Clause 1 - Offence of dealing in tainted cultural objects

Dealing in Cultural Objects (Offences) Bill – in a Public Bill Committee at 2:00 pm on 14 May 2003.

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Question proposed, That the clause stand part of the Bill.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

May I say what a pleasure it is, Mr. Hurst, to serve under your chairmanship? I thank the Government business managers for having assisted us in securing an early Committee sitting.

Clause 1 sets out the terms of the offence of dealing in cultural objects that are deemed to have been tainted. The necessity for such an offence in English and Welsh law has been highlighted by the recent situation in Iraq, where we saw that cultural objects could easily be removed at times of instability. Most of those cultural objects were removed from museums, but far more dangerous is what happens next. Most of the objects removed from those museums are well known and well documented and it will be difficult to sell them on. Far more prevalent will be the looting of archaeological sites outside the mainstream and the public eye; that material can be sold on far more easily because it is not so well documented or catalogued.

The offence created under clause 1 is explicit. The prosecution must demonstrate that an individual has dealt dishonestly in a tainted cultural object. People are naturally concerned that they could be liable to prosecution for a new criminal offence and I praise those representing dealers in the art and antiquities trade who served on the Ministerial Panel on the Illicit Trade in Cultural Objects—known as ITAP, or the illicit trade advisory panel—for not trying to block the creation of the offence. Instead, they engaged constructively in shaping it. We may not be able to answer all of their concerns today, but I hope that we can go some way in response to the legitimate questions that they raised.

Part of our response lies in ensuring safeguards for people accused of the offence who have behaved reasonably. The safeguards in clause 1 are that the individual must know or believe that an object is tainted and that there must be an element of dishonesty in the offence. Anyone who takes reasonable steps to ensure that the object that they are buying is not tainted will have a reasonable defence. The Bill is squarely targeted at those who deal dishonestly in such material and not at the legitimate dealers, who work to codes of practice involving sensible checks on the provenance of material offered to them.

It is worth mentioning that the trade is demanding improvements to the databases that dealers use to check whether material is likely to have come from an

illegitimate source or to have been stolen. I entirely agree with the pressure for better systems of notification, not least because it is important to the operation of the clause. Better sources of information are clearly good for dealers who wish to trade honestly and legitimately, but they are good also for the authorities should they need to make a case against someone who has traded dishonestly. It would be easier to prove that a person knew or believed that an object was tainted if the databases that list the tainted material were more easily accessible.

Finally, Anthony Browne, chairman of the British Art Market Federation, has devoted a lot of time to highlighting a number of concerns and they merit a response. Some of them will be dealt with in later clauses, but one is relevant to clause 1. We need to clarify what would happen if an object turned out not to be tainted, even though it was believed to be so and a dealer had been caught. My understanding is that it would be treated similarly to the offence of handling stolen goods, where prosecutions are not proceeded with if an object that was thought to have been stolen turns out not to have been. I hope that the Minister can give us some guidance on that matter. I hope also that the Committee will agree to the clause standing part.

Photo of Robert Key Robert Key Conservative, Salisbury

I welcome the clause. I support it for two reasons. First it represents unfinished business. I was a founding Minister at the Department of National Heritage in 1992, so it certainly represents unfinished business for me. At the time, we were concerned about several issues. We were preoccupied with the wider art market, London being such an important international centre, and with a number of archaeological matters, notably metal detection. This will help to clarify the situation. Perhaps the hon. Member for Sheffield, Hallam (Mr. Allan), whom I congratulate on his Bill, will touch on that.

My second reason for supporting the clause so warmly is that I can hardly do otherwise as Member of Parliament for Salisbury, with Stonehenge, the world heritage site, and Old Sarum in my constituency. One never knows when something else is going to turn up, as in the classic case of the Amesbury archer, when a housing development revealed a remarkable bit of buried treasure.

I have consulted Andrew Lawson of Wessex Archaeology, Peter Saunders, curator of Salisbury museum, Roy Canham, the county archaeologist for Wiltshire and Paul Robinson, the curator of Devizes museum, the home of Wiltshire archaeology and natural history society, all of whom concur with the Bill. I intend to say as little as possible because it is so important for this legislation to reach the statute book. I warmly commend the Bill. We are all grateful to the Minister for expediting this important legislation.

Photo of Shona McIsaac Shona McIsaac Labour, Cleethorpes

When the Bill was published at the end of last year and on Second Reading in April, a great many people thought that it was somewhat quaint—a fringe matter that was not of wide interest. As the hon. Member for Sheffield, Hallam said, the seriousness of the issue has been demonstrated graphically on our television screens

following the conflict in Iraq. On Second Reading, we highlighted the fact that looting is at its most prevalent at times of conflict or political instability.

I am happy to be a sponsor of the Bill. I support the clause and hope that the Bill proceeds through all its stages without any impediment. It is about stealing history and knowledge. Given its seriousness, it must reach the statute book as soon as possible.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I congratulate the hon. Member for Sheffield, Hallam on introducing the Bill and all those who have had an input, the Ministerial Panel on the Illicit Trade in Cultural Objects in particular. I echo the words of Anthony Browne and his colleagues. I also congratulate the Government, not only on the measures that they are taking to expedite the Bill, which I hope will quickly pass through the House and come into law, but on having signed up to the 1970 UNESCO convention and on the help that they have given—through the British museum and the Department for Culture, Media and Sport—to the authorities in Baghdad trying to track down looted treasures, which the hon. Member for Cleethorpes (Shona McIsaac) mentioned and which make the measure all the more urgent.

I echo my hon. Friend the Member for Salisbury (Mr. Key)—this is unfinished business, long overdue. He, more than many, knows the downside of the absence of such measures. He spoke of some sites in his constituency, but did not mention the threat of having yet more gargoyles knocked off his cathedral, which is of concern to all of us. The sale of illicit antiquities is big business, be it through looting to order—as might have happened in Baghdad—or otherwise. I spent some months doing a survey of Mayan burial sites in the jungle in Belize and found many sites that had not previously been catalogued or discovered but had certainly been looted. We shall never know the contents of those graves; they will go uncatalogued.

It is important that the prosecution should bear the balance of the burden of proof in demonstrating whether a person who is charged with handling tainted goods knew or believed that they were tainted. That burden of proof is much more difficult when one is dealing with experts and professionals in cultural artefacts, who will have a greater expectation of holding a reasonable doubt that the artefacts in question are tainted under the definitions in the Bill. I am therefore slightly concerned that the provisions need to be tested in the courts. It is important that we do not get the balance in relation to the burden of proof wrong. We do not want to legislate in haste only to build up problems later.

As a brief example, some years ago I was up the Khyber pass in Pakistan with a friend. We chanced upon a small curio shop, as one does, where, in contrast to all the gun shops that we had been urged to visit where we were offered AK47s at a knock-down sum and urged to try them round the back, we came across an 1870s Lee Enfield rifle propped up in the corner. It was a smart weapon and had had the locking mechanism removed, although that could easily have been restored. My friend thought, ''I'll have that,''

handed over a few dollars and took it. He then had a bit of a problem getting the rifle through Karachi airport security, but eventually he did. The officials there maintained that my friend could not take the rifle out of the country because it was more than 100 years old, whereas he maintained that it was British and that it was going home. In the end he won the argument, although he was not allowed to have the rifle personally on the plane and it was entrusted to the captain.

If the law were applied to that case, there is a strong suggestion that that gun would be tainted. It got into the possession of the curio shop owner, who would have bought it from local Pakistani or Afghani militia. They in turn could have come into possession of it only by stealing it from a British soldier who was out there during the second Afghan war—it is the property of the British Government—or doing a deal with that British soldier and buying it from him. That would also have been an offence, for which that soldier would have been court-martialled accordingly. It is therefore highly likely that that gun came into the possession of the curio shop owner as a tainted good under the definition of the Bill, unless the British military had presented it as a gift to the people of Afghanistan or Pakistan, which is unlikely. The story is an interesting aside that throws up some of the concerns of my friend, who is now living in Singapore and having more problems shrugging off SARS threats. He may be prosecuted under the Bill, although it is not retrospective, so he is okay for the moment—they might get him the next time.

The explanatory notes rightly set out stiff penalties for people who knowingly handle tainted goods. However, the regulatory impact assessment says, under explanatory note 37, that

''the level of prosecution is estimated at probably not more than one every two to three years'',

which is therefore of negligible cost to the Exchequer. If the authorities are not going to be serious about prosecuting such cases and think that they will come up only once in a blue moon, the provisions will not be much of a deterrent. Given the incidence of such trade in cultural objects, I would hope that there would be cases every one to two weeks, not once every two to three years. We must be serious about enacting the law and ensure both that it will deter people from carrying out such practices and that those who go ahead regardless are hauled before the courts. That is one marker I put down over why the penalties are so stiff if the regulatory impact assessment in the explanatory notes implies that we are not as keen to prosecute as fully as the Bill suggests.

Other than that, the Bill has the full support of Her Majesty's Opposition. I shall speak more briefly on subsequent clauses to ensure that it is passed in the time allotted today.

Photo of Mr Roger Casale Mr Roger Casale Labour, Wimbledon

I welcome you to the Chair, Mr. Hurst. Once again, I welcome the Bill and congratulate the hon. Member for Sheffield, Hallam on promoting it.

I do not have a specific constituency interest, although as the hon. Member for Salisbury said,

there are important constituency concerns as we all have heritage sites in our constituencies. An example that springs to my mind is Merton priory, which is a 12th-century monastery that was dissolved and looted under Henry VIII. In modern times, it was concreted over and it now lies underneath one of the largest supermarkets in Europe. Looting of cultural objects is a problem that has been with us for a long time and it affects each of our constituency interests.

I wish to address a matter related not to my constituency but to my work as chairman of the all-party British-Italian group. Italy has about 60 per cent. of the world's heritage cultural objects, and there was some debate on Second Reading about the looting of objects from Italian archaeological sites. Italy has been at the forefront of international efforts to combat the trade in illicit cultural objects, and it quickly signed up to the 1998 UN convention on the matter, and to subsequent European conventions. Four years ago, I had the privilege to lead a delegation from our Parliament to the Italian Parliament, where we looked at issues related to the fight against organised crime and, in particular, at the steps taken by the Italian Government to counter money laundering.

One image that we may have is of the petty criminal or tourist picking something up and putting it into their bag at an archaeological or artistic site. That happens, it is wrong, and we must try to stop it. However, I understand that the Bill aims to deal with the far greater racket that is linked to organised international criminals. Proceeds from the looting of artistic and cultural objects are second only to the proceeds from the trade in drugs. When we examine the sources of funds that are laundered through banks and the international money system, we see that this is a very lucrative trade. It is increasingly being used to finance other illicit activities, including the drugs trade, and to finance the activities of international criminal gangs. It has also been linked to terrorist activities, a matter that was raised on Second Reading.

I am making those points during our discussion on clause 1 because it is the point in the Bill where the focus moves from the illicitly traded cultural object to the person who is trading in such objects. The hon. Member for Sheffield, Hallam, who is promoting the Bill, said that he did not think that it would be difficult to ascertain whether a person who was trading in those objects had malicious intent. We do not want to catch bona fide art dealers or others who have been unwittingly trading in looted objects. We must make sure that we catch the big fish—the people who are doing it with malicious intent. We must not only ask whether they knew that an object was looted but look at what other activities they are involved in.

We must consider the Government's recent legislation to expropriate the proceeds of illicit crime. We must seek the opportunity to override some of the banking secrecy laws, and we must consider whether the person is not only trading in illicit goods but using the proceeds from that trade, perhaps by illicitly laundering the money and using it to finance other

illicit activities. When confiscating the cultural object from that person we must consider also confiscating some of the proceeds of the illicit trade.

In conclusion, I believe that organised criminals carry out an increasing amount of the trade in illicit and looted cultural objects in a cold-blooded and systematic way. I do not believe that we will have any difficulty retrieving the objects, and, in many cases, it will not be difficult to establish the criminal intent of somebody who is in the frame for this offence. I support the clause.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 2:15, 14 May 2003

Like other hon. Members, I support the Bill promoted by my hon. Friend the Member for Sheffield, Hallam. It is necessary, and it is exceptionally well and cleverly drafted. That is not something that I often have the opportunity to say in a Committee Room.

This debate seems to have been something of an archaeological travelogue, so I may as well place on record the fact that I represent Skara Brae, Maes Howe and more chambered cairns and brochs than the average archaeologist could shake a towel at. We also have our 12th-century cathedral. Slowly, over time, we have learned to live with its modernity. I am aware that the Bill extends to England and Wales but not to Scotland, so I speak with some hesitation. I hope that once it has found its way on to the statute book, as I sincerely hope it does, Scottish Ministers will find an opportunity to enact a similar provision north of the border.

I listened with some interest to the hon. Member for East Worthing and Shoreham (Tim Loughton). May I offer him a word or two of reassurance regarding his colleague's rifle? It seems to me unless it had been excavated at some stage or had formed part of a building, it would not be a tainted cultural object. Although I always think that any admission of lawlessness from the party of law and order—as the Conservatives would have us believe they are—is interesting, I think that the hon. Gentleman and his friend can sleep easy on this occasion.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport

It is a pleasure to serve on the Committee and especially to be part of the proceedings on such an excellent Bill. I congratulate the hon. Member for Sheffield, Hallam on securing Committee time for this important measure.

I said on Second Reading last month that I was delighted that we had had such a wide-ranging debate on the Bill, because it is one that concerns many people. Since then there has been considerable publicity and concern about the looting of archaeological sites, monuments and collections in the aftermath of the war against Saddam Hussein, and about the attempts to smuggle stolen items across the Iraqi frontiers and on to the international black market. That very unfortunate outcome of the war highlights the Bill's importance.

Although the Bill is not retrospective, it will make it an offence dishonestly to deal in and unlawfully to remove cultural property. It will act as a disincentive to those involved in damaging and looting sites for commercial gain. It will reduce the risk that this

country will become a marketplace for looted antiquities from anywhere in the world. The Government recognise the Bill's importance as a cornerstone of their programme of measures designed to help to conserve and protect the cultural heritage of all countries, especially Iraq.

All those who have spoken—led by the hon. Member for Salisbury, who is a real expert in the field—have noted that their constituency contains archaeological treasures; indeed, there is hardly one that does not. I was going to make a flippant remark about the fact that I have an archaeological treasure that is very precious to my constituency—the ruins of Welsh rugby. For that matter, I probably have more burial mounds in my constituency than one could shake a towel at, but I shall not go into detail.

I enjoyed the story by the hon. Member for East Worthing and Shoreham about the Khyber pass. It was a good way of testing our knowledge of the Bill. However, I must agree with the hon. Member for Orkney and Shetland (Mr. Carmichael) that the rifle would not be a tainted cultural object—unless some structure had been built on the Khyber pass, and the rifle had been used as a lintel for holding up a doorway, but we shall not go into that now.

As the hon. Member for Sheffield, Hallam made clear, the core of the Bill is subsection (1), which makes it an offence for a person to deal in a cultural object if he knows or believes it to be tainted. The requirement for the prosecution to prove that the person is acting dishonestly when dealing in the cultural object provides an important safeguard, and I know from this afternoon's contributions that there are worries about the issue. Including a dishonesty element in the Bill ensures that an offence is committed only where a person has acted in a way that is dishonest according to the ordinary standards of reasonable and honest people, and where he realised that his actions would be regarded as dishonest.

A second important safeguard is the requirement that, to be guilty of the offence, a person must know or believe the cultural object to be tainted. A person who, for example, produced evidence showing that, before dealing, he had made reasonable inquiries that indicated that the object was not tainted will not have committed the offence. That would be the case even if it transpired after the dealing had taken place that the cultural object was in fact tainted. The fact that a person would be guilty of an offence if he believed the cultural object to be tainted follows the original recommendation of the illicit trade advisory panel.

That does not mean that an offence would be committed where a person believed an object to be tainted when it was not. That is an important point to bear in mind. There is a parallel with the offence of handling stolen goods. An element of that offence is that the person concerned knew or believed the goods to be stolen. It is clear that no offence of handling stolen goods can be committed unless the goods were stolen. In other words, the offender must know or correctly believe the goods to be stolen. Similarly, under the Bill, there will be no offence unless the

person concerned knew or correctly believed the object to be tainted.

Under subsection (2), the prosecution will not need to prove that a person knows or believes an object to be a cultural object. It would place an unduly heavy burden on the prosecution to require proof that the alleged offender knew that the object was a cultural object. Knowledge or belief that an object has been illegally excavated or removed must in itself imply a degree of knowledge in respect of its cultural significance. Why else would such an object be protected by local law?

The offence is triable either way. Under subsection (3)(a), a person who is found guilty of an offence under the Bill is liable on conviction in the Crown court to a prison term

''not exceeding seven years or a fine (or both)''.

Under subsection (3)(b), a person is liable on conviction in a magistrates court to a prison term

''not exceeding six months or a fine not exceeding the statutory maximum''—

currently £5,000—''or both''.

Those penalties are not insignificant, but they correspond to the seriousness of the crime. They are greater than those for offences under listed buildings legislation and under the Ancient Monuments and Archaeological Areas Act 1979, but offences under that legislation do not require proof of dishonesty. The penalties imposed by the Bill are analogous to those imposed for dealing in goods that are subject to an import or export restriction under section 170 of the Customs and Excise Management Act 1979. I hope that my explanations have made it clear why I support clause 1.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry) 2:30, 14 May 2003

I am grateful to all hon. Members for their support.

The hon. Member for Salisbury spoke about metal detectorists—is that a neologism? There has been some debate about whether the Bill is aimed at people who use metal detectors, but that is certainly not the case. Metal detecting is a legitimate activity provided that the permission of the landowner has been sought. It should not take place on scheduled ancient monuments. If, as happened recently at Yeavering Bell in Northumbria, detectorists from the wrong side of town, commonly known as nighthawks, deliberately metal detect on the sites of ancient monuments such as those in Wiltshire and try to sell what they find, anyone who buys it will be caught under the Bill. For the ordinary business of metal detecting, other provisions such as the Treasure Act 1996 come into force, and the activity is not outlawed by the Bill.

The hon. Member for East Worthing and Shoreham made an interesting contribution. He picked up on the question of looting in Latin America. That is relevant to the question whether someone knows or believes that an object is tainted. One of the most significant recent developments has been the creation by the International Council of Museums of its red list procedures. The red list defines the categories of material, initially from west African

counties, that are likely to have been looted. ICOM recently extended the red list to Latin America, the announcement taking place after a meeting in Colombia.

That sort of procedure is important; it is the other side of the coin. Having a red list means that the material becomes widely known; it is a statement that such material is likely to have been looted. It then becomes reasonable to expect a significant degree of checking—rather more than in the case of material that has not been so clearly and publicly identified. In the current situation, one would expect people to carry out a more thorough check on the provenance of certain types of material from the middle east than under normal circumstances. That is a reasonable test to apply.

The hon. Gentleman wondered whether the rifle that he mentioned had been given as a gift to the people of Pakistan. I suspect that it would have been given posthumously if it was related to the Afghan wars of that time.

That is all that I need to say. I echo my thanks to all members of the Committee, who have supported the Bill thus far.

Question put and agreed to.

Clause 1 ordered to stand part of the Bill.