APPENDIX 1
Memorandum submitted by The National Art
Collections Fund
The National Art Collections Fund welcomes the
Committee's inquiry into the illicit trade in, and return of,
cultural property. Despite their significance to international
cultural heritage, these major issues have not yet received full
public debate in the UK. We sincerely hope that the inquiry will
promote informed public interest and that it will lead to the
adoption of appropriate measures on both aspects of the subject.
1. BACKGROUND
The National Art Collections Fund is the UK's
leading art charity with over 130,000 members. Since it was founded
in 1903 it has helped museums, galleries and historic houses to
acquire works of art of all types; last year it gave grants of
£4.1 million, a record figure.
2. NATIONAL ART
COLLECTIONS FUND
GRANTS POLICY
As part of its grants-giving policy:
the Fund does not itself undertake
the responsibility for establishing or verifying the provenance
of objects for which it provides a grant; this is clearly stated
in our grant conditions as being the responsibility of the benefiting
institution;
the Fund will not provide grants
towards objects unless it is satisfied that the applicant has
exercised due diligence in the provision of provenance details;
and
in the case of antiquities, in common
with the National Museums and Galleries and the Museums and Galleries
Commission, the Fund does not support the acquisition of objects
that have appeared on the market without provenance going back
to at least 1970.
3. THE ILLICIT
TRADE
We are not in a position to make more than general
observations about the market in illicitly traded objects. Our
principal concern is that there has been very little assistance
or information available to museums and galleries, some of which
demonstrate worrying naiveté in matters of acquisition
and provenance. This is particularly true of smaller museums and
is more of a problem in certain areas of collection, eg antiquities
and archaeological material. Without assistance, such as codes
of practice/guidelines on acquisition and provenance and easily
available and reliable sources of information on illicitly traded
objects, museums may lose confidence in acquiring objects and
give up, rather than run the risk of making unethical acquisitions.
This would have a damaging effect upon both the development of
museum collections and on the legitimate trade.
4. Ultimately, the responsibility rests
with individual museums to operate a "caveat emptor"
policy. However, museums and galleries cannot tackle these problems
effectively on their own and arguably should not be expected to
do so. Through legislation, policies and guidance, and through
collaboration with other governments, the Government has a duty
to take the lead.
5. RECOMMENDATIONS
TO GOVERNMENT
(a) The variation between the different
legislative systems, their enforcement and interpretations within
the EU and worldwide, is a major contributing factor to the scale
of the problem. We recommend that the Government should ratify
the 1970 UNESCO and 1995 UNIDROIT Conventions as a first step;
or implement measures to achieve the same ends;
(b) the Government should not make available
tax benefits (such as AIL and conditional exemption) where the
objects concerned lack sufficient provenance;
(c) the Government indemnity scheme should
not cover loans of unprovenanced material to UK museums;
(d) a central source of information should
be funded by government, to provide information about a) other
countries' export legislation; and b) objects that have been illicitly
traded;
(e) the Government should address the present
inadequacy of specialist police forces covering illicit trade;
and
(f) the Government should participate in
greater international co-operation on illicit trade.
6. RECOMMENDATIONS
TO MUSEUM
BODIES
(a) A central advisory source should be
set up with government funding to provide museums that have doubts
about specific objects with names of the most appropriate experts;
(b) Resource: The Council for Museums, Archives
and Libraries should endorse and promote the MGC's guidelines,
Restitution and Repatriation, the MA Codes of Ethics, Ethical
Guidelines on Acquisition and Provenance, and Buying in the Market;
(c) There should be a government-funded
central source of information on objects known to have been illicitly
traded.
7. RECOMMENDATIONS
FOR MUSEUMS
(a) Museums should not acquire objects without
full provenance and should ensure, so far as is possible, that
they have full legal title to all objects within their collections;
(b) museums should not accept gifts, bequests
or loans of unprovenanced objects;
(c) museums should not appear to condone
unprovenanced objects through any collaboration with the person
in current possession or association with the object, eg through
publication or exhibitions; and
(d) museums should adhere to all professional
Codes of Conduct or official guidelines that address issues of
provenance and legal title and their acquisition policies should
be based upon them.
8. OTHER RETURN
ISSUES
Restitution of objects other than those acquired
by illegal means involves a number of highly complex issues. It
is important, therefore, that such cases should be dealt with
on a case by case basis. Procedures for the consideration of such
cases need to be in place, with general guidelines and principles
for reference, but it would be neither practical nor appropriate
to have a rigid legal framework. There are very different issues
to be considered depending on whether the object is being contested
by an individual, as a private property claim, or by a state as
part of a "national heritage" claim.
9. Museums and galleries lack guidance on
these issues. The Spoliation Advisory Panel, recently established
to consider items unjustly acquired as a result of action by the
Nazis, might be an appropriate model for a similar committee for
other return cases. Any committee of referral that is set up will
have to work pragmatically with an eye to public expectations
of what is fair and just; there will often be difficulties in
striking the balance between legally correct solutions and public
reaction.
10. We are not able to make detailed recommendations
but we would like to put on record the following:
11. SPOILS OF
WAR
We welcome the lead taken by the National Museums
and Galleries in examining their collections for works looted
during the Holocaust and Second World War period (1933-45). We
will do all we can to provide assistance. It is probable that,
in time, the public will expect objects acquired in other recent
periods of conflict to be similarly examined and will expect access
to museum records.
12. CLAIMS OF
NATIONAL HERITAGE
Official encouragement of a nationalist interpretation
of culture is to be avoided, but it is clear that there are a
few items of exceptional significance, that justify special consideration.
Particular attention should be paid to cases involving religious
or sacred material and human remains.
13. It is important that return claims should
be approached by government and museums in a spirit of open-mindedness
and co-operation. Return is not always feasible or in the best
interests of the object in question; solutions other than return
are more likely to be agreed within an atmosphere of collaboration
rather than antagonism and the cultural gain to both countries
is likely to be enhanced rather than diminished by the relationship.
March 2000
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