Select Committee on Culture, Media and Sport Minutes of Evidence



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 sites;

    —  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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