Select Committee on Culture, Media and Sport Minutes of Evidence

Examination of Witnesses (Questions 100-119)


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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