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. GLOSSARY
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. BACKGROUND
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. THE MUSEUM'S
LEGAL DUTIES
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. LEGAL POWERS
TO TRANSFER
OBJECTS FROM
THE COLLECTIONS
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. MUSEUM POLICY
ON RESTITUTION,
REPATRIATION AND
SPOLIATION
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. MUSEUM PROCEDURE
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. ASSURANCE
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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