It was heartening to see the strong support for the Cultural Property (Armed Conflicts) Bill 2016 when it was debated at the Committee Stage in the House of Lords last week (28 June). The Lords discussed at length, and with some passion, the amendments tabled by a number of peers. The proposals for changes came from a range of perspectives including the art market, law enforcement, archaeology and the Armed Forces. In the main, the amendments were raised to spark debate rather than to force through drastic changes to the provisions of the Bill. There was certainly no appetite for jeopardising its passage towards Royal Assent.
Many of the proposals were underpinned by common themes. The protection of digital cultural property, for example, featured a number of times and was championed most enthusiastically by Lord Stevenson of Balmacara (a former director of the British Film Institute). It exemplifies one of the trickiest aspects faced by the Bill’s draftsmen: to capture the spirit, purpose and language of an instrument drafted over 60 years ago (The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict) whilst creating a relevant and effective regime for the present day.
Take Lord Stevenson’s pet topic of digital heritage, for example. He expressed concern that the definition of cultural property in the 1954 Convention was not sufficiently broad to encompass film archives and television recordings: “Who could, these days, expect to understand, debate and discuss the culture of any country or time without having regard to the moving image?” he asked the House. He also advocated a digital version of the Blue Shield emblem, lamenting the use of “…a set of phrases … redolent of the 1950s in terms of sticky paper, etching and watermarking but there is no sense of how it might need to be applied in the digital age”.
Perhaps more fundamentally, the Bill has to grapple with the disparity between the conflicts of the 21st century and those familiar to the Hague generation of the 1950s. Lord Stevenson, amongst others, expressed regret that the Bill deals with matters affecting “officially declared wars” but fails to address areas of conflict which do not meet the formal criteria for a ‘war’. The conflict in Syria, which has witnessed cultural devastation on a massive scale, looms large in this regard. His concern was shared by Lord Renfrew of Kaimsthorn who re-iterated the fear that the Bill will not be effective to prevent another Palmyra or Mosul.
Lord Stevenson and others mooted the possibility of a third protocol. This would provide an opportunity to extend the Bill’s provisions to conflicts ‘not of an international character’ (dealt with by Article 19 of the Hague Convention) and to expound a more ‘modern day’ definition of cultural property.
Other important proposals included the suggestion by Lord Collins of Highbury to reverse the burden of proof for sales of cultural property from war zones. This would require those responsible for such sales to “assume that an item has been unlawfully exported and take all necessary steps accordingly”. The related issue of ‘object passports’ was also raised by a number of those involved in the debate.
A reassuring and empathetic response was offered by Baroness Neville-Rolfe (Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills and Department for Culture, Media and Sport) leading to the swift and gracious withdrawal of the amendments debated. As regards the proposal to re-define cultural property, she was confident that the existing definition was both “necessary in order to meet our obligations under the Convention but flexible enough to meet the concerns expressed about what sort of cultural property might be covered”. Her response to the proposal for reversing the burden of proof echoed the significant concerns expressed by a few of the peers. Lord Howarth of Newport reminded the House of “…our legal tradition that people are innocent until proved guilty”. It was also a step too far for Lord Inglewood (president of the British Art Market Federation), who agreed with Lord Howarth that it would represent “a pretty fundamental change to the way that things are done in this country” which risked driving “the bad lads underground…”.
Baroness Neville-Rolfe agreed that the art market’s longstanding self-regulation continues to be appropriate, underpinned by its codes of ethics which should be strictly enforced. She also reminded the House of the existing legal framework to tackle unlawful dealing in cultural objects (including the Dealing in Cultural Objects (Offences) Act 2003 and the Syria and Iraq sanctions orders). Thinking about a third protocol at this point in time felt like the Lords might be “getting a bit ahead of ourselves” and there was a strong sense that there should be no distraction from the key goal of securing the current Bill’s place on the statute books.
Further details on a number of the issues raised by the Lords during the Committee Stage were promised by Baroness Neville-Rolfe in her Report – which represents the next stage for the Bill in its passage through Parliament and usually starts 14 days after Committee Stage has concluded. We look forward to the Report and will be keeping a keen eye on what we hope will be a smooth passage for the Bill through the Third Reading in the Lords and then onto the ‘other place’.