Supplementary memorandum submitted by
the British Art Market Foundation (BAMF)
In response to the inquiry being conducted by
the Select Committee for Culture, Media and Sport, our Federation
submitted written comments on the above draft legislation for
the Committee's consideration. Since presenting our comments,
we have been in discussion with DCMS officials. Yesterday we had
a meeting with them at which the concerns expressed in our submission
were discussed in detail.
While we concluded that officials fully understood
the points we are making, we still remain very concerned about
the key issues set out in our submission.
The first involves the practical steps needed
in connection with conducting due diligence (ie background research)
on an object. It is often the case that detailed due diligence
can only be carried out after taking possession of an object.
As things stand, an auctioneer or dealer would be guilty of a
criminal offence under the Bill if, subsequent to taking possession
of an object, their own research suggested that the object was,
or may have been, removed illegally from an occupied territory
since 1954. In the Dealing in Cultural Objects (Offences) Act
2003 there is a requirement for the prosecution to prove dishonesty
in the handling of an object. As a result of this, if an auctioneer
or a dealer takes possession of an object in good faith but subsequently
discovers, as a result of his searches, that it is tainted, he
can hand the object over to the appropriate authorities without
fear of prosecution. Unlike the Dealing in Cultural Objects (Offences)
Act, the draft Bill does not include a requirement to prove dishonesty.
Therefore the auctioneer or dealer would technically be committing
a criminal offence, having already accepted an object for potential
sale, as soon as his due diligence led him to have a suspicion,
even though, at the time he accepted it, he had no reason to believe
that the object was tainted and could not in fact have discovered
this without having the object in his possession to carry out
his research. We do not see why a dishonesty element should not
be included in this Bill for the reasons set out above. We hope
that the Select Committee will be sympathetic to this.
Secondly, we continue to believe that it is
essential that a list of occupied territories and their dates
of occupation is published by the Government prior to enactment
and that the list is kept up to date. If our members are to conduct
due diligence properly, under threat of criminal prosecution if
they get it wrong, they must surely be given these basic facts.
If they are uncertain about the due diligence to be undertaken,
legitimate business will be driven from the UK. The Bill already
provides for the Secretary of State to be able to issue a certificate,
in the context of proceedings, to confirm whether a territory
is occupied so there is no reason why that confirmation could
not be given in advance by way of a list. I hope that the Committee
will support what we believe is a thoroughly reasonable request.
Finally, we remain concerned as to how a refugee
leaving an occupied territory with his own possessions can in
practice avoid tainting his possessions and therefore making them
difficult to sell on the legitimate art market. We discussed this
with DCMS officials and we recognise that it is a difficult problem
to solve in practice. But, nonetheless, it remains a matter of
concern that a genuine refugee might be deprived of the opportunity
of getting a fair market price for his possessions because there
was no machinery in place for him to prove legitimate export from
a territory under occupation. At present the Bill has no scope
for the legitimisation of such objects.
May 2007
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