Clause 2 - Meaning of ''tainted cultural object''

Dealing in Cultural Objects (Offences) Bill – in a Public Bill Committee at 2:30 pm on 14th May 2003.

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Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 2:30 pm, 14th May 2003

I beg to move amendment No. 1, in

clause 2, page 1, line 16, leave out from the beginning to end of line 17 and insert

'the removal or excavation, or any failure by any person involved in the removal or excavation to comply with procedures required in respect of that removal or excavation constituted an offence at the time it occurred.'.

Both amendments to clause 2 are probing amendments. It is a question of getting the Bill right. In principle, it is better to table an amendment because the Committee can debate it and give specific reasons as to whether it should be accepted, or the Minister can give an undertaking to consider the point with a view to returning to it in another place or on Report. That is often better than a general debate on clause stand part.

The amendment is from members of the illicit trade advisory panel. It would add the words ''the fabric of''.

Photo of Mr Alan Hurst Mr Alan Hurst Labour, Braintree

Order. The hon. Gentleman is quoting amendment No. 2, and we are debating amendment No. 1. He will find that the amendments have been printed in the wrong order on the amendment paper.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Thank you, Mr. Hurst. Notwithstanding that, my opening comments apply also to amendment No. 2. Both amendments are from the advisory panel.

Subsection (2) is awkwardly worded, and that may lead to arguments among smart lawyers about its

meaning. We should concentrate on the illegality of the circumstances in which an object is removed. We must clamp down on people who excavate and remove valuable objects from archaeological sites without permission. Those people may then put the objects on the open market. As it stands, the clause could involve anybody for committing a crime that is quite unconnected with the act of removing an artefact. Was a mechanical digger used for excavation stolen? Was the person connected with the excavation the subject of a money-laundering action or a prosecution for tax evasion? Those matters are separate from the key charge of whether it was legal to remove the artefact.

We should concentrate on the object and its removal, not the legal status of the person or persons connected with the removal. If an object was removed and sold legitimately, but it was removed by a person who was guilty of other offences, it would, technically, be tainted.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

I have been listening carefully to the hon. Gentleman's argument. Subsection (2) (b) takes account of that point because it deals with illegality connected to the circumstances in which the object is removed. Perhaps I do not understand the hon. Gentleman's point. If so, he may need to explain it in greater detail, because it appears that the Bill already covers it.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I take the hon. Gentleman's point, and it is those sorts of technicalities that I hope the Minister will be able to address. I hope that he will be able to say that the clause would not give rise to the events that I am suggesting.

Someone could legitimately remove a cultural object from a site in Italy, for example, and legitimately sell it on the open market. That object could end up in London, in the possession of a legitimate art dealer. However, the circumstances in which the object was removed could pertain to the fact that the person who removed it from the site was the subject of criminal proceedings for some other matter. That is the act that could lead to it to becoming a tainted good, and that is the problem. The amendment says more specifically that it is the act of removal that counts in deciding whether a good is tainted, not the circumstances of the person.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I agree with the hon. Member for City of York (Hugh Bayley) on this matter. The circumstances in which an object is removed or excavated constitute the offence. I do not claim to be a clever lawyer—although I was a lawyer before I came here—but the Bill makes it clear that it is the circumstances of the removal, rather than the person doing the removing, that contribute to the tainting of the object.

Sitting suspended for a Division in the House.

On resuming—

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 2:54 pm, 14th May 2003

Before the sitting was suspended I had accepted an intervention, and I think that I can respond to the points that were raised. To understand the key point about the amendment, we must move

forward slightly to subsection (3)(a), which makes it clear that an offence is committed regardless of whether the excavation took place in the United Kingdom or elsewhere. To return to the Italian example, we would, in effect, import Italian law and impose it on the unsuspecting dealer in London who had come into possession of what would be defined as a tainted object. The object would presumably become tainted in perpetuity, regardless of whether it was excavated and sold on the market perfectly legitimately.

The person responsible for the excavation may, under Italian law, commit an offence that is unconnected with the excavation. He may, for example, carry out the excavation as a tax scam or as part of a money-laundering operation, or even using a stolen excavation machine. However, the object may be put on the open market legitimately. The person who comes into possession of it in London would not know, and could not be expected to know, that the person with whom it originated had committed other criminal acts. Under the present wording, however, he would be guilty of receiving a tainted good.

That is why the amendment would more tightly define the act of the excavation, clarifying that it must be illegal in itself. Such excavations should not be carried out in the first place. The amendment would separate them from other acts, which may be illegal—under the laws of other countries, in this case—and which may be committed by someone connected with the excavations, although the excavations themselves may not be illegal. I am not a lawyer, which is part of the problem, but I seek through this probing amendment to prevent lawyers from having complicated arguments in complex and expensive legal cases.

Through our probing amendment, we are looking for a keener definition of when an illegal act is committed. The person who would be prosecuted for handling what would become a tainted cultural object would have no knowledge, or could not be expected to have any knowledge, of offences that did not directly influence the removal of that object. I want the Minister to give us an assurance that prosecutions will not proceed on that rather less justified basis.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Since I ceased to make my living from practising as a court lawyer, I have become increasingly enamoured of the idea that we should try to avoid legislation that gives rise to lengthy and complex legal debate. However, the provisions before the Committee are fairly straightforward, although they stand to be complicated by the amendment.

The words

''in the circumstances in which the object is removed or excavated''

make it fairly clear that the taint—what used to be called the vitium reale—derives from the act of removing, not from a character fault or any wrongdoing in other respects on the part of the person responsible for the removal.

Let us consider for a second the expanded rationale that the hon. Gentleman gave the Committee. He said that we should avoid prosecutions in relation to dealings in otherwise perfectly legitimate artefacts.

There would be a danger of such prosecutions if the amendment were made. It says that

''the removal or excavation, or any failure by any person involved in the removal or excavation to comply with procedures required in respect of that removal or excavation''—

it is a matter of style, but I would put in another comma there—

''constituted an offence at the time it occurred.''

Let us consider the circumstances in which a perfectly lawful excavation has taken place, and somebody unrelated to the immediate excavation has subsequently had to apply for an export licence or for registration of the fact that the artefact has been excavated. Under the wide provision in the amendment, the object would be tainted by the failure of a person involved in the removal or excavation to comply with the procedures required. The amendment risks widening the scope of the clause unnecessarily. The Bill is clear and concise, and there is no scope for debate.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health) 3:00 pm, 14th May 2003

I hear what the hon. Gentleman is saying, but I query whether applying for an export licence has anything to do with the removal or excavation of the object, which would have been a separate process.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Perhaps the export licence is not a good example. However, some post facto requirement, such as registration, which is not unknown, would relate to the removal or excavation of an item. There is a fairly obvious and direct connection. The Bill is perfectly adequate. Expanding for the sake of expansion is not a good idea. I hope that the hon. Gentleman will consider withdrawing the amendment.

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

I am grateful to the hon. Member for East Worthing and Shoreham for having tabled the amendment, because it is worth debating the matter. I have had extensive debates and I am grateful to Professor Norman Palmer, chairman of ITAP, and to Anthony Browne of the British Art Market Federation for their efforts to explain their concerns and suggest alternatives. I am not persuaded by the amendment. As my hon. Friend the Member for Orkney and Shetland says, there is a difficulty with introducing new problems into the scope of the clause.

My discussions highlighted a specific group of offences that could trigger tainting but which we would not intend to cover—those under health and safety legislation, which one can imagine being breached in the course of an excavation. An amendment that introduces the concept of failure to comply with procedures required in respect of removal or excavation explicitly points towards health and safety offences as something that would trigger tainting. That is not our intention.

We have a difficulty in trying to narrow down what we are seeking to achieve, because we are, as the hon. Member for East Worthing and Shoreham points out, relating the offence to all sorts of other jurisdictions. People need to understand how heritage protection law works in other jurisdictions and I hope that we can help them to do so. UNESCO has a major role in

trying to create a database, so that people can be aware of the legislation of other countries. We cannot be too prescriptive if we are creating an offence that can be triggered by a range of breaches of different people's heritage legislation. The Italian example, which the hon. Member for Wimbledon (Roger Casale) mentioned, is a good one. Italy has comprehensive heritage protection legislation, which works differently from that in the United Kingdom. Scotland, too, has different legislation. For example, its concept of the removal of archaeological objects is much wider than that in England, where scheduled ancient monuments have protection but objects outside them do not. I understand that, in Scotland, the removal of anything could constitute an offence.

Photo of Mr Roger Casale Mr Roger Casale Labour, Wimbledon

I am not an expert in Italian law. My understanding is that that legislation originates from international directives, conventions and agreements such as those that have been mentioned—for example, those UNESCO took from the EU. How those provisions are implemented in each case will differ and there will be definitional questions. However, we must not lose sight of the important international context of much of the work. We are not inventing this legislation in a vacuum. Much work has been done on which we can draw and which will also help us with some of the difficulties with different jurisdictions and co-ordination between different countries that have mentioned.

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

It is helpful of the hon. Gentleman to remind us that we seek to implement the legislation in an international context and of the important role of UNESCO.

I hope that the Committee can make it clear that we do not intend the offence to define objects as tainted simply through their association with an illegal activity that is not directly related to heritage protection and the trade in illicit cultural objects. Such matters will to a large part depend on the common sense of the prosecuting authorities. However, it would be helpful if the Minister could also clarify that what I describe is not the ministerial intention. The Bill's existing wording, with the reference to circumstances, should then stand. It is helpful to point out that we do not want extraneous offences to be dragged in. That is not the intention of any member of the Committee or the panel, or of those who drafted the original wording.

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

Although I understand the concerns that led the hon. Member for East Worthing and Shoreham to table the amendment and I wholeheartedly join him in resisting the notion that we should line any lawyer's pockets, his concerns are unfounded. The amendment would unnecessarily restrict the definition of a tainted cultural object and introduce uncertainties in the scope of that definition.

Under subsection (2), a cultural object is tainted if an offence is committed because of the circumstances in which it is removed or excavated. Drafted thus, the tainting of an object is not limited to those cases in which the removal or excavation of the object itself constitutes an offence. That is to ensure that the offence that the Bill creates covers not only conduct

that breaches local laws that prohibit the removal or excavation of cultural objects from monuments but those cases in which the conduct is in breach of laws that protect property generally—for example, theft.

The amendment would reverse that by apparently reducing the range of offences that are capable of giving rise to the tainting of an object under the Bill. It is unclear what the precise effect of the amendment would be, which is in itself a reason for the Committee not to support it. The effect would clearly be to include an offence that is triggered by the removal or excavation of a cultural object. However, in contrast to the current text of the Bill, which is clear, it is not clear whether offences such as theft would be included, where the process of removing or excavating can lead to the commission of the offence, even though the fact of removal or excavation is not an intrinsic element of the offence.

The second part of the amendment creates additional uncertainties. It enables the tainting of an object when it is excavated or removed in circumstances in which any person concerned fails to comply with procedures that are required in respect of the removal or excavation. However, it is not clear precisely what would be covered by the term ''procedures'' in that instance. The hon. Member for Orkney and Shetland drew attention to that. Let us consider, for example, a case in which an object cannot be removed without a licence. In such a case there is likely to be a stipulated procedure for applying for the licence, as well as for granting it. It is not clear whether the amendment would apply where a person had gone through the required procedures of applying for the licence but no licence was granted to him for the removal of the object. In any event, it seems questionable whether this element of the amendment will add anything in practice. It is likely that any removal or excavation without having complied with necessary procedures would make the removal or excavation illegal and therefore fall within the first limb of the amendment.

I am grateful to the hon. Member for East Worthing and Shoreham for expressing the concerns that have led to the amendment. There seems to be a concern that the Bill as drafted would allow the tainting of cultural objects where the offence has only a limited connection. It is important to bear in mind that a person can be convicted of an offence under the Bill only where his dealings are proved to have been dishonest. I hope that that gives the hon. Gentleman some comfort. Also, the words used in subsection (2) clearly require the process of excavating or removing the object to form part of the offence in some way. Offences that are wholly unrelated to the process of excavation or removal—such as a breach of foreign export laws, a breach of local VAT regulations, an assault on an archaeologist or damage to excavation equipment—would not taint the object. For those reasons I hope that the hon. Gentleman will withdraw his amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I said that this was a probing amendment and I am grateful for those definitions of what would not be caught. I do not wish to detain the Committee. We need to move on, and in those

circumstances I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I beg to move amendment No. 2, in

clause 2, page 2, line 3, after 'of', insert 'the fabric of'.

The first amendment on the Order Paper concerns the definition of what constitutes part of a building. That seems to be a common-sense and straightforward amendment. However, I gather that it has fallen foul of the parliamentary draftsmen because of the terminology used in this legislation. It is important to get it right. It is a probing amendment, but there is an important point at stake.

I gather that the problem was not raised with the Ministerial Panel on the Illicit Trade in Cultural Objects after it was set up in May 2000. If it had been, that panel would have consulted groups such as English Heritage and other learned bodies about how it should be tackled. Although there have been consultations with the Department on this subject, certain people whom it is assumed have been consulted—I name one, Salvo—have not been consulted on quite a few matters in the Bill. It is important that we get the matter right for all concerned. To make clearer the definition of part of the building, I propose that we add the three words ''the fabric of'' before ''the building or structure'' in subsection (4) of Clause 2.

I shall refer to two brief cases. In the case of Lord Haselrigg, the owner of a country house at Nowsley, the local planning officer visited his listed building some time ago and said that certain paintings that Lord Haselrigg wished to sell were also covered by the listing and could therefore not be sold. Subsequently, an expensive and lengthy court case took place over whether the paintings were listed as part of the fixtures and fittings of the building. I believe that Lord Haselrigg's case was upheld, but not before an awful lot of lawyers had earned an awful lot of fat fees to argue the technicalities of the case. The test that is applied is an antiquated one of Victorian terminology called the degree and purpose of annexation test.

A second case concerned Leighton hall, a stately home in Wales, which is a Grade 2 listed property with important Pugin interiors, originally made for John Naylor who commissioned the building of the house. The owner attempted to sell three chandeliers and a Wagner clock. Even though the original owner had purchased those items after the house had been built, the Victorian Society objected to the sale, saying that the items were part of the building and should not be removed from it. In that case, they found against the owner, even though the objects were added after the building had been built.

There is a concern that certain people, perhaps a particularly zealous member of the Victorian Society, would try to make the case that certain parts of the furnishings within a building constitute the fabric of building. I have nothing against the Victorian Society—many good folk up and down the country belong to it—but owners who are quite legitimately

trying to sell paintings or chandeliers could be limited. Owners are usually selling items in order to pay the outrageous levels of death duties imposed by this and other Governments, but that is another matter; they may be selling them in order to keep their stately home in good order. Even if cases do not succeed, they will result in much expense and legal wrangling. It must be made absolutely clear what constitutes the fabric of a building.

There are similar cases. How do we regard some of the Pugin furniture within the Palace of Westminster? Many would regard it as part of the fixtures and fittings. If an over-zealous Speaker—in league with the Serjeant at Arms—decided to flog off some of that furniture, he might be challenged on whether it forms part of the fixtures and fittings of the building. That is an interesting argument, but in the case of paintings and chandeliers, it is quite clear that they do not constitute part of the building. If the term was ''fabric of the building'', I think that such items would not be deemed to constitute part of the buildings.

Photo of Kim Howells Kim Howells Parliamentary Under-Secretary, Department for Culture, Media & Sport 3:15 pm, 14th May 2003

Does the point about what constitutes the Palace of Westminster indicate a discourse within the Conservative party about a means of raising funds?

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

In the few short years before the next Conservative Government comes to power, the economy will have reached such a parlous state that we may have to resort to such alarming measures to put the economy back on an even keel, and I am sure that the next Conservative Government will do so in short order.

I do not want to stray from the important point and take us beyond the two hours that we have been allotted. There are many other examples of such items, such as King Arthur's table in Winchester. It has been in Winchester for many centuries and although its origins have not been properly discerned, many would say that the table constitutes part of the building in which it hangs. Arguably, however, it is quite separate from the fabric of the building—it certainly was not there when the building was built. There are many examples of how it may be quite legitimate to differentiate between what is part of a building—for example, the gargoyle that was carved on to Salisbury Cathedral at the time of its construction—and what has later been added to adorn the appearance of a building.

Photo of Shona McIsaac Shona McIsaac Labour, Cleethorpes

I can see what the hon. Gentleman is getting at but does he not agree that context is vital when we are dealing with cultural objects? He is arguing that certain things could be removed from a building, resulting in the loss of that context. That is what worries me about his amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

What constitutes context is a highly subjective matter. There are various other measures that restrict owners of property disposing of items from a certain context. I am addressing an entirely different matter. Paintings and chandeliers are two perfectly good examples. In most circumstances, they could not be described as part of the fabric of the building. Context is raised under entirely different laws.

I cannot see a downside to adding the closer definition. It takes nothing away and it makes it no easier to destroy buildings of great archaeological or architectural interest. A lintel from Stonehenge would patently be part of the building, but some of the articles that I have mentioned are not part of the fabric.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

May I suggest one possible disadvantage? Each case will be judged on its facts and circumstances. As the law stands, the courts are required to decide whether an article is a fixture or a fitting and therefore whether or not it is part of the building. If we introduce the term ''fabric'', the courts will have to decide between the three categories. That is surely a downside.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

Proceedings under case law built on the definitions in the Planning (Listed Buildings and Conservation Areas) Act 1990 have gone either way. I would hope that by inserting ''fabric'', case law could quickly build up, which would allow a definition of ''fabric'' as part of a building rather than something added to it. As it stands, people could be prosecuted, or cases could be brought against them that would prove expensive, if in perfectly good faith they tried to sell a part of a stately home such as a painting or a chandelier that was not part of the home when it was constructed—which is the point of listing the building.

This is a probing amendment and I would be delighted if the Minister gave some keen definitions of why the trap that I have described would not occur. I believe that amendment would add to the Bill. Those who support the amendments want the Bill to work. We are not trying to water it down—quite the reverse. The danger is that vexatious cases could arise if we do not have the tighter definition that I propose in the amendment.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

I do not want to detain the Committee; I know that every member wants to make progress. However, the hon. Gentleman seems momentarily to have lost sight of the purpose of the Bill, which is to strangle the trade in looted cultural objects. Regardless of whether it is a chandelier or lead from the roof of a palace, I believe that we need the wider definition.

I shall make my point briefly. We are told in the e-newsletter of the Society of Antiquaries that the Society for the Protection of Ancient Buildings has expressed concern that it is not only great cultural objects such as paintings or Roman statues that need to be protected—the Bill would protect such items—but that

''there is a worrying trend towards the theft of humbler bidding materials. Where once thieves targeted the lead on church roofs, they now strip Cotswold barns of roofing tile, demolish dry stone walls for their limestone, steal bricks from estate walls (as happened at Melton Constable just before Christmas last year), and lift paving slabs from the very streets of historic towns.''

It also says that the theft of paving slabs has been fuelled by garden makeover programmes on television.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

All the items that the hon. Gentleman mentions are clearly part of the fabric of buildings. Lord Hazelrigg did not loot those paintings:

they were legitimately purchased by his predecessors and he had every right to sell them without their being considered part of the fabric of the building. There is a clear distinction.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

I differ from the hon. Gentleman. Which part of what building were the dry stone walls? Which part of what building were the 40 paving slabs removed from around the war memorial in All Hallows' churchyard in the London borough of Camden? They were not part of the fabric of the church, but they should have been protected, because they were part of the structure. The Bill refers to cases

''where the object has at any time formed part of the building or structure''.

If we include the words ''the fabric of'' the building, we narrow the remit of the Bill too far.

Photo of Robert Key Robert Key Conservative, Salisbury

That is an important point. Does the fabric of the building include the curtilage of a building, which is a precise legal definition that is used in other legislation? If it includes the curtilage, it would include dry stone walls and gargoyles.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

I take the hon. Gentleman's point. However, we do not have to make that definition, or run the risk of judges making a definition that we do not want, if we do not include ''the fabric of''. Although I understand the reason why the hon. Member for East Worthing and Shoreham has tabled the amendment, it would undermine the objective of the legislation, so I hope that he will withdraw it.

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

I have spent more time considering this amendment than any other part of the Bill, so it is worth allowing it a reasonable amount of time in Committee. I am grateful to the hon. Member for East Worthing and Shoreham for having put the case and allowed us to debate it.

There is a common understanding of the objective of this part of the Bill, but concern about how it might work in practice. The objective is to prevent people from hacking off pieces of important buildings and selling them on. The inspiration behind it was, from the point of view of ITAP, the damage done to buildings such as ancient Cambodian temples that were cut away over many years—the ITAP report has on its front cover a picture of sculptures that were part of Angkor Tom temple in Cambodia. We know where the thinking started, but we have to work out how to apply it in the UK, as it has to relate to the listed building legislation that defines how buildings are protected.

Material that has been taken from a listed building without consent has the potential to be tainted, as an offence will have been committed and it will fall within the scope of the dealing offence. It is therefore important to clarify the scope of the material that the Bill intends to incorporate. We have before us two proposals on how to define that scope. The original wording says that an object must be part of the building, and the proposed wording is that it must be part of the fabric of the building. I understand that the intention of the amendment is to make it absolutely clear that only material that is a physical part of the building is covered. Clearly, portable material such as

furniture, wall hangings and free-standing statues that are in a listed building is not covered by either definition.

The hon. Member for City of York made the point that we are not trying to deal with furniture. There is no suggestion in either wording that furniture or free-standing objects are likely to be covered. I understand that there is case law that stems from consideration of listed building consent cases, which relates to the wording that the hon. Member for East Worthing and Shoreham has set out. He mentioned two such cases. They require two tests to be applied when considering whether consent is needed: the degree of the attachment of the object to the building and the purpose of its annexation to the building. Those tests are defined and they are evolving in case law.

There have been cases that have tried to establish when listed building consent is required. That provides a rationale for the application of the dealing offence. Essentially, if an object were deemed to require listed building consent for its removal, the same test would mean that such an object would be removed without such consent. In practice, that means that a dealer would in doubtful cases have to ask the potential vendor of an object whether he had listed building consent for the removal of the object or clear advice from the local authority that no such consent was necessary. If he had not sought such consent and there were good reasons to believe that consent would be needed, the dealer would run the risk of knowingly dealing in a tainted object if he bought it. The onus would fall back on the vendor. If he either sought advice and was informed that no consent was needed or obtained the consent, he would be free to sell the object and a dealer would be free to buy it without risk.

The proposed wording, adding the words ''the fabric of'' is initially attractive in that it appears to define more closely the object as needing to be a physical part of the building. My understanding is that there is no body of comparable case law that involves the concept of part of the fabric of the building that will apply in the present case. If the amendment were passed, we would have to define the concept anew. Rather than clarifying matters, that would introduce an element of uncertainty into the Bill.

When faced with the choice between the two, I feel that on balance the argument falls in favour of the original wording, which picks up on some of the points that my hon. Friend the Member for Orkney and Shetland made. That is not least because the Bill provides a workable test for the vendor and dealer to follow, namely that of seeking advice from the local authority in accordance with listed building regulations. Although there are still some difficult cases that might require legal arguments to resolve, most instances are much more clear cut than those that have been cited. Above all, the provisions allow for a simple course of action for the dealer in such cases, which is to secure from the vendor an assurance either that no consent is deemed necessary by the local authority or that such consent has been sought and obtained.

There would be no such simple course of action in the case of the proposed wording: potentially, different tests from those under listed building regulations would be applied under the Bill's wording in relation to the fabric of the building. That would create more business risk for dealers because they might have to deal with complex court cases to define whether an object that was deemed to have been illegally removed under listed building legislation, given that the test showed that it was part of the building, was or was not part of the fabric of the building for the purposes of the offence in the Bill.

I therefore respectfully suggest that it would better for the dealing trade to avoid the uncertainty that would be caused by trying to maintain two separate definitions—one to do with whether an offence has committed by breaching listed building legislation and one for whether the item in question forms part of the fabric of the building, thereby causing the dealing offence to kick in. It would be much more straightforward to evolve a simple body of law around ''part of a building'', rather than to try to maintain the two separate definitions. I appreciate that that is contentious, but the mechanism of going back to the local authority to inquire—as anyone who wants to make alterations to a listed building should do—will offer the greatest protection to dealers.

Sitting suspended for a Division in the House.

On resuming—

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry) 3:47 pm, 14th May 2003

I think that in my earlier comments I made the substantive case as to why the single test of the wording ''formed part of the building'' is the appropriate one. We were talking in the context of the UK. It is also important that we clarify how this legislation will work in the international context before we move on. My understanding of the way the Bill will operate is that there are two conditions if an object that has been removed from a building is to become tainted. The first is that the offence was committed in another country and the second is that it also passes the part of a building test in our legislation. If a third country had its equivalent of the listed building legislation that covered all objects such as furniture, free-standing statues and so on, those objects would nevertheless not be covered by the Bill. The fact that they were removed from another country in a way that constitutes an offence is not enough on its own to be covered by the Bill. Two tests would be applied. First, that the offence had been committed and secondly that the objects formed part of the building.

The aim is to give certainty to people trying to trade in that area. They can understand that if they acquire some goods, from Germany, France or wherever, that may or may not have been part of a building, they need to apply the tests to understand whether they are at risk under this legislation and they should look at the comparable body of UK case law, which defines part of a building. If an object is outside that—if it falls into the category of furniture, free-standing

objects and so forth—they will not be at risk and do not need to worry about the application of this legislation. It is important to clarify that matter because some other countries will have a much broader definition in their listed building legislation and I do not include that concept of part of a building.

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

The hon. Gentleman has done an excellent job of tackling the concerns raised by the hon. Member for East Worthing and Shoreham. I will be brief.

On removing features from buildings and structures, subsection (4)(a) provides that an object will become tainted only if it has at any time formed part of a building or structure of historical, architectural or archaeological interest. That means that the illegal detachment or amputation of structural, architectural or ornamental elements of a building or structure—fireplaces, mantelpieces, doors, door-hoods, floors, panelling, painted wall plaster, roofing and so on—will be tainted. However, the removal of objects that may be contained in and even integral to the function of the building will not be tainted. I hope that that is clear. Some examples of objects that will not be covered are chairs, tables, mirrors, and works of art that are hung in a building.

To give an example, the Roman Venus from Newby hall near Ripon would not come under the scope of the offence since the statue has never been attached to the building, even though it is integral to the architectural design. The Bill seeks to close the loophole whereby, although it is an offence to remove integral parts of a listed building or structure, whether they be statues hacked from the fa¢ade of a cathedral or fireplaces ripped out of a Georgian mansion, it is not a crime to sell them on.

I understand that there has been some concern in trade circles, which has been repeated this afternoon, that the Bill might cover portable furnishings. I therefore repeat the words of the hon. Member for Sheffield, Hallam and state categorically that we do not believe that there is any justification for that concern. It is certainly not the intention to include such objects within the scope of the Bill. The requirement that the object must have ''formed part of'' the building or structure is sufficiently clear to exclude objects that are in no way integral to the form or structure of a building. Much will depend on circumstances, but in that respect the Bill aims to make as clear a distinction as possible between fixtures that are integral to a building or structure, and furnishings that are not.

The introduction of the term ''fabric'' would appear to reduce the scope of the criminal offence, but in a wholly unpredictable manner. It would also run the risk of excluding objects that should be covered by the Bill. I considered two definitions of ''fabric'', one from my slim but concise Oxford dictionary—6th edition, 1976—and the other from the newer, ''shorter'' dictionary, which is actually much longer than my concise version. The definition of fabric in the newer Oxford dictionary is,

''the basic structure (walls, floor, and roof) of a building''.

It is strongly arguable that that definition would exclude such objects as architectural sculpture, panelling and fireplaces, and in so doing would seriously undermine the scope of the Bill.

The purpose of the amendment is to reduce the types of object removed from buildings that would fall within the scope of the offence created by the Bill. Although it seems clear that the amendment will have a narrowing effect, the wording that is used makes it unclear as to the precise extent to which it will have such an effect. Given the dictionary definition of ''fabric'', however, there is a risk that the amendment will have a substantial narrowing effect and leave unprotected many objects such as statuary, panelling and fireplaces, which ITAP clearly intended should be protected.

For those reasons, I hope that the hon. Member for East Worthing and Shoreham will withdraw the amendment.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

I am grateful again to the Minister and to the hon. Member for Sheffield, Hallam for giving greater definition to what they do not see as being brought within the scope of the Bill. However, I still have my doubts. The cases to which I alluded show the dichotomy in relation to the application of some of the past definitions.

There is also the problem of the way in which the definitions in the law of countries overseas would apply in this country. It is my understanding—I am sure that the Minister would agree—that if an especially draconian set of laws defining what constitutes part of a building were brought into force in another country and tainted goods from there ended up in the UK, the UK definition of the building or structure would apply, rather than the definition applied by that other country. That is an important point because we can argue long and hard about the way that definitions should apply to the UK, but we are talking about objects that might have originated overseas, where legislation may be different.

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

The hon. Gentleman is seeking comfort on this matter and I can give it to him. The test is whether an item forms part of the building in the ordinary and natural meaning of those words. It is not a question of whether the removal is contrary to another country's definition.

Photo of Tim Loughton Tim Loughton Shadow Spokesperson (Health)

The Minister has indeed given me comfort. However, it is an important point and I do not think that we have fully gone over that ground today. It is ground that is nectar to many lawyers. This is, none the less, another probing amendment. We have had a useful discussion on definitions by which people would not be caught by the wording of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clauses 3 to 5 ordered to stand part of the Bill.