Tribunals, Courts and Enforcement Bill
The next item of business is a debate on motion S2M-5427, in the name of Cathy Jamieson, on the Tribunals, Courts and Enforcement Bill, which is United Kingdom legislation.
Presiding Officer, I am conscious of the limited time available, so, with your permission, I will speak only briefly in my opening contribution. I hope to be able to respond to any issues that arise in the discussion that follows.
Two parts of the bill are within devolved competence: tribunal reform and immunity of works of art from seizure. On immunity, the provisions will protect our ability to attract loans from overseas of cultural objects and works of art for public exhibition. Increasingly, major cultural exhibitions rely on loans of works from abroad, so as to allow the public and tourists a significantly enhanced appreciation of culture and art. However, sometimes works of art have been seized while on international loan, for example because of disputes over ownership or debt. Museums and galleries are increasingly concerned about that risk.
Part 6 of the bill, on protecting cultural loans in carefully constrained circumstances, will bring the UK into line with many other countries. Scotland will be disadvantaged if the provisions are not applied here. I stress that we are acutely aware of the sensitive issue of the balance to be struck between the benefits of providing immunity and the rights of people who might legitimately claim ownership of the works of art concerned. We are aware of the particular concern to do with the significant issue of Holocaust spoliation.
The bill sets up the statutory framework for the new Tribunals Service covering reserved tribunals such as social security and taxation. The new Tribunals Service will create a more coherent and transparent tribunal system that is flexible enough to meet the differing needs of its users.
Ministers and the Justice 2 Committee have given detailed consideration to the proposals in the bill, which we consider are in Scotland's best interests.
I move,
That the Parliament agrees that the relevant provisions of the Tribunals, Courts and Enforcement Bill, introduced in the House of Lords on 16 November 2006, (a) relating to the establishment of a new Tribunals Service and an Administrative Justice and Tribunals Council and (b) providing immunity from seizure for international works of art on loan to exhibitions in this country, so far as these matters fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.
A number of members want to speak. I will not get them all in unless remarks are kept closer to two, rather than three, minutes.
In a world of shifting boundaries—one thinks of the Balkans, Africa and the middle east—and with the overhang of history from the Holocaust, there are many circumstances in which the ownership of works of art might be open to legitimate question. In the House of Lords, Greville Janner said in relation to taking such disputed items into the UK:
"If it is stolen art, I do not want them to bring it here."—[Official Report, House of Lords, 29 November 2006; Vol 687, c 787.]
We should not want such works here if they are a matter of debate.
Although this is not in the bill, some people propose that museums should be able to bring in works of art from abroad only if they sign up to a code of conduct under which they undertake to investigate the provenance of the works of art in question. That will be a subject for Scottish ministers if this legislative consent motion is agreed to and the House of Lords passes the bill in substantially the form in which it has been presented.
There are a number of amendments on today's order paper in the House of Lords relating to due diligence. However, they were not proceeded with on 12 December, when there was a debate on the matter. I hope that the House of Lords will take tent of what is said here.
There are other issues relating to the drafting of part 6 of the bill that suggest that it is not well drafted. For example, works of art can come in for a period of 12 months. However, if they leave the country for a day, another 12-month period can start. Given that, under due diligence and sequestration in Scotland, there is a specific reference that prohibits forfeiture, someone who is under due diligence in another country can keep popping a work of art in and out of Scotland for a day every 12 months, thereby avoiding their own country's laws. In addition, the bill absolutely excludes seizing works of art that are part of a criminal investigation even if they had on them fingerprints or blood that might be of use in that investigation.
I have concerns about the bill. I hope that we will be able to convey them to the House of Lords and that it will add them to its deliberations.
I welcome the minister's comments and the clarity that she attempted to give. We in the Conservative party welcome much of the content of the bill. A number of concerns have been raised with us on different sides of the argument about the enforcement powers that are contained in the bill and about the fact that much of the detail will be left to secondary legislation. That is a petty issue, but it is a fact of life that we have to have clarity.
The minister made comments about immunity and, quite rightly, Stewart Stevenson talked about the duties that are placed on people who exhibit and borrow works of art. Recently, I had a meeting with the Scottish Council of Jewish Communities. It does not seek dramatic changes to the bill but, understandably, it—and, perhaps other minority groups as well—would like us to ensure that the bill enables ministers to make a regulation that says that, when a work of art comes into the country, information about it is put on a public website, as part of a public notification system, so that people will know what is coming in and who is borrowing it. We look forward to an answer from the minister on that point.
The Scottish Council of Jewish Communities is, naturally, one of the groups that has studied this issue carefully because of the problems arising from the Nazis taking Jewish-owned art during the war. As has been said, the council is not in favour of our rejecting the motion, but it would like the ministers to pass on certain of its views to the ministers in London. First, the council says that the bill does not compel good practice. There is no mention in the bill of establishing the provenance of items that are brought into the country for an exhibition. The debate in the Justice 2 Committee alluded to some guidance, but the guidance, although it is good, is a voluntary code rather than a compulsory one. More could be done in the bill to make good conduct compulsory.
I understand that, in Switzerland, items that someone proposes to import into the country have to go on a list for three months and people have 30 days in which to register an objection if the description of the art indicates that they have some claim to it. After that, the object is safe from attachment by other people. That is a good system because we certainly do not want to prevent our museums from having good exhibitions but there should be a thorough system of vetting the items before they come in so that we know that our hands are clean.
I hope that the minister will accept that we could pass on some of those views to ministers in London.
I will be brief, but I think that it is important that the breadth of voices of those in the chamber who have worries about part 6 of the bill in particular is heard.
People who have had artworks stolen from them in traumatic circumstances, such as the Holocaust, have a right to have access to justice. However, the bill changes the situation, so that they will be actively prevented from doing that in certain circumstances in which artworks are temporarily on loan. I therefore add my party's concern to the other concerns that have been raised.
I ask the minister to report to Westminster in the strongest terms the concerns that have been raised in the Scottish Parliament, particularly in relation to part 6 of the bill.
Order. A little more courtesy, please. There are too many private conversations going on.
I echo the comments of colleagues from all parties. Although we support most of the reforms in the legislative consent motion, a particular issue that arises is the immunity from seizure that the bill will give to international works of art that are on loan to exhibitions in Scotland.
I understand why, in relation to certain spurious private actions—for example, actions to enforce unrelated debts—we might wish to protect the public's interest in viewing an exhibition. However, I do not believe that any member here or at Westminster would promote or elevate the exchange or sharing of cultural items above the restoration of property that was looted during one of the most horrific and grotesque periods of recent history. Frankly, I do not believe that any member of the public would want to view, on public display in Scotland, works of art that were robbed from families who were stripped of their rights, humiliated as individuals and systematically murdered under the Nazi regime.
I know that the Deputy Minister for Justice shares my abhorrence at that prospect, but does she recognise that there is concern that the guidance on the provenance and ethical acceptability of items that are made available for exhibit abroad is not observed? The recently agreed guidance is welcome, but it is a voluntary code and there are genuine fears that it is not complied with.
Can the minister give us further assurance that the Tribunals, Courts and Enforcement Bill will not offer immunity or protection from seizure unless there is evidence that the ownership of a cultural item has been examined? Will she further undertake to make representations to our Westminster colleagues and her ministerial counterparts to ensure that the rights of the true owners of stolen works of art are protected?
This is a significant debate. I have to say that I disagree strongly with the contention from our friend from the Green party that some folk in the chamber would want to do something that was offensive to the Jewish community in relation to Holocaust spoliation. That is not what the LCM is about. There are concerns about the matter throughout the Parliament and no one would want to strike a balance on the issue that meant that we in Scotland brought in for exhibition items that were not ethically sound. It is on that basis that we sought to develop the guidance.
We are aware of and understand the concerns of those who have expressed reservations about the consequences of the bill. The Department for Culture, Media and Sport has proposed amendments to address the concerns that have been expressed about possible spoliation claims. The criteria for approval would focus on the ability of museums and galleries to demonstrate the satisfactory nature of their due diligence procedures in considerable detail. They would need to demonstrate that they had sought to establish the provenance of the items that they brought in. The regulations and the criteria for registration as a body that can seek immunity reinforce the guidance that is already in place.
I do not think that, in the main stream of our cultural life, there are bodies that wish to bring such items in. In fact, the bill will not affect any claims on objects in UK national collections or other museums, including Holocaust spoliation claims. The UK Government and UK national museums have been in the vanguard of international action on provenance research on the 1933 to 1945 Nazi era and response to Holocaust spoliation claims, so they are very aware of the issues.
Under the proposed amendments, immunity may be conditional on the publication by museums of information about objects before they are exhibited. That relates to David Davidson's point. Museums might be required to provide a description that is sufficient to identify the object, to state the identity of the lending institution and to give the dates of the exhibition.
I acknowledge the concerns about drafting. The comments that were made in the chamber and in committee will, of course, form part of our commentary to the UK Government. I assure the Parliament that all the points that have been made will be brought to Westminster's attention. In relation to the concerns about drafting, however, members should note that the Subordinate Legislation Committee and the Justice 2 Committee explored the issues and supported the provisions.
We do not understate the strong concerns that Ken Macintosh highlighted and we will ensure that they are expressed, but we are clear that there are enough safeguards to ensure that we strike the right balance and that things that are ethically unsound are not exhibited. Museums and galleries will be expected to establish their procedures for checking on provenance and, in those circumstances, Scottish ministers can grant them the right to be part of that register.
This is a small measure that seeks to allow the kind of cultural exchange that we support. In no way does it do anything to allow items of Holocaust spoliation to be displayed in this country without any account being taken of that. I assure Parliament that the issues that have been raised will be pursued with Westminster, but I urge members to support the LCM as a means of protecting the interests of the museums and galleries in Scotland and the cultural life of the people of Scotland.