Alerting the public to existential threats posed to much of the art market by draconian regulations is a difficult task. Unless your audience has a stake in the game, it can be difficult to hold their attention or gain their sympathy.
Surely this is just another example of the market pleading for special treatment, critics will say.
So, getting the message across can depend on making a connection with something that resonates far more closely with the public’s conscience.
This is where the Windrush scandal comes in.
Its origins date to 1948, just after the Second World War, when the British Nationality Act granted British subjects from the Colonies the right to come to the UK and settle. Many came from Jamaica and other parts of the Caribbean, and what became known as the Windrush generation acquired its name from the Empire Windrush, one of the first ships to transport them across the Atlantic to Britain’s shores.
Up to 1970 around 500,000 people arrived in Britain under the scheme, encouraged to make the journey by successive governments in an effort to help rebuild the country post-war.
Having a legal right to come to the UK, they neither needed nor were given any documents upon entry, nor following changes in immigration laws in the early 1970s.
When former colonies established their independence, new legislation limited the rights of their citizens to emigrate to the UK. Those who had arrived before 1973 had an automatic right to remain permanently unless they left the UK for more than two years.
Enshrining rights in legislation
Again, because the right was automatic, many people who qualified were never given, nor asked to provide, documentary evidence of their right to remain. Those rights were further enshrined by the Immigration and Asylum Act 1999, which protected long-standing residents of the UK from Commonwealth countries from enforced removal.
The Home Office deemed such people adequately protected when immigration legislation was updated in 2014, and so the provision was not included. By then, however, the UK was already operating a hostile environment policy to discourage immigration and to make it easier to expel illegal immigrants.
As policy tightened, ID checks and other measures such as the continuing provision of services made it necessary for individuals to prove that they had legal residence.
When the scandal eventually broke in 2018, thanks to legal action by the Equality and Human Rights Commission (EHRC), it became clear that people had been wrongly detained, denied legal rights, and threatened with deportation, because they could not prove their status; 83 cases of wrongful deportation were identified. Others lost their jobs and homes or had their passports confiscated and were denied health care or benefits to which they were entitled.
The Home Secretary, Amber Rudd, resigned over the scandal.
The ensuing independent inquiry, Windrush Lessons Learned Review, reported back in early 2020, ruling that the Home Office had shown “ignorance and thoughtlessness” and that what had happened had been “foreseeable and avoidable”. It further found that immigration regulations were tightened “with complete disregard for the Windrush generation” and that officials had made “irrational” demands for multiple documents to establish residency rights.
“Ignorance and thoughtlessness”; “foreseeable and avoidable”; “complete disregard”; “irrational”.
Essentially, the innocent fell victim to a cruel and excessive policy because of the retroactive application of modern standards: although when they came to Britain documentary evidence of their residency rights was seen as unnecessary and so not issued, they were being forced to provide it decades later or suffer the consequences.
The demand to supply non-existent documentation
This is what was meant as “irrational”; how can you supply evidence that never existed? How can the authorities demand it when they know it never existed?
Not just “irrational”, the policy was also tyrannical, undemocratic, and a breach of human rights. No wonder politicians expressed their shame and resigned; no wonder the public and human rights bodies were outraged.
And yet, this is far from an isolated incident.
At the heart of almost every debate between the art market and the authorities, regarding cultural property, is the matter of provenance. Vanishingly few artworks and artefacts have a complete documented history dating back to their creation or discovery. In many cases this is because where such documentation once existed, it has been lost or destroyed over time. In many other cases it never existed because it was not required at the time of original sale or export.
Nonetheless, those who challenge the market – from governments and NGOs to law enforcement and advocacy bodies – demand that such documentation must be provided now if these items are to be allowed to circulate freely in the international market. Failure to provide this non-existent paperwork to meet a modern standard that was not in place before very often results in these items being deemed illicit and so seized.
Far from being ashamed, embarrassed and outraged at this treatment of businesses and individuals, those championing such policies continue to press for more restrictions.
If you agree that the victims of the Windrush scandal were ill-treated and were subject to a serious infringement of their human rights by being subjected to such unreasonable demands, then the violation of rights meted out to market professionals and private individuals alike on the same score should concern you deeply.
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