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from museums or archaeologists, auction houses have withdrawn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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