SUPPLEMENTARY MEMORANDUM SUBMITTED BY
THE DEPARTMENT FOR CULTURE, MEDIA AND SPORT
UNESCO, UNIDROIT AND
AN ALTERNATIVE
LEGISLATIVE APPROACH
Q1. What legal advice did the Department
for Culture, Media and Sport receive before its decisions announced
in February 2000 that the United Kingdom would not sign the 1970
UNESCO Convention or the 1995 UNIDROIT Convention?
Legal Advice: the UNESCO Convention
A1.1 Legal advice gave a brief outline of
the main provisions of the Convention and indicated what might
be required, including primary legislation, to implement the Convention.
A description of the advice is set out in the following paragraphs.
A1.2 Advice was that there were three requirements
which were not presently undertaken. First, it would be necessary
to establish and maintain, on the basis of a national inventory
of protected property, a list of public and private cultural property
whose export would constitute an appreciable impoverishment of
our natural cultural heritage. We would need to conduct a national
survey to identify all Waverley quality objects in the country.
A1.3 Another requirement was to organise
the supervision of archaeological excavations—which was
not a function carried out presently.
A1.4 The third requirement was that the
national authority was required to establish rules, in conformity
with the ethical principles of the Convention, governing the conduct
of curators, collectors and dealers. Steps had to be taken to
ensure compliance with such rules.
A1.5 We would need to introduce a new criminal
offence of importing cultural property stolen from a museum or
other cultural or religious institution in another State Party.
We would also need to legislate to prevent our museums and other
institutions acquiring illegally exported cultural property, although
there was no requirement for criminal sanction in this case.
A1.6 Perhaps the other most significant
requirement of the Convention was the need to introduce an obligation
on dealers to maintain registers of cultural property of their
stock. Such registers would need to record the origin of each
object, the full details of suppliers, purchaser and price. We
would be required to have penalties for non-compliance.
A1.7 It was not illegal to trade in illegally
exported objects, nor to deal in stolen objects provided the dealer
was acting in good faith. Although the Convention was not entirely
clear, we would probably need to alter the civil law to limit
the circumstances in which it was possible to give good title
to illegally exported objects.
A1.8 There were a number of other general
obligations, although of much less impact on individuals than
the provisions described above. For example, we would have an
obligation to help a State Party such as Cambodia to prevent the
systematic pillaging of their archaeological heritage.
A1.9 Following this legal advice, the previous
Minister for the Arts was disinclined to sign the UNESCO Convention;
but he asked officials to undertake an inter-departmental consultation
about the possibility of signing the UNIDROIT Convention in the
expectation at that time that this would be a viable proposition.
Legal Advice: the UNIDROIT Convention
A1.10 Again, a description of the legal
advice is set out in the following paragraphs.
A1.11 The limitation periods in the Convention
did not correspond either with existing domestic limitation rules
or with the proposals (in relation to property generally) put
forward in the Law Commission's consultation paper "Limitation
of Actions" (January 1998). In certain circumstances,
the Convention would be less generous to the original owner of
a stolen object than current UK law, since it might require the
payment of compensation when an original owner obtained the return
of his cultural object. Under UK law, in many circumstances, the
true owner could recover his own goods without payment of compensation.
A1.12 UK 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 objects deserved
to be a special exception to the general rule. But implementation
of the UNIDROIT Convention would require the addition of a special
regime for cultural objects and that would be likely to cause
further complications in an already complex area of law. The alternative
would be a fundamental overhaul of personal property law and before
either option could be considered, a wholesale review of the law
would need to be undertaken.
A1.13 An alternative to implementing the
UNIDROIT Convention might be to introduce primary legislation
adopting at least some of the principles of the UNIDROIT Convention
in such a way as not to conflict with existing UK law.
Q2. In what ways is the variation of limitation
period required for ratification of the UNIDROIT Convention different
in principle from the variation of limitation period provided
for in the Return of Cultural Objects Regulations 1994?
POSITION UNDER
THE UNIDROIT CONVENTION
Stolen cultural objects (Chapter II, Article 3):
2.1 Under Article 3(3) any claim for restitution
of a stolen cultural object is to be brought within three years
from the time when the claimant knew the location of the cultural
object and the identity of its possessor, and in any case within
50 years from the time of the theft. However, under Article 3(4),
"a claim for restitution of a cultural object forming an
integral part of an identified monument or archaeological site,
or belonging to a public collection, shall not be subject to time
limitations other than a period of three years from the time when
the claimant knew the location of the cultural object and the
identity of the possessor". Notwithstanding Article 3(4),
though, a Contracting State may declare that a claim is subject
to a time limitation of 75 years or such longer period as is provided
in its law. A claim made in another Contracting State for restitution
of a cultural object displaced from a monument, archaeological
site or public collection in a Contracting State making such a
declaration shall also be subject to that time limitation. (Article
3(5).)
ILLEGALLY EXPORTED
CULTURAL OBJECTS
(CHAPTER III, ARTICLE
5):
2.2 Under Article 5(1), a Contracting State
may request the court or other competent authority of another
Contracting State to order the return of a cultural object illegally
exported from the territory of the requesting State. Under Article
5(5), any request for return shall be brought within three years
from the time when the requesting State knew the location of the
cultural object and the identity of its possessor, and in any
case within a period of 50 years from the date of the export or
from the date on which the object should have been returned under
a permit (for temporary export under Article 5(2)).
POSITION UNDER
THE 1994 REGULATIONS
2.3 Under regulation 6(1) a member State
has a right of action against the possessor [the person physically
holding the object on his own account] or the holder [the person
physically holding the object for third parties], for the return
of a cultural object which has been unlawfully removed from its
territory. Under regulation 6(6) the court is not to make an order
for the return of the object if it is satisfied that the proceedings
were brought more than one year after the member State became
aware of the location of the cultural object and of the identity
of its possessor or holder or that the proceedings were brought
after the expiry of the special limitation period. In the case
of objects forming part of public collections referred to in Article
1(1) of Council Directive 93/7/EEC and in the case of ecclesiastical
goods subject to special protection arrangements under the national
law of the member State, the special limitation period is 75 years,
beginning with the date on which the object was unlawfully removed
from the territory of the requesting member State (regulation
6(7)). In any other case, the special limitation period is the
period of 30 years beginning with the date on which the object
was unlawfully removed from the territory of the requesting member
State (regulation 6(8)). These limitation rules are to have effect
in place of any other rule as to the limitation of actions (regulation
6(9)).
2.4 In the light of the above, it is possible
that a difference in principle might be said to arise because
the UNIDROIT Convention and the 1994 Regulations prescribe different
limitation periods in relation to what might be similar situations,
for instance, where a requesting State seeks the return of an
illegally exported cultural object. For example, under Article
5(5) of the UNIDROIT Convention, a State must make any request
for return within three years from when it knew the location of
the object and the identity of the possessor, and in any event,
such request must be within 50 years from the date of export.
Under regulation 6(6) of the 1994 Regulations, though, the limitation
periods are slightly different. The court is not to make an order
for return if the proceedings were brought more than a year after
the member State became aware of the location of the object and
the identity of the possessor or if the proceedings were brought
after the expiry of the special limitation period (30 years from
the date of unlawful removal from the territory of the requesting
member State for many objects but 75 years in the case of objects
forming part of public collections and certain ecclesiastical
goods). There is no difference, though, in the principle that
legislation is, or would be, necessary to ensure that the relevant
limitation period will, or would have, effect in place of existing
domestic law which would otherwise apply (see regulation 6(9)
of the 1994 Regulations).
2.5 A further difference in principle might
be said to arise in that, under Article 3(4) of the Unidroit Convention,
the limitation period for stolen objects might be said to be open-ended,
ie time does not begin to run until the claimant knows the location
of the object and the identity of the possessor (unless a declaration
has been made in accordance with Article 3(5)). However, under
the 1994 Regulations, there are absolute limitation periods, regardless
of knowledge.
Q3. In what ways is the requirement to pay
compensation to an innocent purchaser under the UNESCO Convention
different in principle to the requirement for compensation under
the Return of Cultural Objects Regulations 1994?
THE UNESCO CONVENTION
3.1 Under Article 7(b)(ii), the State Parties
undertake, at the request of the State Party of origin, to take
appropriate steps to recover and return (presumably stolen) cultural
property imported after the entry into force of the Convention
in both States concerned. It is provided, though, that the requesting
State is to pay "just compensation" to an innocent purchaser
or to a person who has valid title to that property (a donee,
for example).
THE 1994 REGULATIONS
3.2 Under regulation 7(1), where the return
of the (unlawfully removed) object is ordered by the court, it
shall order the requesting Member State to pay the possessor (the
person physically holding the object on his own account) such
compensation as the court deems fair according to the circumstances
of the case. Under regulation 7(2), the court is not to order
the payment of compensation unless it is satisfied that the possessor
exercised due care and attention in acquiring the object and,
by virtue of regulation 7(3), the possessor is not to be in a
more favourable position than the person from whom he acquired
the object on donation or succession.
3.3 Under the 1994 Regulations, the court
is to order compensation, while under the UNESCO Convention, it
does not appear that a court order is necessarily contemplated.
The Convention simply provides, under Article 7(b)(ii), that "the
requesting state shall pay just compensation", but is silent
as to who is to decide what is "just" and according
to which criteria—presumably the decision could be made
by the Minister of the requested State, rather than its domestic
court. There is no difference in the principle that compensation
is payable in certain circumstances but there could be a difference
in the way in which compensation is decided upon and its payment
effected.
Q4. What consideration has the Government
given to an approach to the 1970 UNESCO Convention similar to
that of the United States of America?
Q5. What legislative options are being considered
as an alternative to ratification of the UNESCO and UNIDROIT (Conventions)
and what is the timetable for such considerations?
Q6. Would any legislative approach as an
alternative to ratification of the UNESCO and UNIDROIT Conventions
offer any remedy for the owners of cultural property in the United
Kingdom which has been stolen and may be held abroad or which
has been legally exported from the United Kingdom.
A4, A5 and A6. These are all issues which will
be considered in the examination of alternative approaches which
was foreshadowed in the Government's announcements about UNESCO
and UNIDROIT last February. It is too early to say what conclusions
we shall reach, but we shall certainly be looking at the approach
adopted by other signatories to the Conventions, and at the effects
of any proposed measures on the owners of stolen property and
their rights of redress.
As the Minister for the Arts, Alan Howarth,
announced on 24 May, an Advisory Panel of experts has been appointed
to oversee the current work and to advise Ministers on the options
available to combat the illicit trade. The Panel has been asked
to report to Ministers by the end of November.
Q7. Why is the UK not a party to the 1954
Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict and its Protocols?
A7. The United Kingdom played a full and
active role in negotiations in 1999 leading to the adoption of
a new second protocol to the Convention, aimed at improving the
effectiveness of the protection of cultural property during armed
conflict and taking into account recent developments in international
law. Consideration is being given to the ratification of the Convention
together with the new protocol. However, this would require primary
legislation. The UK remains fully committed to the protection
of cultural property in time of armed conflict in accordance with
international law, including the relevant provisions of the Additional
Protocols to the Geneva Convention which the United Kingdom ratified
in 1998.
Q8. What is the current legal framework for
the regulation of trade in cultural property in the United Kingdom
and what is the Government's policy on possible changes to that
framework?
A8.1 Regulation of the trade is a matter
for the Department of Trade and Industry, who we understand would
wish to ensure that any proposed changes to the current legal
framework are in conformity with our World Trade Organisation
(WTO) and European Union obligations.
A8.2 Under the general exception section
in Article XX to the WTO, as long as action is not deemed to be
arbitrary, unjustifiable or a disguised restriction of international
trade, a country is allowed to take measures (among others):
— necessary to secure compliance with
laws or regulations which are not inconsistent with the provisions
of the [GATT] agreement . . . Including the prevention of deceptive
practices (Article XX (D)); or
— imposed for the protection of national
treasures of artistic, historic or archaeological value (Article
XX(f)).
A8.3 If other countries have already signed
the 1970 UNESCO Convention, we would not anticipate any countries
challenging any action we might take against the illicit trade
in cultural property, particularly in the light of the WTO exception
above.
EXPORT REGULATIONS
AND EXPORT
LICENSING
Q9. What measures does the Government take
to ensure that objects which have been illegally exported from
another Member State on or after 1 January 1993 are not exported
from the United Kingdom?
A9. When applying for an export licence,
the applicant is obliged to confirm whether or not the object
has been imported into the UK within the last 50 years. If it
has been imported, the applicant has to supply documentation confirming
the date of the import and the country from which it was imported.
Where the import took place from another Member State on or after
1 January 1993, and the object falls within the scope of the EC
Regulation, the staff of the Export Licensing Unit will verify
that it was legally exported from the originating Member State.
The laws vary between the Member States; but, by way of example,
an object from France would need to be accompanied by a certificate
issued by the French government. Where an object has been illegally
exported from another Member State and there is no application
for an export licence, it would be a matter for HM Customs and
Excise to detect the object at the port.
Q10. What information about the provenance
of an item is required before a licence is issued by the Export
Licensing Unit of the Department for Culture, Media and Sport?
A10. Non-imported objects (except those
requiring an individual export licence solely because of the existence
of the EC Regulation, ie they would not previously have needed
such a licence under UK law) are referred to the department's
Expert Advisers in the national museums and galleries, who require
details of provenance in order to decide whether to make an objection
to the granting of the licence.
Q11. In what circumstances does the Department
check with the Art Loss Register or other comparable sources of
information on the status of an object before issuing an export
licence?
A11. Where the staff of the Export Licensing
Unit have reason to believe that an object might have been stolen,
they would of course check with the official databases at New
Scotland Yard and Interpol, and also with commercial databases.
Q12. What assessment has the Government made
of the scale of the unlicensed export from the UK of archaeological
material found in UK soil or its territorial waters?
A12. By its very nature, an unlicensed export
is an illegal export; and the illegality of the act means that
the export is undertaken covertly. As such, we do not know the
number of such exports which are taking place.
Q13. In what circumstances do archaeological
items which are not of UK origin require a licence for export
from the United Kingdom?
A13.1 A non-UK archaeological object which
is being despatched to a destination within the European Union
requires an individual export licence (under UK legislation) if
it is valued at £39,600 or more and is over 50 years of age
on the date of exportation.
A13.2 The export of a non-UK archaeological
object to a destination outside the European Union requires an
individual export licence (under the European Community (EC) Regulation),
regardless of monetary value, if it is more than 100 years old
and is the product of:
— excavations and finds on land or
under water;
— archaeological collections.
A13.3 However, the EC Regulation provides
a derogation which permits Member States to exclude from this
licensing requirement certain archaeological objects of limited
archaeological or scientific interest provided that they are not
the direct product of excavations, finds and archaeological sites
within a Member State, and that their presence on the market is
lawful. The UK is operating this derogation; and the attached
note Guidance to Exporters of Antiquities (Including Numismatic
Items) explains this in more detail (a).
Q14. How many Open Individual Export Licences
have been granted, for which categories of object and under what
conditions?
A14.1 We have issued 53 Open Individual
Export Licences (OIELs). It is important to stress that none of
the OIELs constitutes a valid export licence where a licence is
required under the EC Regulation.
A14.2 There are presently five basic types
of OIEL. Their conditions vary and an example of each one is attached.
A14.3 Certain regular exporters of manuscripts
have been granted OIELs under which they may export any manuscript
or group of manuscripts (with certain exceptions, eg Manorial
documents) which are worth less than £1,000, up to a maximum
value of £20,000 per annum, although this latter sum can
be increased on request. An example is attached at (b).
A14.4 Some regular exporters of coins have
been granted OIELs under which they may export any individual
coin or group of coins recovered from UK soil or UK territorial
waters valued at less than £500 per item or group, up to
a maximum of £20,000 per annum, although this latter sum
can be increased on request. An example is attached at (c).
A14.5 All of the national museums and galleries
have been granted OIELs under which they may temporarily export
for a period of one (or, in some cases, two) year any object which
they own, or which is under their care. An example is attached
at (d).
A14.6 One type of OIEL permits the export
of any object which has been imported within the last 50 years.
An example is attached at (e).
A14.7 In certain circumstances, an OIEL
is granted for an individual item that is temporarily exported
on a regular basis. An example is attached at (f).
Q15. What is the annual running cost of the
Export Licensing Unit of the Department for Culture, Media and
Sport?
A15. £160,000 in the financial year
1999-2000.
Q16. Is there any charge for an export licence
for cultural property and, if not, is such a charge possible under
current legislation?
A16. There is no charge for an export licence;
and we have clear legal advice that fees for licences cannot be
charged under either UK or EU law.
GOVERNMENT CULTURAL
PROPERTY
Q17. What use does the Government make of
the Art Loss Register or comparable systems to record items of
Government cultural property which are missing or stolen.
A17.1 There is no specific policy throughout
Government to use the commercial databases of stolen property.
The Government Art Collection (GAC), the Ministry of Defence (MoD),
(which has its own art collection) and the Foreign Office (FCO)
undertake regular internal audits to ensure that works of art
and other items of cultural property do not go missing.
A17.2 The GAC, the MoD and the FCO would
consider registering works of relatively high value missing from
Government buildings with a commercial database, depending on
whether the cost of using such databases would add sufficient
value to the Government's own processes to justify their use.
A17.3 So far no works belonging to the GAC
and the MoD have been traced and retrieved as a result of using
the ALR or any other similar system. In the event of works of
art from the GAC holdings being untraceable, these are in many
cases retrieved through internal enquiry. The GAC is currently
working on a policy with DCMS regarding the official reporting
of items which may have been missing for some time. The vast majority
of these are prints (of low value).
Q18. What research has been undertaken on
the provenance of items in the Government Art Collection or other
Government cultural property for the period 1933-45 to discover
if any works fall into the category of "looted art".
A18.1 The majority of items in the Government
Art Collection (GAC) are British works acquired in Britain, and
we consider it unlikely that these were looted during the Nazi
period.
A18.2 The GAC, in conjunction with the Foreign
Office (FCO), has carried out two audits of works of art in possession
of HM Government in 66 British diplomatic posts overseas which
are (a) in Axis countries, (b) under German occupation or (c)
in countries neutral during World War II in Europe and North Africa,
through which countries looted art traffic is known to have passed.
So far as a result of these audits, the GAC has found no evidence
to link any of the works at posts with works looted during the
Nazi/World War II period.
A18.3 The GAC has carried out an examination
of FCO files relating to the relevant posts at that period, but
found no documentation or other evidence to suggest that any of
these works at posts were looted during the period 1933-45.
A18.4 The posts with whom the GAC and the
FCO have been in correspondence have likewise confirmed that they
have found no such references or evidence in their records at
their posts.
A18.5 Subject to resources, the GAC plans
to put a computerised database of its holdings on-line onto a
dedicated Web site by April/May 2001. In the meantime, the GAC
twentieth century catalogue provides a material on the Collection
and may be consulted by enquirers concerned about particular works.
A18.6 Ministry of Defence (MoD) Art Collection:
Investigative work in MoD has covered the central MoD Art Collection,
Regimental Museums and other self-contained collections and also
the private Mess collections of service units throughout the world.
This has not uncovered any items falling into the category of
"looted art".
POLICY ON
RETURN AND
PROVENANCE
Q19. Have any discussions taken place between
the DCMS and the National Museums and Galleries, collectively
or individually, about possible amendments to current laws governing
the return of objects from their collections and, if so, what
amendments have been discussed.
A19. No such specific discussions have taken
place. However, the DCMS is represented on the National Museums
and Galleries Directors' Conference Spoliation Working Group,
chaired by Sir Nicholas Serota.
Q20. What involvement has the Government
had with claims made from within the United Kingdom for objects
in United Kingdom institutions and what is the Government's policy
on such claims?
A20. A single claim made against the picture
View of Hampton Court Palace by Jan Griffier the Elder,
hanging in the Tate, has been received by the DCMS for transmission
to the Spoliation Advisory Panel the setting up of which was announced
by Alan Howarth on 13 April.
Q21. What is the policy of the Government
on the provenance requirements of items which may be the subject
of the Acceptance in Lieu scheme?
A21. re: source, the Council for:
Museums, Archives and Libraries, is responsible for advising the
Secretary of State for Culture, Media and Sport on whether or
not offers in lieu should be accepted and on their allocation.
The Department understands that they check that provenance, particularly
with respect to the years 1933-45, is known and does not give
rise to any doubts as to title and ownership.
Q22. What is the policy of the Government
on the provenance requirements of items on loan under the Government
Indemnity Scheme
A22. The Secretary of State expects all
those who borrow items which are indemnified under the GIS to
exercise due diligence in satisfying themselves that the lender
has good title to the object. In cases where re: source
act as agents for the Secretary of State, the borrower is required
to give an undertaking that, to the best of his knowledge, the
owners of items offered on loan have legal title to them. If a
lender transpires, however, not to be the owner, this renders
unenforceable the contract between the person named on the relevant
Section 16 indemnity schedule (under the Heritage Act 1980) as
being the "owner" and the Secretary of State.
THE SPOLIATION
ADVISORY PANEL
AND "LOOTED
ART"
Q23. In what circumstances will the Spoliation
Advisory Panel consider claims for cultural objects in private
hands in the United Kingdom?
A23. As set out in the Terms of Reference
(TOR) for the Panel announced on 14 April, The Panel will also
be available to advise about any claim for an item in a private
collection, at the joint request of the claimant and the owner
(paragraph 3 of the TOR).
Q24. In what circumstances will the Spoliation
Advisory Panel consider claims for cultural objects from States
or institutions rather than individuals?
A24. The Panel could consider such a claim,
provided that the State or Institution made a claim as the owner
of the item in question. The Panel has not been established to
entertain representative claims.
Q25. Will the Spoliation Advisory Panel consider
claims relating to alleged wrongful restitution in the years immediately
after World War II?
A25. The Panel has been established to deal
with claims from individuals who lost possession of a cultural
object during the period 1933-45. However, Ministers would be
willing to consider expanding the Panel's Terms of Reference to
handle such a case, should a claim be received.
Q26. If the Spoliation Advisory Panel were
to recommend compensation or an ex gratia payment, how would such
compensation or ex gratia payments be funded?
A26. This would be a matter for discussion
following any recommendation on an individual case made by the
Panel.
June 2000
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