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I make this point because there are always problems if we attempt to legislate where we are willing the end but not the means. There is a very important issue about the capacity of institutions to carry through due diligence to the standard that the department and every Member of the Committee rightly require. The DCMS document Combating Illicit Trade is admirable. Section 6 is headed “Due diligence—What it should involve” and on page 9 we see that there is a requirement to take expert advice. Further on in the document, on page 23, there is a lengthy list of possible sources of expert advice. I make the point that these processes—proper and necessary as they are—are time-consuming and resource-intensive, both for those who seek the advice and for those who give the advice. It is further suggested in the document, also on page 9, that, if necessary, seek legal advice. The noble Lord, Lord Thomas, will perhaps confirm to the Committee that legal advice can come very dear.
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I appreciate that the responsibility for this extends far beyond the normal responsibilities of the Department for Constitutional Affairs, but my noble friend Lady Ashton, of course, speaks for the Government as a whole when she answers. Can she assure us that the Government’s intention is that institutions will be adequately resourced to carry through the requirements of genuine, effective and rigorous due diligence to the high standards set out in the document?
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I am not aware that local authorities, for example, typically and habitually resource adequately the galleries for which they have responsibility. If the rumours are likely to be confirmed about what may happen in the Comprehensive Spending Review to the resources available to the Department for Culture, Media and Sport and, by extension, to the institutions that it funds, we have to worry about the capacity of even some of our major museums and galleries to be able to sustain the standards of due diligence on which we are insisting.
The guidelines in the document that the department published a little while ago are clearly intended to lead to the adoption and practice of impeccable standards. Perhaps it would be helpful if my noble friend could make it clear that, in all this guidance, the intentions refer equally to loans as they do to acquisitions. The document does say at a late stage on page 20 for acquisitions, read loans. It is very important that that should be clarified and emphasised.
What are the implications of some of the admirable statements in this document? Section 3, on basic principles, says:
“Museums should acquire and borrow items only if they are legally and ethically sound. They should reject an item if there is any suspicion about it, or about the circumstances surrounding it, after undertaking due diligence”,
“At any stage of the due diligence process outlined below the museum may decide that there are doubts about the item’s ethical status and it therefore cannot proceed with the acquisition or loan”.
If a museum in this country was interested in borrowing an item, and the limitation period had expired, for example, in the case of an item under which there might be a claim arising from the events of the Holocaust era, or where sovereign immunity may have been established but the original processes whereby the work of art or cultural object in question came into the ownership of the museum are considered to be ethically dubious, should that institution not borrow? The document says only that the museum may decide that there are doubts about the item’s ethical status and therefore cannot receive it. I simply wonder how firm that requirement is. Otherwise, the standards expressed in the document are impeccable in all cases. The mandate set out here is that you should not proceed if there is any suspicion whatever about the item.
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Will the document’s principles and the models of good practice that are instanced in the document satisfy international lenders? Do we have the common definitions that are needed? A section in the de Leeuw report, which is an important document emanating from the European Union, discusses the disparity between systems of immunity in different countries and between the categories of goods that are protected under various systems of immunity. Section 3.1.2, refers to the work of the Bizot Group, an informal group of museum directors who have been working towards general principles of the administration of law. What is the position in the European Union? What is our own Government’s view on the need to work towards consistency of international definitions—indeed, internationally binding commitments and laws—that would govern the question of loans of works of art and cultural objects crossing international frontiers?
The noble Lord, Lord Renfrew, cast a scintilla of doubt on practice at the Metropolitan Museum of Art in New York. Clearly, it would be advantageous to have consistency of policy and, indeed, a single document to which the countries that wished to borrow and lend works of art all subscribed.
If either of these amendments were accepted, what would be the implications for the wider policy expressed in the Bill? The Government have preferred a system of automatic immunity on the grounds that a discretionary system would be complex and costly—a discretionary system involving museums that wished to borrow works of art for an exhibition publicly designating all the individual objects they wished to borrow. The amendment of the noble Lord, Lord Renfrew, points in that direction. As it is, due diligence properly carried out is already complex and costly. If we were to move to a discretionary system, I wonder whether it would add significantly to the burden that due diligence already lays upon borrowing institutions. I certainly do not want to add any serious additional burden; I just wonder how much of a burden would be added.
It is fair to say that there are already powerful pressures on institutions to practise due diligence—the sanction of the Government’s withdrawal of approval, the vulnerability of museums to criminal sanctions, whether under the Theft Act, the Proceeds of Crime Act or, indeed, possibly the famous Iraq order, and vulnerability to civil suit. Only seizure is precluded as a penalty under this legislation. Who is liable if an institution is found not to be practising adequate due diligence and may fall foul of other legislation apart from this? Is it the curator of the exhibition, the registrar of the museum responsible for the administration in this particular respect, is it the director or is it the trustees? What would be the penalties? Are the trustees expected to be clapped in irons? I do not know.
However, if there is to be no significant additional burden I believe that a discretionary system would be beneficial. It is to the advantage of public confidence that there should be publicity about the items that are proposed to be borrowed, and, as the department has always noted, it would help claimants to identify objects to which they might wish to lay claim. It
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Baroness Ashton of Upholland: This has been an interesting debate. It has ranged wider than the subject of the amendments. I intend to focus my remarks on the amendments. I take note of what my noble friend said in a debate which has included European legislation. I have a copy of the report Lending to Europe and am very grateful to officials for giving it to me. I shall not start by pretending that I am an expert on Departure for Culture, Media and Sport policy. I will refer specific questions to Ministers in that department, and I am sure that they will respond in plenty of time for Report. We are in Committee, and it is our opportunity to focus on the particular aspects in the amendments. As noble Lords know, I speak for the Government, but I am wise enough not to go down the road of the rumours of the Comprehensive Spending Review. As my noble friend will remember from his days as a Minister, it is always a danger to assume anything from the rumours of the Comprehensive Spending Review. In my experience they very rarely, if ever, turn out to bear relation to what then happens.
I am very grateful to noble Lords for raising this important matter. I also want to put on record my gratitude to my noble friend Lord Janner, who has been to see me. He has been extremely helpful and we are in the middle of an exchange of correspondence.
I begin with Amendment No. 130 and “section” or “Part”. I read Clause 128 quite differently. It talks about the approval list for the purposes of the definition of museums and galleries, which is given in “this section”, and “this section” is part of Part 6. I think that that is fine. Rather than get into a big debate on it now, however, I will look at it again, but it read to me as if it were referring to this section, in this part. I thought both words were in the appropriate place, but if parliamentary counsel wishes to review it again, I am sure it will. That is all I am going to say on that, you will not be surprised to hear.
Amendments Nos. 131 and 132 are, in a sense, about balance. In the main, at Second Reading noble Lords accepted the principle of what the Department for Culture, Media and Sport proposed for this legislation, for the reasons that I gave then. However, although we have the document that my noble friend Lord Howarth referred to, Combating Illicit Trade, published in October last year, noble Lords were concerned that we should ensure that due diligence was recognised and put forward appropriately.
We accept the principle behind the amendments, which is sensible. We are particularly interested in Amendment No. 132, and I will be looking at that carefully in conjunction with colleagues at the DCMS. It is right that the Secretary of State must have regard to the procedures followed by museums
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With regard to the role already played by museums, due diligence does not come with the legislation as part of the requirements. It exists already. In that sense, they are funded to do it. We are talking about the major national museums, plus the main large regional museums that mount exhibitions—that is fewer than 60 in total. In my view they should be practising due diligence already. The question is whether we need to recognise that in the Bill.
It is fundamental that any museum that benefits from immunity from seizure needs to have the strict controls that noble Lords seek, to ensure that it does not borrow items of dubious origin. We would expect it to follow the principles outlined in the guidelines, Combating Illicit Trade. I hear what my noble friend says; the guidelines talk mainly about purchase, but then say, “When you are talking about ‘acquisition’, think of ‘loan’”. However, I have not yet heard from colleagues in the department that that has caused any difficulty for museums, so I do not propose at this stage that that should be rewritten.
Museums will also be asked to abide by the statement of principles issued by the National Museum Directors’ Conference on spoliation of works of art during the Holocaust and World War II period. Under the guidelines, museums should undertake appropriate investigations into any item they borrow. If there are any doubts about the item’s ethical status, they should not proceed with the loan. For the purpose of the clause, approval will require more than simply an agreement by the institution in question to follow guidelines published by the department from time to time. With the greatest respect, we do not think the amendment of the noble Lord, Lord Renfrew, goes far enough.
Under our proposals, museums will be invited to apply for immunity from seizure and to submit evidence of their due diligence procedures—which I hope will answer in part my noble friend’s concerns about ensuring that it happens properly—and associated documentation to assure us that they are conducting appropriate checks into the provenance and ownership of items they propose to borrow for temporary exhibitions. They need to demonstrate how they implement due diligence guidelines and what checks they make into the provenance and ownership of items. Only then will they be approved for the purposes of Clause 128. That is very important.
It is our intention, with gratitude to those who have moved amendments, to take away Amendment No. 132 and consider that as the basis on which I shall seek to come back on Report. I hope I have answered my noble friend’s questions in part, but I will ensure that he gets a full answer before Report. I hope he will accept that for the time being.
Lord Thomas of Gresford: I am grateful to the Minister for her exposition. The exercise of due diligence seems to be a trade-off for immunity,
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Amendment, by leave, withdrawn.
Lord Renfrew of Kaimsthorn moved Amendment No. 131:
Clause 128, page 96, line 29, at end insert “and it shall be a condition of such approval that any approved institution has agreed to apply to each and every protected object the Due Diligence Guidelines for Museums, Libraries and Archives on Collecting and Borrowing Cultural Material published from time to time by the Department of Culture, Media and Sport”
The noble Lord said: I too am grateful to the Minister for her explanations. I have a comment. I am sure she is aware that there are major galleries which are not national museums. The Serpentine Gallery and the Royal Academy of Arts would be such. The assurances she gave us regarding national museums would not apply to such institutions. I beg to move.
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Baroness Ashton of Upholland: Yes, the Serpentine Gallery and the Royal Academy of Arts are included in the definition I was seeking to give. There is no difficulty with that, and I will confirm that to the noble Lord in writing.
Lord Renfrew of Kaimsthorn: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 132 not moved.]
Clauses 129 and 130 agreed to.
Clause 132 [Judicial review: power to substitute decision]:
On Question, Whether Clause 132 shall stand part of the Bill?
Lord Kingsland: In speaking to Clause 132 stand part, I should also like to draw your Lordships’ attention to Clause 17 which raises the same issue, as I indicated when we discussed Clauses 15 to 20 stand part. The noble Baroness will recall my observations about Clause 132 on Second Reading, in particular my concern that the clear distinction made between the High Court in its role as a reviewing court and in its role as a court of appeal would be in danger of being confused by the Government’s draft. In response, the noble Baroness drew my attention to two matters—the work that the Law Commission has done on this matter and a revision in the civil rules of procedure of the High Court.
I have since then had the opportunity to look at both these publications. I note that the Law Commission also produced a consultation paper. In paragraph 13.2, the Law Commission addresses itself in terms to the danger of confusion between review
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The Law Commission’s conclusion, as I understand it, is that there are very narrowly defined circumstances in which Clause 132 might be valuable to our legal system. It makes one very important qualification in paragraph 8.16 of its report. It says that in the case of decisions by administrative authorities such as Ministers and regulatory bodies, the need to make it clear that the exercise of the judicial review jurisdiction is a supervisory one means that it does not recommend in those cases a power of substitution. It does, however, consider that different considerations apply to courts and tribunals. It goes on to recommend that in the case of decisions by an inferior court or tribunal, the review in court should be empowered to substitute its own decision for the decision to which the application relates, provided that there was only one lawful decision that could be arrived at and that the grounds for review arose out of an error of law.
Bearing those passages in mind, I turned to Clause 132. I have two questions about it. First, new subsection (5)(a) refers to remitting,
I suggest to the Minister that that new subsection goes further than the Law Commission recommendation. That recommendation suggests to me that the text ought to stop after “tribunal”. I absolutely accept that the decision in question to which new subsection (5A)(a) refers relates only to a court or tribunal, which further confuses me. I submit that if the Government are going to persist with Clause 132, about which I still retain reservations, it should certainly be made clear that the clause should apply only to decisions of a court or tribunal, and plainly to an error of law made in them.
Secondly, I submit that it should be made absolutely clear in the Bill not only that the court or tribunal could have reached only one decision, but that in reaching that decision the reviewing court should in no circumstances be influenced by the merits of the case.
I have one further matter to draw to the Minister’s attention: the amendment to the civil rules of procedure in Rule 54.19. I have been trying to identify a date on which this revision was made, but unfortunately have not yet succeeded in doing so. Perhaps the Minister will be able to help me on that between now and Report. What puzzles me is that the words used in this rule are quite different from the words that the Government are seeking to employ in the Bill, which states simply that where the court considers that there is no purpose to be served in remitting the matter to the decision-maker, it may, subject to any statutory provision, take the decision itself. If the Bill becomes law, the rule will then be subject to that statutory provision. At the moment, however, it appears that the civil procedure rules now contain a provision that goes rather wider than Clause 132. I should be most grateful if the Minister could say something about that as well.
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Baroness Ashton of Upholland: I am grateful to the noble Lord for being very succinct and clear about the issues on which he seeks clarification. I will deal with the detail followed by the generality.
New subsection (5)(a) does not apply the power of substitution; it simply reiterates the existing position, which is why it refers to the “authority”. New subsection (5)(b) refers to the power of substitution. As the noble Lord will see from new subsection (5B),
- “a decision substituted ... under subsection (5)(b) has effect as if it were a decision of the relevant court or tribunal”.
It does not mention “authority”. I am told that that is how we ensure that this does not apply to areas such as local and national authorities, officials, government Ministers, and so on. I know the noble Lord is concerned about that. That is how Clause 132 reads. New subsection (5)(a) relates to the existing position. New subsection (5)(b) is the substitution.
I am told that the civil procedure rules came in in 2000. I hope that that will help the noble Lord. The noble Lord rightly says that the difficulty with the civil procedure rules is that they are unclear and ambiguous. That is why we wanted to make sure that we clarified the position. The evidence suggests that the courts are not using the provision because they consider that it is ambiguous. I am being corrected. The amendment to the CPR was in 2000. I think that that was what I was asked about.
We hope that putting the measure in statute will make it clear and give it statutory force rather than making it purely procedural. The measure is deliberately intended to remove the ambiguity. But it is absolutely essential that we understand that it is about the cases where only one decision could properly have been made. I give an example from a tribunal to illustrate the point. A tribunal might decide that a child should not be admitted to a particular class in a school because of a cap on numbers. For whatever reason that decision is overturned and the child is admitted to that class. Rather than incurring the cost—which is sometimes borne by the individual who is trying to get the decision made—of the measure being reviewed with consequent delay taking place, it would be much easier if the relevant decision could simply be substituted.
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