UK to repeal import prohibition derived from EU law

Posted on: May 25, 2021 by

The UK government last week began the process to repeal a prohibition on the import of cultural goods unlawfully removed from their country of origin. Seeing as this repeal could potentially damage the reputation of the UK’s art market, one expert body is urging the UK to take additional measures to minimise any risks associated with the repeal. The UK Committee of the Blue Shield (UKBS), the UK chapter of the international organisation tasked with ensuring the protection of cultural heritage during armed conflict, has issued a press release asking that the UK take action by properly enforcing its pre-existing laws at the border and by addressing complications arising in the case of Northern Ireland. It is feared that Northern Ireland could become an unintended gateway through which cultural goods are spirited into the EU.

The prohibition at issue currently affects most types of cultural goods – from archaeological finds, antiquities and sculptures to paintings, archives and rare manuscripts – and derives from a piece of EU legislation that was maintained in the UK after Brexit as ‘retained EU law’ under the terms of the EU (Withdrawal) Agreement Act 2018. The EU legislation is Regulation 2019/880 on the introduction and the import of cultural goods, which also includes plans to establish an electronic database for controlling imports of cultural goods through licensing and disclosure requirements, a system that will come into operation sometime before June 2025. The UK has already indicated that it will not implement any electronic database nor any import licensing. The prohibition mentioned above, however, had already begun to apply before the end of the Brexit Implementation Period and so an active decision is now required by Parliament to repeal it.

In March, an early attempt at repeal was made by the Department for Digital, Culture, Media and Sport (DCMS) through the ‘negative procedure’ for statutory instruments. This procedure can be used to remove parts of retained EU law if they are deficient or redundant. However, sifting committees in both the House of Commons and House of Lords refused to accept that the prohibition was deficient or redundant, requiring instead that the proposal be laid openly before Parliament as a whole. As the Lords committee stated in March: ‘we are concerned that this [attempted repeal] may nevertheless have the potential of weakening the legal prohibition that is currently provided… We also note potential concerns that the UK should do more to prevent the import of stolen or looted cultural goods.’ A statutory instrument repealing the prohibition was thus re-introduced last week, this time through the ‘affirmative’ procedure, and will likely be debated in early June.

The EU Regulation’s prohibition affects cultural goods removed in breach of the laws and regulations of their country of origin by prohibiting their introduction into EU (or UK) territory. This presents a significant shift in the law – both in the EU and the UK. In the UK, for instance, import offences generally exist for specific types of cultural objects, like those unlawfully removed after 2003 from buildings or excavation sites, those unlawfully exported from certain occupied territories and those unlawfully exported from Iraq after 1990 or from Syria after 2011. In addition are the general criminal offences for ‘dealing in’ (which includes importing) stolen property or the proceeds of crime, as well as making false declarations to customs in relation to imported goods. Generally one can only be convicted for such offences if one knew, believed or had reason to suspect the goods had been unlawfully removed.

The prohibition in the EU Regulation, on the other hand, places a strict bar on entry, regardless of the level of knowledge, belief or suspicion of the importer. In addition, it applies very broadly to all unlawful exports regardless of when those exports occurred – some potentially a great many years ago. If the UK succeeds in repealing the prohibition (which seems likely at this stage), it will fall back on its pre-existing patchwork of criminal offences referred to above.

In today’s press release, the UKBS states that it does not oppose the UK’s revocation of the Regulation. This is because the Regulation is seen to have gone much further than the EU’s initially stated intention of stopping the illicit trade in antiquities that served to finance terrorism. A broad import prohibition combined with an extensive electronic database and an import licensing scheme is also seen to have an unreasonable impact on the legitimate art market.  Nevertheless, the UKBS does not approve of a simple repeal: it notes that the existing criminal offences in the UK are not sufficiently enforced at the border. The way to preserve the reputation of the UK art market and to ensure that the UK does not soon become a hotspot for illicitly traded cultural goods is to enforce existing rules more appropriately. By doing so, the UK will be able to show the world that it treats the fight against the illicit trade with great attention and seriousness.

An added complication that affects Northern Ireland was also raised by the UKBS. EU Regulation 2019/880 was added to the Northern Ireland Protocol in December 2020. This means that the prohibition, the forthcoming electronic database and the import licensing scheme will apply in Northern Ireland even if they do not apply in the rest of the UK. The intention behind the Northern Ireland Protocol is of course to ensure a frictionless border between Northern Ireland and the Republic of Ireland. However, the outcome with respect to the Regulation will be that Northern Ireland will have to enforce the prohibition once it is repealed in Great Britain. If this enforcement is not carried out, then there will be a risk that Northern Ireland becomes a gateway through which cultural goods enter the EU without going through the usual checks. As noted by UKBS, no details have been provided by government to ensure that this does not happen.

Furthermore, once the electronic database and the import licensing system are set up under the Regulation, the relevant authorities in Northern Ireland would have to implement these. For cultural goods travelling from Great Britain to Northern Ireland, the relevant authorities may turn out to be based in Great Britain (i.e. Arts Council England, which already operates the UK export licensing system). This would mean authorities in Great Britain would likely need access to the EU’s electronic database and would have to issue EU import licences and oversee EU importer declarations. The irony is that, despite the UK’s stated intention to revoke EU Regulation 2019/880, authorities in the UK would end up needing to enforce the Regulation, at least insofar as Northern Ireland is concerned.

As Fionnuala Rogers, cultural property lawyer and Chair of the UKBS, states in the press release: ‘Equivalent checks will need to be carried out in Great Britain, and UK customs will need to ensure that cultural goods being exported to Northern Ireland, whether destined for the EU or not, have not been illegally exported from their country of origin, a check that is not currently required at UK borders. Ultimately, the UK is going to have to make some significant changes as a result of this Regulation, despite the revocation.’

Meanwhile Professor Peter Stone OBE from Newcastle University, the President of Blue Shield International, states in the press release: ‘The UK’s “do nothing” approach risks being seen as a nod to the rest of the world that Great Britain is the destination for objects that do not meet the strict standards of the Regulation implemented across the EU.’

I was also quoted in the press release, saying: ‘Rather than a “quiet repeal”, the UK should instead come out and demonstrate its commitment to fighting illicit trade by ensuring that its existing national legislation is properly implemented and enforced at the border. Only through such actions will the UK be able to ensure that its art and antiquities market remains legitimate going forward.’

The UKBS also called on the UK government to form a cross-disciplinary working group to discuss consistent measures to mitigate the risks created by the developing inconsistencies between the EU and UK systems.

For more on the UKBS and to read today’s press release SEE HERE.