With the bill reaching the report stage and a push underway to get it through Parliament before Christmas, the association is now calling on people in the industry to write to their MPs encouraging them to support an important amendment to the legislation.
Their chief concern centres on a clause that states people would be committing an offence if they deal in works “knowing or having reason to suspect” that they were unlawfully exported from their country of origin. Along with other associations including BAMF, LAPADA and the BADA, the ADA believe this could mean that dealers, auctioneers and collectors could be exposed to prosecution for which the maximum sentence is seven years in prison, even if they were acting in good faith.
An amendment tabled by Conservative MP Sir Edward Garnier seeks to address this by changing the wording of the clause to focus on ‘dishonest intent’. Supporters of this amendment argue that a term such as “dishonestly knows or believes” would be fairer and more in line with other criminal statutes.
They say that in its current form, clause 17.1 of the Cultural Property (Armed Conflicts) Bill could be interpreted as meaning that, for example, dealers could be found guilty due to challenges being made over works – therefore giving them “reason to suspect” – for which they conducted checks, found nothing wrong and proceeded with a sale.
The ADA has now released its proposed wording for letters to MPs stating that this clause could risk a serious miscarriage of justice. It says that the “knowing or having reason to suspect” text should be altered to “knowing or suspecting” or “knowing or believing”.
Cultural Property Bill Text
- The cultural property bill, which is currently passing through Parliament, states that people would be committing an offence if they deal in works “knowing or having reason to suspect” that they were unlawfully exported from their country of origin.
Those opposed to this wording argue that, under this term, someone with no intention of handling illicit items could be breaking the law even if they made honest assessments but came to wrong judgments regarding whether items were lawfully or unlawfully exported.
They argue that the wording should instead focus on dishonest intent and thereby follow existing legislation including The Theft Act (1968) and the Dealing in Cultural Objects (Offences) Act (2003). Conservative MP Sir Edward Garnier, who is opposing the clause, argued that a term such as “knowing or suspecting”, “knowing or believing” or “dishonestly knows or believes” would be “fairer, more sensible and in line with other criminal statutes”.
However, Ministers argue that the bill is not designed to change the way the art market operates and say that anyone who has carried out proper due diligence is “unlikely” to find themselves at risk.
- Other clauses in the Bill relate to the definition of cultural property. At the Parliamentary committee hearing at the end of last month Lady Borwick succeeded in pressing the government to clarify that the definition – taken from The Hague Convention 1954 – only referred to works “of great importance to the cultural heritage of every people”. Borwick later said: “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.”