Dealing in Cultural Objects (Offences) Bill

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Dr. Howells: Does the point about what constitutes the Palace of Westminster indicate a discourse within the Conservative party about a means of raising funds?

Tim Loughton: In the few short years before the next Conservative Government comes to power, the economy will have reached such a parlous state that we may have to resort to such alarming measures to put the economy back on an even keel, and I am sure that the next Conservative Government will do so in short order.

I do not want to stray from the important point and take us beyond the two hours that we have been allotted. There are many other examples of such items, such as King Arthur's table in Winchester. It has been in Winchester for many centuries and although its origins have not been properly discerned, many would say that the table constitutes part of the building in which it hangs. Arguably, however, it is quite separate from the fabric of the building—it certainly was not there when the building was built. There are many examples of how it may be quite legitimate to differentiate between what is part of a building—for example, the gargoyle that was carved on to Salisbury Cathedral at the time of its construction—and what has later been added to adorn the appearance of a building.

Shona McIsaac: I can see what the hon. Gentleman is getting at but does he not agree that context is vital when we are dealing with cultural objects? He is arguing that certain things could be removed from a building, resulting in the loss of that context. That is what worries me about his amendment.

Tim Loughton: What constitutes context is a highly subjective matter. There are various other measures that restrict owners of property disposing of items from a certain context. I am addressing an entirely different matter. Paintings and chandeliers are two perfectly good examples. In most circumstances, they could not be described as part of the fabric of the building. Context is raised under entirely different laws.

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I cannot see a downside to adding the closer definition. It takes nothing away and it makes it no easier to destroy buildings of great archaeological or architectural interest. A lintel from Stonehenge would patently be part of the building, but some of the articles that I have mentioned are not part of the fabric.

Mr. Carmichael: May I suggest one possible disadvantage? Each case will be judged on its facts and circumstances. As the law stands, the courts are required to decide whether an article is a fixture or a fitting and therefore whether or not it is part of the building. If we introduce the term ''fabric'', the courts will have to decide between the three categories. That is surely a downside.

Tim Loughton: Proceedings under case law built on the definitions in the Planning (Listed Buildings and Conservation Areas) Act 1990 have gone either way. I would hope that by inserting ''fabric'', case law could quickly build up, which would allow a definition of ''fabric'' as part of a building rather than something added to it. As it stands, people could be prosecuted, or cases could be brought against them that would prove expensive, if in perfectly good faith they tried to sell a part of a stately home such as a painting or a chandelier that was not part of the home when it was constructed—which is the point of listing the building.

This is a probing amendment and I would be delighted if the Minister gave some keen definitions of why the trap that I have described would not occur. I believe that amendment would add to the Bill. Those who support the amendments want the Bill to work. We are not trying to water it down—quite the reverse. The danger is that vexatious cases could arise if we do not have the tighter definition that I propose in the amendment.

Hugh Bayley: I do not want to detain the Committee; I know that every member wants to make progress. However, the hon. Gentleman seems momentarily to have lost sight of the purpose of the Bill, which is to strangle the trade in looted cultural objects. Regardless of whether it is a chandelier or lead from the roof of a palace, I believe that we need the wider definition.

I shall make my point briefly. We are told in the e-newsletter of the Society of Antiquaries that the Society for the Protection of Ancient Buildings has expressed concern that it is not only great cultural objects such as paintings or Roman statues that need to be protected—the Bill would protect such items—but that

    ''there is a worrying trend towards the theft of humbler bidding materials. Where once thieves targeted the lead on church roofs, they now strip Cotswold barns of roofing tile, demolish dry stone walls for their limestone, steal bricks from estate walls (as happened at Melton Constable just before Christmas last year), and lift paving slabs from the very streets of historic towns.''

It also says that the theft of paving slabs has been fuelled by garden makeover programmes on television.

Tim Loughton: All the items that the hon. Gentleman mentions are clearly part of the fabric of buildings. Lord Hazelrigg did not loot those paintings:

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they were legitimately purchased by his predecessors and he had every right to sell them without their being considered part of the fabric of the building. There is a clear distinction.

Hugh Bayley: I differ from the hon. Gentleman. Which part of what building were the dry stone walls? Which part of what building were the 40 paving slabs removed from around the war memorial in All Hallows' churchyard in the London borough of Camden? They were not part of the fabric of the church, but they should have been protected, because they were part of the structure. The Bill refers to cases

    ''where the object has at any time formed part of the building or structure''.

If we include the words ''the fabric of'' the building, we narrow the remit of the Bill too far.

Mr. Key: That is an important point. Does the fabric of the building include the curtilage of a building, which is a precise legal definition that is used in other legislation? If it includes the curtilage, it would include dry stone walls and gargoyles.

Hugh Bayley: I take the hon. Gentleman's point. However, we do not have to make that definition, or run the risk of judges making a definition that we do not want, if we do not include ''the fabric of''. Although I understand the reason why the hon. Member for East Worthing and Shoreham has tabled the amendment, it would undermine the objective of the legislation, so I hope that he will withdraw it.

Mr. Allan: I have spent more time considering this amendment than any other part of the Bill, so it is worth allowing it a reasonable amount of time in Committee. I am grateful to the hon. Member for East Worthing and Shoreham for having put the case and allowed us to debate it.

There is a common understanding of the objective of this part of the Bill, but concern about how it might work in practice. The objective is to prevent people from hacking off pieces of important buildings and selling them on. The inspiration behind it was, from the point of view of ITAP, the damage done to buildings such as ancient Cambodian temples that were cut away over many years—the ITAP report has on its front cover a picture of sculptures that were part of Angkor Tom temple in Cambodia. We know where the thinking started, but we have to work out how to apply it in the UK, as it has to relate to the listed building legislation that defines how buildings are protected.

Material that has been taken from a listed building without consent has the potential to be tainted, as an offence will have been committed and it will fall within the scope of the dealing offence. It is therefore important to clarify the scope of the material that the Bill intends to incorporate. We have before us two proposals on how to define that scope. The original wording says that an object must be part of the building, and the proposed wording is that it must be part of the fabric of the building. I understand that the intention of the amendment is to make it absolutely clear that only material that is a physical part of the building is covered. Clearly, portable material such as

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furniture, wall hangings and free-standing statues that are in a listed building is not covered by either definition.

The hon. Member for City of York made the point that we are not trying to deal with furniture. There is no suggestion in either wording that furniture or free-standing objects are likely to be covered. I understand that there is case law that stems from consideration of listed building consent cases, which relates to the wording that the hon. Member for East Worthing and Shoreham has set out. He mentioned two such cases. They require two tests to be applied when considering whether consent is needed: the degree of the attachment of the object to the building and the purpose of its annexation to the building. Those tests are defined and they are evolving in case law.

There have been cases that have tried to establish when listed building consent is required. That provides a rationale for the application of the dealing offence. Essentially, if an object were deemed to require listed building consent for its removal, the same test would mean that such an object would be removed without such consent. In practice, that means that a dealer would in doubtful cases have to ask the potential vendor of an object whether he had listed building consent for the removal of the object or clear advice from the local authority that no such consent was necessary. If he had not sought such consent and there were good reasons to believe that consent would be needed, the dealer would run the risk of knowingly dealing in a tainted object if he bought it. The onus would fall back on the vendor. If he either sought advice and was informed that no consent was needed or obtained the consent, he would be free to sell the object and a dealer would be free to buy it without risk.

The proposed wording, adding the words ''the fabric of'' is initially attractive in that it appears to define more closely the object as needing to be a physical part of the building. My understanding is that there is no body of comparable case law that involves the concept of part of the fabric of the building that will apply in the present case. If the amendment were passed, we would have to define the concept anew. Rather than clarifying matters, that would introduce an element of uncertainty into the Bill.

When faced with the choice between the two, I feel that on balance the argument falls in favour of the original wording, which picks up on some of the points that my hon. Friend the Member for Orkney and Shetland made. That is not least because the Bill provides a workable test for the vendor and dealer to follow, namely that of seeking advice from the local authority in accordance with listed building regulations. Although there are still some difficult cases that might require legal arguments to resolve, most instances are much more clear cut than those that have been cited. Above all, the provisions allow for a simple course of action for the dealer in such cases, which is to secure from the vendor an assurance either that no consent is deemed necessary by the local authority or that such consent has been sought and obtained.

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3.30 pm

There would be no such simple course of action in the case of the proposed wording: potentially, different tests from those under listed building regulations would be applied under the Bill's wording in relation to the fabric of the building. That would create more business risk for dealers because they might have to deal with complex court cases to define whether an object that was deemed to have been illegally removed under listed building legislation, given that the test showed that it was part of the building, was or was not part of the fabric of the building for the purposes of the offence in the Bill.

I therefore respectfully suggest that it would better for the dealing trade to avoid the uncertainty that would be caused by trying to maintain two separate definitions—one to do with whether an offence has committed by breaching listed building legislation and one for whether the item in question forms part of the fabric of the building, thereby causing the dealing offence to kick in. It would be much more straightforward to evolve a simple body of law around ''part of a building'', rather than to try to maintain the two separate definitions. I appreciate that that is contentious, but the mechanism of going back to the local authority to inquire—as anyone who wants to make alterations to a listed building should do—will offer the greatest protection to dealers.

3.31 pm

Sitting suspended for a Division in the House.

3.47 pm

On resuming—

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