“Unlawfully exported cultural property” etc

Cultural Property (Armed Conflicts) Bill [Lords] – in a Public Bill Committee am 10:45 am ar 15 Tachwedd 2016.

Danfonwch hysbysiad imi am ddadleuon fel hyn

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

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

I thought it would be particularly helpful for the Committee to discuss clause 16, because it sets the scene for the discussion on clause 17, which I know we are due to have because amendments have been tabled. Part 4 of the Bill deals with cultural property that has been unlawfully exported from occupied territory. Clause 16 defines what is meant by “unlawfully exported cultural property” and sets out how it is determined whether territory is occupied.

Unlawfully exported cultural property is defined as cultural property that has been exported from an occupied territory contrary to either the laws of that territory or international law. At the time of the export, the territory concerned must have been occupied by another state. Either the occupying state or the state of which the occupied territory is a part must have been a party to the first or second protocol. That means that the earliest date on which cultural property could have been unlawfully exported for the purposes of the Bill is 7 August 1956, which is when the first protocol came into force. If neither of the states concerned became a party to the first or second protocol until a later date, that will be the date from which cultural property can fall within the definition.

The clause sets out what is meant by “occupied territory”. The test for that is based on article 42 of the regulations concerning the laws and customs of war on land, which were agreed at The Hague on 18 October 1907. The article states:

“Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation applies only to territory where such authority is established and in a position to assert itself.”

Whether a territory is occupied now, or was occupied at a particular time, is a matter that must be determined on a case-by-case basis. The clause provides that a certificate issued by the Secretary of State shall be conclusive evidence as to whether, at a particular time, territory was occupied. That is standard procedure for determining such matters that concern international relations and are considered to be matters of state.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage)

The Minister may not have this information available, and may want to write to the Committee with it, but do the Government have a list of territories that they currently consider to be occupied under that definition?

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

I do not have that information to hand now, but I do not think we have an official list, because this is often a controversial point. May I suggest that if we are still on clause 16 when we return this afternoon, we perhaps clarify or confirm that point then?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage)

I am grateful. I understand her not having the information now. It might be useful to clarify, for example, whether the Government consider Crimea to be an occupied territory.

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

Again, if we are still debating clause 16 this afternoon—or perhaps even when we debate clause 17 —if the hon. Gentleman wants to raise the point then, I may be able to give him more information. However, as he can imagine, the definition of occupied territories is sometimes controversial, and it is often open for discussion.

A certificate may not be issued in all cases. Alternative evidence may be used to prove the status of a particular territory. Before I conclude, I have been reliably informed that, yes, Crimea is considered an occupied territory; that at least covers one of the questions that the hon. Gentleman might have wanted to return to this afternoon, allowing us more time for other matters.

Photo of Victoria Borwick Victoria Borwick Ceidwadwyr, Kensington

I thank the Minister for that clarification, because we all seek greater clarity about what is in the Bill.

I have previously mentioned the uncertainty inherent in clause 2 and how our art market is keen to avoid uncertainty. Another area of uncertainty is an auctioneer’s or dealer’s ability to identify the occupied territories to which the law applies, particularly if an item may have been here previously; of course there is a lot of trading going on all the time, which is why the points about certainty and dates need to be clarified.

Clause 16(6) states that the Secretary of State’s confirmation that a territory was occupied is conclusive evidence of that status once legal proceedings have begun. If the Secretary of State’s word may be provided after the beginning of proceedings, cannot a list of the occupied territories, together with the relevant dates of occupation, be drawn up for all to see? Alternatively, could the criteria that a Secretary of State would apply when determining whether and when a territory is considered to have been occupied be clarified? Examples have already been given, but I could add East Jerusalem, the west bank, northern Iraq, Libya or southern Sudan and I am sure others could add alternatives. For the avoidance of doubt, dealers will need to know at what points since 1954 a particular territory is covered by the legislation.

Even if those operating in the art market can identify territories and the periods when they were considered to be occupied, there is the added issue of determining whether objects left those territories during the period of occupation or at another time, and whether those objects were here before, during or after that period. We need that clarity. The precise historical date or year when an object left a territory could well be difficult to ascertain. Concerns about clarity in the Bill have already been mentioned and this is yet another factor that contributes to the uncertainty engendered by the clause 17 mens rea provision, which we will come to later.

In 2008, the then Government’s response to the territory list question was that a dealer who had carried out proper due diligence checks would be unlikely to be convicted of a criminal offence. We would like that response clarified and brought up to date. The Government added that they were unaware of any other parties to the convention having drawn up such a list. I struggle to understand how a law concerned solely with objects unlawfully exported from occupied territories can be expected to operate effectively when there is no means by which anyone is able to identify those territories. Do the Government expect a dealer or auction house to submit requests for confirmation of a territory’s status to a Secretary of State on a case-by-case basis, prior to handling an antique, as part of their due diligence? I ask the Government to prepare a list of the territories covered and the relevant dates. As the application is retrospective to 1954, that information must presumably already be available.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage) 11:00, 15 Tachwedd 2016

The hon. Lady raises a valid point. I accept that this was discussed when the draft Bill was considered in 2008, but that Bill did not come before the House in a final form. It is very reasonable to explore whether the Government will consider publishing a list of the territories that they consider occupied during the relevant period since 1954. It would be extremely useful.

Clearly, it is not always going to be easy to ascertain when an object left a particular territory, although we have already clarified that we are talking about a very small number of very important movable objects that might have been removed from a territory, and that in itself should set off alarm bells with any dealer. If it was an object of such cultural importance that it would be covered by the legislation, people would naturally take extra precautions to ensure that the object had not been removed illegally from a territory during a period of armed conflict and occupation. However, it is perfectly valid to ask why the Government are unable or unwilling to produce a definitive list of territories that have been under occupation during the relevant period. Perhaps the Minister could enlighten the Committee further on the Government’s thinking.

Photo of David Burrowes David Burrowes Ceidwadwyr, Enfield, Southgate

I want to raise an issue brought up on Second Reading and in the other place, about the Bill’s applicability to non-state actors, particularly in relation to Daesh, which has prompted a huge wave of concern about cultural property destruction and added an extra dimension to the process that we are in of ratifying the convention and protocols. I am particularly grateful to the Secretary of State for clarifying the categories in the Bill that are applicable and for clarifying where the UK can prosecute.

The Hague convention already extends to non-state actors, and the offences in article 15 of the second protocol may be committed by non-state actors in non-international armed conflicts. The question is how that will be prosecuted. As Syria is not party to the second protocol, there is no possibility of prosecuting the most serious offences in article 15. However, there is scope to prosecute UK nationals involved in Daesh under clause 3 of the Bill.

Is there evidence of UK nationals being involved in such damage or in stealing cultural property in Syria? If there is, we will be able to prosecute them for those heinous crimes after the enactment of the Bill. Many of us, including the UNESCO chair, consider such acts to be on the same level as a war crime, and they need to be dealt with appropriately and punitively.

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

I am grateful to colleagues for raising a number of important issues. I will respond as best I can.

First, I remind the Committee that this law is not solely concerned with dealing in cultural property; it is about protecting cultural property at home and abroad. We need to keep reminding ourselves of what we are trying to achieve with this Bill. That said, some important issues have been raised.

Colleagues will appreciate that extremely sensitive foreign relations issues are in play when drawing up a list. It is important to reiterate the point made by my hon. Friend the Member for Kensington that the Government are not aware that any of the other 127 state parties to the convention have produced a list of territories that they consider to be or to have been occupied since the convention came into force in 1956. In practice, very few territories are likely to be deemed to be or to have been occupied within the meaning of the Bill. The amount of cultural property from such territories that dealers are likely to come across is expected to be extremely small. That said, I realise that there are concerns.

Legal advice will be available to those who have concerns. If in doubt, dealers can seek appropriate legal advice from a solicitor or barrister who is familiar with public international law. The Bill does not impose any requirements on those who deal in cultural property beyond the normal due diligence that they should carry out in accordance with industry standards, such as the code of practice for the control of international trading in works of art. In the event of legal proceedings, the burden of proof will be on the prosecution to show that the person knew, or had reason to suspect, that the cultural property had been unlawfully exported from an occupied territory.

We will discuss the wording later, but I remind the Committee that the Government will not be publishing a list of occupied territories. It will be determined on a case-by-case basis. Anyone who has a question or any doubt can seek appropriate legal advice. Like the other 127 state parties to the convention, we have no intention of publishing a list.

Photo of Victoria Borwick Victoria Borwick Ceidwadwyr, Kensington

I am concerned on behalf of traders that there will inevitably be a great deal of cost. As you and the Secretary of State have been kind enough to say that you do not wish to place additional burdens, I am concerned that you are appearing—

I remind the hon. Lady about addressing the Chair.

Photo of Victoria Borwick Victoria Borwick Ceidwadwyr, Kensington

I apologise, Ms Buck. High legal costs might be incurred, but I do not understand that to be the Minister’s intention.

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

I repeat that I do not think that the clause imposes any more requirements on those who deal in cultural property beyond the normal due diligence that they undertake now in accordance with industry standards, so I am not convinced that there will be additional costs. We need to remind ourselves that the offence is not retrospective; it applies only to cultural property unlawfully exported from occupied territories after the date that the convention and protocol came into force for those countries that are party to it, and cultural property needs to be imported into the UK after the Bill comes into force to be an offence.

To clarify exactly what sort of cultural property we are talking about and the dating of that property, I will briefly repeat messages back to my hon. Friend the Member for Enfield, Southgate about Syria. It is important to take this opportunity to clarify how the Bill applies to the situation in Syria. The Bill’s application to the situation in Syria is limited for two reasons: first, while Syria is party to the convention and the first protocol, it has not ratified the second protocol; secondly, the UK does not recognise Daesh as a state.

With regard to the first point, the current conflict in Syria is defined as a non-international armed conflict—a civil war, in other words—and the offences listed in article 15 of the second protocol may be committed during civil wars. However, the application of clause 3 is complicated as it varies depending on whether the state experiencing civil war is a party to the convention and/or the second protocol. The Bill’s application to Syria is limited to the offence set out in article 15(1)(e) of the second protocol, which is

“theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.”

Because Syria is party to the convention, its cultural property is protected against that offence. The Bill’s application is limited in some respect because Syria is not yet party to the second protocol, which means that the UK cannot prosecute for any of the other four offences set out in article 15 of the second protocol.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage)

I saw the Secretary of State’s letter, together with an explanatory note, that she provided following Second Reading. It made it clear that the Bill could, in effect, apply in civil wars, although that is not the phrase that she used; I think the Minister has confirmed that with what she just said. I am just trying to understand exactly what the Minister meant in relation to the first and second protocols. Is it that Daesh could not be covered by the Bill because it is not a state party or a recognised state, or is it because the second protocol to the convention has not been ratified by Syria?

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

It is probably both, actually. First, Daesh is not a recognised state, and secondly, not all parts of article 15 apply because Syria has only signed up to the convention. Article 15(1)(e) applies because Syria has ratified the convention, but articles 15(1)(a), (b), (c) and (d) do not apply because Syria has not signed up to the second protocol.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage)

To be clear, does that mean that the Bill could apply to only one side in a civil war—namely, to a recognised Government who were signatories to the convention—while the other side, despite committing identical actions, was not covered because it was not a recognised state under the convention?

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

We ae going beyond the specific purpose of this legislation. I can tell the hon. Gentleman that the Bill will apply if there is evidence that a UK national has joined Daesh and damaged or stolen cultural property while in Syria. The UK could seek to prosecute that individual under clause 3 on their return to the UK. As I stated, article 15(1)(e) applies to

“theft, pillage or misappropriation of, or acts of vandalism directed against cultural property protected under the Convention.”

Article 15(1)(e) is broad enough to take into account everything protected under the convention, which Syria has signed, but article 15(1)(a), (b), (c) and (d) all refer to aspects that are in the second protocol, to which Syria is not a signatory. I hope that clarifies the point. I appreciate that this is incredibly complicated, but we are limited to talking about some issues relating to UK nationals in Syria.

On the question raised by my hon. Friend the Member for Enfield, Southgate, we are not aware of any UK nationals who have been involved in cultural destruction in Syria. On the second point in relation to Syria, clause 17 creates the criminal offence of dealing with cultural property that has been unlawfully exported from occupied territory. Territory belonging to one country can only be occupied by another state. The UK does not recognise terrorist groups such as Daesh as states, so Syria cannot be classed as an occupied territory, and the dealing offence is not engaged. There is no loophole in our approach to dealing in Syrian cultural property, as sanctions already exist for the sorts of objects that have been illegally removed from Syria. I can confirm that the second protocol would apply to both sides in a civil war if the state had ratified the second protocol, which Syria has not.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage) 11:15, 15 Tachwedd 2016

That is very interesting. I am still slightly struggling to understand how the second protocol could apply to both sides in a civil war if one of the sides was not a recognised state, Government or signatory to the protocol, but I will let that lie for now; it might be something that we cogitate on, and there might be a way of discussing that when we come to later amendments and new clauses.

I understand what the Minister was saying about clause 16: that the Government will not produce a list because no one else has produced one. That is not necessarily a good argument for a country that is seeking to be a leader in this field. The Minister quite rightly boasted that we will become the first permanent member of the Security Council of the United Nations to ratify both protocols, although we will be the last to bring in the convention overall, so that is not entirely something to boast about—and that goes for Governments of all kinds. Saying that we should not produce a list because no one else has produced seems to be not an argument, but a simple statement of our position and that of other countries.

The Minister hinted that the reason why the Government were reluctant to produce such a list was because it is sensitive—she used that terminology—to talk about whether a country has been occupied since 7 August 1956, which is the date that she mentioned. We are not producing a list because no one else has, and because it might be sensitive to do so, but she said, without feeling too sensitive about doing so—I welcome that very much—that the UK Government considered Crimea to be occupied. That is what I do not understand. If it is possible to say clearly that Crimea is considered an occupied territory, why is it not possible to say whether the UK Government consider other territories to have been occupied since 1956? That makes no sense whatever, unless we are engaged in some kind of history seminar, which we are not; we are talking about the UK Government’s position on whether territories have been occupied since 1956. The Government are happy to say that Crimea is occupied, but not whether they consider other countries or territories to have been occupied in that period.

Photo of Victoria Borwick Victoria Borwick Ceidwadwyr, Kensington

I think the point is that if a Security Council resolution regards a territory as being occupied, surely that is on the record.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage)

It may well be on the record, but the hon. Lady herself made the point that clause 16(6) says that territory is considered occupied if, once proceedings have begun, a certificate is issued by the Secretary of State, whatever the UN has said. The Bill says:

“a certificate by the Secretary of State is conclusive evidence as to whether, at a particular time, territory was occupied by a party to the First or Second Protocol or by any other state.”

Can the Minister add further clarity to that? We have not really had a full explanation as to why the Government are reluctant to produce that list. There may be reasons, but I am not sure that we have teased them out yet.

Photo of Jonathan Djanogly Jonathan Djanogly Ceidwadwyr, Huntingdon

This is an interesting discussion, but I wonder whether the reason goes more towards the effectiveness of the convention. If states have not been producing lists, could it be that some countries are bringing prosecutions that other countries would not, because they view what should go on the list differently? If so—this is perhaps one for the Minister—perhaps this should be looked at internationally, so that an agreed list is formed.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Culture, Media and Sport) (Arts and Heritage)

The hon. Gentleman is an eminent lawyer and understands these matters much better than I do. I am sure that he is correct to say that that is part of the problem, but I imagine that agreeing on a list internationally will be much more difficult than the UK Government drawing up their own list of territories that they consider to be occupied. After all, we are bringing these provisions into UK law, so it would be during proceedings in the UK when this would be a matter of importance. I do not think that there is any great logic in why the Government have said that they are not prepared to produce a list. We will not vote against the clause, but if the Minister has anything further to add, I am sure it will be helpful.

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

The only thing that I would like to add is that the hon. Member for Cardiff West is a very experienced and somewhat naughty man for leading me down a garden path; I will now no doubt get a smacked bottom from the Foreign Secretary for declaring, on the record, that comment about Crimea. It is important to stress that this is an incredibly complex area, involving sensitive issues relating to foreign affairs. No other state that is part of the convention has produced a list. I appreciate that the hon. Gentleman does not think that a reliable or worthy response to the issue. We want to make sure that we introduce the Bill and ratify The Hague convention properly, so that we protect cultural property in the United Kingdom and abroad.

We firmly believe that the Bill does not place any further burdens or restrictions on the art market. There is nothing in the Bill that those in the art market do not already do, in terms of due diligence. Where they have concerns, we would expect them to seek appropriate legal advice, as they currently do. There is a whole wealth of people out there who are able to provide that.

Photo of Victoria Borwick Victoria Borwick Ceidwadwyr, Kensington

I want to take the Minister up on the due diligence point, if I may. Inevitably, there are different levels of due diligence, and different categories. There is no accepted level of due diligence. This goes back to the point made about getting absolute clarity in the Bill, because nobody wants there to be confusion later. We all have the right spirit here; we are just making sure that things are absolutely clear. There are inevitably different levels of due diligence for different categories of objects, with the risk of forfeiture and potentially a prison term.

Photo of Tracey Crouch Tracey Crouch The Parliamentary Under-Secretary of State for Culture, Media and Sport

I hope that those in our art market, with all their expertise and with the market’s worldwide reputation for being one of the best, have the highest standards of due diligence, and that when it comes to these specific cultural objects of great importance to all people, as defined by the convention, they take particular care with due diligence, as set out by their own industry codes and standards of ethics. They are self-regulated, and they provide a gold standard of best practice for the rest of the world, and I hope that they will continue to do so.

I reiterate that we do not think it is necessary to produce a list; we do not think that it would be helpful in a wider sense. A certificate from the Secretary of State would only be used during a dispute on an issue. We believe that this is the right way forward, and I hope that the clause will stand part of the Bill.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.