Wednesday 30 June 2021
The Grand Committee met in a hybrid proceeding.
Arrangement of Business
My Lords, the hybrid Grand Committee will now begin. Some Members are here in person, others are participating remotely, but all Members will be treated equally. I ask Members in the Room to respect social distancing. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
Birmingham Commonwealth Games (Compensation for Enforcement Action) Regulations 2021
Considered in Grand Committee
I beg to move that the Committee approves the Birmingham Commonwealth Games (Compensation for Enforcement Action) Regulations 2021, which were laid in draft before the House on 17 May. With less than 13 months to go until Games time, preparations are ramping up to deliver the Birmingham 2022 Commonwealth Games—the biggest sporting and cultural event ever staged in the West Midlands.
Before turning to the regulations that we are here to debate today, I remind the Committee of the context in which this instrument has been brought forward. Measures in the Birmingham Commonwealth Games Act, which many in this House scrutinised and shaped, include those which restrict the resale of Games tickets and prevent unauthorised advertising and trading in and around specified Games locations. We are working closely with the organising committee and enforcement authorities to ensure a consistent, co-ordinated and proportionate approach to enforcing these elements of the Act.
None the less, as a safeguard in the enforcement framework, the Act provides a person with a right to compensation in the event of property damage arising from unlawful enforcement or the use of unreasonable force in enforcement action. The draft regulations before us today set out the administrative process by which a claim for compensation can be made, considered and appealed. This ensures the process is clear, consistent and proportionate for both potential claimants and the enforcement authorities involved. I will now set out in a little more detail what the regulations contain.
I am sure I do not need to remind noble Lords that the Delegated Powers and Regulatory Reform Committee raised two particular points in its report. I am pleased to be able to provide clarity on these matters today. The first was in relation to the person or body responsible for determining claims for compensation. Where someone believes they have experienced damage to their property as a result of enforcement action being unlawful or unreasonable, they will be able to submit a claim to the local trading standards authority where the damage occurred, or to the Department for the Economy in Northern Ireland. This is known as the relevant authority.
Claimants should submit a claim, in writing, with the necessary information, within 90 days of the end of the Games; this should include the date and location that the enforcement action took place, the nature of any damage and any supporting evidence. Within 14 days of a claim being received, the relevant authority should determine whether it has sufficient information and evidence to make a decision on the claim. If so, it will have 28 days to decide whether the claimant is entitled to compensation and the amount due, and to communicate this outcome, alongside information about how to seek a review.
It is important to note that, under the Games Act, local trading standards authorities are responsible for authorising officers to undertake enforcement in relation to Games offences. This is consistent with the Consumer Rights Act 2015. In the past, such as for London 2012, there was a role for the organising committee in designating enforcement officers, and therefore in considering claims for compensation. However, in tandem with arrangements in the Consumer Rights Act, these regulations provide for claims to be considered by the authority which authorises an enforcement officer—in this instance, a local trading standards authority or the Department for the Economy in Northern Ireland.
It is worth noting that the Act provides that a person is entitled to compensation for the cost of repairing the property that was damaged during the enforcement action, or, if it is not possible to repair it, the cost of replacing it and the amount of any other loss that is the direct result of the damage to the property.
The second point raised by the DPRRC was whether there is to be a right of review or appeal and, if so, to whom the review or appeal may be made and what grounds for appeal would be available. As set out in Regulations 6 and 7, if a claimant is unhappy with a relevant authority’s decision, such as the amount of compensation offered, they will have 14 days to request a review of the decision. The relevant authority will then have a further 14 days to consider this and provide a response. If the claimant remains unsatisfied with the outcome of the review, they will be able to submit an appeal within 21 days to the county court or, in Scotland, to the sheriff. The regulations do not specify or limit the grounds for appeal. The court, or the sheriff in Scotland, will be able to rehear the case and examine both the facts of the case and the law.
As restrictions on advertising and trading can be in place only for a maximum of 38 days, and in most instances a much shorter period, we expect any compensation claims arising from enforcement to be minimal. Indeed, we are not aware of any arising from similar regulations that supported the London 2012 Olympic and Paralympic Games or the Glasgow 2014 Commonwealth Games.
To summarise, these regulations plug a gap in the enforcement framework and provide the necessary clarity around the procedure for compensation claims, including the right to appeal any decision made by an enforcement authority. They are a small but nevertheless important part of the ongoing preparations to deliver a fantastic Games next year—a Games that will showcase Birmingham, the West Midlands and the entire country to the rest of the world as a place to live, work, study and do business. I look forward to continuing to update the House on this. I commend the regulations to the Grand Committee.
My Lords, I welcome the Minister’s statement and these regulations. Let us hope they do not have to be used, but certainly they are useful as a backstop.
In supporting the regulations, I say again how much I welcome the decision of the Commonwealth Games Federation to select Birmingham as the host city for the 2022 Commonwealth Games. I applaud the city’s ambitious and innovative vision. The Games will open up a whole host of opportunities, including cultural engagement, business, trade, volunteering, physical activity, jobs, skills, education and tourism. Of course, it is the sports programme that is at the heart of Games, which will feature many thrilling sports, with wheelchair basketball making its first appearance at the Commonwealth Games. For me, the inclusion of women’s cricket is a great joy. It will be the first ever fully integrated parasport competition, with the potential for more medals for women than men—a first for any major multisports event.
I am grateful to the Minister for updating us in a recent letter on the sustainability pledge made by the Games organising committee to deliver the first carbon-neutral Games, and which also covers environmental, social and economic outcomes aligned with the UN sustainable development goals.
Of course, there are challenges, the first of which is finance. The funding of the Games is complex and includes a substantial contribution from commercial revenues. The budget is split, 75% and 25%, between central government and Birmingham City Council and several key partners. Additional commercial revenue will be raised by the organising committee and the Commonwealth Games Federation partnership through ticket sales, sponsorship, merchandising and the sale of broadcast rights. None the less, this is a major challenge, particularly because the finances of Birmingham City Council are themselves under huge pressure. Can the Minister update me on any budgetary issues, including whether there are any financial overruns and the projected commercial income? Can the Minister also confirm that the venues being built or adapted for the Games will all be ready on time?
It is important that the legacy includes a commitment to encourage sport and physical activity among young people. I am particularly interested in what contribution the Games legacy can make to the future health and well-being of people in Birmingham and the West Midlands—we certainly need to. The improvement in life expectancy in Birmingham has levelled off in recent years. It has one of the highest levels of obesity among year 6 pupils in England. Indeed, NHS Digital figures show that more than one in four children who finished primary school in Birmingham in 2017-18 were obese, of whom 6.5% were severely obese. Additionally, 15% of year 6 children were overweight. That means that 41% of Birmingham’s youngsters are unhealthily overweight when they finish primary school, so the opportunity a legacy offers in helping to change this is too good to miss.
Going back to the London Olympics Games, we know that hopes were raised that they would increase sports participation. Jeremy Hunt, then Secretary of State, said that the Games were an extraordinary chance to re-invigorate the country’s sporting habits. Despite an extraordinary Games, the evidence is that there has been virtually no change in participation rates in the 16 to 25 year-old group. I hope that Birmingham can learn and do better. Will the Minister say something about that?
My Lords, the Birmingham Commonwealth Games (Compensation for Enforcement Action) Regulations 2021 set out the details of the process for claiming compensation for damage that occurs as a result of enforcement action, the timescales for each party at each stage and the appeals mechanism, as the Minister has outlined. I am proud to be chancellor of the University of Birmingham, one of the top 100 universities in the world and a Russell group university. It will play a key role in the Commonwealth Games.
Birmingham 2022 will be the biggest multisport event to be held in the UK for a decade. There will be 11 days of sport, with 286 sessions, 283 medal events and 19 sports, including eight parasports and the largest ever integrated para programme, and, we hope, more than 1.5 billion global television viewers. The Birmingham Games are going to have many firsts. They will be the first carbon-neutral Games, and it will be the first time a social value requirement has been embedded in every tender for goods and services. Birmingham will have the largest business and tourism programme of any Games and the first comprehensive and ambitious community engagement programme. They will be the first Games fully to integrate volunteers from all delivery partners into a united volunteering programme, and the first major multisport event to award more medals to women than to men. They will be the first Games to include women’s cricket—the noble Lord, Lord Hunt, mentioned this—3x3 basketball and wheelchair basketball.
The Games will be a wealth of opportunities for people and will deliver significant economic benefits to Birmingham, the West Midlands and the wider UK, through job creation, business and trade opportunities, and tourism. I speak on that as president of the CBI. The West Midlands region will benefit from £778 million of sport investment, the largest since London 2012. Glasgow 2014 contributed £740 million to the Scottish economy, and it is expected that, when the figures come through, the Gold Coast Games in 2018 will be shown to have delivered 1.3 billion Australian dollars to boost the economy in Queensland. Millions of extra pounds of extra tourism, trade and investment can be secured from the Birmingham 2022 Commonwealth Games under plans that will bolster the region’s post-Covid-19 economic recovery via the West Midlands Growth Company’s business, trade, tourism and investment programme.
A lot of employment will be created through the Games. Approximately 35,000 Games-time roles will provide important employment and economic benefits to the city and the region, and a once-in-a-lifetime opportunity for jobseekers and professionals at all levels. Right now, there are 13,000 trained volunteers, known as the Commonwealth Collective, coming together to help organise, run and manage the Games.
The Games authority has worked with the West Midlands Combined Authority and partners to launch a Commonwealth jobs and skills academy to accelerate and amplify plans to improve regional skills and employment opportunities through the Games. Very importantly, there will be a focus on supporting young people and unemployed adults. These Games are titled the “Games for Everyone”, with tickets starting from just under £8 for under-16s and from £15 for adults.
From a business point of view, there are procurement opportunities, which will also support and promote the Greater Birmingham and Solihull LEP’s Inclusive Commonwealth Legacy Programme. This supports BAME-owned businesses in particular, and provides training and support to bid for Birmingham 2022 contracts. This is particularly important for me as the first Chancellor of the University of Birmingham of Indian origin and the first ethnic-minority president of the CBI, which has launched an initiative called Change the Race Ratio to promote and champion ethnic-minority participation across all business, including championing the Parker review.
From a culture point of view, the Games will have a comprehensive culture programme, with the Queen’s baton relay. From a human rights point of view, the UN guiding principles of human rights will be delivered—the respect, support and promotion of these rights and freedoms is guaranteed to all individuals under law and the Games are committed to protecting human rights.
They will also be the first carbon-neutral Games. The stand-out initiatives include the creation of 22 acres of forest and 72 tennis court-size mini forests to be built in urban areas across the West Midlands. Each mini forest will be linked to one of the nations and territories competing in 2022. This is a fantastic initiative, utilising sustainable practices and subscribing to the UN Sports for Climate Action Framework—again, a first for the Commonwealth Games. To summarise, the commitment to sustainability will be based on four Cs: certification, carbon, the circular economy and conservation.
The West Midlands is one of the largest networks of urban communities outside the capital and home to over 4 million people. Its central location places it at the heart of the UK’s transport network and firmly positions the region as a dynamic and ambitious place to live and work. But the region is not without challenges. It has a higher than average unemployment rate, and overall deprivation is high, with 34.5% of local areas among the most deprived in the country.
The Covid-19 pandemic has exposed pre-existing disparities in the local economy, highlighted the growing challenges that the region faces and exacerbated the inequalities in health, education attainment, innovation and economic development. But as we emerge from the pandemic, there are now opportunities to do things differently—to champion the region on the world stage, transform local infrastructure and stimulate job creation, securing an inclusive workforce that is fit for the future.
Following his re-election in May 2021, the mayor, Andy Street, must continue to champion a strong economic vision for the region, working collaboratively with both the private and public sectors to capitalise on future opportunities, such as the UK City of Culture coming to Coventry and, of course, the Birmingham Commonwealth Games, which will bring new investment opportunities, showcasing the region’s dynamism on the international stage.
The CBI, of which I am president, has created a business manifesto for the West Midlands, developed in partnership with our members, setting out three guiding principles for the mayor. The first is to champion regional dynamism and global competitiveness to raise living standards—the Commonwealth Games will do that. The second is to transform digital and physical infrastructure in the race to net zero—the Games will help to do that. The third is to stimulate job creation and secure an inclusive workforce for the future—and the Games will do that too.
The challenges faced by the region are by no means insurmountable, and this manifesto sets out a way in which business and local government can work together, in collaboration, to ensure that the West Midlands achieves its full potential during the economic recovery and beyond. We stand ready to support the West Midlands and help the Games to succeed.
The Games present an opportunity and a challenge. The region is gearing up for a once-in-a-generation platform which will make a real difference, far beyond the 11 days of the Games. Regional and national stakeholders must come together, ahead of the Games, seize the moment and put in place meaningful commitments that will create meaningful benefits and a positive legacy for local communities. Does the Minister agree?
While 2022 might seem a very different world, given the struggles of the past 15 months with the Covid pandemic, we must all recognise and embrace this. Businesses have struggled during these turbulent times; for a city which prides itself on being a visitor destination, this year has been devastating. The need for the Games to deliver tangible benefits is more important than ever. The region must seize the moment and capitalise on this, while fostering local economic recovery, and remain a vital visitor attraction. To realise its full potential, more must be done to engage and inspire the local business community. Again, the CBI stands ready to help.
To conclude, 2021 has been and is a watershed year for the UK, post Brexit and post pandemic. We have just successfully chaired and hosted the G7, and there is COP 26 to come. Looking ahead, we have the Queen’s Platinum Jubilee and the Commonwealth Games 2022. Seize the Moment, our economy strategy for the UK, identifies £700 billion of opportunity and six pillars, including clusters. The West Midlands is a model cluster, and the Commonwealth Games will highlight its power through the power of sport.
My Lords, if there were gold medals for ingenuity, breadth, scope and extent, and enthusiasm about these Games, the two speeches we have just witnessed would win them. It is a privilege to follow the noble Lord, Lord Bilimoria, having won his gold medal for covering virtually every aspect of what will, undoubtedly, be a great Games, and the noble Lord, Lord Hunt of Kings Heath. I echo everything he said in emphasising that a sport, recreation and active lifestyle legacy for all ages and people, not just in Birmingham and its surrounding area but in the United Kingdom as a whole—indeed, in the Commonwealth—is vital. He was completely right to remind us that that was the one element we did not deliver post London 2012. We had an extraordinary Games and wonderful urban regeneration in the East End of London, but we missed out on a sports legacy. We must not do so in Birmingham 2022.
My comments will be a little briefer, less extensive and not of such gold medal-winning proportions as the previous two speeches. I thank my noble friend the Minister for plugging an important gap and for the clarity that these new regulations provide. As she knows, I am co-chair of the All-Party Parliamentary Group on Ticket Abuse, which works hard in this area. My only concern about what she has announced in this context is that, just as the Delegated Powers Committee highlighted—and I declare an interest, having sat on that committee for a number of years—putting a lot of emphasis on the work of the local trading standards authorities has one problem: they are poorly resourced. They must be better resourced to take on their many responsibilities, not least their enforcement powers under Schedule 5 to the Consumer Rights Act 2015, which she referred to, for the purpose of enforcing an offence under Section 10 of that Act, on ticket touting, which is relevant to what we are discussing today.
With that minor but important point, I urge her to continue the good work she has done, not just on this Bill but in general, in making sure that we criminalise modern-day touting and that we have appropriate legislation in place for not just the Commonwealth Games, football and the Olympic Games but many other sporting events. When we get the opportunity to look at improving the legislation on this in due course, I hope she will stand shoulder to shoulder with many noble Lords in making sure that the lessons we are learning from the Commonwealth Games are put in place.
Finally, I thank my noble friend the Minister for her letter, which the noble Lords, Lord Hunt and Lord Bilimoria, mentioned. The pledge, which is now public, that has been made by the organising committee in the context of sustainability is exceptionally welcome. It is a first. I only wish that the Olympic Games in Paris, after Tokyo, had such a robust sustainability pledge, because it will deliver the most sustainable Games ever—by that I mean not just among the Commonwealth Games but when compared to Olympic Games, both present, in Paris, and in the past. It will deliver the first ever carbon-neutral Games, do so in a socially responsible and inclusive way, support region-wide economic recovery and ensure equal access to opportunities and participation for all.
I hope we can add a fifth to that list, which was rightly highlighted by the noble Lord, Lord Hunt of Kings Heath. He made an important point about how the level of participation has not in fact improved since London 2012; as a percentage of the increased population over that time it has, in fact, decreased. I hope that government will grasp the opportunity to make sure that one of the great legacies from what I am sure will be an outstanding Games will be a focus on developing opportunities for sport, recreation and an active lifestyle among all population groups, post Birmingham 2022.
With those closing words, I thank my noble friend the Minister, not only for her presentation of the regulations today but for the consistent hard work and enthusiasm she has shown to support the Commonwealth Games in their preparation and, I am sure, in their execution as well.
My Lords, I thank the Minister for her introduction of this regulation and the noble Lord, Lord Bilimoria, for what he said—I believe he should get not only a gold medal but a diamond one, if that were possible. We should all support the Birmingham authorities and wish them well, but they must ensure a speedy resolution of the claims made by the citizens of Birmingham. Has the Minister made any calculations of how many millions will be spent by tourists during the Games?
My Lords, like the noble Lord, Lord Moynihan, I feel slightly intimidated in trying to match the noble Lords, Lord Hunt and Lord Bilimoria, in both their knowledge of Birmingham and their enthusiasm for the Commonwealth Games next year. As I explained before we began this debate, I am a late replacement for the noble Lord, Lord Addington, who is doing good elsewhere in the Palace of Westminster at this moment. I asked the noble Lord, Lord Hunt, to consider me as a kind of Jack Grealish—a late replacement, or what I think they call in the sport an “impact player”.
Outside Birmingham, I have found almost entirely enthusiasm for the Birmingham Games. The only small thing I should report is that one colleague said, rather crustily, “Well, I hope they give a special medal for finding your way out of New Street station”. It may be a cruel joke but there is an important lesson there, as one of the factors in the Commonwealth Games, and indeed the Manchester Games, is the great signage and the ever-present, helpful guides who help people; it makes a heck of a lot of difference to the success of an event if you have that kind of back-up.
The first real impact of athletics on me was the 1954 Vancouver Games, which featured the great competition between Roger Bannister and John Landy in the “miracle mile”. It certainly gave me an interest and an enthusiasm for athletics—which carried on until politics took over, I am afraid.
The fact is that the Commonwealth Games have always been a kind of family affair. They have a softer edge than the Olympics and are the better for it. Certainly, the host regions have benefited. I was an MP for the Greater Manchester area and still have strong links in the north-west, and so can say that the Manchester Games were a success; the new stadium, which is being put to quite good use by Manchester City, and the velodrome are just two examples of legacy benefits.
I have looked at the website and seen how much the organisers are making an effort to make this a real community effort. So I have every support for the SI. The right to protect, as it does, the organisers from fake products and ticket touting is very important because, as the noble Lord, Lord Hunt, said, a good proportion of the budget will come from sponsorship. Are there any limits to sponsors? For example, are gambling or alcohol organisations allowed to be sponsors?
On one final point, I have long believed that sport can offer young people a diversion from gangs and crime—I was chairman of the Youth Justice Board. I know the statistics show that participation has not increased since the 2012 Olympics, but I still believe that sport can play a big part. As a kind of quid pro quo from sponsors for the protection that these SIs give, can they be encouraged to help with bringing hard-to-reach individuals and communities into the excitement of these Games, in preparation and while they are on? My successor as chair of the Youth Justice Board is Keith Fraser, who has strong roots in the West Midlands. I am sure he would be willing to give advice—as would, I am sure, James Mapstone from Alliance of Sport, which relates to the criminal justice system—on just the things that the YJB and the alliance are doing to attract youngsters into sporting participation and away from the kind of things that gangs provide them with.
I end with sending my best wishes to Birmingham. We will all be in whatever is the new normal of 2022, but in that new normal I hope that Birmingham has a Games that will be remembered as vividly by this generation of 11 year-olds as I remember the Landy-Bannister mile of 1954.
My Lords, it is always a bit of a nightmare coming just before the Minister, when everybody is waiting to get their questions answered, but even more so today following the gold medal performance of the noble Lord, Lord Bilimoria, the keen advocate in my noble friend Lord Hunt, and the impact player who is undoubtedly the noble Lord, Lord McNally.
With so many sports fans focused on the current Euro 2020 championships, Wimbledon and the upcoming Olympic Games, it is easy to forget that the Birmingham Commonwealth Games will take place next year. We have recently seen the full competition schedule, which will help to build that sense of anticipation to which the noble Lord, Lord Bilimoria, referred. The Bill to enable these Games did not of course have the easiest of journeys through Parliament, having to be reintroduced after it lapsed on the first occasion. However, it was rightly a piece of legislation for which there was cross-party support and enthusiasm, even if matters such as those before us today had to be left to regulations.
As with any sporting competition, there are rules on ticket touting, and in his contribution the noble Lord, Lord Moynihan, made a valiant plea to keep this at the forefront of our thinking. Regulations such as these deal with some of the supplementary issues arising from it, including the risk, cited in paragraph 6.8 of the Explanatory Memorandum, that damage may be caused to people’s property in the course of enforcement action being taken. It is right that the Government make this provision and our Benches welcome it being done well ahead of time. However, can the Minister outline whether an assessment has been carried out of the likely or probable costs that may arise? If so, can the Minister provide us with some details of this today?
Paragraph 11 of the Explanatory Memorandum notes that no guidance has been published alongside this instrument, although the Government will continue to engage with local authorities and answer any questions on implementation. Can the Minister say a little more about their engagement with relevant authorities to date, both on this specific issue and more widely?
The issue being debated today is part of the wider discussion on the Bill, relating to how the Games and local communities can work in tandem to make the competition a success. We have heard from the noble Lord, Lord Bilimoria, and my noble friend Lord Hunt about how that is working. During the passage of the Bill, some of my former Front-Bench colleagues and my noble friend Lord Hunt—[Inaudible]—relating to community benefit, and we are pleased that progress has been made on that. I noted that it included access to housing once athletes had left the city, which is a major issue in the West Midlands. I hope that issue does not fade away.
I ask the Minister if she can also assure us, and the Committee as a whole, that the Government are fully behind the cultural programme of engagement that runs alongside the Games and seeks to widen the economic, social and health benefits that the Games bring to the region as a whole. Today, we heard some pretty shocking figures on engagement after events such as the Commonwealth and Olympic Games, and we must ensure that we get full benefit from elite sporting events such as this to inspire the next generation. While I am broadening the scope of the discussion, can the Minister say a little more about what progress is being made on these areas, particularly in the light of the earlier decision not to proceed with the dedicated athletes’ village in the Perry Barr area?
During the passage of the Bill, we also raised concerns regarding the likely financial pressures on Birmingham City Council and the other local authorities. As this is our first opportunity to debate the Games in quite some time, can the Minister provide an update on these discussions, because there will undoubtedly be some quite severe or adverse impacts on the Games, which may not have been thought through or immediately apparent at the time?
With that said, I thank the Minister for her open approach, her recent communications and the active support role she has played on this. As other colleagues have said, this is a wonderful opportunity not just for the region but for the nation, and I am sure that Birmingham will do us proud.
My Lords, I thank all members of the Committee for their consideration of the regulations today and their incredibly warm and enthusiastic welcome—I am not sure whether it was a gold or diamond medal performance, or many medals—for the Games in general and the regulations in particular. I will try to address the many points raised by your Lordships and, if I run out of time, I will of course write.
The noble Lords, Lord Hunt and Lord Bassam, both asked about progress on the implementation of the Games and funding, particularly in relation to Birmingham City Council. I am pleased to confirm that, despite an extraordinarily difficult period with the impact of the Covid-19 pandemic, the Games remain on time and on budget. There has been a constant dialogue between the Government and the city council on all aspects of the Games, including the budget, and the Government have full visibility of all the financial plans.
I must apologise to the noble Lord, Lord Bassam; the connection was slightly coming in and out, so I did not catch exactly his question on the athletes’ village in Perry Barr. The decision to move away from a single athletes’ village was obviously made as a result of the impact of the pandemic. The Perry Barr regeneration scheme is bringing more than 1,400 new homes to this part of the city and will still be delivered as planned by Birmingham City Council. We believe we have an excellent solution which will provide the 6,500 athletes and team officials coming to the Games with best-in-class facilities at three sites: the University of Birmingham, the NEC and the University of Warwick.
The noble Lord, Lord Hunt, and my noble friend Lord Moynihan talked about the importance of there being an ongoing legacy of physical activity and well-being. That portion of the legacy programme rests with my department, the DCMS, and is a real priority. Our focus is to use the momentum of the Games to tackle some of the stubborn inequalities which noble Lords referred to, and which the noble Lord, Lord McNally, linked to levels of crime. We will tackle those inequalities, focus on underrepresented groups and promote wider well-being across the region. As the noble Lord, Lord Hunt, set out so clearly, inactivity is a particularly acute problem in the West Midlands, which is classified by Sport England as the least active region in England. We have been working very closely with Sport England and it is bringing to the table £4 million to address this legacy.
The noble Lords, Lord Hunt and Lord McNally—I gather that Jack Grealish is known as the “McNally” of the English team, so the feeling is mutual—raised issues of accessibility, including the signage at Birmingham New Street. I remember sending the noble Lord, Lord Hunt, a photograph of the signage when I was in Birmingham New Street station during the passage of the Bill, having been to visit the works at Sandwell to build the aquatics centre, so I share his pain about the signage. More seriously, the organising committee is committed to delivering a highly accessible and inclusive Games. Your Lordships may be aware that there is an accessibility advisory forum, which includes representatives from the disabled community across the region, to make sure that we can deliver on this commitment.
The noble Lord, Lord Bilimoria, spoke about the opportunity and the challenge presented by the Games. I think the Government would absolutely agree with him about the importance of a positive legacy for local communities. He listed some of the major economic benefits, both for Birmingham and the West Midlands and the wider UK. We also see this as a huge opportunity for local and regional suppliers to makes sure that they can really benefit from some of the expenditure that is going into the Games.
The noble Lord, Lord Bhatia, asked about tourism. An investment of £21.3 million for a business and tourism programme has been secured, which will help to ensure that the city, the region and the nation can take advantage of the economic opportunities that hosting the Games will provide. An additional £2.6 million of funding has been provided from the West Midlands Combined Authority.
The noble Lord, Lord Bassam, and my noble friend Lord Moynihan raised concerns about the impact on local authorities’ resources and their capacity to fulfil the role given to them in these regulations. Local authorities are working very closely with the organising committee to make sure they have the necessary plans and resources in place so that they can enforce these measures if needed. We are working with all partners within my department on the development of the advertising and trading provisions and the approach to enforcement to take resource pressures into consideration but, as I mentioned in my opening remarks, we expect claims for compensation to be minimal.
On the wider issues of ticket touting, raised by the noble Lord, Lord Bassam, and my noble friend Lord Moynihan, we are absolutely committed to cracking down on unacceptable behaviour in the ticketing market and making sure that people can buy a ticket at a reasonable price. We have strengthened the law on ticketing information requirements and introduced a criminal offence of using automated software to buy more tickets online than is allowed. We are also working with the enforcement agencies in this area to make sure that these measures are effective.
I thank my noble friend Lord Moynihan for his very generous comments about the sustainability plans for the Games. We debated them at length, rightly, during the passage of the Bill and I am delighted that he, the noble Lord, Lord Bilimoria, and others recognise the work that has gone into this.
The noble Lord, Lord McNally, asked about sponsorship. The Government have made it clear that sporting bodies and events organisers must consider their wider responsibilities to fans and the wider community when entering into commercial arrangements. In the case of Birmingham 2022, any such arrangements should support the vision and mission of the Games. We will continue to work closely with the organising committee and the Commonwealth Games Federation to support that.
The noble Lord, Lord Bassam, asked me to confirm that the Government support the cultural events that accompany the Games and see their value. I have great pleasure in absolutely confirming that.
To close, I reiterate the procedural but important nature of these regulations, which are yet another milestone in the preparation for delivery of the Games next year. If your Lordships have any further questions about the progress being made to deliver the Games, I know that the officials in my department and the Games organising committee would be very happy to discuss them. With that, I commend these regulations to the Committee.
The Grand Committee stands adjourned until 3.23 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
My Lords, the Hybrid Grand Committee will now resume. Some Members are here in person, others are participating remotely, but all Members will be treated equally. I ask Members in the Room to respect social distancing. If the capacity of the Committee Room is exceed or other safety requirements are breached, I will immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
Introduction and the Import of Cultural Goods (Revocation) Regulations 2021
Considered in Grand Committee
My Lords, this draft statutory instrument was laid before the House on 19 May 2021. This is a short but important instrument that will bring clarity and certainty for the UK’s museums and art market. Its effect is to remove from the statute book those provisions of the EU regulation on the introduction and the import of cultural goods which became UK law as retained EU law at the end of the transition period, but which are now redundant or legally deficient. It will not affect the provisions which already exist in UK law to protect cultural goods or our ability to tackle the illicit trade in cultural goods.
It may be helpful if I begin by setting out some context. EU regulation 2019/880 on the introduction and the import of cultural goods aims to tackle the illicit trade in cultural goods and to prevent the proceeds of that trade being used to fund terrorism. The regulation came into force on 28 June 2019. However, not all its provisions became applicable on that date. In particular, a provision known as the “general prohibition”, which prohibits entry into the EU customs territory for cultural goods which were unlawfully removed from the country in which they were created or discovered, only began to apply on 28 December 2020. Provisions which require importers of certain cultural goods to present an import licence or an importer statement, to guarantee the legal provenance of the goods, will become applicable only when an EU-wide IT system is in place, or from 28 June 2025 at the latest.
At the end of the transition period, on 31 December 2020, all those provisions of the regulation which had become applicable by that date became UK law as retained EU law—that is, those provisions which became applicable when the regulation came into force together with the general prohibition provision. The provisions requiring import licences and importer statements did not become UK law, and there is therefore no legal obligation for us to implement them. We have always made it clear that we would not implement these provisions if there was no legal obligation to do so.
Many of the provisions which have become UK law are redundant, because they create obligations in relation to the EU or relate to measures to prepare for the introduction of import licences and importer statements. The general prohibition provision has become legally deficient and cannot be enforced in UK law. It relates to the “introduction of cultural goods”, which is defined in the regulation as,
“entry into the customs territory of the Union”.
Great Britain is no longer part of the EU customs union, so the provision cannot be applied to Great Britain. We have therefore decided to address this legal deficiency, and at the same time remove the redundant provisions from the statute book, by revoking the regulation.
I make it clear that the regulation will continue to apply directly to Northern Ireland by virtue of having been added to annexe 2 of the Ireland/Northern Ireland protocol. Revocation of the regulation from UK law does not affect this.
There are two important reasons why we have decided to revoke the general prohibition provision. First, even if this provision were not legally deficient in the way that I have described, it would still raise issues of concern and create complexity and confusion for importers and for our customs and border authorities. These arise because the provision applies to almost all cultural goods created or discovered in non-EU countries, regardless of their age, value or date of export, and because there is no requirement in the regulation for any person to provide evidence to demonstrate either lawful export or unlawful removal from the country of creation or discovery. In the event of a claim of unlawful export, it is not clear where the burden of proof would lie or what evidence would be required. These issues could result in cultural goods being delayed or detained at the border, and might deter people from importing cultural goods to sell in the UK art market or museums from lending objects for exhibitions in this country. It would be possible to address these issues, but we consider that this is not necessary. This brings me to our second reason for revoking the regulation.
We consider that we already have sufficient legal powers to tackle the illicit trade in cultural goods and the import of cultural goods which have been unlawfully removed from another country. These powers are set out in existing domestic law, and in some cases also derive from our obligations in international law—to name but a few, the Customs and Excise Management Act 1979, the Dealing in Cultural Objects (Offences) Act 2003, and the Cultural Property (Armed Conflicts) Act 2017, as well as the Theft Act 1968 and the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.
The effectiveness of our existing legislation was demonstrated very recently, when we returned to Libya a statue which had been unlawfully removed from that country and which was found and detained by HMRC at Heathrow Airport. This is only the most recent example. In the last few years, thanks to the diligent efforts of our police, customs and border authorities, we have been able to return other important cultural objects to the countries from which they had been unlawfully removed. In view of the existing, effective provisions in our law, we consider that the general prohibition in the EU regulation is unnecessary.
In summary, therefore, this instrument will revoke those provisions of the regulation which have become UK law. It will provide clarity and certainty, and ensure that there is no confusion as to the rules and requirements for the import of cultural goods, but it will not mean that we are any less able to prevent the import of unlawfully removed cultural goods. I beg to move.
My Lords, I am grateful to the Minister for his very good introduction to this SI. He covered all the ground and his commitment shone through in what he said, but I have one or two questions, some of which he may not be able to answer directly, as I am sure this is not his main centre of interest. I am happy for him to write to me with the answers, if necessary.
We have a short corporate memory in your Lordships’ House sometimes, despite our existence for so many thousands of years—as it sometimes seems. I will come back to the deficiencies the Minister raised on the existing legal framework, but will start with why the Government are seeking to revise this particular general prohibition by removing it entirely, rather than amending it. The main problem words in the regulation, which seem to offend, are
“entry into the customs territory of the Union”,
which the Explanatory Memorandum says,
“cannot be interpreted to mean the customs territory of the United Kingdom.”
It may not be interpreted as such, but I am sure it would be pretty easy to amend it. I therefore wonder why the trouble the Government have gone to to revoke the original regulation is necessary.
I say that in particular because of the reference to Northern Ireland, which the Minister, with his ease of manner and delivery, glossed over quickly. How have we got to a situation where one of the most complicated issues about the pursuit of cultural goods is different in one territory of the United Kingdom from the rest? GB will have a set of rules, which are set out in the Explanatory Memorandum, which I will come to in a minute. Northern Ireland will have those, as well as remaining in the EU, with its new, very important and rather clever IT-based, modern set of rules and regulations, by which information will swiftly move across the whole continent. Potential defaults and problems will therefore be picked up. I ask the noble Lord to comment further on that.
My second point relates to paragraph 7.5 and the succeeding paragraphs of the Explanatory Memorandum. Paragraph 7.5.2 states that
“The United Kingdom has been a state party to the 1954 Hague Convention”—
1954 is a long time ago—
“for the Protection of Cultural Property in the Event of Armed Conflict”.
My first point is that that is limited to armed conflict. Secondly, the corporate memory to which I referred should be invoked at this stage because during the debate on the Cultural Property (Armed Conflicts) Bill that legitimated the 1954 Hague convention as far as the UK is concerned—we are a dualist state that cannot just accept agreements with foreign powers; they have to be brought into UK law—that was heavily criticised. The convention dates to 1954, and cultural goods had a different meaning then.
This morning, I looked up my rather excellent speeches —I can say that because I am sure nobody else has read them—about the need to update the cultural definitions portrayed in that convention and used in that debate. They entirely exclude media, cinema, digital art and related issues. In other words, we have a convention on which the Government are relying to get them out of an EU proposition they do not like, which does not, in the case of armed conflict, satisfactorily deal with the art that I care about. I was promised by the Ministers at the time that this would be looked at, so perhaps the Minister could remind me of what progress has been made to update the 1954 Hague convention. There was a proposal to update it in the wings. Have the Government looked at that and, if so, when will the House have a chance to debate and discuss it?
There is a minor point in relation to the risk of trade in cultural goods being used to finance terrorism, which the noble Lord, Lord Parkinson, mentioned. There is a rather odd phrase in paragraph 7.5.9 of the Explanatory Memorandum which I wonder whether he could unpick for me. It is normal for explanatory memoranda to have more descriptive comments, and I wonder whether there needs to be a bit more around the fourth line than currently. It says that the regulations—SI 2017/692—
“require art dealers and others even tangentially involved in a transaction of €10,000 or more to collect and report information about their customers.”
I think I get the message, but “tangentially” is not a word that really satisfies certainty about who is caught by that. Can the noble Lord respond, perhaps in writing, about the intention behind that phrase? As I say, this is a pretty minor point.
My third point relates to the assertion in paragraph 7.6. I return to the original point that the regulation is being brought forward in this form at the moment because of the uncertainty and complexity that might be caused if we had to rewrite it for the UK customs area with all the problems with Northern Ireland. I look forward to the noble Lord’s response, but the argument here is a little unconvincing. The main point seems to be that
“the Regulation is silent on who bears the burden of proof of the breach of the laws and regulations of that country, as well as on the evidence which would be required to demonstrate … the cultural goods concerned.”
It sounds a bit like a straw person being set up in order to be knocked down. I thought that was what lawyers were all about. I am sure that the noble Lord, Lord Clement-Jones, when he comes to speak, will be able to justify in every sense the ability of lawyers to get to the bottom of who is responsible and what the necessary evidence would be and that he would enjoy the process of so doing.
Finally, the Minister’s argument ended with the point that this was a good SI and something that we can support—and I think that inevitably we will—because it brings clarity. I have already talked about the Northern Ireland situation, and I do not think he can defend that, but we are relying on a very disparate set of rules and regulations, set up over a long period of time, dating back to 1954, including regulations as recent as 2017 and later. Will the Minister consider a serious point from me, which is that if this is the route that we are going down—and I am sure we will—will he consider suggesting to the Government that there is a good case for the Law Commission to take away all these issues and come up with a consolidated set of rules and regulations for the transfer of cultural goods? It would mean updating the terms of culture, looking at where the actual powers and responsibilities are, assessing as necessary where the evidence needs to be sought and who should be responsible, should any cases be made, and generating a Bill that we could perhaps look at in a few years’ time that draws all this together. I would be very happy with that. Although I will not be opposing what is before us today, I hope that I have made the case that this is a bit flimsy and needs a bit more attention.
My Lords, the objective of this legislation is to replace the EU regulations in so far as they have been operated by the UK prior to us leaving the EU with the existing laws that are already in place. They will, as the Explanatory Memorandum says, be primarily aimed at the 2003 legislation, as it states in paragraph 7.5.3:
“The principal domestic legislation relating to the illicit trade … is the Dealing in Cultural Objects (Offences) Act 2003”.
Like the noble Lord, Lord Stevenson, I believe that deficiencies are left by the process that we currently see. They fall into three areas: the geographical scope, which I will come to in a moment; weakened regulation over the requirement to be vigilant; and the loss of potential international reputation and data sharing.
The Secondary Legislation Scrutiny Committee, in looking at this matter, raised three issues on which it seemed to have got agreement from the department that there are problems with this legislation. The first is that the revocation of the EU regulation by this instrument could potentially weaken the legal prohibition currently provided by Article 3.1. The second is that the UK needs to do more to prevent the import into the UK of cultural goods that have been stolen, looted and/or unlawfully exported from other countries. The third is that there could be a perception that we are watering down our commitment to protect cultural property from illicit trade, which we will need to counter robustly. Those, roughly, are the three areas that I will cover and question the Minister on.
On the geographic scope, given that the primary piece of legislation is that 2003 legislation—not a weighty document; it takes up only a small number of pages—the last paragraph of that Act of Parliament, Section 6(3), says:
“This Act does not extend to Scotland.”
My first question is therefore: if these are devolved powers to Scotland—I suspect they are not—what legislation is in place from the Scottish Parliament to cover that gap? If this legislation, which is the primary legislation that the Government are falling back on, does not apply in Scotland, what is there to replace it? Clearly, I do not suggest this will happen, but these goods could be imported through Scotland and then even passed on to Northern Ireland or to other parts of the United Kingdom.
The second issue is Northern Ireland itself. The UK Government declared on 8 December 2020 that the regulation would be fully implemented in Northern Ireland, as I believe the Minister said in his opening. However, the government website currently states that Article 3.1 applies in Northern Ireland but that the Government do not intend to change the way they handle the import of cultural goods. There is a direct contradiction between what the Minister has explained to us today and what the Government have on their website. Northern Ireland cannot comply with its obligations and fail to change the way it handles the import of cultural objects. We need an explanation of that if we are to follow through and understand what the resultant revocation of these regulations means.
The second area of concern is weakened legislation. Article 3.1 of the European legislation significantly widened the scope of applicable cultural property and would apply in the UK today if we had kept it and moved forward with it. The scope of the objects concerned is wider, which reflects the points made by the noble Lord, Lord Stevenson. However, the date threshold at which an object is considered illicit is longer and varies according to the country of origin of the object. The regulation itself places obligations on authorities to put measures in place to restrict import rather than creating a criminal offence for the individual knowingly dealing in tainted objects, which of course is in the 2003 legislation.
I will give an example of that, which I am grateful to Blue Shield United Kingdom for giving to us. Prior to Article 3.1 coming into force, it would not have been illegal to import into the UK an Egyptian cultural object simply because it had been illegally exported—but not necessarily stolen—from Egypt in 2000, despite Egypt having enacted national legislation. Article 3.1 has an impact. It requires that customs authorities permit the import of this Egyptian object only if it was legally exported from Egypt post 1983, which of course is 20 years in advance of the 2003 legislation, or if the importer can demonstrate that it was exported prior to the Egyptian law banning export. There is a danger and a perception that the legislation will be weaker than what we would have had before the revocation of the EU law.
The third area, of course, is that of potential loss of international reputation. This is significant, because there will be inevitable criticism for the way in which the UK Government have gone about this. We will have been clearly put in a position where there are deficiencies in our current legislation, and where the European legislation is providing a better and broader understanding of what needs to be done and is more up to date. There is no change proposed to the UK legislation—and, if any is proposed, surely it would have been better to consider these matters together rather than separately.
The third point is what the EU legislation proposed—the use of an electronic system for a centralised database to be shared between EU member states so that people can easily track and follow goods that are particularly concerning or worrying. Will we have the opportunity to be part of that electronic database, or at least have access to it? Clearly, it will provide a safeguard that would be helpful going forward and it would protect us a little bit from having our international reputation chipped away at.
The way the Government have done this has left us with a shoddy mess of inadequate and conflicting law that will damage our reputation worldwide. There is a need for extra actions to be taken. It may have been better to try to amend the legislation; revoking it without looking at the consequent legislation that we are left with seems inappropriate and certainly not helpful to our reputation. It will give the impression of a reduction in the scale of protection in the objectives that we have set out ourselves and which are in the EU legislation, as well as those that lie behind it. Overall, it is not a helpful position for us; it would have been far better to have done this in a more comprehensive manner.
My Lords, I also thank the Minister for his introduction today. It is a pleasure to follow the noble Lord, Lord Stevenson, and my noble friend Lord German.
The Government have adopted what can be described only as a cavalier approach to the repeal of an important regulation designed to prevent illicit trade in cultural goods in the EU. I am glad that the advice of the Secondary Legislation Scrutiny Committee has been heeded, and that we have the opportunity for this debate today. I understand that new provisions are needed on our exit from the EU, but a complete repeal without any replacement mirroring the provisions for the UK by itself raises serious questions of the kind that both the noble Lord, Lord Stevenson, and my noble friend have raised. On these Benches, we do not support this SI, for the reasons set out by my noble friend, the noble Lord and, shortly, by myself.
There are real issues here about what consultation was carried out, what the result of the consultation was, who was in support of this solution and who wanted to see a different solution. Were the requirements on provenance the key objection to the current regulation? If so, in what respect? Does not the sum total of what the Government are proposing mean that illicit and looted artefacts will now enter the UK more freely?
The timing of the tabling of the SI was a surprise to expert organisations such as UK Blue Shield, the organisation so instrumental in campaigning for the Cultural Property (Armed Conflicts) Act 2017. Indeed, we had little notice in Parliament that this was coming before us. UK Blue Shield rightly raised the question of whether the decision to revoke the regulation intended to prevent the funding of terrorism, as one of the UK Government’s first post-Brexit repeals, may well cause international controversy and criticism. It calls into question the UK Government’s recent declaration in the integrated review, Global Britain in a Competitive Age, that culture is key to their soft power agenda.
The Explanatory Memorandum and the de minimis assessment are highly misleading. They suggest that existing domestic laws are sufficient to prevent illicit trafficking, but they say little about the practice of those laws. As Blue Shield says, referring to the 2003 Act and the Hague convention mentioned by the noble Lord, Lord Stevenson,
“in reality, they are not actively enforced in the UK and do not require active checks of imported cultural goods. Furthermore, not all legislation applies equally across the UK, a fact which is notably absent from the Memorandum.”
This was expertly brought out by my noble friend Lord German, who is a great deal more expert in the vagaries of devolution than I am. It goes on:
“As a result, by trying to reduce the requirements imposed by the Regulation, UK customs authorities will have to understand and operate three different sets of rules and laws to ensure no illicit cultural objects enter UK borders, depending on the point of entry.”
My noble friend shared with us the very graphic example of an Egyptian artefact.
Blue Shield sets out three major risks with which I entirely agree: that Northern Ireland may be used as a gateway to move illicit cultural property into Europe, that there would be reputational damage to the UK and that the UK would be a target for illicit cultural objects. It quotes Alexander Herman, assistant director of the Institute of Art and Law, who comments:
“The EU Regulation’s Article 3(1) prohibition on introducing cultural goods presents a significant expansion of the usual import restrictions for this sort of material. By repealing it, the UK may be seen to be facilitating the illicit trade, even if that is not its intention. Rather than a ‘quiet repeal’”—
more like “virtually invisible”—
“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.”
Why is the UK repealing this regulation with a whimper and not this kind of commitment?
I assume that the current GOV.UK link is to out-of-date guidance on licences by the Arts Council England—at least, I hope it is out of date—which was last updated in December. The GOV.UK site says:
“You need a UK licence to export cultural objects from the UK to any destination outside the UK. You do not need a licence to move objects of cultural interest from Great Britain to Northern Ireland.”
That, I assume, will have to change. Can the Minister confirm that checks will be required by the regulations on cultural goods going into Northern Ireland, or are the Government planning to break the terms of annexe 2 of the Northern Ireland protocol EU agreement?
It is clear that the Government risk getting us into a muddle and allowing confusion on the rules, which will give a real opportunity for those dealing with illicit works. I hope that is not the Government’s intention, but they seem to have listened to the wrong advice on this. Will they rethink their approach or are they in the pockets of the art dealers—the “art market stakeholders” so frequently mentioned in the assessment —who want to continue with the practices of the past?
The SLSC pointed to fears in the de minimis assessment, and I think it is worth quoting from that. It says that:
“It is likely to be criticised by those who consider that the UK needs to do more to prevent the import into the UK of cultural goods which have been stolen, looted and/or unlawfully exported from other countries. They are likely to argue that we should have fixed the provision to make it operate correctly in UK law. They may also argue that we should retain the other provisions to facilitate the eventual implementation of the whole of the Regulation, including the import licence and importer statement requirements.”
Bullseye—that is exactly the criticism being made of these regulations.
I thought the constructive suggestion from the noble Lord, Lord Stevenson—that the Law Commission could get involved—was very good. Others have been put forward around co-operation with UNESCO that Blue Shield would be keen to see. I think there are a number of ways forward, but they all involve putting something in place which brings us closer to the original impact of the regulation and does not simply repeal the EU regulation in the way that the Government have suggested.
My Lords, I thank the Minister for his introduction to this SI. I have taken careful note, as I am sure he has, of the contributions from my noble friend Lord Stevenson and the noble Lords, Lord German and Lord Clement-Jones, who brought their collective attention to this matter. I have a sense of foreboding that the Minister may regret introducing this short statutory instrument by suggesting that it is simply a matter for clarification, as it seems to have required yet further clarification in the course of this debate.
This is a short statutory instrument—the main provision is one sentence long—but it sends a worrying signal to those who are concerned about the protection of items of cultural significance. We are grateful to the Secondary Legislation Scrutiny Committee for recommending that this SI was upgraded from the negative procedure to the affirmative, and for the additional information provided in its fourth report of the Session.
DCMS insists that this instrument is merely an exercise in tidying up the statute book, but, as the SLSC noted, the department’s decision will give many a perception that the UK is watering down its protections for cultural goods that have been stolen, looted and/or unlawfully exported from other countries. That is not the message that this Government should be sending.
This is undoubtedly a highly emotive subject. It is also a live one. In recent weeks, we have seen the case of a British auction house removing two looted Ethiopian objects from sale, following an intervention by that country’s embassy. Elsewhere, in Italy, authorities recently recovered what has been described as an “archaeological treasure trove” of almost 800 stolen artefacts from Belgium. I am sure we all agree that it is a tragedy that criminals commit these acts, but for as long as that occurs, we have to ensure we have the appropriate protections in place.
The Explanatory Memorandum helpfully lists a number of the statutory provisions and international conventions that the UK has or is party to, but can the Minister outline what steps are being taken to keep them under review? As with other areas of crime, there is a worry that the trade of stolen cultural items is increasingly taking place online, and potentially through platforms on the dark web. Is the Minister able to comment on this trend and the steps that his department is taking in response to it? Can the Minister comment on how he feels the current system is working and how well our domestic rules are doing?
Finally, in response to the disruption of trade flows following the end of the transition period, HMRC waived administrative requirements on certain imports and exports. In doing so, it conceded the risk of security issues at the border. Last week, the noble Lord, Lord Agnew, committed to write to my noble friend Lord Tunnicliffe on this issue. However, until then, is the Minister able to say whether these temporary waivers could have inadvertently aided those seeking to get cultural items into or out of the country? I look forward to the Minister’s response on these points and the other points that were raised during the course of the debate.
I am grateful to noble Lords for their comments and questions on these regulations. I will do my best to cover the range of questions raised but, as ever, will make sure I consult the exchanges and write with further detail, where I am not able to do so.
The noble Lord, Lord Stevenson of Balmacara, asked why we have chosen to revoke rather than amend the regulations. As I tried to set out in opening, even if these regulations were not legally deficient, the general prohibition would raise other issues of concern for us. It applies to a wide range of cultural goods, regardless of their age or value, who is importing them, for what purpose or when they were exported from their country of creation or discovery. That gives it a very broad scope. Any cultural goods within its scope could be prohibited from entering the United Kingdom if they were believed to have been unlawfully exported from their country of creation or discovery, even if they have been, to all intents and purposes, lawfully owned for years, decades or, in some cases, even centuries by private owners or museums, without their legal provenance being questioned. We think that it could prevent cultural goods created or discovered within Great Britain from being returned, if they had previously been unlawfully exported from this country.
Moreover, there is no requirement for anyone to provide evidence of either lawful export or unlawful removal from the country of creation or discovery. In the event of a claim that cultural goods were unlawfully removed, it is not clear where the burden of proof should lie. I hope that sets out some of the concerns we had with the regulations and the thinking that underpinned our decision to revoke. As we already have existing legislation that has proved to be effective in tackling the illicit trade in cultural goods, we think it better to revoke the general prohibition to clarify the position and avoid confusion.
The noble Lord, Lord Stevenson, also referred to the Hague convention of 1954 which, he rightly points out, is some time ago. The UK is also party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The requirements and obligations of both those conventions are reflected in our domestic law, most notably in the Dealing in Cultural Objects (Offences) Act 2003 and the Cultural Property (Armed Conflicts) Act 2017, both of which are more recent pieces of legislation. The UK and its authorities are members of international organisations, such as Interpol and the World Customs Organization, which enable them to co-operate and share information and intelligence with their counterparts in other countries, as well as make sure that our response is fully up to date in the ways the noble Lord raised. I should point out that the other types of culture that he mentioned in his question are not reflected in the EU regulation either.
I will take the noble Lord, Lord Stevenson, up on his offer to write, after I have checked with lawyers why they chose the word “tangentially” in paragraph 7.5.9 of the Explanatory Memorandum. I would be happy to write when I have that explanation, and I shall take back the suggestion that he made about the Law Commission to the department.
The noble Lord politely suggested that I had glossed over the impacts on Northern Ireland. That was not my intention, although I do not think that is what he was suggesting either. The Northern Ireland protocol has been and continues to be well debated in your Lordships’ House. We do not expect the general prohibition to have a significant impact on the import of cultural goods into Northern Ireland, including from Great Britain. At this stage, it is not possible to say how significant that impact might be.
The noble Lord, Lord German, asked about the application of the law to Scotland. The 2003 Act does not apply to Scotland, but other legislation and relevant international law does. I mentioned a couple of Acts in opening—the Customs and Excise Management Act 1979 and the Cultural Property (Armed Conflicts) Act 2017—both of which apply to Scotland. Retained EU law is, of course, a matter for the UK Government.
The noble Lord, Lord German, and others suggested that revoking these regulations might risk sending the wrong message about the UK’s commitment to tackling the illicit trade in cultural goods. We do not believe that is the case and are determined to tackle that illicit trade. The UK has a strong record of finding and returning unlawfully removed cultural goods. In opening, I mentioned the example of a statue that was recently returned to Libya. To give another example, in 2019, a Mesopotamian kudurru or boundary stone, which was probably stolen in 2003, was seized by HMRC at Heathrow Airport and subsequently forfeited to the Crown. It was formally returned to Iraq in March 2019. Over 150 Mesopotamian cuneiform tablets, seized by HMRC in 2011, were also returned to Iraq in August 2019. So I hope there is no doubt about our commitment, determination or track record in tackling the illicit trade in cultural goods.
We will explore the issue which the noble Lord, Lord German, raised about a database, but it is worth saying that we already share intelligence via our role in Interpol, where we are a key player, and through the World Customs Organization.
The noble Lord, Lord Clement-Jones, suggested that Northern Ireland risks becoming a gateway for unlawfully removed cultural goods to enter the EU from the UK. We do not believe that will be the case. Importing unlawfully removed cultural goods into the EU via Northern Ireland would be a lengthy and costly route for anyone who chose to do so, and there would be many opportunities along the way for unlawfully removed cultural goods to be detected and seized. Our customs and border authorities will continue to do their utmost to prevent unlawfully removed cultural goods entering the UK and ensure that such goods are not transferred to Northern Ireland with the intention of moving them on from there to the EU.
To address the point made by the noble Lord, Lord Clement-Jones, no export licence will be required for movement from Great Britain to Northern Ireland. Other checks are a matter from HMRC but will not include any new measures for the general prohibition. The noble Lord also referred to our art market, which is the second-largest in the world and has a notable and deserved worldwide reputation. There is no evidence that it is underhand or acts outside the law. I am sure that is not what he was suggesting.
To respond to the point made by the noble Baroness, Lady Merron, I do not regret the way I set out these regulations. I hope that the consideration that your Lordships have given them in Grand Committee today has afforded the proper opportunity for scrutiny and, through my answers, some clarification. I will follow up in writing with further points where that is needed.
We believe that this statutory instrument will provide clarity and certainty for the UK’s museums and art market, allowing them, and their partners and clients, to bring cultural objects into the UK without fear that they will be delayed or detained at the border because of any unsupported claim of unlawful removal from another country at some point in the distant past. Our existing legislation was robust in protecting cultural goods before the general prohibition came into effect, and it will continue to provide protection against the illicit trade in cultural goods. In cases where there is evidence or information that an object was unlawfully removed from another country, our customs and border authorities will still be able to detain it and deal with it accordingly, using their existing powers and procedures. I end by re-emphasising that this statutory instrument will not change that.
The Grand Committee stands adjourned until 4.10 pm. I remind Members to sanitise their desks and chairs before leaving the Room.
Arrangement of Business
My Lords, the hybrid Grand Committee will now resume. Some Members are here in person, others are participating remotely, but all Members will be treated equally. I ask Members in the Room to respect social distancing. If the capacity of the Committee Room is exceeded or other safety requirements are breached, I shall immediately adjourn the Committee. If there is a Division in the House, the Committee will adjourn for five minutes.
Criminal Justice (Electronic Commerce) (Amendment) (EU Exit) Regulations 2021
Considered in Grand Committee
My Lords, this is a technical instrument concerning EU jurisdictional rules. I make it clear at the outset that these regulations do not create new policy nor change the nature of the related offences; they are merely measures to fix failures of retained EU law arising from the withdrawal of the UK from the European Union. If time had allowed, the Government would have brought forward this regulation before the end of the transition period. However, as we are not aware that the rules in question have ever been relevant to a prosecution for the offences that this instrument relates to, we prioritised other, more urgent, legislation. Now that such other more important legislation is in force, it is necessary that we address any remaining deficiencies in retained EU law.
This instrument concerns an internal market measure contained in article 3 of the EU’s e-commerce directive. Although that directive is largely being retained in UK law, a key aspect of the directive is the country of origin principle, which establishes jurisdictional rules that operate across the EEA. Following the end of the transition period, these rules, which rely on reciprocal application between the EEA states, no longer operate as intended. The removal of the country of origin principle from legislation under the responsibility of my department is, therefore, the objective of this draft instrument.
The rules contained in the country of origin principle here apply to online activities which meet the definition of information society services, known as ISS, which can be understood as a service offered for payment, at a distance, by electronic means, and at the request of the recipient of that service. ISS could provide services such as online retailers, video sharing sites, search tools, social media platforms and internet service providers. Because of their reciprocal nature, these rules aimed to make it easier for organisations to operate online across borders. They did this by making ISS operating in more than one European Economic Area state subject only to the law of their home country unless certain conditions were met. This meant that, for relevant offences, ISS needed to comply with only one set of laws, those of the home state, rather than those of each state they operate in, thereby reducing the regulatory burden.
The implementation of these rules in connection with this statutory instrument has two strands. First, it creates a procedural bar, restricting prosecutions of ISS based in the EEA for their conduct in another EEA country; the procedural bar is based on the proposition that the ISS could have been prosecuted by the state in which they were established—that is, the home state. Secondly, it makes ISS based in one EEA state subject to the law of that state for their conduct across the EEA. This instrument fully removes the UK’s implementation of both aspects of the retained rules from legislation for which the Ministry of Justice has responsibility. As a consequence, UK ISS operating in the EEA will be subject to UK law only to the same extent as they would be when operating in other foreign countries. There will be no distinction between operating in an EEA state and operating in any other foreign state. It also means there will no longer be a procedural bar restricting prosecutions of EEA-based ISS operating in the UK, meaning that proceedings against an ISS based in an EEA state would operate in the same way as proceedings against an ISS based in any other foreign state or a domestic ISS.
The key points here are three, and those I made when I first rose—using that term somewhat loosely in this Room. First, we are unaware of any prosecutions of ISS for the offences this instrument amends, let alone any cases to which these jurisdictional rules have applied, so the direct impact of this instrument is low. Secondly, these exit-related deficiencies need to be resolved, because the rules were based on reciprocity which no longer exists and, if left unresolved they could, in future, place UK businesses at a disadvantage. Thirdly, the approach taken in this instrument is not only a suitable method of dealing with this issue but, I suggest, the only method of addressing these deficiencies. For those reasons, I urge the Committee to join me in supporting this instrument and beg to move.
My Lords, I heartily support the Motion. Information society services that operated from within the EEA were subject only to the law in their place of origin, as the Minister has explained. When we left the EEA, this could no longer apply, and the provisions for implementation of this system inserted into our law could no longer apply. This seems simple to deal with, and this statutory instrument just deletes them from our law. If a society has its origin in a devolved Administration, it is the law there that requires the deletion.
This was originally put forward as a statutory instrument with no need for approval, but the committee raised some questions that seemed to suggest it should be altered. Therefore, we have this before us today with rather a short consideration, I believe.
It has been suggested that a new provision is required to make services established here subject to remote control here, but I cannot see that that is appropriate. While the previous system operated, it did not affect non-EEA countries. This instrument leaves that as it was and puts EEA countries in the same position as those leaving the EEA, which makes our relationship with EEA countries the same as with others. Therefore, all we have to do is leave it alone. I can see there is room to consider harmonising policies on these matters across the world, but this statutory instrument—or statutory instruments generally under this power—are not appropriate for that.
My Lords, I thank the noble Lord, Lord Wolfson of Tredegar, for his introduction. The Explanatory Memorandum could have done with illustrative examples to clarify the new position following the implementation of these regulations. I support the committee in insisting that this instrument had a hearing.
As I understand it, the e-commerce directive applied to companies engaged in internet trading, search tools, social media platforms and the like. A trader based in this country trading online in the EEA could be criminally liable under the laws of this country only, and would not have to comply with the criminal law of any EEA state in which he was trading. The strength of the country of origin principle, “the CoOP”, was that it was reciprocal; other countries dealt with traders operating within their jurisdiction similarly.
However, since the end of the transition, UK internet traders or social media platforms have had to adhere to the laws of each EEA country in which they operate. Equally, EEA traders can be prosecuted if they do not comply, when operating in the UK, with our criminal law. Perhaps the Minister can confirm that a UK trader now must have regard to the criminal law in each EEA country in which he operates, but will not be liable in this country for offences committed abroad, because the courts of this country will have no extraterritorial jurisdiction to prosecute here for such offences. If, therefore, a trader wishes to advertise his wares on the internet in, say, Belgium, Denmark or Germany, he will have to ensure that his advertisements or the products he is selling comply with the criminal laws of each country.
Take pornographic material, for example. If a trader in London publishes obscene material in EEA countries, he can be prosecuted there but no longer in the UK. He can be prosecuted by the appropriate prosecuting authorities in those countries but, unless the material is published in the UK as well, no prosecution is possible here.
Does it then follow that such a trader can sit in London and purvey his material in EU or EEA countries, safe in the knowledge that, in the absence of the European arrest warrant, it would be extremely difficult to extradite him to Belgium, Denmark or Germany, where the offence is committed? The converse is that, if a European trader publishes obscene material in this country, he can be prosecuted in UK courts if we can get hold of him. Absent the European arrest warrant, that is likely to be difficult.
The Explanatory Memorandum says:
“Removal of the CoOp”—
the reciprocal arrangements—
“will only bring regulation of UK ISS operating in the EEA in line with their operation in other foreign countries, and does not affect our ability to prosecute UK nationals or residents who commit offences outside the UK”—
this final section is underlined—
“where our courts have jurisdiction to do so.”
The Minister will know how limited extraterritorial jurisdiction is in this country: for murder, manslaughter in certain circumstances, sexual offences against persons under the age of 18, forced marriage and female genital mutilation—a short list. We are about to consider legislation which implements the Istanbul convention—ironically, the convention promoted by more Europeans than the Council of Europe—on preventing and combating violence against women and domestic violence. The fact sheet published by the Home Office last month indicates the extent of the proposed extension of extraterritorial jurisdiction. It does not include publicly publishing obscene materials or fraud.
Personally, I am sick to death of scams from abroad, sometimes from west African countries, which force every one of us to set up barriers on the internet, email and telephones. I hate the idea that persons could set up in this country to defraud people on the continent or flood their markets with pornography. Would it not be simpler if, rather than drawing up our skirts to avoid contamination by the EU or the EEA on every occasion, we now negotiated to enter into a new reciprocal agreement? As I see it, these regulations are a necessary consequence of Brexit, but creating a platform for criminals to defraud European citizens is in no way desirable. I await to see whether I have misunderstood the whole purpose of these regulations.
My Lords, we in the Labour Party accept that this instrument is necessary to address the current lopsided arrangements following the end of the transition period of the UK leaving the EU. The Explanatory Memorandum states:
“Its purpose is to address failures in retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the EU by amending the domestic legislation which implements a reciprocal arrangement known as the ‘Country of Origin principle’”.
The instrument amends primary legislation, and the changes made to each Act have substantially the same effect. In respect of domestic information society service providers, they remove liability under UK law for offences committed in EEA states, as well as the ability to prosecute those offences in the UK. In respect of EEA-based information society service providers, they remove the restriction on bringing prosecutions in the UK for offences committed in the UK.
The European Statutory Instruments Committee has expressed concern that
“the effect of this instrument could be to dilute regulation of the international effect of publication of certain kinds of material (particularly online material with global reach) as it is not clear whether equivalent offences exist across the EEA. We therefore requested further information from the Department on this question. The Department’s response … states that it has not carried out a thorough review and is therefore not in a position to explain the extent of any dilution of international regulation. Given the serious nature of the offences covered by the instrument, and the ambiguity surrounding parallel offences in other EEA countries, the Committee believes that this issue is of sufficient political importance to justify the scrutiny and debate afforded by affirmative resolution.”
I have read the response to the points raised by the committee in certain paragraphs of the Government’s Explanatory Memorandum and listened to Minister Chalk’s response to my honourable friend Alex Cunningham when he raised these points in yesterday’s debate in the House of Commons, so I will not ask the Minister to repeat the points made yesterday.
However, given the sensitivity of the various acts to which this instrument applies and the wider context of the substantial legislation we are expecting, in the form of the online harms Bill, for example, can the Minister say something about how he sees international legislative co-operation developing to combat international crime and exploitation? I note that the noble Lord, Lord Thomas, essentially asked the same question about future reciprocal agreements, and I also note that the noble and learned Lord, Lord Mackay of Clashfern, asked about harmonisation of policies. It is a much wider question than the narrow but important remit of this SI, but I think that all Members participating in this debate would be interested in the answer to it.
My Lords, sometimes a debate is short but it sets up some interesting points, and this is one of them.
First, I thank my noble and learned friend Lord Mackay of Clashfern for his comments. He makes an important point that this instrument essentially means that an ISS will be treated the same way under our law, irrespective of where they are based, for their conduct here. Now that we have left the EU, maintaining different and indeed preferential treatment for EEA-based ISS would be inappropriate. That theme runs through a number of the points which we have debated this afternoon.
Given the time limits I have, I will not say anything more about the sifting committee recommending that we have an affirmative procedure this afternoon; we have set that position out in writing.
I can confirm that the noble Lord, Lord Thomas of Gresford, has not, as he put it, misunderstood the whole purpose of the SI. I take his point that an Explanatory Note might sometimes be more useful if it has worked examples. However, the problem with a worked example is that, if you do not cover every example, the danger is that the Explanatory Note could prove to be more misleading. The noble Lord highlighted that, since the end of the transition period, ISS have been liable to the laws of each country in which they operate. These changes mean that they will no longer also be liable in the UK, thus removing dual liability.
The noble Lord described a theoretical scenario, but I have to say that his concerns about bringing foreign offenders to justice in the context of cross-border offences was really the focus of his comment. This instrument specifically addresses reciprocal jurisdictional rules. On the wider point he makes, it is fair to say that those rules were never intended to contribute to the wider regulation of the publication of illicit materials internationally. They apply only to organisations meeting the definition of ISS, which is a limited definition, and only to activity in the EEA. The purpose was a much narrower one, simply to make it easier for such organisations to operate in multiple countries by simplifying the legal and regulatory framework which applied to them. Therefore, while in theory the co-operation agreement made it possible to prosecute UK-based ISS, and in some cases individuals, for conduct that occurs in EEA states, in practice, as I said in opening, we are not aware of any such prosecutions.
Generally, to meet the noble Lord’s point head on, the Government’s view is that criminal offending is best dealt with by the criminal justice system of the state where the offence took place. In any event, leaving in place rules that flow from EU reciprocal arrangements that no longer apply to the UK, and which are limited to UK ISS operating in EEA states, would not be an effective approach to address the concerns the noble Lord identified. Where we have extraterritorial jurisdiction, that is always on the basis that we look at all countries in the world on the same basis, and we do not distinguish between EEA states and other foreign states. Ultimately, therefore, this instrument means that we will treat EEA countries in the same way as any other foreign country. Now that we have left the EU, I suggest that that is entirely appropriate.
Towards the end of his comments, the noble Lord, Lord Thomas, said that he was
“sick to death of scams from abroad”.
For the briefest of moments, I thought the noble Lord had converted to the hardest of hard Brexiteers, but then he referred to west Africa and I realised he was making a different point. But that point underlines the philosophy that underpins this statutory instrument. Whether the scam comes—so to speak—from west Africa, from an ISS in the EEA or from anywhere else, we have left the EU and will therefore treat all foreign countries in the same way. That is generally consistent with the way we approach extraterritorial criminal jurisdiction in this country.
I turn last to the noble Lord, Lord Ponsonby of Shulbrede, who referred to the “current lopsided arrangements”. If I may say, with respect, that is absolutely right. That is why we need this statutory instrument, as we have a lopsided position without it now that we have left the EU. I am grateful that he did not ask me to repeat the answers given in another place yesterday, but I will turn to the particular question he asked me on how I see international legislative co-operation developing to combat international crime and exploitation.
The noble Lord raised the important issue of protecting the vulnerable from exploitation online, which is something that the Government fully agree and sympathise with. This is a challenging problem, not least because the underlying technology is constantly changing. It therefore needs to be tackled both by working with our international partners and through updating our domestic legislation. We have previously indicated that we intend to bring forward a draft Bill to address online harms and make the UK the safest place in the world to be online, setting the global standard for safety online, with the most comprehensive approach yet to online regulation.
I said a few words about this when I opened the relevant day of the debate on the humble Address to Her Majesty the Queen. The draft Bill will include placing a duty of care on companies to improve the safety of their users online. It will require major platforms to set out clearly, in their terms and conditions, what legal content is unacceptable on their platform and to enforce those conditions, consistently and transparently. It will require platforms to have effective and accessible user-reporting and redress mechanisms. I know that people often complain about that: when you see something online that you want to complain about or refer to the online platform, it is often very difficult to do so. It will designate Ofcom as the independent online safety regulator and give it the power to levy very large fines indeed. It will also boost public resilience to disinformation through media literacy and supporting research on misinformation and disinformation. The last is something that, in our modern society, is becoming increasingly important.
I hope the Committee will forgive me if I do not say too much more about that prospective legislation, because I would be straying a little too far from the direct subject of the SI. Coming back to that, it is of limited but focused application, as I have said, and I commend it to the Committee.
That completes the business of the Grand Committee this afternoon. I remind Members to sanitise their desks and chairs before leaving the Room.
Committee adjourned at 4.39 pm.