Dealing in cultural objects; dealing with a gap in Scots law

It is fair to say that the Dealing in Cultural Objects (Offences) Act 2003 is not a well-known statute in most circles. It is also fair to say there are many other headline grabbing things going on in the UK at the moment. Notwithstanding all of that, this is a short post about this Westminster statute, with a particular focus on the lack of application of it or any equivalent rules in Scotland.

I approach this topic carefully as it is not something I interact with regularly day-to-day. I did have some interaction with it recently though.

In the first term of this academic year at the University of Aberdeen I joined the teaching team of a Masters course called Cultural Property Issues (covering for a colleague’s research leave). The two topics I covered were treasure trove and repatriation.

Treasure trove can pretty much be taught as a subset of Scots property law, so that was a relatively straight swap in the teaching team. This blog post is not about that topic (but if you are interested you can find the Code of Practice for Treasure Trove in Scotland by the brilliantly named Queen’s and Lord Treasurer’s Remembrancer here).

Repatriation is something that took me back to my undergraduate days studying private international law and other dabbling with corporeal moveable property matters with my late colleague Professor David Carey Miller. Accordingly, I set about getting myself back up to speed with the overall principles in this area. In so doing I met the aforementioned Dealing in Cultural Objects (Offences) Act 2003.

The 2003 Act is not difficult to understand in its own terms. In brief though, it closed something of a loophole relating to illegally removed or excavated cultural property (that is to say, objects of historical, architectural or archaeological interest that have been removed or excavated in a manner that was illegal in the place where the act took place), where someone then dishonestly (i.e. with the knowledge or belief it is tainted) deals with the item. The statute makes such dealings a criminal offence.

When the (rest of) UK legislation was passed, it was not extended to Scotland. This was because the subject matter was devolved (see the proceedings of the House of Lords here).

The non-extension to Scotland was not and is not a secret. Law-makers in Scotland knew there was a gap. But there has been a failure to introduce equivalent statutory measures. This is not satisfactory.

It should be acknowledged that there have been attempts to introduce the offence to Scots law, notably via sections 23-36 of the Culture (Scotland) Bill 2006 (see here (PDF), and the wider document containing the bill here (PDF)).

That bill was not enacted, as touched on by the Scottish Government in 2008 here. In this brief return to the issue, in the publication Revitalising Justice – Proposals To Modernise And Improve The Criminal Justice System (PDF), it was noted that suitable provisions would be included in the Criminal Justice and Licensing Bill. But when this became an act of the Scottish parliament in 2010, no such suitable provisions were included. That is where the story ends.

All of this means Scots law is deficient in this area. Ropey conduct that is not technically the existing offence of theft will not attract legal consequences when there are strong arguments, in cultural property terms and for uniformity across the UK, that it should.

This deficiency can maybe be explained. Perhaps legislating for that fickle creature called culture in the climate of Holyrood would be ripe for criticism or politicking. That explanation is not a justification though. A short, targeted bit of legislation – not unlike the 2003 (rest of) UK legislation – could be introduced to deal with this.

There are other areas of Scots law that are ripe for reform that touch on cultural property – this Twitter thread from the Law Commissioner Dr Andrew Steven gives one such example.

As noted at the outset, such matters might not be headline grabbers, but they are important all the same. I hope this blog post serves as a marker for future reform when our law-makers can direct attention to it.

Thanks to Dr Adelyn Wilson and Neil Curtis for chatting through some of the issues raised here with me at the time I was preparing some materials for the course mentioned above. Any errors in this blog post are mine.

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About basedrones

Bachelor of Laws. Scots lawyer working at the University of Aberdeen. English law qualified. Took far too long to write this bio. Blogs on legal issues, with occasional veering into other purportedly intellectual stuff from time to time. Tweets about legal issues, education, law clinics, fitba, music, rogue cell division and not at all about politics at @MalcolmCombe.
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