APPENDIX 44
Memorandum submitted by the Charity Commission
GENERAL PRINCIPLES
1. The prime responsibility for cultural
property owned by or in the custody of a charity rests with the
charity trustees. They must act in accordance with the general
law, charity law and the individual charity's constitution. The
charity's constitution sets out the charity's purposes. It may
contain specific provisions regarding collections—for example,
where exhibits can be displayed or loaned. Specific items may
also have been given to the charity on specific terms which the
trustees will need to follow.
2. Just as with any disposal or claim for
return of property, trustees considering issues of restitution,
repatriation or spoliation[52]
first need to consider the circumstances of their charity, and
where necessary take their own professional advice. In some cases
the trustees may then decide to seek the advice or permission
of the Charity Commission, the Attorney General or the courts.
3. The four options are:
(i) For the trustees to rely on their own
professional advice. This is appropriate for the great majority
of the decisions trustees take.
(ii) To ask formally for the Commission to
give advice under s29 Charities Act 1993. Provided that they provide
the relevant facts and information and follow the Commission's
advice, trustees are deemed to have acted properly in discharging
the duties of their trusteeship. The Commission may decline to
offer advice when for example the issues would benefit from a
court hearing.
(iii) To ask formally for the Commission
to authorise a particular action by order under s26 Charities
Act 1993. This gives trustees a power to do something which is
not specifically covered by the charity's constitution. If the
Commission declined to give an order the trustees could seek authorisation
from the courts, provided that either the Commission or the Court
agreed to the courts considering the issue.[53]
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.
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.
Spoliation refers to the plunder of assets,
in this context works of art, during the Holocaust and World War
II.
(iv) In some circumstances trustees may decide
that although they are unquestionably the owners of the property
they feel a moral obligation to give the property to others whom
they regard as the "rightful" owners. Trustees cannot
give away charity property like this without the approval of the
Commission, the Attorney General or the courts. If the matter
was particularly sensitive or contentious the Commission could
refer any request it received to the Attorney General for him
to decide. The Attorney General can also consider requests that
the Commission has previously rejected. In addition the Attorney
General himself can refer requests to be decided by the courts.
4. Some of the larger charities which hold
cultural property are exempt charities. This means they are not
registered by the Commission, or subject to its oversight. Exempt
charities can however ask for advice from the Commission and seek
its orders. They can also go directly to court to seek authority
to return property without first seeking the Commission's authority
to do so.
APPLYING THE
GENERAL PRINCIPLES
5. We are not aware of any approaches which
have been made to the Commission about the disposal of any item
for reasons relating to restitution, repatriation or spoliation.
Some hypothetical examples of the sort of situations which might
arise and the possible solutions which might be found are described
below.
6. Like anyone else, museums' and galleries'
legal title to their property (in their case, collections and
exhibits) is good against all the world, except the true owner
or another who can prove a better title. Thus, if an exhibit has
been stolen, the true owner may reclaim his or her property notwithstanding
the length of time which may have passed. In a clear case of true
ownership the trustees would not normally need advice or authority
from the Commission. The more arguable the case, the more the
trustees might be inclined to seek the Commission's advice or
authority.
7. Even where the collection or exhibit
remains in the ownership of the charity it may be possible to
reach agreement with the claimant. For example, a charity for
general educational purposes anywhere in the world may be able
to "return" the property by placing it somewhere, perhaps
overseas, where the public could readily inspect it in circumstances
which might better reflect its cultural or historical origins.
Clearly this is only possible if the charity's purposes are wide
enough and there are no restrictive or special trusts which would
prevent this. If the charity chose to do this it would have to
be sure that the exhibits once returned remained readily available
for public inspection and viewing. The trustees would also have
to be clear that such relocation of the property (permanently
or on loan) furthered the charity's purposes and that the relocation
was otherwise expedient. The Commission would only be involved
if the charity asked it to give formal advice or make an order
authorising the action.
8. In some cases the trustees may feel that
they are under a moral obligation to return property to its "rightful"
owners even where the charity clearly has legal ownership. The
trustees would have to consider whether there was a moral obligation
overriding the overall objects and purposes of the charity. They
would take into account such things as researches into the provenance
at the time of acquisition, the history and sequence of events,
the circumstances of its acquisition and the circumstances of
the claimant. 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.
If the trustees wanted to return the property on moral grounds,
they would need to seek the authority from the Commission, the
Attorney General or the courts.
April 2000
52 The definitions of restitution, repatriation
and spoliation used are those given in the Museums and Galleries
Commission Guidance: Back
53 An
order cannot override relevant express provisions in the charity's
constitution. To do this would require a scheme of the courts
or the Commission, which if it involved changes to an Act of Parliament-such
as govern a number of major museums-would also require Parliament's
approval. Back
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