Trade fears Cultural Property Bill’s criminal liability clause will damage the art market

by | Nov 21, 2016 | News, Uncategorized | 0 comments

The UK’s leading art trade associations fear well-meaning legislation to protect cultural property in occupied armed conflict zones might damage the wider legitimate market.
The warning came as they tried to persuade ministers to reword a vital clause in the new Cultural Property [Armed Conflicts] Bill that the associations otherwise fully support.
While the Bill aims to protect a very small but very special category of cultural objects, the associations believe its test for criminal liability would expose even honest dealers acting in good faith to possible prosecution, leading them to shun many works that might otherwise be traded legitimately.
On November 15 Victoria Borwick, President of the BADA and MP for Kensington, put the case for the industry as a member of the Bill committee.
Backed by submissions and support from the British Art Market Federation (BAMF), Antiquities Dealers’ Association (ADA), British Antique Dealers’ Association (BADA) and Art and Antique Dealers’ Association (LAPADA), she also argued that the lack of clarity over the definitions of cultural property, due diligence and acceptable codes of conduct under the Bill would leave the art market vulnerable.
The legislation, which is being brought in to protect the cultural heritage and treasures of occupied countries, states that people who deal in unlawfully exported cultural property “knowing or having reason to suspect” that it has been unlawfully exported would commit an offence.
Prior legislation, including The Theft Act (1968) and the Dealing in Cultural Objects (Offences) Act (2003), limits criminal liability to dishonest intent, but the “having reason to suspect” term under this Bill means that someone with no intention of handling illicit items could be guilty even if their own honestly made assessment of information means that they are not actually suspicious.

A matter of dishonest intent

The trade associations understand that the Government has a duty to protect cultural property under the terms of The Hague Convention 1954, which the Bill sets out to ratify, but have reservations about whether the liability clause goes beyond what is strictly necessary for compliance with the convention.
They have argued that the wording should be changed to “knowing or believing”, which includes the element of dishonest intent, but the Government and other campaigners for the Bill disagree that this is necessary.
Ministers have argued that the limited scope of the objects the Bill aims to protect means the art market will not have to change the way in which it operates and that anyone who has carried out proper due diligence is “unlikely” to find themselves at risk.
However, the Government is also refusing to publish a definitive list of countries that it considers to have been occupied since the Convention came into force in August 1956 because of what it refers to as “international sensitivities”, interpreted by some as not wishing to offend allies – would Israel be content to see the West Bank listed, for instance? – so the art market has no yardstick to measure against when it comes to compliance.
The new law would only apply to objects imported to the UK after the Act comes into force, but would cover items that had been exported from their country of origin since August 7, 1956, when the Hague Convention first applied.
Part of the difficulty with this is that while it may be possible to identify where an object has come from, it is not always possible to identify when it was exported and if that export took place illegally when a country was occupied, assuming that it is clear that the country was occupied under the rules.
Technically, if a dispute arises that is pursued, the first time a dealer or auctioneer would know whether or not they were at risk is when the Secretary of State assesses their case and gives a ruling, but by then they would already have broken the law if the ruling went against them.
For this reason, the concern is that an auctioneer or dealer might feel obliged to exercise undue caution because they fear they may break the law if they ignore a “reason to suspect”, which they do not regard as suspicious.
As Sir Edward Garnier MP, a lawyer opposing the clause, has argued, the “reason to suspect” an object may be so weak as to be all but untenable, but still qualify: “The mere making of an unfounded allegation that an item was unlawfully exported from an occupied territory after 1954 may place in the mind of the dealer or auctioneer a reason to suspect that it had been unlawfully exported; and although it may later turn out to be untainted, he will not go near it.”

Reversing the burden of proof to ‘guilty until proven innocent’

The Antiquities Dealers’ Association had argued that embassies and others fairly regularly challenged sales at auction houses, demanding to know the provenance of items and due diligence undertaken, but without offering any evidence to support their challenge. These usually happen within days or even hours of an auction, often, it is suspected, with the express purpose of blighting it.
As BAMF’s submission argued: “How is the auction house or dealer to respond if an assertion is made on social media or a blog that an object is illicit under the terms of the Bill? The allegation may subsequently be proved to have no foundation, but no auction house is likely to run the risk of possible criminal prosecution and if there is no time to investigate its veracity, there will be no choice but to remove it from the sale to the obvious disadvantage of the seller.”
Such a blight would inevitably have an impact on the future saleability and possibly the value of the item, even if there prove to be no grounds for the allegation, said ADA chairman Joanna van der Lande.
Victoria Borwick had success in pressing the case of the ADA over the definition of cultural property under the Bill, which as presently worded can be interpreted as encapsulating all works of art, regardless of their merit.
Statements by the Secretary of State, Karen Bradley, and Parliamentary Under-Secretary of State, Tracey Crouch, during the 2nd Reading in the House of Commons on October 31, left some doubt over how the Government interpreted the definition, but when pressed by Lady Borwick at the Committee hearing, Ms Crouch confirmed that, as far as the Government was concerned, the definition – taken from The Hague Convention 1954 – only referred to works “of great importance to the cultural heritage of every people”.
Victoria Borwick later said: “The art market fully supports the aims of the Bill in protecting cultural property and heritage in occupied countries, and the Government is understandably keen to be the first permanent member of the United Nations Security Council to ratify the Hague Convention and its two protocols. However, it is essential that the Bill is fit for all its intended purposes when passed into law.
“We fear that as things stand honest dealers, auctioneers and collectors would be left with too much uncertainty for the UK art market to continue to operate undamaged. Nonetheless, I am grateful to the Minister for being so clear on the definition of cultural property and for promising to consult further with a view to setting out clear guidance on other parts of the Bill in order to make matters more straightforward for the trade.
“Those representing the industry hope to play a full part in that process.”
The Bill will go for further debate in the chamber of the House of Commons in the next few weeks as it reaches its Report stage, which is the final stage at which the criminal liability clause can be challenged.
Members of the trade or collectors who wish to support the trade in its aims should write to their local MP as soon as possible asking them to make those views known during the Report stage.

ADA member wins Best Stand at LAPADA Fair… for the second year running

by | Sep 20, 2016 | News, Uncategorized | 0 comments

Congratulations to Costas Paraskevaides of Art Ancient, who has won Best Stand at the LAPADA Fair, Berkeley Square, in London for the second year running.

Competition was stiff among the 113 exhibitors, and the highly decorative and imaginative designs of many LAPADA dealers in presenting their stock made Art Ancient’s victory all the more impressive.

 

The British Museum and Christie’s do their bit for Afghanistan’s national museum… and debunk sensationalist media coverage of the Syrian crisis

The British Museum and Christie’s do their bit for Afghanistan’s national museum… and debunk sensationalist media coverage of the Syrian crisis

by | Sep 12, 2016 | News, Uncategorized | 0 comments

salaam-gatewayThe Global Islamic Economy Gateway (Salaam Gateway) has published an article, titled Ownership, restitution and provenance: The looted Afghan bowl that went around the world and back again, about the restitution of an important Safavid bowl looted from the National Museum of Afghanistan over 20 years ago. Siobhan Forshaw talks to Dr St John Simpson, Assistant Keeper of the Middle East Department at the British Museum, and Christie’s about their part in its recovery. She also airs Dr Simpson’s concerns over the way much of the media have been misreporting data on looted and stolen art linked to the Syrian and Iraqi crisis, the widely promoted but inaccurate view of the art market working on “on a system of nods and winks”, and what should be done to tackle the real issues.

Antiquities Dealers’ Association says new Culture Bill needs vital changes to safeguard refugees and legitimate art market interests

Antiquities Dealers’ Association says new Culture Bill needs vital changes to safeguard refugees and legitimate art market interests

by | Jun 13, 2016 | News | 0 comments

The new Cultural Property (Armed Conflicts) Bill must include vital changes if it is to be workable, says the Antiquities Dealers’ Association (ADA).

Most important is a clear and acceptable definition of what constitutes cultural property under the law, firstly so that everyone knows exactly what the regulations apply to and, secondly, so that the measures do not unintentionally blight artworks and objects that have nothing to do with this issue.

This is not just about the trade; implications for refugees and the military add to the importance of getting it right, says the association.

“The ADA very much supports measures that protect cultural property and archaeological sites, and we are active participants in the All Party Parliamentary Group (APPG) reviewing cultural property,” said ADA chairman Chris Martin. “That work has fed directly into the Government’s Impact Assessment for the new Bill, which acknowledges the importance of the ADA’s code of conduct in exercising robust due diligence.”

The association notes distinct improvements on the unadopted 2008 draft Bill that failed to address a number of difficulties, but argues that serious concerns remain. For example, the new Bill, announced in The Queen’s Speech to parliament last month, adopts The Hague Convention 1954, whose “cultural property” definition is not specific enough.

While it cites “property of great importance to the cultural heritage of every people”, it also includes “works of art”, which could be just about anything and would have serious implications for the entire art market.

“We have no problem with adopting The Hague Convention in principle, but would argue that Article 1 of the UNESCO Convention – already adopted by 130 countries – is more appropriate,” says Martin, “because it restricts the definition to items of ‘outstanding universal value’ in terms of cultural heritage.”

In 2008 the Government stated its intention as being to “protect the nation’s most important cultural property” in relation to ratifying the Hague Convention, so the ADA argues that the new Bill should reflect this intention and not expand its remit to cover a much wider field of artworks, even unintentionally.

“If it is not possible to alter the wording of The Hague Convention’s definition under the new Bill, then the Government should include an additional clause to clarify its intention,” says Martin.

New clause addresses military concerns

As was highlighted in the 2008 draft, the armed forces observe a ‘No Strike’ policy when it comes to significant cultural monuments, treasures and archives, which is exactly why the enemy often position themselves there. At some point, however, military commanders have to decide whether the need to strike outweighs the need to preserve the cultural property.

The new draft bill now addresses this by introducing a waiver on the grounds of “imperative military necessity”.

The draft also comes closer to defining the term ‘occupied territory’, a pre-requisite for judging whether items have been illegally exported or not. While areas of the Middle East might obviously be conflict zones or occupied territories, numerous other regions across the globe might also qualify without that being evident.

In 2008, the Government expressed its concern that people unintentionally risked prosecution for handling illegally exported items if a clear definition of ‘occupied territory” was not forthcoming.

The new Bill appears to remove that risk by making it a condition that the person involved only commits an offence if they deal in unlawfully exported property “knowing or having reason to suspect that it has been unlawfully exported”.

The Government has also narrowed the term ‘dealing’ under the Bill, defining “acquires’ as meaning ‘buys, hires, borrows or accepts”, while ‘disposes of’ covers “sells, lets on hire, lends or gives”.

“This addresses concerns that the previous, looser definition might interfere with due diligence, but people need to be aware that in several ways the definition of dealing means simply handling the objects,” said Martin.

Another area of concern is the proposed rules on returning seized property if it is not forfeit.

While the Bill states that it should be returned “as soon as is reasonably practicable”, it goes on to state that if this is not possible within 12 months, “the property may be disposed of in such a manner as the person who for the time being has custody of the property thinks appropriate”.

“We would want some clarification on this as it is possible that this clause could be exploited by the unscrupulous and could well be detrimental to the interests of refugees, not just the trade,” said Martin.

New Bill fails to tackle refugee issue

When the measures were discussed eight years ago, the Culture Select Committee also highlighted the difficulties for fleeing refugees, observing that to expect a country undergoing occupation – when most refugees would be leaving – to have a workable system of export licensing “seems a little unrealistic”.

However, the new draft Bill does not appear to tackle this issue at all. This means that without the correct paperwork, refugees are likely to find their valuables tainted and impossible to sell when they most need the money.

The ADA believes that this taint might also put the Bill in direct conflict with the Human Rights Act, which legislates for the free enjoyment of property.

“We recently raised these issues with the United Nations Security Council’s sanctions monitoring team when they consulted us on the issues of Syria and Iraq. In our view, if you can’t define what something is, then you cannot legislate for it effectively,” said Martin.

“We are keener than anyone to prevent looting, not least because it is the legitimate trade’s reputation that criminals risk tainting by their activities. The highly robust new Code of Conduct we have recently drawn up sets the standard for others to follow and illustrates the serious intent of the association in promoting honest dealing.”

That has included lowering the price threshold at which the ADA requires members to carry out additional due diligence measures from £10,000 to £3000.

“We will be back in discussions with the APPG later this month and will raise our concerns with them then,” said Martin.