Select Committee on Culture, Media and Sport Minutes of Evidence

Annex III: Position statement on duties, powers, policies and procedures in relation to restitution, repatriation and spoliation

  (Drafted by the Museum Secretary: approved by the Keepers Committee, 24 February 2000)


  1.1  "Restitution" refers to the return of an object from a museum collection to a party found to have a prior and continuing relationship with the object, which is seen to override the claims of the holding museum.

  1.2  "Repatriation" refers to the return of an object of cultural patrimony from a museum collection, to a party found to be the true owner or traditional guardian, or their heirs and descendants.

  1.3  "Spoliation" refers to the plunder of assets, in this context works of art, during the Holocaust and World War II.


  2.1  The Museum holds for the nation a collection of antiquities, prints and drawings, ethnography and coins and medals which is amongst the finest in the world. From time to time parts of the collection may be subject to claims for restitution, repatriation or spoliation.

  2.2  Responsibility to examine the validity and consider the merits of claims for restitution, repatriation or spoliation lies with the Museum to consider having regard to its policies and governing instrument. This document is a composite statement of the current duties, powers, policies and procedures applied to such claims by the Museum.

  2.3  The Museum and Galleries Commission is publishing a set of guidelines, Restitution and Repatriation: Guidelines for Good Practice on 16 March 2000. The Guidelines will provide advice for the Trustees of the Museum, the directors and staff facing requests on the repatriation or restitution of objects or collections, and include case studies of recent requests to national institutions. They will not instruct the Museum on whether or not to return objects from the collections.


  3.1  The British Museum Act 1963 is the governing instrument of the Trustees of the British Museum.

  3.2  Sub-section 3(1) of the Act provides that it is the duty of the Trustees to keep the objects comprised in the collections of the Museum within the authorised repositories of the Museum, except in so far as they may consider it expedient to remove them temporarily for any purpose connected with the administration of the Museum and the care of its collections.

  3.3  The authorised repositories are identified pursuant to section 10 and the Third Schedule of the Act by a list which may be amended by statutory instrument and are currently the British Museum, Great Russell Street, London, Blythe House, No 6 Burlington Gardens, and nos 48-56 Orsman Road, London.

  3.4  It is also the duty of the Trustees under sub-section 3(3) to secure, so far as appears to them to be practicable, that the objects comprised in the collections are, when required for inspection by members of the public, made available in one or other of the authorised repositories under such conditions as the Trustees think fit to impose for preserving the safety of the collections and ensuring the proper administration of the Museum.

  3.5  Under sub-section 3(4) of the Act objects vested in the Trustees as part of the collections of the Museum shall not be disposed of by them otherwise than under section 5 or 9 of the Act or section 6 of the Museums and Galleries Act 1992.


  4.1  The Museum's powers to de-accession objects within its collections are limited to the statutory powers which Parliament has allowed to the Trustees.

  4.2  Sub-section 5(1) of the Act provides that the Trustees may sell, exchange, give away or otherwise dispose of any object vested in them and comprised in their collection if:

    (a)  the object is duplicate of another 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 sub-section shall not be exercisable as respects that object in a manner inconsistent with any condition attached to the gift or bequest.

  4.3  Sub-section 5(2) allows that 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.

  4.4  Sub-section 6(1) of the Museums and Galleries Act 1992 provides that any body specified in Part 1 of Schedule 5 to that Act may by way of sale, gift or exchange, transfer an object the property in which is vested in them and which is comprised in their collection, if the transfer is to any other body specified in either part of that Schedule. The effect is that the Trustees may sell, give, exchange or transfer objects to any of 19 listed institutions in the United Kingdom. There is a power for the Lord President of the Council or the Secretary of State to extend the list of transferees by order (sub-section (6)) exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament (sub-section (7)).

  4.5  Section 9 of the British Museum Act 1963 provides only that any movable property vested in the Trustees may be transferred by them to the Natural History Museum or the British Library. It was a provision intended to deal with the separation of the three institutions.

  4.6  Thus, since no object in the collections may be disposed of except as authorised by statute, there is a strong legal presumption against de-accession, which could only be altered by a change in the law.

  4.7  The principal power of disposal is that within section 5 of the Act, which is limited primarily to the disposal of objects that are unfit or duplicates.

  4.8  Objects that are unfit: When the British Museum Bill was passing through Parliament in 1963, it was put to the House of Commons that the Trustees should not be compelled to keep objects which are discovered to be fraudulent or forgeries, which it would be embarrassing for the Museum to be compelled to retain and exhibit. The Explanatory Memorandum attached to the Bill referred to objects found to be forgeries, or wrongly identified as unfit. Parliament worried that this definition was unhelpful, and was in any event not part of the Bill. The final wording adopted was therefore a twofold test, that:

    (i)  in the opinion of the Trustees the object is unfit to be retained in the collections of the Museum; and

    (ii)  it can be disposed of without detriment to the interests of students.

  In the second reading House of Lords on 9 April 1963 the Earl of Crawford said he hoped the Trustees would ignore the definition of "unfit" as forgeries or wrongly identified objects, given the intrinsic interest and value such objects may have qua forgeries or wrongly identified artefacts (Hansard column 933-34). Lord Strabolgi made similar remarks (column 947), and Lord Shackleton stated the Government position, (column 958):

    "There will be a problem of trying to decide what is meant by `fit', but I do not doubt that the Trustees . . . will arrive at a sensible solution; and I do not doubt that, whatever their decision is, they will be open to the severest criticism: that I think is axiomatic."

  In conclusion, Parliamentary intention appears to be that the Trustees may dispose of an object as unfit if no reasonable person would want the Museum to keep it because, for example, it is a forgery or was wrongly identified and, is for that reason, in the Trustees' reasonable opinion, without merit or value. Before concluding an object is unfit, the Trustees must be satisfied it can be disposed of without detriment to the interests of students (which would presumably include the interests of students of forgeries and the history of misidentification). Parliament expressed considerable doubt about the meaning of the word unfit, and the Government took the view the question could safely be left to the Trustees.

  4.9  Objects that are duplicates: In passing the British Museum Act there was quite a lot of debate in Parliament about the question whether an object could be disposed of or exchanged because already the collection is so representative that to burden it with yet other objects the same or similar would overburden the Museum, which would become unduly full of objects of the same nature. Duplication was noted to be a simple matter in the case of books, but in other cases no two objects could ever be said to be duplicates of each other. It was suggested that the real question was whether a class of object was adequately represented by the existing collection, and pointed out that the difficulty with clause 5 of the Bill (now section 5 of the Act) was that it did not give the Trustees power to dispose of objects which were surplus to their requirements because the collections were adequately represented in a particular field. The Government regarded the Bill as giving the Trustees wide powers to make long term loans, subject to clause 4 (now section 4). However, Government policy was that the power of disposal was rightly more limited, and at Second Reading in the Commons it was stated that if the Trustees proposed disposal or exchange because a class of objects was well represented, it would be for the Government to act. The Museum's collections being national possessions, the House should be consulted before any such action is taken.

  4.10  Following the passing of the British Museum Act, the then Director, Sir Frank Francis, sought advice from Lord Radcliffe who suggested that a duplicate "should be something the correspondence of which with another object is observable as a matter of fact, at any time, by its physical appearance" (letter to Radcliffe to Francis, 18 August 1964).


  5.1  The Museum will participate fully and effectively within the UK and internationally to increase awareness and understanding of the facts surrounding spoliation, the illicit trade in art and antiquities and the looting of archaeological sites.

  5.2  The Museum will respond to all claims for restitution, repatriation or spoliation promptly, constructively and sensitively in compliance with the limitations of the law, the guidance of the DCMS, MGC and the NMDC and giving due weight to the policies in this document.

  5.3  Whilst the legal arguments about the ownership of its collections are unchallengeable, the Museum recognises that:

  5.3.1  on its own, the legal presumption against de-accession is seen by some to be an insufficient answer to the political, ethical, cultural and religious arguments raised in favour of the repatriation and restitution of individual works of art or antiquities, or any class of the same;

  5.3.2  only by demonstrating the public and cultural benefits of the retention of its collections, rather than simply legal title to them, can the Museum provide a full social and moral justification for maintaining its collections in its care; and therefore;

  5.3.3  the Museum articulates its aims, policies and strategies in a way which enhances its role as a world class institution of global relevance with wide international responsibilities;

  5.3.4  through its Intellectual Strategy, the Museum will continue to emphasise and develop the unique opportunity it offers to its worldwide audience to explore individual cultures and the connections between them and promote a vision of culture, citizenship and identity that extends beyond national borders; and

  5.3.5  Human remains: human remains which are neither an artefact (ie physically modified by someone) nor part of the archaeological context which helps to illuminate an artefact in the Museum's possession, do not normally have any place in its collections, and are offered to the Natural History Museum for acquisition into its collections. The Museum stores and researches those human remains which are artefacts, or which are kept to illuminate artefacts, carefully and sensitively wherever possible, and does not knowingly display them in such a way as may give reasonable cause for offence to any community with ancestral links with those remains.

  5.4  Restitution and repatriation: the Museum's Acquisitions Policy articulates the principles it applies to the acquisition of any object for its collections and provides the ethical rules by which any determination as to acquisition is made. The principles are subject to assurance measures and apply to the loan of objects to the Museum and to objects delivered to the Museum for conservation purposes. As a matter of policy the Museum:

  5.4.1  will ensure that its Acquisition Policy complies with Government, MGC, NMDC and other appropriate guidance;

  5.4.2  will whenever possible with respect to loans seek assurances and indemnities from lenders with regard to the provenance of exhibits and carry out reasonable inquiries about their provenance for itself; and

  5.4.3  supports for the principles enshrined in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit, Export and Transfer of Ownership of Cultural Property and 1995 UNIDROIT Convention on the International Return of Stolen or Illegally Exported Cultural Objects, the 1989 Vermillion Accord and the Codes of Practice of International Council of Museums and the Museums Association, concerning illegally excavated and exported material and the ethics of acquisition.

  5.5  Spoliation: the principles set out in paragraph 5.4 above apply to spoliation claims. In addition the Museum will:

  5.5.1  continue to participate in the NMDC Working Group on Spoliation of Art During the Holocaust and World War II;

  5.5.2  take appropriate cognisance of the MGC's Statement of Principles on Spoliation of Works of Art during the Nazi, Holocaust and World War II Period, the guidelines agreed by the NMDC Working Group on Spoliation and the Guidelines published by the MGC on Restitution and Repatriation in February 2000;

  5.5.3  take reasonable and proper steps to identify works of art, which might have been wrongfully taken during World War II, and will share information with other institutions; and

  5.5.4  carry out appropriate research to ensure that acquisitions are free from claims.

  5.6  The Museum acknowledges that in answering claims for restitution, repatriation or spoliation its strategies must ensure that:

  5.6.1  its collections become increasingly more accessible and are presented in ever more innovative, stimulating and enlightening ways, so encouraging appropriate comparisons and contrasts across cultures and time;

  5.6.2  full use is made of the Internet to engage with new or more distant audiences and to give them creative experience of what the Museum does and has in its collections;

  5.6.3  major objects, which are not light sensitive, are normally on display in the Museum's galleries;

  5.6.4  it actively seeks to take objects to the wider audiences, particularly those distant from London by maintaining a high level of loans nationally and overseas fostering a more active touring exhibition programme;

  5.6.5  it positively considers making appropriate longer term loans to regional centres, thus capitalising on the study collections and its scholarship in partnership with the local curatorial manpower and interests; and

  5.6.6  it recognises its responsibilities as custodian of important information and symbols of world cultures by facilitating research and cultural development for the benefit of the heirs and bearers of those cultures.


  6.1  Provenance and Spoliation: The Museum's main point of contact for enquiries on questions of spoliation shall be Giulia Batram (Curator: German School) or such other person as the Keeper of Prints and Drawings shall nominate. The Museum has prepared an action plan setting out its planned approach in relation to research into the issue of provenance. The Museum will:

  6.1.1  implement its action plan to verify the provenance of the works of art and antiquity within its collections;

  6.1.2  publish its action plan under the auspices of the NMDC Working Group on Spoliation's Website together with (where appropriate) a list of works of art or antiquities the provenance of which, following initial research, cannot with certainty be specified for the whole of the period 1933-45, together with a description of the information being sought; and

  6.1.3  continue to keep its research up-dated and under review.

  6.2  Claims: all claims for repatriation, spoliation and restitution affecting Museum collections shall be acknowledged on receipt, and the Director and the Public Affairs Department shall be notified. The requesting party shall be notified of a nominated main point of contact and given an estimated time in which a substantive reply may be expected. The requesting party shall be notified if the time estimate becomes subject to change.

  6.3  Keepers shall be responsible for the investigation of claims affecting their Departments, and shall ascertain the legal position as far as possible. In every case the Director shall be briefed on the findings.

  6.4  Keepers shall ensure that proper consultation with the Director, external bodies such as other museums, the NACF, DCMS, NMDC, etc, and other Departments, such as Marketing and Public Affairs, Conservation and the Secretariat takes place before a substantive reply is given or any press statement or other media response issued. In every case the aim of the Museum's response shall be to resolve the claim in an equitable, appropriate and where possible mutually agreeable manner. Relevant factors include:

  6.4.1  the nature of the request and the motivation and status of the requesting party;

  6.4.2  the circumstances under which the object was acquired;

  6.4.3  the nature, status and condition of the object requested;

  6.4.4  the Intellectual Strategy and policies of the Museum;

  6.4.5  the British Museum Act 1963 and other relevant UK legislation and any DCMS guidance;

  6.4.6  applicable international conventions;

  6.4.7  the proposed future of any object if returned; and

  6.4.8  (where an object is not returned) any opportunities for improved collaboration with the requesting party.

  6.5  In the event of a dispute over the provenance of any object the Director shall determine whether to obtain an independent assessment.

  6.6  In the event of claims for restitution, repatriation or spoliation relating to objects on loan to the Museum the lender should be notified and the claim should be passed on. The terms of the loan and the Government Indemnity Guidelines should be examined to determine the Museum's contractual rights and duties. An offer to mediate may be made.

  6.7  Any proposal to override the presumption against the de-accession of an object in the collections shall be made by the Director to the Board of Trustees who shall determine the matter by reference to the DCMS any other appropriate external guidance.

  6.8  The Keepers may delegate their responsibilities hereunder to appropriate members of the Museum staff and shall ensure the content of this document is understood and implemented by the staff in their Departments.


  7.1  Copies of all substantive replies to claims for restitution, repatriation or spoliation and investigations of provenance are to be passed to and recorded within the Directorate as well as within the object's history file.

  7.2  The Director will report to the Board of Trustees, as part of his bi-monthly report on Key Curatorial Issues, on all such requests received, investigations made and the responses given. If appropriate, having regard to the content of this document, he shall make proposals to the Board for any disposal from the collections requiring their approval.

  7.3  Whenever appropriate as the result of a claim for restitution, repatriation or spoliation the Museum's policies and procedures will be reviewed and strengthened.

  7.4  The Museum will continue to share its own experience and learn from that of other institutions through its continued involvement in appropriate collaborative consultative external associations.

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