Dealing in Cultural Objects (Offences) Bill

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Tim Loughton: I hear what the hon. Gentleman is saying, but I query whether applying for an export licence has anything to do with the removal or excavation of the object, which would have been a separate process.

Mr. Carmichael: Perhaps the export licence is not a good example. However, some post facto requirement, such as registration, which is not unknown, would relate to the removal or excavation of an item. There is a fairly obvious and direct connection. The Bill is perfectly adequate. Expanding for the sake of expansion is not a good idea. I hope that the hon. Gentleman will consider withdrawing the amendment.

Mr. Allan: I am grateful to the hon. Member for East Worthing and Shoreham for having tabled the amendment, because it is worth debating the matter. I have had extensive debates and I am grateful to Professor Norman Palmer, chairman of ITAP, and to Anthony Browne of the British Art Market Federation for their efforts to explain their concerns and suggest alternatives. I am not persuaded by the amendment. As my hon. Friend the Member for Orkney and Shetland says, there is a difficulty with introducing new problems into the scope of the clause.

My discussions highlighted a specific group of offences that could trigger tainting but which we would not intend to cover—those under health and safety legislation, which one can imagine being breached in the course of an excavation. An amendment that introduces the concept of failure to comply with procedures required in respect of removal or excavation explicitly points towards health and safety offences as something that would trigger tainting. That is not our intention.

We have a difficulty in trying to narrow down what we are seeking to achieve, because we are, as the hon. Member for East Worthing and Shoreham points out, relating the offence to all sorts of other jurisdictions. People need to understand how heritage protection law works in other jurisdictions and I hope that we can help them to do so. UNESCO has a major role in

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trying to create a database, so that people can be aware of the legislation of other countries. We cannot be too prescriptive if we are creating an offence that can be triggered by a range of breaches of different people's heritage legislation. The Italian example, which the hon. Member for Wimbledon (Roger Casale) mentioned, is a good one. Italy has comprehensive heritage protection legislation, which works differently from that in the United Kingdom. Scotland, too, has different legislation. For example, its concept of the removal of archaeological objects is much wider than that in England, where scheduled ancient monuments have protection but objects outside them do not. I understand that, in Scotland, the removal of anything could constitute an offence.

Roger Casale: I am not an expert in Italian law. My understanding is that that legislation originates from international directives, conventions and agreements such as those that have been mentioned—for example, those UNESCO took from the EU. How those provisions are implemented in each case will differ and there will be definitional questions. However, we must not lose sight of the important international context of much of the work. We are not inventing this legislation in a vacuum. Much work has been done on which we can draw and which will also help us with some of the difficulties with different jurisdictions and co-ordination between different countries that have mentioned.

Mr. Allan: It is helpful of the hon. Gentleman to remind us that we seek to implement the legislation in an international context and of the important role of UNESCO.

I hope that the Committee can make it clear that we do not intend the offence to define objects as tainted simply through their association with an illegal activity that is not directly related to heritage protection and the trade in illicit cultural objects. Such matters will to a large part depend on the common sense of the prosecuting authorities. However, it would be helpful if the Minister could also clarify that what I describe is not the ministerial intention. The Bill's existing wording, with the reference to circumstances, should then stand. It is helpful to point out that we do not want extraneous offences to be dragged in. That is not the intention of any member of the Committee or the panel, or of those who drafted the original wording.

Dr. Howells: Although I understand the concerns that led the hon. Member for East Worthing and Shoreham to table the amendment and I wholeheartedly join him in resisting the notion that we should line any lawyer's pockets, his concerns are unfounded. The amendment would unnecessarily restrict the definition of a tainted cultural object and introduce uncertainties in the scope of that definition.

Under subsection (2), a cultural object is tainted if an offence is committed because of the circumstances in which it is removed or excavated. Drafted thus, the tainting of an object is not limited to those cases in which the removal or excavation of the object itself constitutes an offence. That is to ensure that the offence that the Bill creates covers not only conduct

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that breaches local laws that prohibit the removal or excavation of cultural objects from monuments but those cases in which the conduct is in breach of laws that protect property generally—for example, theft.

The amendment would reverse that by apparently reducing the range of offences that are capable of giving rise to the tainting of an object under the Bill. It is unclear what the precise effect of the amendment would be, which is in itself a reason for the Committee not to support it. The effect would clearly be to include an offence that is triggered by the removal or excavation of a cultural object. However, in contrast to the current text of the Bill, which is clear, it is not clear whether offences such as theft would be included, where the process of removing or excavating can lead to the commission of the offence, even though the fact of removal or excavation is not an intrinsic element of the offence.

The second part of the amendment creates additional uncertainties. It enables the tainting of an object when it is excavated or removed in circumstances in which any person concerned fails to comply with procedures that are required in respect of the removal or excavation. However, it is not clear precisely what would be covered by the term ''procedures'' in that instance. The hon. Member for Orkney and Shetland drew attention to that. Let us consider, for example, a case in which an object cannot be removed without a licence. In such a case there is likely to be a stipulated procedure for applying for the licence, as well as for granting it. It is not clear whether the amendment would apply where a person had gone through the required procedures of applying for the licence but no licence was granted to him for the removal of the object. In any event, it seems questionable whether this element of the amendment will add anything in practice. It is likely that any removal or excavation without having complied with necessary procedures would make the removal or excavation illegal and therefore fall within the first limb of the amendment.

I am grateful to the hon. Member for East Worthing and Shoreham for expressing the concerns that have led to the amendment. There seems to be a concern that the Bill as drafted would allow the tainting of cultural objects where the offence has only a limited connection. It is important to bear in mind that a person can be convicted of an offence under the Bill only where his dealings are proved to have been dishonest. I hope that that gives the hon. Gentleman some comfort. Also, the words used in subsection (2) clearly require the process of excavating or removing the object to form part of the offence in some way. Offences that are wholly unrelated to the process of excavation or removal—such as a breach of foreign export laws, a breach of local VAT regulations, an assault on an archaeologist or damage to excavation equipment—would not taint the object. For those reasons I hope that the hon. Gentleman will withdraw his amendment.

Tim Loughton: I said that this was a probing amendment and I am grateful for those definitions of what would not be caught. I do not wish to detain the Committee. We need to move on, and in those

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circumstances I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Tim Loughton: I beg to move amendment No. 2, in

    clause 2, page 2, line 3, after 'of', insert 'the fabric of'.

The first amendment on the Order Paper concerns the definition of what constitutes part of a building. That seems to be a common-sense and straightforward amendment. However, I gather that it has fallen foul of the parliamentary draftsmen because of the terminology used in this legislation. It is important to get it right. It is a probing amendment, but there is an important point at stake.

I gather that the problem was not raised with the Ministerial Panel on the Illicit Trade in Cultural Objects after it was set up in May 2000. If it had been, that panel would have consulted groups such as English Heritage and other learned bodies about how it should be tackled. Although there have been consultations with the Department on this subject, certain people whom it is assumed have been consulted—I name one, Salvo—have not been consulted on quite a few matters in the Bill. It is important that we get the matter right for all concerned. To make clearer the definition of part of the building, I propose that we add the three words ''the fabric of'' before ''the building or structure'' in subsection (4) of Clause 2.

I shall refer to two brief cases. In the case of Lord Haselrigg, the owner of a country house at Nowsley, the local planning officer visited his listed building some time ago and said that certain paintings that Lord Haselrigg wished to sell were also covered by the listing and could therefore not be sold. Subsequently, an expensive and lengthy court case took place over whether the paintings were listed as part of the fixtures and fittings of the building. I believe that Lord Haselrigg's case was upheld, but not before an awful lot of lawyers had earned an awful lot of fat fees to argue the technicalities of the case. The test that is applied is an antiquated one of Victorian terminology called the degree and purpose of annexation test.

A second case concerned Leighton hall, a stately home in Wales, which is a Grade 2 listed property with important Pugin interiors, originally made for John Naylor who commissioned the building of the house. The owner attempted to sell three chandeliers and a Wagner clock. Even though the original owner had purchased those items after the house had been built, the Victorian Society objected to the sale, saying that the items were part of the building and should not be removed from it. In that case, they found against the owner, even though the objects were added after the building had been built.

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There is a concern that certain people, perhaps a particularly zealous member of the Victorian Society, would try to make the case that certain parts of the furnishings within a building constitute the fabric of building. I have nothing against the Victorian Society—many good folk up and down the country belong to it—but owners who are quite legitimately

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trying to sell paintings or chandeliers could be limited. Owners are usually selling items in order to pay the outrageous levels of death duties imposed by this and other Governments, but that is another matter; they may be selling them in order to keep their stately home in good order. Even if cases do not succeed, they will result in much expense and legal wrangling. It must be made absolutely clear what constitutes the fabric of a building.

There are similar cases. How do we regard some of the Pugin furniture within the Palace of Westminster? Many would regard it as part of the fixtures and fittings. If an over-zealous Speaker—in league with the Serjeant at Arms—decided to flog off some of that furniture, he might be challenged on whether it forms part of the fixtures and fittings of the building. That is an interesting argument, but in the case of paintings and chandeliers, it is quite clear that they do not constitute part of the building. If the term was ''fabric of the building'', I think that such items would not be deemed to constitute part of the buildings.

 
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