Twenty-First Report of Session 2019–21 Contents

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Instruments recommended for the affirmative procedure

At its meeting on 16 March 2021 the Committee considered proposed negative instruments laid by the Government and has recommended that the appropriate procedure for the following instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure).

1. The Introduction and the Import of Cultural Goods (Revocation) Regulations 2021

1.1The purpose of this instrument is to revoke EU Regulation 2019/880 on the introduction and import of cultural goods. Several provisions in the Regulation came into force during the transition period, and so became part of retained UK law on IP completion day (31 December 2020 at 11pm). Article 3(1), prohibiting the introduction of non-EU cultural goods which have been unlawfully removed from the country in which they were created or discovered, came into force on 28 December 2020.

1.2The explanatory memorandum states at paragraph 2.3 the following rationale for revocation; “The general prohibition provision in Article 3(1) of the Regulation has become legally deficient, as it applies to the “introduction of cultural goods” which is defined in Article 2(2) of the Regulation as “entry into the customs territory of the Union”. This refers to the customs territory of the EU, and cannot be interpreted to mean the customs territory of the United Kingdom”. At paragraph 7.3, the Department justifies the decision to revoke rather than amend the Regulation in the following terms; “we consider that, even if not deficient, this provision would not add anything new to the existing obligations on businesses and importers to ensure the legal provenance of cultural goods which they bring into the United Kingdom, or to the measures already available to the United Kingdom’s border authorities to prevent cultural goods being brought into the United Kingdom when there is information or evidence that they have been unlawfully removed from another country”.

1.3The explanatory memorandum refers to the United Kingdom’s commitments at international law but it does not detail any provisions enforceable in domestic law that are equivalent to Article 3. The Department states in its De Minimis assessment that it has “always considered that the ‘general prohibition’ does not add anything, or require any changes, to existing policy and procedures at the UK border. HMRC and Border Force are already able to detain cultural goods” but again it does not identify any legally enforceable obligation or prohibition that is equivalent to Article 3. Although the Department’s response provided a detailed list of international and domestic legislation in this area [full text in the appendix], the Committee remains concerned that the legislation cited may not go as far as the general prohibition in Article 3(1). We have therefore concluded that the effect of the revocation, and whether it creates gaps in domestic legal prohibitions, are a matter for debate.

1.4The Committee noted that the Department identified in its De Minimis assessment that revoking the general prohibition “is likely to be criticised by those who consider that the UK needs to do more to prevent the import into the UK of cultural goods which have been stolen, looted and/or unlawfully exported from other countries. They are likely to argue that we should have fixed the provision to make it operate correctly in UK law”. Furthermore, this instrument also revokes provisions intended to lay the groundwork for the eventual coming into force of the substantive import licence regime created by the EU Regulation, on the basis that as the substantive provisions had not come into force before IP completion day, the United Kingdom is under no obligation to implement them and so the groundwork provisions are deficient and redundant. The De Minimis assessment notes that critics “may also argue that we should retain the other provisions to facilitate the eventual implementation of the whole of the Regulation, including the import licence and importer statement requirements. There could be a perception that we are watering down our commitment to protect cultural property from illicit trade”. The decision to revoke rather than amend the regulation is a political decision. The Committee believes that the issue is of sufficient political importance to justify the scrutiny and debate afforded by affirmative resolution.

1.5The Committee recommends that the appropriate procedure for the instrument is for a draft of it to be laid before, and approved by a resolution of, each House of Parliament before it is made (i.e. the affirmative procedure), on the ground it is of legal and political importance.

Instruments recommended for the negative procedure

At its meeting on 16 March 2021 the Committee considered proposed negative instruments, none of which were recommended to be subject to the negative procedure.