Tribunals, Courts and Enforcement Bill [HL]

I support this chapter in general but, like the noble Lord who has just spoken, I am a little anxious that the Bill is insufficiently clear upon this matter. In his Second Reading speech, the noble and learned Lord, Lord Falconer of Thoroton, said: "““The immunity will only be given to museums and galleries approved by the Secretary of State for Culture, Media and Sport. We will be looking very carefully at the procedures for due diligence followed by each museum wanting immunity before approval is given. We have published a code of practice setting out guidelines on the due diligence that should be undertaken by a museum that is considering the acquisition or loan of cultural material””.—[Official Report, 29/11/06; col. 766.]" I am sure that is fine so far as it goes, but that assurance is not given in the Bill, and I think that there are grounds for wondering how this procedure might be applied. I have in mind two hypothetical cases, although one of them might not be altogether hypothetical. I am confident that the Minister would be inclined to grant approval, for instance, to the Royal Academy of Arts, which is a very worthy institution. But it may be recalled that less than a decade ago the Royal Academy of Arts put on an exhibition with the rather grandiose title ““In Pursuit of the Absolute””, which comprised the private collection of Mr George Ortiz. I do not wish to say anything inappropriate, but it is fair to say that many items within that collection would not have passed the criteria very clearly spelt out in the code of conduct for combating illicit trade, which was subsequently published by the Department for Culture, Media and Sport. It is clear to me that the Royal Academy of Arts would need explicitly to subscribe to this code of conduct before it was approved, but it is not clear to me that the Bill requires that. Moreover, it is not clear to me which staff on the Royal Academy of Arts have the expertise to undertake the necessary due diligence scrutiny for that purpose. The second case I have in mind is the possibility of a loan from the Metropolitan Museum of Art, whether to the British Museum or, say, to the Serpentine Gallery. The lay person might think that the Metropolitan Museum of Art was an institution beyond reproach in these matters, but I can offer a scintilla of doubt on such a proposition because the Metropolitan Museum of Art accepts into its permanent collection many items which would not pass the criteria of due diligence required by the DCMS code of conduct. Indeed, one can foresee the possibility that a piece might be lent by the Metropolitan Museum of Art that would fall foul of the Dealing in Cultural Objects (Offences) Act 2003 if it could be held that it was dealing. An exhibition might carry that connotation, although it would be a legal point, so we need a provision in the Bill. I am happy with Amendment No. 132, to which the noble Lord, Lord Thomas, has spoken, but I would make one further point. I think an essential component of due diligence where antiquities are concerned is the 1970 rule, which is thoroughly embedded in the current guidelines combating illicit trade. That might be implied in the amendment to which the noble Lord has already spoken, but it is perhaps less explicit than in my own amendment which makes reference to the code of conduct. It is very explicit on that point. Some further assurance is needed. Something ought to be in the Bill, otherwise we will have a loophole through which a case such as I have described might inadvertently pass. I beg to move.