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27 Jun 2007 : Column 421

‘(9A) The Secretary of State shall make regulations for the establishment of an independent committee, such as the Spoliation Advisory Committee, to monitor the publication and reporting of specified information, the compliance of museums and galleries with the Due Diligence Guidelines for Museums, Libraries and Archives on Collecting and Borrowing Cultural Material published from time to time by the Department for Culture, Media and Sport and the handling of claims made or objections raised in relation to any object.’.

No. 86, in clause 131, page 101, line 4, at end insert—

‘(2A) It shall be a condition of such approval that any approved institution has agreed to apply to each and every object the Due Diligence Guidelines for Museums, Libraries and Archives on Collecting and Borrowing Cultural Material published from time to time by the Department for Culture, Media and Sport.’.

No. 87, page 101, line 6, after ‘particular,’, insert ‘it must withdraw approval’.

No. 88, page 101, line 10, after ‘reason),’, insert

No. 89, page 101, line 12, at end insert

Mark Fisher: The amendments seek to ensure that the immunity that is granted to works of art as they travel between countries is not achieved at the expense of those who believe that they have a rightful claim to those works of art. They relate to works of art that were looted in time of war and particularly to works that the Germans took in the second world war; what is known as holocaust looting.

This has become a major international problem recently as more and more great international museums put on temporary exhibitions to attract people and, for the enjoyment of the public, the need to borrow great works and move them between countries becomes greater every day. In recent years there have been a number of high profile and contentious cases, when works have appeared in a country destined for an exhibition and have been subject to injunctions and legal action. Inevitably that creates great insecurity and impossibility in terms of planning by the international museums. It is also something of an inhibition to those generous enough to loan what they believe to be their own works of art, whether they be museums or individuals.

A general sense of insecurity developed and most countries around the world—certainly most European countries and American states—introduced legislation that granted some form of immunity to museums so that works could be loaned with a degree of certainty. Most of that legislation balanced the needs not only of the museums, but of the donors and the people who felt that they had a claim to those works of art.

We did not introduce such legislation and our great national galleries—the Tate, the British Museum, the National Gallery and particularly the Royal Academy, which has many high profile international exhibitions—launched a well argued and vigorous campaign and
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persuaded the Government that we had to do something about that. The Government took the point and introduced immunity.

The museums, understandably, are concerned about their exhibitions. They were perhaps less rigorous about the potential rights of people who had a legal claim, or whose forefathers had a legal claim, to those works of art. The amendments seek to correct that imbalance. They would not take away from what the great national galleries and museums have achieved, or what the Government have given them in legislation, but they would provide a measure of balance to ensure that the museums do not act at the expense of people whose families once believed that they owned such works of art and who see those works appear in front of them, only to be swept away before they have had a chance to make a legal claim, or to establish the provenance that might do that.

The amendments are corrective and would introduce due diligence, on which the Government have already established the principle, to require museums to use their best offices and efforts to establish the provenance of a work of art. They would have a responsibility when accepting a work of art to see whether there was an owner out there and whether the people loaning it genuinely had title to it. In almost all cases, they do, but there have been some contested cases and it is those that the amendments seek to address.

If the Government are minded to be sympathetic to the amendments and are interested in pursuing the idea of due diligence, that would be constructive, even-handed and fair and Members on both sides would welcome it. Even if that were the case, this would be only the first step towards resolving the problem. Just establishing the concept of due diligence, or assigning oversight of that procedure to an independent committee, will not be the end of the story. For example, there will be the question of the guidelines and guidance issued to that committee.

The problem is likely to grow in future, with all the archaeological works of art that are coming out of Iraq and flooding the international markets, not least in London. It will prove much more difficult to prove provenance in such cases. I fear that looted art will be with us for a long time and will be a general source of contention and unhappiness. It is therefore important that we are, first, establishing this immunity and, secondly, at the same time correcting it as regards the rights of people who have good title to works of art.

5.45 pm

I stress that this is only a start: certain major problems lie ahead. About three years ago, the Russians, who looted a huge amount of art in the second world war when they swept through Europe and drew it all back to Moscow and St. Petersburg, nationalised everything through their own legislation. In theory, those works of art can now be lent around the world and, on the face of it, their provenance will be entirely legal and correct. That legislation is not currently recognised by UNESCO, which is considering drawing up guidelines to try to deal with that situation. In fact, there are plenty of problems. If one burrows right back in time, many of the works in the national collections of most European countries have been looted from somebody at some point during
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wartime. That is a slightly more esoteric point, but there is no doubt that the Russian arrangement will be difficult to resolve. The UNESCO guidelines will be important, because a kind of laundering of provenance makes this difficult subject even more difficult.

For today, I hope that the amendments will find favour with the Minister and that she will think that it is possible to establish such a committee. Due diligence is not an easy thing to achieve. The National Museum Directors Conference has had a committee working on it for several years; I must declare an interest, having been a member. Other members—they are an interesting collection—have included Sir Nicholas Serota, Lord Moynihan, Miss Marina Vaizey, the well known art historian, Miss Ann Webber, who probably knows more about looted art than anybody else in this country, and Professor David Cesarani. However, relatively few people in this country have much experience of the issues involved, other than one or two dealers. It will not be easy to find the expertise to augment any committee that the Government nominate to take on this work. Nevertheless, it is possible, with good will, encouragement and thoughtful guidelines and guidance, that we can establish a model that other countries may well find useful in dealing with these difficult issues.

I commend the amendments to the Minister and hope that the Government are not averse to them.

Mr. Michael Fallon (Sevenoaks) (Con): These are important amendments. The House is indebted to the hon. Member for Stoke-on-Trent, Central (Mark Fisher) for drawing our attention to clause 129, which I support. The risk of judicial seizure is a significant one, and exhibition planning becomes increasingly impossible if international lenders will not lend to countries that do not have immunity as regards seizure legislation. There is a balance to be struck between the rights of potential claimants and the much wider public interest in ensuring that such international exchanges take place.

Amendments Nos. 83 and 85 are fairly innocuous; I certainly support the concept of due diligence. I have slight reservations about amendment No. 84, which goes very wide and is almost an invitation to any person to litigate. I wonder whether the hon. Gentleman might reflect on its drafting. The same applies to amendment No. 86, which would make the guidelines mandatory not only for every exhibition but for every conceivable object in the exhibition. Guidelines should probably be no more than guidelines. However, the whole House should support the spirit behind the amendments and the letter of the clause.

Mr. Edward Vaizey (Wantage) (Con): I pay tribute to the hon. Member for Stoke-on-Trent, Central (Mark Fisher) for tabling the amendments. He made a forceful speech on the subject on Second Reading.

It is worth recording that, when the issue was first discussed in the other place, the Government made some important concessions, which we welcomed, especially the requirement for museums to exercise due diligence. Important progress was made in providing that only museums that the Secretary of State nominated would be granted immunity from seizure,
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thus ensuring that those that exercise due diligence will be granted immunity. However, as the hon. Gentleman pointed out, more progress can be made, especially through amendment No. 85.

The hon. Gentlemen kindly referred to my mother’s diligent work on the National Museum Directors Conference committee alongside him. As he pointed out, the Government rightly want to ensure that museums have the maximum flexibility to exercise due diligence and are not subject to a regime that is too bureaucratic. He wants to ensure that an independent committee audits museums’ due diligence procedures and can give independent advice. That is an important safeguard.

As has been said on other occasions when part 6 was debated, there is an important balance to be struck. Conservative Members acknowledge the need for our national museums to benefit from some immunity from seizure legislation to maintain the high quality of international exhibitions that come to this country. However, we also recognise the need for those whose families lost works of art during the second world war—and people and countries that have lost works of art through more recent conflicts, especially in Iraq and Afghanistan—to have appropriate safeguards in place so that they can take action if required. It is vital to strike a balance, and the amendments provide further safeguards for individuals and families. We look forward to the Under-Secretary’s comments on the Government’s view.

The hon. Gentleman also referred to Russia effectively nationalising its looted art. I asked the Under-Secretary of State for Culture, Media and Sport, the hon. Member for Tottenham (Mr. Lammy) about the matter. I believe that the Russian federal law on cultural valuables, which was passed in 1998, creates a specific loophole. The Government appear to believe that that makes such looted art effectively Russian art and a matter of Russian law. Will the Under-Secretary comment on what a museum is expected to do in exercising due diligence if a piece of looted art is Russian art under Russian law but, de facto, is looted art?

Jenny Willott (Cardiff, Central) (LD): Liberal Democrat Members agree with almost all that has been said on the subject. We held an interesting discussion on the matter in Committee and another interesting debate took place in the other place. Much of what needs to be said has therefore been said in several places.

The amendments are reasonable and sensible, and everybody has said that we need to strike a balance. Although we agree that the provisions in the Bill go in the right direction, the amendments would tighten up the measure a little, and ensure that it is even better and that the balancing act is carefully maintained.

Vera Baird: I applaud the intention behind the amendments tabled by my hon. Friend the Member for Stoke-on-Trent, Central (Mark Fisher), and I hope that I can give him the satisfaction that he seeks, although not by accepting them. I will write to the hon. Member for Wantage (Mr. Vaizey) about his proposition on due diligence and the conflict of laws, if I do not satisfy him with my few words.

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Amendments Nos. 83 and 86 are unnecessary. It is one of the basic principles set out in the due diligence guidelines published by the Department for Culture, Media and Sport that a museum should not acquire or borrow any item unless it is satisfied that there are no legal or ethical doubts about that item. This means that a museum will have to apply the due diligence guidelines in relation to every single item that it wishes to borrow. Failure to do so will amount to failure to comply with the guidelines. As clause 131(3)(a) makes clear, this would threaten the approved status of the museum.

Amendment No. 84 is also unnecessary. We intend to require museums to publish sufficient information about a particular object to ensure that it can be identified by anyone who may have an interest in that object. This will require the publication of some information on provenance, but we do not think that it is necessary for the full provenance of an object to be published in every case. Where, for example, the object concerned is a 17th century painting that was acquired by the Metropolitan museum in New York in the 19th century and has never left the museum’s control, there would appear to be no point in giving full details of its provenance.

We also propose to require publication of the identity of the lender in advance of an exhibition, when the lender is a public body. More difficult issues arise in relation to the publication of the identity of private owners, and we will be discussing with museums and other interest groups whether and how it would be possible for that information to be made available to potential claimants.

Amendment No. 85 would require provision to be made for the establishment of a new statutory body. We do not think that that is necessary. The amendment refers to the spoliation advisory panel. That is not a statutory body, and it is not supported by regulations. However, it plays a very valuable role in resolving claims relating to objects lost during the Nazi era that are now in our public collections. Other non-statutory bodies, such as the reviewing committee for the export of works of art, play an equally valuable role in relation to the export of cultural objects.

DCMS will be working closely with the Museums, Libraries and Archives Council to ensure that the Secretary of State has access to appropriate advice on the due diligence procedures followed by museums seeking approval, and that, following approval, museums’ due diligence procedures and their compliance are subject to appropriate monitoring. We accept that it would be beneficial for advice from an independent body to be available to the Secretary of State. DCMS proposes to seek the assistance of the acceptance in lieu panel, an independent body which has experience in considering provenance issues, in monitoring the compliance of museums and galleries with the due diligence requirements. DCMS is having discussions with the panel on how such assistance may be offered.

Amendments Nos. 87 to 89 relate to the withdrawal of approval from museums. We do not believe that it is necessary either to limit the discretion given to the appropriate authority in clause 131(3), as amendment No. 87 seeks to do, or to prescribe the procedures that must be followed if a museum is considered not to have undertaken adequate due diligence procedures or to
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have failed to comply with regulations requiring additional information to be given on request, as amendments Nos. 88 and 89 seek to do.

The Secretary of State is required to act reasonably and proportionately in exercising any discretionary power, and this applies to the power in clause 131(3) as much as to any other power. Removal of approved status in the cases set out in paragraphs (a) and (b) of this subsection without any warning, and without giving a reasonable time for a museum to rectify the faults that have been identified, would be regarded as acting unreasonably in any case where a museum’s failures, either in relation to due diligence or to the provision of information, could be easily rectified.

However, we would wish to reserve the power to act without notice in any case in which this could be justified. We want museums to know that if, after they have received approval under these provisions, they decide that it is no longer necessary to carry out any due diligence, there is a risk that their approved status will be removed with little or no warning. I hope that what I have said has reassured my hon. Friend, and that he now feels able to withdraw his amendment.

Mark Fisher: I am most grateful to the Minister. Her response has been extraordinarily constructive and positive. If this is an indication of the new Administration’s attitude towards amendments, that Administration will be generally welcomed throughout the House. I am most grateful for her attention to detail. I am slightly nonplussed, however, as a member of the acceptance in lieu panel, which she has nominated to act on behalf of, or through, the Museums, Libraries and Archives Council to fulfil these responsibilities. We will be happy to accept that responsibility, although it will involve a certain amount of work. It is important work, however, and I think that hon. Members on both sides of the House, and those in another place, who have taken an interest in these matters will appreciate the Minister’s constructive attitude. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being Six o’clock, Mr. Deputy Speaker put the Question s necessary to dispose of the business to be concluded at that hour, pursuant to Order [5 March ].

Clause 139

Protected functions of the Lord Chancellor

Amendments made: No. 51, page 108, line 5, leave out ‘91(1ZA)’ and insert ‘91(1)’.

No. 71, page 108, line 10, at end insert—

‘( ) In the entry for section 26(5), (6) and (9) of the Judicial Pensions and Retirement Act 1993 (c. 8), for “and (9)” substitute “, (9) and (13)”.’.— [Mr. Roy.]

Clause 143


Amendments made: No. 66, page 109, line 32, at end insert—

‘( ) Section [Appointment as Chairman of Law Commission] comes into force at the end of the period of two months beginning with the day on which this Act is passed.’.

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No. 52, page 110, line 1, after ‘sections’ insert

No. 53, page 110, line 1, leave out ‘and this section’ and insert ‘, this section and Schedule 11’.— [Mr. Roy.]

Schedule 6

Tribunals for the purposes of sections 30 to 36

Amendment proposed: No. 9, page 141, leave out lines 18 and 19.— [Mr. Bellingham.]

Question put, That the amendment be made:—

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