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

Part of Dealing in Cultural Objects (Offences) Bill – in a Public Bill Committee at 3:15 pm on 14th May 2003.

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Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry) 3:15 pm, 14th May 2003

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—