Cultural Property (Armed Conflict) Bill [Lords]

Written evidence submitted by the Association of Art and Antiques Dealers (LAPADA) (CPB 10)

1. Since its inception in 1974, LAPADA’s membership has grown to over 50 0 members , making it the largest association of professional art and antiques dealers in the United Kingdom. As a member of the British Art Market Federation (BAMF) , LAPADA fully supports its submission on the Cultural Property [Armed Conflicts] Bill.

2. LAPADA echoes BAMF’s sentiment that its members fully support the aims of the Bill, but ha s certain concerns regarding the lack of clarity of some of its measures . W e feel this lack of clarity put s the legitimate trade at risk of possible criminal prosecution , which the Government has stipulated should not happen .

3. In short, our concerns centre on:

• The definition of cultural property as worded in Article 1 of the Hague Convention ( now incorporated in clause 2 of the present Bill);

• The lack of a defined list of occupied territories since 1954; and

• The low level of mens r ea in clause 17 (1) of the Bill.

4. To save time, we would simply reiterate the arguments as submitted by BAMF on these , particularly with reference to the Government’s previous findings in 2008 . However, we would also like to draw attention to the undertakings given by both the Secretary of State and the Parliamentary Unde r- Secretary of State during the Second Reading in the House of Commons on 31 st October, 2016. Both emphasised the need to be clear in what the Government intended concerning the art market’s obligations and the need to ensure that the Bill did not impede art market professionals in future.

5. In Hansard column 700, the Secretary of State said: "It is important that we are clear that the Bill will not hamper the way in which the art market operates." Meanwhile, in column 739, the Parliamentary Under- Secretary of State added: "It is important to note that the Bill will not require the art market to change how it operates."

6. The ministers also stated that the trade would not be expected to carry out any more due diligence than it already should. However, neither they nor the Bill makes it clear what they beli e ve that level of due diligence should be.

7. The ministers also appeared to give conflicting views on the scope of the definition of c ultural p roperty in the Bill .

8. In column 698, the Secretary of State says: " It defines cultural property as movable or immovable property of great importance to the cultural heritage of every people, such as monuments, works of art, or buildings whose main purpose is to contain such cultural property. The definition is broad and the list of examples is not exhaustive. As well as traditional works of art, the definition could also include, as was made clear during discussions in the other place, modern or digital types of cultural property such as very rare or unique film or recorded music."

9. However, in colu mn 740, the Parliamentary Under- Secretary of State says: "Let us be clear that the dealing offence applies only to a very small but very special category of cultural objects-those which are of great importance to the cultural heritage of every people."

10. Together, these points illustrate the significant degree of uncertainty surrounding the Bill, which, taken in context of the lower level of mens rea, risks leaving our members unfairly exposed under the law , as our example below shows.

11. The decision to opt for a low level of mens rea, that does not require dishonest intent to be a pre-requisite for criminal breach of the law, goes directly against the recommendations of the Select Committee in 2008 .

12. It has been argued that UN Sanctions Orders provide a suitable precedent for the proposed level of mens rea. However, the y focus on money-laundering, an area governed by strict universal rul es, whereas the art market is governed by a series of different codes drawn up to address the particular needs of differing areas of specialism and trade activity. Even the Greek authorities, who have a far greater concern with cultural heritage than many other nations, insist on a test of knowing and intent in their parallel legislation: Law 3691/2008 ( Prevention and suppression of money laundering and terrorist financing and other provisions) .

13. Finally, we believe that minor amendments to the Bill as set out by BAMF in its submission would ensure the Act’s long-lasting effectiveness, especially as it would enjoy the full support of the art market. To miss this opportunity to ratify The Hague Convention and the two protocols in the right way would send the wrong message to both the market and the international campaign to protect and preserve cultural property and heritage.

Example: A LAPADA dealer acquires a distinctive antique necklace that has changed hands on the legitimate open market both in Europe and the United States in recent years and decides to exhibit it at an upcoming fair in London . Having carried out due diligence when purchasing the piece , including checking its associated paperwork and history, as well as whether it appeared on any stolen databases, the dealer is satisfied that all is above board. The vetting committee at the fair agree s . However, a visitor to the fair, having seen the item on the dealer’s website, claims that it was illegally exported from an occupied Eastern Bloc nation several decades ago. The claimant provides no evidence to support this , but persists in his claim . Despite having carried out due diligence to the best of his ability, the dealer must decide whether the unsubstantiated claim has any merit and would fulfil the test of ‘having reason to suspect’ under the Act, leaving him liable to prosecution. With no clear guidance from the law, he decides that the risk is too great and withdraws the necklace from sale. Despite spending considerable time, effort and expense later to establish the truth, the dealer can uncover no further information. However, having missed the opportunity to sell the necklace at the fair and, having by now become too nervous to offer it for sale again, it remains in his safe, effectively blighted. The Act has directly hampered the dealer’s ability to trade in the market.

November 2016