Select Committee on Culture, Media and Sport First Report


2  Action taken by Government

Summary

15. The following table summarises such steps as have been taken by Government — as apparent from our evidence — to tackle the issues of illicit trade, human remains and spoliation since the previous Committee's Report in June 2000.
Date Event or action taken
November 1999 to June 2000 Establishment of the Spoliation Advisory Panel.
May 2000 The Ministerial Advisory Panel on Illicit Trade (ITAP) established
July 2000 Previous Committee's Report published: Cultural Objects: return and illicit trade (Session 1999-2000).
October 2000 Initial reply to the Committee from the Government.
December 2000 First report from ITAP; broadly in line with the Committee's Report.
January 2001 First meeting of Home Office working party on a national database. Broad membership including commercial database operators who were asked to submit a proposal by the end of February.

First report from the Spoliation Advisory Panel on a painting in the Tate Britain Gallery. The Government accepted the Panel's recommendation that an ex gratia payment be made.

February 2001 Commercial database operators submitted a proposal to the Home Office working party on a national database. The commercial operators offered to pilot a scheme free of charge for two years.
March 2001 Working Group on Human Remains established.

Further reply to the Committee from the Government.

May 2001 Letter to the commercial database operators from the Home Office reported a hiatus while Ministers decide how to proceed
June 2001 The first working party on the database disbanded as 'ineffective' because participation of the commercial sector prevented the consideration of all options and compromised any resulting competitive tender.

The Police Information Technology Organisation (PITO) was asked to review options for the database.

November 2001 PITO report recommended a database created in partnership with the commercial sector at an estimated cost of £12 million over five years.
January 2002 ITAP report on progress described information retrieval as "the field in which progress has been least satisfactory and in which the reasons for delay are least persuasive."
March 2002 Second Home Office working party on a national database convened (Home Office, DCMS and police) to consider the PITO report.
September 2002

September 2002

Second meeting of second Home Office working party. DCMS asked to submit an outline business case for the database by the end of October.

The Home Office proposed to the National Criminal Intelligence Service (NCIS) that it house the proposed database.

October 2002 The Director General of NCIS agreed, in principle, to house the proposed database.

UK accession to the UNECSO Convention announced.

November 2002 Home Office Ministers decided that NCIS should not house the proposed database to avoid compromising the focus and purpose of the Service.
January 2003 Third meeting of second Home Office working party on a national database (Home Office, DCMS, Metropolitan Police, PITO, NCIS, HM Customs & Excise) to reassess options.
May 2003 DCMS submitted a draft outline business case for a national database.
July 2003 The Committee announced its inquiry into the Government's progress on the cultural objects agenda and took initial evidence from the Secretary of State for Culture, Media and Sport.

Home Office and DCMS officials met with regard to the database. Agreed to pursue two separate options simultaneously: the Home Office would look at expanding the existing Metropolitan Police database; the DCMS would look at the partnership between the public sector and commercial database operators proposed by the Council for the Prevention of Art Theft (CoPAT).

October 2003 The Dealing in Cultural Objects (Offences) Act received Royal Assent.
November 2003 Report of the Working Group on Human Remains published.

Secretary of State for Culture, Media and Sport, in evidence to the Committee, indicated her hope that a Bill being developed by the DoH, regulating the retention of human tissue, would include a provision permitting national museums and galleries to return human remains from their collections in response to valid claims.

Legislation to establish a new regulatory regime for the retention, treatment and disposal of human tissue was announced in the Queen's Speech.

Illicit trade

STRATEGY

16. The Government's approach to cultural property crime seems, at the very least, to suffer from a lack of definition. The Home Office set out the resources devoted to cultural objects in supplementary evidence.

a)  Resources devoted to tackling the illicit trade in cultural objects across all the forces are limited. This is because the extent of the illicit trade in cultural objects is not known but is much smaller than volume crimes such as burglary, vehicle crime and street crime; and the trade in arts and antiques is concentrated in London.

b)  The majority of forces do have a due diligence officer who is tasked with dealing with issues around stolen cultural artefacts. A national database will help such officers to carry out their duties more effectively and a crucial part of the project to take forward the development of a national database will be to actively promote its use among police forces.

c)  The art and antiques industry in the United Kingdom as a whole is vast and no police force has, or will ever realistically have, the available resources to police this industry closely. For this reason it is essential that the industry should police itself. We hope that the development of a national database, along with the promotion and training that will accompany it, will create a two-pronged approach with the industry and the police working together to combat this illicit trade.[18]

17. Mr Julian Radcliffe, Chairman of the Art Loss Register and Mr Richard Ellis, Director of Trace, agreed that the problem was one of knowledge as well as priorities. Mr Ellis told us: "There is also, I think, a lacking in understanding. This is where there has to go hand in glove with the introduction of a national database some form of education of the police themselves of the nature of this as a crime within the United Kingdom. It is invariably cross-border and with the fragmentation of the police forces and the concentration of the police resources, quite rightly, to dealing with the local issues, there is not an overall view (which in fact the databases and the private sector enjoy) because we receive the reports from a whole variety of police areas … this fragmentation results in there being no overall concept of a scale of crime which does not perhaps reach the National Crime Squad level of seriousness, but it is, nonetheless, also serious … so the criminals in this field are able to operate with some degree of impunity."[19]

18. As Mr Davies of the Museums Association told us "cultural property crime is not in the category of offences on which police forces have to report to the Home Office each year as part of their performance management regime … as a consequence, it is not something that the police are motivated to devote a lot of resources to."[20] Therefore such crime does not appear to have a neat administrative framework for defining or estimating its extent. This can leave the stripping of listed buildings of notable features just put down to vandalism. The MPS Art and Antiques Unit (with three officers) is the nearest thing to a national unit on these matters — appropriate enough as London, according to the Unit and others, is the illicit market's "centre of gravity" in the UK.

19. The elements of the strategy identified by the previous Committee were: a national database of stolen and illegally removed cultural objects; accession to an appropriate international agreement; and the criminalisation of dealing in tainted cultural objects.[21]

A DATABASE FOR STOLEN AND TAINTED CULTURAL OBJECTS

Priority

20. A national database of unlawfully removed cultural objects (from anywhere in the world) is regarded by the Government's expert advisory body and the British Art Market Federation as the single most important practical step towards making meaningful the "powerful signal" sent out by accession to the UNESCO Convention and the new Act.[22] The Government's own advisory body on these issues, ITAP, reported to ministers in 2002 that "the viability and authority of the proposed criminal offence, of the UK's accession to UNESCO, of the new export licensing measures and of the campaign of education designed to accompany these reforms all rest heavily on the accessibility of the required information".[23]

21. Evidence from the DCMS recognised the importance placed on the database by the art trade and museums and that the development of such a database was "regarded as integral to fulfilling the UK's new obligations under the 1970 UNESCO Convention".[24] Professor Norman Palmer, Chairman of ITAP, told us that: "The Illicit Trade Panel is quite certain that this database is crucial in a number of respects to its recommendations generally."[25] In relation to the operation of the new Act he said "We see [the database] as an essential building block, an essential cog in the prosecution wheel. But, similarly, of course, there is the question of defence … How are people going to show that they had no reason to believe it was stolen if they cannot say, 'I checked the register and the register said it was not there'".[26] Mr Anthony Browne, Chairman of the British Art Market Federation (BAMF), summed up the issue for the trade saying: "We think [a database of stolen cultural property]…is the most important practical step that can be taken to confront…the illicit market here in the United Kingdom."[27]

22. There seemed, however, to be some confusion about the relationship between the illicit trade in cultural objects, a national database, and organised crime (as distinct from the illicit trade's inherent criminal character, its deleterious effect on world heritage and legitimate archaeology and the damage it caused to the reputation of the British art market). The DCMS stated in written evidence that the database "is also recognised by law enforcement agencies as part of a desired proactive strategy to control the use of stolen artworks and antiquities for other areas of organised crime, including money laundering and the financing of drugs and firearms in connection with terrorist activities."[28] Yet in oral evidence the Secretary of State suggested that "the link between investment in such a database and dealing with money laundering, drug trafficking and the other criminal activities increasingly associated with crime in the art market" remained to be proven to the Home Office.[29]

23. Evidence from HM Customs and Excise stated that: "Customs share [the National Crime Intelligence Service's] assessment that serious and organised crime may be attracted to the global cultural property market and are alive to the potential use of cultural goods as a relatively safe means of payment or moving assets. … However, neither Customs nor NCIS have any specific intelligence of links between cultural goods and money laundering, drug or arms trafficking."[30] In oral evidence witnesses from HM Customs told us that their work was intelligence-driven and they "were not aware … that there is a pile of intelligence sitting, for example, in any police force that is not being acted upon."[31]

24. In some contrast the Parliamentary Under-Secretary at the Home Office, Caroline Flint MP, told us: "I am aware clearly … that there are links between the purchase of these [cultural] objects with a view to laundering money, but also we have some information to suggest that they are also being used by terrorists in terms of financing activities as well. There is some evidence there, but it is not clear to the extent of how big a role it is playing in relation to organised crime against the other more traditional uses of money-laundering … so it is important, but it does sit alongside a number of other competing and pressing priorities."[32] In evidence Ms Flint conceded two areas of further work were needed. First was analysis to clarify the links between the illicit trade in cultural objects and "a wider scheme of activity involving criminal behaviour, particularly in terms of drug-trafficking and other types of organised crime".[33] Secondly, she referred to the increased attention being paid to "cracking down" on "dodgy accounts" and that one offshoot may be an increase in criminal funds being kept in the form of portable high-valuable assets. She told us "To be honest with you, that is not something that we have a particular unit looking at, but we cannot take our eye off the ball in terms of any future developments."[34]

25. We asked for clarification on these links and in supplementary evidence the Government said:

a)  The link between the illegal trade in cultural items and organised crime has been shown through individual cases but the extent of this link has not yet been investigated fully.

b)   The Interpol Criminal Information System (ICIS) also shows links to organised crime in individual cases, notably with money laundering and drug trafficking offences. However, the National Criminal Intelligence Service (NCIS) has confirmed that the extent of the link between the illicit trade in cultural property and organised crime has not been accurately assessed.[35]

26. The Home Office told us that it would consider whether to request an assessment of the links between the illicit trade in cultural objects and organised crime. However, in doing so the Home Office said it would have to make sure that such an exercise was deemed to be cost-effective, especially given the competing priorities facing those involved in tackling organised crime.[36] The Home Office sounded a note of warning in arguing that it would also need to consider whether the development of the national database should be delayed pending the results of this assessment.[37]

Progress, or lack of it

27. The course of events set out by the Government (and summarised in Table 1 above) relating to the development of the database reveals a lamentably slow and seemingly tortuous, process. The Government's reply to the Committee in March 2001 referred to a Home Office working party being given the project to consider "urgently" in January of that year. We do not consider those terms of reference to have been implemented in any way.

28. A major blind alley, cited by the Government, was the involvement of the existing commercial art theft databases in the process. Our predecessors recommended "the development of an open system which can meet the needs, and draw upon the skills and funds, of the private sector".[38] We recognise that the initial attempt to develop the proposal sought to meet that recommendation by involving the Art Loss Register and the Invaluable Group (operators of the Trace database) in the initial working party. What we find unacceptable is the abandonment of that first initiative. The reasons given in evidence were: (a) the inhibition of the working party from looking at all options — presumably a wholly police-run database; and (b) the compromising of any eventual competitive tender.[39] Professor Palmer described the disbanding of the working party as a "false trail", although whether he was referring to the disbanding, or the working party itself, was in retrospect not clear.[40]

29. The position arrived at eventually in July 2003 — after two years of review and reassessment — was a rather odd 'agreement' to pursue two proposals simultaneously: a police database to be developed by the Home Office; and a public/private partnership to be developed by DCMS.[41] This was surely an approach that could have been adopted in June 2001 once it was decided that a public/private partnership was dominating discussion with detrimental effect. It is both frustrating and paradoxical, with the benefit of hindsight, that the Police Information Technology Organisation (PITO), having been asked to review the options following the abandonment of the public/private working group, ended up recommending a public/private database.[42]

30. The PITO report in itself did not seem to move the process forward; if anything the estimated costs, £12 million over 5 years, had the opposite effect.[43] Professor Palmer described the report as another "false trail".[44] More recent estimates of costs — across different options — seem to lie between £500,000 and £1 million per year.

31. We asked the Home Office and DCMS whether guidance was sought from the Office of Government Commerce on commercial involvement in working parties on projects and the implications for competitive tender. A supplementary memorandum said: "Officials at the Home Office were advised by the Commercial and Procurement Unit that there was a potential conflict of interest. The Commercial and Procurement Unit always has due regard to Government Accounting when providing advice. In this instance, other bidding companies would have legitimate cause for complaint if a company that had participated in the working group drawing up the criteria were awarded the contract."[45] We note that two non-commercial databases, Salvo and FindStolenArt, were not involved in discussions despite their pedigree and co-operation with a number of police forces across the country.[46]

32. All our witnesses were in agreement that the process had not gone well although there was a wide variation in tone. ITAP, reporting on progress in 2002, stated that: "Information retrieval [i.e. a national database] is perhaps the field in which progress has been least satisfactory and in which the reasons for delay are least persuasive."[47] Professor Palmer, ITAP Chairman, added in evidence: "I have sympathy with [DCMS] attempts to penetrate what appears to be the Home Office's impenetrability on this matter. That being said, there comes a point when you cannot listen to excuses any more. A point I cannot emphasise too strongly is that the purpose of the Illicit Trade Panel is to get all sections of the arts community together, speaking for one another. We have succeeded in doing this for three years but there is an emerging sentiment in some quarters that, for example, the trade has accepted the burdens without gaining the benefits. There is a feeling that if this does not progress soon the committee will, perhaps, begin to fall apart — not to put too fine a point on it — in which event a lot of the effort will have been wasted."[48] The British Art Market told us that its reaction to absence of progress on a national database was "to sum it up in a word … frustration". Mr Browne said that "I think it is lost in discussion somewhere in departments, but it is to be regretted."[49]

33. In July, the Secretary of State described the problem to us as one of a disagreement primarily between industry and police: "The problem we have … is the profound nature of the disagreement between the police, on the one hand, and the art market and the industry, on the other … both want a database, they want it for different purposes and neither want to pay for it".[50] In November she told us: "this is an extremely complex project; and … there have been, and indeed remain, differences of view between my Department, the industry and the Home Office about the best way forward and much of the last two or two and a half years has been spent on negotiating those differences."[51]

34. Ministers from both the DCMS and the Home Office emphasised that a major obstacle had recently been overcome in that the police had agreed to the database, whoever ran it, being open, i.e. being accessible for dealers in the trade and perhaps other relevant persons.[52] This was an important objective for the DCMS who saw the database as allowing "due diligence by those who want to acquire a particular object and checking it against the database is a means of ensuring that that process of due diligence has been undertaken."[53]

35. We noted that the principles agreed by the first Home Office working party (which included the police) in March 2001 included "accessibility" and we asked the Government whether this equated to the "openness" now being highlighted as a breakthrough. A supplementary memorandum said that the first working party "can best be described as a brainstorming session" which established general principles which had not changed. In 2001 the Metropolitan Police Service supported the agreed criteria, including "accessibility" but were unable to provide an open database themselves because of negotiations, then on-going, with the American FBI concerning shared IT resources.[54] This seems to us to have been an argument for a public/private partnership.

36. We further noted the precedents for, or at least interesting examples of, cooperation between police, and other government agencies, in supplying information for commercial databases providing services: aimed at preventing trade in stolen, or otherwise tainted, vehicles and equipment: The National Equipment and Plant Register and the second hand car databases operated by companies Experian and HPI. A joint supplementary memorandum from the Home Office and DCMS said that proposals for the cultural objects database were not yet developed enough to be able to draw useful lessons from the analogous services that we highlighted.[55] The departments' evidence, however, confirmed our understanding that these databases provide useful precedents for cooperation between public and private sectors on the provision of data for the exercise of due diligence as well as caveat emptor.[56] We would draw attention to a target set for a reduction in vehicle crime by the Prime Minister and recommend that he gives consideration to a similar performance objective for the theft of cultural objects.

37. The Home Office Minister, Caroline Flint MP (responsible for these matters since June 2003) put the work on the database into context against the Home Office's other priorities but seemed to recognise the unsatisfactory sequence of events behind the current state of play.[57] She told us that she was trying to "make sure" that the database was in operation next year and emphasised the present position in which the Home Office had committed funds — as a sign of "goodwill" — to appoint an independent consultant to review the two proposals on the table and advise on a decision between them to be made by Government.[58] The forward timetable set out by Ministers can be summarised as follows:

a)  submission of detailed proposals for analysis by February 2004 (earlier if possible);

b)  a decision between options before March 2004;

c)  an initial pilot phase for a year (at a cost of £300,000); but

d)  roll-out as soon as the pilot phase could be judged a success.[59]

Mr Steve Wilkes, Head of the Burglary Unit at the Home Office, conceded that there remained a number of issues to resolve but said that "we are really keen to take them forward and get the database up and running as quickly as possible."[60]

38. The Government clearly needs to undertake further work if it is to determine the relationship between the illicit trade in cultural objects and organised crime, and terrorist organisations, in terms of hiding, transporting and laundering illicit funds as well the part such material plays in illegal arms and drugs transactions. Although not within our remit, these matters are extremely important.

39. However, contemplation of this work must not hold up the progress with the national database that has now been promised by all concerned, including the Home Office. In addition to adduced links to organised crime, many aspects of the illicit trade in cultural objects are simply illegal in themselves; now involving criminality going wider than handling stolen goods following the passage of the Dealing in Cultural Objects (Offences) Act. We are convinced that the UK's new obligations to the international community, the promotion of its own substantial art market and the importance of protecting heritage, here and abroad, together create a high priority and that action must now be taken.

40. We regard the lack of progress made on a national database of illegally removed cultural objects to be lamentable. This is especially true given the existence of analogous systems in the commercial sector, and elsewhere, as well as precedents for public/private cooperation in other areas where law enforcement is working alongside legitimate commerce to suffocate illicit markets. We welcome the Home Office's recognition of the unsatisfactory progress made to date and the new commitment to ensuring that the project now comes to fruition along the lines, and within the timetable, set out by Ministers. We will return to assess the implementation of the Government's latest undertakings in March 2004.

Relevant international legislation

41. ITAP recommended a further database in its report of December 2001. This second service would be a comprehensive and universally accessible database of international legislative information run for all who transact in cultural objects. ITAP recommended that it should seek to record information about past, as well as present, laws and about judicial decisions construing those laws and that it should be kept up to date.[61] We regard this proposal as very sound and a complementary resource for the database of stolen objects for those seeking to exercise due diligence and determine whether they are being offered tainted material. DCMS told us that UNESCO had agreed to take this proposal forward with the Department offering assistance "to drive the project forward".[62]

42. The supplementary memorandum from the Department revealed some progress. In October 2003 UNESCO voted a budget for launching at the earliest possible date an electronic cultural property legislation database "bringing together all national legislation applicable in Member States of UNESCO concerning the import, export and transfer of ownership of cultural property and also including models of the export and import certificates for cultural property in use in Member States". The Organisation is expected to issue an invitation shortly to all states who were parties to the Convention to make the necessary submissions.[63] We welcome indications of progress by UNESCO but regard the database of legislative provisions, past and present, as of secondary importance compared to a national database of stolen and illegally removed objects.

Criminalisation of dealing in tainted cultural objects

43. The Dealing in Cultural Objects (Offences) Act has been lauded as an achievement by the Government. However, we were concerned about evidence of its limitations. Witnesses from HM Customs & Excise seemed clear in evidence that the Act, in itself, did not contain extra powers to check consignments of cultural goods. It did not impose a prohibition on the import of tainted goods, nor did it create a licensing regime.[64] The Secretary of State told us, to our surprise, that "Customs & Excise actually resisted inclusion of those powers because they were concerned about the resource consequences for them."[65] However, despite the impression given by the Secretary of State, supplementary evidence from DCMS stated that the department had never pressed for the inclusion of such powers.[66] Dr David Gaimster, Senior Policy Adviser, DCMS Cultural Property Unit, said that the measure was aimed at changing the culture of the marketplace — encouraging due diligence and other good practice — rather than putting people into jail (and we have discussed the importance of a national database in making this legislation meaningful above).[67]

44. In supplementary evidence the DCMS sought to clarify the impact of the new legislation in respect of imports. The Government stated that the new Act does in fact enable Customs to bring proceedings for the offence created where it involves the importation or exportation of a tainted cultural object. Although, because of resource implications, Customs' initial view was apparently against an explicit prosecution role, these powers were necessary to trigger their powers of search and seizure under the Police and Criminal Evidence Act 1984 (in practice evidence of an offence will usually be made available to the police). Therefore, in contrast to the impression given in oral evidence before us, Customs have now clarified that they are able to search for such goods, whether in passenger or freight traffic, using their search and seizure powers under the inter-relationship of provisions described above. However, Customs are waiting to see what sort of cases arise. Until "the picture is clearer" it is expected that they will also have to rely on other Customs provisions; "for example, evasion of revenue or some other prohibition".[68]

45. We were concerned over indications of problems in arrangements for authorising exports even though there is a regime for licensing exports of cultural objects. It appeared that the Department did not have the power to refuse an export licence for a cultural object, at least one from outside the EU, where there was suspicion, intelligence or even evidence, that it was illicit or tainted in some significant way. The DCMS told us that it was aware of that gap and of the risk that the UK was being used to "launder" objects through the issue of a UK export licence which could then be presented as evidence of clean provenance; in fact Dr Gaimster was aware of "several examples" from the trade and from Customs. He said that ITAP was looking at the matter.[69] We regard this as a serious weakness in arrangements and are very concerned at this further potential for the UK's accession to the UNESCO Convention and the new Act to be undermined by gaps in practical arrangements. It hardly matters whether the UK accedes to multilateral instruments in this area if our import system is not strengthened and our export arrangements are open to abuse confounding the very purposes of international agreement.

46. In relation to illicit trade, the Secretary of State said that the area was not sufficiently well resourced. She also pointed to the risks of loading too much on to a Private Member's Bill and went on to say that: "If this is action the Government wishes to take then it should form part of government legislation."[70] We agree whole-heartedly and recommend that, after an appropriate period, ITAP review the impact of the new Act, and the extent to which it has contributed to the UK's fulfilment of its obligations under the UNESCO Convention, but that the Government should commit itself now to introducing remedial legislation — backed up by adequate and appropriate resources — if this is found to be necessary.

47. The Government does at last seem to have elements of a strategy in place, or under consideration, with regard to tackling the illicit trade in cultural objects. However, the differential pace at which these elements are developing, and apparent weaknesses in the practical arrangements on the ground, detracts from a sense of a coordinated, robust and effective approach.

Human remains

48. The background to the establishment of the Working Group on Human Remains was an apparent general consensus that the prohibition on the return of human remains, from within the collections of national museums should be removed.[71] The existence of the statutory barrier made discussion of individual claims confrontational and, ultimately, fruitless.[72] The Working Group published its conclusions on 5 November. Its report was comprehensive and a significant contribution to the debate on this topic setting out, in compelling form, the often dreadful history of many acquisitions, the values and arguments of both claimant, and scientific, communities as well as the current legal situation.[73] As a tool for policy-makers the report would have benefited from an executive summary but we understand, and were partly responsible for, the pressure on the Department to publish the text.

Principles

49. The Working Group identifies "consent", in line with the basis of the proposed human tissue Bill, as the fundamental organising principle of its approach to human remains. The majority report says: "No institution shall retain, or perform any other act in relation to, human remains where it knows or has compelling reason to believe: that the original removal of the remains occurred without the consent of the deceased person or that person's close family, and that the present retention or other proposed act is without the consent of: close family or direct genealogical descendants of the deceased person; or, where no such family or descendants are identified, those who have within the deceased person's own religion or culture a status or responsibility comparable to that of close family or direct genealogical descendants."[74] Institutions are required to make best endeavours to identify and contact, and inform relevant communities. Evidence from the Group Caring for the Ancestors of Hawaii argued that the fact that human remains may have a scientific value would not convey pre-eminent rights on scientists over the rights of "living family".[75] It is the definition of "family" that may now be at the centre of subsequent debate.

50. The precise formulation of the working group's principle of "consent" was a matter of dissent within the Group with a minority (principally the Natural History Museum) believing that it is too widely drawn (in effect, establishing mandatory return).[76] Sir Neil Chalmers, NHM Director, told the Committee that, where a permissive regime existed, a claim for the return of the remains of a named individual from a direct descendant "would be very difficult to resist".[77] However, he envisaged very few claims being able to meet this criterion.[78] In other cases, Sir Neil said the task would be to balance two "goods": the claims of the public, humanity even, in terms of the benefits of research involving collections of human remains; and on the other side, the claims of the relevant community seeking restoration, and perhaps societal healing, expected from the return of their ancestors' remains.[79] Sir Neil predicted that he would almost always come down on the side of the public benefit. He said "I would argue all the time for considering in each case, in a balanced way: What is the benefit to humanity? How strong is the claim for return? You then come to your decision on that case. In my case, I would almost always — I have to say this very clearly — come down on the side of the benefits to humanity from holding items for research."[80]

Changes to the law

51. The HRWG report recommends that national and non-national museums should be given uniform powers to relinquish human remains — by amendment to governing statutes if necessary.[81] The Secretary of State indicated that this proposal was to be proceeded with as part of the Department of Health's proposed human tissue Bill.[82] Such a Bill was announced in the Queen's Speech and we presume that the DCMS provision will be able to go through Parliament during this Session.[83] The HRWG report explicitly rules out a regime of mandatory return but recommends that the situation should be kept under review.[84] However, as indicated above, it is firmly argued by a minority that this conclusion — ruling out mandatory return — is negated by the all-embracing character of the consent that would be needed from potentially claimant communities for institutions to retain remains.[85]

52. A further complexity is that the British Museum is pursuing an alternative legal route — based on provisions within charity law — to achieve the ability to return material from within its collections. The Human Remains report notes "At the time of writing the British Museum awaits the Attorney-General's determination[86] as to whether, as a charity, the Museum has the power to give effect to moral claims which the trustees wish to recognise, provided they receive the Attorney-General's sanction for their proposed course of action."[87] The Deputy Director of the Museums Association, and member of both ITAP and the HRWG, Mr Maurice Davies told us "I am not a lawyer — and this has to be prefaced with 'this may be wrong' — but my understanding is that there is a legal argument that it may be the case that there is a provision in the Charities Act that allows charitable bodies to dispose of their property when there is a moral justification for doing so … As I understand it, the legal argument at the moment is whether that provision in the Charities Act overrides the prohibition on disposal in the British Museum Act."[88] If the answer of the Attorney-General is a positive one then the implications not only for human remains, but also for sacred objects and spoliation, are very significant. We recommend that the DCMS liaise with the Attorney-General on the relationship between the statutes covering museum governance and charitable status respectively and include a definitive answer on the question posed by the British Museum in any reply to this Report.

New institutions

53. The HRWG report recommends that a national independent expert Human Remains Advisory Panel should be established by DCMS (similar to the Spoliation Advisory Panel) as soon as possible. This panel would: receive claims with the consent of all parties; make recommendations on all issues relating to the return, retention, treatment, handling, use, safekeeping and control of human remains — as well as in regard to proposals for legal change, guidelines of good practice and other wider issues. Institutions might establish local advisory panels of a similar nature — to be approved by the licensing authority (see below).[89]

54. The HRWG report also recommends that a licensing system should be introduced to regulate, according to a statutory code of practice, the holding, return, treatment, handling and disposal of human remains within all museums, conforming with proposals being developed by the Department of Health for its human tissue Bill. The working group suggests that this system might be administered by the proposed Human Tissue Authority, or part thereof, likely to be established by that Bill which would have power to: license institutions that hold human remains and impose conditions on, or withdraw or withhold, the grant of licences in certain circumstances. The licensing authority should answer to appropriate government departments but also be subject to scrutiny by the Human Remains Advisory Panel, the relevant holding museums and their professional associations.[90]

55. We welcome the prospective change to the absolute ban on national museums returning human remains in response to claims validated by, as yet unknown, systems and principles. The potential to respond at all is the first, and vital, step. We look forward to considering the results of the DCMS' consultation on the principles and methodology that will underlie this new permissive regime. As we have said above, the results of the Attorney-General's consideration of the British Museum's query over the potential effect of charity law in this field are also relevant. It would be ideal if the Attorney-General's conclusions were made part of the consultation, if at all possible, to avoid different strands of this debate confusing the issue and damaging the prospects for genuine progress.

Sacred objects

56. The working group recommends that another ministerial advisory group should be established further to consider, and make recommendations about, the holding by museums of sacred objects. Evidence to the Committee suggested that defining a sacred object was problematical but we note that the HRWG's principles of respect for the values and opinions of claimant communities have an important application to any system for determining what is, and what is not, sacred.[91] The Secretary of State told us that the recommendations of the HRWG, including the suggestion for a further working group on sacred objects, would be part of a public consultation, under standard guidelines, that would inform the Department's decisions in this area. We welcomed the Secretary of State's implicit commitment not to establish a working group on sacred objects unnecessarily if practical progress could be made more expediently by other means.[92]

Example of the Maqdala Treasures

57. As the previous Committee identified, there has been consensus over the need to treat claims for the restitution of human remains and spoliation as special categories. There are strong arguments, which the HRWG acknowledges implicitly, that sacred objects should be added to this list. One example of a claim involving indisputably sacred objects concerns the "Maqdala treasures". In 1868 Sir Robert Napier headed a British expedition which looted, then burned, Maqdala, Emperor Tewodros' mountain stronghold in north-western Ethiopia. This sacking extended to the nearby Church of Madhane Alam. In accordance with common practice the collected loot was auctioned soon after to raise prize-money for the enlisted men and contemporary accounts indicate that Richard Holmes, Assistant in the British Museum's Department of Manuscripts "armed with ample funds … out-bid all in most things" on behalf of the Museum. There are Ethiopian religious and royal artefacts scattered around the world in private and public collections.[93]

58. The objects sought most ardently by the Ethiopian Orthodox Church are, perhaps, the Tabots which focus the presence of God in every Ethiopian church and are held in the greatest reverence as symbolic of the Ark in the Jewish Temple.[94] The British Museum does not display the Tabots within its collection, paradoxically, in deference to the practice of the Ethiopian Church.[95] A number of Maqdala artefacts have been returned from other collections and sources over the years and we note, parenthetically, that the Italian Government has begun work on returning the iconic Axum Obelisk which was looted by Mussolini's army in 1937.[96] We believe there to be a patent absurdity in a situation where the British Museum does not display artefacts — out of due deference to other cultural and religious values — but is not in a position even to consider returning them. We hope that the British Museum's legal consultations have this case in mind as well as human remains. It is difficult to imagine a clearer example of a moral claim to which a charity's trustees might wish to give effect than that of Ethiopia for the return of its most sacred artefacts.

Spoliation

59. The Government now considers the need for legislative change to allow the return of spoliated material from national museums and galleries to have evaporated. This is a change in attitude that the Secretary of State for Culture, Media and Sport did not see fit to declare to this Committee until questioned in oral evidence. Ms Jowell stated that the expected flood of claims relating to cultural property within national museums and galleries had not materialised.[97] The only case upon which the Spoliation Panel has concluded was dealt with by the payment of compensation by the Government.[98] The Secretary of State had come to rest on the absence of a request from the Panel for her to consider legislative action.

60. The Secretary of State therefore has retreated from the Government's previous position where the freedom to return spoliated material, the subject of general consensus, was being specifically pursued (in the form of Regulatory Reform Order).[99] Tessa Jowell did say that the DCMS would push for legislative change if advised to do so by the Spoliation Advisory Panel.[100] We believe that if the Department waits for demand to arise it will be too late and we recall our predecessors' conclusion that a valid claim should not be denied by the dilatoriness of ministers.[101]

61. We have seen that the difficulties of achieving the sort of focused legislative amendment in question cannot be underestimated. There is great uncertainty in the DCMS being able to repeat the progress so far achieved, given the operation of chance in either Private Member's Bills, or legislation emanating from another department, offering an opportunity or the potential for piggy-backing. The DCMS should not wait for a valid spoliation claim to be made (that cannot be satisfied by compensation) to start to seek a change in the law. The lead-in time is simply too long. In these circumstances, the Government and the museums sector would remain hamstrung and unable to achieve the desired result when, and if, a case did arise.[102] This was precisely the situation that the previous Committee's recommendation aimed to tackle.

62. We regard the Government's position on spoliation as a regrettable retreat from the consensus achieved amongst the museums and galleries community following our predecessors' Report. We urge the Department to reconsider. We note the potential for an alternative route to be found via the British Museum's consultation of the Attorney-General over the effect of charity law. However, while we commend this initiative by the Museum, we regret that the Government has not had clarification of this point on its own agenda. We recommend that the DCMS makes efforts to encourage a speedy and positive outcome to the British Museum's query.

Iraq

63. This inquiry was prompted by reports of widespread looting in Iraq in the immediate aftermath of the war; there was particular concern over the fate of cultural treasures held by the National Museum in Baghdad. It now seems clear that reporting of the situation was complicated by a number of factors: the incompleteness of the Museum's information about its collection (something which still plagues attempts to assess the problem); the removal of items in the collection for safe-keeping before the Gulf war in 1990 (and not yet returned); the illicit removal of items by members of the previous regime over a long period; and an apparent mix of professional and targeted theft (from the Museum's vaults) and more casual looting (from its galleries) in the inevitably confused period following the arrival of Coalition troops in Baghdad.[103]

64. There was inevitable concern that a proportion of these items could end up coming through the UK, given the global significance of the London art market. The British Art Market Federation told us that legitimate trade in Mesopotamian antiquities had collapsed to virtually nothing in the aftermath of the Iraq war and the related establishment of specific legislation aimed at preventing illicit trade in cultural property sourced in Iraq.[104] The UN Security Council has maintained restrictions on the import and trade in unlawfully removed Iraqi cultural property. In the UK, the Iraq (UN Sanctions) Order 2003 brought these restrictions into effect on 14 June 2003 (with a maximum penalty of 7 years imprisonment).[105]

65. When we discussed looting in Iraq with the DCMS in July 2003, the most recent discovery had been the theft of the Museum's collection of "very important" cylinder seals (numbering some 4-5,000 artefacts). It is unclear whether the latest estimates — of 3,000 missing items — treat this theft of cylinder seals as a single entry. Such figures therefore have to be treated with caution as the underlying loss — in terms of actual numbers of individual objects, value, national importance and scholarly or archaeological significance — must be subject to wide variation.[106]

66. The DCMS's most recent analysis of the situation, requested by the Committee in November 2003, reveals that:

a)  The original scale of losses at the Museum was thought to be as high as around 170,000 items, but this has now been re-estimated at around 3,000 items, of which 30 or so are considered to be highly significant items, probably stolen by professional thieves.

b)  Many of the missing artefacts may never be recovered at all since they were probably stolen several years ago by senior figures in the Ba'ath regime: Saddam's eldest son, Uday, is known to have made huge profits from the international trade in antiquities.

c)  The amnesty put in place by Coalition forces has resulted in almost 2,000 items being returned, including key pieces, such as the Sacred Vase of Warka, dating from around 3000 BC, one of the greatest treasures of Mesopotamian antiquity.

d)  The Nimrud gold treasure was located intact in the vaults of the Central Bank of Iraq in early July 2003. It is intended to exhibit the Treasure in the US, Japan and in Europe to raise funds for the Baghdad Museum and the Iraq's archaeological sites.

e)  When the security situation in Iraq is more stable, the British Museum plan to lead an international team of conservators who will spend three months working in Iraq helping train museum staff and promoting the spread of best practice.

f)  Recent press reports indicate that three London antiquities dealers have been arrested in a secret police operation for allegedly dealing in artefacts looted from Iraq. In connection with the arrest, Police recovered an Assyrian stone relief looted in 1991 after the Gulf War from the palace of Ashur Nasir-pal II in central Iraq.

g)  There have been reports of a major seizure of further consignments of looted artefacts from Iraqi museums and sites in France and Kuwait (where 33 cuneiform tablets were taken from a dealer from Sardinia).

h)  The new Iraqi Culture Minister, al-Jazairi, has announced an official enquiry into the looting of museums and libraries during the recent conflict.[107]

67. There has been widespread concern on the question of the integrity of Iraq's archaeological sites for an extended period and DCMS told is that "it is true to say that, although looting has been common in Iraq since the 1990 Gulf War, the recent conflict has escalated the situation and, despite best efforts of Coalition authorities, a high level of looting continues".[108] The 10,000 or so documented archaeological sites in Iraq are mostly in remote desert regions and therefore have been difficult to protect within available resources (the civilian guards employed by the Iraqi State Board of Antiquities were not allowed to carry firearms and were generally in a minority of one in the face of multiple armed raiders).[109] The British School of Archaeology wrote in September 2003 that: "the looting and destruction of sites apparently continues more or less unabated". The lack of border patrols, by either the Coalition forces or Iraq's neighbours, was identified as a key area for action to check the free flow of looted material out of the country.[110]

68. DCMS reported an informal deal between the Coalition Provisional Authority (CPA) cultural staff (from DCMS) and army commanders in the CPA regions, guards will be provided for the 50 most important sites (as identified by international scholars) and to monitor the more remote sites through the deployment of helicopter flyovers and site visits by nearby troops. The DCMS also said that action to ensure that salaries are paid to site-guards from the Iraqi State Board of Antiquities and that the Coalition Provisional Authority is currently bidding for funds to double the number of guards on archaeological sites, to arm them and to equip them with transmitter radios and all-terrain vehicles so that they can monitor vulnerable sites in conjunction with local police forces.[111] The Government believes that the return of normal archaeological activity to Iraq will alleviate the problem as archaeologists often make provision for security of their own. This effectively means that the best way to reduce looting is to stabilise Iraq more generally; an objective with which few would quarrel.[112]

69. We received evidence that there were questions over the Government's consideration of Iraq's cultural status, and the importance of its heritage for the whole world, in the run-up to the conflict. The All-Party Parliamentary Group on Archaeology wrote to the Prime Minister in February 2003 and, while recognising the paramount importance of military and humanitarian concerns, asked that consideration be given to Iraq's sites and museums and their status in terms of world heritage archaeological significance. Further letters to Government, and other contacts, failed to elicit a response until April. Lord Renfrew of Kaimsthorn, Chairman of the Group, recorded his "concern and puzzlement" at this lack of response especially as he had not been able to identify the source of the advice that Government later said was received on these matters.[113]

70. The Secretary of State recognised that there had been some confusion during preparations for military action but reiterated to the Committee that the MoD had consulted "widely" with the archaeological community.[114] The Standing Conference on Portable Antiquities recommends a review of UK policy and practice for military planning and post-conflict security, in relation the cultural heritage.[115]

71. While we have concern at the picture this evidence paints, and the outstanding questions, it seems clear that at least some British troops on the ground were clear about Iraq's significance within world history. As Lieutenant-Colonel Tim Collins told the Royal Irish Battle Group on the eve of the conflict, "Iraq is steeped in history. It is the site of the Garden of Eden, of the Great Flood, and the birth of Abraham. Tread lightly there."[116]


18   Ev 115, paragraph 4 Back

19   Q 143 Back

20   Q 113 Back

21   Previous Report, p. li Back

22   Ev 3 Back

23   ITAP Progress Report (2001), paragraph 40 (a) Back

24   Ev 3 Back

25   Q 199 Back

26   Q 199 Back

27   Q 154 but see also Q 171 Back

28   Ev 3  Back

29   Q 23 Back

30   Ev 72 Back

31   Q 266 and see Q 260 Back

32   Q 268 Back

33   QQ 268 and 283 Back

34   QQ 268 and 269 Back

35   Ev 118 Back

36   Ev 118 Back

37   Ev 118 Back

38   Previous Report, paragraph 54 Back

39   Ev 78, paragraph 6 and see Q 149 Back

40   Q 198 Back

41   Ev 79, paragraph 12 Back

42   Ev 78, paragraph 7 Back

43   QQ 24, 150, Ev 42, Ev 78 (paragraph 7) and Ev 117, paragraph 22 Back

44   Q 198 Back

45   Ev 117 Back

46   Ev 120 and Ev 43ff Back

47   ITAP Progress Report (2001), paragraph 40 Back

48   Q 206 Back

49   Q 162 Back

50   Q 23 Back

51   Q 291 Back

52   QQ 273, 287 and 291 Back

53   Q 291 Back

54   Ev 117, paragraph 13, and Ev 116, paragraph 7 Back

55   Ev 116, paragraph 8 Back

56   Ev 116 and see Ev 40 Back

57   QQ 268, 269, 273, 287 and 288 Back

58   Q 288 Back

59   QQ 273, 281, 288, 292 and 294 Back

60   Q 281 Back

61   See Ev 4 Back

62   Ev 4 Back

63   Ev 113 Back

64   Ev 69 and QQ 262 and 263 Back

65   Q 304 Back

66   Ev 112, para 24 Back

67   Q 305 Back

68   Ev 112 paragraphs 20-26 Back

69   QQ 309 and 310 Back

70   Q 305 Back

71   Seventh Report, Session 1999-2000, Cultural Property: Return and Illicit Trade, HC 371, paragraph 166.In addition, the Prime Ministers of the UK and Australia issued a joint statement in July 2000 which included reference to endorsements of "the repatriation of indigenous human remains wherever possible and appropriate. Back

72   Q 109 Back

73   Report of the Working Group on Human Remains, DCMS, 5 November 2003 (hereafter HRWG report) Back

74   HRWG report, p. 170, xlvii Back

75   Ev 108, paragraph 5 Back

76   HRWG report, p. 182, paragraph 5.1 Back

77   Q 63 Back

78   Q 63 Back

79   Q 73 and QQ 130-131 Back

80   Q 80 Back

81   HRWG report, p. 161 Back

82   QQ 313 to 315 Back

83   Official Report, 26 November 2003, Col 5 Back

84   HRWG report, p. 161 Back

85   HRWG report, p. 182 Back

86   The Sovereign, as parens patriae (guardian of the public interest), is protector of charity. For centuries the Attorney General has appeared in this role before the courts. Charitable trusts, by definition, do not have a closed or closely defined group of beneficiaries. The Attorney General may represent the beneficial interest of a charitable trust in court, or he may represent the interests of charity more generally. In carrying out these functions, the Attorney General is assisted by a team of lawyers at the Treasury Solicitor's Department with expertise in this area and by his own Standing Counsel on charity matters. The Charities Act 1993 now entrusts most regulation of charities to the Charity Commission. The Act requires that the Commission may exercise some of its powers only with the agreement of the Attorney General, or in accordance with directions issued by him. (Attorney General's Review of the Year, 2001-2002, Chapter 5). Back

87   HRWG report, p. 161 Back

88   Q 101 Back

89   HRWG report, p. 163 Back

90   HRWG report, pp. 165-167 Back

91   HRWG report, pp. 146-147 Back

92   QQ 295 and 299 Back

93   Previous Report, Session 1999-2000, HC 371, Vol III, pp. 354-358 Back

94   St John's Scottish Episcopalian Church, Edinburgh (from where a Tabot was returned to Ethiopia in January 2002) Back

95   http://www.afromet.org/treasures/archives Back

96   http://www.afromet.org/news/archives Back

97   Q 317, but see Q 108 Back

98   First Report of the Spoliation Advisory Panel, Session 2000-01, HC III Back

99   Second Special Report, Session 2000-01, HC 316, Annex, paragraph 19.The Government's further reply to the previous report said that "In relation to cases of alleged wrongful taking during the period 1933 to 1945 … there has been general agreement from those consulted that the removal of legislative barriers 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 to 1945. 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." Back

100   Q 321 Back

101   Previous Report, paragraph 193 Back

102   See Q 109 Back

103   Ev 114 and QQ 6-15 Back

104   QQ 169-170 Back

105   Ev 114, paragraph 42 Back

106   Q 6 Back

107   Ev 114, paragraph 36-45 Back

108   Ev 114, paragraph 46 Back

109   Ev 114, paragraph 47 Back

110   Ev 101 Back

111   Ev 114, paragraph 48 Back

112   Ev 115, paragraph 49 Back

113   Ev 95-100 Back

114   Q 16 Back

115   Ev 105 Back

116   Fort Blair Mayne desert camp, Kuwait, 19 March 2003 Back


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2003
Prepared 16 December 2003