House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Seventh Report

V. MUSEUMS: ACQUISITION AND RETURN

112. According to a policy document issued by the last Government, "the fundamental purpose of a museum is to acquire, conserve, study and present collections".[281] Mr Howarth described the principle of a museum as "a collection of important cultural objects that are brought from elsewhere".[282] The relocation of artefacts from their original setting is integral to what museums do. The continued vitality of the collecting function is understandably seen by many curators as important to their work.[283]

113. The aim of museums is to maintain a permanent collection. The last Government considered that "a museum's collections are to be held on behalf of the public as inalienable cultural assets".[284] The Museums & Galleries Commission's guidelines for registered museums state:

"It is important to emphasise that disposal of items from museum collections is not being ruled out where there are sound curatorial reasons for pursuing this course. But unless each museum governing body accepts the principle of 'strong presumption against disposal', the whole purpose of the museum is called into question".[285]

That "strong presumption against disposal" should be the starting point for any consideration of museum policies towards acquisition and return.

114. Museums also serve wider purposes. They are often major research institutions. They enhance knowledge of the past and of other cultures. They can have great community value. They are a vital contributor to tourism. They provide education, information and inspiration. They enrich our lives. The wider purposes of museums must also be borne in mind in considering policies which can have a major public impact and are of more than curatorial interest.

115. Any consideration of museum policy must also reflect the diversity of the museums sector in the United Kingdom which is one of its great strengths. There are over 2,000 museums, varying from the large national museums to the smallest volunteer-run museums.[286] Under the registered museum scheme, for example, the Museums & Galleries Commission notes seven categories of museum: national; local authority; independent; university; armed services; English Heritage; and National Trust.[287]

116. The United Kingdom is uniquely privileged in the range and diversity of its museum collections, reflecting the history of the United Kingdom and its constituent nations and their role in the world. This position is exemplified by the British Museum, one of the great museums of the world's culture which offers unique opportunities to compare and contrast material from many different cultures.[288] The British Museum is both a major centre of learning and a free and increasingly accessible experience for a wider public. The Museum receives more than 5 million visitors a year, some 75 per cent of whom are from abroad.[289]

Museums and the illicit trade

117. Given the cultural status of museums and their standard-setting role in the market for cultural objects, it is essential that museums respond appropriately to the problems of the illicit trade.[290] It has been acknowledged that, in the past, museums have not been as careful as they should have been in ensuring that objects which they acquired were not stolen, illicitly excavated or illicitly exported.[291] Indeed, it has even been suggested that museums have underwritten the trade by being the ultimate destination of dubiously-acquired private collections.[292]

118. In recent years, advice to museums both internationally and nationally has sought to reinforce the importance of ensuring that museums respect the laws of other countries.[293] For example, United Kingdom museums are now expected to incorporate in their acquisitions policy the following:

"The museum will not acquire, whether by purchase, gift, bequest, or exchange, any object or specimen unless the governing body or responsible officer is satisfied that the museum can acquire a valid title to the item in question, and that in particular it has not been acquired in, or exported from, its country of origin (or any intermediate country in which it may have been legally owned) in violation of that country's laws".[294]

An essential characteristic underpinning museum guidelines in this country is the notion that museums should behave as if the 1970 UNESCO Convention were in force in this country and had retrospective effect as far back as 1970.[295] The position broadly adopted by the British Museum and now recommended to all museums in this country by the Museums Association is that museums should avoid acquiring any object that has no secure ownership history, unless there is reliable documentation to show that it was exported from its country of origin before 1970.[296]

119. The British Museum operates two exceptions to this general principle. First, its Trustees recognise that, "in practice, many minor antiquities that are legitimately on the market are not accompanied by detailed documentary history or proof of origin and they reserve the right for the Museum's curators to use their best judgement as to whether such antiquities should be recommended for acquisition".[297] Second, the British Museum notes that "regional and national museums must sometimes act as repositories of last resort for antiquities within their areas of responsibility" and accordingly is willing to approve on occasion the acquisition of antiquities originating within the United Kingdom where any payment is not likely to encourage illicit excavation.[298] The value of this latter role was demonstrated in the case of the Salisbury hoard, where acquisition of certain unprovenanced items by the British Museum paved the way for investigation of their provenance and for their subsequent return to their rightful owner.[299] These exceptions have been questioned by some, not so much in respect of the British Museum itself, but because they might undermine the broader principle if misapplied by smaller and less experienced museums.[300] This concern reflects a wider problem faced by smaller museums in seeking to undertake due diligence with limited resources.[301] The National Art Collections Fund feared that museums might be deterred from acquiring objects altogether, rather than running the risk of making unethical acquisitions.[302]

120. Some evidence appeared to advocate one possible solution to this problem, namely, to oblige the entire art and antiquities market to operate by the ethical standards now established for museums. We have rejected this approach. We have recommended the establishment of a new criminal offence of trading in cultural property in designated categories from designated countries which has been stolen or illicitly excavated in or illegally exported from those countries, but have emphasised that any legislation should not be retrospective in effect. That offence would naturally apply to museums as to other participants in the market and should itself contribute significantly to awareness within the museums sector. More importantly, the establishment of the offence linked to due diligence should increase information available about objects legitimately on the market. However, by adopting an appropriate ethical stance which goes beyond legal requirements, the museums community will remain in a distinct and necessarily disadvantaged position within the market. As Dr Robert Anderson, Director of the British Museum explained, museums have been faced with the position where they wish to buy objects, but cannot do so because of inadequate information on provenance.[303] That position must change over time and should do so as a result of our recommendations, but it will not do so in a manner which will guarantee either records of ownership or legitimacy of transfer as far back as 1970.

121. We welcome steps already taken by museums in the United Kingdom and by the Museums Association to increase awareness of the illicit trade in cultural property and its implications for museums. We support the broad principle that museums should avoid acquiring any object that has no secure ownership history, unless there is reliable documentation to show that it was exported from its country of origin before 1970 and we recommend that the Government also state its support for this principle. We further recommend that, in the light of the development of the Portable Antiquities Scheme, the Department for Culture, Media and Sport conduct a review of the circumstances in which it is appropriate for museums in England and Wales to act as repositories of last resort of antiquities likely to have originated within those countries.

122. An additional incentive for museums to be on their guard against objects which may be available as a result of the illicit trade as defined by the 1970 UNESCO Convention is the possibility that acquisition of such an object may give rise to a claim for return.[304] The Code of Professional Ethics of the International Council of Museums states that, should a country request the return from a museum of an object which can be demonstrated to have left its territory in violation of the principles of the 1970 UNESCO Convention, then, if legally free to do so, a museum should do everything possible to ensure its return.[305] The British Museum made clear its willingness to consider the possibility of return in such circumstances where it was compatible with limitation periods.[306] It is also the policy of the British Museum that, "if it is shown that, despite due investigation at the time of purchase, any object has been illegally removed from its rightful owners, then the Trustees act to see that it is returned".[307] More generally, however, museum policy on the return of objects which transpire to have been illicitly traded within the meaning of the 1970 UNESCO Convention is still uncertain. That may be because return in such circumstances has become intertwined with claims for return in a broader range of circumstances, a category of claims to which we now turn.

The scale and nature of claims for return

123. In addition to facing up to the nature and consequences of the contemporary illicit trade, museums are also increasingly confronting issues relating to claims for objects acquired in the past. There is a growing awareness in the museums community of the need to develop policies about such claims and a consciousness that past policies and approaches have been incomplete.[308] The scale of claims for return currently before museums in this country is uncertain.[309] Nevertheless, it is assumed that the number of claims is increasing and will continue to increase.[310]

124. The nature of claims for the return of cultural property varies widely. The types of material subject to claims are very diverse, from human remains, to works of art and domestic and religious objects.[311] The circumstances of claim also defy simple generalisations. According to the Museums Ethnographers' Group, "each request for return is usually the culmination of a complex of events, discussions and other contacts between the current guardians of the property and the present-day representatives of the originating community that had ownership rights over the property".[312]

125. The circumstances in which an object was acquired often form one element of a case for return. According to Moira Simpson of the University of Warwick, "most requests for repatriation of items from museum collections in the United Kingdom are associated with artefacts taken in past centuries, particularly during the colonial era".[313] Many objects were removed from their originating communities in questionable circumstances, although this need not imply illegal or even improper acquisition by a museum.[314] For these reasons, return is not confined to cases of wrongful taking and need not imply recognition of the illegitimacy of past transfers of ownership.[315]

126. A second common element to many claims is the contention that objects have a special significance to an originating community or their successors that is not or cannot be appreciated by the current museum owners of an object. In some cases, there is held to be a special cultural or spiritual significance to the object and to its location.[316] In both Australia and North America, museums policy on return has been influenced by a growing recognition of the concept of the cultural patrimony of indigenous peoples.[317]

127. The interaction of these two elements is apparent in claims for return of bronzes and other material which may have been taken as a result of a British punitive expedition to Benin in 1897. First, it is contended that the British military expedition and the seizure of the cultural property of the Oba of Benin which it entailed was illegal and that the current Oba is thus the rightful owner. Second, it is argued that some of the objects had a special sacred purpose of continuing significance: "taking away those items is taking away our records, or our Soul".[318]

128. The claim for the return of the Ethiopian Maqdala treasures also reflects both concern at the circumstances of the original acquisition and an assertion of the primary interest in the objects of the people of Ethiopia. The objects subject to the claim found their way to the United Kingdom following the British capture of Maqdala, the mountain capital of Emperor Tewodros in north-west Ethiopia, and the looting and confiscation of imperial property. It is claimed that this last process "can in no way be justified in international law" and that the objects are "items of major historical and cultural importance for Ethiopia".[319]

129. It has been suggested that the return of cultural property is "inherently undesirable" because it implies a process inimical to the entire purpose of museums:

"Do we want to see Egyptian objects only in Egypt, Greek objects only in Greece, Totem Poles only in Canada and the remains of the ancient Britons only in Britain? Cultural objects should be distributed around the world so that we can all learn to appreciate the objects of all nations. The narrow-minded nationalism at present encouraged by the 'return' of cultural objects should be opposed."[320]

This Committee sees little merit in cultural nationalism and shares the dismay at the notion of the world's museums devoid of their global holdings and the opportunities for comparison and greater understanding which they offer. Equally, we see few signs that museums are being engulfed in a tidal wave of claims designed to empty the galleries and display cases of British museums.

Handling claims

130. Museums receiving claims are faced with an exceptionally difficult task. They are expected to confront a range of considerations, legal, ethical, historical, emotional and political. In the past, it has been suggested that museums faced with claims for return have had "a sense of isolation".[321] A 1997 study commissioned and published by the Museums Association identified the need for the preparation of a set of guidelines on handling claims for return.[322] Mr Timothy Mason, the last Director of the Museums & Galleries Commission, considered that "museums are desperately in need of some kind of help and advice on how to deal with claims when they arrive" and the Commission accordingly published such guidelines in February 2000.[323] The new guidance appears to have received a broad welcome within the museum community.[324] The document provides a thorough and sensitive analysis of many of the issues surrounding claims for return and the way in which they should be handled. We welcome the publication of the Museum & Galleries Commission's guidelines on Restitution and Repatriation.

131. Museums are sometimes faced with problems in handling claims because of limitations on information about their own collections. As we have already noted in another context and will have cause to note again, museums in the past were not as aware as they are now about the importance of provenance and of research on the history of an item.[325] Many museums, particularly regional museums, have collections composed in part of items donated by those who served abroad when the circumstances of acquisition by those individuals may well not be recorded.[326] Dr Neil Chalmers, Director of the Natural History Museum and Chairman of the Museums Standing Advisory Group on Repatriation, endorsed the principle that museums should aim for transparency about what they hold.[327] However, translating that principle into practice is an enormous task. It has been estimated that there are over 170 million objects in museums in the United Kingdom. Of these, over 92 million are biology or natural history items, of which about 68 million are in the Natural History Museum. There are over 23 million archaeological artefacts and about 4 million fine art objects.[328] Dr Chalmers told us that it had taken "about two years of very hard and expert research work" to ascertain the nature and provenance of about 450 objects in one particular category.[329] In the past there appear to have been instances where information on holdings has not been made available to potential claimants.[330] It is unreasonable to expect all museums to possess full information on all their holdings. However, in principle we consider that information on collections should be accessible and should not be unreasonably withheld from those with a legitimate interest, including claimants or potential claimants. In setting priorities for the conduct of research on collections and making information about these collections accessible, museums should give consideration to the interests of originating communities.

132. Initially, it is important to understand the precise nature of the claim and the reasons which underlie it. It can be necessary to establish the status of the claimants, in many cases verifying their entitlement to represent the community to which the objects originally belonged.[331] In particular, it can be important to establish the continuity between the community which created the object and the current community on whose behalf the request is being made.[332] According to the Museums Standing Advisory Group on Repatriation, "sometimes, establishing the precise identity of those making a request can be one of the most important and difficult aspects of dealing with a given request".[333] Finally, it is vital to understand the cultural significance of the object or objects being claimed to the requesting community.[334]

133. If the requirements of this dialogue can be onerous, it can also be a rewarding experience for a museum and provide an opportunity to develop co-operation and partnership.[335] Mr Len Pole, Curator of Ethnography, Exeter City Museum and Art Gallery, and Chairman of the Museum Ethnographers' Group, said that a number of museums were seeking to develop relationships that linked collections with the originating community and thought that claims for return could often be considered in that context.[336] According to Moira Simpson, "some curators have found that the involvement in the repatriation process has resulted in new discoveries about the collections, greater understanding of cultures and improved relationships leading to collaborative projects".[337]

134. The relationship with the claimants is also integral to assessment of a crucial element in any decision on a claim—the likely fate of an object upon return. This will include issues such as safety, display and access.[338] It is possible to point to instances where conditions are not secure for return or where repatriated objects have then appeared on the art market.[339] There are also cases where return has been associated with a reawakening of cultural pride or the renewal of traditional cultural or religious practices or has provided a stimulus for the development or establishment of a museum.[340]

135. If critical examination of claimants is a proper duty of a museum in handling a claim, there must also be an element of self-examination. Museums must establish how they came to acquire a particular object and what is known of its provenance. Museums must bear in mind existing access to the object and its past and potential role in research. The use and role of an object in a collection is often an important factor in a final decision on return.[341] Museums must also take into account their own role in the wider museum community.[342]

136. The issues faced by museums in handling claims are illuminated by the procedure adopted by Glasgow City Council for handling certain claims, and in particular a claim for a Lakota Ghost Dance Shirt. This object was donated to Glasgow Museums in January 1892 by George Crager, an Indian interpreter who may well have acquired the shirt from the body of a victim of the massacre at Wounded Knee a little over a year earlier. Glasgow Museums received a claim for return of this and other objects from a delegation from the Wounded Knee Survivors Association, including a Lakota elder, in 1995.[343] This claim was subsequently rejected by the then Director of Glasgow Museums, but he informed the claimants of their entitlement to appeal to Glasgow City Council.[344] Faced with such an appeal and with other appeals, Glasgow City Council established a procedure for considering the appeals and determined criteria against which the claims would be judged.[345] The Council chose to adopt a very public process, involving extensive public consultation and a public hearing.[346] Views on the historical background of the object and from the museum community were also canvassed.[347] Mr Mark O'Neill, Head of Museums and Galleries at Glasgow City Council, considered the exercise, taken as a whole, worthwhile as an example of "investing in public education".[348] We were impressed by the evidence we received from Glasgow City Council and by the seriousness and thoroughness with which the issues raised by this claim were handled by both Councillors and officials. We commend the procedures adopted by Glasgow City Council for handling claims for return of cultural property which provide an important model which others should examine and may wish to follow.

The legal framework

137. Although the issues considered by Glasgow City Council in respect of the claim for the Ghost Dance Shirt were very complex, the legal framework was relatively straightforward. The Council was advised that it "had the legal power to transfer ownership of the objects if it wished".[349] The legal position for many museums receiving claims is much less simple.

138. Museums with charitable status have to conform to the requirements of charity law.[350] The relevant provisions are usefully summarised in a memorandum from the Charity Commission.[351] Charities must act in accordance with charity law and the individual charity's constitution. The latter may contain specific provisions regarding collections. Under charity law, trustees cannot give away property without the approval of a designated authority—the Charity Commission, the Attorney General or the courts as appropriate. The Commission itself was not aware of any approaches by charitable museums for approval to give away cultural property, but gave some advice on its response to requests in possible situations. The Commission stated that "trustees have to balance any moral case to return particular items of cultural property with their responsibilities to keep the property in the public domain for the public benefit".[352] Also, regardless of charitable status, museums may be constrained from returning an object by the terms of a particular gift or bequest.[353]

139. Particular legal restrictions apply to national museums and galleries, which can only remove from their custody objects in carefully prescribed circumstances. For example, under the terms of the British Museum Act 1963, Trustees of the British Museum and the Natural History Museum may only dispose of objects which are duplicates of other objects, or are printed matter created after 1850 which can be reproduced by a photographic process, or objects which have been so damaged as to become useless, or items which are deemed "unfit to be retained in the collections of the Museum".[354] The disposal on the grounds of "unfitness" is subject to a second test and to a proviso. The proviso is that no object can be disposed of on these grounds if that is contrary to the terms of a relevant gift or bequest. The second test is that any object deemed "unfit" can only be removed if it is also considered by the Trustees that the object "can be disposed of without detriment to the interests of students". The British Museum's interpretation of Parliament's intention is 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".[355]

140. Similar legal restrictions apply to other national museums and galleries. For example, in addition to exchanges with other major museums and the disposal of duplicates and irreparably damaged goods, the Boards of the Victoria and Albert Museum, the Science Museum, the Royal Armouries and the Tate Gallery may only dispose of objects which are "unsuitable for retention in their collections and can be disposed of without detriment to the interests of students or other members of the public".[356] Legislation governing disposal by the National Gallery and the National Portrait Gallery is even more restrictive.[357]

141. Some witnesses considered that the sweeping prohibitions on disposal enshrined in these statutes were no longer appropriate. Mr Mason considered that the law should be "relaxed" to permit return in "well-controlled and proved" circumstances.[358] Moira Simpson argued that "national museums should be enabled, through legislative processes if necessary, to facilitate the return of items in appropriate cases and in circumstances in which repatriation would provide significant cultural and/or religious benefit to the community from which the objects originate".[359] Dr Chalmers was personally supportive of greater flexibility to assist in the management of collections, subject to appropriate checks and balances, including an opportunity for appeal and more public consideration.[360] Ms Sharon Page, Head of the Secretariat of the Tate Gallery, was less convinced of the case for change, considering that the collections of national museums and galleries were held in trust for the nation.[361] Mr Vivian Davies noted that the legal restrictions provided protection for curators against "the whims of trustees".[362]

142. We consider that it would not be appropriate to enact new legislation giving general powers to the trustees or boards of national museums and galleries to dispose of objects in a broader range of circumstances than is currently permitted. Where a special case can be made for return in circumstances affecting national museums and galleries, such return should require specific parliamentary sanction through new primary legislation most carefully prescribing the special additional circumstances in which disposal is to be permitted.

Decisions on return and options other than return

143. A proper understanding of the legal framework is an essential prerequisite for any decision relating to return, but it need not imply that such a decision is legal in nature. Some claims rest to a greater or lesser extent on the contention that the historical acquisition of items was illegal. Professor Petropoulos argued that the Hague Convention of 1907 was "a watershed" in setting an international standard about the wrongful taking of cultural property and that the case for return of objects taken before that date could not be established on the legal principle of restitution.[363] In the context of claims for objects taken before 1907, therefore, the judgement is likely to be historical and ethical rather than legal, and no less difficult for that. Despite these difficulties, the Museums Association emphasised that "every repatriation request has to be considered separately".[364] This was supported by the Museums & Galleries Commission, which considered that "each request needs to be dealt with on a case-by-case basis, while mindful of the implications for the wider museum community".[365]

144. The Museums & Galleries Commission regarded "decisions on whether or not to return material as a matter for a museum's governing body".[366] Glasgow City Council considered that, when claims of a similar character relating to objects in the same category were made to several museums, it might be appropriate for those museums to act jointly.[367] The Foundation for Aboriginal and Islander Research Action argued that governing bodies were not best placed to make decisions and that there should be a role for "an independent impartial advisory and review body".[368] We do not consider that it would be appropriate to establish an independent body to undertake a role in the consideration of claims which would otherwise be undertaken by the governing body of a museum or to consider collectively claims affecting more than one institution.

145. Several witnesses from within the museums sector identified the need for a single point of contact for information on return issues.[369] The feasibility of such a service is currently being considered under the auspices of Resource: The Council for Museums, Archives and Libraries—the successor body to the Museums & Galleries Commission.[370] We consider that it is appropriate for such a service to be developed as a point for advice and information, for example, on the number and nature of claims made and on procedures followed. It is essential, however, that this point of contact for information is not seen as a participant in the decision-making process itself.

146. The result of the procedure for consideration by Glasgow City Council of the claim for a Lakota Ghost Dance Shirt was a decision to return the object. This decision marked the close of a chapter, but not the end of the story. There was a negotiated agreement as part of which the Wounded Knee Survivors Association undertook to preserve the Ghost Dance Shirt in perpetuity, to ensure that it was on public display and to assist in the development of educational, cultural and other links with Glasgow.[371] As Councillor Elizabeth Cameron described the outcome: "We have ended up forging a place in the history of the Lakota, and the Lakota have become part of the history of Glasgow and of Glasgow museums".[372] A replica shirt is part of a new display which gives a fuller description of the original object's context and history and includes an account of the events leading to return; Councillor Cameron and Councillor John Lynch were in no doubt that this was a better, more educational and more interesting museum display than that which had featured the original shirt.[373]

147. If the outcome of this successful request for return was wholly positive, it need not be assumed that the outcome of an unsuccessful request will be wholly negative. Changes to the way in which an object is stored or displayed by a museum may result.[374] There are sometimes possibilities for objects to be loaned to the requesting party or an appropriate third party such as a museum.[375] Arrangements may be developed for sharing the results of research relating to an object or objects, a process dubbed "information repatriation" by the Natural History Museum.[376] There are many circumstances in which it may be appropriate for a request for return of cultural property to be rejected, but such decisions should be made in as sensitive and constructive a manner as is possible.

The Elgin marbles

148. In the course of a valuable account of return claims, their handling and their importance to indigenous communities, Moira Simpson noted that the true complexity of repatriation issues was often neglected because attention focused upon the case of the Parthenon Marbles.[377] This is an opinion with which we have much sympathy. The term "Elgin marbles" is a popular and convenient shorthand for the Parthenon sculptures from the Elgin collection in the British Museum. These objects form part but not all of the Elgin collection. They represent just over half of all the surviving sculptures from the Parthenon; others are in Athens or elsewhere.[378]

149. The Elgin Marbles were removed from the Parthenon by men engaged by the Earl of Elgin, the then British Ambassador to the Ottoman Empire. On the basis of an official letter from the Ottoman Court and by other means, Lord Elgin secured the acquiescence of the local Ottoman authorities in Athens to the removal of certain sculptures, which were subsequently transported to the United Kingdom.[379] In 1816 a Select Committee of the House of Commons was established to consider the authority by which Lord Elgin's collection was acquired, the circumstances under which that authority was granted, the merit of the marbles and the importance of making them public property and their value as objects of sale. The Select Committee judged the marbles both fit for and worthy of public purchase and recommended a purchase price of £35,000. The longest section of the Report was devoted to a learned disquisition on the history of the sculptures, which the Committee admitted was "somewhat beyond the strict limit of their immediate inquiry".[380] The Report was debated in the House of Commons and legislation was then passed giving effect to its recommendations.[381] The collection was purchased from public funds and vested in the Trustees of the British Museum.[382] Mr Howarth stated the Government's view that the acquisition of the marbles "by the British Museum was legitimate, based upon the recommendation of a Select Committee, and purchased by funds voted by Parliament".[383]

150. The decision of Parliament in 1816 ensured that the Elgin marbles would remain together and on public display at the British Museum.[384] There are many arguments advanced by the British Museum and others in support of the case that this is where they should stay. Some of these arguments can be briefly summarised as follows:

· the Elgin marbles are properly and legally held by the British Museum;[385]

· they are displayed there in the unique context of a museum of world cultures which permits the intellectual and visual comparison of the art of great civilisations;[386]

· the marbles are now irrevocably established as museum pieces and their return to the structure of the Parthenon to which they originally belonged is not envisaged;[387]

· the marbles are freely accessible in the British Museum to over 5 million visitors a year, three quarters of whom are from abroad;[388]

· removal of the marbles to Athens would encourage similar claims for other objects from other countries which would undermine the comparative principle at the heart of the British Museum's purpose;[389]

· removal of these and other objects from the British Museum would discourage potential donors from making gifts to the British Museum.[390]

151. The Greek case as presented to this Committee represents part of a development of that Government's approach. The current case does not dwell upon the circumstances of acquisition or legal issues.[391] Equally, that case emphasises the paramount importance of a change in the location of the marbles, rather than of their ownership.[392] The principal arguments of the Government of Greece for a change in location of the Elgin marbles can be summarised as follows:

· return of the Elgin marbles would permit the "reunification of the Parthenon sculptures in their original topographic, historical and cultural context";[393]

· the Parthenon is a unique monument with worldwide cultural significance and "the greatest national symbol of Greece through our time";[394]

· these unique aspects of the case ensure that it would not pave the way to other claims of a different character and the Greek Government's claim is highly specific rather than part of a general claim for Greek artefacts abroad;[395]

· upon their return, the Elgin marbles would be displayed in a new Acropolis Museum, together with the rest of the surviving Parthenon sculptures, at the foot of the Acropolis and forming part of a reintegrated ancient environment, thus providing a different and more intense visitor experience;[396]

· the Greek Government is committed to ensuring that the new Acropolis Museum is completed by 2004 and the Athens Olympic Games of that year represent a fitting occasion for the reunification of the Parthenon sculptures;[397]

· the return of the Elgin marbles to Athens would provide a unique opportunity for strengthened cultural collaboration between Greece and the United Kingdom to the particular benefit of the British Museum.[398]

152. The British Museum considered that it was not permitted under its current statute to engage in negotiations to return objects.[399] This last point was endorsed by Mr Howarth.[400] The introduction of any legislation to provide for the return of the Elgin marbles would be the responsibility of the Government. Mr Howarth indicated that the Government was happy to discuss the issue of the marbles. He considered any progress as dependent upon "a closer meeting of minds, a closer mutual understanding of each other's point of view".[401]

Human remains

153. Our approach to the return of cultural property during this inquiry has been based on a broad consideration of the many types of cultural property concerned. However, as the inquiry progressed, we became convinced that a category of return claims deserves separate analysis—that of human remains. In some countries, there has already been a fundamental shift in the way such claims are considered.[402]

154. In the USA, the Native American Graves Protection and Repatriation Act 1990 required all federally-funded museums to compile inventories of Native American human remains and associated grave goods and to seek to identify the geographical and cultural affiliation of those remains. The museums were also required to notify tribes of these holdings and to return such remains and associated objects "expeditiously" upon receiving a request from descendants or tribes, subject to the tribal claimants producing the necessary evidence.[403]

155. Similar provisions are made in Federal and State legislation in Australia.[404] The main objectives of a strategic plan adopted by the Australian Cultural Ministers Council are identification, where possible, of the origins of ancestral remains held in museums, notification of all communities who have ancestral remains held in museums and repatriation arranged where culturally appropriate and when requested.[405] Museum policies in Australia have been developed based on these broad principles.[406] Federal support is given both to holding institutions and to indigenous communities and their representatives.[407]

156. Mr Lyndon Ormond-Parker of the Foundation for Aboriginal and Islander Research Action stressed that these policies had not led to an emptying of Australian museums, but to strengthened links between those museums and indigenous communities.[408] In many cases return is not sought; the main benefit for communities in such cases is the knowledge that museums are sensitive to the issues which affect human remains.[409]

157. The fundamental principle which underpins legislation and action in the USA and Australia is that, regardless of current location, the relevant indigenous community has primary or pre-eminent rights in respect of human remains.[410] It is therefore considered in those countries that such communities ought to have the final say with regard to storage, access, research and return.[411] Recognition of such a right need not entail return.[412]

158. During the past, human remains were collected as objects of curiosity and for the purposes of scientific study, including past concerns about comparative anatomy.[413] Remains were collected from a variety of contexts, including graveyards, battlefield and massacre sites and hospital morgues.[414] For many indigenous communities, the circumstances of collection and subsequent treatment are inseparable from wider concerns about the harsh and sometimes devastating impact of European settlement upon those communities.[415]

159. Many of these human remains collected across the world found their way into museums and other institutions in the United Kingdom. There are records of significant holdings of remains from the United States, Greenland, Africa, Australia, New Zealand and other parts of Oceania.[416] Some of these remains have already been returned to their originating communities following requests for repatriation.[417]

160. There are significant scientific arguments for retention of human remains in museums. The Natural History Museum, which has substantial holdings of human remains from abroad—although these are outnumbered by such holdings of United Kingdom origin—was convinced of the continuing value of scientific work in this field. It referred to research relating to the impact of diet and disease and the nature of interactions with the environment as well as in the fields of forensic anthropology and medical osteology.[418]

161. These scientific values have to be balanced to some extent against the non-scientific concerns of indigenous communities. These concerns were amplified eloquently in a submission from the Chitimacha tribe of Louisiana referring to the remains of two females from that tribe in the Natural History Museum: "They are our ancestors. We need to put them to rest ... It is unconscionable that our ancestors have been placed in boxes on shelves, put on display in cases, handled and examined for research purposes, knowing that they remain in a state of unrest."[419]

162. Dr Neil Chalmers, Director of the Natural History Museum, did not consider that it would be possible to concede requests couched in such terms: "We have a duty to the scientific international community to use them as a very valuable scientific resource. We would find it extremely difficult to return any such objects if there was any doubt at all about their continued safety and their accessibility. If they were to be buried or cremated then that would not at all be a possibility for us."[420] He did, however, consider it a possible way forward for such material to be put into a special area which satisfied the requirements of the community concerned and satisfied the Museum about the ability of the international scientific community to conduct appropriate research.[421] This approach to some extent would reflect practice already adopted in New Zealand and Australia, in one case with Maori objects returned from Edinburgh University.[422] Some concerns of indigenous communities about display of remains can be met in manners which do not conflict with scientific interests.[423] There is, nevertheless, a tension between the aspirations of scientists and the expectations of communities, relating both to the sense in those communities of an entitlement to pre-eminent rights in respect of their ancestors and to the particular desire in some cases to see those ancestors buried.[424]

163. The Australian Government argued that the issue of repatriation of indigenous human remains should be seen as distinct from the broader issue of the repatriation of cultural property.[425] Mr Howarth also considered that "there is a qualitative distinction to be made between human remains and artefacts, between the remains of actual human beings and, shall we say, sculptural renderings of human beings".[426] We agree. We consider that existing guidance for museums on Restitution and Repatriation does not give sufficient weight to the particular issues relating to requests for the return of human remains. We recommend that the Department for Culture, Media and Sport initiate discussions with appropriate representatives of museums, of claimant communities and of appropriate Governments to prepare a statement of principles and accompanying guidance relating to the care and safe-keeping of human remains and to the handling of requests for return of human remains.

164. In line with such documents in Australia and the United States, the starting point should be the identification, where possible, of the origins of ancestral remains held in museums, together with the provision of information to all interested parties. The Natural History Museum has noted that the information available on its collection to non-scientists in the past has been "poor".[427] It is seeking to remedy this deficiency, although the task of identification is a time-consuming and expensive one.[428] We recommend that the Department for Culture, Media and Sport seek commitments from all holding institutions in the United Kingdom about access to information on holdings of indigenous human remains for all interested parties, including potential claimants, as part of these discussions.

165. A crucial aim of this process should be the strengthening of relations and of mutual understanding between those institutions in the United Kingdom which hold indigenous human remains and the indigenous communities themselves. Evidence from Australia suggests that such dialogue will focus on issues relating to custody and care of collections and will not lead to immediate large-scale repatriation of human remains from British collections.[429]

166. There are significant legal barriers to the return of human remains from certain collections in the United Kingdom. We have already concluded that general changes to laws governing disposals by national museums would not be appropriate and that any legislation should be narrow and specific. We consider that human remains may merit such specific legislation. Mr Howarth was sympathetic to this idea: "I think we should be willing to look sympathetically and constructively at whether it is possible to ease the law so that if the trustees so wish they can make amends and they can return human remains."[430] Even human remains cover a variety of objects. At one extreme are the remains of named and known individuals which merit especially sensitive consideration.[431] Another extreme is represented by human remains which have been physically modified and thus become artefacts.[432] There appears to be a less compelling case for inclusion of artefacts in any such legislation. Other objects vary from full skeletal remains to hard body parts and soft tissue such as hair. Preparation of legislation would thus require careful consideration of definition. We agree with Mr Howarth that any legislation must be permissive, not mandatory. It should grant limited additional powers to trustees, possibly subject to independent review and appeal. It should not grant powers to outside bodies to determine issues of de-accession. We recommend that the Department for Culture, Media and Sport undertake a consultation exercise on the terms of legislation to permit the trustees of national museums to remove human remains from their collections with a view to early introduction of such legislation.

281 Treasures in Trust: A Review of Museum Policy, Department of National Heritage, July 1996, para 3.1. Back

282 Q 711. Back

283 B F Cook, "The Trade in Antiquities: a curator's view", in Antiquities: Trade or Betrayed, p 181. Back

284 Treasures in Trust, para 3.2. Back

285 Registration Guidelines: Registration Scheme for Museums and Galleries in the United Kingdom, Museums & Galleries Commission, para 4.2.3. Back

286 Evidence, p 99. Back

287 Museum Focus: Facts and figures on museums in the United Kingdom, Issue 2, Museums & Galleries Commission, p 111. Back

288 Evidence, p 195; QQ 625, 632. Back

289 Evidence, p 195. Back

290 Q 51. Back

291 Evidence, p 14. Back

292 Stealing History, p 25. Back