*Update: On the day of going to press, we later discovered that, with impressive speed and efficiency, the Bill received Royal Assent, so look out for further posts on the Cultural Property (Armed Conflicts) Act 2017!
As of this Monday (20 February) the UK is now one step closer to ratifying the 1954 Hague Convention and its two Protocols. The Cultural Property (Armed Conflicts) Bill had its Third Reading in the House of Commons and was passed without amendment. The Bill will enable the UK, finally, to accede to the Convention, a mere 63 years after its enactment.
The Third Reading provided one last opportunity for those who have championed, challenged and scrutinized the Bill’s provisions throughout its passage through Parliament to air their views. Whilst some spirited exchanges took place, all of those proposing amendments did so not with any serious hope of effecting changes, but simply to tease out further responses from the Government on points of concern and – perhaps more constructively – to urge that they be addressed in any guidance to be produced on the Bill.
Interesting points were discussed relating to digital cultural property and a proposal to extend jurisdiction over foreign nationals embedded in the UK armed forces in relation to offences under the Second Protocol. The Government reassured the House that there was no need for amendment to deal with the first point, which focused specifically on whether cyber-attacks are covered by the Bill. The Minister (Parliamentary Under-Secretary of State for Culture, Media and Sport, Tracey Crouch) was confident that they would. In response to the second issue, the effect of the proposed change would be to extend UK jurisdiction beyond the UK’s obligations under the Convention and Protocols. This was considered inappropriate and at odds with standard military practices, so again, the proposal wasn’t pursued.
The meat of the discussions focused on the thorny issue of the mens rea for the new offence the Act will create of dealing in cultural property unlawfully exported from an occupied territory. You might recall from our previous blog post that a person will be guilty of the offence if he or she deals in such property “knowing or having reason to suspect” that it has been unlawfully exported.
We have been following this debate with interest, and, indeed, it has been the subject of comment not only in Parliament, but also in an open letter to The Times. It was the focus for almost all of the ‘written evidences’ submitted to the Government, with views ranging from strong support for the Government’s proposed formulation, to fears that it would “impose an unacceptably draconian level of objective liability” (submission of the British Art Market Federation).
Few of the points raised on Monday brought anything new to the table. Mainly, they reiterated the concern that the ‘reason to suspect’ threshold might result in the conviction of a person dealing in good faith simply for “lacking curiosity or being careless” (Sir Edward Garnier, Conservative MP for Harborough). Victoria Borwick (Conservative MP for Kensington and President of the British Antique Dealers’ Association) described a scenario where a dealer, on the point of making a sale, out of the blue, receives an allegation that the item to be sold was unlawfully exported from a potentially occupied territory. Whilst that claim might be entirely groundless, and the seller might genuinely believe that the item has impeccable provenance, he or she might fear that the allegation could be deemed a ‘reason to suspect’ and thus withdraw the item from sale. This might affect the future saleability of the work, ‘tainting’ its reputation and scaring off potential buyers.
In response, David Burrowes (Conservative MP for Enfield and Southgate and co-chair of the All-Party Parliamentary Group on Cultural Heritage) didn’t think that this aspect of the Bill would cause a “serious problem”, concluding 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”. This position was echoed by the Minister, whose line was – as it has been throughout the debates – that the Bill isn’t intended to require anything new of the art market. In circumstances where fresh, convincing evidence about an object is presented to a dealer shortly before a proposed sale, that dealer would already be expected to pause and consider whether further due diligence should be undertaken. If, however, an apparently groundless allegation is made, with no supporting evidence, it may be “perfectly legitimate” for a dealer to disregard it and proceed with the sale. “Such claims are unlikely to be considered a reason to suspect that an object has been unlawfully exported.”
The art market was encouraged to draw further comfort from the promise of imminent guidance (meetings have already commenced to prepare this) and from the relatively narrow remit of the new offence. The Minister usefully pointed out that the Bill is about protecting a small but very special category of cultural property: that which is “of great importance to the cultural heritage of every people”, as defined in Article 1 of the Convention. The offence relates only to such property which was unlawfully exported from occupied territory after 1956 (when the Convention and First Protocol came into force) which is then imported into the UK after the Bill is enacted and the subsequent Act comes into force. Further perspective was offered Kevin Brennan (Labour MP for Cardiff West) who cited the prediction in the Government’s Impact Assessment of the Bill that there would be one prosecution every 30 years under the Act.
There was no denying that this has been a controversial issue, which has had Ministers, the art market, lawyers and academics grappling for a solution. Whilst not everyone with an interest is entirely comfortable with the result on this particular point, the overwhelming sense is one of relief and gratitude that the Bill will now move to Royal Assent imminently. Few would disagree that this is a case of ‘better late than never’.