Examination of Witnesses (Questions 100-119)
MUSEUMS ASSOCIATION
28 OCTOBER 2003
Q100 Chairman: I am sorry, you were
not or were?
Dr Davies: We were happy, yes,
as this Committee recommended. My understanding is that the British
Museum has a different interpretation of the current legal position—and
I am not competent to comment on it or judge it but I know that
a lot of lawyers have been arguing for some time. The British
Museum are arguing that there is some kind of way in which the
Charities Act can override the British Museum Act. Whether or
not that is an issue that is making things more difficult from
DCMS's point of view, I do not know, but for some reason it does
not seem to be as simple as it should be. I understand also that
there might be definitional problems about restricting the definition.
As I say, it needs expert legal opinion really, but, again, witnesses
and lawyers are arguing about whether or not the British Museum,
for example, under the British Museum Act, has in fact the power
to return certain categories of things when there is a moral justification
for doing it or not.
Q101 Chairman: Could you clarify
that a bit more, please, the potential or reputed clash between
the Charities Act and the British Museum Act.
Dr Davies: I am not a lawyer—and
this has to be prefaced with "This may be wrong"—but
my understanding is that there is a legal argument that it may
be the case that there is a provision in the Charities Act that
allows charitable bodies to dispose of their property when there
is a moral justification for doing so—so that might be something
that was seized by the Nazis and has ended up in a museum collection.
In the case of a non-national museum that was a charity, that
is how it would work: you would need to go through the Charities
Act to get the right permission to give away essentially your
property which you hold for your charitable purposes. As I understand
it, the legal argument at the moment is whether that provision
in the Charities Act overrides the prohibition on disposal in
the British Museum Act.
Q102 Michael Fabricant: Presumably
as far as the British Museum itself is concerned, the Charities
Act would not apply if they are not a registered charity.
Dr Davies: They are a charity
that is exempt from registration. I do not have the legal expertise,
but my understanding is that the legal advice the British Museum
have received is that the Charities Act may well apply and may
well take precedence over the British Museum Act.
Q103 Michael Fabricant: Let us just
be clear about this. Since March 2001 no change then; that is,
there has been no change at all in government, actual legislative
process. Just as we heard from Sir Neil Chalmers earlier on that
there has been no change at all, despite the fact that there seems
to be agreement—though we are hoping there might be something
in the Queen's Speech in that respect—in the general wish
of this Government, quite rightly, to be able to return property
which was looted in the 1933-45 period. Nothing has happened,
as far as you know, since 2001.
Dr Davies: As far as I know, yes.
Q104 Michael Fabricant: Have you
been privy to any conversations? Are you expecting anything in
the Queen's Speech?
Dr Davies: No. As far as the Queen's
Speech is concerned—and I am sure I have been privy to different
conversations from Sir Neil Chalmers—my understanding is
that there is a possibility that legislation as regards human
remains could be contained within a Department of Health Bill
that concerns human tissue—because there are amazing resonances
and overlaps between the work being done by the Department of
Health following Alderhey and all the rest of it and the human
remains working group. There has been a lot of cross-over between
the two groups. So the Department of Health legislation can provide
a legislative opportunity to amend national museum legislation.
Q105 Michael Fabricant: So on Tuesday
11th, not only should we have a Home Office Minister and the Secretary
of State for DCMS along, but maybe we should have a Minister from
the Department of Health as well, it would seem.
Dr Davies: I am not qualified
to judge.
Michael Fabricant: Well, perhaps this
Committee, and this is a rhetorical question, ought to suggest
that this should all come under one government department.
Chairman: I think that what you have
said about the Department of Health is very interesting because
it is the first indication that any of us around the table has
heard that there is such a possibility and no doubt we can find
that out from the Secretary of State. I say "no doubt we
can find that out", but it is highly ambitious, so we shall
seek to find that out from the Secretary of State when she appears
before us.
Q106 Rosemary McKenna: It would be
interesting, Chairman, to find out from every Secretary of State
just exactly what they hope to be in the Queen's Speech and what
they would feel should go into the Queen's Speech. However, can
I take you back to the Glasgow issue because I think there is
a very interesting relationship between the people of Glasgow
and their museums. They absolutely adore their museums. I think
the Council has responded extremely well to all the issues about
repatriation, about all the sensitivities surrounding that and
there was absolutely no fuss at all about the return of the shirt;
in fact it was celebrated which I thought was really, really good.
They have also, I believe, made it clear that if there were any
object that had come to the City by various means during the period
of 1933-45, they would be more than happy to return those, but
as yet there has not been a claim. Is that correct? Are you aware
that that is the situation?
Dr Davies: I do not know of any
of the facts of the case as regards Glasgow at all, but I know,
for example, the British Museum has also said, I think in evidence
to this Committee, that were it found to have things in its collection
that were looted by the Nazis, then it would also be happy, indeed
want, to return them.
Q107 Rosemary McKenna: Would it be
an issue of provenance or somebody making the claim? How would
they be identified?
Ms Wilkinson: Perhaps I can explain
how that works. The national museums initially and then later
the regional museums went through their collections to identify
objects which had come into the collection which had a gap in
their provenance between 1933 and 1945, so there was a possibility
that they might have been looted or illegally taken from people
in Germany or occupied countries during that period. The databases
of those objects have now been published and the onus is on the
families or the descendants of the owners to identify objects
which they feel might be theirs and their claims are submitted
to a panel which adjudicates, but it is fair to say that there
has still only been a very small number of claims, I think four
or five, so it is very early days.
Q108 Rosemary McKenna: Do you expect
that there would be a build-up or there would be a momentum?
Ms Wilkinson: It is hard to predict,
but I think as the databases become better known, word may spread
and yes, there may be more claims.
Q109 Mr Doran: I was intrigued at
the legal issues that you raised earlier about the British Museum
and the other museums' power. I have a legal background, although
I have not practised law for many years since I came into Parliament,
but it does strike me as a little bit tenuous. It does say one
thing, correct me if I am wrong, that there is a drive for some
change in the situation coming from the museum sector itself.
Dr Davies: I think as we heard
from Sir Neil Chalmers, certainly in the case of the Natural History
Museum, there is a feeling that the absolute restriction on disposal
has actually made the relationship between the Natural History
Museum and claimants more confrontational, so I think there there
is a clear sense that there are benefits in relaxing the legislation.
I think in the case of the British Museum, there is a case of
spoliated material, so the British Museum needs to be able to
return if the Spoliation Advisory Panel decides that is the right
thing to do, so in both of those cases there is a desire, yes,
from within the museums for legislation to be changed and I think
it is interesting that most museums in Britain are not governed
by legislation which restricts their powers of disposal to such
a degree and we see a gradual, a small, but steady flow of items
being returned. You mentioned the headdress from the Marischal
Museum and there have been returns of human remains this summer
from the Manchester Museum, the Horniman Museum and the museum
at the Royal College of Surgeons. Again the evidence seems to
be that when museums have the legislative power to return things,
then very carefully and on a case-by-case basis some decisions
are made to return things.
Q110 Mr Doran: I said to Sir Neil,
and I have got the relevant extracts of the legislation in front
of me, that it did seem to me, as a lawyer, to be relatively simple
to amend the Act without any complex legislation, but I began
to get nervous when you made the reference, for example, that
the legislation on human remains might be stuffed into something
else which is dealing with human embryology.
Dr Davies: No, it is not human
embryology, it is the issue of the holding of human remains by
the medical sector, if you like, so it is the same issue of holding
human remains for research purposes. There has been a lot of work
going on and continuing to go on to make sure that any regime
that is brought in for medical research and for hospitals will
work appropriately in the context of museums and indeed churches
because there are some churches that have relics and so on on
display. Also there is a big issue about relating that regime
to archaeology as well because there is a lot of UK-origin human
remains excavated regularly and often they are not reburied, so
again any regime that is brought in for the medical sector has
the potential of having an impact on museums, archaeology and
churches, so in a sense it all has to be lined up a bit, I suppose.
Mr Doran: I am struggling to be convinced.
It still seems to be a bit cobbled together, but we will see what
the legislation brings.
Q111 Chairman: Before you go on,
Frank, I have two questions, one to Dr Davies and one in fact
to you. To Dr Davies, how have you become aware of this legislation,
this Department of Health legislation? Through what channels has
this information been provided to you?
Dr Davies: Several ways. There
have been various public consultations by the Department of Health
to which the Museums Association responded to one, I think, earlier
this year.
Ms Wilkinson: It was in the spring
of this year.
Dr Davies: So there was a public
consultation which we responded to in the spring about legislative
change and we responded about the museum implications of that.
Then there was a document from the Department of Health that summarised
the consultation and I think said what the Department of Health
was minded to do. As a consequence of that, I have met with officials
of the Department of Health, so that is one route. Then another
route is via my membership of the Working Group on Human Remains.
As I sit here talking to you, I am aware that I have no clear
sense of what is confidential and what is not to that committee,
but certainly my understanding is that in the Human Remains Report,
which is due to be published within the next few weeks, there
is a fair discussion of the Department of Health situation and
its relationship to museum collections of human remains.
Chairman: Perhaps we could ask for a
preview of that. The other question, before Frank turns back into
a questioner, is Dr Davies talked about a potential clash between
the Charities Act and the British Museum Act, so if there were
such a clash, how would it be resolved? Would it be through an
action in the courts?
Q112 Mr Doran: That would be the
normal way unless Parliament decided to do something about it,
but it really does strike me as a lawyer's device to try and get
out of a bottleneck, and maybe that is the best way of putting
it. Just as you were talking earlier, it did strike me that a
more fruitful way of looking at individual questions was to examine
the basis on which museums held an artefact. If we were talking
about something, for example, which had been acquired and we could
trace the history back to the 1931-45 period, did they lawfully
own it, did they lawfully hold it? That would undermine the provisions
in the 1963 Act and I think any court would infer in that legislation
that if there was no good title, then the Act would not apply
to it. That would be my legal interpretation of the situation,
and that is advice for free. I am not being paid for this as I
do not carry any indemnity insurance! Just moving on to your evidence,
this is an inquiry about illicit cultural artefacts and there
are one or two points I would like to pick up from your evidence.
It is quite clear from what you were saying that you do not have
a very high opinion of the resources we devote in this country
to the trade in illicit artefacts.
Dr Davies: No.
Q113 Mr Doran: Can you say a little
bit more about that because it is an issue that has worried me
for a long time, as somebody who is interested in antiques, that
it seems that in the police scale of priorities, houses which
are broken into, fireplaces which are stolen and that sort of
thing has a very, very low rating on their scale and you can take
that through the number of artefacts which are smuggled into the
country. We have heard that London is supposed to be the hub of
the international market.
Dr Davies: I think, firstly, to
give some credit to DCMS, that actually in policy terms the situation
as regards the illicit trade has wholly changed from how it was
when this Committee considered the subject three years ago. The
country has now acceded to the UNESCO Convention and, thanks to
government support, the Trading in Cultural Objects Offences Bill
has successfully gone through Parliament, so we now are in a situation
where for the first time it is both government policy, backed
up by a small change to the criminal law, that trading in illicit
artefacts from overseas is undesirable and is now a criminal offence
or will soon be a criminal offence, so I think there is a huge
change there. Therefore, in terms of government commitments at
a policy level and, to a smaller extent, at a legislative level,
there have been some changes. Certainly now within DCMS there
is far more effort and energy put into those issues of combatting
illicit trade. I am not really an expert in this at all and some
of the witnesses who follow me may be able to talk about this
with more knowledge, but I think that at a national level the
Arts and Antiques Squad of the Metropolitan Police are quite active
and they are quite active internationally in combatting cases
of attempts to import illicit cultural material into Britain,
so I think again at the international level and at the government
policy level things are either okay or are getting better, although
of course there could always be more resources. It seems to me
that the problem comes much more at a local and regional level
where it is not a priority for the police and I think I have even
heard stories about how even if cases are taken to court, the
courts locally will not take cases around the looting of archaeological
sites in the UK and so on seriously. My understanding is that
in a sense cultural property crime is not in the category of offences
on which police forces have to report to the Home Office each
year as part of their performance management regime, so, as a
consequence, it is not something that the police are motivated
to devote a lot of resources to because it does not get them extra
ticks in their annual returns to the Home Office. Without being
privy to any details, it does seem to me that DCMS's commitment
to combatting the illicit trade could be spread a bit more through
government so that other government departments could also put
some resources into backing the relatively recent policy change
by government.
Q114 Mr Doran: You mean primarily
the Home Office?
Dr Davies: Yes, I suppose so.
Q115 Mr Doran: I certainly have the
strong impression that the police and the courts almost treat
the sort of cultural crimes that we are talking about as vandalism
and no more, that it does not rate any higher than that.
Dr Davies: Yes.
Q116 Mr Doran: You mentioned as well
in your paper that with a lot of the people who deal in cultural
artefacts, some of them operating illegally and some not, there
may be problems there. You talk about the `innocent until proven
guilty' approach.
Dr Davies: Yes.
Q117 Mr Doran: Do you have any thoughts
on that and how we can improve the situation?
Dr Davies: In UK museums relatively
recently, over the past maybe even five years, but five to ten
years, I think the attitude towards certain categories of potential
acquisition has been to assume that the item is guilty until proven
innocent, so museum ways of operating now require that you prove
something is legitimate before you acquire it rather than you
assume it is legitimate unless there is evidence to the contrary.
Q118 Mr Doran: Does that put museums
at a disadvantage in the market?
Dr Davies: Yes. There are growing
examples of museums turning down things that are on sale in the
London art market, so there are things which museums have identified
that they would want for their collections for cultural reasons
and when they do the due diligence to try to trace the history
of the item, they find gaps in it which mean that the museum can
no longer acquire the item, so whilst there is no question of
the thing being on sale illegally or anything, it is an ethical
issue. In terms of museum ethics, whilst this item is ethically
acceptable to the art trade to trade in it in London, museums
operate, I suppose, to a higher ethical standard or a different
ethical standard, so museums will not acquire it and so it then
gets sold presumably to a private collector.
Q119 Mr Doran: You talk about museums
doing due diligence. Presumably it is perfectly possible for the
people who trade in these objects to do exactly the same diligence?
Dr Davies: In principle, but I
think there is a very important resources issue because if a museum
is acquiring something, it is acquiring it in perpetuity, so the
justification for spending a lot of resources on checking it if
you are going to have it for 200 years is higher than if you are
a dealer where it might just pass through your hands for a year
or so and if you are an auction house, you are only acting as
an agent, so it is only passing through your hands for a matter
of weeks, so I think there is a discussion to be had about proportionality,
if you like. I think you could not reasonably expect Sotheby's
to make absolutely the same degree of checks into every item as,
say, the British Museum would because they are dealing with the
item for different purposes.
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