APPENDIX
CULTURAL PROPERTY:
RETURN AND ILLICIT TRADE: INITIAL GOVERNMENT RESPONSE TO THE
SEVENTH REPORT FROM THE CULTURE, MEDIA AND SPORT COMMITTEE, SESSION
1999-2000
1. The Government welcomes the Committee's Report.
Together with the evidence submitted to the Committee, it represents
a major contribution to discussion of a complex range of issues
which are of great and growing importance to our museums and galleries,
to the antiquities trade, and to many other bodies and individuals.
The following paragraphs set out the Government's first response
to the individual conclusions and recommendations listed on pages
li-liii of the Committee's Report, and printed in italics below.
Illicit trade
(i) A clear
system for recording the ownership history of a cultural object,
linked directly to the capacity to conduct a legitimate transaction,
would be an extremely important tool in tackling the illicit trade
in cultural property and is therefore desirable in principle.
However, we have received persuasive evidence that
a compulsory 'log book' providing such a record would face
many difficulties, some of them probably insuperable, and we have
concluded reluctantly that such a compulsory 'log book' would
not represent a practical way forward. However, where organisations
feel that they can establish some sort of voluntary 'log book'
within their own resources this would be very much welcomed.
(ii) We recommend that the Home Office
make a public commitment in the course of this year to establishing
a national database of stolen cultural property and cultural property
exported against the laws of countries concerned under national
police control. The Home Office should also seek to take forward
detailed discussions with the police service, the insurance industry,
the art market and private database operators about the development
of an open system which can meet the needs and draw upon the skills
and funds of the private sector. Finally, the Home Office should
liaise closely with other countries to ensure that any national
development is compatible with the wider international development
of a database of stolen and illegally exported cultural property.
(iii) We do not wish to recommend
any changes to the United Kingdom's current controls on the export
of cultural property.
(iv) We recommend that the Government
introduce legislation creating a 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 after the entry into force of the legislation,
with a defence in law based on the exercise of due diligence as
defined in that legislation.
(v) Assuming that the other recommendations
in this section of the Report (recommendations (iv) and (vi))
are implemented, we do not recommend that the United Kingdom become
a party to the 1970 UNESCO Convention.
(vi) We recommend that the United
Kingdom sign the 1995 UNIDROIT Convention and that the Government
bring forward legislation to give effect to its provisions and
facilitate early ratification.
2. The Government is determined to take effective
action to combat the illicit international trade in antiquities.
To that end, it has appointed an expert Advisory Panel to review
both legislative and non-legislative options for action. Recommendations
(i) to (vi) relate to matters which are under consideration by
the Advisory Panel. The Panel has been asked to report to Ministers
by the end of November, and will of course take the Select Committee's
recommendations into account in forming its conclusions. The Government
will make a further response to the Select Committee when it has
received the Advisory Panel's recommendations.
Proposals for legislation
(xi) 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.
(xvi) 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.
(xviii) We consider that the case for special
treatment of cases of alleged wrongful taking during the period
1933 to 1945 has been convincingly
established. It is appropriate that the Spoliation Advisory
Panel has been created to ascertain the facts of individual cases
and to recommend an outcome for claims which are upheld. While
there are merits to a solution
which secures continuing public access to an object in a
museum, that interest must be seen as subordinate to the interests
and wishes of a rightful owner. Where a claim has been upheld
and restitution is seen as appropriate by all parties, it is essential
that legislative barriers to such restitution be removed. It would
be absurd if restitution were not possible in these circumstances
due to the dilatoriness of Ministers in the Department for Culture,
Media and Sport.
(xix) We very much welcome the lead
taken by the British Museum in making clear and unequivocal statements
that it would wish to return objects looted during the period
1933 to1945 and not subsequently returned. We recommend that Ministers
in the Department for Culture, Media and Sport begin cross-party
consultations as a matter of the utmost urgency with a view to
securing agreement for early and expedited legislation to permit
the trustees or boards of national museums and galleries to dispose
of objects which, in the view of the Spoliation Advisory Panel,
were wrongfully taken during the period 1933 to 1945.
3. The Government agrees with the Committee that
it would not be appropriate to give the boards of the national
museums and galleries general powers to dispose of objects in
a broader range of circumstances than is currently permitted;
but it also agrees that there may be a case for legislation to
permit disposals in very specific and tightly defined circumstances.
The Government therefore accepts the Committee's recommendation
that there should be consultation specifically on the case for
legislation to permit the return of human remains, and to permit
the return of objects which were wrongfully taken during the period
1933 to 1945. The Minister for the Arts has written to the relevant
bodies to set this consultation in train.
Provenance
(vii) 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.
4. The Government endorses 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, or the museum
is able to obtain permission for the acquisition from the relevant
authorities in the country of origin.
5. The Government accepts that there should be a
review of the circumstances in which it is appropriate for museums
to act as repositories of last resort. DCMS will initiate a review
in consultation with the appropriate museum organisations.
Restitution
(viii) We
welcome the publication of the Museums & Galleries Commission's
Guidelines on Restitution and Repatriation.
(ix) 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.
(x) 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.
(xii) 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.
(xiii) We consider that it is appropriate
for a service to advise museums on return issues to be developed
as a point for advice and information, for example, on the number
and nature of claims made and on the 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.
6. The Government endorses the Committee's welcome
for the Museums & Galleries Commission's Guidelines on Restitution
and Repatriation.
7. The Government fully endorses the Committee's
recommendation that information on collections should not unreasonably
be withheld; and that in setting priorities for the conduct of
research on collections, and making information about collections
accessible, museums should give consideration to the interests
of originating communities. The Minister for the Arts has written
to the national collections, and to Resource and the Museums Association,
endorsing this recommendation, and asking Resource to take it
into account in considering applications to the Designated Museums
Challenge Fund for funding for research into collections.
8. The Government joins the Committee in commending
the procedures adopted by Glasgow City Council in its handling
of claims for the restitution of objects.
9. The Government agrees with the Committee that
it would not be appropriate to establish an independent body to
undertake a decision-making role in the consideration of restitution
claims, as distinct from the advisory role undertaken by the Spoliation
Advisory Panel. However, the Government shares the Committee's
view that there should be examination of the case for a centre
of expertise and advice which could help museums which may individually
have very little experience in handling restitution claims. Resource
have commissioned a study of the feasibility of such an advisory
unit, and the resources that would be required to set it up.
Human remains
(xiv) 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.
(xv) 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.
10. The Government agrees that there is a need for
further guidance on the specific issue of the care of human remains,
and the handling of requests for their return. The Department
will initiate discussions with the relevant bodies shortly on
this issue, and on the issue of access to information about holdings
of human remains.
Objects acquired during the period 1933 to 1945
(xvii) We recommend
that the Department for Culture, Media and Sport set out its strategy
for assisting non-national museums with provenance research relating
to the period 1933 to 1945 and for ensuring that the results of
research by national and non-national museums is made available
in a common and accessible format in its response to this Report.
(xx) We recommend that the Department
for Culture, Media and Sport undertake discussions with representatives
of the British art market, claimant representatives and other
interested parties to explore the extent to which the Spoliation
Advisory Panel or a separate body could be engaged to investigate
issues relating to cultural objects currently in private hands
which may have been wrongfully taken during the period 1933 to
1945 and not subsequently returned and to propose outcomes reflecting
the legitimate interests of claimants and of current possessors.
11. Ministers' view is that it is the responsibility
of individual museums to undertake provenance research relating
to the period 1933 to 1945, and to ensure that the results of
such research are made available in an accessible format. Whether
an advisory unit could usefully provide guidance in this area
is one of the issues being considered in the feasibility study
referred to in paragraph 9 above. Ministers commend the work already
undertaken by the NMDC Working Group on Spoliation, and their
commitment to regular updating of their database.
12. The terms of reference of the Spoliation Advisory
Panel permit the Panel to investigate issues relating to cultural
objects currently in private hands, where issues are referred
to the Panel with the agreement of both the claimant and the current
holder of the object in question.
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