Examination of Witnesses (Questions 300-319)
RT HON
TESSA JOWELL
MP, DR DAVID
GAIMSTER AND
MR ALAN
DAVEY
11 NOVEMBER 2003
Q300 Derek Wyatt: In Professor Palmer's
report there is an audit of what is there for human remains, but
we do not yet have an audit of what we have in sacred remains.
Is that going to get commissioned anyway?
Tessa Jowell: That will be part
of the consultation. I am certainly very happy to talk with the
museum directors and to ask them to undertake such an audit for
the sake of completeness.
Derek Wyatt: Thank you.
Q301 Mr Doran: Obviously the discussion
about the database is important, but what I want to probe a little
is how that fits in to the rest of the strategy, if there is one,
because the evidence we have heard so far about the weakness of
the system has certainly concerned me. Even if we have the database,
I would be concerned about how it would operate and there are
a number of areas I want to probe. The first is the co-ordination
between the government departments involved, particularly the
DCMS, the Home Office and the Treasury for Customs & Excise.
We have heard police evidence, we have heard Customs evidence
and it is quite clear that there are serious deficiencies in the
resources which are applied and the training of officers who may
be dealing with cultural objects. The Met has three officers for
the whole of London and the centre of the world art trade, for
example, and no dedicated officers in Customs and minimal dedicated
officers throughout the rest of the country. Is that an issue
which concerns DCMS and is it something which you are applying
pressure on?
Tessa Jowell: Yes, it does concern
me. Much of this fragmentation was thrown into very sharp relief
by our intervention to support the situation facing the National
Museum in Baghdad and the situation more generally in Iraq. Yes,
I think there is a degree of fragmentation which we can overcome.
We can overcome it as long as we have a common understanding about
the best way in which to proceed, hence the importance of the
debate about the database. Over the last six to 18 months we have
established a greater degree of clarity in relation to the policy
more generally. First of all, signing up to the 1970 UNESCO Convention
has established a date line beyond which we are responsible as
a government for honouring the terms of the UNESCO Convention
in relation to stolen or looted artefacts, so I think that that
provides a degree of clarity. Secondly, I think the action that
has been taken in Iraq, the gaps that were revealed in relation
to our efforts in Iraq and our ability to support the Private
Member's Bill so that we now have a new offence on the Statute
Book which will be effective at the end of next month closes a
very important loophole that was revealed in the context of Iraq,
but it was also a loophole that had concerned many of those in
the industry for a very long time. I think the third area of progress
is the work that we have been able to do with particularly the
Art Market Foundation and the other relevant organisations whose
integrity and credibility rests on their commitment to fighting,
I mean the shadier parts of the market. I think we now have the
commitment from those organisations which police the industry,
we have the commitment from Government through legislation and
we have the commitment from Government through the action we are
taking to establish a database that means that we are in a much
clearer position and will be once we have the national database
established in 2005 than certainly has been the position to date.
I think it is important to reflect on the extent to which this
is an area of policy to which everybody is prepared to sign up.
You do not get many people saying they think that allowing looting
or the theft of treasures from one country to another or a market
in stolen and looted goods is a good thing, but, as your question
reflects, putting the action in place to deal with it is considerably
more challenging because we rest on an international convention,
UNESCO, we rest on industry commitment to sign up to the policing
of self-regulatory action which the industry can do and then,
of course, there is a role for government, there is a role for
the police, but it works most effectively in a context of those
other measures being properly in place.
Q302 Mr Doran: All the evidence is
that there is a complete lack of resources in this area being
devoted by the police and by Customs & Excise. Is that something
that concerns you?
Tessa Jowell: It is. In terms
of the scale of the problem, I think this is likely to be an under-resourced
area. When we were very concerned recently about the evidence
that some treasures which had been removed from museums in Iraq
were being taken across the border, first of all we were able,
through the negotiation of UN Resolution 1483, to ensure that
sanctions remained in relation to prohibiting the removal of treasure
from Iraq. Secondly, through discussion with Treasury ministers
we have been able to achieve greater vigilance by Customs &
Excise in relation to the scrutiny of items that are coming into
the country. I would be misleading you if I were to suggest that
this is an area of work which is sufficiently central and sufficiently
well resourced for us to provide comprehensive protection both
for other countries where we wish to provide that or comprehensive
protection domestically against the unlawful and illegal art market
which operates, but we are making progress and I think I would
like to reflect further on the effectiveness of that in the year
2005.
Q303 Mr Doran: It sounds as though
it is still a low priority for some departments.
Tessa Jowell: It has been a low
priority. It has become a much higher priority for my Department.
As I hope I have made clear, the reason it has become a higher
priority is because of Iraq. One of the lasting effects of the
action that we took in Iraq will be to generalise the vigilance
that we applied there to other countries.
Q304 Mr Doran: You mentioned the
Private Member's Bill, the Dealing in Cultural Goods (Offences)
Act 2003 and obviously that is an important step. Customs say
in their submission that there is no specific prohibition or restriction
in the Act that will allow Customs to use powers of search and
forfeiture in their own and dedicated legislation. So Customs'
powers to search for suspected tainted goods will be confined
to cases where cultural objects are controlled for other purposes,
eg foreign arms. They do not have the powers to act where the
only issue is whether they are dealing with cultural property
or not, it is only when it is connected with something else, perhaps
drugs, firearms or some other illicit material. That seems a terrible
gap in the Act.
Tessa Jowell: I understand that
when the legislation was being drafted Customs & Excise actually
resisted inclusion of those powers because they were concerned
about the resource consequences for them.
Q305 Mr Doran: That takes us back
to priorities.
Tessa Jowell: You are absolutely
right and I would not want to mislead the Committee in suggesting
that this was an area of our collective responsibility as a government
that is sufficiently well resourced. I think that we will be in
a better position because of the measures that have been put in
place, but clearly we will have to make an assessment in the light
of the impact of the legislation, the database and so forth as
to the likely need for further resources. It is also important
not to load too much onto what was a Private Member's Bill. If
this is action the Government wishes to take then it should form
part of government legislation.
Dr Gaimster: Our legislation is
really all about changing the culture in the marketplace, it is
not about putting people into jail and that has always been our
approach. It is about making due diligence more effective for
the marketplace, encouraging better practice and that is what
the Bill does. It is very short, it has only got six clauses including
its title. It is not a comprehensive protection in that sense
but it helps, it is a contribution to transforming the culture
in the marketplace in the UK.
Q306 Mr Doran: I understand that,
but some of the other evidence that has come before us, which
I think we are beginning to accept is mainly anecdotal, shows
signs of a link between the trade in illicit cultural items and
drugs and firearms and money laundering. These are issues that
we have to take seriously. Whilst I accept that this is not meant
to be a belt and braces approach and I accept that sometimes you
have to work to change cultures, there are what seems to be a
couple of other gaps. Am I right in thinking that the legislation
does not extend to Scotland?
Dr Gaimster: That is right.
Q307 Mr Doran: I am attracted by
the idea of the international art market moving from London to
Scotland.
Tessa Jowell: Yes, moving to Aberdeen!
Q308 Mr Doran: On a serious point,
is that something which is being discussed with the Scottish Executive?
Dr Gaimster: Of course we cannot
legislate in Westminster on behalf of Scotland on devolved matters
such as criminal justice. In the meantime we are talking to our
counterparts at official level in the Scottish Executive and they
are scoping bringing forward a parallel measure in Scotland at
the moment and we are hoping to hear the outcome of that exercise
very shortly.
Q309 Mr Doran: I do not want to try
and trap you on this one, but I have been given a note about some
legal evidence which was given to ITAP and apparently they have
received legal advice to the effect that if DCMS discovers that
a cultural object is illicit or tainted then the Department does
not have the power or the right to refuse to issue an export licence,
at least if the object originates from outside the EU. That seems
to me a strange situation. I have got an example which I will
run through very quickly. For example, if dealer X in London has
an illicit object from China and he applies for an export licence
to take it to Switzerland, DCMS checks up the detail of the export
licence application and finds that the object is illicit, but
the Department nevertheless has to issue an export licence. The
concern is that that gives some legitimacy to what is really an
illicit item, so it can be moved on. Again, that seems to be a
gap in the legislation. I do not know if you have had a chance
to consider that legal advice.
Tessa Jowell: I will ask Dr Gaimster
to come in on this, but we are aware of that gap. There are also
issues that we are having to address and on which we are taking
advice at the moment on compatibility with EU law.
Dr Gaimster: It has been one of
the key concerns for ITAP, the use of our export licensing regulations,
our arrangements there, to see if we can monitor and kerb the
use of our export licensing system as a way of using the UK to
launder objects in the way that you describe. A working party
has been set up by ITAP to focus on this particular issue in more
detail. That working party met earlier this year and since then
the Department has been commissioning legal advice on the way
forward. What we can do to adjust our systems is to make them
more compatible to other policies that we are bringing forward
such as the new legislation, the Dealing in Cultural Objects (Offences)
Act. Speaking as secretary of the ITAP, the panel is now turning
its attention to areas of enforcement for the key areas of policy
that they have been developing through UNESCO and the new legislation
and that will be a key area for them to consider. At the moment
the Department is requesting and considering legal advice on what
is and what is not possible in terms of our current arrangements.
Q310 Mr Doran: Have you met this
problem in practice? Are you aware of any examples?
Dr Gaimster: Yes, we have received
several examples of this kind of problem from the trade and from
Customs, but ITAP's policy has always been to try to use the export
licensing system as a means of slowing down the use of the UK
as a port of entry and export for illegally removed and stolen
cultural property.
Q311 Mr Doran: I understand the softly-softly
approach which you are taking, but there are a lot of other issues
which are connected to the trade of illicit cultural goods and
I mentioned illegal drugs etcetera. At the same time we know that
London is by far the largest market in the world and it is obviously
an important economic generator for the country. How much does
that dictate the approach that you take?
Tessa Jowell: London and New York
are the two biggest markets in the world. When I came here the
last time I made it clear that the important thing is that the
art market in London is a clean art market and the procedures
in place are rigorous in dealing with any criminal activity. We
are aware of the link to organised crime and we have to be vigilant
about that, but certainly all the trade institutions are signed
up to co-operate with this.
Q312 Chairman: Secretary of State,
in the report that we issued approximately three and a half years
ago we said, among other things, "We very much welcome the
view taken by the British Museum in making clear and unequivocal
statements that it would wish to return objects looted during
the period 1933-45 and not subsequently returned. We recommend
that ministers in the Department of Culture, Media and Sport be
in cross-party consultations as a matter of the utmost urgency"—and
I stress those two words—"with a view to securing agreement
for early and expedited legislation to permit the trustees or
boards of national museums and galleries to dispose of objects
which, in the view of the Spoliation Advisory Panel, were wrongfully
taken during the period 1933-45". The response of your department
was: "The Government agrees with the Committee that it would
not be appropriate to give the boards of the national museums
and galleries general powers to dispose of objects in a broader
range of circumstances than is currently permitted, but it also
agrees that there may be a case for legislation to permit disposals
in very specific and tightly defined circumstances. The Government
therefore accepts the Committee's recommendation that there should
be consultation specifically on the case for legislation to permit
the return of human remains . . .". I will pause at that
point because this is a dual thing. During sessions of this inquiry
now, in the year 2003, it was indicated to us that the Department
of Health was going to be used as a vehicle for that and yesterday
at Question Time you confirmed that. Would you be kind enough
to specify exactly what the Department of Health Bill will provide
for and what the timetable for enactment and implementation will
be?
Tessa Jowell: I did have some
difficulty hearing you, Chairman. Can I be clear? Are you asking
two questions? Are you asking about legislation in relation to
spoliation, and then—
Q313 Chairman: I am separating it
out, Secretary of State, because there are two aspects to this.
I will read two sentences from your response: "The Government
therefore accepts the Committee's recommendation that there should
be consultation specifically on the case for legislation to permit
the return of human remains"—that is relevant to what
I have just been asking about but I thought that that would split
it off because it is a different matter, and the rest of the sentence
went—"and to permit the return of objects which were
wrongfully taken during the period 1933-45. The Minister for the
Arts has written to the relevant bodies to set this consultation
in train". That latter part I shall come to in a moment.
The part that I am wanting to ask you about now is "legislation
to permit the return of human remains". As I say, it was
indicated to us in a previous evidence session in this Committee,
and you said in terms in the House of Commons yesterday at Question
Time, that there is to be a Department of Health Bill to deal
with the human remains part of it, relating, as I understand it,
to human tissue. In view of the fact that you have now confirmed
in terms that there is to be such legislation from the Department
of Health with an input from your own Department what I am asking
for is, what precisely will be provided for by the Department
of Health Bill, when you expect it to be enacted and when, after
its enactment, you expect it to be implemented.
Tessa Jowell: The first proviso
I have to give, and it was Estelle who answered the question yesterday,
is that this is obviously subject to the final decisions in relation
to the Queen's Speech, but we have negotiated with the Department
of Health inclusion of a clause in the Human Tissue Bill which
we hope will be included in the Queen's Speech. Why have we done
it that way? First of all, it is because we did not expect that
it would be possible to secure our own separate legislative slot
and the principles that the Department of Health have already
published for their legislation are that first of all explicit
consent is a fundamental principle underlying the holding, removal
and use of human tissue and, secondly, that a licensing regime
would apply in which a regulatory authority would be responsible
for overseeing certain activities in relation to human tissue.
It is our view that human remains should be subject to the same
kind of regulation as is intended for human tissue so that there
is a synergy between the safeguarding of human remains and the
safeguarding of human tissue.
Q314 Chairman: I am not clear what
that means. It is quite unusual for a Minister to make a statement
about forthcoming legislation in advance of the Queen's Speech,
but that is what you did yesterday. You did it in terms and you
did it at the despatch box on the floor of the House and it was
in response to a question—I have not got the Hansard
in front of me—
Tessa Jowell: Yes. Estelle was
asked a question by Julie Kirkbride.
Q315 Chairman: That is right She
asked you the question. She was at that time, and indeed technically
still is, a member of this Committee though that may change as
a result of her appointment yesterday. Nevertheless, she asked
you that question. You replied, and it was very much an extension
of what was said to us in these precise terms, and not by a minister,
at a previous sitting of this Committee. When a minister commits
herself on the floor of the House to legislation then one assumes,
and certainly in your case I would take it for granted, that that
was done in good faith. That being so, I do not think it is too
much to ask exactly what that legislation will do. As was said
before this Committee and, as you said in the House yesterday,
it related to human tissue, but I am assuming that human tissue
includes skeletons, bones and matters of that kind. Therefore,
I am assuming that the legislation to which you referred in the
House yesterday will cover the commitment that you made in response
to our report. What I am therefore asking, and it is you yourself
who have made this quantum leap in assuming it will be in the
Queen's Speech, is, what will be the timetable for doing it and
what will be the timetable for its implementation?
Tessa Jowell: Chairman, can I
just deal with the point about revealing what is in the Queen's
Speech? I can make clear to you what we would like to see in the
Queen's Speech and how we would like the legislation to be framed.
Whether it is in the Queen's Speech is obviously a matter for
the Queen and for the Cabinet and you better than anybody else
understand the conventions. I have not read the Hansard
of yesterday but I am quite sure that Estelle, in answering the
question, if she omitted to make the conditionality clear, would
have wished to do so. My answer to you is in the following terms,
that yes, we would like to see this legislation in order to take
forward the work of Professor Palmer's Committee. I have just
been given a note which makes clear that Estelle Morris, the Minister
for Arts, yesterday said that she hoped to use the proposed legislation,
so she was quite clear about the conditionality. I cannot tell
you this morning that it will definitely be in the Queen's Speech
but we hope. To cut to the quick of this, what we would hope to
see is a single clause that would make it possible for trustees
who at the moment, as you know, have very particular responsibilities
which more or less prohibit them from allowing de-accessioning
of items in the collection, to do so specifically in the context
of human remains. It would give the trustees discretion to de-accession
certain human remains were an application made by an individual
or by another government.
Q316 Chairman: That is fair enough
because, as Julie Kirkbride said yesterday, and it was what was
said round this table when we looked at these things, there may
well be very good reasons why a museum would wish to hold on to
such material.
Tessa Jowell: Exactly.
Q317 Chairman: And we have never
recommended that it should be compulsory for it to happen. We
will have to wait for the Queen's Speech on that. Let us take
the second part of the departmental response. "The Government
therefore accepts the Committee's recommendation that there should
be consultation to permit the return of objects which were wrongfully
taken during the period 1933-45. The Minister for the Arts has
written to the relevant bodies to set this consultation in train".
I went that autumn, representing this committee, to a conference
on spoliation in Vilnius and I read this out to them and there
was great applause for it. Where have we gone since then? We have
got a second response in March 2001, nearly two and three-quarter
years ago, on what was to happen after the Minister for the Arts
had written to the relevant bodies. What was said in that was
that there had been consultation with the National Museums Directors'
Conference, the Museums Association, the Museums Standing Group
on Repatriation, the Tate Gallery and Resource, the Council for
Museums' Archives and Libraries. It went on, and forgive me for
going on at length but this is what your department said: "There
has been general agreement from those consulted that the removal
of legislative barriers to restitution should be sought. The Government
has begun cross-party discussions about the possibility of permitting
the trustees or boards of national museums and galleries to be
able where appropriate to return items which were wrongfully taken
during the period 1933-45. It is also exploring the possibility
of achieving this by means of a Regulatory Reform Order under
the Regulatory Reform Bill currently progressing through Parliament".
That did not happen. That was two and three-quarter years ago.
The immediate vehicle which was mentioned was not used, so where
are we now, two and three-quarter years beyond that?
Tessa Jowell: Two and three-quarter
years beyond that we have up and working in response to the consultation
a panel which is chaired, as I think you know, by Norman Palmer,
who reported to you on the way it is working last week, or during
the course of this hearing anyway. It has met on six occasions.
The advice to my department from those who sit on the panel is
that legislation which might have been necessary is not now thought
to be necessary. The Advisory Panel has the power to direct me
as Secretary of State to submit the case for legislation but it
has not done so. Since the panel was established only five cases
have been considered.
Q318 Chairman: You refer to Professor
Palmer. We had the immense treat of having Professor Palmer before
us last week and if the word "opaque" did not exist
it would have to be invented to describe the way in which he responded
to questions. What I am not clear about is that our understanding,
and indeed the British Museum made it absolutely clear when they
came before us on the last inquiry, that they could only divest
if the law was changed to allow them to divest, and I do not see
how the Spoliation Advisory Panel can require them or enable them
to divest when they told us that their statute did not permit
them to divest unless there was a change in the law.
Dr Gaimster: On that question
about what the panel can and cannot do, it can recommend DCMS
to consider legislation but it has not actually done so. I think
the Secretary of State has already made that point.
Q319 Chairman: Sorry, but, whatever
it recommends or does not recommend, was the British Museum right
when it came before us three and a half years ago to say that,
whether it wanted to divest or not (and it envisaged circumstances
in which it might want to divest) statute would not permit it
to divest unless the law was changed?
Dr Gaimster: That is still the
current position.
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