David Burrowes seeks no watering down of Bill to enable UK to ratify the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict

20th February 2017

David Burrowes welcomes the Bill's progress and movement towards the UK ratification of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and urges no watering down of responsibilities or requirements in the Bill.

It is a pleasure to take part in the later proceedings of this important Bill. I am co-chair of the all-party parliamentary group on cultural heritage; it is excellent to see the Bill on its way and at long last to enable our ratification of The Hague convention, which will be very welcome. Having said that, I very much respect this level of scrutiny and the concerns outlined by my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) and my hon. Friend the Member for Kensington (Victoria Borwick). We also had exchanges on this issue in the Bill Committee. I welcome that because the concern among dealers has been outlined, not least to the all-party parliamentary group.

The British Antique Dealers Association, the British Art Market Federation, the Antiquities Dealers Association and LAPADA all made considered written representations, which need to be fully respected, and I join them in wanting to ensure confidence in the market. The last thing we want to happen is for the Bill in any way to provide uncertainty or ambiguity in the codes of practice and guidance, which are very welcome—they are welcomed not least by the all-party parliamentary group. We want London to be the centre of excellence for dealers’ associations, and we want there to be true confidence in the market.

The all-party parliamentary group has deliberated on some of the scaremongering stories out there. We recognise that the London dealers’ market has a very good record, and we want to ensure continuing confidence in that market. I have due respect for the concerns that have been expressed, and I look forward to further roundtable meetings and the publishing of guidance.

My right hon. and learned Friend the Member for Harborough, a former Law Officer, pleaded for guidance to be published at this stage. As he will know, some of us who scrutinised the Bill in Committee, including the shadow Justice team, are on his side in pleading for such guidance to be published before the end of our proceedings. Sadly, those pleas have been made in vain in some ways. I share his concern that there should be as much transparency as possible.

It is important to recognise that other stakeholders are concerned about amending clause 17. Although the antiquities and antiques dealers’ associations are important and must be listened to, we must also listen to the police. I understand that police representatives have said that they support the Bill as currently drafted. I have an interest as a criminal defence solicitor, and I am not necessarily surprised that the police support the current wording, but it is worth taking account of other interested parties, such as the British Red Cross and the British Museum.

 

I was puzzled by the reference to the British Red Cross in a letter from the Minister, so I checked it with the Secretary of State for Culture, Media and Sport, and she, too, was a little puzzled by the reference. I am not sure that the Red Cross has anything whatever to do with this. This is all about preventing the unlawful trade in items unlawfully exported from occupied territory. The Red Cross has lots of things to worry about, but I am not sure its main aim in life is supporting this Bill.

 

I do not often disagree with my right hon. and learned Friend, but the British Red Cross has a great deal of interest because, in many ways, it is the pre-eminent body in dealing with issues of international humanitarian law. What we are doing here is ratifying The Hague convention, in which the Red Cross plays a crucial role.

I quoted Mr Michael Meyer, the head of international law at the British Red Cross, in Committee. If you will forgive me, Mr Deputy Speaker, I will repeat what I quoted because it is of direct relevance:

“However, it appears that, in practice, the clause should place no greater burden on dealers than already exists to conduct appropriate due diligence. In other words, the threshold of ‘reason to suspect’ is not so low as to have an adverse impact on the legitimate market, while at the same time acting as a necessary and suitable deterrent for those who may be less scrupulous. The wording is somewhat similar to that used in the existing Iraq and Syria sanctions orders. There is also very similar wording found in section 17 of New Zealand’s Cultural Property (Protection in Armed Conflict) Act 2012.”

That Act followed New Zealand’s ratification of The Hague convention. What that international lawyer says is relevant because, although I respect the well-made point that this Parliament is considering how the convention is applied domestically through our courts, we are catching up on ratifying The Hague convention and setting ourselves on an equal footing from an international legal standing. I pray that in aid.

I am arguing against myself to some extent here, but I recognise that if we were dealing with a simple issue relating to another dishonesty offence being added to the criminal legal handbook, I would be joining my right hon. and learned Friend in expressing concern about the disparity on mens rea in respect of this offence and the normal panoply of dishonesty offences. However, we are dealing with a unique offence in unique circumstances.

The shadow Minister made a point about the impact assessment and the view that there will be one prosecution. That is relevant because we are talking about an exceptional prosecution in respect of an exceptional piece of property that comes through to the market in this country and how it is then dealt with. We should therefore not overstate the concern, and we need to take into account the confidence of the market. We are dealing with exceptional cases, which need to be dealt with appropriately and carefully. That is why we need to have regard for what is already in place, not least how other cases are dealt with in international practice and how we have applied other relevant legislation.

The Iraq (United Nations Sanctions) Order 2003 was a statutory instrument that did not have the level of scrutiny we are afforded in dealing with this Bill—that is why we are undertaking this scrutiny. It is important to look at the impact of what has been in place since 2003. That order contains the words:

“and had no reason to suppose that the item in question was illegally removed Iraqi cultural property.”

That is particularly relevant here, as it is an equivalent provision to the one in clause 17. Interestingly, the provision is more onerous, as it shifts the burden on to the defendant, with the onus on them to prove that they had no reason to suppose that the property had been illegally removed, whereas in clause 17 the onus is on the prosecution to provide the proof. I have not heard concern from the dealers’ association and others about this order and how it goes even further in shifting the onus in respect of people dealing illegally with removed Iraqi cultural property. I am not aware of any case in which an antiquities dealer has been unjustly convicted—or, indeed, even prosecuted or arrested—under that order, even though it goes a lot further than clause 17 in shifting the burden on to the defence.
 

Does it follow from what my hon. Friend is saying that he does not know whether any convictions under the statutory instrument have been for the “knowing” or for having “had no reason to suppose”? He does not know either way, does he?

 

What I do know either way is that no antiquities dealer has come forward about being unjustly convicted and there has not been a campaign about such. None seems to have been unjustly convicted under this order—or there has been no evidence that there has been an iniquity in relation to an arrest, prosecution or seizure under the order or, indeed, under the other relevant provision, the European Union Council regulation on Syrian cultural property. That refers to

“Syrian cultural property goods and other goods of archaeological…importance…where there are reasonable grounds to suspect that the goods have been removed from Syria without the consent of their legitimate owner”.

Again, I am not aware of any antiquities dealer having fallen foul of those provisions, with the complaint being that the net is cast too widely.

I concede that, in terms of mens rea, there is a difference between normal dishonesty offences and this particular offence, but in respect of the actual impact of the Bill, I am not aware of a serious problem. Rather, the answer is that, with the appropriate legal advice and the due diligence that one would expect of any decent, law-abiding antiquities dealer, they will be able to chart their way through the legislation.

Another relevant aspect is international practice. We are in the process of ratifying The Hague convention and putting ourselves into line internationally. It is important to refer to paragraph 7 of UN Security Council resolution 1483, which came into being on 22 May 2003 and is obviously binding on all UN member states. It was made in direct response to the looting of cultural institutions in the immediate wake of the invasion of Iraq. All member states signed up to taking

“appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations”.

Paragraph 7 says specifically that that should be done

“by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed”.

Similar wording is used in United Nations resolutions.

That similarity continued in paragraph 17 of UN Security Council resolution 2199, from 12 February 2015. Again, it is binding on UN member states. It was adopted in direct response to the looting of Iraqi and Syrian cultural property in the course of the ongoing armed conflicts in those states. The Security Council reaffirmed its decision and recognised that there was a corresponding obligation for cultural property illegally removed from Syria since 15 March 2011. On the standard of knowledge considered sufficient by the Security Council, of which the UK is of course a permanent member—we want to ensure we are right up there in terms of signing up to ratifying the two protocols—there was the same equivalence in relation to reasonable suspicion.

 

On the point about the uncertainties, perhaps the Minister could clarify whether the legislation is going to be retrospective. Is it going to apply to items that are imported in future, or to items that are currently in the country? Alternatively, will it apply only to what happens after the Bill is passed? We are talking about items that move from country to country, particularly those in areas of potential conflict, so it would be helpful if there was clarity in the Bill about the date on which an item was imported.

 

I am happy to facilitate the Minister’s being able to respond to that question.

On 18 January 2012, before the adoption of paragraph 17 of Security Council resolution 2199, an EU Council regulation emphasised the same points made in the Security Council resolutions. It referred to situations in which

“there are reasonable grounds to suspect that the goods have been removed from Syria without the consent of their legitimate owner or have been removed in breach of Syrian law or international law”.

The amendments have been tabled in good faith and are well intentioned, and in ordinary circumstances I would think they were well merited and had substance. In this particular case, however, given the context, I do not think they are necessary or, indeed, desirable, especially when one takes into account the international best practice or hears from stakeholders such as the Red Cross and the British Museum. I shall conclude with the words of the latter:

“We feel it is particularly important that there is no watering down of responsibilities or requirements in the Bill. Specifically, we feel that in regard to the Clause 17…it is imperative that the working should remain ‘knowing or having reason to suspect that it has been unlawfully exported’”.

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Interventions in the same debate

 

My right hon. and learned Friend does himself an injustice: repetition can be a good thing, if he is right, but it might not be such a good thing if the point is overstated. I refer him to the Iraq (United Nations Sanctions) Order 2003, as well as the EU Council regulation on Syrian cultural property, where the wording is:

“had no reason to suppose”.

That is similar to the wording in the Bill, and I understand that there has been no grave injustice served on those law-abiding, prudent antique dealers who have been observing those provisions.

 

My hon. Friend anticipates me: that was the fourth point I was going to make in due course. The difficulty in his making that point—I am grateful that, either through his own research or thanks to assistance from other hon. Friends, he has been able to make it to me—is that those are statutory instruments, which were never debated on the Floor of the House. I am not even sure they were debated in Committee. The whole point about passing criminal legislation that could lead to an individual being sentenced to seven years’ imprisonment or, if a company, to an unlimited fine is that we ought to pass good law. We ought to debate it and we ought to allow an idea to be tested, sometimes to destruction. The Afghanistan and Iraq orders that my hon. Friend talks about have not been tested in this place. The 2003 Act was tested in this place and this Bill is being tested in this place, and if the Government do not enjoy that, well I am sorry for them.

 

My right hon. and learned Friend is dealing with his fourth point, but I wonder whether one of his subsequent points deals with international best practice in relation to United Nations resolutions, including paragraph 7 of Security Council resolution 1483 of 22 May 2003 or Security Council resolution 2199 of 2015, which focus on the same provision of “reasonable suspicion” that is in the Bill, which are obviously binding on all UN members and which are also part of the international legal architecture of our accession to The Hague convention.

 

I am sure that my hon. Friend will have plenty of opportunity in the next two or three hours to make his own speech, but I am always very happy to take his interventions. If, however, he looks at The Hague convention—which is being brought into our criminal law by this Bill—he will see that there is no rubric or form of words that are required by that convention to be imported into our criminal law. If we are to base our criminal law on a form of precedent, I would look to the most recent statute, which is the 2003 Act, rather than two undebated and, I think, time-limited statutory instruments. But anyhow, my hon. Friend will no doubt have an opportunity over the next few hours to develop the points that he has thought a great deal about.

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I commend the Minister on navigating us through to this stage. She has now become an international advocate, having travelled to conferences to extol the virtues of our commitment to cultural property. Will she also pay tribute to Professor Peter Stone of Newcastle University and the UK Committee of the Blue Shield, who want us to establish a centre of excellence for the collection and sharing of information on threats to cultural property worldwide? We are an exemplar on that, and we could perhaps do more with more funding.

 

I am grateful for my hon. Friend’s intervention. I am sure that the Prime Minister was paying close attention to our proceedings in Committee, during which my hon. Friend asked me to consider going to Abu Dhabi for an international convention on cultural property, because, shortly after he made that request, the Prime Minister wrote to ask me to attend that convention. I am really pleased that I went to that excellent convention. I met some leading figures from around the world, including the head of UNESCO, and the event gave us an opportunity to show that the UK is leading the way on this matter. I will come to my hon. Friend’s point about praising Professor Stone later.

 

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