Restitution in the UK - how to make it work
September 13 2022
Picture: The Times
Following on from the publication of the Arts Council's report on how museums should deal with restitution claims, the Burlington Magazine, in its latest editorial, suggests the government should set up an indepedent body to assess such claims:
The creation of such an independent forum with the power to resolve restitution claims would be a way to end accusations that the national museums and the Government are passing the buck between them about the issue. There is precedent in Britain for such commissions or committees to intervene in issues of ownership of cultural artefacts, not least the Reviewing Committee on the Export of Works of Art, although there would almost certainly be reluctance by the present Government to endow such a body with the power to decide finally what should leave the country as well as what should stay.
All of which sounds quite sensible, and obviously such a body would have to operate closely with the Export Committee. And yet one would hope that in most cases, museums would be able to work out the answer to whether something should stay or return themselves.
There is one way, however, in which the creation of a Restitution Committee could help overcome the last major hurdle for significant restitution progress in the UK, and that is by resolving the legal question on whether some major institutions can deaccession works to overseas institutions. I've been having a think about this, and would welcome your thoughts on the below possibility.
Currently, the British Museum says it cannot return looted items like the Benin Bronzes (and the Parthenon Marbles), even if it wanted to, because it would require a change in the law. And this is true, for the 1963 British Museum Act allows disposals only under very specific circumstances, under Section 5:
5 Disposal of objects.
(1) The Trustees of the British Museum may sell, exchange, give away or otherwise dispose of any object vested in them and comprised in their collections if—
(a) the object is a duplicate of another such object, or
(b) the object appears to the Trustees to have been made not earlier than the year 1850, and substantially consists of printed matter of which a copy made by photography or a process akin to photography is held by the Trustees, or
(c) in the opinion of the Trustees the object is unfit to be retained in the collections of the Museum and can be disposed of without detriment to the interests of students:
Provided that where an object has become vested in the Trustees by virtue of a gift or bequest the powers conferred by this subsection shall not be exercisable as respects that object in a manner inconsistent with any condition attached to the gift or bequest.
(2) The Trustees may destroy or otherwise dispose of any object vested in them and comprised in their collections if satisfied that it has become useless for the purposes of the Museum by reason of damage, physical deterioration, or infestation by destructive organisms.
Other Acts, like the National Heritage Act 1983, place similar restrictions on other institutions like the V&A. So, on the face of it, this leaves no room for anything other than a long-term loan of items to overseas institutions. It is on this basis that more forward looking institutions in the restitution debate, like the V&A under Tristram Hunt's leadership, are engaging in de facto restitutions through long term loans, as seen in a recent example of Asante gold treasures to Ghana here.
But in many restitution cases, for a British institution to retain legal title to a looted object is problematic, and that is why Hunt has been leading calls to change the law. The next question is whether this would require primary legislation, or secondary legislation. The former is very time consuming, and is unlikely to get a look in with a government trying to deal with a cost of living crisis, not to mention one keen on fighting culture wars. Which Secretary of State for Culture is going to want to take up valuable parliamentary time risking a fight with their backbenchers over what should happen to the Parthenon Marbles? Just imagine the trouble Boris Johnson would cause.
Secondary legislation, however, can be done in an afternoon, and is the means by which a government minister can revise an earlier piece of primary legislation, if permitted to do so in the original Act. The British Museum Act 1963 does not give the Secretary of State the power to amend section 5 on Disposals. Although it does allow them - in section 10 - to designate a new place of 'authorised repository'. So, in theory the Parthenon Museum in Athens could be become a place of authorised deposit for the British Museum.
As cunning a plan that would be, it still doesn't resolve the question of title. However, the 1992 Museums and Galleries Act does give government ministers a route into resolving this, and via secondary legislation. Section 6 of the 1992 Act sets out which UK institutions can transfer objects to other UK institutions, and this list - set out in Schedule 5 - includes those museums which, in the acts which specifically govern them (like the 1963 British Museum Act) forbids them from otherwise deaccessioning.
In other words, Section 6 of the 1992 Museums and Galleries Act effectively allows the British Museum and others to deaccession as they wish, but only by transferring objects to other UK institutions listed in Schedule 5. There are 15 institutions listed, and it's essentially those funded 'nationally' by the Department for Culture. Therefore, in theory the British Museum could transfer its Benin Bronzes to one of the institutions on the list which is not forbidden from deaccessioning, like the Horniman Museum, which recently deaccessioned its own Benin Bronzes.
And there is another, perhaps neater alternative. The 1992 Act can be amended by secondary legislation, via Section 6 part 6, as follows:
(6) The Secretary of State may by order amend Schedule 5 to this Act by adding any body in the United Kingdom to those for the time being specified in that Schedule.
Therefore, it would be possible for the government to establish a body, as The Burlington Magazine recommends, to examine and decide on restitution claims, and then to add this body to Schedule 5 of the 1992 Act. This body can then deaccession, because nothing in its remit, when established, will prevent it from deaccessioning.
If any of this is adopted, we can call it the Burlington Solution.
