Friday, 22 August 2008

Who needs Export Licences?

In his comments on an earlier post here Ed Snible suggests that it would be helpful if this blog could explain the rules about UK and EU export licences. It is not the purpose of this blog to provide legal advice, but perhaps a few points might be made about the UK system, which by no means exhaust the topic.

The regulations on this are indeed very involved and complicated by the fact that the UK follows the EU in most areas, but not in the case of (for example) archaeological material.

I think we should keep in mind the purpose of export licences. Portable antiquity collectors see it from their own point of view as something which is “restrictive” (in other words restricts their “freedoms”), fortunately not all collectors on the British art market see it that way, US portable antiquity collectors (and coin collectors in particular) seem to be a breed alone in this regard. In effect, the purpose of the British export licencing system (like any other of course) is that the British authorities would like to see what is being removed from the country before it goes. This is to make sure nothing is going out that the British people might feel should in fact be in the national collections. If something is regarded as required for the national collections, import is temporarily halted (by non-issue of the required licence) while the object is offered to national collections which can attempt to raise the money to purchase it. This is not always possible even despite the inevitable media campaigns, and the item ends up being exported anyway. Surely it is not too much to ask of exporters that they ask politely if the British do not mind this or that piece of cultural property being exported instead of being made available in British collections? The number of items refused permission is actually very slight in comparison to the immense scale of the movement of cultural property (both ways) across the borders of the UK.

Ed is a coin collector and asks in his comments to the earlier post,

If I buy a Roman coin minted in Rome found in Britain is it a "UK object"?

The flow chart doesn't mention coins

As we have seen, there is a curious opinion in the coin-collecting world in the US (where ancient coins do not as a general rule come out of the ground) that “ancient coins are not archaeological finds”. In the UK (one of the countries where ancient coins do indeed form part of the archaeological record) there is no such opinion. In the eyes of British law and public opinion and of course the professional view is that coins are archaeological finds and need an export licence to the same degree and under the same conditions as other archaeological finds.

Basically any archaeological material found in UK soil or UK territorial waters, more than 50 years old and regardless of monetary value, requires an individual export licence to leave the UK. That's what the law says. So regardless of whether the coin was “minted in Rome” or not, and whether coins were generally "originally made to to be exchanged between regions", if it formed part of the archaeological record in the UK and was dug from it, it needs an export licence. In fact of the many thousands (yes) of export licence applications made in the UK each year for archaeological finds, only a handful of objects are refused export permission. They are published in a series of nicely written and illustrated ("look how well we are doing") reports. I must say that on looking through them, the archaeological objects retained on the basis of the criteria applied in making the decision are rather a motley bunch of items.

So basically in the majority of cases, getting the required documentation is a matter of filling in the forms properly and waiting. Some exporters though (perhaps at the instigation of impatient clients) obviously cannot be bothered to do this, they put the item in a padded envelope and clandestinely send it across the UK’s (and EU’s) borders in that way, counting on the fact that Her Majesty’s Customs and Revenue only open and inspect the contents of a random selection of the many millions of postal packages sent abroad daily. It would seem that most times these exporters get away with it (that says a lot about HM Customs, because it must mean that far worse cases than a few ancient coins or brooches are also getting through the “net”). It is worth noting that many sellers of ancient and historic objects in the EU (for example metal detectorists) write clearly in their sales offer that they “do not send items abroad”. In other words, they are aware of the export regulations, and feel obliged to comply with them, but don’t want the bother of filling in the paperwork, so rather than export artefacts illegally they sell only within the borders of their own country.

A few weeks ago, I had a frustrating discussion on the Yahoo ‘Ancient Artifacts’ forum with a dealer who thought that by the seller putting metal detected archaeological artefacts in a padded envelope and writing on the outside “old coins” the customs formalities had been “satisfied” because, his argument ran, if customs had “had any objections” to their export they would have stopped the package. If they did not, these items were in his opinion legally exported.

Probably the person who carries a few old coins mixed with other coins in a purse and walks through customs with them can say the same thing "they could have stopped and searched me but they did not, so what I did is obviously OK with them".

This "Customs Had No Objections" Argument is a very dubious self-justification indeed. Firstly it ignores the fact that customs only enforce (or not) the requirements, while decisions on what is and is not to be exported (ie the issue of an export licence) in most countries are the domain of a specialist service set up for the purpose. Secondly, there are a number of reasons why archaeological items might pass through customs undetected, and none of them is connected with the legality of the activity.
Objects exported by these means without an export licencew where one is required have unquestionably been illegally exported. They have been “sneaked through the system” in other words – lets call a spade a spade – smuggled out. The purchaser who surely knows there are export restrictions on such items and cannot produce a valid individual export licence for them should surely be accountable for it. The dealer who buys these objects is buying illegally exported items and in doing so is dealing with a criminal. The collector buying from the dealer should have access to the documentation that shows the offered artefact was not originally purchased from a criminal, the "reputation" of the dealer must be grounded in their ability to demonstrate this.

I have been unable to find out whether there are any international postal agreements which cover the use of the postal service for the transfer of cultural property like this. If not, there should be.

There are also complications in that most of the legislation covering this concerns illegal export, while a serious loophole is that import into many countries is not restricted, even when the object is illegally exported at the other end of its journey a few hours earlier (unless certain conditions exist, like the US import restrictions on archaeological material of Cypriot or Iraqi etc. origin – but it should be stressed that these are exceptions). While I am sure there are many good reasons (and a few less salubrious maybe) why this should be so, it places the struggle against illegal transfer of cultural property at a disadvantage.

Mr Snible asked:
What if I purchase a Greek coin that wasn't found in the UK? If an object receives an Export license can it be re-used if I want to carry the object around with me while visiting the UK or is a new one needed each time?
Here we are getting into the more complicated areas, Greece is in the EU and the questioner lives outside the EU and here all sorts of other things come into interplay, and really it would take a lot of words and time to set out the various options (I've got a book coming out soon, and in its current draft it has a long and boring appendix which sets all this out with a bit of help from colleagues). There are situations when Britain is required to issue an export licence, there are situations when it is not.

It seems to me that if somebody sets out to be a collector of, or even dealer in, in a commodity which is by its nature controversial and often subject to various restrictions, they are honour-bound (if nothing else) to investigate the various regulations that govern its use and transfer. It would be at the least irresponsible to take a car on the road without knowing the rules and regulations which govern not only your own behaviour, but that of other road users. If you drive in several countries, you need to know how the movement of traffic is regulated in these different countries. I do not see where collecting antiquities or any other type of item should be different. I have suggested on collectors’ forums that creating a database of these national and international laws and regulations would be a useful task. It should not take much work, as no doubt the ethical and responsible dealers will already have determined them for their own use. Maybe Mr Snible and other collectors will join me in requesting that responsible dealers in portable antiquities set up a resource for the benefit of their clients setting out the laws which they have already researched and which govern the acquisition, export and import of archaeological finds in the various ‘source countries’.

The UK law at the basis of the rather complex series of export regulations is SI 2003 No. 2759, The Export of Objects of Cultural Interest (Control) Order 2003.


Ed Snible said...

Paul, dealers consider 'coins' and 'antiquities' to have no overlap because *in the market* they don't overlap. In the rare case where a dealer deals in both coins and non-coin ancient objects the dealer will consider himself a dealer in coins *and* antiquities and his catalogs will keep coins separate from non-coin objects.

I have learned that archaeologists consider everything ancient to be an archaeological object.

Are there any UK legal definitions, in law or in court decisions? Sometimes the law has to decide between a word's meaning in different fields. In the USA an 1883 court decision, Nix v. Hedden said tomatoes are vegetables - and this still holds today. More recently, Toy Biz v. United States held that plastic figures of "the X-men" were not human.

I had hoped that coins were not 'archaeological' because in common (market) usage they are not. If no archaeologist dug them perhaps they are not be 'archaeological'? The chart covers objects up to fifty years old. Is it really true that if I find a Queen Victoria ha'penny on the beach it must be inspected by a culture official but if I find one in someones attic it does not?

Paul Barford said...

My Ed, what a lot of questions you have! Whether or not shopkeepers “consider 'coins' and 'antiquities' to have no overlap” is beside the point. Coins are quite clearly to everybody else (the US State department too) just one category of archaeological finds.

You ask about British definitions which say coins are artefacts, well again you are asking me to do the legwork for you. You could start with the Ancient Monuments and Archaeological Areas Act 1979 which refers to “any object of archaeological or historical interest” (art 54) “any objects or other material of archaeological or historical interest” (art 61) which make clear what the object of archaeological investgation are.

Ed I did not write the law, but I am sure an American can understand that there are some sites of the Victorian era (for example industrial or military complexes) which merit archaeological examination, and therefore protection. I think in the States too you preserve and examine sites of the same period do you not?

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