Clause
130
Effect
of
protection
Question
proposed, That the clause stand part of the
Bill.
Vera
Baird:
It seems wise to move that the clause should stand
part, as it is an important and heavily debated part of the Bill. It is
also relatively short. Clause 130 clarifies the extent of the
protection that will be given to objects and sets out the single
exception that we propose where immunity will not apply.
The immunity
that we propose will prevent any order being made in civil proceedings
that would affect the custody or control of the object. It will not be
possible, for example, for a court to order seizure of the object as a
form of interim relief or in execution of a judgment debt. Nor will it
be possible for an object to be seized in criminal proceedings, or as
part of a criminal investigation.
There will, however, be an exception to the immunity
where seizure is required under the UK’s obligations in
international law or in European Union law. Perpetrators of crime will
not be able to hide behind immunity from seizure. As subsection (2)
makes clear, the protection given will only apply to the object and
will not protect people dealing with it from prosecution if they have
committed an offence. Our proposals will prevent
potential claimants from having a work of art seized in this country
until their claims have been decided. However, that only removes one
form of relief from such claimants. As I have said, it is still
possible for claims of damages to be made against any person or
institution whose dealings with the object have contravened the
claimant’s rights to it, and for a full trial to be held of all
the relevant issues.
Mr.
Bellingham:
I am grateful to the Minister for that
explanation. The clause makes sense and we have no quibbles with
it.
Question put
and agreed
to.
Clause
130
ordered to stand part of the
Bill.
Clause
131
Relevant
museums and galleries
Mr.
Bellingham:
I beg to move amendment No. 190, in
clause 131, page 101, line 6, after
‘particular,’, insert ‘it must withdraw
approval’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 191, in
clause 131, page 101, line 10, after
‘reason)’, insert
‘and the institution has failed to
improve its procedures having received a warning from the appropriate
authority specifying a reasonable time frame in which to do
so.’.
No. 192,
in
clause 131, page 101, line 12, at
end insert
‘and, in the
case of failure which is capable of remedy, has failed to remedy the
failure having received a warning from the appropriate authority
specifying a reasonable time frame in which to do
so.’.
No. 193,
in
clause 131, page 101, line 15, at
end insert
‘unless it
can be shown that the object was wrongly granted protected status as a
result of an inadequate due diligence procedure in relation to that
object.’.
Mr.
Bellingham:
We have already discussed clause 131 in the
context of amendment No. 153 on due diligence. However, it is important
to spend some time on the clause and on the amendments. I shall try to
put them in the context of the Bill.
The clause is
headed “Relevant museums and galleries” Subsection (1)
explains what a museum or gallery is, which is fairly straightforward.
Subsection (2)
states:
“The
matters that the appropriate authority must have regard to when
deciding whether to approve an institution
include—
(a) the
institution’s procedures for establishing the provenance and
ownership of
objects”—
we
have discussed that
briefly—
“and
(b)
in particular, compliance by the institution with guidance about such
procedures published by the Secretary of State from time to
time.”
Subsection (3)
states:
“The
appropriate authority may withdraw approval from an institution if it
thinks fit, and, in particular, if—
(a) it
thinks that the institution’s procedures for establishing the
provenance or ownership of objects are inadequate (because of the
institution’s failure to comply with guidance published by the
Secretary of State or for some other reason), or
(b)
the institution has failed to comply with a requirement of regulations
under section 129(9).”
We
discussed clause 129 earlier.
Amendment No. 190 would add to
subsection (3) after the word “particular” the condition
that the authority “must withdraw approval”. In other
words, the clause should state that the appropriate authority
“may withdraw approval from an
institution if it thinks
fit,”
and in particular
“must withdraw approval” in the circumstances
listed.
That would
pave the way for amendment No. 191, which would insert at the end of
the first reason in subsection (3) the words “and the
institution”—a museum, gallery or other
centre—
“has
failed to improve its procedures having received a warning from the
appropriate authority specifying a reasonable time frame in which to do
so.”
That relates to
procedures that an institution has in place for due diligence and for
exhibiting works of art or cultural objects from abroad. It would apply
if there had been a warning. We did not discuss spot checks carried out
by the DCMS, and my concern about their not being adequate, at any
great length earlier, and the Minister did not comment on them. The
amendment relates to cases in which a warning has been made by the DCMS
and there has been no action on
it.
Amendment No. 192
would add to subsection (3)(b) the
words
“and, in the case
of failure which is capable of remedy, has failed to remedy the failure
having received a warning from the appropriate authority specifying a
reasonable time frame in which to do
so.”
That would apply if,
in the normal course of procedure, a remedy could have been put in
place. Amendment No. 193 would add to subsection (4) the
words
“unless it can be
shown that the object was wrongly granted protected status as a result
of an inadequate due diligence procedure in relation to that
object.”
I dare
say that to some extent the amendments would really have come into play
had our amendment No. 153, which was in a previous group, been accepted
and had the Minister accepted that due diligence should be covered in
the Bill. We shall return to that point, but even without amendment No.
153 these amendments would not place onerous burdens on a gallery or
exhibition organiser. We are simply saying that if they have been asked
to improve their procedures and have not done so, if they have been
guilty of a failure in their procedures, and if they have not done what
they said they would do, there should be some tightening up so that it
is possible for approval to be
withdrawn.
The clause
allows the Department to withdraw approval from an institution, but we
feel that it is too laxly drafted. The amendments would tighten it up
not hugely but significantly. In the light of representations that have
been made to us, it is not unfair to ask the
Minister to consider the amendments and, if she does not accept them, at
least to explain why she believes the clause to be
adequate. 12.15
pm
Jenny
Willott:
I want briefly to highlight the views of the
Liberal Democrats on the issue: unusually for this Bill, we do not
agree with the Conservative amendments to this part. We feel that this
is a matter that should be left to the discretion of the authorities
when they are working out the circumstances of a particular case. We
feel that the amendments are over-prescriptive, and that it should be
left to the appropriate authorities as laid out in subsection (5) to
determine their own procedures and make their own decisions on
particular cases rather than having it laid out precisely in the
Bill.
Vera
Baird:
The amendments relate, as the hon. Gentleman said,
to the power that the appropriate authority is given under subsection
(3) to withdraw approval from an institution if it thinks fit, and
specifying in particular whether it thinks that the
institution’s procedures for establishing provenance or
ownership are inadequate because of its failure to comply with the
Secretary of State’s guidance, or for any other reason, or the
institution has failed to comply with a requirement of the regulations
under clause 129(9).
The amendments would require
that approval be withdrawn if, as amendment No. 191
says,
“the institution
has failed to improve its procedures having received a warning from the
appropriate authority specifying a reasonable time
frame”,
and, as amendment
No. 192 says,
“in the
case of failure which is capable of remedy, has failed to remedy the
failure having received a warning from the appropriate authority
specifying a reasonable time
frame”.
I shall
pause there, because amendment No. 193 is a little different. Again, we
sympathise very much with the amendments, but we do not think that it
is necessary, and possibly not practical, to limit the discretion given
to the appropriate authority in subsection (3) in the way that the
three amendments would do.
The Secretary of State is
required to act reasonably and proportionately in exercising any
discretionary power, and that applies to the power in subsection (3) as
much as to any other. Removal of approved status in the cases set out
in paragraphs (a) and (b), without sufficient warning, or giving a
reasonable time to a museum to rectify faults that have been identified
but may not have been 100 per cent. rectified, could be regarded as
acting unreasonably in a case where the continuing failure could still
be rectified in relation either to due diligence or the provision of
information.
Obviously, we will
none the less keep the power to act without notice in any case where it
can be justified, such as where such an action would be reasonable and
proportionate, as we are required to behave. We want museums to know
that, when they have approval under these provisions, and they decide
that it is no longer necessary to carry out due diligence, there is a
risk that their approved status will be removed with little or no
warning. We want them to know that we have that
power. However, we think that there is an element of
over-prescriptiveness here, and that we have to act reasonably and
proportionately in the exercise of the power under subsection (3). We
prefer, overwhelmingly, to leave the subsection as it
is. I turn now to
amendment No. 193, which is a little different. We considered carefully
whether the removal of a museum’s approved status should also
entail the removal of protected status from any object on temporary
exhibition at the museum on that date. We concluded that that was not
practical. There would be considerable scope for dispute as to whether
the decision to borrow a particular item was due to inadequate due
diligence on the part of the museum, and it would not be clear under
the amendment which objects were entitled to immunity and which were
not. Lenders would be reluctant to make loans, as they would see such a
provision weakening the value of the immunity, because they could not
be given a guarantee that their objects would be
returned.
The efficacy
and effectiveness of spot checks was raised by the hon. Member for
North-West Norfolk. We see spot checks as one means, but only one
means, which we will most definitely use to police, as it were, the way
that museums and galleries behave under these provisions. However, we
intend to explore with the Museums, Libraries and Archives Council and
others to see how else we might enforce the requirements on due
diligence and information. Spot checks will not be the only way forward
if other realistic proposals are made to the Government during the
consultations that we will hold on regulations. I hope that the hon.
Gentleman is reassured enough not to press the
amendments.
Mr.
Bellingham:
For the first time in the Committee we have
the Minister and the Liberal Democrats ranged against us, so there is
not much point in pursuing the issue. However, I am grateful for the
Minister’s explanation, particularly on spot checks and the fact
that they will not be the only weapon in the armoury, as it were, and
that other procedures will be put in place. I wait with interest to
learn what those other procedures will be. I beg to ask leave to
withdraw the amendment.
Amendment, by leave,
withdrawn.
Question proposed, That
the clause stand part of the Bill.
Vera
Baird:
The clause defines the terms “museum”
and “gallery” and sets out the conditions that
institutions must meet to gain approval for immunity from seizure. Only
those museums and galleries that are approved for immunity will be able
to benefit from the protection provided by the Bill. We expect
applications for approval to be made by our national museums and by the
major regional
museums.
Before any
institution can expect to be approved, it will need to demonstrate to
the Secretary of State or the appropriate authority in the devolved
Administrations that it carries out strict due diligence checks on the
objects it proposes to borrow. In assessing museums, the Secretary of
State will look closely at a museum’s procedures for
establishing the
provenance and ownership of objects, and the extent
to which it complies with the guidance on such procedures that will be
published by the DCMS from time to
time. As we discussed
earlier, subsection (3) will allow the Secretary of State to withdraw
the approved status of a museum at any time if it becomes apparent that
it is not maintaining sufficiently high standards of due diligence.
Subsection (4) ensures that objects in an exhibition that are protected
under the provisions will not lose that protection if an institution
loses its approved status during the period of the
loan.
Subsections (1)
and (5) enable Scottish and Welsh Ministers, and the Department of
Culture, Arts and Leisure in Northern Ireland, to approve institutions
within their respective territory for immunity from seizure. I commend
the clause to the Committee.
Mr.
Bellingham:
It may be an appropriate time at which to ask
the Minister these two questions. First, the issues of exhibitions,
loans and the granting of immunities are presumably devolved to the
Scottish Parliament, the Welsh Assembly and the Northern Ireland
Assembly, which we very much hope will be given an injection of life in
the coming few weeks. What happens if the devolved institutions do not
introduce legislation? Is there a possibility that that might happen,
and if so, will it create problems?
Secondly, going back to a
matter that we discussed earlier, to what extent will there be ongoing
consultation between the Minister and her colleagues at the DCMS? Is
she satisfied that protocols are in place to ensure that officials from
the two Departments will work together closely? I do not see how this
part of the Bill will fulfil its purposes when enacted, or that it will
be fit for purpose, if the two Departments are unable to work together
closely on an ongoing basis and in a properly resourced way. Perhaps
she will provide some comfort on those
points.
Vera
Baird:
The Bill is UK-wide, so the provisions are even, as
it were. The devolved powers will allow Scottish, Welsh and Northern
Irish Ministers to approve institutions within their respective
territories.
There is
no difficulty between the two Departments. I cannot comment on whether
there is a formal protocol, but it is clear that officials within the
DCA and the DCMS have worked extremely closely to ensure that the
provisions are properly consulted on and that they go forward—I
am accompanied by officials from both Departments this
morning.
Mr.
Bellingham:
This part of the Bill is UK-wide, so the
relevant Ministers in the Parliament and the two Assemblies could
introduce regulations that will not be amendable. I suppose that those
regulations could be voted down, and if they were, there would be a
problem. The UK-wide legislation would still apply but without the
relevant regulations in place. Perhaps the Minister could just explain
that in a little more
detail.
Vera
Baird:
I think that I had better write to the hon.
Gentleman about that.
Question put and agreed
to.
Clause 131
ordered to stand part of the Bill.
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