Examination of Witnesses (Questions 200-219)|
4 NOVEMBER 2003
Q200 Michael Fabricant:
That has been a very helpful and important answer, actually, because
you have not only pointed out the importance regarding the provenance
of the art in question but also the importance of a register with
regard to there being sufficient evidence to either prove guilt
or, somewhat unusually in our legal system, to prove innocence,
which is a complete departure, I think, from the principle of
English law. I wonder if you might just clarify, for me at least
and perhaps the rest of the Committee, whether I am right in thinking
that the register, as you have referred to it, would be a database
available on the internet; that anyone could just log on to and
look through pictures of art. How would one actually use it in
When we produced our report in December 2000 we did refer to an
open, public and freely accessible database, whilst recognising,
of course, there will have to be levels of access, with certain
levels of material accessible only to the police, some to the
trade and some to ordinary individuals. That said, we are awaiting
and will look very carefullyand I hope objectivelyat
any proposal which comes forward. I certainly have listened very
carefully to suggestions that this should be a public/private
partnership. I do appreciate, of course, the funding implications
and there is certainly no proposal of which I am aware at the
moment of which it can be said that we have ruled it out anticipatorily
without actually examining it more closely. We are due to hear
presentations, I believe, tomorrow on this; there is a meeting
of the Illicit Trade Panel tomorrow and we hope to take this further.
So our thinking on this is not ossified, save only in this: that
we have an immutable conviction that something must be done.
Q201 Michael Fabricant:
As you know, the police reckon that it would cost £12 million
to operate a wholly publicly funded database of this type, which
may or may not be accurate. Are you aware of the offer that was
made by Julian Radcliffe of the Art Loss Register in his letter
to the Home Office back in May 2001 to provide the same database
totally free of charge for two years?
Yes, I was aware of that offer at the time and I was aware that
I think it was approached with a certain circumspectionI
cannot remember the detail of it. We have been awaiting for some
time the evolution of further private initiatives on this and
it is certainly something that we would not rule out. I ought
to add that in my view this is not just a question of economics,
and I believe that that is the view of the Department as well;
it is also a question of techniques and methods and perhaps even
cultures and policies. In any event, I do not want this matter
to become one of the value of property which is stolen. We talk
about the size of the illicit art market and so on and we tend
to talk about it in terms of figures, not even numbers of items
stolen but values. We were not able to put a higher figure, and
we did not try to falsify it of course, on the outflow from the
United Kingdom than £200 million worth of art a year. That
is not, by law enforcement standards, an enormous criminal market.
Even so, we think that, first of all, any illicit removal pollutes
the market and is a bad thing; it affects its credibility. Secondly,
these are often matters of great sentimental or emotional valueor
heritage value, come to that. Thirdly, we owe a duty under the
UNESCO Convention to safeguard our own heritage and, finally,
we have to protect not only the art market, in terms of buyers
and sellers, but also borrowing markets. The United Kingdom museums
and galleries borrow a vast amount of art, so we need provenance
checks there as well. Nothing can be more embarrassing than when
an art exhibition is taking place and a claim is brought by a
third party against that museum or gallery. So there are reasons,
other than the buying and selling trade, why we have to be very
circumspect about this, and it is very hard to put a money value
Q202 Michael Fabricant:
We all recognise the cultural value of these things and these
things cannot always be quantified in terms of material and financial
value. I still want to take you back, if I may, to this offer
(I thought your answer skirted about the subject, shall we say)
of the two-year database. You said it was treated with some circumspection.
Would you personally have welcomed the provision back in 2001
of a two-year, trial database which would have gone live, been
freely available and actually not cost the taxpayer anything for
those two years?
I would have needed to look at it more closely than I was advised
I should look at it at the time.
Q203 Michael Fabricant:
Who advised you not to look at it at the time?
I cannot remember, and perhaps I should not mention names, but
I gather there was a view within the Department that this was
Q204 Michael Fabricant:
"Department" being Culture Media and Sport or the Home
No, the Department for Culture. And that the matter was being
considered by Charles Clarke's Committee in any event. It was
before or around the time that the Illicit Trade Panel was set
up and we had not actually committed ourselves in any event to
a database at that time. We did not report until December. So
although I became aware of the offer some time between May and
Christmas of 2001 I think it is fair to say that we were not encouraged
to look at that in any detail.
Q205 Michael Fabricant:
If you had not been discouraged to look at this, would you have
actually looked at it?
Yes, we did consider the question of whether it should be wholly
privately run and we inclined at the time to the view that it
should be free and it should be the responsibility of the Department.
I think we were echoing this as late as the progress report which
was delivered last year. There are, I think it is fair to say,
those on the Illicit Trade Panel who are not instinctively attracted
to an initiative of this kind which makes money for somebody and
would prefer to see it as a public service, so it did not feature
particularly prominently in our observations, particularly, as
I say, as I think it arose before the Illicit Trade Panelcertainly
before it started sitting.
Q206 Michael Fabricant:
Do you believe the Department of Culture, Media and Sport has
been driving it sufficiently hard with the Home Office?
There is a view amongst certain members of the Illicit Trade Panel
that if it is a question of money then whoever finds the money
is a secondary question; that if there is a responsibility there
then the money must be found, full stop. In my experience the
Department of Culture has been trying hard to take this forward
and I have sympathy with their attempts to penetrate what appears
to be the Home Office's impenetrability on this matter. That being
said, there comes a point when you cannot listen to excuses any
more. A point I cannot emphasise too strongly is that the purpose
of the Illicit Trade Panel is to get all sections of the arts
community together, speaking to one another. We have succeeded
in doing this for three years but there is an emerging sentiment
in some quarters that, for example, the trade has accepted the
burdens without gaining the benefits. There is a feeling that
if this does not progress soon the committee will, perhaps, begin
to fall apartnot to put too fine a point on itin
which event a lot of the effort will have been wasted.
Q207 Michael Fabricant:
Do you think we have reached the point where you cannot listen
to excuses any more?
We expect tomorrow to look at serious and credible proposals with
a realistic time-frame for showing us the way in which this goes
ahead. I think there are members of the panel, and I would share
this view, who would find it embarrassing to have the criminal
offence without the database backing it up. I think the time has
come to show that progress will be made.
Q208 Michael Fabricant:
One final question: do you think it is purely coincidental that
you are having this meeting tomorrow when the Minister from the
Department of Culture, Media and Sport is coming before this Committee
Frankly, I think it is entirely coincidental.
Michael Fabricant: You
are a generous man. Thank you, Chairman.
Q209 Derek Wyatt:
Can we just go back to human remains, for a moment? There is a
report that has been made but it has not been made public. Are
you able to tell us what the recommendations are if we cannot
see this report?
Yes, I am. I have checked that about half-an-hour ago. I understand
that I can and that it will be released officially at lunchtime
Q210 Derek Wyatt:
That is a result. I am going to guess little bits then. Has an
audit been done of the major museums that hold human remains?
Q211 Derek Wyatt:
So that we know exactly, in the report tomorrow it will say "This
museum in Liverpool or that museum in Edinburgh has this, and
these are the issues that it raises"?
Yes, that is quite right. Resource put up the sum of £10,000
for the performance of what we call our scoping survey, which
does give a picture of the location and distribution of human
remains in English museums.
Q212 Derek Wyatt:
Apart from tissue problems, which I understand the Department
of Health has raised, what are the other issues, do you think,
that need to be resolved before the remains are actually given
This is a matter on which, as I am sure you are aware, there is
a sharp divergence of argument. In many cases the distance
Q213 Derek Wyatt:
Between who and who?
Between, on the whole, those museums which wish to retain human
remains in order to pursue scientific research and to achieve
what, it has to be said, are most extraordinary and fascinating
results, often of practical benefit to medicine and science, and
those claimants from overseasalmost invariably from overseaswho
are normally representatives of the indigenous communities who
feel that it is an insult to them and, worse than that, that it
tends to the disquiet of their ancestors, to suffering, to lack
of tranquillity and quiescence that these are still in museums.
Q214 Derek Wyatt:
So there are no recommendations in the report? I am guessing now,
because unless you can tell us some highlights we are struggling.
Yes. I am very happy to tell you
the highlights and there are indeed recommendations.
Q215 Derek Wyatt:
Could you give us a little flavour, for the Committee's sake?
Yes, certainly. Firstly, we are of the view that it would appropriate
for the arguments for and against the retention of human remains
to be capable of being submitted to a national human remains advisory
panel. This is a matter which has to be approached on a case-by-case
basis. The arguments are weighty and deserve the highest respect.
Our committee could not say of any specific remain "That
shall go back" or not, that was not within our terms of reference;
what we have decided is that there is a compelling case for an
open, public, objective, transparent and consistent resolution
mechanism by which claims can be heard and, hopefully, resolved.
Q216 Derek Wyatt:
Would that discussionif it was an Aborigine or Maori or
an Indian from Americabe held in public so it was truly
That would need to be decided. We have taken to a large degree
our parallel from the Spoliation Advisory Panel, which as I am
sure you are aware deals with very sensitive matters relating
to family and property and the horrible events that people suffered
in the past. I think that might have to be a matter on which individual
claimants are consulted, as to whether there should be public
attendance at hearings, for example. That has not been the case
hitherto with the Spoliation Advisory Panel, which I may say,
in my view, is a very successful institution. On the other hand,
of course, the Spoliation Advisory Panel does publish and has
in the case of the Griffier claim published a full report,
and we anticipate that would equally be the case with a claim
for the return of indigenous human remains.
Q217 Chairman: It
strikes me more and more, Professor Palmer, without any disrespect
to you or your colleagues, that we are in an episode of Yes,
Minister here, in which an appearance of activity conceals
no activity. One had the feeling, I remember it when we were conducting
our previous inquiry, that this working party was set up at the
time to stymie the work of this Select Committee. OK,
I would not have minded about that if any result whatever had
emerged from all of this, but what we are in is a position in
which we conducted an inquiry, we made certain recommendations,
and one actually was accepted by the Government who have done
nothing whatever to implement it. Everybody is having a lovely
time dealing with matters of great fascination but nothing is
actually happening. You said in a reply earlier on that you had
permission to give us your conclusions. Can you give us them?
I not only can but had begun to do so and would be happy to continue
doing so. The first, as I say, is the recommendation that there
should be a national human remains and advisory panel, an independent,
government-appointed forum before which claims and controversies
relating to the retention of human remains by English museums
can be heard. Reference to the panel will not be compulsory; as
in the case of spoliation it will be consensual. The recommendations
of the panel will be advisory, it will be up to the parties whether
to adopt them or not. Again, that follows the parallel of the
Spoliation Advisory Panel. We expect that the panel would be able
to make recommendations not only about the specific case but also
to the Department of Culture about what should happen in given
instancesfor example, whether there should be legislative
change or not. That, again, follows the provisions of the Spoliation
Advisory Panel which was set up in, I think, May 2000. That is
the first of our recommendations, but there are others. Secondly,
it is quite clear that the law relating to human remains, both
within and beyond English museums, is in an unsatisfactory state.
This unsatisfactory state is exacerbated by the constraints that
are limitingor in the view of national museums are limitingthem
from releasing human remains even when they want to do so. So
we have also recommended that there should be a relaxation of
national museum governing statutes in order to permit them, at
their election, to release human remains in those cases where
they consider it appropriate.
Q218 Chairman: Have
you any idea whatsoever as to whether any of this will be (a)
accepted and (b) implemented? Otherwise you will have been wasting
your time and we, once again, will have been wasting our time
(which we are quite used to doing).
It is for the minister to consider whether the arguments which
we advance in favour of these two reforms are persuasive or not.
We are firmly of the view that they are and we would be interested
to hear any counter-arguments. My view is that they are so serious
and realistic and credible that there must logically be a serious
prospect of their being recognised and accepted. I appreciate,
however, that those more experienced in political matters than
me might be sceptical on this point. However, that is what we
propose. We also propose that museum holdings of human remains
should be subject to a licensing authority, akin to and possibly
assimilated with the licensing authority, the human tissue authority,
that is proposed in relation to medical institutions, and that
such licensing should be dependent inter alia upon subscription
to a code of practice by which the museum will demonstrate that
it has proper standards, ethical and professional standards, for
the care and safe-keeping of human remains and that it has access
to a proper claims resolution process.
Q219 Chairman: Can
you suggest to us any time-scale in which anything will actually
I entertain a confident expectation that the relaxation of national
museum statutes in order to allow the discretionary release of
human remains is achievable within the foreseeable futureI
would say, and this is a figure grabbed from the air, within six
months. Whether that is the case, of course, remains to be seen,
but we have had discussions about this and we do know that in
the case of one national museum, the Natural History Museum, it
is regarded by that institution as the most important recommendation
and indeed as the sine qua non to anything else. It seems
quite clear to us that there is not a great deal else that can
be achieved if museums consider themselves debarred from returning
material even if they want to.
3 Footnote by witness: Report of the Spoliation
Advisory Panel in respect of a painting now in the Tate Gallery,
18 January 2001. Back
Footnote by witness: The Select Committee published its
Seventh Report on 18 July 2000. The Working Group on Human Remains
in Museum Collections was established in May 2001. Back