HL Deb 24 February 1994 vol 552 cc795-804

7.25 p.m.

Baroness Trumpington rose to move, That the draft regulations laid before the House on 15th December be approved [4th Report from the Joint Committee].

The noble Baroness said: My Lords, your Lordships may remember the important debate that was held in your Lordships' House on 3rd November 1992. This followed on from the report of the Select Committee on the European Communities on the draft EC Regulation and Directive on Cultural Goods. These instruments were to be on the agenda of the Internal Market Council the following week.

Your Lordships paid particular attention to the provisions in the directive, calling for several improvements. Particular concern had been expressed in the committee, and reiterated again by my noble friends Lord Carrington and Lord Gowrie, that the provisions of the regulation and directive would be onerous for the art trade. giving rise to greater uncertainty in its operation, adding to costs and bureaucracy, and having little direct benefit to the United Kingdom.

Introducing the debate, my noble friend Lady Elles spoke of five features needing improvement. The first was the removal of coins and other archaeological items of minor value from the EC licensing regime. We achieved this with.1 derogation in Article 2(2) of the regulation, and have since produced guidelines on how this derogation should work. These guidelines were agreed between the British Museum and the relevant trade associations.

Secondly, the burden of proof, which originally lay on an owner to prove his good faith, is now according to the procedures in each member state. For this country, it would mean the onus would be on the requesting member state to establish that the owner did not act in good faith, just as the member state will also have to prove that the object is a national treasure which was illegally removed after 1st January 1993. As the noble Viscount, Lord Colville of Culross, rightly surmised, the exact working of this would be for the courts and not for these regulations.

Thirdly, my noble friend called for clarification of how decisions on costs and compensation will operate. It will be vital not to deter potential purchasers. We have left it to the courts to decide the factors that they will have in mind in assessing the amount of compensation. Unfortunately, we could not achieve a provision for compensation for the initial periods of two months and one year where a case is either not proceeded with, or where the requesting state loses its case before the relevant court in the UK.

Fourthly, my noble friend and several other noble Lords expressed anxiety on how the search and enter powers would work. The necessity of being able to enter premises unexpectedly, both private and business, was accepted, provided that we applied for an order to at least a Crown Court. We have gone one better and specify in the regulations before your Lordships tonight the High Court in England, Wales and Northern Ireland, and the Court of Session in Scotland.

Finally, my noble friend Lady Elles asked that the time-limit within which a requesting state must notify the requested state might be reduced from two months to one month. This, I regret to inform her, was not part of the Government's negotiating position, and thus the provision remains at two months. What was on the negotiating agenda, however, was the absolute time-limits for lodging requests for return of unlawfully exported items. These are 30 years for objects. in private hands,75 for museums and ecclesiastical institutions. The United Kingdom had reluctantly to agree these as part of the overall political compromise, though a number of states wished to have no time limits at all.

So, the final texts of both the regulation and directive had regard to the wise proposals of your Lordships, and the Government were indebted to your careful scrutiny.

Tonight, I hope that your Lordships will be content with the way we have transposed the provisions in the directive into these regulations. If your Lordships had an opportunity to read the debate in another place on 14th February, you will know that there were a number of questions put to my honourable friend the Parliamentary Under-Secretary for National Heritage. He did not have time to respond, but I hope that your Lordships will find it in order if I take the most important of those questions now. It may be that your Lordships also intend to address some of the same issues.

I would like, first, to clarify three apparent misconceptions. These regulations create the framework in the United Kingdom which will allow member states to request the return of their national treasures. We must rely on all other member states enacting the provisions of the directive into their national domestic law so that we too can request the return of a UK national treasure. To date only Denmark has done so; after tonight we shall, I trust, be the second member state to do so. Most other member states are reported to be well on the way to completing their respective legislative processes.

Your Lordships will be wondering how the United Kingdom can make use of the directive, given that we do not have, nor ever want to have, a list of national treasures. I know that my noble friend Lady Elles will be interested in what I say next. We assume that most Waverley standard objects are already well known to our expert advisers. If one of these appears in another member state, having left the United Kingdom after 1st January 1993 without a UK export licence, and the Department of National Heritage as the competent authority is told of this, we would ask that member state to take the necessary measures to hold the object until our relevant expert checked. That will cover archaeological objects and all other works of art. This would be within two months of our knowing its whereabouts and the possessor. Also within that two months we would ask the reviewing committee to consider whether or not that object satisfied one or more of the Waverley criteria. If it did, we would consider commencing an action in the court of that member state for its return, unless an agreed settlement could be arrived at prior to that. What then happened to the object on its return to the United Kingdom would depend on the circumstances of each case.

Clearly, we would have greater difficulty in identifying unknown objects, whether they are "sleepers", such as was the portrait of Sir Joseph Banks by Benjamin West, or the Paul Viannen plaque. We would have equal if not greater difficulty in identifying objects with an archaeological provenance and proving the date of their removal from the United Kingdom. These difficulties will be shared by most other member states and are inherent in the nature of these kinds of objects.

Another misconception concerns private collections in the UK. Some maintain that the directive applies only to objects which are the property of public bodies or ecclesiastical institutions. That is not so. The distinction between public and private lies only in the absolute time limits beyond which requests are time barred: 30 years for privately-owned objects,75 years for public.

The third misconception concerns stolen works of art. The European Union is not competent in criminal matters. Hence, the only trigger for requests for restitution will be unlawful export. It may well be that requests for restitution will be for objects which have been stolen and unlawfully removed. But I must stress to your Lordships that the member state from whence such an object came would have a choice: either to use the existing procedures for identification and recovery of stolen works of art, or the directive. It will no doubt choose according to the circumstances of each case.

There is a fourth point, not really a misconception so much as a ghost which I would like to lay to rest early in this debate. The directive has an optional provision in Article 14(2) for member states which wish to make the provisions of the directive retrospective; that is, prior to 1993. The regulations which are before your Lordships deliberately do not take up this option. This is not just because of the Elgin Marbles but because of good principles of law making. The art trade, nervous as it is of the possible effects of the directive, at least knows where it stands in checking the provenance of objects which come into its hands after the 1st January 1993. It would be totally wrong and disruptive to catch objects in the United Kingdom, whether in trade or not, before that date.

The Government's commitment to these regulations and to the provisions of the directive which lie behind them has been both praised and viewed with perhaps a little scepticism in another place. As the old song goes, "what a difference a phrase makes". My honourable friend was not so much sceptical as prudently cautious in his introductory remarks. These regulations break new ground in many respects in international cultural property law and their operation in practice will be watched most carefully by the wider international community. The United Kingdom has participated fully in the drafting of the UNIDROIT convention on stolen and illicitly exported cultural goods, but I have to tell your Lordships that the present draft, finalised in October last year, may yet go through many changes when it is discussed at the diplomatic conference, probably early in 1995. Thus it is far too early to say whether the United Kingdom does or does not agree with UNIDROIT when it cannot know the final outcome of the conference. But I can assure your Lordships that the United Kingdom delegation will treat the substance of the draft convention with the utmost seriousness, as it has done in recent years.

In the same way, we were members of the drafting party for the Commonwealth Scheme on the Protection of the Material Cultural Heritage, now adopted by the Commonwealth and known as the Mauritius Scheme. In November 1993 the Attorney-General made it clear in Mauritius at the Commonwealth Law Ministers Meeting that we had every sympathy with the principles which lie behind the scheme but that we wished to see how the European Community instruments worked in practice. The large and legitimate art trade in the United Kingdom must be allowed time to settle down with these regulations before we introduce further and wider considerations. And it may well be that the provisions of UNIDROIT overtake those of the Commonwealth scheme.

We have no means of knowing how frequently these regulations will be used by other member states, nor in turn how much use we will need to make of the regulations of other member states. What we are however fairly confident of is the restricted use that we would expect to make of the powers of entry and search. As your Lordships will appreciate, an application to the High Court for an order will be subjected to rigorous scrutiny; and applications will be, we expect, very much the exception and not the rule.

We are entering important but uncharted seas when we introduce these regulations, but I believe that we are doing so in the tested, time-honoured manner of good British administration. We are proceeding carefully, but conscientiously, in the spirit of mutual co-operation with other member states, which lies behind these regulations. The review in 1995–96 should not be seen negatively but as a positive opportunity to adjust what needs adjusting and affirm our concern and commitment towards both an open and free art trade as well as mutual assistance in protecting the national treasures of the European Union. I commend these regulations to the House. I beg to move.

Moved, That the draft regulations laid before the House on 15th December be approved [4th Report from the Joint Committee).—(Baroness Trumpington.)

Lord Donoughue

My Lords, I welcome the measure. The illegal or unauthorised traffic in cultural treasures is huge and is growing, and it should be regulated. Therefore, we commend the Government on the progress that they have made, especially on having made improvements since the original proposals were before the House. I note that the commencement date is January 1993. That may worry some as being retrospective legislation. However, it will probably please more people in that it does not open up contentious older history. Apparently, England has not yet lost its marbles, despite much evidence to the contrary.

In that context, perhaps the Minister can touch on the matter of losses from private enterprise digs on archaeological sites. That issue has arisen before. Those are often of great heritage value, although not always of great financial value. If those objects turn up in collections in France or Germany, it is not clear to me whether, under these regulations, we can recover them. I am told that some such objects have been smuggled through Switzerland to France and now appear on the French list of national treasures. I am not sure how we protect ourselves from that. I suppose that it is a question of definition.

One extremely important question of definition concerns public collections. The Minister has helpfully clarified a problem in that regard. Many professional people in the trade to whom I have spoken felt that the regulations applied only to public and not to private collections. I am sure that those people will look with great care at what the Minister said; namely, that the difference is one of timing in the application of the regulations.

I should like to be reassured that that applies also to what we may call public private collections. In principle, many collections— for example, university, hospital and military regimental collections— are funded privately but they are also in receipt of public funds. Are those collections covered by the regulations? I know that extremely important people in the museums' collection trade are unclear about that. Of course, I do not refer to great treasures about which there could be no question. I am thinking of lesser well-known objects. For example, what if valuable books from the Bodleian, which is a private university collection, or treasures from the Ashmolean, turn up in Belgium or Germany?

Also in relation to clarity, do the Government intend to publish an official booklet of guidelines? I believe that a reference book should be published which would help all those involved in the trade to obey the regulations and to assist in their enforcement. I have in mind, in particular, curators of museums and so on.

The policing of the regulations is an interesting and difficult question. Our police are overstretched and I am not sure who will do the follow-up work. Curators of museums seem to be the obvious agents. A book of guidelines would help them to be on the look-out for cultural objects that have been transferred without authority. What plans do the department have for administering and policing the regulations? That may require extra resources and I wonder whether provision has been made for extra staff and the training of them. Can the Minister say what that will cost?

There is also the tricky question of search and entry. We are grateful for what has been agreed about that. We are pleased that those matters will be dealt with by the High Court rather than, as some of us feared, a cultural equivalent of the environmental health officers— a local authority Waffen SS— who have recently spread terror throughout the English countryside. Therefore, we are relieved by what has been achieved in that regard.

Seriously, there seems to be an extension of existing powers and procedures provided in these regulations. Hitherto, search and entry took place only if there was a reasonable suspicion that an offence had been committed under existing UK law. That seems now to be extended to irregularities under foreign law. We trust that further abuse in that connection will be avoided.

Anxieties had been expressed by the noble Lord, Lord Carrington, and the noble Earl, Lord Gowrie, in the earlier debate that the regulations could damage our valuable art trade. The Minister said something about that. There is always a danger that there may be vexatious attempts to reclaim objects which would delay sales and disrupt business. I am grateful to the Minister for what she said about that and it would do no harm to say more. We do not want Britain to become the sole policeman for other states, protecting their treasures while they do less to protect ours. The history of enforcement of EC regulations throughout the Community in various member states is not always encouraging.

I welcome the regulations as a step towards controlling unauthorised art traffic. I hope that they will help to stem the losses sustained by Britain's archaeological heritage and that the Government will be more active in that endeavour. I look forward to some clarification on the definitions of public and private collections and I suggest that the Government should publish guidelines to assist in the implementation of the regulations. I trust that the search and entry provisions will not be too Gestapo-like in style and that our art trade will not be damaged.

7.45 p.m.

Baroness Elles

My Lords, I express my gratitude to the Minister for explaining so carefully and clearly the content of the regulations. Many of the issues touched upon by my noble friend meet the anxieties expressed in the report produced by the European Communities Select Committee which was debated in your Lordships' House in November 1992. That seems a long time ago.

I express gratitude on behalf of the Select Committee for the way in which the Government have negotiated on many of the problems which we were able to point out in our brief and cursory examination of them. Considering the difficulty of and the timescale in which the negotiations took place, the Government are to be commended and congratulated warmly on their achievements.

We were concerned in particular with the question of the power of search and entry because, in many cases, dealers undertake their activities in private premises. We had to make sure that they would be protected by the need for at least a High Court order before any such search and entry should be allowed. The regulations are tightly drawn in that sphere, which is to be welcomed.

I understand that not all our objectives have been attained but my noble friend stressed the fact that the regulations do not cover criminal activities and stolen objects. During the debate, my noble friend Lord Renfrew expressed considerable anxiety, in view of his expertise in the matter, about the looting of archaeological sites. Other member states list all their national treasures but perforce, by its very nature, an object looted from an archaeological site is not on a national list and would not be covered by the regulations. As my noble friend and other noble Lords pointed out, no export licence would be sought for an object stolen from a site. Therefore, I was glad to hear the Minister emphasise that those matters would be covered by the national criminal law.

I am grateful also to my noble friend Lord Renton who introduced a Bill concerning the law of market overt. That Bill has passed through this House and is now before the other place. We could not have honoured our obligations to restore goods which had been brought through unlawfully from another country if they had been sold in market overt, because those goods would have been protected by that law. Therefore, I look forward to the day when the loophole with regard to market overt is closed.

I welcome the review which is proposed in 1995–96 to see how the regulations are affecting the art trade, in particular in this country. Of course the art market in this country is considerably larger than that of any other member state in the Community.

Lord Jenkins of Putney

My Lords, I must apologise to the noble Baroness for the fact that I missed the first two minutes of her opening speech. I hope that during that time she did not cover the point that I should like to raise. This seems to be the first international enforceable agreement on the art trade of which I am aware. In my own experience, we previously had the United Nations arrangements whereby museums in different parts of countries, under the aegis of their own governments, have been trying to restore to some extent from the third world the treasures which the first world—if that is what it is— has accumulated over the years.

I have always been in favour of the return of the Elgin Marbles. Indeed, I remain of that view. I do not know whether the position in that respect is affected in any way by the present legislation. I rather gather that the answer is probably not. I am bound to say that I wish it was. It seems to me that the process of the return of objects which are of specific national importance to countries should be carried out.

On that basis, we have very much been dragging our feet. Internationally, the United States has returned large quantities of art material to Latin America; Australia has returned a great deal of material to Papua; and the French have returned a great deal both to the East and to North Africa. We alone, up until now, have refused to participate in that international process of beginning to return only those objects which are of national importance for the country concerned. Therefore, I regard the attitude of the British Museum in the matter as being like that of a dog in a manger; that is, refusing in any way to consider the possibility that the Greeks might be right in asking for the return of the marbles. I believe that that clarifies my point.

Having said that, I join in my noble friend's welcome for the legislation. Like EC general legislation, it may perhaps be over directive. Previously it was merely voluntary: in the existing situation on the international field, you return the items if you want to do so; but, if you do not wish to do so, you do not. I believe that we are now moving into a situation where, if we are not very careful, we shall once again be involved in a great deal of international wrangling. I sincerely hope not. I also hope that the prosperous art market in which we have a pre-eminent position will not be gravely affected, although in some ways I would not mind affecting it a little myself.

Finally, I repeat my welcome to the legislation. It is a step in the right direction. In due course, I hope that it will prove possible to establish more firmly, without being over directive, a process whereby those countries which have historically over the years acquired very large quantities of the artistic material of other countries will, at any rate in some cases, be ready to consider the possibility of returning such items. I also hope that we shall be able to take a more leading part in that process as, indeed, we have this evening by virtue of the legislation now before the House.

Baroness Trumpington

My Lords, I am most grateful to your Lordships for giving such a general welcome to the regulations— warts and all, notwithstanding. They are a step in the right direction towards controlling the trade in illicitly-removed cultural items. I thank the noble Lord, Lord Jenkins, for his most interesting remarks. I should tell him that I spoke for quite long enough at the beginning of my speech. I am sorry that he missed my opening remarks. However, I did deal with the Elgin Marbles, and the regulations do not affect them. However, perhaps the noble Lord would care to read in Hansard the detail of what I actually said.

Lord Jenkins of Putney

My Lords, I shall do so very closely.

Baroness Trumpington

My Lords, the noble Lord, Lord Donoughue, very kindly gave notice of his questions. Some of them, whether or not on private collections, are covered by the regulations. I have covered the use of search and entry powers and the impact on the art world. However, I should just like to mention the important issues that the noble Lord raised. He referred to the difference between public and private collections. As I said in my introductory remarks, the regulations apply to Waverley standard items whether they are from a public or private source. I accept that that is a grey area in the definition of what constitutes a "public collection". However, that will have to be taken on a case-by-case basis. I can assure the noble Lord that we shall have the next 30 years in which to debate this thorny subject. Although the noble Lord, Lord Donoughue, may still be counting his marbles at that time, I fear that neither of us will be involved in the resolution of that problem. The museum world will certainly look a little different in 30 years' time.

We definitely include the national museums and galleries, local authority museums, university collections and bodies registered with Museums and Galleries Commission. The point raised about staffing was actually answered by my honourable friend in another place. The answer is that we do not think that we will have to take on new staff. We have taken on two new staff so that applications for export licences can be dealt with as quickly in the future as they have been in the past. The answer depends on the amount of work arising from the regulations.

I was grateful to the noble Lord for mentioning guideline booklets and the possibility of publishing them. That is perhaps a good idea. The department is considering extending and revising its existing guidance to exporters at present and will take up that point in that particular context

In a speech to the Society of Antiquaries, my right honourable friend the Secretary of State said the other evening that he, too, was most concerned about the lack of export licence applications for archaeological items coming from this country. Naively, I should like to think that smuggling of these items is not a popular pastime. But with the enthusiasm of the metal detector fraternity and the increasing number of finds, I rather doubt that. Her Majesty's Customs and Excise act promptly on intelligence reports. I believe that there is at least one case pending. But, more to the point, we are thinking of ways of encouraging finds to be reported and for the archaeological community to accept that items of minor archaeological or scientific importance are legitimate objects for collecting. Co-operation on all sides, collectors, finders, and the antiquities trade is the way forward.

Regrettably, the regulations now before us will not in themselves stop looting of archaeological sites, but they will enable us to get objects back from elsewhere in the European Union.

I have also explained to your Lordships that I believe the damage to the art trade will be limited. expect that only a few items will be claimed by other member states as the art trade is already diligent in researching the provenance of objects. Those concerned do not wish themselves to handle any which have been unlawfully removed from other member states in the European Union. But we will be monitoring the use of the regulations very closely and we will have the benefit of the review in 1995–96 of both the regulation and the directive.

In concluding my speech, which has gone on for rather too long, it gives me pleasure to know that wonderful objects like the Roman statue unearthed near Rome with a JCB can be returned to Italy under the regulations and that any similar UK national treasure can be returned in a reciprocal and definitive way. I commend the regulations to the House.

On Question, Motion agreed to.