OFFENCE OF DEALING IN TAINTED CULTURAL OBJECTS (Hansard, 4 July 2003)

§ Mr. Richard Allan (Sheffield, Hallam)
I beg to move amendment No. 1, in page 1, line 2, leave out from "if" to end of line 2 and insert— he dishonestly deals in a cultural object that is tainted, knowing or believing that the object is tainted".

§ Madam Deputy Speaker (Sylvia Heal)
With this it will be convenient to discussamendment No. 3, in page 1, line 4, leave out subsection (2).

§ Mr. Allan
I shall speak to amendment No. 1, which was tabled by the hon. Member for East Worthing and Shoreham (Tim Loughton) and me. I shall also address amendment No. 3, which was tabled by the hon. Members for Christchurch (Mr. Chope) and for Gainsborough (Mr. Leigh) and, I hope, demonstrate why it is unnecessary and unhelpful. I am pleased that the Minister for the Arts, who has been named Minister of the year, is in the Chamber to talk about the Bill. I hope that she has enjoyed getting up to speed on heritage legislation and the detail of putting online databases in libraries over the past week or two.
Amendment No. 1 is the result of a lot of work done by Anthony Browne of the British Art Market Federation, an organisation that has approached the Bill in a constructive manner. Its members will be seriously affected by any criminal legislation, as it represents the dealer community against whom prosecutions may be made. It has sought to make sure that the offence is properly and tightly drafted so that the legitimate art market, which Mr. Browne represents and which seeks at all times to avoid dealing in tainted cultural objects—objects that have been removed illegally—can conduct its business properly. However, the criminal offence remains for people outside the legitimate market who knowingly and dishonestly deal in such material.
Amendment No. 1 seeks to redraft and clarify the offence so that if someone is prosecuted, but the object turns out not to be a tainted cultural object, the offence does not apply. There was some questioning of the offence in the Bill as originally drafted, and we have tried to keep the definition tight in the spirit of private Members" legislation. We do not want drafting to be all over the place so that many offences arise—we want to keep the offence specific. In the original drafting of the Bill, if an object turned out not to be tainted, a prosecution could not take place, but we accept that there was ambiguity. The wording proposed in amendment No. 1 is a better way to deal with the problem so that we can be certain about the offence and assure people in the market that they will not be prosecuted if it turns out that a cultural object is not tainted.
The Bill aims to have a deterrent effect. We want to ensure that the protection of sites and monuments, whether in the UK or abroad, is as robust as possible so 649 that people know that there is no market for tainted objects. It is not intended that the offence should be used regularly, but the provision should be regarded as a deterrent. There must be a strong message that someone will be prosecuted if they knowingly and dishonestly deal in tainted cultural objects. The threshold is set quite high, and the prosecution is required to prove three things. It has to prove dishonesty, the fact that something is a tainted cultural object—amendment No. 1 makes that even clearer, which I hope gives assurances to the hon. Member for Christchurch—and that the individual knew or believed that that was the case.
I understand why the hon. Member for Christchurch found clause 1(2) problematic, and I am grateful to him for giving us an opportunity to try to elaborate on the need for its inclusion in the Bill. If he has further questions once he has discussed his amendment, I would be happy to deal with them.
Subsection (2) is important. Once a prosecution has reached its threshold, we do not then wish there to be an opportunity to adopt a line of defence that effectively says that the individual did not know or believe that the object was a cultural one. That would open up greater scope for the defence than we would wish. The prosecution would already have had to demonstrate that it was a tainted cultural object, but our advice from counsel at the time of drafting was that by not explicitly ruling out this line of defence, as in, "Yes, it may have been a tainted cultural object, but I did not understand that it was a cultural object within the definition of the Bill", we would unnecessarily and against the line of policy narrow the scope of prosecutions that could take place or broaden the scope of defences.
That was run past the ministerial advisory panel on the illicit trade in antiquities and it was comfortable with that. It represents all sides of the business—those on the heritage side and those on the art dealing side—and it accepted that the current wording was appropriate. I initially queried why subsection (2) was necessary, but I hope that the hon. Member for Christchurch will be able to accept that there is a logic to it, which is to seek the appropriate balance whereby the prosecution must rightly meet a high threshold while not allowing scope for defences that would mean that cases would be extremely difficult to bring even where there was strong evidence that somebody was dishonestly and knowingly dealing in a tainted cultural object.
I am perfectly willing to answer further queries, which I am sure the hon. Gentleman will quite properly have, but I hope that at the end of the debate, having explored the issue and had some assurances about how the Bill will operate, he will not feel it necessary to press his amendment.
I hope that the House will be willing to accept amendment No. 1, which, as I say, is an effort to reassure people, particularly those on the art market side who have worked constructively on the Bill, that the offence will be appropriately used and prosecutions brought where something is genuinely a tainted cultural object, and that there is no doubt that if something is not a tainted cultural object prosecutions will not be brought, which is the purpose of amendment No. 1.

§ Mr. Christopher Chope (Christchurch)
I am grateful to the hon. Member for Sheffield, Hallam (Mr. Allan) 650 for the way in which he has introduced his amendment and commented on mine. I hope that the Bill will reach the statute book and I am sorry that he has said that he will not seek re-election at the next general election, but that is probably because he thinks that once he has a Bill on the statute book he has achieved all that needs to be achieved in this place. [Interruption.] As my hon. Friend the Member for Uxbridge (Mr. Randall) says, the hon. Gentleman will become a cultural object, but I shall not say any more about that at the moment.
Amendment No. 3 would ensure that a person would have to know or believe that the object was a cultural one before he could be convicted of an offence. The hon. Gentleman, in introducing his amendment, made it seem almost as if there would be large numbers of prosecutions, but paragraph 37 of the explanatory notes states: Given that the level of prosecution is estimated at probably not more than one every two to three years costs to Courts and enforcement agencies will be de minimis. If that is so, why try to prosecute somebody where there is evidence that they did not know that the object that they were dealing in was a cultural object? If my amendment was accepted, that problem would be overcome. Obviously, there are issues relating to dishonesty, and that would be for a jury or court to determine, but one can imagine many situations in which someone would be handling an item that they did not realise was a cultural object but which may have tremendous significance. If they did not know it was a cultural object when they were handling it, why should they be liable to criminal penalties for committing an offence?

§ Mr. Allan
There is a requirement on the prosecution to show that the dealer knew or believed that the object was tainted, so the dealer must know or believe that the object had been illegally removed from an ancient site or building. That requirement is on the prosecution. Having demonstrated all that in order to bring a prosecution in the first place, we seek to avoid someone then entering into a lengthy defence whereby they try to prove that they did not know it was a cultural object. We felt that it was inappropriate that, having proven that they knew that the object had been illegally removed, they could try to prove that they did not know that it was a cultural object, with all the expert witnesses and paraphernalia that that may involve.

§ Mr. Chope
I take the hon. Gentleman's point. I know that he has looked into the matter carefully and that his amendment tightens up the situation significantly, and in the light of that I shall not seek to press the amendment to a Division.

§ Tim Loughton (East Worthing and Shoreham)
I wish to add a few comments in support of amendment No. 1, to which I have added my name. It may, on first sight, appear purely a rearrangement of words, which it is, but one of the points that I was eager to make in Committee was that we needed the Bill to be watertight and not to leave various things to chance that could be the subject of lengthy and costly legal wrangles in court. As with so much legislation, it is essential that we get it right and closely defined in this place rather than give further business to lawyers outside.
651 I, too, wish to mention Anthony Browne of the British Art Market Federation, who has been exceedingly helpful and is also a member of the panel seeking to ensure that the legislation will work and is acceptable to the vast majority of honest dealers and people with an interest in and a business in dealing with cultural objects.
Amendment No. 1 is a useful tidying exercise that will remove any remaining doubt about the thrust of the Bill and what a tainted object is. Proportionality is also necessary. The hon. Gentleman has already mentioned the high threshold of burden of proof on the prosecution in order to prove that the object being dealt with is a cultural object. Therefore, I fully support the amendment. My hon. Friend the Member for Christchurch (Mr. Chope) has raised some interesting points, but subsection (2) is essential; otherwise the Bill would give succour to the lawyers in long-drawn-out legal wrangles.
What are expert dealers doing with objects if they do not know them to be cultural objects in the first place? It really is a bit of nonsense to be able to use that as a defence. If a dealer tries to claim that he did not know that an Egyptian artefact was a cultural object, he has no business being a dealer in such artefacts in the first place.

§ Mr. John Randall (Uxbridge)
Is my hon. Friend saying that the Bill is purely for those who are expert dealers? Presumably, it would affect anybody who is dealing in tainted cultural objects. It could be someone who could not be expected to know an object"s exact provenance and merit.

§ Tim Loughton
My hon. Friend is right. This must cover everybody. Only a small proportion of people making a supposedly respectable business out of this may be flouting the law. But at the same time, this is big business among criminal classes. In many cases, they are looting to order and know exactly what they are looting. Therefore, it applies to everybody, but we do not need to give a line of defence to people involved in criminal activities by which they could wriggle out of the terms of this highly necessary Bill.

§ Dr. Andrew Murrison (Westbury)
My hon. Friend the Member for Uxbridge (Mr. Randall) touched upon an important point, because we are dealing not just with big London dealers but with, for example, scrap reclamation yards. Under those circumstances, the definition of a cultural object is important. What is a cultural object? It could be a doorknob removed from an old house in this country; it is not just confined to Egyptian artefacts.

§ Tim Loughton
My hon. Friend makes a good point. Some concerns have been raised in the press by those engaged in architectural salvage. We have examined the issue in great detail, and the panel has considered all the possibilities. The purpose behind the Bill is not to make criminals out of people who sell doorknobs that turn out to have come from a stately home of unique provenance and can be defined as cultural objects. The Bill is not 652 targeted against that sort of legitimate business. There are enough safeguards in the Bill to ensure that those involved will not fall foul of the proposed legislation. The experts who form part of the panel have taken all that into consideration, but it is a fair point for my hon. Friend to make.
I support amendment No. 1. I suggest to my hon. Friend the Member for Christchurch that although his concerns are noted, the effect of amendment No. 3 would be to weaken the intentions behind the Bill and to provide a line of escape for those on whom we are seeking to clamp down.

§ Mr. Randall
The purpose of amendment No. 1 has been well explained, and I agree that it should be supported. I say to my hon. Friend the Member for Christchurch (Mr. Chope) that perhaps I had a slightly jaded view of the legal profession. I shall be careful because I do not wish to come up against members of it. If we removed subsection (2), it would make it easier for prolonged wrangling to take place. There are many opportunities. I can imagine hours of discussion over what is a "cultural object" and whether it is of historical, architectural or archaeological interest. I was pleased to hear that the expectation is that there will be relatively few prosecutions; otherwise, shares in the legal profession would be increasing dramatically in value.

§ Dr. Murrison
There is some confusion in my mind, and I suspect that there is confusion among those who might be affected by the Bill. What exactly do we mean by "cultural objects"? For me it means, for example, the treasures that are being looted from Iraq. What is less clear is what a cultural object means in the context of the United Kingdom. There is a scrap reclamation yard close to my constituency. It is an enormous site that deals in a raft of bits and bobs that people recycle and put into their homes. It is a big business. I am concerned about what the Bill would mean for that business. As I understand it, there would be an onus on the operator of the business to define in some way, or to be clear in his mind, the provenance of the various objects in which he is dealing. I agree that this is potentially a bean feast for lawyers as they define exactly what is meant by extraordinary terms such as "tainted" and "cultural". What is meant by "historical"? Does that mean an object from a listed building, for example? Another term is "architectural"; another is "archaeological interest". The definitions are complex.

§ Tim Loughton
I am interested in my hon. Friend's point. There are checks and databases for stolen and looted goods of cultural and archaeological interest that are open to reputable dealers, be they London art dealers or auction houses. They are open also to others involved in archaeological salvage. They are available for items above a certain value, and it is possible to check whether items have been looted. Those who are dealing in items of larger value can make a number of checks. That would prevent them from falling foul of prosecution.

§ Dr. Murrison
I am grateful to my hon. Friend. If it were to be a defence, and clearly defined as such, that checking on a database would prevent the sort of person 653 whom I have described from falling foul of the law, that would be fine. However, despite my hon. Friend"s clarification, I am still not clear whether that would be the case.

§ Mr. Randall
I shall take as an example something in which I have a great interest. In Kosovo, many monasteries and churches have been destroyed. Undoubtedly, many of the icons have been removed. They may not be historical, but they are of religious importance. They would not be on any database, but in my opinion they would be tainted.

§ Dr. Murrison
I agree with that elegant description, and I am touching on precisely that. What is a cultural object? What is clearly a cultural object and what is not? For example, a door fitting or a piece of panelling from an elderly house in this country does not quite fit the bill, to my mind. However, it might well be on the database that has been described, whereas the truly cultural object given in the example of my hon. Friend the Member for Uxbridge (Mr. Randall) would not be.

§ Mr. Allan
I understand the concerns that the hon. Gentleman has expressed about the architectural salvage industry, which have also been expressed to me. While the definition of "cultural object" is quite broad, the definition of "tainted cultural object" is quite narrow. For an object to be tainted, an offence must have been committed in its removal. In the context of UK buildings, that means that someone must have taken it contrary to listed building consent. The archaeological salvage industry does not have to worry about old buildings that are not listed. Material in old buildings that is taken without breaching listed building consent is not covered by the tainted definition, which as I have said is extremely narrow.

§ Dr. Murrison
We are getting closer to the clarification that I was seeking. However, there are important buildings in this country that, for various reasons, are not listed. For example, certain estates are exempted from being listed buildings. I am still not entirely clear about the matter because it is not defined in the Bill, and perhaps it should be. If we are talking about listed buildings—perhaps that is not a bad definition—I suggest that that should be specified in the Bill.

§ The Minister for the Arts (Estelle Morris)
I join the debate part way through. I read the debates on Second Reading and in Committee. I congratulate the hon. Member for Sheffield, Hallam (Mr. Allan) on introducing an important Bill. He has driven it through its many stages with great enthusiasm.
Like other hon. Members, and at the risk of repeating myself, which rarely happens in the House on a Friday morning, I support amendment No. 1 and resist No. 3. In some respects, they are different sides of the same coin. Amendment No. 1 adds protection and No. 3 goes too far. It would provide a bean feast for lawyers. In the context of amendment No. 1, there is an argument that the Bill already makes things clear. However, it is right to clarify the provision beyond doubt. If the object was not tainted, an offence could not possibly have been committed. That is a common-sense interpretation. It is useful to have it defined in primary legislation.
654 I think that the explanation of "cultural" provided by the hon. Member for Sheffield, Hallam was perfect. If it is illegally excavated, that is by definition the point at which a criminal offence has been carried out. That answers the concerns that have been expressed about subsection (2). A person must know that the item has been illegally excavated, and why would it have been illegally excavated if it was not of cultural value? That is the important point. This is not a definitional debate about what is of cultural value and what is not. Illegal excavation offers the protection that individuals will need. Amendment No. 1 offers protection in the sense that if something was not taken illegally, it could not have been an offence.

§ Mr. Randall
I presume that when the right hon. Lady says "illegally excavated" she means illegally removed. To me, excavated means dug up.

§ Estelle Morris
Indeed. The Bill is about dealing with items that have been illegally removed as well.
I join the hon. Member for Sheffield, Hallam in supporting amendment No. 1 and resisting amendment No. 3.

§ Mr. Allan
I am grateful to the hon. Member for Christchurch (Mr. Chope) for the spirit in which he moved his amendment and for indicating that he will not press it to a vote. I am also grateful to other hon. Members for taking part in the debate. The hon. Member for East Worthing and Shoreham (Tim Loughton) has been a tremendous supporter of the Bill throughout and he put the case for amendment No. 1 extremely effectively.
The hon. Member for Westbury (Dr. Murrison) was right to raise those concerns. I put on the record an apology for not having sufficiently consulted the architectural salvage trade in the early stage of the drafting of the Bill. That was an oversight on my part. I have since spoken to Mr. Thornton Kay of Salvo and other architectural salvage people. They told me of their concerns, which are not entirely resolved. The hon. Member for Westbury expressed the remaining concerns. I believe that the Bill does not do what some people think it does, but it is difficult because of the way in which it is drafted.
The key to the narrowness of the Bill is not in clause 1, but in clause 2, which refers to illegal removal. In the context of UK law, for an offence to be committed there must be a breach of the law protecting ancient monuments or of the law on listed buildings. That is quite narrow, and I do not believe that the architectural salvage trade has much to fear. By way of further reassurance, my understanding is that in the case of architectural salvage, the onus is on the prosecution to prove that the individual knew that an object had been taken from a listed building without consent. The onus is not on the individual engaged in architectural salvage to prove that he is innocent; the prosecution must prove that he is guilty and acted deliberately, knowingly and dishonestly. That is a considerable burden of proof.
One would expect a reasonable level of checking, and I understand that Salvo has a good code of conduct for the architectural salvage trade, which states that all 655 members of Salvo should carry out such checks. Anyone conforming to the Salvo code his nothing to worry about, but I am grateful to the hon. Member for Westbury for raising the matter and allowing me to put on the record my apologies for the fact that we did not have more consultation with the architectural salvage trade at an earlier stage.
The hon. Member for Uxbridge (Mr. Randall) was right to speak about non-experts. The prosecution that occurs every year or two is likely to be directed not at somebody engaged in the legitimate trade, but probably at the criminal gangs to which the hon. Member for East Worthing and Shoreham (Mr. Loughton) referred and which we know are operating in the field. The kind of deal that is likely to take place involves somebody arranging a deal with somebody in Afghanistan or Pakistan to import Buddhist scrolls and sell them on, or involves iconic material from countries such as Kosovo or Bosnia, where there is disorder. We want to target such people; we do not want them to be able to say, "I'm not an expert in the field, I'm not a dealer, I'm just an ordinary criminal, so I didn"t understand that it was a cultural object." We do not want them to have such a defence. If the object was illegally removed and was tainted, we want to be able to get them for it.
I hope that, with those assurances, the House will accept that amendment No. 1 provides a useful tightening of the Bill, and that we do not need to remove subsection (2), as proposed by amendment No. 3.