I am very grateful to the noble Earl, Lord Kinnoull, for raising this issue and giving rise to this useful debate. I know he has extensive experience of the art insurance market and am grateful that he gave up time to take us through that and to try and find a way forward, because we are obviously keen, as I keep saying, to progress the Bill. I am also grateful to the noble Lord, Lord Redesdale, for his comments.
I acknowledge the concern that the noble Earl raises that those who deal with cultural property, whether in museums, insurance companies or shipping companies, should understand what they must do in order to comply with the Bill and with the convention and its protocols. The noble Lord, Lord Howarth, also asked how people are supposed to know that they are acting properly, and I will explain some of the things that will happen.
The Collections Trust, on behalf of Arts Council England, provides extensive guidance for museums, collectors, dealers and others on compliance with the legal requirements relating to cultural property, including on conducting due diligence to establish provenance and on related moral and ethical issues. There is a section on the Collections Trust website that references the 1954 Hague convention and its obligations. A wide range of other organisations also provide advice and guidance to their members and sectors on these issues.
These organisations are best placed to provide expert advice on how to go about determining whether an object is unlawfully exported cultural property. The Bill does not require those dealing with cultural property to do anything they do not already do. Conducting due diligence and determining the provenance of cultural property is an established part, I am glad to say, of what museums, collectors, dealers, insurers and others do in this country, which is of course one of the reasons we have great museums and a buoyant art market. The questions of whether cultural property was exported before or after a particular date and whether it was exported from an occupied territory are part of the broader and more basic question of whether it was lawfully exported at all. This is the key point on which anyone dealing with cultural property will want to satisfy themselves.
What would constitute “reasonable” procedures will vary from case to case depending on the particular circumstances, and it is difficult to issue one-size-fits-all regulations. This is true in other areas too, as the noble Lord, Lord Stevenson, suggested. We will work with Arts Council England, the Collections Trust and other stakeholders to ensure that clear guidance is available and up to date, to help all those who deal with cultural property to understand and comply with the Bill. I will make sure that my department ensures that the information available in relation to the Bill including that on websites—as we have discussed, we now have to have things on websites in relation to every bit of legislation—fully reflects the requirements of the Bill.
Amendment 30A relates to Clause 29(3). Clause 29 is a standard clause which appears in numerous pieces of legislation and has been the subject of interpretation by the courts. For example, there is similar provision in the Dealing in Cultural Objects (Offences) Act 2003, and I would hesitate to amend this, for reasons of consistency. The intention of such a clause is to ensure that senior officers of a company who are personally involved in an offence can be held personally responsible and cannot escape liability by hiding behind the company.
I understand that the noble Earl, Lord Kinnoull, is concerned, as perhaps are others, as to whether “manager” might, in a large organisation, cover relatively junior employees in management roles. I am advised that this phrase has been considered by the courts, which have determined that “manager” refers only to those in a position of real authority as regards the company’s affairs and not to those merely responsible for day-to-day management of part of the business. It is therefore the most senior company officers who might be held liable under this clause. In any event, the key point to note is that liability will arise only if the individual has personally consented to or connived in the offence.
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I will pick up two or three of the other points made. First, loaning of items is obviously important. We all like the free flow of objects around the world for galleries. The Government consider that the likelihood that cultural property owned by a reputable institution or collector might be unlawfully exported cultural property is extremely small. Museums, being what they are, already research and consider the provenance of cultural property and assess the risk that it has been
stolen and/or unlawfully exported from another state. This is covered in existing codes of practice, such as the Code of Ethics for Museums and its supporting guidance published by the Museums Association. We would be concerned about providing a safe harbour or carve-out from the Bill. We do not want to risk creating a loophole which could be exploited by the unscrupulous and do not think that any particular group should be given special treatment.
My noble friend Lord Inglewood, who knows so much about the art market under many different hats, had concerns about the mens rea issue. In response, I can say that my officials have met the British Art Market Federation to discuss its reservations about the drafting of the dealing offence in the Bill and the potential implications for the art market. We expect dealers to conduct thorough due diligence in line with the industry standards, which require that members undertake not to purchase, sell or offer any item of property that they know has been illegally exported. It is vital that the mens rea offence of dealing in unlawfully exported cultural property should be sufficient to encourage good practice in due diligence, rather than have the unintended effect of discouraging dealers from carrying out such inquiries. We are talking about the right motivation and decent information. I hope that my noble friend will feel that is what is necessary, but I would of course be happy to meet to discuss the issue if he has remaining concerns, because of the importance of the art market.
I hope that I have responded to the various points raised and that the noble Earl will feel able to withdraw the amendment.