I am grateful to the noble Lord, Lord Rosser, for his amendment. It is evident that many Members of the House are, rightly, interested in the role that Border Force and other enforcement agencies can play in the context of this Bill. His involvement shows how wide-ranging is this Bill and the need for joined-up government. I thank him for his pertinent questions, which I shall try to answer.
It is appropriate to clarify once again that the drafting changes made to Part 4 are necessary to reflect the transfer of responsibility from HMRC to Border Force between initial drafting of the Bill in 2008 and now. The substance and policy behind the Bill remain the same, and the wide breadth of support for it is much appreciated.
I can confirm that we foresee no additional costs as a result of moving cultural property under the Bill due to the low volume of unlawfully exported property from occupied territories. The impact assessment was published in good time, but it was not cleared by the RPC at that stage—the RPC is looking at it. I shall bear in mind the point made about business costs, which is what it is concerned with.
Border Force already has nationally published guidance available to all officers via the Border Force intranet site on “cultural goods”, and “cultural goods” are also listed in the Border Force operating mandate. Border Force will update these instructions when the new legislation comes into force to take account of the new powers and ways of working. Border Force staff are already dealing with such responsibilities through its enforcement of the 2003 Act and the Iraq and Syria sanctions.
I think that many would agree that it would be inappropriate to require the publication of guidance about Border Force’s “enforcement practices”. Enforcement practices relating to combating smuggling are often the same regardless of the type of goods. To place this information in the public domain has the potential to impede customs controls and even to jeopardise national security. Moreover, it is extremely difficult for Border Force officials to make a judgment as to the provenance of an object of cultural property at the border. Expert advice is likely to be required involving the Clause 17 offence, so it is unlikely that Border Force will spontaneously seize many objects as a result of this Bill. It seems more likely that its role in enforcing the Bill will be in assisting other law enforcement agencies.
Given the expertise required to identify cultural property unlawfully exported from occupied territories, we do not see Border Force playing a major role in discovering the objects, but in the rare event that an officer can clearly identify something as having been illegally exported from an occupied territory, or has been tipped off, powers of seizure under the Police and Criminal Evidence Act 1984 can be used.
This way of working to tackle illicit trade is well established in the UK and Border Force already works with partners. For example, it prevents the illegal trading of Iraqi and Syrian antiquities, including in the UK, through the implementation of UN and EU sanctions and the use of the International Council of Museums red lists, which have not been mentioned today, which classify the endangered categories of archaeological objects and works of art in the most vulnerable areas of the world.
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To provide officials with specific training and a code of practice only in relation to this Bill could risk them focusing on the requirements of this legislation and failing to detect other items which fall outside the scope of the Bill, such as other unlawful cultural objects. As we have already agreed in relation to the previous provision, enforcement needs to be joined up.
Amendment 27 seeks to insert a new clause after Clause 24. I appreciate the noble Lord’s intention but such a provision is already addressed suitably elsewhere. If Border Force officials seize an item of cultural property for a purpose connected with the investigation or prosecution of a suspected offence under Clause 17, they are obliged to transfer the object to a constable as soon as is reasonable practicable after it ceases to be needed for that purpose. That is provided for in Clause 26.
In this amendment, only proposed new subsection (5) differs from Clause 24. It is unnecessary because where a cultural object may be liable to forfeiture under
Clause 19, the Secretary of State may apply for an interim order for safekeeping under Clause 22, which can make all the necessary provisions with regard to storage and care.
We have other difficulties with Amendment 24. First, the term “constable” is a recognised legal term which is widely used in legislation to refer to the police —as I am sure the noble Lord, Lord Rosser, knows better than I do—and means any police officer of any rank. In contrast, the expression “senior police officer”, which the noble Lord’s amendment uses, is not currently recognised in law or used in other legislation. To use it in the Bill, we would need to define what we meant by “senior police officer”.
Secondly, the amendment would create a conflict with the Police and Criminal Evidence Act 1984, which uses the word “constable”. Thirdly, the amendment could place an unnecessary restriction on the police. It would mean that a police officer of a rank within the definition of senior police officer would need to attend every operation to enter and search premises and to seize property which is believed to be unlawfully exported cultural property. This would place an undesirable legal restriction on how the police execute search and seizure warrants issued under this clause. Such a restriction does not exist in any other legislation providing for search and seizure warrants and we should not introduce one into the Bill.
Clause 24 provides that a constable may apply for an order allowing him or her to retain custody of cultural property which was seized in connection with an investigation or prosecution of a suspected dealing offence but is no longer required for that purpose.
As to Amendment 26, an order granted under Clause 24 allows the police to retain custody of the property until it is forfeited, returned to its owner or otherwise disposed of. A justice may make such an order if he or she is satisfied that there are reasonable grounds for suspecting that the property may be liable to forfeiture under Clause 19. The justice who grants the order can, of course, include in it such conditions as he or she considers necessary or appropriate. However, if the property requires specialist storage or conservation, Clause 22 provides that the Secretary of State may apply for an interim order, which may include specific requirements and conditions for the location, storage and conservation of property. Paragraph (d) of the proposed new subsection in the amendment is not required. As I explained in relation to the noble Lord’s amendment to Clause 22, there would be nothing to prevent a court making such an order if it were felt appropriate.
This is highly technical. Clause 25 sets out the requirements for giving notice to the owner of cultural property which has been seized or retained by the police. It is an important clause and I hope I have given enough information in relation to some of the other questions and provisions to make the noble Lord, Lord Rosser, feel able to withdraw his amendment.