Standing Committee F
Wednesday 14 May 2003
[Mr. Alan Hurst in the Chair]
Clause 1
Offence of dealing in tainted cultural objects
Question proposed, That the clause stand part of the Bill.
2 pm
Mr. Richard Allan (Sheffield, Hallam): May I say what a pleasure it is, Mr. Hurst, to serve under your chairmanship? I thank the Government business managers for having assisted us in securing an early Committee sitting.
Clause 1 sets out the terms of the offence of dealing in cultural objects that are deemed to have been tainted. The necessity for such an offence in English and Welsh law has been highlighted by the recent situation in Iraq, where we saw that cultural objects could easily be removed at times of instability. Most of those cultural objects were removed from museums, but far more dangerous is what happens next. Most of the objects removed from those museums are well known and well documented and it will be difficult to sell them on. Far more prevalent will be the looting of archaeological sites outside the mainstream and the public eye; that material can be sold on far more easily because it is not so well documented or catalogued.
The offence created under clause 1 is explicit. The prosecution must demonstrate that an individual has dealt dishonestly in a tainted cultural object. People are naturally concerned that they could be liable to prosecution for a new criminal offence and I praise those representing dealers in the art and antiquities trade who served on the Ministerial Panel on the Illicit Trade in Cultural Objects—known as ITAP, or the illicit trade advisory panel—for not trying to block the creation of the offence. Instead, they engaged constructively in shaping it. We may not be able to answer all of their concerns today, but I hope that we can go some way in response to the legitimate questions that they raised.
Part of our response lies in ensuring safeguards for people accused of the offence who have behaved reasonably. The safeguards in clause 1 are that the individual must know or believe that an object is tainted and that there must be an element of dishonesty in the offence. Anyone who takes reasonable steps to ensure that the object that they are buying is not tainted will have a reasonable defence. The Bill is squarely targeted at those who deal dishonestly in such material and not at the legitimate dealers, who work to codes of practice involving sensible checks on the provenance of material offered to them.
It is worth mentioning that the trade is demanding improvements to the databases that dealers use to check whether material is likely to have come from an
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illegitimate source or to have been stolen. I entirely agree with the pressure for better systems of notification, not least because it is important to the operation of the clause. Better sources of information are clearly good for dealers who wish to trade honestly and legitimately, but they are good also for the authorities should they need to make a case against someone who has traded dishonestly. It would be easier to prove that a person knew or believed that an object was tainted if the databases that list the tainted material were more easily accessible.
Finally, Anthony Browne, chairman of the British Art Market Federation, has devoted a lot of time to highlighting a number of concerns and they merit a response. Some of them will be dealt with in later clauses, but one is relevant to clause 1. We need to clarify what would happen if an object turned out not to be tainted, even though it was believed to be so and a dealer had been caught. My understanding is that it would be treated similarly to the offence of handling stolen goods, where prosecutions are not proceeded with if an object that was thought to have been stolen turns out not to have been. I hope that the Minister can give us some guidance on that matter. I hope also that the Committee will agree to the clause standing part.
Mr. Robert Key (Salisbury): I welcome the clause. I support it for two reasons. First it represents unfinished business. I was a founding Minister at the Department of National Heritage in 1992, so it certainly represents unfinished business for me. At the time, we were concerned about several issues. We were preoccupied with the wider art market, London being such an important international centre, and with a number of archaeological matters, notably metal detection. This will help to clarify the situation. Perhaps the hon. Member for Sheffield, Hallam (Mr. Allan), whom I congratulate on his Bill, will touch on that.
My second reason for supporting the clause so warmly is that I can hardly do otherwise as Member of Parliament for Salisbury, with Stonehenge, the world heritage site, and Old Sarum in my constituency. One never knows when something else is going to turn up, as in the classic case of the Amesbury archer, when a housing development revealed a remarkable bit of buried treasure.
I have consulted Andrew Lawson of Wessex Archaeology, Peter Saunders, curator of Salisbury museum, Roy Canham, the county archaeologist for Wiltshire and Paul Robinson, the curator of Devizes museum, the home of Wiltshire archaeology and natural history society, all of whom concur with the Bill. I intend to say as little as possible because it is so important for this legislation to reach the statute book. I warmly commend the Bill. We are all grateful to the Minister for expediting this important legislation.
Shona McIsaac (Cleethorpes): When the Bill was published at the end of last year and on Second Reading in April, a great many people thought that it was somewhat quaint—a fringe matter that was not of wide interest. As the hon. Member for Sheffield, Hallam said, the seriousness of the issue has been demonstrated graphically on our television screens
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following the conflict in Iraq. On Second Reading, we highlighted the fact that looting is at its most prevalent at times of conflict or political instability.
I am happy to be a sponsor of the Bill. I support the clause and hope that the Bill proceeds through all its stages without any impediment. It is about stealing history and knowledge. Given its seriousness, it must reach the statute book as soon as possible.
Tim Loughton (East Worthing and Shoreham): I congratulate the hon. Member for Sheffield, Hallam on introducing the Bill and all those who have had an input, the Ministerial Panel on the Illicit Trade in Cultural Objects in particular. I echo the words of Anthony Browne and his colleagues. I also congratulate the Government, not only on the measures that they are taking to expedite the Bill, which I hope will quickly pass through the House and come into law, but on having signed up to the 1970 UNESCO convention and on the help that they have given—through the British museum and the Department for Culture, Media and Sport—to the authorities in Baghdad trying to track down looted treasures, which the hon. Member for Cleethorpes (Shona McIsaac) mentioned and which make the measure all the more urgent.
I echo my hon. Friend the Member for Salisbury (Mr. Key)—this is unfinished business, long overdue. He, more than many, knows the downside of the absence of such measures. He spoke of some sites in his constituency, but did not mention the threat of having yet more gargoyles knocked off his cathedral, which is of concern to all of us. The sale of illicit antiquities is big business, be it through looting to order—as might have happened in Baghdad—or otherwise. I spent some months doing a survey of Mayan burial sites in the jungle in Belize and found many sites that had not previously been catalogued or discovered but had certainly been looted. We shall never know the contents of those graves; they will go uncatalogued.
It is important that the prosecution should bear the balance of the burden of proof in demonstrating whether a person who is charged with handling tainted goods knew or believed that they were tainted. That burden of proof is much more difficult when one is dealing with experts and professionals in cultural artefacts, who will have a greater expectation of holding a reasonable doubt that the artefacts in question are tainted under the definitions in the Bill. I am therefore slightly concerned that the provisions need to be tested in the courts. It is important that we do not get the balance in relation to the burden of proof wrong. We do not want to legislate in haste only to build up problems later.
As a brief example, some years ago I was up the Khyber pass in Pakistan with a friend. We chanced upon a small curio shop, as one does, where, in contrast to all the gun shops that we had been urged to visit where we were offered AK47s at a knock-down sum and urged to try them round the back, we came across an 1870s Lee Enfield rifle propped up in the corner. It was a smart weapon and had had the locking mechanism removed, although that could easily have been restored. My friend thought, ''I'll have that,''
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handed over a few dollars and took it. He then had a bit of a problem getting the rifle through Karachi airport security, but eventually he did. The officials there maintained that my friend could not take the rifle out of the country because it was more than 100 years old, whereas he maintained that it was British and that it was going home. In the end he won the argument, although he was not allowed to have the rifle personally on the plane and it was entrusted to the captain.
If the law were applied to that case, there is a strong suggestion that that gun would be tainted. It got into the possession of the curio shop owner, who would have bought it from local Pakistani or Afghani militia. They in turn could have come into possession of it only by stealing it from a British soldier who was out there during the second Afghan war—it is the property of the British Government—or doing a deal with that British soldier and buying it from him. That would also have been an offence, for which that soldier would have been court-martialled accordingly. It is therefore highly likely that that gun came into the possession of the curio shop owner as a tainted good under the definition of the Bill, unless the British military had presented it as a gift to the people of Afghanistan or Pakistan, which is unlikely. The story is an interesting aside that throws up some of the concerns of my friend, who is now living in Singapore and having more problems shrugging off SARS threats. He may be prosecuted under the Bill, although it is not retrospective, so he is okay for the moment—they might get him the next time.
The explanatory notes rightly set out stiff penalties for people who knowingly handle tainted goods. However, the regulatory impact assessment says, under explanatory note 37, that
''the level of prosecution is estimated at probably not more than one every two to three years'',
which is therefore of negligible cost to the Exchequer. If the authorities are not going to be serious about prosecuting such cases and think that they will come up only once in a blue moon, the provisions will not be much of a deterrent. Given the incidence of such trade in cultural objects, I would hope that there would be cases every one to two weeks, not once every two to three years. We must be serious about enacting the law and ensure both that it will deter people from carrying out such practices and that those who go ahead regardless are hauled before the courts. That is one marker I put down over why the penalties are so stiff if the regulatory impact assessment in the explanatory notes implies that we are not as keen to prosecute as fully as the Bill suggests.
Other than that, the Bill has the full support of Her Majesty's Opposition. I shall speak more briefly on subsequent clauses to ensure that it is passed in the time allotted today.
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