CULTURAL PROPERTY: RETURN AND ILLICIT TRADE:
FURTHER GOVERNMENT RESPONSE TO THE SEVENTH REPORT
FROM THE CULTURE, MEDIA AND SPORT COMMITTEE,
1. The Government's initial response to the Select Committee's Report was sent to you on 2 October 2000 and a copy is attached for ease of reference. This further response should be read in conjunction with that one.
2. In that reply, the Government undertook to write to you again with its further response once we had received the report of the Illicit Trade Advisory Panel, established to review both legislative and non-legislative options for action. We have received the report and this further response complies with that undertaking and also gives you a report on further progress in relation to other recommendations of the Committee.
A. THE REPORT OF THE ILLICIT TRADE PANEL
3. As the Committee will know from the pre-publication copy of the report supplied to them, the Panel was established with the following Terms of Reference:
· To consider the nature and extent of the illicit international trade in art and antiquities, and the extent to which the UK is involved in this;
· to consider how most effectively, both through legislative and non-legislative means, the UK can play its part in preventing and prohibiting the illicit trade, and to advise the Government accordingly.
4. The Panel submitted its report to Ministers in December and a copy is enclosed. The Summary of Recommendations is also appended as Annex A to this response.
5. The Government is most grateful to the Panel for their report and, as the Committee may be aware, has indicated its broad support for the Panel's recommendations. A copy of the DCMS Press Release 324/2000, which was embargoed until 18 December 2000, is attached.
6. Taking the Committee's recommendations in turn:
(ii) We recommend that the Home Office make a public commitment in the course of this year to establishing a national database of stolen cultural property and cultural property exported against the laws of countries concerned under national police control. The Home Office should also seek to take forward detailed discussions with the police service, the insurance industry, the art market and private database operators about the development of an open system which can meet the needs and draw upon the skills and funds of the private sector. Finally, the Home Office should liaise closely with other countries to ensure that any national development is compatible with the wider international development of a database of stolen and illegally exported cultural property (paragraph 54).
7. The Illicit Trade Advisory Panel recommended:
"Database of legislation
We recommend the institution of a comprehensive and universally accessible database of international legislative information. The database should be run as a service available to all who transact in cultural objects. It should seek to record information about past as well as present laws and about judicial decisions construing those laws. It should, like other modern law databases, be updated daily (paragraph 89).
Database of unlawfully removed cultural objects
We propose the institution of a specialist national database of unlawfully removed cultural objects. The database would cover cultural objects unlawfully removed from any place in the world, whether in the UK or overseas. Access to the proposed database should be prescribed with carefully regulated and restricted levels of access by means of a system of security codes. Differential levels of access could, for example, be extended to police forces, public authorities, commercial entities and private individuals (paragraph 90)."
8. The Government has welcomed these recommendations and, in relation to a national database, the Minister of State at the Home Office, within whose responsibility this falls, Mr Charles Clarke, has convened a Working Party to consider urgently the scope, aims and operation of a national database of stolen/illegally removed cultural property. Mr Clarke has asked the Working Party to report to him by the end of March. In developing any national database, we agree it would be sensible to liaise with other countries with a view to ensuring compatibility, so far as possible, with other databases worldwide.
(v) Assuming that the other recommendations in this section of the Report (recommendations (iv) and (vi)) are implemented, we do not recommend that the United Kingdom become a party to the 1970 UNESCO Convention (paragraph 109).
(vi) 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 (paragraph 110).
9. The Illicit Trade Advisory Panel recommended:
We advise that the other measures referred to in this Report satisfy the UNESCO Convention and that the UK should therefore accede to it (paragraph 61). Accession will not have retroactive effect.
We advise against accession to the UNIDROIT Convention under the present circumstances (paragraph 49)."
10. The Government notes the Panel's recommendations in relation to both the UNESCO and the UNIDROIT Conventions, including their reservations about the UNESCO Convention, which are that:
the UK interprets the term 'cultural property' as confined to those objects listed in the Annex to the EU Regulation and Directive;
as between EC member states, the UK applies the relevant EC legislation to the extent that that legislation covers matters to which the Convention applies; and
the UK interprets Article 7(b)(ii) to the effect that it may continue to apply its existing rules on limitation to claims made under this Article for the recovery and return of cultural objects.
11. The Government is actively considering its response to these various recommendations in respect of the UNESCO and UNIDROIT Conventions and intends to make an announcement shortly. We will write again to the Select Committee when we are ready to make that announcement.
Proposals for Legislationtrading in and handling stolen cultural property
(iv) 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 (paragraph 108).
12. The Illicit Trade Advisory Panel recommended:
We propose that, to the extent it is not covered by existing criminal law, it be a criminal offence dishonestly to import, deal in or be in possession of any cultural object, knowing or believing that the object was stolen, or illegally excavated, or removed from any monument or wreck contrary to local law (paragraph 67)."
13. The Government welcomes the recommendation and is considering whether the existing provisions of the criminal law would obviate the need to introduce a new criminal offence. In the light of the Illicit Trade Panel's concern regarding the European Convention on Human Rights, it is also considering whether the offence could cover objects which are illegally exported from other countries and indeed what impact this would have on the offence as recommended by the Panel.
B. FURTHER PROGRESS ON OTHER RECOMMENDATIONS OF THE SELECT COMMITTEE
(vii) We welcome steps already taken by museums in the United Kingdom and by the Museums Association to increase awareness of the illicit trade in cultural property and its implications for museums. We support the broad principle that museums should avoid acquiring any object that has no secure ownership history, unless there is reliable documentation to show that it was exported from its country of origin before 1970 and we recommend that the Government also state its support for this principle. We further recommend that, in the light of the development of the Portable Antiquities Scheme, the Department for Culture, Media and Sport conduct a review of the circumstances in which it is appropriate for museums in England and Wales to act as repositories of last resort of antiquities likely to have originated within those countries (paragraph 121).
14. The Government has initiated consultation with the Museums Association. In addition the Illicit Trade Advisory Panel will remain in existence with the dual purpose of reviewing the effectiveness of new measures to prevent illicit trade in cultural objects and of advising the DCMS on the launch and oversight of a campaign of education (which is also a requirement under the UNESCO Convention).
15. The Government is also taking forward with the Museums Association the recommendation that there should be a review of the circumstances in which it is appropriate for museums to act as repositories of last resort
Proposals for LegislationHuman remains
(xiv) We recommend that the Department for Culture, Media and Sport initiate discussions with appropriate representatives of museums, of claimant communities and of appropriate Governments to prepare a statement of principles and accompanying guidance relating to the care and safe-keeping of human remains and to the handling of requests for return of human remains (paragraph 163).
(xv) We recommend that the Department for Culture, Media and Sport seek commitments from all holding institutions in the United Kingdom about access to information on holdings of indigenous human remains for all interested parties, including potential claimants, as part of these discussions (paragraph 164).
(xvi) We recommend that the Department for Culture, Media and Sport undertake a consultation exercise on the terms of legislation to permit the trustees of national museums to remove human remains from their collections with a view to early introduction of such legislation (paragraph 166).
16. Consultation has already been initiated with the Directors of those national collections most closely concerned, with the National Museums Directors' Conference Standing Advisory Committee on Repatriation, with Resource and with the Museums Association, who were invited to give their initial reaction to the idea of legislation to permit trustees to return such items.
17. In relation specifically to Human Remains, the Government has appointed Professor Norman Palmer to chair a Working Group on Human Remains with the following Terms of Reference:
· to examine the current legal status of human remains within the collections of publicly-funded Museums and Galleries in the United Kingdom;
· to examine the powers of museums and galleries governed by statute to de-accession, or otherwise release from their possession, human remains within their collections and to consider the desirability and possible form of legislative change in this area;
· to consider the circumstances in which material other than, but associated with, human remains might properly be included within any proposed legislative change in respect of human remains;
· to take advice from interested parties as necessary;
· to consider the desirability of a Statement of Principles (and supporting guidance) relating to the care and safe-keeping of human remains and to the handling of requests for return. If the Panel considers appropriate, to draw up the terms of such a Statement and guidance;
· to prepare a report for the Minister for the Arts and to make recommendations as to proposals which might form the basis for a consultation document as part of the procedure required under the Regulatory Reform Bill.
18. The Committee will note that the fifth indent above gives effect to the earlier undertaking given to the Committee of further discussions with the relevant bodies on the need for guidance on the issue of the care of human remains (recommendation xv), on the handling of requests for their return and on the issue of access to information about holdings of human remains. In this context the draft Code of Ethics issued for consultation by the Museums Association (Edition 4, 2001) is also relevant.
Proposals for Legislationobjects acquired during the period 1933 to 45
(xviii) We consider that the case for special treatment of cases of alleged wrongful taking during the period 1933 to 1945 has been convincingly established. It is appropriate that the Spoliation Advisory Panel has been created to ascertain the facts of individual cases and to recommend an outcome for claims which are upheld. While there are merits to a solution which secures continuing public access to an object in a museum, that interest must be seen as subordinate to the interests and wishes of a rightful owner. Where a claim has been upheld and restitution is seen as appropriate by all parties, it is essential that legislative barriers to such restitution be removed. It would be absurd if restitution were not possible in these circumstances due to the dilatoriness of Ministers in the Department for Culture, Media and Sport (paragraph 193).
(xix) We very much welcome the lead taken by the British Museum in making clear and unequivocal statements that it would wish to return objects looted during the period 1933 to 1945 and not subsequently returned. We recommend that Ministers in the Department for Culture, Media and Sport begin cross-party consultations as a matter of the utmost urgency with a view to securing agreement for early and expedited legislation to permit the trustees or boards of national museums and galleries to dispose of objects which, in the view of the Spoliation Advisory Panel, were wrongfully taken during the period 1933 to 1945 (paragraph 194).
19. In relation to cases of alleged wrongful taking during the period 1933 to 1945, we have consulted the National Museums Directors Conference, the Museums Association, the Museums Standing Group on Repatriation, the Tate Gallery and Resource: The Council for Museums, Archives and Libraries. There has been general agreement from those consulted that the removal of legislative barriers to restitution should be sought. The Government has begun cross-party discussions about the possibility of permitting the Trustees or Boards of National Museums and Galleries to be able ,where appropriate, to return items which were wrongfully taken during the period 1933 to 1945. It is also exploring the possibility of achieving this by means of a Regulatory Reform Order under the Regulatory Reform Bill currently progressing through Parliament.
20. The Committee will be aware that, on 18 January, the First Report of the Spoliation Advisory Panel was published (HC (2000-01) 111), that the Panel recommended that an ex gratia payment should be made to the former owners of a painting in Tate Britain, of which the owners lost possession during the Nazi era, and that the Government immediately accepted and implemented this recommendation.
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