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There is the vexed question of funding for representations before most tribunals. Is proper consideration to be given to the difficulties posed by the increased complexity of the law? Dealing with representations before tribunals by the funding code is absolutely inadequate, and too uncertain at the moment. Why should legal aid for representation before tribunals not be considered where it is deemed likely to be helpful to the tribunal, for example, by saving time? I raised that point with the noble and learned Lord the Lord Chancellor today, but I was not convinced by his answer. It is vital for the functioning of the tribunals, and to create confidence in what they have to say, that legal aid should be available for representation before them.
The Bill fails to provide supervisory measures to deal with abuses of power by enforcement agentsalthough the noble Lord, Lord Lucas, dealt with enforcement agents, I do not think he addressed that fundamental point. Like the Law Society, I believe the court should be able to accept appropriate financial penalties and, where necessary, prevent such agents from acting for a time-limited period.
I am all too aware of the draconian attitude towards the provision of legal aid at the moment. It is not a process of which I approve. Perhaps I am old-fashioned. As a practising solicitor, I did legal aid cases along with private work, and there were not too many difficulties for my colleagues and me in that. The situation now is profoundly unsatisfactory, and I am talking about something wider than tribunals. Legal aid, properly administered and applied by those who practise, would be an advantage to the public. Too many practitioners are prevented from rendering an invaluable service to the public, and too many members of the public are denied that vital service.
Meanwhile, citizens advice bureaux, debt relief agencies and law centres should all be given increased financial help in providing their relevant expertise. The ordinary man and woman on the street often need to obtain legal advice on the complex issues that are at stake and that vitally affect their daily lives. To deny that is to be purblind to the problems confronting people and to the solutions that can sometimes be found. I therefore hope that we will improve the Bill, particularly on this point, when we consider it in Committee and later in the House.
Lord Howarth of Newport: My Lords, I shall confine what I have to say to Part 6, which would provide immunity from seizure of works of art loaned from other countries for temporary exhibition in this country. Democratic politics and parliamentary
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As my noble and learned friend the Lord Chancellor said in his opening remarks, since the Noga case last year, the Russians in particular have been insisting that they will not continue to lend works of art for exhibition in this country unless we introduce anti-seizure legislation, as a number of other countriesthe USA, France, Germany, Belgium, Austria and Australiahave done. It is not only the Russians but the Greeks, the Taiwanese and the Romanians who are becoming increasingly resistant to making loans if there is not anti-seizure legislation. The difficulties in organising exhibitions are multiplying. The number of refusals of loans has been increasing. The National Museum Directors Conference and the Royal Academy have warned that plans for some 34 exhibitions are likely to be affecteddamagedunless we have anti-seizure legislation.
What is the public interest in the continuation of exhibitions of works of art in this country? Of course, we wish London to remain a great cultural centre. In recent years we have had the wonderful exhibitions of Titian and Michelangelo. We currently have the exhibitions of Holbein and Velazquez, and it is not only in London that we have these great opportunities. Such exhibitions allow people to see great works of art together in ways that are newly illuminating and stimulate new interpretation. They engage the public with art. They promote the education of the public. There are important economic benefits. Consultants calculated that the National Gallerys Raphael exhibition had a beneficial economic impact of some £30 million even before the benefit to the gallery of admissions charges was taken into account.
Very importantly, such exhibitions promote better international understanding. Let us take as an example the wonderful exhibition of ancient Persian art that was held at the British Museum, which was jointly opened by the Vice-President of Iran and our own Foreign Secretary. I believe that there is important scope for this kind of cultural diplomacy, of which the British Museum and its director, Neil MacGregor, are such good exponents. The lending of works of art between countries promotes bonds between them, a point strongly made in the de Leeuw report, and it is the policy of the European Union to promote more lending between member states to bridge cultures and develop our sense of common heritage.
So the cultural, economic and political case for anti-seizure legislation is strong. But we must also consider whether there is an important case, on the other hand, in terms of justice under the law. Situations in which works of art might be seized are when a claimant to title of a particular work is
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We have to consider whether our cultural pleasure and convenience outweigh the requirement of justice. The DCMS consultation paper issued earlier this year addressed that very issue strenuously and decently. Paragraph 1.16 states:
The effect of anti-seizure legislation would be to suspend a claimants ability to be granted a particular form of relief for a strictly limited period of time, rather than removing it. However, in practice, the legislation is likely to prevent claims being made to works of art which are temporarily in this jurisdiction while they are in the jurisdiction, when, from the point of view of a claimant, it would be most useful to bring such a claim.
The consultation paper went on to discuss whether anti-seizure legislation would contravene Article 6 of the ECHRthe article that provides a right to a fair and public hearing in court in a reasonable time. The department made the case that it would not, saying that:
The right of access to court is not an absolute right, but subject to limitations. It must be regulated by the State, and the State has a margin of appreciation in making such regulations, provided that any limitations imposed serve a legitimate aim, are proportionate to that aim and do not restrict or reduce the access left to the individual in such a way, or to such an extent that the very essence of the right is impaired.
Where a claim stems from action taken in the Nazi era, there may already be serious doubt as to whether claimants would be able to bring a substantive claim in this jurisdiction (the expiry of limitation periods for claims which stems from action taken in the Nazi era, may have extinguished the original owners title to the object being claimed). Claims to objects which have been nationalised or expropriated by a State act may also fail on the grounds of sovereign immunity. Where a claimant is seeking to enforce a judgment debt, the limitation proposed merely prevents execution of that debt against one form of assetfor a limited period.
It is a key question for Parliament whether that fair balance has been struck in the Governments proposals. Is it contemplated in the ECHR or the associated jurisprudence that there should be a temporary suspension of this human right? If, realistically, there is no possible remedy in the lender country and we block off access to court for the survivor of the Holocaust or one of his descendants,
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We should note that while the Bill precludes seizure of the work of art, it does not preclude suit. It would still be possible to bring an action for damages against, for example, the museum, or for restitution for unjust enrichment, conversion or declaration of title. The only remedy precluded under the Governments proposals is physical seizure. I understand that criminal liability is also unaffected. For example, Section 1 of the Dealing in Cultural Objects (Offences) Act 2003, which makes it an offence dishonestly to deal in a cultural object that is tainted, knowing or believing that it is tainted, would still apply, as would the provisions for possession of criminal property in the Proceeds of Crime Act and the Theft Act. It is quite wrong to suggest, as some noble correspondents to the Times did in a letter published yesterday, that this Bill would create complete immunity.
If there is to be anti-seizure legislation, the question arises whether it should be automatic or whether it should be a discretionary system, whereby the borrowing institution is required to itemise those works that it is proposed should be borrowed and give notice, allowing objectors time to make representations. The museums and the Government say that it should be automatic because of the complexity and costs of a discretionary system. I suspect that the complexity and the cost may have been overstated; due diligence is going to have to be performed anyway, and the evidence from Switzerland is that the cost need not be exorbitant. That consideration should not determine which course we choose. The question is whether an automatic system of immunity, as has been suggested, would let museums off the hook or positively encourage them to relax their vigilance and due diligence. I believe that it would not; as I have just said, museums would continue to have liability under both civil and criminal law. Nor do I think that museums want to see standards relaxed. The culture in this regard has been transformed in recent decades, as is evidenced from the report of the spoliation advisory panel on the Benevento missal.
In 1994, the Museums Association produced its code of practice, which was followed by the National Museum Directors Conference statement of principles. The NMDC set up a committee, chaired by Sir Nicholas Serota, which has continued to develop good practice in this field. The Department for Culture, Media and Sport has issued guidelines on due diligence which are very stringent. It is a condition of the government indemnity scheme, which provides insurance for works of art loaned to exhibitions in this country, that due diligence should have been carried out. As my noble and learned friend the Lord Chancellor stressed in his opening remarks, the Bill allows the Secretary of State to withhold approval from an institutionthat is in Clause 128(3)if she considers that an institution is not performing its duties of due diligence as it should. Withholding of approval brings with it deprivation of immunity, which is an important sanction. Perhaps,
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What advantage then would there be in a discretionary system of immunity? To the extent that it highlighted dubious title and stopped lenders parading their stolen art and their bogus national patrimony in this country, one might certainly say that was a benefit. I do not see how a discretionary system would help claimants. If it were more likely that loans would not be made, I do not see how they would be made better off. Indeed, it seems to me that a rational claimant would lie low and would not raise an objection, and would wait and see whether they could take their chance when the object did come into this country, perhaps under European Union or international law.
How might anti-seizure legislation as proposed by the Government work? I had the privilege of spending two days recently at a seminar organised by the Institute of Art and Law. I listened to the best lawyers and the best academics in this field, and I was struck by the fact that they could not agree on the interplay of jurisdictions or on what an appropriate model for anti-seizure legislation might be. They were feeling their way towards understanding the scope for and the effects of clashes between legal traditions, between different national laws, between national law and European Union law and between private international law and public international law. I was persuaded that what we are embarked on in Part 6 is not a simple undertaking. It may well be that the legal difficulties are underestimated by museum directors and Governments, and even by lawyers.
Certainly, no other country is happy with the legislation that it presently has on the statute book. The French police, notwithstanding the 1994 legislation in France, continue to conduct their investigations in the usual way and seized a painting by Franz Hals. In Chicago, notwithstanding that there has been legislation on the federal statute book since 1965, in June this year an American judge ordered the confiscation of a valuable collection of Iranian artefacts that had been lent decades before by Iran to the Oriental Institute of Chicago University. He ordered that they should be put up for auction to compensate Israeli families who lost members in a bomb explosion at Ben Yehuda mall in September 1997this, on the grounds that the Islamic regime in Tehran sponsored terrorism.
I hope that, in our scrutiny of the Bill, noble and learned Lords in particular will advise us on how this legislation might play against other laws and obligations. It seems clear that the powers of seizure under the anti-money-laundering provisions of the Proceeds of Crime Act 2002 would be suspended in the case of a work of art that had been lent from abroad for an exhibition. None the less, would a UK court still be required by the 1990 international Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime or the European Union Council framework decision of 26 June 2001 on money-laundering to seize the object?
What would be the relation of our anti-seizure legislation to Council directive 93/7/EEC on the return of cultural objects unlawfully removed from the territory of a member state? The directive provides for a procedure under which a cultural object that has been unlawfully removed from a member state and is found in the territory of another member state can be returned to the state from which it was removed. Objects can be returned administratively by co-operation or by the requesting state commencing proceedings before the courts of the requested state. In addition, Council regulation (EC) 1346/2000 on insolvency proceedings provides for recognition and enforcement of insolvency judgments in other member states.
Do the Government contemplate that someone who believed that his rights under Article 6 of the ECHR had been extinguished could take his case to Strasbourg? What will be the continuing effect of the Council of Europe legal convention that provides that police in one country can ask the police in another to seize and return stolen property? That recently worked in a case between France and Italy. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which we signed recentlyI am very glad that we didprovides for the return of cultural objects.
The one exception, as described in the letter that my noble friend Lady Ashton wrote to us, may prove to be many-headed and important. It will be unpredictable in its consequence. It remains to be seen how lenders will view it and whether they will consider that the legislation now before us provides enough comfort.
If we accept that the Government have struck a fair balance and that this is a sensible and pragmatic measure, as on balance I do, nevertheless should not the Government also address the heart and origin of the problem, which I believe lies in the inadequacy of the rule of law and of access to justice in some countries? Where satisfactory dispute resolution procedures obtain, the issue of seizure does not arise. I am attracted to the thinking in a draft law in Israel which says to museums, Okay, you can have your immunity where the lender country has proper dispute resolution procedures. So, if the Russians will not allow access to justice, Israeli museums will go without their loans and they may take the view that, in the moral balance, there are worse disasters. Our due diligence should achieve the same effect as regards claims to title.
I believe that we should enact these clauses, but that we should also work to build an international system to adjudicate claims and a strong modern international treaty governing the movement of cultural objects across national frontiers.
Lord Janner of Braunstone: My Lords, I listened with interest to my noble friend Lord Howarth of Newport. He referred to the Times correspondence page, which today carries a very interesting letter from him occupying a column. I am only sad that he
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At present, if a Holocaust survivor sees a painting or object that belonged to his or her family, they can go and claim. If the Bill becomes law in its present form, if they see such property, they will be unable to prevent the people who have brought that property and exhibited it in this country at least keeping it, hiding it or taking it home. That is totally wrong and immoral and is not a fair balance.
Yes, my noble friend is right to refer to the misery suffered by people in the Holocaust. Yes, I declare an interest. My entire family who lived on the Continent, with the exception of those in Denmark, was wiped out by the Nazis. Yes, I declare an interest. I served in the British Army of the Rhine as a war crimes investigator. We know what the Nazis did. We know how property was stolen. We know who bought it. Yes, I have an interest. I recently came back with the noble Lord, Lord Hunt of Wirral, from another attempt to get the Vatican to hand over property. It has not handed over any of the items that were put into its care by people who knew they were being taken away by the Nazis and would probably be murdered. Not one item has been returned by the Vatican.
Yes, I am referring also to visits to Austria, which has passed a law stating that property taken from people who were murdered in the Holocaust should be handed back to their families. But that has not prevented a range of excellent paintings, which belonged to people who now live in this country and who provided us with the details, being put by the Austrians into a gallery that is open to the public, but is privately owned so that the law does not affect it. But 50 per cent of the directors of that gallery are appointed by the Viennese, so the family cannot get the paintings back. This is not justice and, with respect, neither is it justice to say, The rights you have now are going to be diminished. It is not justice to say, This Bill will retain certain rights and you can take action in the international court. That is not the way to treat people.
The provisions are hidden away in Part 6 of a Bill that mainly deals with other matters, as this debate has done today. That is not the way to obtain decency, fairness and justice. Part 6 provides British institutions with immunity from potential prosecution or seizures of objects brought to the United Kingdom for public display and temporary exhibition for up to 12 months, either at one location or many. The potential is that spoliated, stolen artwork cannot be restored to the true owners, if they turn up, unless an order has been made by a court. Meanwhile, people can take those objectsit is theirs. Why? The answer we are given is, If we cant do this, we will not get exhibitions in this country. People will not want to bring their art here. Well, if it is stolen art, I do not want them to bring it here, and I am sure that other Members of this House do not want that.
The Bill does not define which objects are protected. They should be cultural objects. The period of protection is not carefully thought through. There is nothing to ensure that items on loan are not brought into the United Kingdom on a semi-permanent basis. Items can be sold while they are on display in the United Kingdom. The safeguards for the true owners of such property, who have been robbed of them, are totally insufficient. It is not justice, it is not fair and it is certainly not something that I would have expected to happen in this country.
In many ways, the Bill is incompatible with the United Kingdoms support for the principles laid down in the 1998 Washington Conference on Holocaust-Era Assets, which I attended. It overrides our existing law, policy and practice on illicitly traded works of art, and art stolen by the Nazis. Britain stood up against the Nazis when no one else did. My father was a Member of the other place for years, a leader of the Jewish community who stayed through the Blitz with my mother while I was shipped off to Canada for four years because they believed the Nazis were going to invadethank God they did not. Do not give them something back like this.
How could it be right, if an artefact is proved to be stolen property, that it is not attacked when it comes here for an exhibition? Well, maybe they would not want to put artwork into exhibitions here if they knew they were in that danger. Well, too bad. We do not want to be a place which exhibits stolen art. This part of the Bill should be removed, not least because this county stood alone against the Nazis. To allow it back in is a disgrace.
Lord Kerr of Kinlochard: My Lords, I merely wish to say that, while I deeply appreciate the strength of the feelings of the noble Lord, Lord Janner, I do not agree with his conclusions on this Bill. In a previous job at the Foreign Office I was able to assist the noble Lord in finding Jewish graves in the Baltic states, and I pay tribute to his work.
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