8. Supplementary memorandum submitted
by the Secretary of State for Culture, Media and Sport (incorporating
a statement submitted jointly with the Home Office)
I undertook to write to you following the oral
evidence I gave on 11 November. Since then, you have also written
asking a number of specific questions, to which I have pleasure
in providing my response.
LEGISLATION
1. You questioned me on the Department's
position with regard to legislation following the recommendations
of the Committee's July 2000 Report. Although the absence of any
legislative time prevented us from taking early legislative action
on these, we were able to give effect to your recommendation concerning
unlawfully removed cultural objects through supporting Richard
Allan's Private Member's Bill which as you know has now completed
its progress onto the statute book. Taken together with our accession
to the 1970 UNESCO Convention, these measures have put the UK
at the forefront of major market countries working hard to curb
the international illicit trade in cultural objects.
2. On the matter of human remains, we considered
it prudent to await the outcome of the Working Group, which my
predecessor established under the able chairmanship of Professor
Norman Palmer and which reported to us in September this year.
I am moreover very pleased that my colleagues at the Department
of Health have been so cooperative in our work to include measures
in the Human Tissue Bill, which was announced by the Queen last
week.
3. It is also worth noting that, via the
Working Group's Report, and the subsequent announcement of our
intention to legislate at the earliest possible opportunity, to
enable museums to return human remains in their custody, we have
fulfilled (and, indeed, exceeded) all the Committee's July 2000
recommendations concerning human remains.
4. On the matter of items spoliated during
the 1939-45 Nazi era, early attempts to take forward the recommendation
for a change in the legislation, using the Regulatory Reform Act,
were unsuccessful because the Act proved to be an unsuitable vehicle.
Moreover, it subsequently transpired that, rather than the "thousands
of claims" that it was suggested we would receive, there
have in fact been only five claims made to the Panel.
5. The Panel has the express power under
paragraph 9 of its terms of reference to make recommendations
to me as regards the need for legislation to alter the powers
and duties of any institution. If such representations are made
to me, then I will consider very carefully how to take forward
such legislation.
CLARIFICATION OF
ORAL EVIDENCE
[BY FOOTNOTES]
6. I would like here to add three footnotes
to the oral evidence that I gave on 11 November.
7. First, at the end of my response to Q317,
I noted that the Spoliation Advisory Panel "has the power
to direct me as the Secretary of State to submit the case for
legislation but it has not done so" (emphasis added). I should
be grateful if you would include a footnote along the following
lines for clarification:
"Paragraph 9 of the Spoliation Advisory
Panel's Terms of Reference provides that when advising the Secretary
of State the Panel shall be free to recommend any action which
they consider appropriate, and in particular may . . . direct
the attention of the Secretary of State to the need for legislation
to alter the powers and duties of any institution."
8. Second, I also noted in this response that
"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." However, Dr Gaimster's reply in
Q318, and my own replies in Q321 Q322 and 324, further clarify
this point: for example at Q322 I said, "I have received
no further advice from Sir David Hirst or from my officials that
legislation is necessary in order to facilitate the work of the
Spoliation Advisory Panel". Therefore, whilst the Panel has
power to recommend legislation, it has not yet done so.
9. Third, in Q320, Dr Gaimster is reported
as saying that "What [the Panel] has been recommending in
several of these cases is resolution through compensation"
(emphasis added). In fact, compensation has to date been recommended
in just one case. I should therefore be grateful if you could
also add a footnote to set the record straight here.
NATURAL HISTORY
MUSEUM
10. I undertook at the hearing to ask the
Natural History Museum whether they would consider opening an
annex in Sydney. I have to advise you that this is however, not
permitted under the legislation governing the Museum. The Act
which governs both the Natural History Museum and the British
Museum (The British Museum Act 1963) allows me to designate new
repositories for the collections of the British Museum or National
History Museum. However, the legislation does not contain a power
to designate repositories abroad i.e. outside Great Britain. This
is not something which Parliament envisaged at the time that the
Act was passed. By contrast, the possibility of loaning an object
to a country outside the United Kingdom was addressed and is provided
for in section 4 of the Act.
UNDERTAKINGS BY
THE SECRETARY
OF STATE
AND SUPPLEMENTARY
QUESTIONS FROM
THE COMMITTEE
Question (i): A considered view in writing
on the possible courses of action open to the trustees of national
museums in response to validated claims for the restitution of
spoliated items from within their collections. It would be helpful
for this memorandum to include an assessment of the circumstances
in which the Department would pursue legislative change to permit
the return of such items from national museums and galleries.
11. As I have explained above, I would await
any recommendation from the Spoliation Advisory Panel before putting
forward legislative proposals.
12. In relation to possible courses of action,
any specific course open to the trustees in such cases will be
for them to consider, in the light of their legal powers and the
particular circumstances of any case. We have, though, tried to
indicate below the general framework of actions that might be
open to trustees in response to validated claims for restitution.
(This includes the reply I undertook to give concerning the powers
of Trustees to make loans.)
(1) Loans
13. Whether or not the trustees of the national
museums will be able to loan an item will depend on their interpretation
of their statutory powers in particular circumstances and the
manner in which they decide to exercise those powers. However,
the broad general principle that runs through the legislation
governing the different national museums is that trustees may
lend items, although the precise nature of their powers varies
from statute to statute.
14. An indication of the differences in
the legal powers of the trustees of the national museums so far
as the loaning of objects is concerned can be gained from looking
at the statutes governing the following groups of institutions
by way of example: (1) the British Museum and the Natural History
Museum, (2) the Victoria and Albert Museum, the Science Museum,
and the Armouries (3) the Museum of London and (4) the National
Gallery, Tate Gallery and the National Portrait Gallery. (For
ease of reference, the relevant sections of the governing statutes
are included at Annex A). The variety of provisions is illustrated
by the fact that in the case of the British Museum and the Natural
History Museum the ability to loan is limited to public exhibition,
whereas the legislation governing the National Gallery, Tate Gallery
and the National Portrait Gallery gives a power to loan whether
or not the loan is for the purpose of public exhibition.
(2) General Powers
15. The trustees of national museums could
also be expected to consider the extent of their statutory powers
when they are faced with a claim for the return of an object.
Each case would need to be considered on its own facts by reference
to the relevant institution's governing legislation to establish
whether there is any possibility of returning an object. It is
conceivable that, in some limited circumstances, there could be
sufficient flexibility in the statutory framework to enable an
institution to transfer an item from its collection. As is the
case with the legal powers in respect of the loaning of objects,
the legal powers of the national museums relating to other matters
vary from institution to institution.
16. For reference the relevant statutory
provisions for the following groups of national museums are attached
at Annex B: (1) the British Museum and the Natural History Museum,
(2) the Victoria and Albert Museum and the Science Museum and
(3) the National Gallery Board, the Tate Gallery Board and the
National Gallery Board. Different statutes use different terminology
in the relevant provisions. For example, the concept used in connection
with disposal in the British Museum Act 1963 is one of unfitness
(see section 5(1)(c)) whilst the equivalent provisions in the
other legislation cited is that of unsuitability save in the case
of the National Portrait Gallery. Here the legislation provides
for circumstances where the identification of an individual in
a portrait is discredited.
(3) Compensation
17. The trustees in any given case could
also consider the possibilities of compensation, depending on
the circumstances, although they may need prior Government approval.
(4) Section 27 of the Charities Act
1993 etc
18. Another course might be to apply to
the Charity Commissioners (under section 27 of the Charities Act
1993), or to the Attorney General or the Courts, to seek authorisation
to return the property where the trustees regard themselves as
being under a moral obligation to do so. These are uncharted legal
waters in relation to national museums governed by statute. Sir
Anthony Mason's lecture of 1 October 2002 (attached at Annex C)
indicates the legal complexities surrounding this area and mentions
the memorandum submitted to you by the Charity Commission in April
2000, which describes the different courses of action open to
trustees.
Question (ii): An analysis of "the period
of time since your recommendation was made and the two relevant
departments, my Department and the Home Office, embarked on their
work". The Committee takes this to mean an analysis of the
process of consideration from July 2000 to now. The Committee
would be most assisted in coming to its conclusions if this analysis
included particular attention to the following areas:
— A full explanation of the principles
agreed by the first working party in March 2001 and the extent
to which these principles continued, and continue, to inform proposals
for implementation;
— Discussion, decision and rationale
for disbanding the initial working group; whether guidance was
sought from the Office of Government Commerce or reference made
to Government Accounting;
— The nature of DCMS participation
in, or consultation over, the subsequent study undertaken by the
Police Information Technology Organisation (PITO);
— Consideration by the Department,
singly and/or jointly with the Home Office, of the PITO report's
conclusions; and the use made of its analysis, conclusions and/or
cost estimates in subsequent discussions;
— The extent to which precedents,
and/or analogies, of public/private cooperation provided by The
National Plant & Equipment Register (a database of stolen
construction equipment and related information) and HPI and Experian
(databases of stolen cars and related information) informed the
process of consideration.
— The rationale for the DCMS and
Home Office working on two different and competing options for
a national database at this stage of the process.
— The DCMS' view of the need for
independent review of the options and the involvement of the Department
in the appointment of consultants to carry out this review.
It would also be helpful for the Committee
to receive (i) a summary of the CoPAT proposal put forward to
ITAP on 5 November, and (ii) the outline business case presented
to the working group in May 2003 (referred to by the Home Office
Minister at Q281).
19. I have pleasure in enclosing a copy
of a joint memorandum on the behalf of Caroline Flint and myself,
together with the requested documentation (see below).
Question (iii): The Secretary of State said
that: "when the [Dealing in Cultural Objects (Offences)]
legislation was being drafted, Customs and Excise actually resisted
inclusion of those powers [to act in respect of imports of tainted
cultural property] because they were concerned about the resource
consequences for them." With regard to the new Act, witnesses
from Customs drew a distinction between complete prohibition,
a licensing regime and the adopted course, about which Customs
said, "At least we can now act in terms of enforcement."
Please clarify what powers were sought for inclusion in the new
Act by DCMS and resisted by Customs as indicated by the Secretary
of State. Please clarify whether the DCMS views the Dealing in
Cultural Objects (Offences) Act as meeting the obligations placed
upon the UK in respect of imports by Article 7 of the relevant
UNESCO Convention.
20. It would be helpful first to explain
how the relevant provisions of the Act work. Section 4(1) to (3)
enable Customs to bring proceedings for the offence created by
the Act where it involves the importation or exportation of a
tainted cultural object. We do not expect Customs generally to
exercise these powers. Where they have evidence that such an offence
has been committed, we would normally expect Customs to forward
that evidence to the police for them to consider prosecution.
The importance of investing Customs with this power is that it
acts as the trigger for them to be able to exercise search and
seizure powers in relation to tainted cultural objects within
the context of investigating whether an offence has been committed
under the Act. These powers of investigation are conferred by
subsection (4) of Section 4. In effect what that subsection does
is to attract Customs' investigation powers (including their powers
of search etc.) under the Police and Criminal Evidence Act (PACE)
1984.
21. There is an assumption underlying one
of the questions asked by Mr Doran (Q304) that Customs only have
power to act in relation to tainted cultural objects when it is
connected with something else, for example drugs, firearms or
some other illicit material. As explained above, this is not in
fact the case. Customs have now clarified that, by virtue of Section
4 making a suspected import or export of tainted goods an assigned
matter, they are able to search for such goods whether in passenger
or freight traffic and can use their search and seizure powers
under the Police and Criminal Evidence Act 1984. Customs are waiting
to see what sort of cases arise and until the picture is clearer
they believe that their ability to maintain seizure will, depending
on the facts of the particular case, also have to rely on other
Customs provisions; for example, evasion of revenue or some other
prohibition.
22. The Committee has been concerned to
understand why no general prohibition on the importation of tainted
cultural objects has been imposed. The best place to start in
considering this is probably the Select Committee's Report on
Cultural Property: Return and Illicit Trade of July 2000. In paragraph
105 of that Report the Committee stated—
"HM Customs also indicated that, `in the
absence of specific intelligence or reasons to target a particular
consignment, we would have no means by which to routinely enforce
an import licensing system on movements from within the [European]
Community'. HM Customs considered that a prohibition on importation
of certain categories of cultural property without a licensing
system `would not be terribly effective' because there would be
little evidence ascertainable by the Customs to lead it to detain
a consignment."
23. This evidence seems to have led the
Committee to conclude (in paragraph 107) "that the single
most important measure to be taken is a change to the criminal
law of the United Kingdom relating to the illicit trade . . .
At the same time, we are mindful of the need to ensure that any
new offence is practical and enforceable. For this reason, and
in the light of the evidence of HM Customs and Excise, we have
rejected the proposal that it should be an offence to import into
the United Kingdom cultural objects illegally exported from another
country."
24. Both DCMS and Customs continue to take
the view that it would be inappropriate to impose a substantive
prohibition on the importation of tainted cultural objects. This
is not something that DCMS have ever pressed for inclusion in
connection with the new offence. DCMS have accepted Customs' belief
there are a number of practical reasons against it. It would not
be obvious to frontier officers at the time of import or export
that the objects were tainted. In the absence of the clearest
evidence Customs' action would be highly contentious and would
be likely to generate a lot of appeals. In short, it would not
be an effective method of control. There would also have been
an issue of how to treat intra-EU traffic.
25. Although DCMS and Customs do not believe
it is feasible to impose a substantive prohibition on the importation
of tainted cultural objects, we consider that powers should be
conferred on Customs officers to investigate (including being
able to use powers of search and seizure) where they suspect that
a person has or is committing the offence under the Act by importing
or exporting a tainted cultural object. The mechanism that has
been used to achieve this is to attract the investigation (including
search and seizure) powers conferred on Customs officers under
the Police and Criminal Evidence Act 1984. The same approach has
been adopted in the case of the Biological Weapons Act 1974, the
Chemical Weapons Act 1996 and for nuclear weapons under the Anti-terrorism,
Crime and Security Act 2001.
26. Although, because of resource implications,
Customs' initial thinking was that they did not wish to have an
explicit prosecution role under Section 4 of the Dealing in Cultural
Objects (Offences) Act 2003, it was agreed that these powers were
necessary to trigger their powers of search and seizure under
the Police and Criminal Evidence Act 1984 and that their use of
prosecution powers would be entirely discretionary.
Article 7 of the 1970 UNESCO
27. It was considered that no additional
legislation was required to implement the obligations imposed
on the UK by the 1970 UNESCO Convention, including those in Article
7. Having said that, the new Act will strengthen the protections
that exist in the UK against those who act dishonestly in importing
objects that have been illegally removed from monuments and from
parts of buildings, and therefore will contribute to meeting the
objectives enshrined in article 7(b) of UNESCO.
Question (iv): On 8 July, the Secretary of
State told the Committee that the Home Office had indicated that
it was prepared to consider the case for . . . a contribution
to the cost of establishing and running a Metropolitan Police
database providing . . . [inter alia] . . . the link between investment
in such a database and dealing with money laundering, drug trafficking
and other criminal activities increasingly associated with crime
in the art market is proven." Whose task is it to gather
and disseminate such intelligence? Is it part of joint Home Office/DCMS
work on options for a database to research and assess these links?
28. Please see the joint memorandum referred
to above, under (ii).
Question (v): In the Department's memorandum,
submitted in advance of the session on 8 July, reference is made
to the other database recommended by ITAP (for relevant international
legislation applying to cultural objects). The memorandum said
that this initiative was being taken forward by UNESCO with DCMS
assistance. What progress has been made with this database?
29. The DCMS Ministerial Advisory Panel
in its Report of December 2000 recommended the institution of
a comprehensive and universally accessible electronic database
of international legislation on cultural property. The database
should be run as a service available to all who transact in cultural
objects. It should seek to record information about past as well
as present laws and about judicial decisions construing those
laws. It should, like other modern law databases, be constantly
updated. Proof of reference to the database will be relevant to
a possessor's legal position.
30. It was agreed by ITAP (The illicit Trade
Advisory Panel) that UNESCO is the best organisation to take the
lead on this initiative, and DCMS has been discussion for some
time with UNESCO on the launch of the first phase of such a database.
Such a resource would have the widest possible dissemination through
availability in its original language and automatic translation
into the two official languages of UNESCO.
31. At its 32nd General Conference 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".
DCMS was instrumental in ensuring that the UK was among the States
Parties registering support for the necessary amendment to the
budget vote on major programmes and projects relating to cross-cutting
cultural property themes for 2004-05.
32. UNESCO will shortly be issuing an invitation
to States Parties to submit all national legislation 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 the Member States.
HUMAN REMAINS
Question (vi): The report of the Working
Group on Human Remains concludes that the principle of consent
should underpin the approach to the retention and treatment of
human remains by museums just as it underpins the proposed provisions
of the Human Tissue Bill. Does the Department agree with this?
— If this principle, and other provisions
of the proposed legislation, are not to apply to human remains
held by museums is it a matter of circumscribing the ambit of
the proposed legislation or simply not extending it?
33. We do not envisage that the consent
requirement for the holding of human tissue will be different
for museums than for any other sector affected by the Bill.
Spoliation and Wider Return Issues
Question (vii): In what circumstances would
the DCMS reanimate the process of seeking legislative change to
allow the trustees of national museums to restore spoliated items
to their pre-1933-45 owners and how would this be achievable?
34. I refer you to my answer to (i) above.
Question (viii): Professor Palmer raised
the possibility of establishing a single mediation and advisory
body which would subsume the roles and functions of the Spoliation
Panel and proposed Human Remains Panel and advise Government with
regard to other, wider, repatriation issues (ie the recommended
work on sacred objects). Will this proposal form part of the consultation
about to be launched by DCMS in reply to the WGHR?
35. This is an issue I shall consider further
before issuing the consultation document.
IRAQ
Question (ix): What is the latest state of
intelligence on losses from the National Museum in Baghdad and
other museums and sites around Iraq?
36. As was made clear in the Department's
evidence to the Select Committee hearing on 8 July this year,
there was a great deal of conflicting information immediately
after the arrival of Coalition troops in Baghdad and it is now
clear that by far the majority of the most important items in
the Baghdad Museum collection had been removed for safekeeping
long before the start of the recent conflict.
37. 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. It is very difficult to get a
final accurate assessment of numbers of missing pieces because
many of the pieces assumed missing had not been catalogued or
given a museum number. 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.
38. The amnesty conducted by US forces has
had very positive results. Almost 2,000 items have been returned,
including key pieces, such as the 5,200-year-old Sacred Vase of
Warka, one of the greatest treasures of Mesopotamian antiquity,
which was recovered by the Museum in June.
39. In addition, the Nimrud gold treasure
was located intact in the vaults of the Central Bank of Iraq in
early July and is now back in the bank vaults pending security
improvements at the Baghdad Museum. It is intended to exhibit
the Treasure at eight locations in the US, Japan and in Europe
in order to raise much needed funds for the Baghdad Museum and
the country's archaeological sites.
40. The Museum's staff have stressed that
while work is continuing on preparing a detailed inventory of
items still missing, they also want to now move forward on re-equipping
the Museum and reopening some of the galleries as soon as possible.
41. In late June the British Museum sent
a team to the Iraq Museum, primarily to work on a conservation
survey of damaged artefacts. They are now arranging to follow
up this initiative through top-up training of Iraqi conservators
at the BM in London. When the security situation in Iraq is more
stable, the BM 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.
42. The UN Security Council has adopted
Resolution 1483 of May 2003 lifting sanctions on Iraq but, thanks
to UK pressure, maintained the restrictions, among other goods,
on the import and trade in unlawfully removed Iraqi cultural property.
The Iraq (UN Sanctions) Order 2003 made under the United Nations
Act 1946 brought these restrictions into effect within the UK
on 14 June, with a maximum penalty of 7 years imprisonment. Given
the emergency nature of the post-conflict looting crisis in Iraq
and the potential use of the UK as a marketplace for looted Iraqi
cultural objects, the UK Government implemented the UNSCR embargo
on illegally removed Iraqi cultural property as comprehensively
as possible.
43. 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. The recent action illustrates the
effectiveness of the Iraq (UN Sanctions) Order.
44. The press has just reported the seizure
of further consignments of looted artefacts from Iraqi museums
and sites at an airport in France and also in Kuwait, where 33
cuneiform tablets were taken from a dealer of Sardinian origin.
45. The new Iraqi Culture minister al-Jazairi
has also announced that an official enquiry will be set up investigate
the looting of museums and libraries during the recent conflict.
46. On the question of Iraq's archaeological
sites, 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.
47. The 10,000 or so documented archaeological
sites in Iraq are generally in remote desert regions. They are
difficult to protect, particularly since civilian guards (paid
employees of the Iraqi State Board of Antiquities) are not allowed
to carry firearms. On those sites where civilian guards are stationed
it is all too easy for the guards (usually only one guard) to
be overrun by looters.
48. By the end of July this year Coalition
Provisional Authority (CPA) cultural staff (DCMS) struck a voluntary
agreement with army commanders in each of the CPA regions to place
guards on the 50 most important sites, as identified by international
scholars, and to monitor the more remote sites. This surveillance
has involved regular flyovers by helicopter flights or site visits
from troops stationed near to the sites. Action has also been
taken to ensure that salaries are paid to site-guards on the Iraqi
State Board of Antiquities payroll. The CPA 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.
49. The return of normal archaeological
activity to Iraq will greatly alleviate the problem because archaeologists
generally supply their own security. But this will take some time
to achieve and in the meantime the sites are vulnerable. This
effectively means that the best way to reduce looting is to stabilise
Iraq so that normal archaeological activity can be resumed.
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