not taken forward. As part of the 1999 review, the Commission
issued a further questionnaire; and a meeting of officials of
Member States took place in Brussels in November last year. We
await the Commission's proposals, if any, for amendments to the
Regulation and Directive.
15. As part of the provisions under the
Regulation which do not permit us to issue an export licence for
objects which have been illegally exported from another Member
State, we have been able to identify a few objects which have
left other Member States without the required export permission.
In some cases, an export licence was issued in retrospect. In
others, such a licence was refused by the Member State in question.
However, in no case was there a request for return under the Directive.
16. The UK has made no requests for return
under the Directive. Nor have we received a request from another
Member State. The return of some objects from Finland could have
been requested under the Directive; but the matter was settled
out of court between the Finnish authorities and the possessor
in the UK. We are not aware of any other Member States having
received a request for return.
1995 UNIDROIT Convention on the international
return of stolen or illegally exported cultural objects
17. On 7 February, the Secretary of State
answered a written Parliamentary Question as follows:
"After a lengthy inter-departmental consultation,
I have concluded that the UK should not become a signatory to
the UNIDROIT Convention due to conflicts with current law. In
order to implement the Convention, changes to our limitation periods
and to our personal property law would be required, resulting
in a special regime for cultural objects and arguably a less generous
position for original owners of objects which are later stolen.
I will, however, be considering the possible options for an alternative
legislative approach which would share some of the objectives
of the UNIDROIT Convention." 7 February 2000: Column 9W [109245].
18. The Secretary of State will be looking
at a range of options.
1970 UNESCO Convention on the means of prohibiting
and preventing the illicit import, export and transfer of ownership
of cultural property
19. On 9 February, the Secretary of State
answered a written Parliamentary Question as follows:
"Her Majesty's Government has decided not
to sign the 1970 UNESCO Convention because significant practical
difficulties remain in implementing its provisions into UK law
. . ." 9 February 2000: Column 222W [108999].
However, in response to an oral Parliamentary
Question on 29 February asked by Lord Renfrew of Kaimsthorn, Lord
McIntosh of Harringey replied:
"My Lords, we announced in Another Place
on 9 February that we will not sign the Convention. However, following
representations from the Noble Lord, we are willing to look again
at the difficulties of implementing the Convention." 28 February
2000 Col WA53.
Claims for return of items of cultural property
which were historically removed and not necessarily acquired as
a result of the illicit trade
20. We believe that objects which have been
legitimately and properly acquired in the past should remain in
the institutions which legally own them. Furthermore, the national
museums and galleries cannot legally dispose of objects in their
collections except in very limited circumstances. The non-national
institutions may or may not have powers of disposal according
to their governing constitutions.
Spoliation Advisory Panel
21. On 17 February the Arts Minister, Alan
Howarth, answered a written Parliamentary Question as follows:
"I am very pleased to announce that the
Rt Hon Sir David Hirst has agreed to chair a Spoliation Advisory
Panel to consider and advise on claims from anyone who lost possession
of a cultural object during the Nazi era where such an object
is now in the possession of a UK national collection or in the
possession of another UK museum or gallery established for the
public benefit". 17 February 2000: Column 628W [111224].
The draft terms of reference for the Panel,
which are attached[1],
were set out in the answer to the Parliamentary Question. We invited
responses to consultation for a period of one month.
March 2000
1 Not printed. Back
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