Select Committee on Culture, Media and Sport Minutes of Evidence


Examination of Witnesses (Questions 120-135)

MUSEUMS ASSOCIATION

28 OCTOBER 2003

  Q120  Mr Doran: And if a museum went to Sotheby's to examine an item it was interested in buying, did the due diligence and found that it did not come up to the mark as far as it was concerned, I would expect that that would be a warning to Sotheby's?

  Dr Davies: Yes, and again I do not have enough knowledge of individual cases, but I certainly know that there are cases where, as a result of representations from museums or archaeologists, auction houses have withdrawn things from sale, so there is an element of that certainly. In your report of 2000, you, with some regret, concluded that it was not possible to have the equivalent of a log book for cultural objects and I think we have said in our evidence now that really until something analogous to that is introduced, there will always be a certain degree of risk. I think over the past three or four years the attitude of lots of people within the London art market has changed and the importance of publishing more information about provenance and ownership history is growing, but I think it is still a long way from, as we say in the evidence, if you are buying a second-hand car or a house where it is not necessarily publicly available information, but, as the purchaser, your lawyers can get hold of quite a lot of information before you finally commit to signing the contract and I think there are still no guarantees of that within the art market for similarly high-value, high-risk items.

  Q121  Chairman: There is a real problem though, is there not, because, so far as I can see, traders often make very little effort indeed to establish information about provenance? I was in Jerusalem a couple of weeks ago and I was shown a pair of cufflinks made of ancient Roman coins and the trader said that she would provide a certificate of authenticity of that, but if you go to those lovely stalls in the Chelsea antiques market and look around and ask questions, they are lovely objects, but if you ask where they come from and what their date is, et cetera, et cetera, a lot of the traders will have no idea.

  Dr Davies: I heard a slightly more frightening story which I have to present to you as anecdotal, but there is an expert in numismatics, coins, at the British Museum and I have heard that when he arrives at a coin fair there is much shuffling as the coin dealers remove from display certain trays of items and put them under the counter so that he does not start asking precisely those questions. I think that it remains to be seen how the criminal offence will work in practice and how much energy the policy will put into enforcing or investigating the criminal offence, but I think that a lot of the changes in the art market have happened at the top end, at the most expensive end, if you like, and the most high-profile end of the market and I think there is an enormous amount that probably still has to follow through to the rest of the market.

  Q122  Mr Doran: Another issue for me is the different rules in different countries. I was in Italy with friends recently and I have recently acquired two pieces of Roman glass which I am very proud of and they were horrified at my being able to buy them on the open market in the UK. How do we deal with that problem?

  Dr Davies: There is a strong argument from the trade and from collectors which I have a certain sympathy with that in Italy, as an example, the cultural property laws are far too strict and they are unreasonably strict because in a sense their assumption is that nothing should be exported unless proved otherwise, whereas in the UK the assumption tends to be the other way around, that almost everything you put through the export licensing system, if it is a legitimate item, will get an export licence unless it is of national importance and then a museum has a chance to raise the money to buy it. Well, it is almost the opposite in Italy and I think another difficulty in Italy and countries of a similar regime is that a lot of the decision-making is made at a local level, so you might buy your bits of Roman glass in an antiques shop in Italy, take it to the local departments that deal with it and you might get one view in one city and another view in another city about whether you can export it. There are parallel art markets in Italy. There is a market in items that can be exported which have world prices and then there is a market in items which can only be sold on within Italy which are much cheaper and obviously there is a big temptation to try to switch things from one to the other and to smuggle them out and all the rest of it.

  Q123  Mr Doran: So the more complicated you make it, the harder it is to enforce basically?

  Dr Davies: Yes, and there is an argument which may be true, I do not know, but there is an argument that the laws in Italy, because they are so strict and in a sense applied in a local way with differing interpretations, that actually stimulates it. I do not know because, on the other hand, I think as this Committee showed in its hearings in 2000, the Italians put an enormous amount of police resources into fighting art crime quite unlike here.

  Q124  Miss Kirkbride: I would just like to pick up on a few things which you have said. Thinking about the legislation we expect on keeping human tissue, I think it actually does, having not thought about it before, make quite a lot of sense that this is going to potentially impact on museums. I was wondering if there is anything in the provisions that we know will apply that very clearly directly will impact on museums, that by saying that hospitals have to do this, it will mean therefore that museums will have to do it too and what they are?

  Dr Davies: As I say, I think a lot of work has been going on over the summer and continues to go on on the form that the legislation might take, but I think the particular problem or issue is that the legislation for human tissue in the medical sphere will be framed not in terms of institutions doing things, but in terms of certain acts, so, say, the act of retaining human remains for research purposes or the act of publicly displaying human remains will be covered by the Bill. As a consequence, it does not matter who does it really, but then obviously there is a need to then come up with a whole lot of exemptions because granny's ashes on the mantelpiece have to be covered, so I know that the civil servants are working very hard and getting alarmed when they uncover another area in which in a sense human remains are in common currency in the country and they have to work out what the legislative impact might be. I know it is a very, very complicated piece of legislation, but I think you cannot legislate for hospitals because you get the possibility that a very, very disreputable scientific researcher might have some things in their own ownership and do it outside the hospital sphere, if you like, so you need to legislate to cover certain acts rather than certain kinds of institution.

  Q125  Miss Kirkbride: So in the context of what you know is likely to happen, is there anything that very specifically impacts on the Natural History Museum?

  Dr Davies: Well, my understanding is that one of the key purposes of the legislation will be to regulate the holding of human tissue for research and displaying it, so in a sense absolutely.

  Q126  Miss Kirkbride: That would be it?

  Dr Davies: Yes, so there have to be exemptions to make sure that the Natural History Museum has an appropriate legislative regime around it.

  Q127  Miss Kirkbride: And you also mentioned, I think to Frank, that you were aware of human remains already having been given back by the Royal College of Surgeons. What were the circumstances of that and why?

  Dr Davies: There have been three cases this year. The Royal College of Surgeons has for some time been subject to requests from Australian Aborigines for the return of human remains in its collection and it had a policy of not returning them, but late last year I think it reversed its policy and it has now returned all of its Australian Aboriginal human remains to Australia. I think that the Horniman Museum some time ago agreed to return certain items to Australia and it took a long time, but it has now done so, and in the case of Manchester Museum I think similarly. I think the cases were considered some time ago and it has just taken a while to actually negotiate the practicalities of their return, so from all those places things have now gone back.

  Q128  Miss Kirkbride: So the situations in those cases are not to do with what Sir Neil said which is about establishing their identity and returning them to their relatives, but it was a just straightforward, "You want them and you can have them back"?

  Dr Davies: In those cases, yes, I think it was. I do not think they were named individuals and I think in the case of the Royal College of Surgeons, one of the issues is that not only are they not individuals, but they are not even provenanced to a particular tribal group or anything, but they are just generally from northern Australia or southern Australia and I think some of those items have gone back. What happens in cases like that is that they might, for example, go to the National Museum of Australia in Canberra where research is then done on them to try to determine what their provenance is. Within Australia there is this phrase which they use, called a "Keeping Place", and I think that is a kind of indigenous phrase, but it means a kind of proper repository for human remains and the National Museum of Australia serves as a keeping place for human remains from other museums in Australia, so a lot of them are gathered up there and they are stored in conditions which are seen as appropriate by Australian Aboriginals until research can be done to discover more closely what their provenance is so that they can be returned to the right tribal group or the right geographical area.

  Q129  Miss Kirkbride: So the intention at the end is that they will be buried or burned, not that they will be kept in a suitable place?

  Dr Davies: Yes, that seems to be the case. There are various kind of riders to that because there are quite a lot of examples of scientists in Australia and in North America doing research on indigenous human remains with full consent of tribal people, so there is a growing way of working amongst scientists, and this tends to apply to remains that are uncovered now rather than ones that are out of the ground, but perhaps some archaeological works done on tribal ground and some remains are uncovered and whereas a few years ago the Aboriginal groups would have insisted they were immediately reburied, now it is becoming more usual for the scientists to come to an agreement with the tribal people at least for a certain period of time to undertake all the scientific research on them. They are often reburied then after a year or two or samples are sometimes taken. I have read quite a lot in the Working Group on Human Remains as we had some quite interesting evidence from scientists who are working in that way with full consent of indigenous people in particularly, as I say, Australia and North America. We also had representations from some indigenous representatives in New Zealand that they absolutely did not want things destroyed because they thought that either now or in the future there might be Maori scientists who would themselves want to do work on human remains, so it is an impossible area actually to come to a decision on, and I know this because I am a member of the Working Group on Human Remains and had to finally come down off the fence, if you like. For me it was impossible to come to a conclusion that satisfied every angle, so in a sense, as Mr Doran was saying, you have to kind of come up with an ethical framework within which you can weigh up these competing demands for things.

  Q130  Miss Kirkbride: Yes, and I suppose full consent might make us all feel better, but it does not actually answer the point of what the future will bring and what we might be able to accept for those remains later.

  Dr Davies: Yes. As you will see when the report comes out, there are differences of view effectively and I in the end came down on the view that was the most favourable towards return and I found it very difficult to reach that decision. I had to conceptualise it for myself and try and come up with an ethical framework within which to decide it. I think I decided that in the very longest term, in a 100-year/200-year horizon, the issue becomes one of in a sense scientific benefit versus destruction, so if you take a very long-term view I would be incredibly sympathetic with the view put by the Natural History Museum because I am sure that these remains have great scientific benefit and scientific discoveries will come that we cannot even dream of as new techniques are discovered. However, if then you look at it in a kind of shorter time horizon, I think it is an issue, as Mr Doran said, of post-imperialism and of a very, very damaged people with incredible problems who had all their rights violated, their religion they virtually cannot practise because the proper disposition of these remains is totally important. Therefore, I in the end made a decision which I should not do as a museum person, but I made a decision on a rather shorter-term basis, but in a sense it seemed to me the right decision to make now and for the next decade or two that largely things should be returned if the indigenous people genuinely believe that to be the case and have the religious authority and religious continuity to be the case, and I am absolutely aware that in 10 or 20 years' time I might really regret supporting the return of certain remains to Australia because the evidence is that we could make some wonderful discovery from them. One thing you learn working in museums is that it is the fragments of history and there are so many chances and accidents and flukes which have led to what has survived and what has not survived that that is not necessarily to argue in favour of destroying things, but things are only here as a result of many accidents anyway, so if another accident or quirk of policy leads to things not being here, then that is just another part of the historical story, I suppose, of what survives and what does not.

  Q131  Miss Kirkbride: I think there is a very good book that you might buy your friends for Christmas which is all about the seven sisters of Eve which says that we are all descended from seven women, the whole of mankind, so it seems to me we have as much right to speak for mankind as indigenous tribes do today and that that material is as much mine as it is theirs.

  Dr Davies: I would only agree that it is incredibly difficult. We sat through in the Human Remains Working Group some absolutely fascinating evidence sessions. People came from all over the world to give evidence and the scientific discoveries were jaw-droppingly wonderful. I read lots about human origins because it is absolutely fascinating and the scientific work is absolutely amazing and the claims from indigenous people were also absolutely wonderful and moving and genuine. What is so difficult is on both sides of the argument, that on the side of the indigenous people, they absolutely genuinely believe that one factor in the current suffering of those people is the continued presence of human remains out of the ground in museum collections in Britain, in this case, and they absolutely genuinely believe that it will be part of healing those people, reducing their alcoholism and reducing youth delinquency if things are returned. Therefore, confronted with two, what I believe are, genuinely held sets of beliefs in things that are right that are often incompatible if you cannot reach some kind of consensus, in a sense you have to make a choice and it is very, very difficult. What was so interesting is how it is so easy to see it as a kind of conflict between Western beliefs and humanity as a whole and indigenous beliefs and small groups, but actually it is not really like that at all because the strength of feeling on both sides and the strength of belief that returning or not returning is absolutely the right thing to do for humanity makes it such a difficult decision. It was very, very interesting and I think it is also one of the reasons why those kinds of issues are not very amenable to legal resolution because it is not really about winning and losing, I do not think, but it is much more complicated and subtle than that in a way.

  Q132  Miss Kirkbride: Given that the decision will have to be made, it will be interesting to see what your working group actually recommends because I know where I stand on the argument. Just as a final question, Frank talked about the return of property that had been looted or stolen in some shape or form and you talked about the moral perspective of that and I would agree with you there. I just wanted to clarify what your view would be and whether or not you would see a moral argument for the return of cultural property that had been taken in our imperialist past, the Elgin Marbles, et cetera, and whether that same argument applies.

  Dr Davies: Well, it is incredibly difficult, is it not, to know in a sense where you draw the line and certainly there seems to have been a clear consensus within the UK about items taken by the Nazis in the Second World War period, so for some categories of material ethical retrospection goes back as far as there, but for further categories of material it does not because there are items in museum collections that were illicitly taken since the Second World War, but there is not really much discussion about returning because the UNESCO Convention, which was the international legal instrument for regulating cultural property internationally, was not even drafted until 1970 and then the UK did not sign until last year, so there is a whole lot of material there. Then there is a whole argument about slavery and things which have been here which represent benefitting from slavery, so it is a very difficult area to know where you draw the line. I have to say I find one of the most productive ways of discussing it, and this slightly contradicts what Mr Doran said, is not to look at the legitimacy of the original acquisition, but actually to look at the ethical issue now really, the strength of the claim now. Really the Parthenon Marbles show that whilst the debate about whether or not the original acquisition was legitimate or not, it does not really get you very far. There is a lot of scholarly energy gone into analysing the original acquisition, but it has not really gone very far to resolving the issue of whether they should be in London or Athens now or in the future with some people thinking one thing and some people thinking the other, so I think you have to look at each case on its merits, but what framework you use for that is not clear at all really. It is not very helpful, is it?

  Chairman: It is extremely lucid actually, Dr Davies, and it does clarify things. For example, if, which they are not, the Parthenon Marbles were part of the remit of this inquiry, it could perhaps be argued that if the Greeks could pop them back on the Parthenon, then there would be a very strong argument for letting them have them back, but since they have no intention of doing that, the question is whether they remain in the museum which exists or they are assigned to a museum which does not exist.

  Q133  Michael Fabricant: I just wanted to follow up something which you said earlier on. You talked about the difficulty in providing passporting, as you called it, for cultural objects for determining their provenance. About three years ago there were two sister Bills passed in Parliament which were promoted by the Kent and Maidstone unitary authorities with the help of the Kent Constabulary.

  Dr Davies: Yes.

  Q134  Michael Fabricant: Good, you know them. What those Bills did was to say that any objects sold over quite a small value, I think it was something like £5 or over, you had to certify that you were the owner before you sold them. It was to stop car boot sales and antique dealers either wittingly or unwittingly selling stolen goods. I was going to ask you whether you are aware of this legislation and you have already nodded that you do know about it, so I want to ask you this then: how do you consider those Acts are working? Do you think that they ought to be extended nationally? Thirdly, would that not prevent a lot of the illicit trade that goes on in cultural objects?

  Dr Davies: To answer your first question, I realise I have no idea how they are working in practice and it would be very useful to know. I think I am right in saying that the Illicit Trade Advisory Panel said in its report[1] that it would welcome at least serious consideration of extending those regimes across the whole of England at least, or maybe England and Wales, so there would seem to be merit in extending it. Sorry, what was the third part of your question?

  Q135  Michael Fabricant: Yes, what would be the impact on the illicit trade in cultural objects specifically in relation to this inquiry which is the museums?

  Dr Davies: I think the impact on the top level of the trade would probably be very little because I think they are already recording that sort of information—I think they have to record it for VAT purposes, if nothing else—and I think they also under their codes of practice record that information. I think at the lower end of the market and particularly in terms of dealing with lower-value stuff stolen from people's houses and so on in the UK, it could make a huge difference. I think the other thing that again just feels like it might have potential with all this talk of databases is the potential for creating a database that in a sense positively vets things and I think one of the current databases offers this service to owners of cultural property, so you do not wait until something is stolen and then put it on the database as stolen, but while you legitimately own the item, you put it on the database as your property, so it does not then need to be recorded as stolen for a potential trader to pick it up quickly as belonging to you. It seems to me that there are various possibilities in terms of both putting some requirement on dealers and traders and also in recording things positively. Certainly when you have cases of looting overseas from museum collections, one of the biggest problems is often that they do not have inventories with enough information on about what was stolen and we saw that in the case of the Iraq Museum. If there had been a website with all of their collection on, it would have been much easier to identify things, so again I think the idea of a system of positively recording things in legal ownership may do a lot to stop illicit trading.

  Michael Fabricant: Well, our next set of witnesses are in fact people who maintain databases and you have already suggested an interesting line of questioning.

  Chairman: Thank you very much indeed—extremely helpful and much appreciated.





1   Footnote by witness: The Illicit Trade Advisory Panel's Recommendation 13 reads:

Regulation of the Market in Second-hand Goods

We have noted the Special Report of the Parliamentary Committee on the Kent County Council Bill and the Medway Council Bill. These Bills enable the councils concerned to regulate the market in second-hand goods (including art and antiques) in their administrative areas. While we support the aim of these Bills, we are concerned about the piecemeal implementation of such private legislation, because this is likely to result in variations in regulatory regimes among different local authority areas. We believe that this could be extremely confusing and agree with the Parliamentary Committee's conclusion that "the Government should reconsider the case for public legislation to regulate the market in second-hand goods" and that "such legislation should be introduced at an early stage".

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