Select Committee on Culture, Media and Sport Appendices to the Minutes of Evidence


Memorandum submitted by the Charity Commission


  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.


  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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