The Impact of Brexit on Heritage: Impeding Workers' Mobility and European Co-operation in the Fight against the Trafficking of Cultural Objects and Endangered Species.
| Author | Granet, Valentine |
This article seeks to contribute to the understanding of the changes in the regulatory framework of the movement of cultural objects and people in the United Kingdom brought about by Brexit. It analyses the restrictions on the employment of EU workers and their impact on the need for highly skilled workers in the cultural and heritage sector. It then critically examines the revocation of the three EU instruments on the import, export and return of cultural objects (Directive 2014/60, Regulation 116/2009 and Regulation 2019/880) as well as the impact of the revocation of Regulation 865/2006 that dealt with the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); an instrument often neglected but essential when discussing the circulation of cultural objects as many are made from, or contain parts of, endangered species. It also discusses the situation on the Island of Ireland since there is no border control between Northern Ireland and the Republic of Ireland but there are controls between Northern Ireland and the remaining three nations (England, Wales and Scotland) of the UK. Brexit has led to regulatory gaps and loopholes that could be exploited by traffickers. Finally, the authors draw together their different findings to make recommendations that would improve the protection of cultural heritage in the UK post-Brexit which would enable it to fulfil its international obligations while maintaining its leadership in the art market.
Keywords
Brexit, EU law, trafficking, cultural property, CITES, 1970 Convention, heritage
THE END OF THE IMPLEMENTATION PERIOD
After several years of negotiation following the Referendum of June 2016 and the triggering of Article 50 of the Lisbon Treaty on 29 March 2017, the United Kingdom (UK) left the European Union (EU) on 31 January 2020 (Exit Day). Consequently, all EU laws that had been incorporated into domestic law before 31 January 2020 had to be either consolidated or revoked. The process of selecting which laws should be consolidated, at least temporarily, and which should be revoked started before Exit Day, it continued during the Implementation Period that ran from 1 February to 31 December 2020, and will persist for some time. Indeed, it is impossible to un-weave, at a stroke, all EU laws from the fabric of the national legal system.
Brexit has had, and will have, a medium- to long-term impact on the protection of heritage, most notably because of the end to EU funding for museums and heritage sites such as the European Regional Development Fund, but also because of its impact on laws and regulations which in turn impact the economy and trade in this sector. In 2016 it was calculated that the UK's creative sector contributed 84.1 bn [pounds sterling] to the economy, making it "one of the UK's greatest success stories", and certainly a sector worth protecting. (1) Yet, limited attention has been paid to this situation as the cultural sector has been largely ignored in the wider Brexit debate, which has focused on trade deals, fishing rights, citizens' rights and migration. (2) For example, the Institute for Government's report entitled 'Implementing Brexit: Customs', which aims to examine policy areas which might experience significant disruption following Brexit, provided only one mention of the Arts Council in its role as "a specialist licensing agency for cultural goods" without further development. (3)
Since the end of the Implementation Period, there are now customs controls between the UK and the EU, including for cultural objects and works of art. It is difficult to measure the economic impact of these controls on the art trade for the moment as this is still a recent change. However, the UK is Europe's biggest art dealer in terms of market share, (4) and is also of major importance on the world stage. In 2020, the UK was in second place behind the US with a 20 per cent share of the global art market, representing approximately $9.9bn in value, a proportion that was even higher in 2019, when the UK held 22 per cent of the market. (5) This value materialises into thousands of cultural objects that are exported from the UK every year. (6) Some of these objects are so important to the national cultural heritage that they fall within the control of export regulations. (7) Others were exported from a Member State of the EU (MS) and needed a European certificate to be legally exported outside of the EU. For example, in 2019-2020, 8,537 objects totalling 8.07bn [pounds sterling] received an export licence because they had been in the UK for less than 50 years. (8) It is difficult to differentiate those cultural objects that were legally imported into the UK from a Member State (and thus were automatically granted a European licence) from those that were imported from overseas, but Clare McAndrew estimates that the trade between the EU and the UK before Brexit represented 20 per cent of the UK's total market share. (9)
This market share was influenced by economic factors such as the UK's low rate of Value Added Tax (VAT) on imports of art which, at 5 per cent, was one of the lowest in Europe, making the UK an attractive entry point for artwork to be sold elsewhere in Europe. Now, since there is no free movement of artwork between the UK and the rest of the EU, buyers and sellers cannot benefit from this low VAT rate, so the UK is no longer attractive compared to France for example which levies VAT on imports of art at 5.5 per cent. On the other hand, VAT will not apply to works which are returned to the UK within three years, and there had been a process of tax standardisation in the EU so the advantages for the UK had been diminishing anyway. (10) Even if it is relatively short term, this loss of competitive advantage remains a negative economic consequence of Brexit for the UK, but Brexit's most significant impact is on the principles of co-operation and mutual assistance that existed between the UK and other Member States of the EU.
The aim of this paper is to contribute to the understanding of the changes brought about by Brexit in the regulatory framework of the movement of cultural objects and people. It aims to identify weaknesses and to suggest recommendations to fill the gaps created by the revocation of EU instruments and the suggestion to create freeports. The first part examines the impact of Brexit on heritage professionals. The second part focuses on the revocation of EU instruments on the circulation of cultural objects that ended the principles of co-operation and assistance in the protection of each State's cultural heritage. It assesses the impact of the revocation of the three EU instruments on the circulation and return of cultural objects (Directive 2014/60, (11) Regulation 116/2009 (12) and Regulation 2019/880 (13)), and of Regulation 865/2006 (14) that dealt with the implementation of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) which also applies to cultural objects made of, or containing parts of, endangered species. It examines the situation on the Island of Ireland since there is no border control between Northern Ireland and the Republic of Ireland. The final section draws together the different findings to make recommendations to improve the protection of cultural heritage post-Brexit which would enable the UK to fulfil its international obligations while maintaining its leadership in the art market.
EU CO-OPERATION AND THE FREE MOVEMENT OF PEOPLE
The impact of Brexit on the heritage sector is not limited to the movement of artefacts across borders, it also affects the movement of people across these borders. Before Brexit, EU citizens benefited from the right to free movement in the UK, which allows EU citizens to go, live and work in any other country of the EU without a visa or work permit. (15) It is estimated that 15 per cent of the workforce of some major museums are from the EU, (16) and that on average the percentage of EU citizens working in the creative sector is between 10 and 20 per cent. (17) In addition, 60 per cent of arts organisations reported that it was important for their work to have EU workers come to the UK. (18) This loss of free movement is particularly problematic for artists who go on tour, such as musicians, as they now have to navigate different systems in each EU country--both for themselves and for their instruments--this makes touring very difficult and is leading 60 per cent of those surveyed to consider leaving the profession. (19)
Furthermore, a recent report of the House of Lords provides detailed statistics on the percentage of EU citizens working in the creative and cultural sector and the impact of the end of free movement on the cultural sector. (20) This report details the three existing visas (Tier 5, Tier 1 and Tier 2) which currently allow third-country cultural sector workers to enter the UK. Tier 5 visas (temporary worker--creative and sporting) are granted for a maximum of twelve months and require a UK sponsor, and in practice are used by touring musicians, or actors who have a short-term contract in the UK. Tier 1 visas are for exceptional individuals who are (or are expected to become) world leaders in their discipline and require an endorsement by a designated 'Competent Body', a government-selected cultural sector organisation. Tier 2 visas are for skilled workers who are needed for specific jobs and are capped at 20,700 per year. Employment contracts are subjected to strict salary thresholds and the potential employer must show that there is either a shortage of skilled workers or ensure that the job for which they are recruiting is on the shortage occupation list. Many experts in the field, such as the City of London Corporation, claim that these visa requirements are not suited to the arts and heritage sector and will contribute to the exclusion of many EU workers...
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