Dealing in Cultural Objects (Offences) Bill

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Mr. Allan: I am grateful to all hon. Members for their support.

The hon. Member for Salisbury spoke about metal detectorists—is that a neologism? There has been some debate about whether the Bill is aimed at people who use metal detectors, but that is certainly not the case. Metal detecting is a legitimate activity provided that the permission of the landowner has been sought. It should not take place on scheduled ancient monuments. If, as happened recently at Yeavering Bell in Northumbria, detectorists from the wrong side of town, commonly known as nighthawks, deliberately metal detect on the sites of ancient monuments such as those in Wiltshire and try to sell what they find, anyone who buys it will be caught under the Bill. For the ordinary business of metal detecting, other provisions such as the Treasure Act 1996 come into force, and the activity is not outlawed by the Bill.

The hon. Member for East Worthing and Shoreham made an interesting contribution. He picked up on the question of looting in Latin America. That is relevant to the question whether someone knows or believes that an object is tainted. One of the most significant recent developments has been the creation by the International Council of Museums of its red list procedures. The red list defines the categories of material, initially from west African

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counties, that are likely to have been looted. ICOM recently extended the red list to Latin America, the announcement taking place after a meeting in Colombia.

That sort of procedure is important; it is the other side of the coin. Having a red list means that the material becomes widely known; it is a statement that such material is likely to have been looted. It then becomes reasonable to expect a significant degree of checking—rather more than in the case of material that has not been so clearly and publicly identified. In the current situation, one would expect people to carry out a more thorough check on the provenance of certain types of material from the middle east than under normal circumstances. That is a reasonable test to apply.

The hon. Gentleman wondered whether the rifle that he mentioned had been given as a gift to the people of Pakistan. I suspect that it would have been given posthumously if it was related to the Afghan wars of that time.

That is all that I need to say. I echo my thanks to all members of the Committee, who have supported the Bill thus far.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.

Clause 2

Meaning of ''tainted cultural object''

Tim Loughton: I beg to move amendment No. 1, in

    clause 2, page 1, line 16, leave out from the beginning to end of line 17 and insert

    'the removal or excavation, or any failure by any person involved in the removal or excavation to comply with procedures required in respect of that removal or excavation constituted an offence at the time it occurred.'.

Both amendments to clause 2 are probing amendments. It is a question of getting the Bill right. In principle, it is better to table an amendment because the Committee can debate it and give specific reasons as to whether it should be accepted, or the Minister can give an undertaking to consider the point with a view to returning to it in another place or on Report. That is often better than a general debate on clause stand part.

The amendment is from members of the illicit trade advisory panel. It would add the words ''the fabric of''.

The Chairman: Order. The hon. Gentleman is quoting amendment No. 2, and we are debating amendment No. 1. He will find that the amendments have been printed in the wrong order on the amendment paper.

Tim Loughton: Thank you, Mr. Hurst. Notwithstanding that, my opening comments apply also to amendment No. 2. Both amendments are from the advisory panel.

Subsection (2) is awkwardly worded, and that may lead to arguments among smart lawyers about its

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meaning. We should concentrate on the illegality of the circumstances in which an object is removed. We must clamp down on people who excavate and remove valuable objects from archaeological sites without permission. Those people may then put the objects on the open market. As it stands, the clause could involve anybody for committing a crime that is quite unconnected with the act of removing an artefact. Was a mechanical digger used for excavation stolen? Was the person connected with the excavation the subject of a money-laundering action or a prosecution for tax evasion? Those matters are separate from the key charge of whether it was legal to remove the artefact.

We should concentrate on the object and its removal, not the legal status of the person or persons connected with the removal. If an object was removed and sold legitimately, but it was removed by a person who was guilty of other offences, it would, technically, be tainted.

Hugh Bayley (City of York): I have been listening carefully to the hon. Gentleman's argument. Subsection (2) (b) takes account of that point because it deals with illegality connected to the circumstances in which the object is removed. Perhaps I do not understand the hon. Gentleman's point. If so, he may need to explain it in greater detail, because it appears that the Bill already covers it.

Tim Loughton: I take the hon. Gentleman's point, and it is those sorts of technicalities that I hope the Minister will be able to address. I hope that he will be able to say that the clause would not give rise to the events that I am suggesting.

Someone could legitimately remove a cultural object from a site in Italy, for example, and legitimately sell it on the open market. That object could end up in London, in the possession of a legitimate art dealer. However, the circumstances in which the object was removed could pertain to the fact that the person who removed it from the site was the subject of criminal proceedings for some other matter. That is the act that could lead to it to becoming a tainted good, and that is the problem. The amendment says more specifically that it is the act of removal that counts in deciding whether a good is tainted, not the circumstances of the person.

Mr. Carmichael: I agree with the hon. Member for City of York (Hugh Bayley) on this matter. The circumstances in which an object is removed or excavated constitute the offence. I do not claim to be a clever lawyer—although I was a lawyer before I came here—but the Bill makes it clear that it is the circumstances of the removal, rather than the person doing the removing, that contribute to the tainting of the object.

Sitting suspended for a Division in the House.

2.54 pm

On resuming—

Tim Loughton: Before the sitting was suspended I had accepted an intervention, and I think that I can respond to the points that were raised. To understand the key point about the amendment, we must move

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forward slightly to subsection (3)(a), which makes it clear that an offence is committed regardless of whether the excavation took place in the United Kingdom or elsewhere. To return to the Italian example, we would, in effect, import Italian law and impose it on the unsuspecting dealer in London who had come into possession of what would be defined as a tainted object. The object would presumably become tainted in perpetuity, regardless of whether it was excavated and sold on the market perfectly legitimately.

The person responsible for the excavation may, under Italian law, commit an offence that is unconnected with the excavation. He may, for example, carry out the excavation as a tax scam or as part of a money-laundering operation, or even using a stolen excavation machine. However, the object may be put on the open market legitimately. The person who comes into possession of it in London would not know, and could not be expected to know, that the person with whom it originated had committed other criminal acts. Under the present wording, however, he would be guilty of receiving a tainted good.

That is why the amendment would more tightly define the act of the excavation, clarifying that it must be illegal in itself. Such excavations should not be carried out in the first place. The amendment would separate them from other acts, which may be illegal—under the laws of other countries, in this case—and which may be committed by someone connected with the excavations, although the excavations themselves may not be illegal. I am not a lawyer, which is part of the problem, but I seek through this probing amendment to prevent lawyers from having complicated arguments in complex and expensive legal cases.

Through our probing amendment, we are looking for a keener definition of when an illegal act is committed. The person who would be prosecuted for handling what would become a tainted cultural object would have no knowledge, or could not be expected to have any knowledge, of offences that did not directly influence the removal of that object. I want the Minister to give us an assurance that prosecutions will not proceed on that rather less justified basis.

Mr. Carmichael: Since I ceased to make my living from practising as a court lawyer, I have become increasingly enamoured of the idea that we should try to avoid legislation that gives rise to lengthy and complex legal debate. However, the provisions before the Committee are fairly straightforward, although they stand to be complicated by the amendment.

The words

    ''in the circumstances in which the object is removed or excavated''

make it fairly clear that the taint—what used to be called the vitium reale—derives from the act of removing, not from a character fault or any wrongdoing in other respects on the part of the person responsible for the removal.

Let us consider for a second the expanded rationale that the hon. Gentleman gave the Committee. He said that we should avoid prosecutions in relation to dealings in otherwise perfectly legitimate artefacts.

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There would be a danger of such prosecutions if the amendment were made. It says that

    ''the removal or excavation, or any failure by any person involved in the removal or excavation to comply with procedures required in respect of that removal or excavation''—

it is a matter of style, but I would put in another comma there—

    ''constituted an offence at the time it occurred.''

Let us consider the circumstances in which a perfectly lawful excavation has taken place, and somebody unrelated to the immediate excavation has subsequently had to apply for an export licence or for registration of the fact that the artefact has been excavated. Under the wide provision in the amendment, the object would be tainted by the failure of a person involved in the removal or excavation to comply with the procedures required. The amendment risks widening the scope of the clause unnecessarily. The Bill is clear and concise, and there is no scope for debate.

3 pm

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