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'he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted'.
Madam Deputy Speaker (Sylvia Heal): With this it will be convenient to discussamendment No. 3, in page 1, line 4, leave out subsection (2).
Mr. Allan: I shall speak to amendment No. 1, which was tabled by the hon. Member for East Worthing and Shoreham (Tim Loughton) and me. I shall also address amendment No. 3, which was tabled by the hon. Members for Christchurch (Mr. Chope) and for Gainsborough (Mr. Leigh) and, I hope, demonstrate why it is unnecessary and unhelpful. I am pleased that the Minister for the Arts, who has been named Minister of the year, is in the Chamber to talk about the Bill. I hope that she has enjoyed getting up to speed on heritage legislation and the detail of putting online databases in libraries over the past week or two.
Amendment No. 1 is the result of a lot of work done by Anthony Browne of the British Art Market Federation, an organisation that has approached the Bill in a constructive manner. Its members will be seriously affected by any criminal legislation, as it represents the dealer community against whom prosecutions may be made. It has sought to make sure that the offence is properly and tightly drafted so that the legitimate art market, which Mr. Browne represents and which seeks at all times to avoid dealing in tainted cultural objects—objects that have been removed illegally—can conduct its business properly. However, the criminal offence remains for people outside the legitimate market who knowingly and dishonestly deal in such material.
Amendment No. 1 seeks to redraft and clarify the offence so that if someone is prosecuted, but the object turns out not to be a tainted cultural object, the offence does not apply. There was some questioning of the offence in the Bill as originally drafted, and we have tried to keep the definition tight in the spirit of private Members' legislation. We do not want drafting to be all over the place so that many offences arise—we want to keep the offence specific. In the original drafting of the Bill, if an object turned out not to be tainted, a prosecution could not take place, but we accept that there was ambiguity. The wording proposed in amendment No. 1 is a better way to deal with the problem so that we can be certain about the offence and assure people in the market that they will not be prosecuted if it turns out that a cultural object is not tainted.
The Bill aims to have a deterrent effect. We want to ensure that the protection of sites and monuments, whether in the UK or abroad, is as robust as possible so
that people know that there is no market for tainted objects. It is not intended that the offence should be used regularly, but the provision should be regarded as a deterrent. There must be a strong message that someone will be prosecuted if they knowingly and dishonestly deal in tainted cultural objects. The threshold is set quite high, and the prosecution is required to prove three things. It has to prove dishonesty, the fact that something is a tainted cultural object—amendment No. 1 makes that even clearer, which I hope gives assurances to the hon. Member for Christchurch—and that the individual knew or believed that that was the case.I understand why the hon. Member for Christchurch found clause 1(2) problematic, and I am grateful to him for giving us an opportunity to try to elaborate on the need for its inclusion in the Bill. If he has further questions once he has discussed his amendment, I would be happy to deal with them.
Subsection (2) is important. Once a prosecution has reached its threshold, we do not then wish there to be an opportunity to adopt a line of defence that effectively says that the individual did not know or believe that the object was a cultural one. That would open up greater scope for the defence than we would wish. The prosecution would already have had to demonstrate that it was a tainted cultural object, but our advice from counsel at the time of drafting was that by not explicitly ruling out this line of defence, as in, "Yes, it may have been a tainted cultural object, but I did not understand that it was a cultural object within the definition of the Bill", we would unnecessarily and against the line of policy narrow the scope of prosecutions that could take place or broaden the scope of defences.
That was run past the ministerial advisory panel on the illicit trade in antiquities and it was comfortable with that. It represents all sides of the business—those on the heritage side and those on the art dealing side—and it accepted that the current wording was appropriate. I initially queried why subsection (2) was necessary, but I hope that the hon. Member for Christchurch will be able to accept that there is a logic to it, which is to seek the appropriate balance whereby the prosecution must rightly meet a high threshold while not allowing scope for defences that would mean that cases would be extremely difficult to bring even where there was strong evidence that somebody was dishonestly and knowingly dealing in a tainted cultural object.
I am perfectly willing to answer further queries, which I am sure the hon. Gentleman will quite properly have, but I hope that at the end of the debate, having explored the issue and had some assurances about how the Bill will operate, he will not feel it necessary to press his amendment.
I hope that the House will be willing to accept amendment No. 1, which, as I say, is an effort to reassure people, particularly those on the art market side who have worked constructively on the Bill, that the offence will be appropriately used and prosecutions brought where something is genuinely a tainted cultural object, and that there is no doubt that if something is not a tainted cultural object prosecutions will not be brought, which is the purpose of amendment No. 1.
Mr. Christopher Chope (Christchurch): I am grateful to the hon. Member for Sheffield, Hallam (Mr. Allan)
for the way in which he has introduced his amendment and commented on mine. I hope that the Bill will reach the statute book and I am sorry that he has said that he will not seek re-election at the next general election, but that is probably because he thinks that once he has a Bill on the statute book he has achieved all that needs to be achieved in this place. [Interruption.] As my hon. Friend the Member for Uxbridge (Mr. Randall) says, the hon. Gentleman will become a cultural object, but I shall not say any more about that at the moment.Amendment No. 3 would ensure that a person would have to know or believe that the object was a cultural one before he could be convicted of an offence. The hon. Gentleman, in introducing his amendment, made it seem almost as if there would be large numbers of prosecutions, but paragraph 37 of the explanatory notes states:
- "Given that the level of prosecution is estimated at probably not more than one every two to three years costs to Courts and enforcement agencies will be de minimis."
Mr. Allan: There is a requirement on the prosecution to show that the dealer knew or believed that the object was tainted, so the dealer must know or believe that the object had been illegally removed from an ancient site or building. That requirement is on the prosecution. Having demonstrated all that in order to bring a prosecution in the first place, we seek to avoid someone then entering into a lengthy defence whereby they try to prove that they did not know it was a cultural object. We felt that it was inappropriate that, having proven that they knew that the object had been illegally removed, they could try to prove that they did not know that it was a cultural object, with all the expert witnesses and paraphernalia that that may involve.
Mr. Chope: I take the hon. Gentleman's point. I know that he has looked into the matter carefully and that his amendment tightens up the situation significantly, and in the light of that I shall not seek to press the amendment to a Division.
Tim Loughton (East Worthing and Shoreham): I wish to add a few comments in support of amendment No. 1, to which I have added my name. It may, on first sight, appear purely a rearrangement of words, which it is, but one of the points that I was eager to make in Committee was that we needed the Bill to be watertight and not to leave various things to chance that could be the subject of lengthy and costly legal wrangles in court. As with so much legislation, it is essential that we get it right and closely defined in this place rather than give further business to lawyers outside.
I, too, wish to mention Anthony Browne of the British Art Market Federation, who has been exceedingly helpful and is also a member of the panel seeking to ensure that the legislation will work and is acceptable to the vast majority of honest dealers and people with an interest in and a business in dealing with cultural objects.
Amendment No. 1 is a useful tidying exercise that will remove any remaining doubt about the thrust of the Bill and what a tainted object is. Proportionality is also necessary. The hon. Gentleman has already mentioned the high threshold of burden of proof on the prosecution in order to prove that the object being dealt with is a cultural object. Therefore, I fully support the amendment. My hon. Friend the Member for Christchurch (Mr. Chope) has raised some interesting points, but subsection (2) is essential; otherwise the Bill would give succour to the lawyers in long-drawn-out legal wrangles.
What are expert dealers doing with objects if they do not know them to be cultural objects in the first place? It really is a bit of nonsense to be able to use that as a defence. If a dealer tries to claim that he did not know that an Egyptian artefact was a cultural object, he has no business being a dealer in such artefacts in the first place.
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